In February 2020, the Workplace Relations Commission (WRC) upheld a claim for gender pay discrimination and awarded significant compensation of almost €100,000 to the former general manager (Ms X) of an unnamed video game wholesaler and distributor. 

What happened?

Ms X was appointed to the role of general manager (GM) in July 2017 and resigned in November 2018. During her 15 months in employment, Ms X was paid an annual gross salary of €69,000. However, her predecessor, a male, had been paid an annual gross salary of €120,000 in addition to commission of €100,000 when performing the GM role. Separately, the employer also hired a male marketing contractor in July 2018 on a gross annual salary of €168,000. 

Ms X raised the pay disparity with her employer and subsequently handed in her notice in October 2018. Although the employer offered Ms X a greatly enhanced remuneration package comprising an annual gross salary of €135,000 salary plus commission in addition to a retrospective payment of €50,000 gross to stay, Ms X declined. 

Ms X brought claims against the employer for discrimination on grounds of gender relating to equal pay and other grounds of discrimination. 

What Did the WRC Decide?

Ms X pointed to both her predecessor and the marketing executive as “like work” comparators for the purpose of her gender pay claim. The employer successfully argued that Ms X had been appointed to the GM role on an interim transitionary basis and this role was “fundamentally different” to the more “strategic” role conducted by her predecessor. The employer showed that Ms X’s role was not of equal value to her predecessor having regard to skill, physical or mental requirements or responsibility and working conditions.   

However, the employer failed to rebut Ms X’s prima facie case of gender pay discrimination vis a vis the marketing contractor comparator as Ms X’s role “prima facie was of equal or greater value“. The WRC concluded that Ms X had “established facts from which it may be presumed that there has been pay discrimination having regard to the absence of transparency in pay determination between her and the marketing/sales contractor“. The employer was unable to explain the difference in pay adequately. The WRC found that it was not credible that marketing work performed by the comparator would “trump and had greater monetary value to the General Manager work” that Ms X performed “absent data to prove that proposition”.

The WRC further considered that the employer’s attempt to enhanced Ms X’s remuneration package showed that the company had accepted that she was underpaid in comparison to the comparators.

The WRC found discrimination on pay on the grounds of gender and awarded the complainant €97,666 in arrears, attributable to the employer’s failure to provide equal pay in respect of the period of employment between September 2017 and November 2018.

What Does this Mean for Employers?

Separately and distinct to the topical issue of the gender pay gap in the workplace, this case is focused on the more traditional concept of equal pay for equal work – regardless of gender. This case is a cautionary tale for employers when benchmarking remuneration levels to ensure no bias, conscious or unconscious, results in like work being remunerated differently in situations where the role is performed by a female. The WRC will require an employer to be in a position to adequately explain any differences in pay where there is such a discrepancy between comparable workers. 

This case is also a useful reminder to employers that equal pay claims are not statute barred after the usual six month or 12 months extension rules and can be brought for up to six years after the breach. 

Contributed by Darran Brennan