Suspected discrimination in the pay of two psychologists at a family centre in the city of X (TAS 67/2012 and TAS 79/2012, issued on 19 June 2013)
Two female psychologists working at a family centre in the city of X asked the Ombudsman for Equality to comment as to whether the city was acting contrary to the Equality Act (609/1986) by paying them less for a specific job than a male occupational health psychologist working in an occupational health care (municipal) commercial enterprise cited for use as a comparison.
The employer in his statements argued that the difference in pay was due to the fierce competition connected with the recruitment of occupational health psychologists and the differences in the demands of the jobs. The employer also referred to the fact that the commercial enterprise had an independent decision-making right in the recruitment and pay of staff, and so there could be no comparison between the pay of staff at a city family centre and of staff in a commercial enterprise. According to the employer, there was no case of pay discrimination either because a male psychologist working at a family centre was not paid more for the job than the female psychologists. A presumption of discrimination under the Equality Act, however, may arise, even if the women have a male colleague who receives the same pay as them and thus less than the pay of the man used as a comparison. (See statements of the Equality Board 1/01, 2/01 and 4/06)
A comparison of pay under the Equality Act is possible to make between employees doing the same work or work that is equal in value who work for the same employer. The draft of the Equality Act states that employees may also compare their salaries with those of employees working in another unit and for the same employer (Government Bill 57/1985). Under the law, the job-specific pay for employees doing the same work or work of equal value for the same employer must therefore be basically the same, regardless of the work unit in which they work, i.e. not just within one unit.
The Ombudsman for Equality stated that a municipal commercial enterprise is part of the municipality's organisation and an occupational health care commercial enterprise cannot be regarded as an independent legal person. Accordingly, the interpretation may ensue that the staff of the commercial enterprise and that of the service centre are working for the same employer in the sense that their pay can be compared within the meaning of the Equality Act.
According to the statement issued by the city, it is the availability of labour and the situation with respect to competition that resulted partly in the higher salary paid in the commercial enterprise. Public sector occupational health care has to compete for employees in the same market as the private sector. According to the employer, there is as yet no equivalent situation regarding competition at the family centre.
Safeguarding the availability of labour and the situation with regard to competition for labour might be grounds for the payment of a higher salary to psychologists in a certain field than to psychologists in another field, even if the work they do might be regarded as equally demanding. When the remuneration includes a portion of the salary justified by a situation with respect to competition that is due to a shortage of labour, it is important that in each case this happens on the basis of separately examined and demonstrable facts. It remains for the employer to show to what extent the difference in pay can be explained by market factors.
When assessing whether jobs are the same or of the same value, the focus should basically be on the tasks the employees carry out and the demands on the person that performs the tasks. According to the statement provided, the tasks of the psychologists were not compared using the same evaluation criteria with regard to how demanding the work was, as the requirement concerning the openness and transparency of the pay system would call for. The performance of demanding tasks can be grounds for a higher job-specific salary. However, a difference in how demanding a job is cannot be rewarded excessively: it must always be in relation to the difference in how demanding it is in fact.