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1. This is an appeal on a point of law from a determination by the Labour Court which issued on 21st October, 1997 pursuant to a claim by the Plaintiff that the Defendant had discriminated against her on grounds of sex in filling the post of Professor of Law.

2. The Plaintiff is a lecturer in law in the University of Limerick and in January, 1995 the Defendant advertised inviting applications for the position of Professor of Law. The terms of the advertisement are of considerable importance, and the relevant portion of it reads:-

3. The Applicant applied for the position, and on 5th May, 1995 was notified that she had not been short-listed for interview as there were other candidates whose qualifications and experience more closely matched the immediate requirements of the Defendant. The Plaintiff's basic complaint is that, in requiring that an applicant should have several years experience at a senior academic level, the Defendant was indirectly discriminating against the Plaintiff on grounds of sex, in that this requirement meant that there would be very few females qualified for the post because there were very few females at a senior academic level. The matter was referred by the Labour Court to an Equality Officer who, on the 16th September, 1996, issued a recommendation that the Defendant had not discriminated against the Plaintiff. The Plaintiff appealed from this recommendation to the Labour Court, and the appeal was heard on the 16th April, 1997. On 21st October, 1997 the Labour Court issued its determination that there was no discrimination against the Plaintiff. This appeal is brought on the grounds that the Labour Court applied wrong principles of law in making its determination, and misinterpreted sections 2 and 3 of the Employment Equality Act, 1977.

4. The relevant sections of the Act are as follows:-

5. Although it is not expressly stated to be so, it is accepted that the Employment Equality Act, 1977 was enacted to comply with Directive no. 76/207/EEC and Article 189(3) of the Treaty of Rome. I do not think it is necessary to set out the provisions of the Directive in this judgment, but it clearly sets out the principle that there is to be no discrimination on the grounds of sex either directly or indirectly.

6. The application of the principles of the Directive to the Act were considered by the Supreme Court in Nathan -v- Bailey Gibson & Ors (1996) ELR 114. That case established the following principles:-

7. Hamilton C.J. said at page 128:-

8. Miss Finlay S.C. has referred me to a number of decisions of the European Court which emphasise that the national Court, or in the present case, the Labour Court, must make an objective finding in considering whether the practice complained of is based on factors which have no relation to the Plaintiff's sex. I fully accept the principles set out in these cases, and I think it is probably only necessary to refer to one of them. In Bilka-Kaufhaus GmbH -v- Karin Weber Von Hartz (1986) 2 CMLR 701, which in fact concerned pensions, but which considered the whole question of discrimination in detail, it was said at page 721:-

9. In the present case the Labour Court certainly did not follow the procedure laid down in the Nathan case in considering the matter. At page 5 of the determination the Labour Court said:-

10. This portion of the determination clearly is contrary to the principles of the Nathan case, in that the Court appeared to consider that Section 2(c) applied to indirect discrimination, and also in that it appeared to put the onus of proof on the Plaintiff to show that the requirements were not essential. It also considered the question of whether the requirements were essential as the first issue, rather than determining how the different sexes were affected as the first issue.

11. The Labour Court then went on to give its findings of fact in relation to the issues in the following passage:-

12. This was a very clear finding of fact, which was based on arguments and evidence put forward by the Defendant. While the Court did not express the view that the onus of proof was on the Defendant, it in fact reached its conclusions, based on evidence and submissions from the Defendant. It was only after reaching those conclusions that the Court then expressed the opinion that the Plaintiff had not shown matters to be otherwise. In considering a matter such as this, a stage must certainly come where a Court is satisfied that the person upon whom the onus of proof rests has discharged that onus, at which stage it becomes a matter for the other party to persuade the Court otherwise. While the Labour Court certainly did not express itself particularly well in their determination, it would seem that in fact they considered the arguments of the Defendant and satisfied themselves that the onus of proof had been discharged. Accordingly, I think they made a finding of fact that the requirements for the post were reasonable and essential for reasons not connected with the sex of the Applicants for the post, based on the Defendant's case.

13. Furthermore, I do not think it is of any relevance that they considered the question of the requirements for the post before considering whether women were adversely affected by these requirements. In reality, there are two matters upon which the Court has to be satisfied if it finds discrimination, namely, firstly whether one sex has been adversely affected as opposed to the other, and secondly whether the matter complained of is based on objectively verifiable factors which have no relation to the Plaintiff's sex. If either of these matters is determined against the Plaintiff, there must be a finding that there was no discrimination. I do not think it matters in which order a Court considers these factors, as if there are objectively verifiable factors which have no relation to the Plaintiff's sex, the question of adversely affecting one sex over the other does not arise.

14. There is no doubt that the Labour Court erred in referring to Section 2(c) in relation to this matter. However, this was simply an error in relating the question to one particular section. In fact the Labour Court considered the issue from the point of view of indirect discrimination, which was the correct approach to take, even if they attributed this approach to the wrong section. They applied the principles in relation to indirect discrimination perfectly correctly, and the fact that the reference was to Section 2(c) does not, in my view, invalidate their decision in any way.

15. I accept fully the principle that the factors relating to the requirements of the Defendant must be viewed objectively by the Labour Court. It is difficult when considering the findings of a body such as the Labour Court to put oneself in the position of judging how they approached the decision, and in particular whether that approach was subjective or objective. The portion of the decision dealing with this matter starts by setting out the claim made by the Plaintiff, that since academics at a lower level than professor are carrying out similar duties, the requirements could not have been essential. It then goes on to set out reasons why that is not so in the present case, and those reasons are of course set out subjectively in that they are the requirements of the Defendant in this particular case. They are, however, set out as the Court's findings as to the reasons why the Defendants considered the requirements to be essential, and to that extent their findings are of fact as to the belief of the Defendant. The wording of the following paragraph is the vital sentence in the decision and is not happily expressed. To repeat the sentence, it says:-

16. The use of the word "reasonable" is particularly unfortunate, as the generally accepted test is that the requirement must be "essential" . However, this is really a matter of semantics, and in my view the finding that the Court was satisfied that the requirements were reasonable in the circumstances, coupled with the last sentence of the following paragraph which says that "the Court is satisfied that the requirements laid down by the University were essential" are sufficient to lead to the inference that the Court did view these requirements as being objectively essential in the particular circumstances of the post which it was sought to fill. This seems to me to be the correct approach in accordance with the decisions of the European Court, and I would refer in particular to a paragraph from the case of Kording -v- Senator Fur Finanzen (1997) ECR 5289 at paragraph 23 of the judgment where it is stated:-

17. In my view, therefore, the Labour Court adopted the correct approach in having regard to the circumstances of the particular case, and holding that in those circumstances the requirements were either reasonable or essential, depending upon which part of the wording one chooses, but in any event, in my view this finding was sufficient to objectively dispose of any question of discrimination.

18. Finally, an argument was also advanced on behalf of the Plaintiff that the Labour Court failed to apply the correct principles in that it failed to take into consideration the lack of transparency in the criteria applied for appointment to the post and accordingly, that by reason thereof, the onus was on the Respondent to establish that discrimination did not occur. In my view, the wording of the advertisement and the criteria set out were in fact quite clear. The principle requirements were "a higher law degree" , "several years experience at a senior academic level" and "a leading published researcher in a specialist field of law" . I do not think that there would be any misunderstanding as to the meaning of any of these phrases among people in the academic world, and I do not think that a lack of transparency arises. However, in any event I have accepted that the onus is on the Respondent to establish that discrimination did not occur, but it is my finding that however, by putting forward the reasons for making these requirements, which are set out in the determination of the Labour Court, the Respondent fulfilled the onus of proof upon it, and that the Labour Court considered these reasons objectively and reached the conclusion that they were essential requirements which had no connection with the sex of the Applicant.

19. Accordingly, I would dismiss the Applicant's appeal.