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Doran v. Minister for Finance [2001] IEHC 57; [2001] 2 IR 452 (3rd April, 2001)
THE HIGH COURT
1999 No.
531SP
COURT
NO. 6
IN
THE MATTER OF THE ANTI-DISCRIMINATION (PAY) ACT, 1974
BETWEEN
AUDREY
DORAN, SANDRA MURPHY, BARBARA CARRICK, CLARE PILKINGTON, PAULINE MURRAY, ANN
MURPHY, KATHLEEN GLACKIN, BARBARA GALLIGAN, JOAN FITZGERALD, MARGARET
O’BRIEN, JOAN ROONEY, JACQUELINE CARR, LINDA CARROLL, MARY FALLON, ANN
EGAN, SIOBHáN KERR, SHEILA SLEVIN, NUALA LYDON, BERNADETTE
O’DONOVAN, BERNIE MCCABE, PATRICIA ANDREWS, MARIAN O’CONNOR, KAY
BIRCH, CATHERINE BANVILLE, RITA HANROHAN, MARY AOIFE FITZPATRICK, CIVIL AND
PUBLIC SERVICE UNION
APPLICANTS
AND
MINISTER
FOR FINANCE, MINISTER FOR SOCIAL COMMUNITY AND FAMILY AFFAIRS, MINISTER FOR
AGRICULTURE AND FOOD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR DEFENCE,
OFFICE OF PUBLIC WORKS, REVENUE COMMISSIONERS
RESPONDENTS
Judgment
of Mr. Justice Roderick Murphy delivered the 3rd day of April 2001.
1. BACKGROUND
1. This
is an application by way of Special Summons against a determination of the
Labour Court of the 26th of July 1999 (No. 99/2) which held that there was
objective justification for indirectly discriminatory pay practice in relation
to the Applicants, who at all material times were Clerical Assistants, and
comparator Paperkeepers.
2. The
first 26 named Applicants were at all material times employed as Clerical
Assistants by the Respondents and are represented by the Civil and Public
Services Union, the last named Applicants.
2. PREVIOUS
REFERENCES
2.1 On
the 14th of November 1991 the Union referred a complaint of pay discrimination
on behalf of the claimants to the head of Equality Services of the Labour Court
under
Section 7(1) of the
Anti-Discrimination (Pay) Act 1974 (“The 1974
Act”).
3. The
Equality Officer issued recommendation EP07/98 on the 8th of April 1998 which
found that, although the claimants were employed on “like work” as
that performed by the compareters, the difference in pay was unrelated to sex
and the Respondents’ therefore had not discriminated against the
Applicants, contrary to the terms of the 1974 Act.
2.2 On
appeal to the Labour Court pursuant to
Section 8 of the 1974 Act the
determination, already referred to, accepted that the differences in pay for
the two grades are justified on grounds other than sex. The Court,
accordingly, upheld the Equality Officers recommendation.
3. LABOUR
COURT DETERMINATION
3.1 The
Labour Court noted what it believed to be the common case that the grade of
Clerical Assistant, to which the Applicants belonged, is a recruitment grade
whereas the grade of Paperkeeper (as comparators) is a promotional grade. It
also regarded it to be common case that it is possible to gain promotion from
the grade of Clerical Assistant while and it is not possible to gain promotion
from the grade of Paperkeeper. The Labour Court also noted the
Respondent’s contention, among other grounds, that in order to motivate
staff and to maintain a sense of vocation it was necessary to promote them and
that the promotion could be accompanied by an increase in pay and result in
different pay scales. These reasons, it claimed, constituted grounds other
than sex under
Section 2(3) the 1974 Act in relation to the difference in pay
between the two grades.
3.2 The
Labour Court referred to the considerable volume of European
and Irish Case law on the point:
Flynn
-v- Primark
(1997) ELR218;
Bilka-Kaufhaus
Gmbh
-v- Weber
(1986) ECR1607 and
Enderby
-v- Frencahy Health Authority
(1993) IRLR591.
3.3
That Court also referred to the Council Directive 97/80/EC of the 15th of
December 1997. Article 2 of that directive states that :
“Indirect
discrimination shall exist where an apparently neutral provision,
criterion
or practice disadvantages a substantially higher proportion of the
members
of one sex unless that provision, criterion or practise is appropriate
and
necessary and can be justified by objective factors unrelated to sex”.
3.4 The
Labour Court accepted the fact that the Clerical Assistant grade is a
recruitment grade from which the claimants may seek promotion to other grades.
The Court also accepted the fact that the Paperkeeper grade is a grade from
which there are no further promotional outlets. The Court then continued:
“Given
the particular circumstances of the grade of Paperkeeper within the
Civil
Service structure, the Court finds as a fact that the creation of grade of
Paperkeeper
was necessitated by need to encourage motivation among
staff
who could attain that grade, to maintain a sense of vocation
amongst
them in the long-term and to raise morale amongst those members of
the
Respondents’ staff employed within the section. Due to the fact that
there
were
no further outlets from that grade, the only appropriate means of
encouraging
staff in this grade was by means of a pay differential and,
accordingly,
the pay difference was necessary for the reasons outlined above.
The
Court is assisted in this view by the fact that at the top of the respective
scales,
the Clerical Assistant grade, in fact, earns more than the Paperkeeper
grade,
allied to the fact that there are no promotional opportunities from the
grade
of Paperkeeper. This is not the case in the case of the Clerical
Assistants
who have unlimited promotional opportunities through a
heirarchy
of grades.
The
Court, accordingly, finds as a fact that the differences
in
remuneration
arising
from those measures correspond to a real need on the part of the
Respondents
and were appropriate and necessary to that end”.
3.5 As
a result of those findings and views the Court accepted that the difference in
pay for the two grades is justified on grounds other than sex and, accordingly,
upheld
the Equality officers recommendation.
4. APPLICANTS’
SUBMISSION
4.1 Ms.
Mary Honan, Barrister of Law, on behalf of the Applicants, submitted that
indirect sex discrimination refers to disadvantage resulting from a criterion
which is gender neutral but which nevertheless impacts adversely and
substantially on a particular sex. Once a
prima
facia
case of indirect discrimination is established the onus of proof shifts to the
Respondent to show objective justification for the measures resulting in the
pay differential. Having considered
Enderby,
Nathan -v- Bailey Gibson
and
Flynn -v- Primark
(1)
Ms.
Honan referred to the classical formulation of the test for objective
justification in
Bilka
-
Kaufhaus.
4.2 That
test, she submitted, was as follows:
....where
it is found that the measures chosen for achieving the objective
correspond
to a real need on the part of the undertaking, are appropriate
with
a view to achieving the objectives pursued and are necessary to that
end”.
4. Moreover
the measure chosen to achieve a particular objective must be consistent with
the principle of proportionality.
4.3 Four
Nett issues arise in the Applicants’ submission.
4.3.1 The
first of these, detailed in grounds (i) and (ii) relates to direct
discrimination on grounds other than sex. Counsel for the Applicants submit
that the Labour Court accepted that a motivational policy aimed at maintaining
a sense of vocation was a ground other than sex. The means chosen to achieve
this objective resulted in a grading structure with pay differential. The
motivational policy was twofold: to motivate Service Officers and others to
apply for the Paperkeeper grade and to motivate the Paperkeepers who had no
promotional outlet.
5. In
her submission, Ms. Honan says that motivation or intention is not a relevant
factor in discrimination cases. Most pay discrimination could be thus validated.
6. The
history of Clerical Assistant and Paperkeeper grades clearly shows, in the
Applicants submission, that the grading structure is originated and developed
as sex differentiated grades. To accept the nature of this structure as
legitimising a pay differential is to perpetuate the discrimination which the
legislation was designed to change.
7. The
employer must prove that the differentiation is genuinely attributable to
grounds other than sex. It cannot be used to uphold a practise which seeks to
conceal discrimination on sexual grounds (See Keane J in
Minister
for Transport Energy and
Communication
-v- Campbell
(Unreported, 29.06.96) and
Irish
Crown Cork -v- Desmond
(1993) ELR 180.
8. Ms.
Honan adopted the passage of Lord Denning, MR. in
K
Cross (Quarrying
Services)
Limited -v- Fletcher
(1998) IRLR 361 as follows:
“The
issue depends on whether there is a material difference (other than sex)
between
her
case and
his.
The tribunal is to have regard to
her
and
to
him
to the personal equation of the women as compared to the man,
irrespective
of any extrinsic forces which lead to the variation and pay. As I
said
in
Shields -v- E Commes Holdings Limited
(1998) IRLR 263, Section
1(3)
applies “where the personal equation of the man is such that he deserves
to
be paid at higher rate than the woman”. Thus the personal equation of the
man
may warrant a wage differential if he has much longer length of service
or
has superior skill.... Or to other circumstances personal to him”.
9. It
is submitted on behalf of the Applicant that a motivational policy resulting in
the creation of a grading structure which was indirectly discriminatory cannot
satisfy Section 2 (3). It had a disparate impact on women. The Labour Court
found that the pay practice resulting from this policy constituted
prima
facie
indirect discrimination.
10. The
Applicants submit that the Labour Court failed to apply the correct principles
in that it accepted as a ground other than sex a ground which was indirectly
discriminatory, tainted with sex discrimination and was unspecific and
subjective.
4.3.2 The
second of the four issues is that of indirect discrimination and objective
justification (grounds (iii) (viii) of the appeal). The Labour Court found as
a fact that the differences in remuneration arising from the motivational need
corresponded to real needs on the part of the Respondents and were appropriate
and necessary to that end.
11.
In the Applicants’ submission the test in
Bilka
as
elaborated in
Hill
and
Stapleton
((1998) IRLR 466)
and
in
Seymour-Smyth
((1999) IRLR 253) was not satisfied in the Labour Court’s decision.
12. Generalisations
do not constitute legitimate objective justification (Jerster). An
explanatory approach is not sufficient justification as it would lead to the
perpetuation of sexual roles in working life and afford a legal argument for
maintaining the
status
quo
(Enderby).
13. In
particular the European Court expressly rejected an alleged motivationally
policy as objective justification for indirect discrimination in
Hill
and Stapleton
.
This concerned practice which established a reward system to maintain staff
motivation, commitment and morale.
14. In
her submission, Ms. Honan for the Applicants asserts that while it is
acceptable that the motivation of staff is a valid objective, the requirement
of need could not have been satisfied before the Labour Court where both the
Applicant’s grade and the Comparators’ grade were assimilated into
that of Clerical Officer Grade with effect from 1995, (R.G.2 para 10.1 in the
grounding Affidavit).
15. Applicants’
Counsel further submitted that a correct application of the principle of
proportionality would have to take into account the fact that the pay practice
in the present case adversely impacted on approximately 6,000 female staff
while allegedly motivating about two hundred staff in the paper grade area at
the time of the claim. In
Sirdar,
the Advocate General stated that the principal of proportionality requires that
derogations remain within the limits of what is “appropriate and
necessary”. He asked whether the policy, in that case, was strictly
necessary or whether it did not go beyond what would be adequate to retain
effectiveness.
16. In
the Applicants’ submission the Labour Court erred in law in failing to
apply the above principles.
4.3.3 The
third issue, relates to current objective justification. This refers to a
reason existing at the date of the determination. In the present case the
motivational policy relied on as justification did not exist at the time of the
Labour Court’s determination since the Claimant and Comparator grades had
been merged into the Clerical Officer grade with effect from 1995 pursuant to
the Department of Finance Circular 33/97. It is submitted that the Labour
Court erred in law in accepting as justification a policy which no longer
existed at the time of the determination.
4.3.4 The
fourth issue relates to findings of primary fact. The Labour Court had found
as a fact that the Paperkeeper grade had no promotional outlet and relied on
this finding both in relation to its conclusion as to “grounds other than
sex” and in relation to objective justification. (See page 3 of
Determination 99/2). It was submitted to the Labour Court (RG2 of the
Grounding Affidavit herein) that the Paperkeeper grade had a promotional outlet
to the Clerical Officer grade as had the Clerical Assistant grade. On this
basis it is submitted that the finding of fact that the Comparator grade had no
promotional outlet, which finding was critical to the Labour Courts
determination, should be set aside.
4.3.5 It
was finally submitted that the High Court has jurisdiction to refer any
question of law relating to the correct interpretation to the European Court of
Justice for Preliminary Ruling under Article 177 of the Treaty of Rome.
5. RESPONDENTS’
SUBMISSION
5.1 Ms.
Barrington, Barrister at law, for the Respondents submits that
Section 8(3) of
the 1974 Act, which provides for an appeal on a point of law, was considered in
Brides
-v- Minister for Agriculture, Food and Forestry
(1998) 4 IR 250 at 274. There Budd J. held:-
“Accordingly,
the facts as found by the Labour Court are binding on this Court whether its
facts are supported by credible evidence and this Court should be slow to
disregard the inferences drawn by the Labour Court from its findings of fact
unless the inferences drawn are wholly unwarranted on the findings of fact
made.”
5.2 The
fundamental issue in the Appeal is the inferences drawn by the Labour Court
from its findings of fact.
17. The
entitlement to equality for women employed in like work with men provided for
in Section 2(1) is subject to Section 2(3) which provides that nothing in the
Act should prevent an employer from paying to his employees who are employed in
like work in the same place with different rates of remuneration on grounds
other than sex.
5.3
Section
8(5) provides that any arrears of remuneration is limited.
5.4 Where
the Court were to find that the Appellants had established an error on a point
of law, the proper course to be adopted would be to remit the matter to the
Labour Court for rehearing as in
Flynn
-v- Primark
(1999) ELR and
Nathan
-v- Bailey Gibson Limited
(1998) 2 IR 163.
18. The
Respondents submissions of 4th March, 1999 exhibited in the Affidavit of Ms.
Rosaleen Glakin points out that eleven of the twenty six Applicants were paid
more than their comparators on the 11th November, 1991 which was the date of
the referral of the claim. Four of these were paid in excess of the maximum of
the Paperkeeper scale. Only nine of the twenty six received less remuneration
than the minimum Paperkeepers scale.
5.5 In
the circumstances it is submitted that the only relief sought which may be
properly granted is to set aside the Labour Court Determination 99/2 and remit
the matter to the Labour Court.
5.6 The
Labour Court accepted that the fact that the grade of Paperkeeper was
promotional grade constituted an objective justification for the difference in
pay. That difference corresponded to a real need on the part of the
Respondents and was appropriate and necessary to that end. Moreover, the
Labour Court had correctly analysed the Appellant case in the context of a
claim for indirect discrimination and, accordingly, had applied to the
principles applicable thereto.
5.7 Indirect
discrimination is viewed as existing
“where
an apparently neutral provision, criterion or practice, disadvantages a
substantially higher proportion of the members of one sex unless that provision
is appropriate and necessary and can be justified by objective facts unrelated
to sex”
as defined in Counsel Directive 97/80/EC of the 15th December, 1997.
19. While
the 1994 Act does not define either direct or indirect discrimination the
latter as defined by the late Hamilton C. J. in
Nathan
-v- Bailey Gibson
(1998) 2 IR 162 at 177 as a practice or requirement with
“which
the proportion of persons of the other sex, or, as the case may be, of a
different marital status but of the same sex, able to comply is substantially
higher”.
20. Following
the reasoning in
Bilka
Kaufhaus
(1986) ECR 1607 it is for the National Court, which has sole jurisdiction as to
make findings of fact, to determine whether and to what extent the grounds put
forward by an employer to explain the adoption of a pay practice which applies
independently of a workers sex but in fact affects far more women than men, may
be regarded as objectively justified economic grounds. If the National Court
finds that the measures chosen by the employer correspond to a real need on the
part of the undertaking or are appropriate with a view to achieving the
objectives pursued and are necessary to that end, the fact that the measures
affect a far greater number of women than men is not significant to show that
they constitute an infringement of Article 119.
21. This
reason is implied in this jurisdiction in
Flynn -v- Primark
,
Nathan
-v- Bailey Gibson
and
Conlon
-v- University of Limerick
(1999) 2 ILRM 131.
In
Conlon
the High Court held that the Labour Court’s acceptance of objective
justification proffered by the University of Limerick was fundamentally correct
and would not be overturned on the basis of “semantics”.
22. In
the Respondents submission the test outlined in
Bilka
Kaufhaus
was complied with in that the measures chosen by the employer corresponded to a
real need and were appropriate with a view to achieving the objectives pursued
and were necessary to that end.
23. The
Respondents further submit that insofar as the Appellants are entitled to bring
a claim in respect for a difference in pay which did exist, then the
Respondents are entitled to rely on an objective justification which was valid
at that time.
24. In
relation to the determination of the Labour Court that the Paperkeeper grade
was one from which there was no further promotional outlet, this was not
evidence proffered by the Respondents. Moreover, the Labour Court’s
conclusion was not based on this determination nor on the undergoing fact.
25. It
was submitted that in relation to a factual error in the Labour Court’s
determination which was the subject of the Appeal in
Flynn
-v- Primark
,
Laffoy J.’s decision should be followed:-
“While
the statement in the Labour Court determination highlighted by the Applicants
in the submission is not accurate, in my view the Applicants have not
established that in consequence the determination of the Labour Court is based
on an unsustainable finding of fact and is wrong in law on that account. (At
99)”.
26. In
her final submission on behalf of the Respondents, Ms. Barrington submits that
no reference to the European Court is necessary. The discretion regarding
referral is set out in
Brides
at 259. The legal principles are clear and are set out in
Bilka
Kaufhaus
where the European Court of Justice stated at paragraph 35:-
“It
is for the National Court, which has sole jurisdiction to make findings of
fact, to determine what extent the grounds put forward by an employer to
explain the adoption of a pay practice which applies independently of a workers
sex but in fact affects more women than men may be regarded as objectively
justified ecomonic grounds.”
6. DECISION.
27. Facts
found by the Labour Court are binding on this Court where those facts are
supported by creditable evidence. Inferences drawn by the Labour Court from
its findings of fact will only be disturbed where they are wholly unwarranted
on the findings of fact made. This is clear from the dictum of Kenny J. in
Mara
-v- Hummingbird
(1982) ILRM 421 at 426 and applied in
Brides
-v- Minister for Agriculture
(1998) 4 IR 250 at 254.
28. However,
it seems to me that the basis for the determination of the Labour Court was the
acceptance of a fact that the grade of Paperkeeper was a promotional grade from
which there was no further promotional outlets. This appears clear from the
Labour Court’s consideration of direct discrimination where it believed
it to be common case that it is possible to gain promotion from the grade of
Clerical Assistant while it is not possible to gain promotion from the grade of
Paperkeeper. In its very comprehensive consideration of indirect
discrimination quoted,
in
extenso
,
at 3.4 above the Court concluded:-
“The
Court, accordingly, finds as a fact that the differences in remuneration
arising from these measures correspond to a real need on the part of the
Respondents and were appropriate and necessary to that end.”
29. It
is submitted by the Respondents (see 5.6 above) that the acceptance by the
Labour Court as a fact that the Paperkeeper grade was a grade from which there
was no further promotional outlets was not evidence proffered by the
Respondents. The Claimants, at 4.3.4 above submitted to the Labour Court the
Paperkeeper grade had a promotional outlet to the Clerical Officer grade. It
seems to me that the Court’s conclusion was, indeed, based on a
misunderstanding which was not a matter of “semantics” as in
Conlon
-v- University of Limerick
.
30. This
Court is concerned with the question whether or not the Labour Court had erred
in law in reaching its decision. (See
Brides
-v- Minister for Agriculture
(1998) IR 250).
31. In
order to establish discrimination the relevant comparator must not alone be
real and have a tangible connection with the type of work performed by the
Applicants (see
Defrenn
-v- Sabera
(case 43/75) (1976) ECR 455) but the nature of the contrast must be comparable.
32. If
there was no evidential basis for the misunderstanding then, in that sense, the
Labour Court would appear to have erred in law in reaching its decision.
33. In
the circumstances the matter should be remitted to the Labour Court for
rehearing in terms of paragraph (c) of the endorsement of claim.
© 2001 Irish High Court
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