DEP943

Labour Court Database __________________________________________________________________________________ File Number: AEP932 Case Number: DEP943 Section / Act: S8(1)AD Parties: ALLIED IRISH BANKS PLC - and - MR. BRIAN EDWARD CURRAN;SEAN ALLEN AND COMPANY, SOLICITORS

Subject:
Appeal by Mr. Brian Edward Curran against Equality Officer's Recommendation No. E.P. 10/92 concerning a claim for the payment of a marriage gratuity.

Recommendation:
4. This case concerns the non-payment of a marriage gratuity to
a former Bank official by his employer, Allied Irish Banks plc.,
in circumstances in which such a gratuity would be paid to the
comparator.

Prior to 31st December, 1973, female officials in employment with
the Bank, received a gratuity on marriage. Prior to that also,
female officials were required to resign on marriage.

Prior to the implementation of the Anti-Discrimination (Pay) Act,
1974, a collective agreement was reached between the I.B.O.A. and
the Banks Staff Relations Committee of the Banks Joint Industrial
Council.


That agreement provided that:

'Any lady official in the service on 1st June, 1973 or
entering the service before 31st December may, on marriage,
opt to take a marriage gratuity at the time, provided she has
completed five years service. If, however, she defers
drawing the marriage gratuity and leaves the service before
attaining the normal retirement age she will be granted a
gratuity based on total service. If she takes the gratuity
at the time of her marriage and subsequently remains in the
service until normal retirement age she will be awarded a
pension actuarially reduced to take account of the gratuity.
New entrants from 1st January, 1974 will not be eligible for
marriage gratuity."

The Bank official in this case, Brian Edward Curran, claims
entitlement to payment of a marriage gratuity on the basis that he
was engaged in "like work" with a female comparator, that his
employment was pre-1974, that the comparator was paid a gratuity
when she resigned in 1978, and that he was entitled to a similar
payment, when he resigned in 1987.

The claim first came before an Equality Officer who made a
Recommendation dated 16th December, 1992 in which she concluded
that by reason of the decision of the High Court in the case of
Bank of Ireland V. Kavanagh, from the facts of which Mr. Curran
did not distinguish his case, his claim must fail and that he was
not entitled to be paid a marriage gratuity.

Mr. Curran appealed against this finding to the Labour Court,
which heard the appeal on 24th November, 1993.


The thrust of the appeal is that the Equality Officer did not take
proper account of Article 119 of the E.C. Treaty and of Council
Directive 75/117 on equal pay. It is also claimed that the
Kavanagh case did not correctly apply Community Law and therefore
should not be followed. The Court is further asked to refer a
question to the European Court of Justice for the purpose of
determining whether or not the refusal on the part of the Bank to
pay a marriage gratuity to Mr. Curran is in breach of the
principles of Article 119.

On behalf of A.I.B. plc., it was argued that the Labour Court is
bound by the High Court decision in Bank of Ireland V. Kavanagh.
It was also argued that Mr. Curran was not engaged in "like work"
with the comparator, that the comparator was not a valid
comparator, that the gratuity was not remuneration, or if it was
that there were grounds other than sex for paying it, and that the
gratuity was pension-linked and therefore outside the scope of the
1974 Act. The Bank put Mr. Curran on proof of each and every fact
related to his claim.

It does seem to the Court that the marriage gratuity payable to
certain women is indeed remuneration, and that in effect it is
also pension-linked. It allowed those women who were in the
Bank's service prior to 1974, and who married, the right to take a
sum of money on marriage or on leaving the service prior to normal
retirement age a sum based on total service, which in respect of ,
everyone else had to be deferred until retirement age, or was not
paid at all. The purpose in making this arrangement was an
industrial relations one - the women workers had been used to the
promise of a gratuity on marriage, at which stage they left the
service of the Bank, and although after 1974 they were no longer
required to leave, those who were already in the service of the
Bank had the expectation of a gratuity on marriage. The actual

amount of money received by individuals would balance out
eventually, (if the service of the non-recipients continued), but
the women who were entitled to opt for and who did opt for the
payment of the gratuity had an earlier benefit. And for those men
or women whose service did not continue to retirement, there was
no payment of any kind. The European Court of Justice has found
in Case No. 262/88, Barber V. Guardian Royal Exchange Assurance
Group, that the application of the principle of equal pay must be
ensured in respect of each element of remuneration, and not only
on the basis of a comprehensive assessment of the consideration
paid to workers, and therefore in relation to the payment of
remuneration, the Court is satisfied that the claimant had a good
case for claiming that he had suffered discrimination.

It is disputed, however, that Mr. Curran could not make any such
claim, since, it is alleged, he was not employed on "like work"
with the comparator. He had chosen as his comparator a woman who
had been doing less valuable work than he did, and who had left
the service of the Bank long before he had applied for the
gratuity. But Mr. Curran can say that any woman who was doing
exactly the same work as himself would have benefited in the same
way as the chosen comparator, as long as she was in the pre-1974
recruitment category. Any woman who was in the Bank's service
before 1974 and who had been in service for five years could claim
the gratuity. Can he be deprived of his claim because he had no
exact comparator, in circumstances in which the disputed payment
would have been made to any woman with the required service
conditions.

It seems to the Court that in such circumstances "like work" must
be broadly interpreted. Both Mr. Curran and his comparator worked
for the same employer doing banking work. The fact that one was
an Assistant Manager when he left the Bank's employ, and the other
was two grades below, does not at all affect the payment which is
in dispute, namely the marriage gratuity. It is for this Court,
within the limits of its discretion under the 1974 Act, to give
that Act, where possible, an interpretation which accords with
the requirements of the applicable Community law. In the


case of Murphy and Others V. Telecom Eireann, the European Court
of Justice held that "Insofar as it is established that the
difference in wage levels in question is based on discrimination
on grounds of sex, Article 119 of the E.E.C. Treaty is directly
applicable in the sense that the workers concerned may rely on it
in legal proceedings in order to obtain equal pay within the
meaning of the provision and in the sense that national courts or
tribunals must take it into account as a constituent part of
Community law". In that case, the workers were entitled to rely
on the fact that they did work of higher value to claim equality
of remuneration with a worker doing less valuable work. It is
clear that the principle of equal pay is not founded on the
literal notion of "equal work", but on the elimination of
discrimination based on sex. In this case the two workers in
question, Mr. Curran and his comparator, were doing like work in
that they were both in the service of the Bank, and the payment of
the gratuity was a remuneration paid irrespective of type of work
or grade. It was paid as a sort of bonus on marriage, but, of
course, only to certain women. Section 3 of the Act is not
exclusive in its description of "like work", and it appears to the
Court that it would be unreasonable not to find that both Mr.
Curran and his comparator were employed on like work in the
circumstances in which this gratuity was paid.

However, the fundamental question for determination in this case
remains the question of whether and to what extent the Labour
Court is bound by the decision of the High Court in Bank of
Ireland V. Kavanagh. In that decision, Mr. Justice Costello found
that there were grounds other than sex for the discrimination
against Mr. Kavanagh in the non-payment of a marriage gratuity.
Therefore even if the Labour Court were satisfied in favour of Mr.
Curran on all the objections raised by the Bank, it still has to
deal with the question of grounds other than sex, and the
precedent set for it by a superior court. The High Court drew a


conclusion of law from the facts in the Kavanagh case. This Court
cannot distinguish the facts in Mr. Curran's case, insofar as they
are relevant to the Kavanagh case, from that case. It is still
true that the Bank's obligation to pay the gratuity to certain
women is a contractual one, not a discretionary one, and that it
is payable only to women who fulfil certain conditions, namely (a)
that they married, and (b) that they had entered the Bank's
employment before 1974. On those facts, Mr. Justice Costello
found that there were grounds other than sex for the payment of
the gratuity.

On Mr. Curran's behalf it has been argued that there is a conflict
between national law and community law, and that this tribunal
must give precedence to community law. But in the Kavanagh case,
Mr. Justice Costello held that community law permits different
pay levels, provided that the difference can be explained in
circumstances other than sex. He found that the right to equal
pay is a qualified one, and that section 2 of the 1974 Act is
perfectly consistent with the obligations imposed on the State by
Article 119 of the Treaty. He went on to find that the higher
remuneration paid to certain female employees was paid on grounds
other than sex within the meaning of Section 2(3) of the 1974 Act.
The High Court has therefore already found that equivalent
circumstances to those in which Mr. Curran was denied payment of a
marriage gratuity were consistent with Community law. In fact,
the conflict is not between Community law and national law, as the
Appellant argues, but between the interpretation which the High
Court has given to Community law in the circumstances of the
Kavanagh case, and the interpretation which the Labour Court
might have given to Community law in this case if it were not
bound by the earlier decision. In these circumstances, the
matters of fact which are at issue do not help Mr. Curran, who,
even if he succeeded in establishing his claim on the basis of
like work, must fail, because the matter has already been
determined.


The Court has also considered the request that it should refer a
question to the European Court of Justice. The Court has no doubt
but that it has jurisdiction to make a reference; the problem for
it is that since a superior court has determined that there were
grounds other than sex for the discrimination, the Labour Court
would be asking the European Court to decide that the High Court
had erred in its determination of the matter, and in doing so, it
would inevitably be expressing its own view that the High Court
had so erred. The issue, in other words, is not really a conflict
between national law and community law, but is a dispute about a
finding by a superior court that the national law has properly
implemented Article 119. The Labour Court is being asked to say
that the 1974 Act did not properly implement the Equal Pay
Directive, when the High Court has already found that it did.

In the light of the above conclusions, the Court determines that
the appeal against the recommendation of the Equality Officer must
fail.


Signed on behalf of the Labour Court




7th April, 1994 Evelyn Owens
P.O'C./J.C _______________
Deputy Chairman

Division: Ms Owens Mr Keogh Mr Walsh

Text of Document__________________________________________________________________

AEP932 DETERMINATION NO. DEP394

ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)


PARTIES: ALLIED IRISH BANKS PLC
(REPRESENTED BY DR. MARY REDMOND, SOLICITOR)

and

MR. BRIAN EDWARD CURRAN
(REPRESENTED BY SEAN ALLEN AND COMPANY, SOLICITORS)




SUBJECT:

1. Appeal by Mr. Brian Edward Curran against Equality Officer's
Recommendation No. E.P. 10/92 concerning a claim for the payment
of a marriage gratuity.

BACKGROUND:

2. 1. The background to this case is set out in the Equality
Officer's Recommendation which is Appendix 1 to this
Determination. The Equality Officer in her Recommendation
(No. E.P. 10/92) which was issued on the 16th December, 1992
found that:

"Mr. Brian Curran is not entitled to be paid a marriage
gratuity by Allied Irish Banks under the terms of the
Anti-Discrimination (Pay) Act, 1974".

2. Mr. Curran appealed the Recommendation to the Labour Court
on the 22nd January, 1993 on the following grounds:

(1) The Equality Officer erred in law in finding that
Mr. Brian Edward Curran is not entitled to be paid a
marriage gratuity by Allied Irish Banks PLC.

(2) The Equality Officer failed to consider the
principles enshrined in Article 119 of the Treaty of
Rome 1958.

(3) The Equality Officer failed to acknowledge that
Article 119 of the E.C. Treaty is part of the
domestic law of the State.




(4) The Equality Officer failed to interpret the
Anti-Discrimination (Pay) Act, 1974 in accordance
with Article 119 of the E.C. Treaty.

(5) The Equality Officer failed to properly consider the
fact that Allied Irish Banks PLC refuses to pay
marriage gratuity to all male married officials
(including Mr. Brian Edward Curran) who entered its
employment prior to 31st December, 1973 while as all
female officials of like service are entitled to
such a payment.

(6) The recommendation of the Equality Officer is
contrary to or alternatively not in accordance with
the evidence adduced and the submissions made.

(7) The Appellant will rely on such further or other
grounds of appeal as may be adduced.

3. The Court heard the appeal on the 24th November, 1993.
The written submissions to the Court are attached as
appendices 2 and 3.

DETERMINATION:

4. This case concerns the non-payment of a marriage gratuity to
a former Bank official by his employer, Allied Irish Banks plc.,
in circumstances in which such a gratuity would be paid to the
comparator.

Prior to 31st December, 1973, female officials in employment with
the Bank, received a gratuity on marriage. Prior to that also,
female officials were required to resign on marriage.

Prior to the implementation of the Anti-Discrimination (Pay) Act,
1974, a collective agreement was reached between the I.B.O.A. and
the Banks Staff Relations Committee of the Banks Joint Industrial
Council.


That agreement provided that:

'Any lady official in the service on 1st June, 1973 or
entering the service before 31st December may, on marriage,
opt to take a marriage gratuity at the time, provided she has
completed five years service. If, however, she defers
drawing the marriage gratuity and leaves the service before
attaining the normal retirement age she will be granted a
gratuity based on total service. If she takes the gratuity
at the time of her marriage and subsequently remains in the
service until normal retirement age she will be awarded a
pension actuarially reduced to take account of the gratuity.
New entrants from 1st January, 1974 will not be eligible for
marriage gratuity."

The Bank official in this case, Brian Edward Curran, claims
entitlement to payment of a marriage gratuity on the basis that he
was engaged in "like work" with a female comparator, that his
employment was pre-1974, that the comparator was paid a gratuity
when she resigned in 1978, and that he was entitled to a similar
payment, when he resigned in 1987.

The claim first came before an Equality Officer who made a
Recommendation dated 16th December, 1992 in which she concluded
that by reason of the decision of the High Court in the case of
Bank of Ireland V. Kavanagh, from the facts of which Mr. Curran
did not distinguish his case, his claim must fail and that he was
not entitled to be paid a marriage gratuity.

Mr. Curran appealed against this finding to the Labour Court,
which heard the appeal on 24th November, 1993.


The thrust of the appeal is that the Equality Officer did not take
proper account of Article 119 of the E.C. Treaty and of Council
Directive 75/117 on equal pay. It is also claimed that the
Kavanagh case did not correctly apply Community Law and therefore
should not be followed. The Court is further asked to refer a
question to the European Court of Justice for the purpose of
determining whether or not the refusal on the part of the Bank to
pay a marriage gratuity to Mr. Curran is in breach of the
principles of Article 119.

On behalf of A.I.B. plc., it was argued that the Labour Court is
bound by the High Court decision in Bank of Ireland V. Kavanagh.
It was also argued that Mr. Curran was not engaged in "like work"
with the comparator, that the comparator was not a valid
comparator, that the gratuity was not remuneration, or if it was
that there were grounds other than sex for paying it, and that the
gratuity was pension-linked and therefore outside the scope of the
1974 Act. The Bank put Mr. Curran on proof of each and every fact
related to his claim.

It does seem to the Court that the marriage gratuity payable to
certain women is indeed remuneration, and that in effect it is
also pension-linked. It allowed those women who were in the
Bank's service prior to 1974, and who married, the right to take a
sum of money on marriage or on leaving the service prior to normal
retirement age a sum based on total service, which in respect of ,
everyone else had to be deferred until retirement age, or was not
paid at all. The purpose in making this arrangement was an
industrial relations one - the women workers had been used to the
promise of a gratuity on marriage, at which stage they left the
service of the Bank, and although after 1974 they were no longer
required to leave, those who were already in the service of the
Bank had the expectation of a gratuity on marriage. The actual

amount of money received by individuals would balance out
eventually, (if the service of the non-recipients continued), but
the women who were entitled to opt for and who did opt for the
payment of the gratuity had an earlier benefit. And for those men
or women whose service did not continue to retirement, there was
no payment of any kind. The European Court of Justice has found
in Case No. 262/88, Barber V. Guardian Royal Exchange Assurance
Group, that the application of the principle of equal pay must be
ensured in respect of each element of remuneration, and not only
on the basis of a comprehensive assessment of the consideration
paid to workers, and therefore in relation to the payment of
remuneration, the Court is satisfied that the claimant had a good
case for claiming that he had suffered discrimination.

It is disputed, however, that Mr. Curran could not make any such
claim, since, it is alleged, he was not employed on "like work"
with the comparator. He had chosen as his comparator a woman who
had been doing less valuable work than he did, and who had left
the service of the Bank long before he had applied for the
gratuity. But Mr. Curran can say that any woman who was doing
exactly the same work as himself would have benefited in the same
way as the chosen comparator, as long as she was in the pre-1974
recruitment category. Any woman who was in the Bank's service
before 1974 and who had been in service for five years could claim
the gratuity. Can he be deprived of his claim because he had no
exact comparator, in circumstances in which the disputed payment
would have been made to any woman with the required service
conditions?

It seems to the Court that in such circumstances "like work" must
be broadly interpreted. Both Mr. Curran and his comparator worked
for the same employer doing banking work. The fact that one was
an Assistant Manager when he left the Bank's employ, and the other
was two grades below, does not at all affect the payment which is
in dispute, namely the marriage gratuity. It is for this Court,
within the limits of its discretion under the 1974 Act, to give
that Act, where possible, an interpretation which accords with
the requirements of the applicable Community law. In the


case of Murphy and Others V. Telecom Eireann, the European Court
of Justice held that "Insofar as it is established that the
difference in wage levels in question is based on discrimination
on grounds of sex, Article 119 of the E.E.C. Treaty is directly
applicable in the sense that the workers concerned may rely on it
in legal proceedings in order to obtain equal pay within the
meaning of the provision and in the sense that national courts or
tribunals must take it into account as a constituent part of
Community law". In that case, the workers were entitled to rely
on the fact that they did work of higher value to claim equality
of remuneration with a worker doing less valuable work. It is
clear that the principle of equal pay is not founded on the
literal notion of "equal work", but on the elimination of
discrimination based on sex. In this case the two workers in
question, Mr. Curran and his comparator, were doing like work in
that they were both in the service of the Bank, and the payment of
the gratuity was a remuneration paid irrespective of type of work
or grade. It was paid as a sort of bonus on marriage, but, of
course, only to certain women. Section 3 of the Act is not
exclusive in its description of "like work", and it appears to the
Court that it would be unreasonable not to find that both Mr.
Curran and his comparator were employed on like work in the
circumstances in which this gratuity was paid.

However, the fundamental question for determination in this case
remains the question of whether and to what extent the Labour
Court is bound by the decision of the High Court in Bank of
Ireland V. Kavanagh. In that decision, Mr. Justice Costello found
that there were grounds other than sex for the discrimination
against Mr. Kavanagh in the non-payment of a marriage gratuity.
Therefore even if the Labour Court were satisfied in favour of Mr.
Curran on all the objections raised by the Bank, it still has to
deal with the question of grounds other than sex, and the
precedent set for it by a superior court. The High Court drew a


conclusion of law from the facts in the Kavanagh case. This Court
cannot distinguish the facts in Mr. Curran's case, insofar as they
are relevant to the Kavanagh case, from that case. It is still
true that the Bank's obligation to pay the gratuity to certain
women is a contractual one, not a discretionary one, and that it
is payable only to women who fulfil certain conditions, namely (a)
that they married, and (b) that they had entered the Bank's
employment before 1974. On those facts, Mr. Justice Costello
found that there were grounds other than sex for the payment of
the gratuity.

On Mr. Curran's behalf it has been argued that there is a conflict
between national law and community law, and that this tribunal
must give precedence to community law. But in the Kavanagh case,
Mr. Justice Costello held that community law permits different
pay levels, provided that the difference can be explained in
circumstances other than sex. He found that the right to equal
pay is a qualified one, and that section 2 of the 1974 Act is
perfectly consistent with the obligations imposed on the State by
Article 119 of the Treaty. He went on to find that the higher
remuneration paid to certain female employees was paid on grounds
other than sex within the meaning of Section 2(3) of the 1974 Act.
The High Court has therefore already found that equivalent
circumstances to those in which Mr. Curran was denied payment of a
marriage gratuity were consistent with Community law. In fact,
the conflict is not between Community law and national law, as the
Appellant argues, but between the interpretation which the High
Court has given to Community law in the circumstances of the
Kavanagh case, and the interpretation which the Labour Court
might have given to Community law in this case if it were not
bound by the earlier decision. In these circumstances, the
matters of fact which are at issue do not help Mr. Curran, who,
even if he succeeded in establishing his claim on the basis of
like work, must fail, because the matter has already been
determined.


The Court has also considered the request that it should refer a
question to the European Court of Justice. The Court has no doubt
but that it has jurisdiction to make a reference; the problem for
it is that since a superior court has determined that there were
grounds other than sex for the discrimination, the Labour Court
would be asking the European Court to decide that the High Court
had erred in its determination of the matter, and in doing so, it
would inevitably be expressing its own view that the High Court
had so erred. The issue, in other words, is not really a conflict
between national law and community law, but is a dispute about a
finding by a superior court that the national law has properly
implemented Article 119. The Labour Court is being asked to say
that the 1974 Act did not properly implement the Equal Pay
Directive, when the High Court has already found that it did.

In the light of the above conclusions, the Court determines that
the appeal against the recommendation of the Equality Officer must
fail.


Signed on behalf of the Labour Court




7th April, 1994 Evelyn Owens
P.O'C./J.C _______________
Deputy Chairman