FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : DEPARTMENT OF FINANCE DEPARTMENT OF SOCIAL, COMMUNITY AND FAMILY AFFAIRS DEPARTMENT OF AGRICULTURE AND FOOD DEPARTMENT OF EDUCATION DEPARTMENT OF DEFENCE OFFICE OF PUBLIC WORKS REVENUE COMMISSIONERS (REPRESENTED BY CHIEF STATE SOLICITOR'S OFFICE) - AND - THE CIVIL AND PUBLIC SERVICES UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Recommendation EP07/1998.
BACKGROUND:
2. The Union lodged a claim, on behalf of 26 Clerical Assistants in various Government Departments, for equal pay with nine comparators in the Paperkeeper grade. The Union claims that both the Claimants and the Comparators perform like work, a claim that is not disputed by the employers. The Union claims that there was direct discrimination within the meaning of Section 2 of the Anti-Discrimination (Pay) Act, 1974 ('the 1974 Act'). The Union also claims there was indirect discrimination in that the difference in remuneration prejudiced significantly more women than men and, therefore, the onus was on the employer side to establish that the difference was not gender-based but was justified by objective factors unrelated to sex. The employer side's response is that there are grounds other than sex to justify the different pay scales in this case.
The dispute was investigated by an Equality Officer who found that, in relation to the claim of direct discrimination, the Paperkeeper grade was a promotional grade within the Civil Service structure whereas the Clerical Assistant Grade was a recruitment grade. He found that the different pay scales reflected that fact and were unrelated to discrimination on the grounds of sex. The Equality Officer also found that there was no basis for the Union's claim of indirect discrimination on the basis that the Employment Equality Act, 1977 specifically excluded remuneration and, therefore, no indirect discrimination could occur under the provisions of the 1974 Act.
The Union appealed the Equality Officer's Recommendation, to the Labour Court, on the 19th of May, 1999, on the following grounds:-
1. That the Equality Officer erred in fact and in law by hold that there are legitimate grounds other than sex within the meaning of the Section 2(3) of the 1974 Act for the different rates of pay applicable to the claimants and the comparators.
2. That the Equality Officers erred in fact and in law by holding that the position of Paperkeeper grade as a promotion grade and the Clerical Assistant Grade as a recruitment grade gave rise to the applicable starting pay rates and that this constituted grounds other than sex under Section 2(3) of the 1974 Act.
3. That the Equality Officer erred in law and in fact by not properly assessing the relationship between the Paperkeeper and the Service Officer in terms of their starting pay rates in the context of his conclusion in paragraph 6.14 of his recommendation when concluding that there were grounds other than sex within the meaning of Section 2(3) of the 1974 Act.
4. That the Equality Officer erred in law and in fact in holding that there was no basis for the Union's claim of indirect discrimination.
The Court heard the appeal on the 22nd of April, 1999. Both parties made written submissions to the Court which were expanded upon during the course of the hearing.
DETERMINATION:
This is a claim by the Civil and Public Services Union (CPSU) on behalf of 26 Clerical Assistants employed by various government Departments for equal pay with 9 comparators who are employed in the grade of Paperkeeper. The claim was investigated by an Equality Officer, who recommended that such difference in pay which existed between the claimant and comparator grades was justified on grounds other than sex. It is against this recommendation that the CPSU appealed to the Court.
It is common case that the claimants and comparators are engaged in like work within the meaning of Section 3 of the Anti-Discrimination (Pay) Act, 1974. The net issue for determination is whether the difference in pay between the grades can be justified on grounds other than sex.
Having evaluated the oral and written submissions of the parties, the Court has reached the following findings of fact:
- Clerical Assistants and Paperkeepers are engaged in work of equal value (this is conceded by the respondents);
- The grade of Clerical Assistant is predominantly female;
- The grade of Paperkeeper is predominately male;
- The grade of Clerical Assistant is a recruitment grade;
- The grade of Paperkeeper is a promotional grade;
- Entry to the grade of Paperkeeper is confined to those who have served a number of years in the Civil Service grade of Services Officer (with one exception - there was one open competition, which occurred due to a shortage of staff at the time);
- The grade of Clerical Assistant is an entry grade in that it is open to those with no prior experience in the Civil Service.
The Clerical Assistant grade is a nine point scale while the Paperkeeper grade is a four point scale and the pay on the top four points of the Clerical Assistant grade is greater than the top four points of the Paperkeeper grade.
Direct Discrimination
Where men and women are engaged in like work there isprima faciean entitlement to equal pay. However, this right is not unqualified. Under Section 2(3) of the Anti-Discrimination (Pay) Act, 1974, cases of direct discrimination can be justified on grounds other than sex.
It is common case that the grade of Clerical Assistant is a recruitment grade whereas the grade of Paperkeeper is a promotional grade. Furthermore, it is 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. The respondents contended amongst 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.
The respondents, therefore, claimed that these reasons for the difference in pay between the grades constituted grounds other than sex under Section 2(3) of the 1974 Act.
The Court accepts that the Paperkeeper grade was created and exists to maintain motivation amongst the staff in that section of the Civil Service to which the Paperkeeper grade applies. The Court, accordingly, finds that there were grounds other than sex within the meaning of Section 2(3) of the 1974 Act, for the different rates of remuneration between the claimants and the comparators.
Indirect Discrimination
The Union also appealed this case on the basis that the Equality Officer erred in holding that there was no basis for the Union's claim of indirect discrimination. The Equality Officer, in his recommendation, concluded that as the provisions of the 1977 Act specifically exclude remuneration, accordingly, no claim for indirect discrimination could be made. The Court does not agree with this conclusion.
There is a considerable volume of European and Irish case law on this point. This issue was comprehensively dealt with by the High Court inFlynn-v-Primark [1997] ELR 218, by the European Court of Justice inBilka-v-Kaufhaus-v-Weber [1986] ECR 1607, andEnderby-v-Frenchay Health Authority [1903] IRLR 591. The matter is also the subject of a directive.
As Lenz AG stated inEnderby v Frenchay Area Health Authority and Secretary of State for Health;
“the basic legal position is that Article 119 and the directives adopted for its implementation as interpreted and applied by the Courts of Justice prohibit all forms of sex related discrimination. Sex related discrimination takes various forms and in order to render them susceptible to legal categorisation the Courts have adopted the categories of direct and indirect discrimination”.
Article 2 of theCouncil Directive 97/80/ECof 15th December 1997 reflects the existing case law and provides 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 practice is appropriate and necessary and can be justified by objective factors unrelated to sex”.
In the case ofFlynn-v-Primark [1997] ELR 218, Mr. Justice Barron stated:
“Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men, whatever the reason, there is prima facie discrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justified on economic grounds”.
Justice Barron went on to say that it is for the Labour Court to determine, as a matter of fact, if there is indirect discrimination and, if so, whether it is objectively justified. He stated:
“Once there is a finding of like work, it was for the National Court - in our jurisdiction the Labour Court - to determine whether the difference was in fact gender based and not in reality merely an indirect way of reducing the level of pay of a group of workers exclusively or predominately of one sex. It is only when they find that not to be the reality that a decision must be made that there is an objectively justifiable reason for the difference in pay.”.
The grounds upon which objective justification may be relied have been extensively reviewed by the Supreme Court and the European Court of Justice. The criteria under which such a defence may succeed are set out inBilka-Kaufhaus GmbH v Weber von Hartz [1986] ECR 1607.They are as follows:
•do the means chosen correspond to a real need on the part of the undertaking?
•are they appropriate with a view to achieving the objective pursued?
• arethey necessary to that end?
It is common case that the differential in remuneration between the claimants and the comparators disadvantages a substantially higher proportion of women than men. Therefore, the question the Court must answer is whether or not such a differential can be justified under the criteria laid down inBilka-Kaufhaus.
The respondent contended that the grade of Paperkeeper was a promotional grade from which there were no further outlets. It was necessary to introduce this grade and maintain the differential in pay in order to motivate and maintain a sense of vocation amongst the staff to whom the grade applied.
The Court has carefully considered the respective differences between the grades of Paperkeeper and Clerical Assistant. The Court accepts the fact that the Clerical Assistant grade is a recruitment grade from which the claimants may seek promotion to other grades. The Court accepts the fact that the Paperkeeper grade is a grade from which there are no further promotional outlets.
Given the particular circumstances of the grade of Paperkeeper within the Civil Service structure, the Court finds as a fact that the creation of the grade of Paperkeeper was necessitated by a need to encourage motivation amongst those 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 hierarchy of grades.
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.
The Union also appealed on the grounds that the Equality Officer erred in not properly assessing the relationship between the Paperkeeper and the Services Officer grades.
The Court finds as a fact that the recruitment grades for the Paperkeeper grade are the Services Assistant and the Services Officer grades. As these grades were not named as comparators in this claim, the Court deems them inappropriate for consideration to this claim.
Conclusion
The Court accepts that the differences in pay for the two grades are justified on grounds other than sex. The Court, therefore, upholds the Equality Officer's recommendation.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th July, 1999______________________
BC/MKDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.