DEP993

FULL RECOMMENDATION AEP/99/4 DETERMINATIONNO.DEP993 SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : IRISH AVIATION AUTHORITY - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill

SUBJECT:
1. Appeal against Equality Officer's Recommendation EP1/99.



BACKGROUND:

2. The Irish Aviation Authority was established in January, 1994 to take over the functions of the Air Navigation Services Office which was part of the Department of Transport, Energy and Communications. The functions of the Authority include the provision of safe civil aviation services in Ireland. It currently employs 650 staff located at its headquarters in Dublin, the Aeronautical Communications Centre, Co. Clare and at Dublin, Shannon and Cork Airports.

The Union submitted a claim to an Equality Officer, on behalf of twenty-six named female employees who are employed as Data Assistants, that they are entitled to the same rate of pay as that paid to the seven named male comparators in terms of Section 3 (a), Section 3 (b) and Section 3 (c) of the Anti-Discrimination (Pay) Act, 1974.

The Equality Officer issued his Recommendation on the 11th of February, 1999. He found that there were grounds other than sex to justify the pay differential between the claimants and the comparators. He found, therefore, that the female claimants did not have entitlement to the same rate of remuneration as that paid to the named comparators.

The Union appealed the Recommendation to the Labour Court on the 1st of March, 1999, on the following grounds:

1. The Equality Officer erred in fact and law in his conclusions that:-

(a) the claimants did not establish a prima facia case of unlawful indirect discrimination on the grounds of sex;



(b) the claimants were not indirectly discriminated against by virtue of their sex and;

(c) there were grounds other than sex to justify the different rates of pay between the claimants and the comparators.

The Court heard the appeal on the 15th of June, 1999. Both parties made written and oral submissions to the Court. The following is the Court's Determination:



DETERMINATION:

This is a claim against the Irish Aviation Authority on behalf of 26 named female employees, graded as Data Assistants, for equal pay with seven named male employees graded as Air Traffic Control Assistants.

There are three net points for consideration in this appeal;

1. Are the claimants and the comparators engaged in like work within the meaning of Section 3 of the Anti-Discrimination (Pay) Act 1974 ( the Act)?

2. Does the gender composition of the grading structure as between the claimants and the comparators give rise to an inference of indirect discrimination against the claimants?

3. If the answers to questions 1 and 2 are in the affirmative, has the employer established that the difference in remuneration as between the claimants and the comparators is justified on grounds other than sex?

Like Work
It is the employer's case that the comparators, as a condition of their employment, are required to undertake a course of study and pass a medical and a technical examination leading to a qualification for employment as Air Traffic Control Officer class 111 . They say that since no such requirement applies to the claimants, they are not employed on like work with that of the comparators. The Equality Officer concluded that none of these requirements are necessary to carry out the duties of Air Traffic Control Assistant but go to the eligibility and/or requirements of the promotional grade of Air Traffic Control Officer class 111. He held, on the evidence available to him and on an inspection of the work of the claimants and the comparators which he conducted, that the claimants and the comparators were employed on like work within the meaning of Section 3(a) of the Act.

The Court agrees with and adopts the reasoning and findings of the Equality Officer on this point.


Existence of Indirect Discrimination
In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore, a case of direct discrimination does not arise. It is the Union's case, however, that the gender composition of the grade of Data Assistant compared to that of the Air Traffic Control Assistant grade gives rise to an inference of indirect discrimination.

Gender Balance of the two grades
The Union submitted that at the time the claim was made (5th February, 1998) there were 38 members of staff employed as Data Assistants and 11 employed as Air Traffic Control Assistants. The gender breakdown was as follows:
FemaleMaleTotal
Data Assistant 26(68%) 12(32%) 38(100%)
ATCA 4(36%) 7(64%) 11(100%)

The employer submitted that the date of the claim was the 25th of February, 1998, at which point there were 6 persons employed in the ATCA grade, of which 3 were male and 3 female. In relation to the position at the 5th of February, 1998, figures provided by the employer (and subsequently accepted by the Union) show that the number employed as ATCA’s was 10, of which 7 were male and 3 female. However, the Court does not consider this discrepancy to be material to its determination.

Various authorities were cited to the Court as to when indirect discrimination should be inferred in the circumstances of this case( C-127/92 Enderby v Frenchay Health Authority [1991] IRLR 43, C-96/80 Jenkins v Kingsgate [1981] 2 CMLR 24, C-170/84 Bilka-Kaufhaus v Weber von Herzt [1986] ECR 1607 C-108/88 Danfoss [1989] ECR 3199 C-33/89 Kowalska v Hamburg [1990] ECR 1-2591 C-184/89 Nimz v Hamburg [1991] ECR 1-297).

InFlynn v Primark [1997] ELR 8 218,Mr Justice Barron, having reviewed a number of European and Irish authorities, summarised the law in this area as follows;

• “Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men then, whatever the reason, there is a 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 justifiable on economic grounds”.

The case law suggests that the application of this principle requires a different approach depending on the form of discrimination alleged. In all of the European cases cited, exceptEnderbyandDanfoss,the application of criteria which adversely affected part-time workers was at issue. In those cases, the gender balance amongst part-time workers only was considered relevant in ascertaining if the impugned measure affected substantially more women than men.

InDanfoss, it was alleged that the pay system applied by the employer was wholly lacking in transparency. It was held that in such circumstances, a prima-facie case of discrimination arose if statistics in relation to a relatively large number of employees of both sexes disclosed that the average pay of women was less than that of men.

In the present case, the facts giving rise to the dispute are not the same. Firstly, it is not a question of de-facto discrimination arising from an arrangement which adversely affects a particular class of worker such as part-time workers. Secondly, there is no question of a lack of transparency in the disputed pay arrangements.

The questions arising in the present case are much closer to those considered by the Court of Justice inEnderby. In that case, which involved an alleged discriminatory grading structure between those doing work of equal value, the gender balance in both the higher and lower paid grades was considered relevant.

In its judgement, the Court stated;

• Where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that the difference is based on objective justification unrelated to any discrimination on grounds of sex.”

The respondent relied heavily on the reference in this passage to the degree of gender imbalance amongst those carrying out the two jobs. They suggested that this is the appropriate test to be applied in the present case. The Union argued that the reference relates to the facts inEnderbyand should not be taken as indicating a test of general application.

The Court accepts that the degree of gender imbalance referred to inEnderbymust be considered in the context of the material facts of that case as set out in the reference by the Court of Appeal of England and Wales. It does, however, indicate that the Court of Justice considered that the degree of gender imbalance in both the claimant and the comparator grade must be particularly marked before a prima-facie case of discrimination can arise.
The Law
Having reviewed the authorities to which it was referred, the Court understands the law applicable to the present case to be as follows;

1. Where a difference in pay between men and women engaged in like work arises on grounds other than sex there is, prima-facie, no infringement of Section 2(1) of the Act.

2. Where the difference in pay arises from a gender neutral factor, but disadvantages significantly more members of one sex than the other, the onus rests on the respondents to provide objectively justifiable reasons, unrelated to sex, for the differences in pay.

3. In relation to the present case, that onus will rest on the respondent if it is established by the claimants that the gender composition of each grade is so imbalanced as to show a predominance of men in one grade and women in the other, resulting in an inference that the difference in pay is in reality gender based.

4. By the application of the above principles, it is for this Court to determine, as a matter of fact, if a prima-facie case of discrimination has been made out.

5. Where statistics are relied on in support of the claimants' case, it is for this Court to determine if they represent a sufficiently sound evidential basis to support an inference that significantly more women than men are prejudiced by the impugned measure.

Conclusions
The Court must first consider if the evidence adduced supports an inference that the respondent's grading structure is in reality gender based. While no authority has been cited to the Court on the degree of gender imbalance necessary to raise such an inference, the Court has had regard to the opinion of Advocate General Leger on this point in case(C-317/93) Nolte v Landesversicherungsantalt Hannover [1995] ECR 1-4625,(opinion delivered on 31st May 1995). In that opinion, it was suggested that a figure of 60% imbalance, per-se, would probably be quite insufficient, whereas based onRinner-Kuhn, an imbalance of 89% would be sufficient.

Given the small numbers in each of the two grades at the date of claim, the Court does not consider that the statistics submitted could be of sufficient evidential value to ground a prima-facie case of discrimination. While the figures submitted by the Union at the date of claim disclose 7 men (64%) to 4 women (36%) in the higher grade, and 26 women (68%) to 12 men (32%) in the lower grade, a shift of one in either direction would have a profound effect on the percentage composition. In these circumstances, the expression of figures in percentage terms can be meaningless. Moreover, the small numbers in each of the grades leaves open the possibility that the gender composition of either grade, if examined at a particular time, may be distorted by fortuitous or short-term phenomena.

For this reason, the Court subsequently obtained information from the parties on the male/female breakdown in each of the grades over the period November 1995 (when agreement was reached to phase out the ATCA grade) and August, 1999. The gender composition of each of the grades disclosed by these figures is as set out in the following table:

	Date	Total	Male	Female	%M/F
DA*	00/11/99	-	-	-	-
ATCA	00/11/95	32	18	14	56/44
DA	13/10/97	30	11	19	37/63
ATCA	13/10/97	11	7	4	64/36
DA	5/2/98	38	12	26	32/68
ATCA	5/2/98	10	7	3	70/30
DA	25/2/98	38	12	26	32/68
ATCA	25/2/98	6	3	3	50/50
DA	2/8/99	50	10	40	20/80
ATCA**	2/8/99	1	1	0	100/0

Note * This was the date on which agreement was reached to phase out the ATCA grade. No recruitment had taken place to the DA grade.
Note ** The ATCA grade has now been effectively abolished.


The figures set out above show that the ATCA grade has consistently been comprised of more men than women. In the Court's view, however, the degree of gender imbalance has not been of such significance as to render the grade predominately male.

The decision of the Court of Justice inEnderbyindicates that an inference of indirect discrimination should only be drawn in circumstances where the claimant grade is predominantly of one sex and the comparator grade is predominantly of the other sex. In the present case, the Court finds as a matter of fact that the comparator grade of Air Traffic Control Assistant was not predominantly male. Having reached that conclusion, it is unnecessary for the Court to consider if the claimant grade of Data Assistant is predominantly female.

The Court has, therefore, concluded that the gender imbalance within the grading structure is not sufficient to establish a prima-facie case of indirect discrimination. It is only if such a prima-facie case is made out that the respondent is required to show objectively justifiable grounds for the differences in pay. In these circumstances, the claimants' case must fail.

Determination
For the reasons set out above, the Court holds that the difference in pay between the claimants and the comparators is not based on their sex and does not offend against Section 2 of the Anti-Discrimination (Pay) Act, 1974.

The appeal is disallowed.



Signed on behalf of the Labour Court



Kevin Duffy
30th September, 1999______________________
GB/BCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.