Ebbs (Represented by Hamilton Turner, Solicitors) AND Bank of Ireland (Represented by Arthur Cox, Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Mr Norman Ebbs that he was discriminated against by Bank of Ireland on the ground of gender contrary to the provisions of the Employment Equality Act, 1998, when he was refused a marriage gratuity on his retirement.
1.2 The complainant referred a claim to the Director of Equality Investigations on 14 December 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case on 3 September 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 13 June 2003.
1.3 On the day of the hearing, both parties agreed that the point to be determined on that day was whether an earlier High Court judgement was binding on the Equality Officer. While there was a dispute between the parties regarding the avlidity of comparators cited in the complaint, as well as whether like work existed between the complainant and comparators, neither party was in a position to deal with these matters. The hearing therefore concentrated on the precedent issue, and it was agreed that the Equality Officer would consider the respective arguments on the matter.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant commenced his employment with the respondent on 30 October 1972, and married on 21 May 1983. On 31 March 2001, at the age of 45 years, the complainant resigned from his employment. Shortly before his resignation, the complainant sought and was refused a marriage gratuity.
2.2 The complainant said that female bank officials who commenced employment with the respondent on or before 31 December 1973 were entitled to a marriage gratuity by virtue of an agreement made in March 1974 between the respondent and the Irish Bank Officials' Association (IBOA). The agreement stated
"...that the regulation whereby lady Bank Officials were required to resign on marriage would be abolished, as from the 1st June, 1973. In this regard, it was further agreed as follows:- Any lady official in the service on 1st June, 1973 or entering the service before 31st December, 1973 may on marriage opt to take a marriage gratuity at that 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 marriage and subsequently remains in the service until normal retirement age, she will be awarded the pension actuarially reduced to take account of the gratuity. New entrants from 1st January, 1974 will not be eligible for marriage gratuity."
2.3 The complainant said that the consequence of the agreement was that any female official who entered the service before 31 December 1973 and married after 1 June 1973, with at least five years' service prior to marriage, was entitled to a marriage gratuity if she left the service before normal retirement age. He said that he entered the service before 31 December 1973 and married in 1983, but was refused the marriage gratuity in circumstances where a female employee would have received it.
2.4 The complainant noted that the respondent claimed, in its letter of refusal, that it was "firmly of the view that male staff are not entitled to marriage gratuities and that a High Court decision stands in favour of the Bank's position." He said the High Court decision referred to was Bank of Ireland v Kavanagh (Costello J, High Court, 19 June 1987, reported at (1987) 6 JISLL 192). This decision, on a claim taken under the Anti Discrimination (Pay) Act, 1974, had involved similar facts to those at issue in this claim, and the judge had concluded that the payment of a marriage gratuity to female bank officials was on grounds other than sex and therefore did not constitute discrimination on the ground of sex.
2.5 The complainant pointed out that the 1974 Act had been repealed on commencement of the 1998 Act. The complainant asserted that, since Kavanagh was decided under the provisions of the 1974 Act, it could not be binding on a claim under the 1998 Act. He said the Equality Officer's jurisdiction arose under the 1998 Act, and there was no relevant High Court decision. He argued that there was no requirement in jurisprudence to follow a High Court decision made under a repealed piece of legislation.
2.6 The complainant accepted that as a High Court case due regard must be had to it, but said it had been considered to have been anomalous. He submitted that it was an incorrect application of Article 141 of the EC Treaty (formerly Article 119 of the Treaty of Rome).
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 Without prejudice to its other submissions in relation to this claim, the respondent submitted that the Equality Officer must follow the precedent in Kavanagh. It said this was the conclusion of the Equality Officer in Curran v AIB (EP 10/92), and in many later cases before Equality Officers and the Labour Court on undistinguishable facts. It pointed out that Kavanagh had been followed by Equality Officers in all claims to a marriage gratuity by former bank officials, and was also followed by an Equality Officer in Camiti and Miley v RTE ([1994] ELR 1). The respondent said that the complainant had not attempted to argue that his facts were distinguishable from those in Kavanagh and that therefore the Equality Officer did not have the jurisdiction to depart from that decision.
3.2 The respondent said that the Kavanagh decision determined that the respondent's payment of a marriage gratuity to a female employee employed prior to 1 January 1974 did not constitute discrimination contrary to equivalent provisions of the 1998 Act contained in the Anti-Discrimination (Pay) Act, 1974 nor to applicable provisions of Community law. The respondent submitted that the judgement of the High Court in Kavanagh correctly represented the position in Community law and should be followed by the Equality Officer.
3.3 The respondent said that in Brides v Minister for Agriculture ([1998] 1 IR 250), Budd J endorsed the conclusion in Kavanagh that the Irish statute (in that instance the 1974 Act) was faithful to Article 119 of the EEC Treaty, and further that the difference in pay between men and women was not an infringement of either if it could be shown to be on grounds other than sex, as provided for in section 2 (3) of the 1974 Act. Budd J said "As Costello J said in Bank of Ireland v Kavanagh..."Article 119 of the EEC Treaty imposed a general obligation on Member States to 'maintain the application of the principle that men and women should receive equal pay for equal work' but the European Court of Justice has shown that that Article does not prohibit all differences in pay between men and women doing the same work...Community law does not, therefore, give an entitlement to equal pay for like work done in all circumstances, but permits different pay levels for men and women doing like work provided it can be shown that the difference can be explained by circumstances other than the sex of the workers." I respectfully agree with Costello J that the Act of 1974 seems to fulfil the requirement to give effect to Article 119 and the Directive as far as it goes in dealing with the situation."
3.4 The respondent said that the only argument made by the complainant was that this claim was taken under a different statute. It said he was implicitly agreeing that if it were a claim under the 1974 Act the Equality Officer would be bound, but the fact that the claims were under different legislation was an accident of time.
3.5 The respondent said further that any amending Act took account of earlier decisions. The legislature could have specifically unincorporated the Kavanagh decision if it had wished. In support of this argument, the respondent referred to the decision in The Health Board v BC and the Labour Court ([1994] ELR 27). That case had dealt with a claim of sexual harassment taken under the Employment Equality Act, 1977. An Equality Officer and the Labour Court had both upheld the complainant's claim, and the respondent appealed to the High Court on a point of law.
In the High Court, Costello J found that the actions of the alleged harassers were sexual harassment in terms of the 1977 Act, but held that the employer was not vicariously liable for those actions. He said "In the absence of express statutory provision the law in this country in relation to the liability of an employer for the tortious acts (including statutory torts) of his employee is perfectly clear - an employer is vicariously liable where the act is committed by his employee in the scope of his employment." Finding that the Labour Court had erred in applying a test from UK statute which provided that an employer was liable for acts committed by his employee in the course of his employment, Costello J continued "What the Labour Court should have done was consider whether the employees were acting within the scope of their employment when they committed the violent sexual assault on the claimant...This question admits of only one answer...I cannot envisage any employment in which they were engaged in respect of which a sexual assault could be regarded as so connected with it as to amount to an act within its scope. The Board is not therefore vicariously liable for what occurred."
3.6 The respondent pointed out that the 1998 Act specifically provided at section 15 (1) that Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval. The respondent said that this provision had the effect of unincorporating the BC decision, which no longer was precedent in this area. In the same way, the legislature could have overwritten the Kavanagh decision. As it did not do so, the respondent argued that it continued to be a precedent in relation to claims of this nature.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of gender contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include gender.
4.3 As stated, the only point at issue is whether the Kavanagh decision continues to be binding in claims of this nature. For this reason, both the complainant's arguments that the decision had been considered to be anomalous and the respondent's arguments that it had been approved and followed subsequently, are irrelevant. If the decision is binding on an Equality Officer, there is no necessity for the Equality Officer to agree or disagree with the decision.
4.4 It is clear from Irish case law that decisions of superior courts are binding on inferior courts. According to The Irish Legal System (Byrne and McCutcheon, 4th edition, Butterworths, 2001), "This rule is so well-settled that it is seldom questioned by an Irish court." I note that the issue did arise in the Supreme Court decision in the case of McDonnell v Byrne Engineering Co Ltd (reported in The Irish Times, 4 October 1978). In that case, the Supreme Court overturned a decision of the High Court to award damages and costs in a personal injury claim. Noting that the High Court judge had declined to apply a previous Supreme Court decision regarding the appropriate method of assessing damages, O'Higgins CJ said "This Court will not permit this situation to continue and will insist that its directions be respected and obeyed."
4.5 The Labour Court considered this issue in the case Allied Irish Banks plc and Brian Curran (DEP943), which was an appeal from an Equality Officer recommendation regarding the non-payment of a marriage gratuity to a male bank official. Upholding the Equality Officer decision, which had followed Kavanagh, the Labour Court considered the complainant's request that it should refer the matter to the European Court of Justice. Declining to do so, the Labour Court said "The Court is in 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 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."
4.6 Given all of the above, I am satisfied therefore that the decision in Kavanagh is binding on me unless the facts of this claim can be distinguished or the 1998 Act effectively overturned the decision. It is clear that the facts are indistinguishable, so I must therefore consider the effect, if any, of the repeal of the 1974 Act and the commencement of the 1998 Act.
4.7 The provision of the 1974 Act which was applied by Costello J in reaching his decision was section 2 (3) which states Nothing in this Act shall prevent an employer from paying to his employees who are employed on like work in the same place different rates of remuneration on grounds other than sex. Having considered the agreement referred to in 2.1 above, the judge said that if the marriage gratuity had been paid to all women who married then it could constitute discrimination on the ground of sex. He continued "But that is not what the Bank is doing in this case. A female employee who qualifies for the gratuity and thus gets paid a higher remuneration than her male colleague doing like work gets higher pay not because she is a woman, but because she is a woman who has fulfilled certain conditions, namely, that she has (a) married and (b) had entered the Bank's employment before the year 1974. Her higher pay is not based on her sex but on grounds other than her sex, a point convincingly demonstrated by the fact that all of her female colleagues who marry and who are doing like work will be treated differently from her and on the same footing as men if they had entered the Bank's service after 1st January, 1974."
4.8 The judge went on to illustrate his point by using an example of three hypothetical employees: A, a woman who entered the respondent's service in 1973; B, a woman who had recently joined the service; and C, a man who entered the service at the same time as A. If all three employees married on 19 June 1987, only A would receive the marriage gratuity. The judge said that if she qualified for the gratuity because she was a woman, then B would also receive it. He concluded "Clearly, there are grounds other than her sex which explain the higher pay which she will enjoy over her two colleagues. And so I think that the Bank has been able to establish that the differences in remuneration between their male employees and some of their female employees doing like work fall within the exemption contemplated in subsection (3) of section 2...".
4.9 The 1998 Act includes a provision at section 19 (5) which states nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees. I am unable to distinguish in any meaningful way between this provision and the provision of section 2 (3) of the 1974 Act. No provision in the 1988 Act exists which has the effect of unincorporating the Kavanagh decision, such as exists in respect of the decision in BC (referred to at 3.5 above). Accordingly, I am satisfied that the High Court conclusion that payment of a marriage gratuity to female employees of the respondent is on grounds other than gender continues to be binding, and I do not have the jurisdiction to depart from the decision.
5. DECISION
5.1 Based on the foregoing, I find that Bank of Ireland did not discriminate against Mr Ebbs on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998, when he was refused a marriage gratuity following his retirement.
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Anne-Marie Lynch
Equality Officer
26 September 2003