FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : MIDLAND HEALTH BOARD SOUTH EASTERN HEALTH BOARD (REPRESENTED BY THE HEALTH SERVICE EMPLOYERS AGENCY) - AND - THE IRISH NURSES ORGANISATION DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Equality Officers Recommendation (Anti-Discrimination (Pay) Act 1974 Dec-E-2002-044.
BACKGROUND:
2. In November 1998, the INO lodged a claim on behalf of one female general staff nurse employed by the Midland Health Board, alleging discrimination under the Anti-Discrimination (Pay) Act, 1974 (the Act) on the basis that the claimant performed “like work” under Section 3(a)(b) and (c) of that Act with the comparator, a psychiatric nurse employed by the Midland Health Board, but was, due to the provisions of the Section 66 of The Mental Treatment Act 1945 in receipt of less favorable superannuation entitlements, contrary to the provisions of section 2 (1) of the Act and Article 119 (now Article 141) of the EC Treaty.The INO claimed that the claimant was entitled to the same superannuation entitlements as the comparator.In April of 1999, the INO extended the claim to include a further 189 female general nurses employed by the Midland Health Board and 254 female general nurses employed by the South Eastern Health Board. By agreement, the claim proceeded on the basis of a claimant and a comparator in each of the two Health Boards. Both sets of claimants and comparators are “dual qualified” nurses on identical pay scales. It was accepted by both parties that the Claimants and Comparators were engaged on like work within the meaning of the Act.In a recommendation dated 17th September 2002, an Equality Officer found that the claimants had no entitlement, under either the EC Treaty or the Act, to the same superannuation entitlements as that availed of by the comparators by virtue of the provisions of the Mental Treatment Act, 1945.On 2nd October 2002 the INO appealed this Recommendation to the Labour Court. A hearing took place on 12th October, 2004.
The Mental Treatment Act, 1945:
All nurses employed in Health Board hospitals, both general and psychiatric, are party to the Local Government (Superannuation)(Consolidation) Scheme of 1998, which provides for accrual of superannuation entitlement on the basis of 1 / 80 th of pensionable pay for each year of service.
Under the provisions of the Mental Treatment Act, 1945, however, psychiatric nurses employed in Health Board hospitals have a more favorable superanuation entitlement, the net effect of which is that psychiatric nurses working in a designated mental hospital authority may retire at the age of 55 years and are credited with double service (for pension purposes) for every year worked after twenty years’ service. The provisions of the relevant section are as follows;
66. (1) This section applies to every officer or servant of a mental hospital authority—
- (a) whose name is registered in the register maintained under this Part of this Act by the authority, and
(b) who has been in the service of a mental hospital authority for not less than twenty years, and
(c) who is not less than fifty-five years of age.- (2) Subject to the provisions of this Part of this Act, an officer or servant of a mental hospital authority, who, while this section applies to him, resigns or otherwise ceases to hold office or employment shall be entitled to receive from the authority—
(a) an allowance during life the annual amount of which shall consist of—
- (i) twenty-eightieths of his yearly salary or wages, and
(ii) where he has been in the service of a mental hospital authority for twenty-one or more completed years, two-eightieths of his yearly salary or wages in respect of each of the twenty-first and the subsequent (if any) of such completed years, and
- (i) twenty-eightieths of his yearly salary or wages, and
- (2) Subject to the provisions of this Part of this Act, an officer or servant of a mental hospital authority, who, while this section applies to him, resigns or otherwise ceases to hold office or employment shall be entitled to receive from the authority—
- (ii) where he has been in the service of a mental hospital authority for twenty-one or more completed years, two-eightieths of his yearly salary or wages in respect of each of the twenty-first and the subsequent (if any) of such completed years.
- In essence the Complainant’s complaint is that psychiatric nurses, after 20 years service, receive for each year thereafter, two-eightieths of their years salary in respect of a superannuation entitlement, whereas they as general nurses receive one eightieth of their annual salary by way of superannuation entitlement irrespective of their length of service.
DETERMINATION:
Complainant’s Arguments
1. The Complainants state that the respondents have both directly and indirectly discriminated against them;
2. that the Equality Officer erred in fact and in law;
3. that prima facie discrimination has been established and;
4. that the respondent has failed to discharge the onus on it to show that it has not infringed the principle of equal treatment.
Direct Discrimination:
The Equality Officer concluded that because “both the general and psychiatric grades are populated by men and women” and since “male and female psychiatric nurses avail of the same superannuation entitlements” there was no evidence of direct pay discrimination. The complainants contend that this is wrong. They state that the fact that men perform the same work as the comparators and women perform the same work as the comparators maysuggestthat there are “grounds other than sex” for the difference in remuneration but this does not in itself constitute such grounds.
In support of this contention they rely on the case of Pickstone v Freeman PLC 1988 IRLR 357. At Paragraph 37 of his Judgment Lord Templeman stated;
- “under Community Law, a woman is entitled to equal pay for work of equal value to that of a man in the same employment. That right is not dependent on there being no man who is employed on the same work as the woman”.
- “under Community Law, a woman is entitled to equal pay for work of equal value to that of a man in the same employment. That right is not dependent on there being no man who is employed on the same work as the woman”.
The complainants also rely on the judgment of Barron J. in C & D Foods Ltd v Cunnion”, 1997 1 IR as authority for this proposition. In that case both men and women were recruited for and carried out the same work as both complainants and comparators. The employer believed that this fact automatically allowed him to avail of the defense that there were grounds other than sex for the difference in pay but this contention was dismissed by Barron J.
In his judgment he stated as follows;
"Undoubtedly, the fact that both men and woman are recruited for the same job at the same wage would be a matter to be taken into account in determining the relative values of different occupations within the factory. Similarly, in the present case it was relevant that the work of one of the male comparators was also done by a woman, as it was relevant that men and women did the same grade B jobs (the claimants). But these factors go only to the issue of genuine belief."
It is contended, on the basis of these authorities that the complainants have been directly discriminated against.
Indirect Discrimination
The complainants contend, that even if direct discrimination does not exist, then the claimants have been indirectly discriminated against. They rely on the decision of the Supreme Court in the case of “Nathan v Bailey Gibson 1996 ELR 114. In that case Hamilton J stated as follows:-
- " A requirement relating to employment or membership of a body which is not an essential requirement for such employment or membership and in respect of 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 may amount to indirect discrimination…… In such a case the worker is not required in the first instance to prove a causal connection between the practice complained of and the sex of the complainant…..
- “It is sufficient ……to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the opposite sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.”
The Complainants state that this approach and the shifting of the onus to the respondent to demonstrate objective justification was adopted by this Court in the case of Impact v Irish Aviation Authority ELR 2000 in which this Court followed the reasoning of Barron J in “Flynn v Primark” 1997 ELR wherein he stated;
" 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 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 complainants contend that the Equality Officer failed to apply the correct principles and approach to indirect discrimination required by the European Court of Justice and Irish Authorities. They state that the respondent has conceded that the complainants are performing ‘like work’ with that of the comparators. The further state that the requirement complained of, i.e. “to work in an area designated under the Mental Treatment Act, 1945 in order to avail of enhanced superannuation benefits”, is on the face of it gender neutral but in practice has the effect of benefiting more males than females in a profession which is 91% female and has always been dominated by females.
The complainants further state that a comparison can be drawn between the instant case and the case of Hill & Stapleton v The Revenue Commissioners (Case C 243/95). In that case, the CPSU claimed that unfavorable treatment of job sharing clerical assistants vis-�-vis full-time assistants in the civil service constituted indirect sex discrimination on the grounds that the majority of the job-sharing staff in question were women. However, the full-time workers – the advantaged group – were also predominantly women, a fact which did not prejudice the case in any way. The Court in its judgment focused on the disadvantaged group stressing that the job sharing workers were predominantly female as were almost all job-sharing workers in the Irish Public Sector and that legislation which disadvantaged job-sharers vis-�-vis full-time staff contravened Article 119 (now Article 141) and the Equal Pay Directive“where a much higher percentage of female workers than male workers are engaged in job-sharing”.
The complainants rely on the opinion of The Advocate General wherein stated:
- “So let us see whether discrimination is present in this case. One point is certain already; there is no direct discrimination. It must, however, be pointed out that the majority of officers in the grade of clerical assistant are women. What is more relevant for present purposes is that the overwhelming majority of job-sharers are women.”
He further stated that:
- “Extension of such different treatment, still on account of the pro-rata criterion, to employees moving from job-sharing to full-time work results in a downward valuation of the work they previously did when they were employed part-time. The important thing to consider is the effect of such a valuation. Recourse to the criterion of hours worked during the period of part-time employment, as provided for by the Irish rules, introduces a retrospective disparity in the overall pay of workers performing the same duties in their employment both in terms of quality and quantity: workers are treated as belonging to different categories. Hence the conclusion that there is unequal treatment. It is apparent from the order for reference that the majority of the employees concerned are women; the calculation criterion used by the Irish Government does therefore constitute discrimination against them.”
- “Extension of such different treatment, still on account of the pro-rata criterion, to employees moving from job-sharing to full-time work results in a downward valuation of the work they previously did when they were employed part-time. The important thing to consider is the effect of such a valuation. Recourse to the criterion of hours worked during the period of part-time employment, as provided for by the Irish rules, introduces a retrospective disparity in the overall pay of workers performing the same duties in their employment both in terms of quality and quantity: workers are treated as belonging to different categories. Hence the conclusion that there is unequal treatment. It is apparent from the order for reference that the majority of the employees concerned are women; the calculation criterion used by the Irish Government does therefore constitute discrimination against them.”
The complainants further state that the majority of all nurses are female (91%). They state that those who can avail of added years are employed in an area which provides only 20% of nursing posts. They state that a majority of the male nurses employed in the Health Service work in Psychiatry. They further state that even within Psychiatry, where the majority of nurses are now female, 80% of those currently benefiting from the added years are male.
They contend that the requirement which it is alleged is discriminatory has its origins in earlier social and political beliefs concerning males as “breadwinners” and females as “dependents”. The Superannuation Act of 1909 provided male civil service officers with better retirement benefits (not extended to females for nearly half a century) and this approach helped to shape pension provisions in favor of male workers, resulting in the type of special early retirement provisions enjoyed by certain groups of public servants including Gardai, Prison Officers, Members of Defence Forces etc.
These special early retirement provisions were brought in for psychiatric nurses by the enactment of the Mental Treatment Act of 1945. The “qualifying requirement” was to work in a Psychiatric Hospital or in areas so designated under the Act.
The Psychiatric Services were segregated until 1986. Male patients were nursed by male nurses and female patients by females. This led to a “reserved quota of male nurse positions (this did not happen in general nursing).
As a result of this attitude, taken along with the marriage bar (until 1973) and the general likelihood of females breaking their service for child rearing and domestic purposes, substantially fewer females than males in the psychiatric service benefited from this requirement.
They state that in any event, only 20% of all nursing posts are in Psychiatry, so the discrimination is inbuilt.
In 1972, in identifying the future fears of male Psychiatric Nurses, Health Boards forecast a move by males into the majority of supervisory posts as they were gradually supplemented by females in nursing posts.
By 2002, 60% of the total staff nursing posts in Psychiatry were held by females, while at the Senior Management grades, the ratio was reversed, with 60% of the posts being held by males.
The complainants state that on these grounds, an apparently sex-neutral requirement i.e. “to work in an area designated under the Mental Treatment Act, 1945 in order to avail of enhanced superannuation benefits” is in fact discriminatory.Burden of ProofThe complainants state that once a prima facie case of discrimination has been established, it is settled law that the burden of proof shifts to the respondent to prove that discrimination did not occur or, in the case of indirect discrimination, that the discrimination can be objectively justified.
- The Burden of Proof Regulations (SI 337/2001) provide that:
- “where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove to the contrary”.
The complainants state that the provisions of the Burden of Proof Regulations have been followed and accepted as a general principle by this Court in the case of “Mitchell v Southern Health Board” (DEE011.)
The complainants further state that Prima Facie evidence has been defined by this Court in Dublin Corporation v Gibney as:
- “evidence which, in the absence of any credible contradictory evidence by the employer, would lead any reasonable person to conclude that discrimination had occurred”
Like Work:
It is accepted by both parties that the complainants and the respondents are engaged in like work as defined in the Act.
Objective Justification
The complainants have stated that once a prima facie case of discrimination has been established, the onus switches to the respondents to show that no discrimination has occurred or, in cases of indirect discrimination, to show that there is objective justification for the impugned measure
They contend that the rules for the application of the principle of indirect discrimination to equal pay are set out in the case of Bilka-Kaufhaus v Weber von Hartz,(C170/84) wherein the ECJ stated: -
- “Article 119 (now Article 141) is infringed by a Department Store company which excludes part-time employees from its occupational pension scheme where that exclusion affects a much greater number of women than men, unless the enterprise shows that the exclusion is based on objectively justified factors which are unrelated to any discrimination based on sex….. It is for the national court, which has sole jurisdiction 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 worker’s sex, but in fact affects more women than men, may be regarded as objectively justified economic reasons. If the national court finds the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective pursued, and are necessary to end the fact that the measure affects a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.”
The Complainants state that the respondents have advanced no objective justification for the impugned provision, and have merely stated that they had no alternative but to comply with the provisions of the mental Health Act 1945. The complainants state that this defence cannot constitute objective justification as it is settled law since Hill & Stapleton, which applies the findings of the ECJ in the DE Weerd Case( C343/92),that article 4(1) (of The Directive on Equal Treatment in Social Security) precludes the application of a National measure which, although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objective factors unrelated to any discrimination on grounds of sex.
Respondents’ Case:
The Respondents do not dispute like work in this case, but contend that the difference in superannuation benefits between nurses working in the general and Psychiatric services is not related to gender and is therefore permissible under Section 2(3) of Anti –Discrimination (Pay) Act, 1974, which provides that: -
- “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”.
They state that all nurses employed in Health Board hospitals – both the general and psychiatric - participate in the Local Government (Superannuation) (Consolidation) Scheme 1998, which is governed by the Local Government (Superannuation ) Act, 1956.
This provides for accrual of superannuation entitlement at the rate of
1 / 80 th of pensionable pay for each year of service.
Psychiatric nurses, however (both male and female) have more favourable entitlements arising from the provisions of the Mental Treatment Act, 1945, the nett effect of which are that Psychiatric nurses (male and female) working in a designated mental hospital authority may retire at the age of 55 and are credited with double service for pension purposes after 20 years service has been completed. Nurses not working in a hospital so designated under the 1945 Act do not benefit from the improved superannuation entitlements.
Direct Discrimination
While more favourable superannuation conditions apply to nurses working in the Psychiatric sector as a consequence of the Mental Treatment Act, 1945, the respondents contend that gender is not a factor in this differentiation as all Psychiatric nurses, both male and female, who are covered by the provisions of the 1945 Act can avail of the more favourable pension entitlements.
The ECJ in “Schnorbus v Lan Hessen”(C79/99) stated:-
- “According to the criteria established by the case-law of the Court, only provisions which apply differently according to sex of the persons concerned can be regarded as constituting discrimination directly based on sex”.
- “According to the criteria established by the case-law of the Court, only provisions which apply differently according to sex of the persons concerned can be regarded as constituting discrimination directly based on sex”.
Male and female general nurses avail of the same superannuation entitlements and male and female psychiatric nurses avail of the same superannuation entitlements. Therefore there is no evidence of direct pay discrimination.
Indirect Discrimination:
The Employment Equality Act 1977 (Section 2(c)) defines indirect discrimination as follows: -
- “where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment or membership of a body referred to in section 5, which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex is (or as the case may be) of a different marital status but of the same sex able to comply is substantially higher”.
In this case, the requirement, in order to access faster accrual of service years for pension purposes, is to be a registered Psychiatric nurse working in an area designated as a mental hospital authority under the Mental Treatment Act, 1945.
The figures for Psychiatric nurses in the two Health Boards in year 2000 are set out below
Total No. NursesMale P. NursesFemale P. Nurses
MHB 309 89 220
SEHB 875 258 617
The complainants claim that the requirement to be a psychiatric nurse in order to be able to take advantage of the better pension arrangements has a disproportionately adverse effect on females. The evidence of the above figures is to the contrary. Approximately 70% of all Psychiatric nurses are female and there is no impediment to their ability to qualify for the enhanced pension arrangements.
This also was the view of the Equality Officer, who held that the
- “requirements in relation to Psychiatric nursing have no relevance to, or detrimental impact on, a nurse who trains in general nursing (male or female). For whatever historical reasons concerning the nature of Psychiatric nursing in 1945, the legislature considered it appropriate to provide that Psychiatric nurses should be allowed to retire on full pension at a younger age than general nurses”.
- “requirements in relation to Psychiatric nursing have no relevance to, or detrimental impact on, a nurse who trains in general nursing (male or female). For whatever historical reasons concerning the nature of Psychiatric nursing in 1945, the legislature considered it appropriate to provide that Psychiatric nurses should be allowed to retire on full pension at a younger age than general nurses”.
For all of the above reasons, the respondents feel that there is no discrimination against female nurses either on grounds of gender under Article 119(now Article 141) of the Treaty or within the meaning of Section 3(a)(b)(c) of the Anti-Discrimination (Pay) Act 1974.
The Court’s Conclusions:
1. The parties are, it is agreed, engaged in “like work”.2. The provisions of the Mental Treatment Act, 1945, allow for Psychiatric nurses in designated locations to accrue pension service after 20 years service at a faster rate than it can be accrued by general nurses.
3. At that time, the majority of Psychiatric nurses were male and the majority of general nurses were female. The overall majority of nurses were female.
4. Nowadays, the majority of all nurses are female, and the majority of nurses in both general and psychiatric services are also female. The Court has been furnished with the following statistics none of which are in dispute.
A. In 1998 when this claim was first made the male/ female breakdown of the Psychiatric nursing service (PNS)was 25%/75% and of the General Nursing service (GNS) was 9%/91%
B. In 2000 the breakdown was 31% male and 69% female in the PNS and was 2% male and 98% female in the GNS.
C. In 2003 there were a total of 61677 GNS Nurses with a male/female percentage breakdown of 4%/96%. There were a total of 11581 PNS nurses with a male/ female percentage of 30/%70%
D. Within the psychiatric service the percentage of nurses actually availing of this requirement i.e. those claiming benefits is 80% male to 20% female
E. Within the PNS of the respondents the percentage of male to female nurses currently employed is 29%/71%
The Applicable Law
This case is brought under Section 2 of the 1974 Anti Discrimination (Pay) Act which states as follows
(2) For the purposes of this section two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or it both and bodies corporate of which a third person whether directly or indirectly) has control.
(3) 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.
At paragraph 3 Lord Justice Mummery states;
"Although there is quite a simple answer to the indirect discrimination point, it has become virtually impossible and almost unacceptable to decide points of this kind in short form. The legal materials on indirect discrimination and equal pay are increasingly voluminous and incredibly intractable. The available arguments have become more convoluted, while continuing to multiply. Separating the wheat from the chaff takes more and more time. The short decisions of the early days of industrial tribunals have long since disappeared. They have been replaced by what truly are "extended reasons" which have to grapple with factual situations of escalating complexity and with thicker seams of domestic and EEC law, as interpreted in a cascade of case law from the House of Lords and the European Court of Justice.”
The end result of this cascade of legislation and judicial interpretation is best set out in section 12 of the Employment Equality Act 2004 which amends section 19 of the Employment Equality Act of 1998. Subsection (4) of the Act of 1998 is substituted by the following.:
"(4) (a) indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.
(b) where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.
The first question the Court must ask is; at what period of time does the discrimination occur? Does it occur when the impugned provisions were passed into law?. The answer to that must be in the negative since there was no equality legislation in being at that time. Did the discriminatory treatment arise when the Act was first passed? That in the Courts view would depend on the gender composition of the PNS at that time. The Court has not been furnished with any statistics in that regard. Finally, must the discriminatory treatment still be in existence at the time the claim is made and when the determination is made.
The Act at Section 8 (5) does not lay down any time limit for bringing a claim per se, but does state that:
“ in any proceedings brought by a person to recover arrears of remuneration to which he is entitled under this Act the person should not be entitled to be awarded any payment by way of such arrears in respect of a time earlier than 3 years before the date on which the relevant dispute was referred to an Equal Pay Officer”.
From this the Court takes the view that the discrimination must still have been continuing up to a period at least three years prior to the claim being made.
The statistics furnished to the Court show a consistent pattern from 1998 to 2004 wherein the general nursing population is 95% female and the psychiatric nursing population is 75% female. Does this discrepancy between two groups, both predominantly female but with an imbalance within that predominance vis a vis female and male give rise to a prima facie case of discrimination ?
The proper manner in which to approach such statistics is laid down in the case R v Secretary of State for Employment ex parte Seymour Smith 2000 (IRLR 263). In that case the European Court of Justice stated as follows:
‘58. As regards the establishment of indirect discrimination, the first question is whether a measure such as the rule at issue has a more unfavourable impact on women than on men.
59. Next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of two years’ employment under the disputed rule and of those unable to do so, and, on the other hand, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people in the Member State as a whole as well as the percentages of men and women employed in that State.
60. As the court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years’ employment required by the disputed rule. The situation would be evidence of apparent sex discrimination unless the disputed rule were justified by objective factors unrelated to any discrimination based on sex.
61. That could also be the case if the statistical evidence revealed a lesser but persistent and relatively constant disparity over a long period between men and women who satisfy the requirement of two years’ employment. It would, however, be for the national court to determine the conclusions to be drawn from such statistics.
62. It is also for the national court to assess whether the statistics concerning the situation of the workforce are valid and can be taken into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena, and whether, in general, they appear to be significant
63. In this case, it appears from the order for reference that in 1985, the year in which the requirement of two years’ employment was introduced, 77.4% of men and 68.9% of women fulfilled that condition.
64. Such statistics do not appear, on the face of it, to show that a considerably smaller percentage of women then men is able to fulfil the requirement imposed by the disputed rule.’
The statistics furnished to the Court show that at all relevant times psychiatric nurses were composed of 70% female and 30% male, whereas general nurses were 95% female and 5% male.
The Court has been asked to merely consider the gender composition of the disadvantaged Group, the general nurses, and a number of cases have been advanced in support of that contention. The Court does not accept this line of reasoning. It appears to the Court that there are two separate strands of thought in the reasoning of the European Court of Justice in relation to equal pay claims.
The first arises where a supposedly neutral measures in fact imposes a particular disadvantage upon a group of workers, normally atypical workers such as part-time workers or job sharers. The European Court of Justice has then looked at the composition of the disadvantaged group in order to decide whether or not the provision was prima facie discriminatory.
The second situation arises where an apparently neutral provision is applied to two groups of workers, both full time and both doing work of equal value. The European Court of Justice then compares the gender composition of the two groups to see whether a prima facie case of discrimination might arise. The position is clearly set out in the opinion of advocate General Jacobs in Jamstalldhetsombudsmannen (Appellant) v Orebro Lans Landsting (respondents) 2000 1RLR 421 . At Paragraph 15 he states:
"The first paragraph of Article 1 of the Equal Pay Directive provides:
"The principle of equal pay for man and women outlined in Article 11 9 of the Treaty, hereinafter called "the principle of equal pay", means, for the same work or for work to which equal value is attributed, the elimination of discrimination on the grounds of sex with regard to all aspects and conditions of remuneration."
A female employee (to take the usual case) seeking to establish infringement of the principle of equal pay for equal work to which equal value is attributed will have to have addressed two distinct issues and may have to deal with a third. In the case, as here, of alleged indirect discrimination these may be expressed as follows. First, she must be part of a group of predominantly female employees performing work of equal value to that performed by a group of predominantly male employees. Secondly, the first group must receive lower remuneration then the comparator group. If both these elements are shown by the employee a prima facie case of discrimination arises.
The initial test must therefore be that the claimant must be part of a group of predominantly female employees performing work of equal value to that performed by a group of predominantly male employees. This was the reasoning adopted by the Court of Justice in Enderby V Frenchay Health Authority (19941CLMR8) , the Seymour Smith case, and by the Court of Appeal in the Rutherford case. This approach has also been adopted by this Court in Impact -v- the Irish Aviation Authority.
Findings
The available statistical evidence shows that in the group able to comply with the alleged impugned requirement the proportion of female to male is 70/30 and in the group unable to comply with the impugned requirement the proportion female to male is 95/5. Both groups are predominantly female. The Court has been asked to find that a claim of discrimination can arise in a situation where both the claimant group and the comparator group are predominantly female. In circumstances such as those outlined in this case, the court cannot accept that contention is sufficient to raise a prima facie case of discrimination. Even if the Court were prepared to consider such a contention, there would need to be a considerably greater disparity in the gender make-up of each Group before the Court would consider making a prima facie finding of discrimination The Court takes the view that in a case such as this where an apparently neutral requirement is made or imposed, and the claimant group and the comparator group are both predominantly female, there would need to be a substantial difference, far greater then that shown in the statistics available to the Court in this case, for a claim of indirect discrimination to succeed.
Having found that the claim of discrimination fails at first instance, there is no necessity for the Court to consider the defence of objective justification. However, in ease of the parties, the Court adopts the Equality Officer's finding that if a case of prima facie discrimination had been successfully made against the respondents then the respondents could not have relied succesfully on a defence of objective justification by simply citing compliance with the 1945 Act.
Determination
The appeal is disallowed and the decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Raymond McGee
11th March, 2005______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.