14 Named Female Employees (Represented by the CPSU) vs Department of Justice, Equality and Law Reform (Represented by Mr. M. Dowling, B.L. instructed by the CSSO)
File No: EE/2000/047-054
EE/2005/112
Date of Issue: 22nd November, 2005
SUMMARY
14 Named Female Employees (complainants) Represented by the CPSU vs The Department of Justice, Equality and Law Reform (respondent) Represented by Mr. M. Dowling instructed by the CSSO:
Equality Officer Decision DEC-E2005-057 (Coyle G.) 22nd November, 2005
Employment Equality Act, 1998 Sections 7 and 19(5) - Employment - Equal Pay - Gender - Like Work - Grounds other than Gender
Background:
The Union referred two sets of claims for investigation and decision. The first claims were referred on 21st July, 2000 and the second claims were referred on 14th July, 2005. The Union contends that the 14 complainants perform 'like work' with named male comparators in terms of Section 7(a) and 7(b) of the Employment Equality Act, 1998. The complainants were employed as Clerical Officers assigned to An Garda Síochána under the auspices of the Department of Justice, Equality and Law Reform. The named male comparators were employed as Gardai, Detective Gardai and Staff Sergeant with An Garda Síochána. The respondent does not accept that the complainants perform 'like work' with the named male comparators and the respondent argues that there are 'grounds other than gender' for the difference in pay between the complainants and the named male comparators. These arguments are not accepted by the Union.
Decision:
In relation to the claims referred on 21st July, 2000 the Equality Officer found that 4 complainants performed 'like work' with the named male comparators in terms of Section 7(a) of the Employment Equality Act, 1998; 2 complainants performed 'like work with the named male comparator in terms of Section 7(b) of the 1998 Act and 1 complainant performed 'like work' with the named male comparator in terms of Section 7(c) of the 1998 Act. The Equality Officer held that 1 claim was not validly before her for investigation. In relation to the claims referred on 14th July, 2005 the Equality Officer held that there was no valid claim against one of the named comparators as he had left the area some five years prior to the claims. The Equality Officer found that each of these complainants did not perform 'like work' with the second named male comparator in terms of Section 7 of the Employment Equality Act, 1998. The respondent argued that there were 'grounds other than gender' for the difference in pay between each of the complainants and the named male comparators. The Equality Officer found that the respondent, by its arguments, failed to objectively justify the difference in pay on economic grounds. The Equality Officer held that the complainants found to be performing 'like work' with named male comparators were therefore entitled to equal pay.
Cases Cited:
Equality Officer's Decisions:
Ms. Kay McEvoy v Dublin Institute of Technology - DEC-E2001-038
Hoey v Northern Area Health Board - DEC-E2004-069
Hyland v The Conrad Hotel - DEC-E2004-077
Ms. Brady & 12 Others and Ms. McGivern v TSB ESOP Trustees, Irish Life & Permanent plc, Mandate, ATGWU and SIPTU - DEC-E2004-007
Labour Court Determinations:
Dublin Institute of Technology and McEvoy - EDA032
The Minister for Transport, Energy and Communications v Campbell & Others - DEP977
TSB ESOP Trustees Ltd, Irish Life and Permanent Plc, Mandate, ATGWU and SIPTU v Mary Brady & Others and Ms. Fionnula McGivern - EDA053
High Court:
Verbatim Ltd v Duffy [1994] ELR 159
The Minister for Transport, Energy and Communications v Catherine Campbell & Others [1996] ELR 106
Susan Flynn & Others v Primark (trading as Pennys Ltd) - 12th February, 1997 [1977] ELR 218
Supreme Court:
Telecom Eireann v O'Grady [1998] 3 IR 342
European Court of Justice:
McCarthy Ltd v Smith (Case 129/79)
Bilka-Kaufhaus G.m.b.H. v Weber Von Hartz (Case 170/84) [1987] I.C.R. 110
Handels og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbeidsgiverforening (acting for Danfoss) (Case 109/88) [1989] E.C.R. 3199
Marleasing (Case 106/89) [1990] E.C.R. I-4135
Enderby v Frenchay Health Authority - Case 127/92 (1994) ICR 112; [1993] IRLR 591
Royal Copenhagen (Case 400/93) [1995] ECR I-1275
Hill and Stapleton (Case 243/95) [1998] ECR I-3739; [1998] ELR 225
Angestelltenbetriebsrat der Wiener Gebietskrankenkasse (Case 309/97) [2000] I.C.R. 1134
Brunnhofer (Case 381/99)
Rinner-Kuhn v FWW Spezial-Gebaludereingung (1989) ECR 2743
Levez v TH Jennings (Harlow Pools) Ltd (Case C-326/96) [1998] E.C.R. I-7835
Shirley Preston & Others v Wolverhampton Healthcare NHS Trust & Others (Case C-78/98)
Gillespie & Others v Northern Health and Social Services Board & Others [1996] E.C.R. I-475
Opinion of Advocate General Leger in Nolte v Landesversicherungsantalt Hannover (C-317/93) [1995] E.C.R. I-4625
1. DISPUTE
1.1 The dispute concerns a claim by CPSU, on behalf of 14 Named Female Employees, against the Department of Justice, Equality and Law Reform that they are entitled to the same rate of remuneration as that paid to named male comparators in terms of Section 7 of the Employment Equality Act, 1998.
1.2 The Union referred complaints in respect of 8 Named Female Employees to the Director of Equality Investigations on 21st July, 2000 under the Employment Equality Act, 1998. Then on 14th July, 2005 the Union referred complaints in respect of a further 6 Named Female Employees to the Director of Equality Investigations under the provisions of the Employment Equality Act, 1998 and 2004. In accordance with her powers under Section 75 of that Act the Director delegated the cases to Gerardine Coyle, Equality Officer on 14th August, 2000 and 18th March, 2005 respectively 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 and exchanged. A number of preliminary hearings took place. Work inspections took place between May and July, 2005. A final hearing took place on 18th and 19th October, 2005. Further information was received from the Union on 26th October, 2005 and no response was received from the respondent who was given until 11th November, 2005 to respond.
2. SUMMARY OF RESPONDENT'S SUBMISSION RE: PRELIMINARY APPLICATION FOR DISMISSAL (31st March, 2004)
2.1 The respondent grounds its preliminary application for the dismissal of the applicants' claims on grounds that both sides agreed with the Equality Officer on 26th September, 2000 that the claims might be amenable to an industrial relations solution and it was for this reason that extensions to proceeding with the investigation were acceptable to the respondent. It is the respondent's contention that they considered that they were applying an industrial relations solution when the preliminary hearing was held on 18th March, 2004. In applying an industrial relations solution the respondent says that it entered into lengthy and complex discussions with Garda Management, the relevant Garda representative associations and the Union (CPSU) culminating in interviews taking place for 120 promotion posts at Staff Officer level (District Finance Officer work). The respondent states that this interview process, involving 214 applicants, was recently completed.
2.2 The respondent further contends that they clearly understood that the Union would withdraw the claims on condition that the main provisions of the Garda Síochána Civilianisation Report would be implemented including, in particular, the promotions to District Finance Officer (Staff Officer). According to the respondent the industrial relations solution does not, nor did it ever, concede that an equality solution existed or exists in respect of the complainants. The respondent also grounds it application for dismissal of these claims on grounds of the delay in pursuing these claims and abuse of process. It is the respondent's submission that the Union has failed to pursue these claims and that the respondent has, therefore, been deprived of its right to a hearing with reasonable expedition. The respondent notes that it is almost 4 years since the claims were referred to the Equality Tribunal and during that period the respondent agreed to various adjournments in good faith on the basis that an industrial relations solution was being processed to an agreed conclusion.
2.3 It is the respondent's submission that there has been inordinate and inexcusable delay and that the balance of justice is against allowing these claims to proceed. On this basis the respondent makes an application to the Equality Tribunal to dismiss these claims pursuant to Section 102 of the Employment Equality Act, 1998. In making this request the respondent further relies on the case of Verbatim Limited v Duffy where Kinlen J. held, inter alia, in an equal pay case before an Equality Officer, that the Union's delay of about two years in bringing on the claims for hearing constituted an abuse of process. The respondent notes that the High Court directed an order of mandamus at the Union which required them to withdraw the claim. According to the respondent the delay in these claims is about double that in Verbatim. Finally the respondent submits that in the interests of justice these claims be dismissed.
3. SUMMARY OF THE UNION'S RESPONSE TO THE RESPONDENT'S APPLICATION FOR DISMISSAL (19th April, 2004)
3.1 The Union notes that the claims on behalf of the 8 named female employees was referred to the Director of Equality Investigations under the Employment Equality Act, 1998 on 18th July, 2000. A preliminary hearing of these claims took place on 26th September, 2000 and at this preliminary hearing both parties agreed to hold 'direct talks' with a view to reaching a solution on these claims. The Union notes that this was confirmed to both parties in a letter dated 26th September, 2000 from the Equality Officer. According to the Union direct talks did commence with the respondent and were still in progress up to the date of the resumed preliminary hearing which was held on 18th March, 2004.
3.2 The Union states that, on numerous dates, between September, 2000 and 18th March, 2004 it sought a deferment of a hearing under the Employment Equality Act, 1998 to allow for direct talks to continue. It is the Union's submission that this was agreed to by the respondent, or at least there were no objections from the respondent to these requests. According to the Union the direct talks with the respondent were and are complex and were and are much more wide ranging than the Garda Siochana Civilianisation Report. These discussions were ongoing and had not concluded at the date of the preliminary hearing on 18th March, 2004. The Union notes that there is no agreement arising from the 'direct talks' and, if there was, it would have been produced by the respondent at the preliminary hearing. It is the Union's contention that there has been no delay in pursuing these claims nor has there been any abuse of the process. The Union states that both parties in September, 2000 agreed to engage in direct talks and these talks were still ongoing up to 18th March, 2004. According to the Union both parties agreed to the claims being deferred to allow for discussions and, at no time, did the respondent object to these claims being deferred.
3.3 The Union, therefore, seeks the rejection of the respondent's request to have these claims dismissed on the basis that there is no agreement arising from the 'direct talks' entered into by both parties and there is no undue delay and abuse of process as both parties agreed to the continued deferment of the claims to allow the direct talks to continue.
4. RESPONSE FROM THE EQUALITY OFFICER
4.1 It should be noted that both parties to these claims had agreed at the first preliminary hearing of these claims on 26th September, 2000 that the investigation of these claims should be deferred pending discussions. I corresponded with the parties on a number of occasions as to how these discussions were proceeding and I asked the parties if they wished me to proceed with the investigation of these claims. The Union sought the investigation to be deferred and the respondent did not object to this request. Then on the 20th May, 2004 I wrote to the parties, on foot of the application from the respondent for the dismissal of these claims under Section 102 of the Employment Equality Act, 1998. In my letter I stated that I was not satisfied that the Union, on behalf of the complainants, had ceased to pursue these complaints and, therefore, I did not consider it appropriate for me to strike them out under Section 102 of the 1998 Act.
5. SUMMARY OF THE UNON'S SUBMISSION ON THE ISSUE OF 'LIKE WORK'
5.1 In its submission the Union cites Community Law and states that the principle of equal pay for male and female workers for equal work or work of equal value is set out in Article 141 EC, the first paragraph of which provides:
"For the purpose of this Article, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or kind, which the worker receives directly or indirectly, in respect of his employment, from his employer".
The first paragraph of Article 1 of Council Directive 75/117/EEC of 10th February, 1975 on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women provides:
"The principle of equal pay for men and women outlined in Article 119 of the Treaty (now Article 141 EC), hereafter called principle of equal pay, means, for the same work or for work, to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration".
Council Directive 97/80/EC of 15th December, 1997 on the burden of proof in cases of discrimination based on sex, had to be transposed by the member states by 1st January, 2001. It applies to the situations covered by Article 119 of the Treaty and Directives 75/117 and 76/207. Under Article 4 of Directive 97/80 the member states are to:
"take such measures as are necessary ...to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment".
The obligations of a national court of a Member State in interpreting EU law was set out by the European Court of Justice in the case of Marleasing where the court states at paragraphs 8 and 9:
"In order to reply to that question, it should be observed that as the court pointed out in its judgement in case 14-83 Von Colson and Kamann v Land Nordhein-Westfalen 1984 ECR 1891 at paragraph 26, the Member State's obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that in applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty".
The Union notes that that principle was applied by the Supreme Court in the case of Telecom Eireann v O'Grady where Keane J. also set out the domestic approach to statutory interpretation as follows:
"But where, as here, the legislature had plainly expressed their intention, it is not open to a court, absent any constitutional considerations, to frustrate that intention by departing from the ordinary meaning of the words used. Nor, it must be emphasised, can the literal construction in this case be said to defeat "the spirit and purpose of the Act": it is, after all, an Act intended to render unlawful certain types of discrimination in the work place and a reading which leads to the prohibition of a particular discriminatory practice, however unfairly burdensome the result may appear to be, must appear to be, must be regarded as being in harmony, rather than in conflict with, the general legislative scheme".
5.2 In relation to 'like work' the Union notes that the European Court of Justice has repeatedly asserted that it is for the national courts, in this case, the Equality Officer, to determine the facts of the case and to establish if 'like work' exists. In this regard the European Court of Justice in the case of Brunnhofer it is stated:
"the court has repeatedly held that, in order to determine whether employees perform the same work or work to which equal value can be attributed, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation (see Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraphs 32 and 33, and Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, cited above, paragraph 17)".
It goes on to states at paragraph 49:
"It is for the national court, which alone has jurisdiction to find and assess the facts, to determine whether, in the light of the actual nature of the activities carried out by those concerned, equal value can be attributed to them (JamO, cited above, paragraph 48)".
In relation to the European Court of Justice ruling in the case of Wiener the Union notes that from the judgement the institutions concerned in Austria may employ three different classes of psychotherapists namely:
- Doctors who have completed their general practitioners or specialists training;
- Graduate psychologists qualified to practice in the health sector on a self-employed basis; and
- Those who are neither doctors nor psychologists but who have a general education and have undergone specialised training in psychotherapy.
The complainants in this case were those in the second category above (i.e. Graduate psychologists) and were paid up to 50% less that the comparators in this case who were in the first category above (i.e. Doctors). While seven questions were referred to the European Court of Justice, the judgement of the Court only dealt with the first one namely:
Do the terms "the same work" and "the same job" apply, for the purposes of Article 119 of the EC Treaty or Directive 75/117/EEC, where the same tasks are performed over a considerable length of time (several salary periods) by persons the basis of whose qualification to exercise their profession is different.
The Union says that, from the information contained in the judgement, it appeared that the Doctors employed as psychotherapists were in fact performing additional duties to the psychologists employed as psychotherapists. Paragraph 21 of the judgement refers where the ECJ states:
"In those circumstances, two groups of person who have received different professional training and who, because of the different scope of the qualifications resulting from that training, on the basis of which they were recruited are called on to perform different tasks or duties, cannot be regarded as being in a comparable situation".
5.3 It is the Union's contention that the facts of the current claims are fundamentally different from the Wiener case. In the current claims the issues relate to the performance of clerical/administrative tasks in the Department of Justice, Equality and Law Reform in the Garda area. The Union says that the question to be asked is what are the required skills, qualifications and training required for the performance of these duties. According to the Union the named male comparators are required to do a clerical test before being assigned to a clerical/administrative post. The Union notes that a similar test was required of the complainants who had to reach a certain standard in a test conducted by the Public Appointments Service for the recruitment of Clerical Officers. It is the Union's submission that, in these claims, we are not talking about the training and qualifications necessary for the carrying out of normal policing duties, which the comparators were recruited to perform but don't, but rather we are talking about the skills, training and qualifications necessary for the performance of clerical/administrative functions. The Union contends that this issue was clearly addressed at paragraph 18 of the Wiener judgement reference is made to the same training or professional qualifications for the practice of their profession as follows:
"Thus where seemingly identical tasks are performed by different groups of persons who do not have the same training or professional qualifications for the practice of their profession it is necessary to ascertain whether, taking into account the nature of the tasks that may be assigned to each group respectively, the training requirements for performance of those tasks and the working conditions under which they are performed, the different groups in fact do the same work within the meaning of Article 119 of the Treaty".
5.4 The Union notes that the judgement in Wiener issued on 26th June, 2001 and that the issue of 'like work' has been addressed by both the Equality Tribunal and the Labour Court in three cases where decisions have been issued post this judgement. It is the Union's submission that in the case of Ms. Kay McEvoy and the Dublin Institute of Technology the Equality Officer established by way of job inspections that the actual duties performed by the comparator involved additional functions including the supervision and direction of the other kitchen staff, as well as cooking himself as set out in paragraph 5.11 of that decision. The Union notes that the Equality Officer also established the fact that the comparators qualification as a chef was an essential requirement for the job. This decision was upheld by the Labour Court on appeal and the Union notes that the Labour Court clearly stated as follows:
"The Court is satisfied that the comparator would not have been appointed to the position he holds if he was not a qualified chef. However, in deciding whether or not the work of the comparator is of equal value to that of the complainant it is the actual duties performed which are relevant and not the qualifications held by the respective parties".
The Union notes that the Equality Officer in Hoey and Northern Area Health Board concurred with the approach taken by the Labour Court in the above case where she concludes:
"The fact that the complainant was appointed to a general nursing post cannot justify the difference in salary, since like work was conceded by the respondent. The Labour Court, in Dublin Institute of Technology and McEvoy said "it is the actual duties performed which are relevant and not the qualifications held by the respective parties"".
This was also the approach taken by the Equality Officer in the case of Hyland and The Conrad Hotel according to the Union.
5.5 In conclusion the Union states that the European Court of Justice case law has determined that it is for the national courts, in these claims the Equality Officer, to establish from the facts if 'like work' exists under Sections 7(a) and 7(b) of the Employment Equality Act, 1998. The Union contends that the European Court of Justice case in Wiener does not support the respondent's argument that the comparators, in carrying out clerical duties brings to their jobs their training and experience as Gardai, which the complainants lack. It is the Union's submission that paragraph 18 of the Wiener judgement is very clear that it is the tasks assigned and the training requirements for the performance of those tasks which are critical. According to the Union in Wiener there were both complainants and comparators recruited for the same job as psychotherapists and recruited for the same job with different qualifications. However in these current claims the Union states that there are comparators recruited as Gardai to perform normal policing duties but assigned by way of application and clerical test to clerical/administrative duties which they retain unless promoted or retire or by personal choice. According to the Union the complainants recruited as Clerical Officers perform normal clerical functions which they continue to perform unless they are promoted or retire. The Union states that the complainants are not claiming 'like work' or 'work of equal value' with Gardai recruited and trained to do normal policing duties and are assigned to these duties - these Gardai are carrying out duties of their profession which is what they were recruited to do. The Union cites the High Court Judgement and the subsequent Labour Court Determination in the case of Catherine Campbell and Others v The Minister for Transport, Energy and Communications as significant in these current claims and very similar inasmuch as the comparators were Radio Officers who were assigned by way of special competitions to fill clerical posts in the Accounts Section of the Irish Aviation Authority and the comparator retained these posts, specially designed to be filled by Radio Officers only, unless they were promoted or retired. The complainants on the other hand occupied four clerical posts in the Accounts Department but received a lesser rate of pay and all six employees in the Accounts Section performed 'like work'. The Union asks the Equality Officer to find that the complainants and the named comparators are performing 'like work' under Section 7 of the Employment Equality Act, 1998.
6. SUMMARY OF THE RESPONDENT'S SUBMISSION ON 'LIKE WORK'
Gorey
6.1 The respondent in its submission states that the complainant in the District Office at Gorey was promoted in 1995 to Clerical Officer and in 1997 took full charge of finance in that office. The current District Clerk at Gorey is female and she has held the position since May, 2000 when she successfully competed for the position vacated by the named male comparator in this claim (Garda Fitzgerald) who was promoted to the rank of sergeant. It is the respondent's contention that the position of District Clerk must be filled by a trained member of An Garda Síochána, who has acquired up-to-date knowledge of all relevant legislation, thus ensuring that a professional service is delivered to stakeholders. The respondent says that filling this position with a civilian would greatly reduce the standard of service currently provided by a member of An Garda Síochána.
Monaghan
6.2 The complainant in this case is based in the District Office in the Garda Station in Carrickmacross and she is claiming equal pay with a named comparator who acts as Assistant to the District Clerk in Monaghan Garda Station. It is the respondent's submission that the volume of the complainant's work and its distribution is not similar to that in the District Office in Monaghan and the complainant does not have any supervisory functions.
Dungarvan
6.3 The respondent states that there are some differences in the work carried out by this complainant and the named comparator mainly confined to dealing with correspondence/queries regarding operational matters, crime Investigation and the Law Officers. It is the respondent's submission that these differences occur infrequently having regard to the overall workload performed in the District Office. The respondent further states that the differences in the work of the complainant and the named comparator are of small importance to the work as a whole as, in the absence of either, the work has to be done and is done.
6.4 It is the respondent's submission that while the work carried out by the complainant may be of a higher grade than Clerical Officer it is not work similar to that of the District Clerk i.e. the named comparator who has responsibility for the running of the office. He is also required to call on his legal knowledge, Garda training and knowledge of Code Regulations. He is also regularly required to give instructions to other members of the force i.e. Sergeants and Gardai.
Santry and Store Street Garda Stations
6.5 The respondent states that the duties performed by the complainant, in this case, could best be described as an 'aide' to the Staff Sergeant's Office. Her work involves the return of overtime checking forms (A85), sick returns, compensation claims and transfer of pay and allowances to Killarney. According to the respondent this work is remarkably distinct and different to that carried out by the named comparator.
6.6 In relation to the named comparator the respondent notes that, while his job has a large element of clerical duties, he also has a supervisory responsibility in respect of non-established Civil Servants e.g. cleaners and the yardman. He also carries the responsibility of proactively managing the stores of the district and ensuring that maintenance standards are upheld. He liaises with personnel in OPW and sometimes with architectural companies.
Garda Criminal Records Office (GCRO)
6.7 The respondent notes that the complainants employed at the Garda Criminal Records Office (hereinafter referred to as the GCRO) were Ms. Barrett from 3rd February, 1997 to 30th November, 1998; Ms. Coyne from 30th November, 1998 to 13th May, 1999 and Ms. Healy from 3rd February, 1997 to 20th March, 2001. According to the respondent there were two Detective Gardaí positions attached to the GCRO occupied by the named male comparators. The respondent states that in January, 2002 the GCRO was split into two units namely the GCRO and the Garda Central Vetting Unit (hereinafter referred to as the GCVU). At that time the two Detective Gardaí transferred from the GCRO to the GCVU. The two Detective Gardaí (named male comparators) were replaced by Gardaí (i.e. the positions lost their designation as Detective posts). One of the named comparators (Detective Garda Sheeran) was replaced by Garda Carol Roe on 11th March, 2003 and the other named comparator was replaced by Garda Paula Brophy on 16th July, 2003. The respondent notes that these two Gardaí are in receipt of ex gratia payments.
6.8 The respondent states that the role of the District Clerk has evolved over time and the current job title of the holder of the position is "Personal Assistant to Superintendent". According to the respondent the "Report of An Garda Síochána Committee of Inquiry" (The Ryan Report) presented to the Minister for Justice in April, 1979 dealt with the question of civilisation - Chapter 6 (Appendix A). That report set out the constraints on civilisation as follows:
"(i) Where the duties involve the exercise of Garda powers, the use of special knowledge and experience which members of the Force possess or the giving of instructions to other members of the Force, they should not be performed by civilians.
(ii) Civilians should not be employed in posts or on duties, which are of vital importance if the force is to function continuously. Members of A Garda Siochana may not form a trade union or take industrial action. But civilians have a constitutional right to do both.
(iii) In some posts, absolute secrecy may be necessary and security might be jeopardised if these were filled by civilians. However, this argument against civilisation should not be pressed too far. Absolute secrecy may be important in many aspects of the work of Government Departments and it is respected by the civilians they employ".
The respondent states that the report also dealt with the reservation of posts for training purposes or for members who need to be relieved of operational duties and it refers to a consultants' report (Stokes Kennedy Crowley) which divided posts into three categories namely those which could be filled by civilians, those which could be filled by a Garda or civilian and those which could continue to be filled by Gardaí. The report recommends "that posts which are placed in the third category ... should be formally designated as posts which must be filled by members of the Garda Síochána".
6.9 The respondent states that the recommendations of the Ryan Committee in relation to civilianisation/clerical duties were referred to the Garda Conciliation Council. Following discussions it was agreed on 21st January, 1980 to recommend as follows:
1. That a 4-man working party consisting of a representative each of the Department of Justice, the Commissioner, the Association of Sergeants and Inspectors and the Garda Representative Association should examine the various clerical posts to determine the appropriate designation as between posts that should continue to be filled by members of the Force and those that could be civilianised - this work to be completed by 29th February, 1980;
2. That, on completion of designation, posts designated as "Garda" posts would, with effect from 1st March, 1979 attract the appropriate allowances as recommended by the Ryan Committee;
3. That members occupying "civilian" posts would be paid an ex-gratia lump sum, equivalent to the allowances recommended by the Committee, for the year 1st March, 1979 to 29th February, 1980 or pro-rata for any period less than the full year;
4. That an option would be given to members in clerical posts to remain in such posts or to transfer to outdoor duties so that the Commissioner could determine assignment accordingly;
5. That, for so long as it would not be possible to enable members who occupied "Civilian" posts and who opted to transfer to outdoor duties to transfer to such duties, they would be paid an ex-gratia lump sum pro-rata to the allowances recommended by the Committee - the lump sum to be paid at the end of every 6-month period in respect of the whole or any part of that period, as the case may be;
6. That members who occupied "civilian" posts and who did not opt for outdoor duties would not receive the lump sum for any period subsequent to 29th February, 1980;
7. That paragraphs 2, 3 and 5 above would apply to members occupying clerical posts and posts with similar conditions, except that they would not apply to any such members who were in receipt of other allowances for special duties; and
8. That options exercised under paragraph 4 would remain unalterable except in special circumstances.
The respondent states that the working party reported back to Council and its recommendations were accepted with minor amendments on 10th June, 1980. It is the respondent's submission that the Ryan Report and the subsequent Conciliation agreements taken together clearly set out the principles and practicalities surrounding appointments to clerical/administrative positions in An Garda Síochána. The respondent says that the principles set out by Ryan are as valid today as they were when the report was issued and posts are reviewed on a periodic basis with the last review being completed in 2003.
6.10 It is the respondent's submission that the post in Gorey is a designated Garda post within the parameters set out by Ryan involving duties that can only be undertaken by a member of An Garda Síochána. The respondent says that this post was designated as a Garda post by the Working Group referred to above in common with all District Clerk posts. A recent review of the duties of the District Clerk was undertaken in conjunction with the introduction of civilian District Finance Officers and the review clarified the role of the District Clerk and the respondent submits that it is significantly different to that of a civilian Clerical Officer.
6.11 The respondent submits that ex-gratia posts were specifically catered for by the Ryan Committee and Gardaí only fill these vacancies in the absence of suitable civilian staff and the member has to opt for outdoor duty in the event of a civilian replacement. In this regard, the respondent says that they have no security of tenure, they are required to perform operational duties at the pleasure of their supervisors and they are required to vacate the post and return to operational duties once a civilian clerical officer is appointed. The respondent notes that the position is Monaghan is an ex-gratia post and submits that the extensive Garda training involved and liability to recall to operational duties makes the work and likely duties of the member attached to the post in Monaghan significantly different to the duties of a Clerical Officer.
6.12 In relation to the GCRO the respondent states that the posts no longer exist. The GCRO was, for many years, staffed solely by Detective Gardaí. Over the years the progressive replacement of Gardaí by civilian staff was undertaken until only two Detective Gardaí remained. As Gardaí from this office are required to attend court to prove convictions, it was considered prudent to retain two Detective Gardaí in the office, principally for the purpose of giving court evidence. On the introduction of the GCVU in January, 2002 it was considered that the Detective Gardaí were no longer required in the GCRO and these posts were transferred to the GCVU at Garda level. The respondent says that these posts were deemed suitable for civilians and the members occupying them are in receipt of ex-gratia allowances. It is the respondent's submission that the Detective posts in the GCRO were such that they required Garda and legal knowledge. The respondent submits that, because of that requirement, taken together with the extensive Garda training involved and liability for operational duties, the work and likely duties attaching to these posts were significantly different to the duties of a Clerical Officer.
7. SUMMARY OF THE RESPONDENT'S SUBMISSION ON 'GROUNDS OTHER THAN GENDER' FOR THE DIFFERENCE IN PAY BETWEEN THE COMPLAINANTS AND THE NAMED COMPARATORS
7.1 It is the respondent's submission that the test to be applied by the Equality Officer in resolving the issue of 'grounds other than gender' for the difference in pay between the complainants and the named male comparators was considered by the High Court in the case of Minister for Transport v Campbell which dealt with the equivalent provision in the Anti-Discrimination (Pay) Act, 1974. The respondent says that it should be noted that this test has arguably been supplanted by the decision of the European Court of Justice in Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse . After dealing with the role of the High Court in relation to an appeal from a decision of the Labour Court, Keane J. said:
"Secondly, the onus rests upon the employer. It is for him to satisfy the Labour Court that the practice he seeks to uphold is based on grounds other than sex. Thirdly, as held by Lynch J. in Irish Crown Cork Co. v Desmond & others [1983] ELR 180, the Labour Court are entitled to and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination of sexual grounds".
The respondent states that, in arguing that the difference in pay was justified by the employer's desire to achieve an economic objective or some other objective such as administrative efficiency, the European Court of Justice has stressed that the means used to achieve such an economic objective must be under scrutiny. In Bilka-Kaufhaus G.m.b.H. v Weber Von Hartz the ECJ held:
"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 the 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 on economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of article 119. The answer to question 2(a) must therefore be that under article 119 a department store company may justify the adoption of a pay policy excluding part-time workers, irrespective of their sex, from its occupational pension scheme on the ground that it seeks to employ as few part-time workers as possible, where it is found that the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end".
7.2 The respondent says that in arguing that the difference in pay in these claims fall within Section 19(3) of the Employment Equality Act, 1998 it is tempting to have recourse to a tautology - members of An Garda Síochána are paid more than Clerical Officers because they are members of An Garda Siochana. According to the respondent it is presumably common case that persons holding the rank of Garda and Sergeant in An Garda Síochána can be and are required to carry out a range of functions and duties which undoubtedly provide justification for remunerating them according to a different scale than the complainants in these claims. The respondent says that recruitment to An Garda Síochána (with the exception of specialist functions) is not based upon recruitment for a particular role within the force. Persons who apply to become members of An Garda Síochána undergo a two year training course which combines on the job and academic training and which results with the trainee being awarded with a Diploma in Policing Studies, accredited by the National Council of Education Awards. The trained Garda is capable of carrying out any one of a number of roles in the force and during his or her career in An Garda Síochána he or she is expected to apply that flexibility in adapting and developing as required.
7.3 The respondent states that the status and function of a Garda has both a statutory and common law aspect to it and there are a wide variety of functions and powers reserved to Gardai under criminal law and other statutes. It is the respondent's submission that the roles performed by the Gardai are extremely varied ranging from what might be termed "normal" policing duties to detective work, traffic, emergency response duties, anti-subversive work, community policing, United Nations tours, etc. The respondent says that in many situations the duties of a Garda may expose the member to the risk of physical harm and a number of Gardai have lost their lives during the course of their work. According to the respondent there is an increased awareness that Gardai are subject to intense scrutiny in the performance of their duties and are routinely required to make difficult decisions which may expose them to risk of a criminal prosecution, civil litigation, disciplinary action or complaints from members of the public. The respondent notes that the Garda Síochána is a disciplined force and its members operate in a different industrial relations environment to the complainants and do not have the right to withdraw their labour and go on strike. Furthermore the rates of pay of all members of An Garda Síochána are determined by the Minister for Justice, Equality and Law Reform with the sanction of the Minister for Finance, in accordance with Section 12 of the Police Forces Amalgamation Act, 1925. It is the respondent's submission that the rates of pay, applicable to the comparators in these claims, were determined pursuant to that mechanism and were deemed by the Government to be appropriate having regard to the duties outlined. The respondent contends that the entirely separate conciliation and arbitration mechanism applying to Garda pay constitutes a complete defence to the complainants' case. It is the respondent's argument that it is extremely difficult to see how the complainants can possibly argue that the rates of pay of members of An Garda Síochána have been fixed in a manner which is in any way tainted with discrimination particularly where there is no bar or obstacle to women becoming members of An Garda Síochána and where a significant and increasing proportion of the force is composed of women. The respondent notes that at present there are 12,170 members of An Garda Síochána of whom 2,009 are women and in the most recent intake of 150 members 44 (29%) were women.
7.4 It is the respondent's contention that the complainants have furnished no details in relation to the basis for their claims. The respondent states that the complainants will presumably argue that the range of duties referred to above cannot be relied upon by the respondent as objective justification in circumstances where the nominated comparators were, at the time that these proceedings were commenced, carrying out the same work as the complainants. It is the respondent's submission that, even if this were correct (and it is denied), this in no way undermines the respondent's claim that the remuneration of the comparators can be validly justified by reason of the fact that they are members of An Garda Síochána and can be required to carry out some or all of the above duties. As members of An Garda Síochána (a disciplined force) the comparators can be transferred or reallocated on a number of occasions during their careers and often to radically different duties which in turn places varying demands upon them, hence they are required to be adaptable and flexible in their assignments. The respondent says that Gardai, who for a time may perform similar functions to the complainants, may be (at the discretion of the Commissioner) required to perform completely different roles and this, the respondent contends, is a valid objective justification for the difference in their remuneration.
7.5 It is further submitted that even if the comparators never left their jobs in the District Office or in Garda Headquarters, the complainants' case would still fail. In the case of Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse the respondent says that the European Court of Justice considered a set of circumstances which is highly relevant to these proceedings and the relevance can be illustrated by two questions posed by the national courts to the ECJ as follows:
"(1) Do the terms 'the same work' and 'the same job' apply, for the purposes of article 119 of the E.C. Treaty or Council Directive (75/117/E.E.C.), where the same tasks are performed over a considerable length of time (several salary periods) by persons the basis of whose qualification to exercise their profession is different?"
"Where staff performs the same duties in an undertaking, may different training be regarded as a factor justifying lower pay? Is a broader professional qualification to be regarded as an objective factor justifying different pay, regardless of the duties actually performed in the undertaking? Is the decisive factor therefore (a) whether the better-paid group of employees may also be called on to perform other tasks within the undertaking, or (b) must it be shown that they were in fact called on to perform other tasks? In this connection, must account be taken of the fact that the applicable rules of the collective agreements include protection against unfair dismissal?"
7.6 The respondent notes that this case was ultimately decided on the question of 'like work' as opposed to objective justification. However the Advocate General suggests that the issue of same work should, in an appropriate case, be addressed by the national court before it goes on to look at whether or not any question of objective justification arises. This change in approach, according to the respondent, emphasises that the burden is on the employee to demonstrate that he or she is in fact performing like work. The respondent says that notwithstanding the radical nature of the conclusion reached by the Court, much of the judgement of the Court and in particular the opinion of the Advocate General Cosmas is highly relevant to this case. The respondent cites the report of the Advocate General at Page 1154 which states:
"Therefore, if two employees have different qualifications because their training was fundamentally different, it follows that the work or the job in question is different, even if the employees carry out duties which appear to be identical. However, if this distinction is to be made on the basis of the different qualifications of the persons concerned, the latter must be recruited and must perform their duties on the basis of their own qualification which is related to those duties."
The respondent states that this is clearly relevant to these proceedings where the member of An Garda Síochána carrying out clerical duties brings to his job his training and experience as a Garda, something which the relevant complainant lacks. The respondent notes that the ECJ followed this line and concluded in answer to question (1) above (at Page 1160):
"21. In those circumstances, two groups of persons who have received different professional training and who, because of the different scope of the qualifications resulting from that training, on the basis of which they were recruited, are called on to perform different tasks or duties, cannot be regarded as being in a comparable situation.
22. That finding is not contradicted by the fact that a single tariff is charged for psychotherapeutic treatment, an arrangement which may be the result of social policy.
23. The answer to the first question must therefore be that the term "the same work" does not apply, for the purposes of article 119 of the E.C. Treaty or Directive 75/117, where the same activities are performed over a considerable length of time by persons the basis of whose qualification to exercise their profession is different."
7.7 The respondent submits that the comparators in these proceedings fall squarely within the ratio of the above case. According to the respondent members of An Garda Síochána who are for the time being assigned to clerical positions hold those positions on foot of their training as Gardai and in exercising their duties in those positions they draw upon their experience and that training. The respondent says that the comparators can be called upon to perform other duties which the complainants do not have the expertise to perform.
8. SUMMARY OF THE UNION'S SUBMISSION ON THE ISSUE OF GROUNDS OTHER THAN GENDER FOR THE DIFFERENCE IN PAY BETWEEN THE COMPLAINANTS AND THE NAMED COMPARATORS
8.1 The Union, in its submission has set out the current rates of pay (July, 2004) of the complainants' grade and the comparators' grade as follows:
POINT CLERICAL OFFICER GARDA
Annual Rate Annual Rate
1 €19,111 €21,776
2 €20,002 €23,941
3 €20,895 €25,265
4 €21,789 €27,506
5 €22,679 €30,488
6 €23,572 €32,457
7 €24,464 €34,239
8 €25,357 €35,955
9 €26,247 €35,955
10 €27,139 €35,955
11 €28,025 €35,955
12 €29,408 €35,955
13 €30,493¹ €37,446
14 €30,992² €37,446
15 €37,446
16 €37,446
17 €37,446
18 €37,446
19 €39,131
NOTE:
¹ Long Service Increment after 3 years on max
² Long Service Increment after a further 3 years
Garda Allowances (as at December, 2004)
Designated Allowance - €4,316.64 pa
Plain Clothes Allowance - € 637.00 pa
Detective Allowance - €1,052.00 pa
8.2 The Union states that it is long established case law of the European Court of Justice (see Enderby ) that the initial burden of proof is on the employee (i.e. the complainant) to show that sex discrimination exists where the pay of a group of employees who are almost exclusively women is lower than the pay of another group of employees who are predominantly men, where they are performing 'like work'. This approach has been further reinforced by Article 4 of Council Directive 97/80/EC on the Burden of Proof. According to the Union the complainants are claiming that they are doing 'like work' with their comparators, that they are paid different rates of pay; that the complainants grade is almost exclusively women while the comparators grade/rank is predominately male; therefore the complainants have established a prima facie case of sex/gender discrimination. The Union says that women comprise 79% of the Clerical Officer grade while men comprise 84% of the Gardai.
8.3 It is the Union's submission that the Burden of Proof Directive copperfastens that which has been established in both the case law of the European and National Courts. The Union says to do otherwise would mean that the complainants could be deprived of any effective means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the employer the burden of proving this his practice is not in fact discriminatory.
8.4 The Union notes that in the ECJ case of Angestelltenbetriebsrat der Wiener Gebietskrankenkasse (hereinafter to be referred to as the Wiener case) there are seven questions of interpretation of community law which were referred as follows:
(1) Do the terms "the same work" and "the same job" apply, for the purposes of Article 119 of the EC Treaty or Directive 75/117/EEC, where the same tasks are performed over a considerable length of time (several salary periods) by persons the basis of whose qualification to exercise their profession is different?
(2) It is material, in deciding whether there is discrimination for the purposes of Article 119 of the EC Treaty or Directive 75/117/EEC, that:
(a) pay is fixed solely by the parties to an employment contract who are at liberty to incorporate therein the terms of collective agreements, or that
(b) minimum rates of pay are fixed for all employees in a given sector by general rules (collective agreements), or that
(c) pay is governed definitively by mandatory collective agreements?
(3) Where a collective agreement specifies, in definitive rules relating to remuneration, different levels of pay for the same work or work of equal value depending on professional qualifications, must reference be made, when selecting groups for comparison in determining whether a measure gives rise to discrimination, to
(a) the persons actually employed in the undertaking, or
(b) the employees working in the field covered by the collective agreement, or
(c) all those who are qualified to pursue the occupation in question?
(4) In such a case (Question 2 and 3), must account be taken of the proportion of men to women in the disadvantaged group only, or in both groups?
(5) Where the tasks under consideration which are the same in both groups are only some of the tasks covered by the professional qualifications in question, must account be taken of
(a) all persons employed in the relevant context (undertakings, collective agreements - see Question 3) who have the professional qualifications in question (all specialist doctors and all psychologists), or
(b) all persons actually entitled to perform the duties in question (e.g. doctors with a specialist qualification in psychiatry), or
(c) only those who actually perform such duties?
(6) Where staff perform the same duties in an undertaking, may different training be regarded as a factor justifying lower pay? Is a broader professional qualification to be regarded as an objective factor justifying different pay, regardless of the duties actually performed in the undertaking? Is the decisive factor therefore
(a) whether the better paid group of employees may also be called upon to perform other tasks within the undertaking, or
(b) must it be shown that they were in fact called upon to perform other tasks?
In this connection, must account be taken of the fact that the applicable rules of the collective agreements include protection against unfair dismissals?
(7) Does it follow from Article 222 of the EC Treaty, or the application by analogy of Article 174 thereof, that any right to pay under another collective agreement (between the same parties) which may be inferred from Article 119 of the EC Treaty or Directive 75/117/EEC only arises when the Court of Justice rules that such a right exists?
8.5 The Union notes that the Court only addressed the first question which was the question of 'same work' and because it found that 'same work' did not apply in that particular case, it did not redress the other questions. It is the Union's submission that the findings of the ECJ in Wiener relate to the issue of 'same work' and has been dealt with by the Union in its submission on 'like work' at paragraphs 5.3 to 5.5 above. Rather the Union wishes to address the issue of qualifications and training as raised in the Wiener case in the context of 'objective justification'.
8.6 The facts in Wiener are that both the claimants and the comparators were employed as psychotherapists. The claimants, mainly women, had professional qualifications as psychologists while the comparators, mainly men were fully qualified Doctors employed as psychotherapists. The comparators were paid up to 50% more than the claimants. The Union says that it appears from the information contained in the order for reference, that the doctors employed as psychotherapists were in fact doing additional work to the Psychologists employed as psychotherapists. The Union cites paragraph 21 of the judgement in which the ECJ states:
"In those circumstances, two groups of persons who have received different professional training and who, because of the different scope of the qualifications resulting from that training, on the basis of which they were recruited, are called on to perform different tasks or duties, cannot be regarded as being in a comparable situation."
8.7 The Union states that the facts of this case are very different to the circumstances of the Wiener case. It is accepted that when Gardai are recruited they are trained in Templemore and once trained they are assigned to normal policing duties and are paid the appropriate rate of pay. However the Union says that the comparators were not carrying out the normal policing duties which they had been recruited and trained to do but were assigned to Clerical 'designated posts' and their training had no relevance to the carrying out of these duties. It is the Union's submission that Gardai assigned to Clerical 'designated posts' were required to do a clerical test before assignment to such a post. Hence the Union says that the skills necessary for carrying out the clerical functions were determined for the comparators by the clerical test and a similar test was required of the complainants who had to reach a certain standard of test conducted by the Civil Service Commission. It is the Union's contention that the comparison in this case is not between the training completed by the comparators for the duties they were recruited to do i.e. normal policing duties, but rather the correct comparison is between the comparators and complainants who were both required to pass "clerical" tests to establish their suitability to do 'clerical work', not police work. According to the Union in this case the issue is not the training and qualifications necessary to carry out police duties but rather the skills, training and qualifications necessary to carry out the clerical duties. The Union notes that the issue is clearly addressed in paragraph 18 of Wiener which refers to the same training or professional qualifications for the practice of their profession as follows:
"Thus, where seemingly identical tasks are performed by different groups of persons who do not have the same training or professional qualifications for the practice of their professions, it is necessary to ascertain whether, taking into account the nature of the tasks that may be assigned to each group respectively, the training requirements for performance of those tasks and the working conditions under which they are performed, the different groups in fact do the same work within the meaning of Article 119 of the Treaty."
8.8 The Union notes that this issue of 'training' was also addressed in Danfoss where it is stated at paragraph 25(ii)
"the employer may justify recourse to the criterion of training by showing that such training is of importance for the performance of the specific tasks which are entrusted to the employee"
The Union says that the ECJ in Wiener draws attention to the Danfoss case and also to the case of Royal Copenhagen where it states:
"In order to determine whether the work being done by different persons is the same, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those person can be considered to be in a comparable situation".
In summary, therefore, the Union argues that the burden of proof is on the employer to show that the training completed by the comparators is necessary for the performance of the specific clerical tasks they have been assigned to in the designated clerical posts.
8.9 The Union states that the relevant provisions of the Employment Equality Act, 1998 concerning objective justification (Sections 19(5) and 22(1)(b)) encapsulates the case law of the European Court most notably in the recent cases of Bilka-Kaufhaus , Enderby and Hill and Stapleton . It is the Union's submission that the 'Bilka' test can be summarised as requiring the employer to show:
(a) there is a stated objective of the employer
(b) that the means chosen for that objective
(c) correspond to a real need on the part of the undertaking and
(d) are appropriate to achieving the objective and
(e) are necessary to that end.
The Union notes that the Burden of Proof Directive in article 2 is now the operative yardstick to be applied.
8.10 The Union summarises the respondent's case as follows:
(a) Persons recruited as Gardai receive the appropriate training and are deployed on 'normal' Garda duties;
(b) both the complainants and the comparators have separate industrial relations machinery which determines pay and conditions;
(c) there is no pay discrimination as between men and women in the Garda pay scales i.e. the comparator scale;
(d) the comparators can be required to carry out all Garda functions;
(e) the comparators have now been transferred.
The Union submits that the respondent does not address the requirements for objective justification of a discriminatory pay practice as set down by the Burden of Proof Directive and the Bilka ECJ test. According to the Union the respondent has failed to state:
(a) what is the 'stated objective' of the respondent in paying the complainants and the comparators different rates of pay where both are performing 'like work' as claimed?
(b) what were the 'means' chosen by the respondent to meet that stated objective?
(c) what was the 'real need' for the pay disparity on the part of the respondent?
(d) were the means chosen 'appropriate' to achieving that objective? and
(e) were the means 'necessary'?
8.11 In terms of the roles performed by Gardai the Union states that it has no argument with the fact that Gardai are recruited and trained to do "normal" policing duties and they are paid the appropriate pay rate for "normal" policing duties. It is the Union's submission that this is not the issue here as the argument is not being made that the complainants are performing 'like work' or 'work of equal value' to the duties carried out by a Garda doing his/her "normal" policing duties. According to the Union the complainants are alleging that the comparators are not doing "normal" policing duties but were performing clerical/administrative duties i.e. doing 'like work' with the complainants and that they retained their Garda pay and, in addition, were awarded a designated and 'plain clothes' allowance i.e. an allowance paid to Gardai who do not wear their uniform when performing clerical/ administrative duties. Because comparators retained their Garda pay they received higher rates of pay than the complainants who were paid as Clerical Officers at the time. The Union notes that the respondent has never stated why the comparators were assigned to these duties i.e. duties that are not "normal" policing duties and which are duties that are also performed by the complainants. It is the Union's submission that the High Court case of the Minister for Transport v Campbell and the subsequent Labour Court Determination are very relevant to the current claims. Having regard to the findings in these Decisions the Union submits that:
(a) the respondent has not stated the reason for the assignment of the comparators to clerical duties and the reason for their retention of higher pay appropriate to the grade of Garda;
(b) the respondent has not claimed these posts as "red circled" posts;
(c) there is no agreement, transparent to all; which defines the circumstances of their assignment to clerical duties.
8.12 The Union notes that the respondent's argument that, because Garda pay is determined by an entirely separate Conciliation and Arbitration mechanism to that of the complainants that this is a complete defence to the complainants' cases, has been dealt with by both Irish and European case law. In the High Court case of Susan Flynn and Others v Primark (trading as Pennys Ltd) Mr. Justice Barron stated:
"The fact that the different rates of pay have been achieved by different industrial routes does not per se objectively justify the practice. The onus on the employer is not discharged by this circumstance alone".
The Union notes that the issue was also addressed by the European Court in Enderby when in its judgement it states as follows:
"... the fact that the respective rates of two jobs of equal value, one carried out almost exclusively by women and the other predominately by men, were arrived at by collective bargaining processes, which are distinct and, taken separately, have in themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between these two jobs".
8.13 The Union denies that it have ever alleged that there is pay discrimination within the Garda pay scale as between men and women and notes that if there was this would be direct sex discrimination.
8.14 The Union notes that the respondent, in its submission, has stated that even if the complainants and the comparators were performing the 'same work' at the time these proceedings commenced, that the comparators can be required to carry out some or all of the duties, referring presumably to "normal" policing duties. According to the Union it accepts that when Gardai are recruited and trained they are assigned to "normal" policing duties. In these claims what is at issue is the fact that Gardai who are "assigned" to clerical duties like finance, security clearance and general office duties, continue to be paid as Gardai and are doing the same work as Clerical Officers who are paid less. The Union disputes that the named comparators were ever assigned to other duties after being assigned to the clerical duties. It is the Union's contention that if the respondent is using this as a defence, then they need to state the other Garda duties they were assigned to and when these assignments took place. According to the Union the respondent needs to answer the following questions:
1. Were the Garda comparators occupying "designated" administrative posts of which there are 258 and are posts which under the Garda Code are posts that the occupant remains in unless they are promoted or they themselves opt to leave them?
2. Were the Garda comparators occupying "ex-gratia" posts, the exact number of these posts is unknown?
3. Were the Garda comparators occupying administrative posts of which there are over 300?
4. What were/are the criteria for the assignment of Gardai to these posts whether "designated", ex-gratia or administrative?
5. What were/are the conditions attaching to each of the categories of administrative posts i.e. designated, ex-gratia and administrative?
8.15 The Union says that the careers of the Garda assignees to clerical posts i.e. the comparators confirms its position that comparators assigned to clerical posts retain these posts unless promoted or retired or transferred at their own request. According to the Union "designated clerical posts" (of which there are 258 such posts) are provided for at Chapter 12 of the Garda Code which provides as follows:
Paragraph 12.1:
Civilian and Garda Posts
The various clerical posts are designated between posts that should continue to be filled by members of the Garda Síochána and those that could be civilianised.
Paragraph 12.2:
Nomination of Gardai to Designated Posts
Garda Personnel who are to fill designated posts will be so nominated by District Divisional or Area Officers or by Departmental Heads in so far as their respective offices are concerned.
Paragraph 12.3:
Transfer of Designated Personnel
Persons so nominated to designated posts will not be required to opt. They will be paid the specific allowances for as long as they continue to occupy a designated post. Like other members of the Force they will not in the future be prohibited (if they so desire) from applying for a transfer to another section of the service.
Paragraph 12.4:
Civilianised Posts
Garda Personnel currently working on clerical type duties and who are not nominated to designated posts will be deemed to be occupying civilianised posts. Such members with the exception of those who are so employed as a result of a medical recommendation - will not be paid the specified allowances. Those who opt to go out will be transferred to outdoor duties as soon as civilian clerical assistants become available. Until such time the latter members will be paid an ex-gratia lump sum to be paid at the end of every six month period for the whole or any part of that period as the case may be.
The Union states that (as set out in the Gard\a Code) Gardai being assigned to "designated clerical posts" were required to do a special clerical examination comprising syllabuses namely Typewriting, Précis and Exam on Garda Code. It is the Union's contention that Gardai assigned to such "designated clerical posts" can only be removed from such posts either through promotion to higher posts, retirement or transfer at their own request.
8.16 In relation to the comparators named in these claims the respondent is stating as follows:
Ms. P. Quinn (complainant) and Garda McDonnell (comparator)
Garda McDonnell was assigned to a "designated clerical post" in Monaghan in 1989. He was promoted to Sergeant in June, 2002 and on promotion to higher grade, was moved. His designated post has been filled by Garda Darren Mullen since June, 2002. He holds a "designated clerical post".
Ms. M. Kenny (complainant) and Garda Fitzgerald (comparator)
Garda O'Rourke occupied a "designated clerical post" in Gorey in 1987. Garda Fitzgerald was transferred to a clerical post (not designated) in the District Office in Gorey on 28th September, 1987. He and the complainant both performed the "finance" clerical function in Gorey. Garda O'Rourke was promoted to Sergeant in November, 1994 and Garda Fitzgerald was then assigned from 22nd November, 1994 to the "designated clerical post". He was promoted to sergeant in May, 2000. His "designated post" has now been filled by Garda Laffan and it remains a "designed clerical post".
Ms. E. Norton (complainant) and Garda Walsh (comparator)
Garda Walsh was assigned to a "designated clerical post" in 1980, a post he retained until his retirement. Garda Walsh has now been replaced by Garda McLoughlin in a "designated clerical post".
Ms. U. Ennis (complainant) and Garda Conway (comparator)
Garda Conway held the "designated clerical post" in Wexford for over 20 years until his retirement in August, 1996. There were two "designated clerical posts" in Wexford.
On Garda Conway's retirement in August, 1996 the complainant Ms. Ennis was assigned to his clerical duties. Another Clerical Officer took over the complainant's duties.
The Finance clerical function in Wexford was always performed by Gardai. In 2000 the complainant was moved to this function replacing Gardai and in turn the complainant was replaced by Garda Tony Connolly who occupied the clerical post for four years before the post was filled by another Garda (Garda Buttle).
Ms. N. Condon (complainant) and Garda Murphy (comparator)
Garda Michael Murphy occupied a "designated clerical post" in Dungarvan. There were two "designated clerical posts" in Dungarvan staffed by Garda Walsh and Garda Murphy, both of whom performed the clerical Finance function. When Garda Walsh took up Detective duties, Ms. Condon was then given responsibility for finance duties along with Garda Murphy. Garda Murphy has since taken up duty in Cappaquin at his own request. He was replaced by Garda Duggan.
Ms. L. Barrett, Ms. J. Healy, Ms. K. Coyne (complainants) and Detectives Garda Sheehan and Kampff (comparators)
Both comparators Detective Garda Sheeran and Kampff were assigned to "designated clerical posts" in 1999. They transferred at their own request and have been replaced. Detective Garda Kampff was replaced by Garda Leonard who in turn has been replaced by Garda Brophy. Detective Garda Sheeran was replaced by Garda Roe.
8.17 It is the Union's conclusion that the complainants have shown there is a 'prima facie' case of gender discrimination in that the complainants, who are part of an almost exclusive female grade, are doing 'like work' with comparators who are in a predominately male grade and who are paid higher than the complainants. The Union says that the comparators are not doing "normal" policing duties as defined by the respondent in its submission but have been assigned under the Garda Code to "designated clerical posts". Such assignments are permanent under the Garda is promoted, retires or seeks to transfer as set out in the Garda Code. According to the Union EU law demands that where complainants and comparators are doing 'like work' the burden of proof shifts to the respondent to "objectively justify" the legitimate aim of the respondent and that the means chosen to achieve that aim are appropriate and necessary. The Union notes that the five part "Bilka Test" is the standard required by European law. It is the Union's contention that the respondent has not addressed the requirements under EU law and the Employment Equality Act, 1998 on objective justification.
9. SUMMARY OF RESPONDENT'S RESPONSE TO UNION'S SUBMISSION ABOVE
9.1 Insofar as work inspections have been carried out by the Equality Officer it is accepted that the question of like work, insofar as it can be addressed by reference to the factual nature of the tasks performed by the complainants and their comparators, is a mixed question of fact and law to be decided by the Equality Officer. It is the respondent's submission that focusing on the actual nature of the duties performed by the parties is unnecessary and misleading in the context of these proceedings.
9.2 The respondent notes that it has been accepted by the Union that persons holding the rank of Garda and Sergeant in An Garda Siochána can be and are required to carry out a range of functions and duties which undoubtedly provide justification remunerating them according to a different scale than the complainants in this case. The respondent states that the complainant's case hinges upon the proposition that once any Garda is required to carry out, even if only for a short period, the same work as a Clerical Officer then the Clerical Officer is entitled to the same remuneration as him or her. According to the respondent the complainants accept that the justification for the difference in pay is warranted provided that Gardai are carrying out the balance of their duties.
9.3 The respondent does not accept the statement by the Union that the comparators:
"are recruited as Gardai to perform normal policing duties but assigned by way of application and clerical test to clerical/ administrative work, which they retain unless promoted or retire by personal choice".
An Garda Siochána is a disciplined force and members can be assigned to duties by the Commissioner as he sees fit. This is reflected in the fact that there is an appeals mechanism for members dissatisfied with decisions to transfer or assign them to other duties.
9.4 The respondent says that the response by the Union to the ECJ decision in Wiener is bizarre noting its regret that the ECJ did not go on to consider two other questions posed by the national court and asking therefore if the decisive factor is:
(a) whether the better paid group of employees may also be called upon to perform other tasks within the undertaking, or
(b) must be shown that they were in fact called upon to perform other tasks.
It is the respondent's submission that this statement entirely misses the point of the decision i.e. that in an appropriate case it is not appropriate or necessary to examine whether or not the comparator is asked to perform other tasks. To suggest, as the Union appears to do, that the ECJ failed to address the above issue by reason of an oversight is, the respondent says, extraordinary. The respondent notes that the Union goes on to suggest that the Equality Officer should ignore the above decision and instead follow a series of decisions of the Labour Court, which do not in truth address the same issues as these proceedings and in any event which do not deal with the Wiener case. The respondent asks that this submission should equally be rejected.
9.5 According to the respondent the balance of the Union's response demonstrates the fundamental flaw in its reasoning:
"Thus it is clear that in this case we are not talking about the training and qualifications necessary for the carrying out of normal policing duties, which the comparators were recruited to perform but don't, but rather we are talking about the skills, training and qualifications necessary for the performance of clerical/ administrative functions. This issue is clearly addressed in paragraph 18 of the Wiener judgement where they refer to the same training or professional qualifications for the practice of their profession".
The respondent says that this submission fails to appreciate that the difference in pay is directly and exclusively referable to the skills, training and qualifications of the comparators and that in wearing their uniform and submitting to the rules of An Garda Siochána and the requirement to carry out other duties, the comparators are practising their profession. The respondent says that the reason why the comparators are paid more is because they have the training and qualifications necessary for the carrying out of normal policing duties, which they have performed and can be required to perform and that those training and qualifications equally inform their work as District Clerks or otherwise. It is submitted by the respondent that the comparators in these proceedings fall squarely within the ratio of the Wiener case. Members of An Garda Siochána who are for the time being assigned to clerical positions hold those positions on foot of their training as Gardai and in exercising their duties in those positions they draw upon their experience and that training. They could at any time be called upon to perform other duties which the complainants do not have the expertise to perform. The respondent contends that the Union simply has not addressed this fundamental explanation for the difference in pay and makes no submissions which deal with the question of why being a member of An Garda Siochána cannot explain the difference in pay on objective grounds.
9.6 In conclusion the respondent submits that the difference in pay in these proceedings is entirely within the type of justification that has been accepted by competent Tribunals in both this jurisdiction and in Europe. The reason for the greater level of pay is, it has been accepted, justified by the work carried out by Gardai. According to the respondent it is entirely legitimate and appropriate for the State to decide to develop a disciplined force with a rank structure where members are required to perform a range of duties. It is similarly legitimate for the State to decide that certain duties in Garda stations will be carried out by uniformed members of An Garda Siochána. This is an administrative and resource requirement of the respondent and the use of uniformed Gardai to meet that requirement is appropriate and proportionate as required by the decision in Bilka-Kaufhaus . In truth the respondent contends that the Union's real complaint is an industrial relations complaint about that administrative decision which of itself shows that the difference of treatment is unrelated to gender.
10. SUMMARY OF UNION'S SUBMISSION ON TIME LIMITS
10.1 The Union contends that where there is no time limit for the bringing of an equal pay claim under the Employment Equality Act, 1998-2004 then the ordinary time limit for a claim for a breach of contract of 6 years should apply. On this basis the Union argues that an individual who believes they have not received equal pay is entitled to bring a claim for up to 6 years from the date of the breach giving rise to their claim.
10.2 In relation to relevant time the Union asserts that the express statutory definition of relevant time relates to the period of time during which the comparator was employed to do like work by the same or an associated employer as the complainant. This, the Union says, is supported by the fact that the definition of 'relevant time' applies not just to the three years preceding the particular time but also to the three years which follow the particular time. Thus a complainant can point to a comparator having done like work to them in the past and can also point to a comparator having done like work to them at a time subsequent to the lodging of their claim.
10.3 The Union notes that the Statute of Limitations provides for a time limit of 6 years in equal pay cases as a breach of contract law. Accordingly the Union states that there is no inconsistency in the six years time limit and the reference to three years in Section 19(2) of the Employment Equality Acts, 1998-2004 where the reference to the three years is specifically in the context of the period of time during which a complainant is entitled to argue the existence of like work. The Union contends that this does not impact on the time limit applicable to the claim i.e. that they can bring a claim for equal pay arising from any breach of their statutory entitlement to equal pay during the six years preceding the date on which the claim is lodged.
10.4 By way of example the Union states that a complainant has been in employment for twenty years and for fifteen of those years she believes that she has been doing like work with a male colleague who was always paid more than her. Then in July, 2000 the complainant lodges a claim for equal pay. While she has been receiving unequal pay for fifteen years she can only to back to July, 1994 in her claim i.e. six years from the date on which she lodged her claim. In order to establish that she has been receiving unequal pay throughout that six years, the Union says that she must establish that she has been employed to do like work as her male colleagues "at that or any other relevant time". Because of the definition of relevant time in Section 19(2) of the Employment Equality Acts, 1998-2004 the Union submits that the complainant would be entitled to go back to July, 1991 in establishing evidence of the like work being performed by her comparator. Furthermore if the case came for hearing in July, 2004 the complainant would be entitled to point to what had occurred between July, 2000 and July, 2003 in establishing further evidence that may be required of the like work that her male comparator was doing in order to make her case.
10.5 The Union does not accept that the Section 82(1)(a) of the Employment Equality Acts, 1998-2004 places a limit on the retrospection to be paid where a finding is made in favour of the complainant and that retrospection is limited to three years prior to the referral of the claim. According to the Union Section 82(1)(a) acknowledges that unequal pay may have existed for a period greater than the three years provided when it states:
"an order for compensation ... in respect of so much of the period of employment as begins not more than 3 years before the date of the referral".
It is the Union's submission that this is borne out in the Labour Court Determination in the case of Department of Finance v CPSU in which it is ruled that:
"The claimants were discriminated against within the meaning of Section 2 of the Anti-Discrimination (Pay) Act, 1974. To ensure equality, each complainant should be treated as having been on the same scale as a Paperkeeper from the date on which they entered employment - with the proviso under Section 8(5) of the Act that any arrears of remuneration be limited to the three years prior to the date of bringing the claim".
10.6 The Union states that the obligations of a National Court of a Member State in interpreting EU law was as set out by the European Court of Justice in the Marleasing case (see extract at paragraph 5.1 above). This principle was, according to the Union, applied by the Supreme Court in the case of Telecom Eireann v O'Grady (see extract at paragraph 5.1 above). The Union notes that while the European Court of Justice has not specifically addressed the issue of 'time limit' in referring an equal pay claim it has provided some useful guidelines on the 'principles' to be applied when it addressed the issue of 'time limits' in relation to 'retrospection' in the Levez case and access to the pension scheme in the Preston case. It is the Union's submission that the European Court of Justice asserts that procedural rules must comply with the principle of equivalence and the principle of effectiveness. In paragraph 37 of the Levez case the Court states:
"It is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from community law, provided, however, that such rules are not less favourable than those governing similar domestic actions".
Similarly, the Court in Preston at paragraph 31 states that procedural rules:
"designed to ensure that protection of the rights which individuals acquire through, the direct effect of community law provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render impossible in practice the exercise of rights conferred by community law(principle of effectiveness)".
10.7 Under domestic law the six months time limit does not apply to equal pay cases. Hence the Union argues that guidance as to the appropriate time limit to be applied must be sought from other than domestic law to fully comply with the directions of the European Court of Justice in particular in Levez and Preston cases. According to the Union the Statute of Limitations Act, 1957 is the 'equivalent' domestic law to be applied to time limits in relation to equal pay and therefore suggests it is reasonable to apply the six years time limit where an equal remuneration clause is breached. In this regard the Union cites the Equality Officer Decision in Ms. Brady & 12 Others and Ms. McGivern v TSB ESOP Trustees, Irish Life and Permanent plc, Mandate, ATGWU and SIPTU in which the Equality Officer asserts that:
"the most reasonable course in the interests of legal certainty would be to analogously apply the six-years time limit where an equal remuneration clause is breached".
The Union concurs with this view as being in line with both national and European case law in relation to the 'principle of equivalence'. The Union would also concur with the note in Appendix B of this Decision (TSB) in relation to Tribunals' working assumption that a six-year time limit applies, in accordance with general contract law, since the entitlement to equal pay is implied with the contract of employment under the 1998 Act.
11. CONCLUSIONS OF THE EQUALITY OFFICER
11.1 The issue for decision in these claims is whether or not the complainants performed 'like work' with the named comparators within the meaning of Section 7 of the Employment Equality Act, 1998. A list of complainants and named male comparators is set out in Appendix A. It will then be necessary to look at the issue of 'grounds other then gender' for the difference in pay between the complainants and the named male comparators in accordance with Section 19(5) of the 1998 Act. In making my decision in these claims I have taken into account all of the submissions, both oral and written, which I have received from the parties.
11.2 The Union referred claims for equal pay by eight complainants on the grounds of gender on 21st July, 2000. Work inspections were undertaken on five of these eight complainants and all, but one, of their named male comparators and associated Equality Officer's job descriptions are attached to this Decision at Appendix B. The Union referred further equal pay claims on the grounds of gender on 14th July, 2005 in which it named a further six complainants. Work inspections were undertaken on three of these named complainants and one of the two named male comparators and associated Equality Officer's job descriptions are attached at Appendix C.
Time Limits
11.3 In addressing the issue of 'like work' the first issue to be decided on is that of time limits in accordance with Section 77(5) of the Employment Equality Act, 1998. It is the Union's contention (see Section 10 above) that where there is no time limit for the bringing of an equal pay claim, then the ordinary time limit for a breach of contract of 6 years would apply. In relation to 'relevant time' under Section 19(2) of the 1998 Act the Union submits that it relates to the period of time during which the comparator was employed to do 'like work' by the same or an associated employer as the complainant. At paragraph 10.4 above the Union has set out by way of example its interpretation of time limits in conjunction with the provisions of Section 19 of the Employment Equality Act, 1998. In essence it is the Union's contention that a complainant can refer a claim for equal pay for 9 years from the date of the referral of such a claim. The respondent made no argument in relation to the time limit issue.
11.4 There is no time limit in equal pay claims referred under the Employment Equality Act, 1998. This issue has been dealt with in great detail in the Equality Officer's Decision in Ms. Brady & 12 Others and Ms. McGivern v TSB ESOP Trustees Ltd, Irish Life and Permanent plc, Mandate, ATGWU and SIPTU which was upheld by the Labour Court . Also in that Equality Officer Decision at paragraph 5.11 the Equality Officer held that:
"If it is accepted that Section 77(5) of the 1998 Act does not apply then the most reasonable course in the interests of legal certainty would be to analogously apply the six-year time limit where an equal remuneration clause is breached".
In that case the issue of 'like work' was not in dispute as it is in this case. Section 7 of the Employment Equality Act, 1998 sets out what is meant by the term 'like work' and Section 19 of the Act provides for the entitlement to equal pay as follows:
"(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
(2) In this section -
(a) "employed" includes ...
(b) in relation to a particular time, a relevant time is any time (including a time before the commencement of this Act) during the 3 years which precede, or the 3 years which follow, the particular time."
It is clear that the phrase 'any other relevant time' refers to the dates during which the comparator, not the complainant, is employed. The Act, therefore, provides that a comparison for equal pay may be made with a comparator who was employed before the Act came into force. The purpose of the provision is to allow for a non-contemporaneous comparator as required by the European Community law following the McCarthy Ltd v Smith judgement. The issue to be determined is what is meant by the reference to a 'particular time'.
11.5 I note the Union's view that a complainant has 6 years in which to bring a claim for equal pay and then can go back a further 3 years to show that he/she has been employed to do 'like work' with a named comparator. The 1998 Act does not clearly specify what is meant by 'particular time'. In the absence of clarity it is for me to determine what is the most reasonable and logical interpretation of this. To accept the Union's view would mean that an employer could be subjected to claims for equal pay going back some nine years. This I consider to be unreasonable and impracticable for an employer and for persons (e.g. Equality Officers and the Labour Court) to conduct an investigation of the work performed by complainants and comparators for a period up to 9 years earlier. Rather it is my view that 'the particular time' can only mean the date that the claim was referred, in this case 21st July, 2000. Adopting this interpretation then a complainant can compare him/herself with a named comparator for a period up to three years prior to the referral of the claim for equal pay.
Claims referred on 21st July, 2000
11.6 In relation to the issue of 'like work' as set out in Section 7 of the Employment Equality Act, 1998 I note that the first referral by the Union was made on 21st July, 2000 and between that time and 28th January, 2004 the parties were endeavouring to negotiate a settlement in these claims. These negotiations failed and the Union asked that the investigation of these claims proceed. I consider it important to note that, from the perspective of investigating these claims in terms of 'like work', it proved difficult, in some instances, to carry out that examination as I was looking at the work performed by the complainants and the named comparators as at the date of the claim i.e. 21st July, 2000 and some of these people had moved on from these positions (given the time lapse between the bringing of these claims and their investigation).
11.7 It is the Union's contention that the complainants performed 'like work' with the named male comparators in terms of Section 7(a) and Section 7(b) of the Employment Equality Act, 1998. According to the Union the claims were not made on the basis of Section 7(c) of the 1998 Act - 'work of equal value'. In the claim brought by Ms. Kenny (see Appendix B - Job Descriptions 1) the complainant performed the finance function in Gorey Garda Station from 1977 to the date of the referral of the claim while the named comparator held the position of District Clerk in Gorey Garda Station during that same period. Of this claim the Union stated that if it had been arguing 'work of equal value' it could have named some 98 other comparators in this regard. I am satisfied that it is clear that the functions carried out by the complainant and the named comparator in this particular claim were not the same or similar in accordance with Section 7(a) and 7(b) of the Employment Equality Act, 1998. Rather this claim needs to be examined in terms of Section 7(c) of the 1998 Act. It is irrelevant that the Union could have named some 98 other comparators if it had intended to argue 'work of equal value'. It is for me to investigate this claim on the basis of the comparator named. I note that it is the Union's contention that I am required to look at the work of the complainant and the named comparator over a six year period. The Union noted that, prior to 1997, Ms. Kenny performed the same and similar duties to that named comparator and that they were both interchangeable in their functions. On this basis the Union argued that this claim was correctly brought under Section 7(a) and 7(b) of the Employment Equality Act, 1998.
11.8 In all claims for equal pay it is standard practice to examine the work of the complainant and the named comparator as at the date of the referral of the claim. This was the approach of both Equality Officers and the Labour Court under the Anti-Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1998. The Union has argued that under the Statutes of Limitations a complainant has six years in which to bring a claim for redress of an alleged incident. According to the Union I am bound by the Statute of Limitations and, therefore, should be examining the work of the complainant (Ms. Kenny) and the named comparator over the six years prior to the referral of this claim i.e. from July, 1994 to July, 2000 as opposed to the three year period from July, 1997 to July, 2000. I have dealt with this issue at paragraphs 11.4 and 11.5 above and in the light of my finding there I am satisfied that this claim must be examined in terms of Section 7(c) of the 1998 Act.
11.9 Taking each of the claims referred by the Union in July, 2000 I am making the following findings:
Claim by Ms. Kenny, Gorey Garda Station - (see Job Descriptions 1 under Appendix B)
I am satisfied, for the reasons stated above, that the complainant and the named comparator performed distinct jobs which were not interchangeable in the three year period up to the referral of the claim in July, 2000. In these circumstances I examined the work of the complainant and the named comparator in terms of Section 7(c) of the Employment Equality Act, 1998 - work of equal value (see Analysis after Job Descriptions 1 in Appendix B) and I find that the work of the complainant was equal in value to the work performed by the named comparator.
Claim by Ms. Quinn, Carrickmacross Garda Station - (see Job Descriptions 2 under Appendix B)
In this claim the complainant held the position of Clerical Officer in Carrickmacross Garda Station while the named comparator held the position of Assistant District Clerk in Monaghan Garda Station. I note that there were more Members in the Monaghan as opposed to the Carrickmacross District. Despite this I am satisfied that the work performed by this complainant and the named comparator was similar in terms of Section 7(b) of the Employment Equality Act, 1998 and any differences between the work performed or the conditions under which it was performed were of small importance in relation to the work as a whole.
Claim by Ms. Condon, Dungarvan Garda Station - (see Job Descriptions 3 under Appendix B)
It is very clear from the complainant's job description and the comments made by the named comparator in this claim that they both performed the same work in terms of Section 7(a) of the 1998 Act. However I note that the named comparator did perform other duties which were not performed by the complainant. These were once-off i.e. uniform duties for the Tour de France in 1998 and dealing with one Child Pornography case in 1999/2000. In these circumstances I find that the work performed by this complainant was similar to that performed by the named comparator in terms of Section 7(b) of the 1998 Act and any differences occurred with such irregularity as not to be significant to the work as a whole.
Claim by Ms. Norton, Santry Garda Station - (see Job Descriptions 4 under Appendix B)
Having examined the work of this complainant and named comparator I am satisfied that they performed 'like work' with each other in terms of Section 7(a) of the 1998 Act. It would also fair to say that the complainant carried out a wider range of duties to the named comparator.
Claim by Ms. Barrett, Ms. Healy and Ms. Coyne - (see Job Descriptions 5 under Appendix B)
With the agreement of the parties I undertook work inspections of the work performed by Ms. Barrett on behalf of the complainants and of the work performed by Detective Garda Sheeran on behalf of the named comparators. This proved a difficult work inspection as the complainant (Ms. Barrett) had left the area of the GCRO in 1998. The complainant's job description is an extract of the Union's job description where the complainant went through the Union's job description which set out current structures and she identified those areas where she had performed functions. The named comparator left the area in October, 2002 and having spoken with him about his job and the work being performed by the complainants I am satisfied that the complainants performed 'like work' with the named comparators in accordance with Section 7(a) of the 1998 Act.
Claim by Ms. Ennis
This complainant is based in Wexford Garda Station. She alleges that she took over the position vacated by the named comparator and that over the years she has performed 'like work' with him. The named comparator retired on 18th August, 1996 and the complainant referred her claim on 21st July, 2000. On the basis of my interpretation of Section 19 of the 1998 Act (see paragraphs 11.4 and 11.5 above) I find that this claim is not validly before me as the named comparator had retired almost four years before this claim was referred.
Claims referred on 14th July, 2005
11.10 The Union referred further claims under the Employment Equality Act, 1998 and 2004. By letter dated 15th March, 2005 the Union listed a further six complainants and these claims were assigned to me for investigation and decision on 18th March, 2005. No comparators had been named in these claims and I wrote to the Union in this regard on 24th May, 2005. It was not until July, 2005 that the Union confirmed the names of the named comparators in these claims. Hence the date of referral of these claims to the Equality Tribunal was 14th July, 2005.
11.11 The complainants in these claims worked in the area of the GCRO and the GCVU in Garda Headquarters as follows:
GCRO:
Ms. A. Fitzsimons - from February, 2002 to 5th September, 2005
Ms. B. A. Fitzpatrick - from 2nd October, 2000 to-date
Ms. S. Fitzpatrick - from 24th April, 1994 to-date
GCVU: (set up in January, 2002)
Ms. H. Gately - from 29th April, 2002 to-date
Ms. S. Hennelly - from 17th September, 2001 to-date (in GCRO pre 2002)
Ms. S. Troy - from 4th September, 2004 to-date
The named comparators worked in these areas as follows:
Detective Garda Sheeran - from 4th March, 1999 to 31st October, 2002
Detective Garda Kampff - from 18th March, 1999 to 27th June, 2000
Section 19(1) of the Employment Equality Act, 1998 provides:
"It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer".
Section 19(2) of the Employment Equality Act, 1998 as amended by the Employment Equality Act, 2004 provides:
"It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer".
As stated above (see paragraphs 11.4 and 11.5) the complainants can compare themselves with the named comparators if the named comparators allegedly undertook 'like work' in terms of Section 7 of the 1998 and 2004 Acts in the three years prior to the referral of these claims. The claims were referred on 14th July, 2005. In these circumstances the complainants cannot make equal pay claims with the second named comparator (namely Detective Garda Kampff) as he had left the GCRO by 27th June, 2000 some five years before these claims were referred.
11.12 In relation to the first named comparator (Detective Garda Sheeran) I note that he worked in the area of the GCRO from March, 1999 to December, 2001. Then from January, 2002 to October, 2002 he was assigned to the GCVU. In reality he undertook work related to the GCRO and the GCVU during the period he was assigned to the GCVU (i.e. January to October, 2002). On this basis I am satisfied that each of the six named complainants (who worked in the GCRO/GCVU areas between July, 2002 and July, 2005) can validly make an equal pay claim with this named comparator. In relation to my work inspections I spoke with three of the six named complainants (one of whom worked in the GCRO and the two others in the GCVU) in relation to the work they undertook at the time of the referral of their claims. It was accepted by the parties that the work performed by the complainants Ms. A. Fitzsimons and Ms. B. A. Fitzpatrick in the GCRO was the same as that performed by Ms. S. Fitzpatrick. Furthermore both parties to this claim accepted that the work performed by the complainant Ms. Gately in the GCVU was the same as that performed by Ms. Hennelly. Job Descriptions for the complainants and named comparator are set out in Appendix C. It should be noted that the descriptions of the jobs performed by the complainants were much more detailed than that provided by the named comparator and I am conscious that the named comparator was endeavouring to recall the work he undertook many years previous and in relation to the GCVU work for a relatively short period of time (January to October, 2002) when the Unit was establishing itself. As a consequence of this the complainants were better able to quantify their workloads.
11.13 From my examination of the jobs of the complainants (based in the GCRO) and the named comparator I am satisfied that the work the complainants undertook at the time of their claims was not the same or similar in terms of Sections 7(a) and (b) of the 1998 and 2004 Acts as that which has been performed by the named comparator. Furthermore I find that they did not perform work of equal value to the named comparator in terms of Section 7(c) of the 1998 and 2004 Acts (see Analysis at Appendix C). From my examination of the work of the complainants (based in the GCVU) and the named comparator I am satisfied that the work undertaken by the complainants at the time of their claims was not the same or similar in terms of Sections 7(a) and 7(b) of the 1998 and 2004 Acts as that which had been performed by the named comparator. I further find that they did not perform work of equal value to the named comparator in terms of Section 7(c) of the 1998 and 2004 Acts (see Analysis in Appendix C). In these circumstances the complainants have failed in their claims for equal pay with the named comparator. I note that the Union has submitted that the complainants previously undertook tasks which were undertaken by the named comparator but that they were not performing these tasks (e.g. inputting of conviction details on the PULSE Computer System and the signing of letters in the absence of the Sergeant) at the time the claims were referred. As I have stated previously both Equality Officers and the Labour Court examine the actual work undertaken at the date of the referral or in the case of this named comparator the date he left the area.
Grounds other than Gender
11.14 The issue of 'grounds other than gender' only needs to be examined in the context of those claims referred on 21st July, 2000 where complainants have been found to perform 'like work' with the named male comparators. The issue of 'grounds other than gender' does not need to be addressed in the context of the claims referred on 14th July, 2005 where it has already been held that these complainants did not perform 'like work' with the named comparator.
11.15 It is the Union's submission that (based on statistics) it has established a 'prima facie' case of discrimination. The respondent provided me with the following statistics and these were not disputed by the Union:
An Garda Siochána:
For 21st July, 2000
Numbers Employed in Male Female Total
An Garda Siochána 10,204 1,321 11,525
Numbers of Gardai
occupying Designated Posts 279 74 353
Clerical Officer Posts:
As at 30th June, 2000 Male Female Total
Clerical Officers
in the Civil Service 2,312 9,245 11,557
Clerical Officers in the
Department of Justice, Equality
and Law Reform 130 1,120 1,250
Clerical Officers
in An Garda Siochána N/A N/A 761.5
As at July, 2005
Clerical Officers
in An Garda Siochána 68.8 621.42 690.22
From these statistics it should be noted that in July, 2000 79% of the Members of An Garda Siochána who held designated posts were male. However records show that there were 761.5 Clerical Officers attached to An Garda Siochána but the respondent was unable to provide a breakdown by gender. It is notable that, as at 30th June 2000, of the 1,250 Clerical Officers assigned to the respondent organisation 89.6% were female and in terms of the entire Civil Service with a total of 11,557 Clerical Officers 80% were female. On this basis I am satisfied that a significantly higher proportion of Clerical Officers in An Garda Siochána were female. Having regard to ECJ caselaw I am satisfied that, in these claims, the complainant grade (i.e. Clerical Officer) is predominately of one gender and the comparator grade in designated posts is predominately of the other gender. On the basis of these statistics I find that the Union has established a prima facie case of discrimination in terms of Section 19 of the Employment Equality Act, 1998.
11.16 Where a prima facie case has been established the burden of proof shifts to the respondent and it is required to show objective justification on economic grounds for the difference in pay in terms of Section 19(5) of the Employment Equality Act, 1998.
11.17 It is the respondent's contention that there are objectively justifiable reasons for the difference in pay to the complainants and the named male comparators which is unrelated to their gender. Having regard to the European Court of Justice judgement in the Wiener case the respondent states that even if in empirical terms the complainants and the named male comparators perform the same work it is not 'like work' within the meaning of the Employment Equality Act, 1998 as the named male comparators have different qualifications and experience and they undertake duties of their role as members of An Garda Siochána. Furthermore it is the respondent's submission that persons holding the rank of Garda are required to carry out a range of functions and duties which provides justification for remunerating them according to a different payscale to the complainants. The respondent further notes that members of An Garda Siochána operate in a different industrial relations environment to the complainants and do not have the right to withdraw their labour or go on strike. It is, therefore, the respondent's contention that the entirely separate conciliation and arbitration mechanism applying to Garda pay constitutes a complete defence to the complainants' claims. The respondent says that the difference in pay is directly and exclusively referable to the skills, training and qualifications of the named comparators and that in the wearing of their uniforms, submitting to the rules of An Garda Siochána and the requirement to carry out other duties, the named comparators are practicing their profession. An Garda Siochána is a self-contained disciplined force and the respondent submits that the Commissioner is entitled to manage the force as he sees fit having regard to the jobs which need to be done.
11.18 The Union does not accept that the respondent has objectively justified the difference in pay to the complainants on grounds other than gender.
11.19 While the Labour Court has stated that it is the actual duties which are evaluated when determining 'like work' and not qualifications it is necessary to first consider the ECJ judgement in Wiener as it is the basis of the 'grounds other than gender' argument by the respondent. The facts of this case are that the institution concerned employs three different classes of psychotherapists namely:
- Doctors who have completed their general practitioners or specialist training;
- Graduate psychologists qualified to practice in the health sector on a self-employed basis;
- Those who are neither doctors nor psychologists but who have a general education and have undergone specialised training in psychotherapy.
The salaries of these employees are fixed in accordance with various sets of staff regulations in the form of collective agreements. Psychologists qualified to practice their profession on a self-employed basis are classified in one salary group whereas doctors qualified to practice as specialists on a self-employed basis are classified in another salary group. As a consequence the latter (doctors) receive higher pay than the former (psychologists). A claim was made for equal pay and the national court dismissed the claim arguing that the differential rates of pay
"...are justified by the fact that the obligations incumbent on the two groups of professionals are not the same. Only doctors employed as specialists are required to perform other medical tasks in an emergency".
On appeal the Appeal Court directed a number of questions to the European Court of Justice to obtain an interpretation of certain provisions of Community law. In making its judgement the European Court noted that it has consistently held that discrimination involves
"the application of different rules to comparable situations or the application of the same rules to different situations".
The European Court held at paragraph 17 that
"in order to determine whether the work being done by different persons is the same, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions those persons can be considered to be in a comparable situation".
11.20 In the present claims the named comparators applied for designated posts and on being successful at interview were assigned to these posts. A number of designated posts were agreed between the Union representing the named comparators and management in An Garda Siochána. Many of the named comparators were in receipt of a Clerical Allowance to perform these jobs. Once assigned to these posts, following competitive interview, the named comparators were not re-assigned to other duties by the Garda Commissioner. Rather the named male comparators left the post at their own request, on promotion or on retirement. Furthermore I cannot accept that the purpose of assigning these named male comparators to these positions was for the purpose of expanding their experience within the force. If this was the intention then the named male comparators would have been assigned to these positions for about three years and then transferred to another area of the force. However in practice many of these named male comparators were assigned to these positions and remained in these positions for many years as can be seen from the job descriptions in Appendix B. From my work inspections in these claims I note that the nature of the work performed by the complainants and the named male comparators was the same. This was freely admitted by a number of the named male comparators and it was the case that complainants performed the work undertaken by the named male comparators in their absence. There was no evidence that the different training received by the named male comparators impacted in any way on how they carried out their duties.
11.21 The respondent has argued that the named comparators were required to wear the Garda uniform in the course of their duties. I cannot accept that this was the case as many of the named male comparators were in receipt of a plain clothes allowance to compensate them for the fact that they would not be wearing the Garda uniform which is provided without charge and as a matter of course to members of the force. The respondent has further argued that the named comparators, as members of An Garda Siochána, operated in a different industrial relations environment to the complainants. While this is true I am satisfied that this argument does not objectively justify a difference in pay on grounds other than gender having regard to the ECJ ruling in Enderby and the High Court judgement in Flynn v Primark .
11.22 In conclusion therefore I find that the respondent cannot rely on the ECJ judgement in Wiener as a defence in these claims under Section 19(5) of the Employment Equality Act, 1998. I further find that the respondent has failed to objectively justify the difference in pay between the complainants and the named comparators on grounds other than gender.
12. DECISION
12.1 In view of the foregoing I find all, but one, of the complainants who referred claims on 21st July, 2000 perform 'like work' in terms of Section 7 of the Employment Equality Act, 1998 with the named male comparators.
12.2 Based on the statistics I conclude that the complainants have established a prima facie case of discrimination and the burden of proof has shifted to the respondent to provide a defence in relation to 'grounds other than gender' for the difference in pay between the complainants and the named comparators. I am satisfied that the respondent has failed to discharge that burden and objectively justify the arguments made in respect of 'grounds other than gender'. In these circumstances I find that the complainants, whom I have found performed 'like work' with the named comparators, are entitled to equal pay with these named comparators.
12.3 In relation to the claims referred on 14th July, 2005 I find that these complainants did not perform 'like work' with the named male comparator in terms of Section 7 of the Employment Equality Act, 1998 and are, therefore, not entitled to equal pay.
12.4 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order equal pay for the following complainants:
Ms. Kenny with named comparator Garda Fitzgerald
Ms. Quinn with named comparator Garda McDonnell
Ms. Condon with named comparator Garda Murphy
Ms. Norton with named comparator Staff Sergeant Walsh
Ms. Barrett, Ms. Healy and Ms. Coyne with Detective Garda Kampff
Equal pay includes salary and the Clerical Allowance where it was paid to the named comparators. The Clerical Allowance was paid to Garda Fitzgerald, Garda McDonnell and Garda Murphy.
Gerardine Coyle
Equality Officer
22nd November, 2005