FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : THE COURTS SERVICE (REPRESENTED BY MCANN FITZGERALD SOLICITORS) - AND - 28 NAMED EMPLOYEES (REPRESENTED BY CIVIL AND PUBLIC SERVICE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of The Employment Equality Act, 1998 Dec E 2007-007
BACKGROUND:
2. A Labour Court hearing took place on 30th October, 2007. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the Civil and Public Services Union (CPSU) against the decision of an Equality Officer of the Equality Tribunal. The claim to which to relates was brought by the CPSU on behalf of male Court Messengers employed in the Court Service claiming equal pay with female Staff Officer. The claim was investigated by an Equality Officer who, following a preliminary investigation, held against the Complainants.
This appeal came on for hearing before the Court on 30th October 2007. The Decision under appeal was a preliminary decision made by the Equality Tribunal pursuant to Section 79(3) of the Employment Equality Act 1998, which provides: -
- If, in a case which is referred on the ground that the complainant is not receiving remuneration in accordance with an equal remuneration term, a question arises whether the different rates of remuneration to which the case relates are lawful by virtue of section 19(5) or 29(5), the Director may direct that that question shall be investigated as a preliminary issue and shall proceed accordingly.
- Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
It is noted that all aspects of the case are fully contested by the parties, including the existence of like work as between the Complainants and the Comparators. Without prejudice to its contention that the Complainants and the comparators are not engaged in like work, the Respondent claims that there are grounds other than gender for the impugned difference in pay. The Union contends that the pay structure giving rise to the difference in pay is indirectly discriminatory within the meaning of Section 19(4)(a) of the Act and that it is not objectively justified within the meaning of Section 19(4)(b).
The Equality Officer conducted a preliminary investigation into whether the Complainants had established facts from which indirect discrimination could be inferred and if so whether the impugned difference in pay could be objectively justified. For this purpose the Equality Officer assumed, without so deciding, that the Complainants and the comparators were engaged in like work.
Conclusions of the Court
At the commencement of the hearing of this appeal a question arose as to the ambit of the discretion afforded to conduct a preliminary investigation pursuant to Section 79(3). It appears to the Court that the subsection clearly authorises a preliminary investigation into whether an impugned pay difference is lawful by virtue of Section 19(5). Subsection (5) is subject to subsection (4). Accordingly circumstances could arise in which it would be necessary to consider the applicability of subsection (4) in order to determine if a defence under subsection (5) can be sustained. Section 79(3) does not, however, expressly authorise a preliminary investigation into questions which come solely within the ambit of Section 19(4).
The circumstances in which it may be appropriate for a Court to exercise its discretion to determine an issue by way of a preliminary determination has been considered by the Superior Courts. These authorities indicate that a preliminary issue should only be determined in isolation from the other questions arising in a case where it is discrete and can conveniently be tried by reference to agreed facts so as to dispose or substantially dispose of the whole case.
The hesitance of the Courts to order the trial of preliminary issues is aptly adumbrated by following statement of Lord Evershed M.R. inWindsor Refrigerator Co. Ltd. v Branch Nominees Ltd[1961] Ch 375: -
- The course which this matter has taken emphasises as clearly as any case in my experience has emphasised the extreme unwisdom -- save in very exceptional cases -- of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round."
That statement was subsequently adopted in this jurisdiction by Kenny J. inTara Explorations and Development Co. Ltd v Minister for Industry and Commerce[1975] IR 242 and more recently by Hardiman J inB.T.F. v Director of Public Prosecutions2 ILRM 367. In the latter case Hardiman J, in a Judgment concurred in by Murray CJ and Fennelly J., put the position thus: -
- It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear.
A question of indirect discrimination in relation to pay can only arise where the Claimants and the Comparators are engaged in like work.
In the instant case the existence of like work is vigorously contested. From an examination of the submissions received it is clear that there is a considerable overlap on certain crucial points between the arguments relating to the existence or absence of objective justification for the impugned disparity in pay and those relating the existence or absence of like work.
In the Court’s view the issues relating to objective justification cannot be satisfactorily segregated from the overall factual matrix in which the claim of discrimination must be determined. The Respondent contends, inter alia, that the nature of the jobs being compared are significantly different (one being a recruitment post and the other a promotional post) and that this provides objective justification for the impugned difference in pay. In the Court’s view such questions cannot be satisfactorily addressed without evidence relating to the duties attaching to the respective posts. This would inevitably draw the Court into determining questions of fact which touch upon the question of like work. Such questions are vigorously in contention and are still within the province of the Equality Tribunal.
Section 79(3) authorises the determination of preliminary issues arising from Section 19(5) of the Act. That is an exception to the general principle that all issues arising in a case should be disposed of in a single set of proceedings and that litigation should not be fragmented. Since Section 79(3) is an exception to the general rule it must be construed strictly and given no wider scope that the language used suggests.
In this appeal the issues arising for determination relate to the question of whether there is a prima facie case of indirect discrimination in the pay structure applicable to Court Messengers and Staff Officers employed by the Respondent and if so whether the different treatment can be objectively justified. That, in the Court view, is a matter that falls within the ambit of Section 19(4) rather than Section 19(5).
The Court also notes that both parties to the case have indicated their desire to have the question of like work determined at first instance before an appeal to this Court proceeds.
Decision
In the circumstances the Court has come to the view that it is inappropriate for it to determine the within appeal at this time and it will accordingly remit the matter to the Equality Tribunal for a determination on the question of whether the Complainants and the Comparators are engaged in like work.
Signed on behalf of the Labour Court
Kevin Duffy
14th December, 2007______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.