EDA0713

Material facts.

There are a number of posts within An Garda Siochána of a clerical or administrative nature which are reserved to members of the force. These posts are described as designated posts. There are other posts which are described as ex-gratia posts which can be filled by members of the force or by civilians if available. There is a third category of posts which can be filled by members of the force who are engaged in normal policing but who also undertake clerical and administrative duties.

There are two sets of claims. The first set of eight claims was referred to what is now the Equality Tribunal on 20th July 2000 and the second set of six claims was referred on 14th July 2005. The claims were conjoined by the Equality Tribunal and investigated together by an Equality Officer in October and November 2005. At the time the first set of claims were presented there were 353 designated posts within the force. 279 of these posts were occupied by male members of the force and 74 were occupied by women. At that time there were 761 clerical officers deployed within the force. A breakdown by gender of those occupying clerical officer posts was not available but is acknowledged that they are held predominantly by women.

In respect of the claims presented in 2000 the Equality Officer found that seven Complainants were entitled to succeed. She held that one of the complaints in that set of proceedings was not validly before her. The Equality Officer found that none of the claims contained in the set of proceedings initiated in July 2005 was well founded. The Respondent appealed against so much of the Equality Officers decision which upheld the claims before her. The Union cross-appealed against so much of the decision which dismissed some of the claims.

The procedure adopted.

At the commencement of the appeal it became apparent to the Court that the Respondent would rely on the defence of grounds other than gender to explain any difference in pay between the Complainants and their Comparators. Stated simply the Respondent contended that the Complainant were paid the rate appropriate to the grade of clerical officer whereas the Comparators were paid the rate applicable to their rank as members of An Garda Siochána. This, the Respondent submitted, constituted grounds other than sex or in the alternative objective justification for the pay difference and provided it with a full defence to the claims in accordance with s 19(5) of the Act.

There are a significant number of issues both of law and fact raised by the parties in these appeals. If these issues were to be fully dealt with they would occupy the Court over a number of days. If, however, the Respondent’s defence of grounds other than sex or objective justification were to prevail it would be determinative of the case. In these circumstances the Court proposed that it should deal with the Respondent’s defence of grounds other than sex or objective justification as a preliminary issue and for that purpose it should assume, without so holding, that the Complainants and the Comparators were engaged in like work. It was agreed that if the Respondent succeeded in making out its defence to the claims that would dispose of the appeal and the cross-appeal in its favour. If the defence fails the Court will proceed to deal with all other issues arising in the case.

The parties agreed to proceed accordingly. It should, however, be noted that the assumption of like work is confined to the posts held by the nominated Claimants and Comparators and has no wider application.

The law applicable.

These claims are being investigated pursuant to the Employment Equality Acts 1998 and 2004 (the Act). This Act implemented the State’s obligations under various Community legislative provisions proscribing discrimination in employment and vocational training. It is trite law that in interpreting and applying the Act the Court must have regard to the wording and purpose of the Community legislation upon which it is based so as to achieve the result pursued by those provisions

It is now well settled that discrimination, including discrimination in matters of pay, can be direct or overt or indirect or covert. Direct discrimination arises where a man or a woman is discriminated against because of his or her sex or because of a criterion linked to a characteristic which is indissociable from sex. (see Opinion of Jacobs AG inSchnorbus v Land Hassen[2000] ECR 1 10997). Since the object of sex discrimination law is to eliminate different treatment founded on gender it follows that differences in pay, which are exclusively and genuinely attributable to factors other than gender, are not, per se, proscribed by the legislation. This is clear from the Judgment of the ECJ inJenkins v Kingsgate (Clothing Productions) Ltd[1981] IRLR, in which the Court said at paragraph 67: -

• "The answer to the questions thus understood is that the purpose of Article 119 is to ensure the application of the principle of equal pay for men and women for the same work. The differences in pay prohibited by that provision are therefore exclusively those based on the difference of the sex of the workers. Consequently the fact that part-time work is paid at an hourly rate lower than pay for full-time work does not amount per se to discrimination prohibited by Article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex."

• “Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates for remuneration to different employees.”

Indirect Discrimination

There are various definitions used to describe the concept of indirect discrimination in equality law jurisprudence. However a uniform formulation of the notion is now contained in the most recently adopted Directives in the field of equality in line with the definition provided in Directive 97/80 on the burden of proof in cases of discrimination based on sex. Article 2(2) of Directive 97/80 provides as follows; -

• “For the purpose of the principle of equal treatment referred to at Article 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex, unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.”
  

• • 
    (4) Where a term of a contract or a criterion applied to employees (including A and B)—
    
  • (a) applies to all the employees of a particular employer or to a particular class of such employees (including A and B),
    
    (b) is such that the remuneration of those employees who fulfil the term or criterion is different from that of those who do not,
    
    (c) is such that the proportion of employees who are disadvantaged by the term or criterion is substantially higher in the case of those of the same sex as A than in the case of those of the same sex as B, and
    
    (d) cannot be justified by objective factors unrelated to A's sex,
    
    then, for the purpose of subsection (1), A and B shall each be treated as fulfilling or, as the case may be, as not fulfilling the term or criterion, whichever results in the higher remuneration.

• ‘‘(4) (a) Indirect discrimination occurs where an apparently
  neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.
  
  (b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
  
  (c) In any proceedings statistics are admissible for
  the purpose of determining whether this subsection
  applies in relation to A or B.’’.

• “A legislative definition of indirect discrimination, which encapsulates much of the development in the case-law since the distinction was first drawn by the Court, is to be found in Article 2(2) of Directive 97/80: 'indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.”

Burden of Proof

Finally the law relating to the allocation of the burden of proof needs to be considered. This is not seriously in contention between the parties. It is now well settled that where a complainant establishes facts from which discrimination may be inferred a rebuttable presumption arises and it is for the respondent to prove that the principle of equal treatment has not been infringed. This is now provided for by Section 84A of the Act of 1998, as amended, and the Burden of Proof Directive.

Direct or indirect discrimination
The first issue for consideration is whether the discrimination alleged in this case should properly be characterised as direct discrimination or as indirect discrimination. It is not always necessary to distinguish between these two forms of discrimination. No distinction is drawn, for example, in Article 141 of the Treaty or in the Equal Pay Directive. The distinction is important only in respect of the defences which are available. Direct discrimination can never be excused except in the very limited circumstances in which affirmative or positive discrimination is permissible. Otherwise, an employer accused of direct discrimination can only avoid liability by showing that the different treatment impugned is founded on grounds other than sex. In the case of indirect discrimination the difference between the complainant and his or her comparator is, by definition, a result of a gender neutral factor which disadvantages a substantially higher proportion of the members of one sex. It is a complete defence to such a claim to show that the impugned difference is objectively justifiable on grounds other than sex.

In any equality claim the Complainant must first raise an inference of discrimination by proving facts from which discrimination can be inferred. Where men and women are engaged in like work and are paid different rates such an inference arises. This is clear from the Judgment of Barron J. inFlynn v Primark[1997] ELR 218. It is then for the employer to explain the difference in gender-neutral terms. However, an explanation may be proffered which is gender neutral on its face but which in fact has a disparate effect on one gender relative to the other. A question of indirect discrimination then arises.

It is accepted for the purpose of the instant case that the female Complainants are engaged in like work with the male Comparators and that they are remunerated unequally. This is a fact from which discrimination may be inferred and the Respondent must prove that the difference in pay is not tainted with sex discrimination. It seeks to do so by pointing out that the Complainants are clerical officers and the Comparators are members of An Garda Siochána. In reliance on s 19(5) of the Act the Respondent contends that this is a ground other than sex which affords it a complete defence to the within claims.

It is not in dispute that An Garda Siochána is made up predominantly of men whereas the grade of clerical officer is made up predominantly of women. This imbalance is reflected in the gender composition of the posts occupied by the Complainants as against those occupied by the Comparators, although it appears that in recent years an improved gender balance has been achieved.

It thus appears that the practice of the Respondent in reserving certain clerical posts for members of An Garda Siochána, and appointing clerical officers to other clerical posts can and does result in a state of affairs in which one group made up predominantly of men is paid a higher rate for like work than another group made up predominantly of women. This, on the Complainants’ submission, amounts to indirect discrimination. If that is correct the practice is unlawful unless it can be objectively justified on gender neutral grounds.

However the Respondent does not accept that the instant case can properly be classified as one of indirect discrimination. It contends that objective justification is not required and that it only has to show that the difference in pay complained of is on grounds other than sex.

In advancing that submission the Respondent says that indirect discrimination in pay only arises where there is a requirement or condition for the higher pay which bears more heavily on the members of one gender than the other. It was submitted on its behalf that the requirement or condition identified by the Complainants for the higher pay is that one must be members of the group who are in receipt of the higher pay, namely members of An Garda Siochána.

The Respondent submitted that this approach to identifying a requirement or condition for higher pay was expressly rejected by the EAT for England and Wales inBailey and others v The Home Office[2004] IRLR 921; a decision subsequently upheld by the Court of Appeal (reported at [2005] IRLR 369).

In its decision the EAT recited the relevant passage from the decision of the Employment Tribunal as follows: -

• “In our view the appropriate question to ask when search for a requirement or condition is what one has to do to obtain the advantage enjoyed by the comparator group. In the present case the answer to that question is that one has to be a member of that comparator group. It is true that this answer does not, as is so often the case, raise a need to satisfy qualification for recruitment. The answer we have given refers simply to the existence of a fact situation. Those who are members of the group can satisfy the condition of obtaining the advantage; those who are not members of the group cannot satisfy that condition."
  

• "The appellant criticises this approach. It agrees, implicitly, with the tribunal that in order for the Seymour-Smith approach to be adopted there has to be a 'requirement or condition' which impacts disparately on women rather than men. It says, however, that it is a circular argument to say that the requirement or condition for being a member of the advantaged group is that one has to be a member of the advantaged group. In truth, the appellant contends, the situation is not one where there is any requirement, or condition, or provision criterion or practice which impacts disparately on one sex. Rather, this is a case where, if at all, it falls within the third category identified in Enderby. There are two groups of workers the subject of separate collective bargaining arrangements where there is a disparity in pay levels. The appropriate approach is to see whether the group which is advantaged is predominantly male and the group which is disadvantaged is predominantly female. If so, there would be a case of prima facie discrimination. In this case, the advantaged group is predominantly male but the disadvantaged group is neither predominantly male nor female. There is, therefore, no evidence of prima facie discrimination. There may be evidence of a policy which impacts unfairly on different working groups, but that is not the mischief against which the legislation is aimed.
  
  In our judgment, this criticism of the employment tribunal decision is well founded. It is wholly artificial to try to erect as a requirement or condition of being a member of an advantaged group the fact that one is a member of the advantaged group. It is noteworthy that the applicants have not seriously sought to advance their case by relying on this aspect of the employment tribunal's decision. What they say is that as a matter of first principle and authority the Seymour-Smith approach is apt to be applied in this case and they seek to rely on European and Domestic Authority subsequent to Seymour-Smith in support of their contention."

Provision, criterion or practice

The essence of the Complainants’ case is that it is the Respondent’s “practice” to pay a lower rate for clerical work when it is performed by clerical officers than when the same work is performed by police officers. Given the gender imbalance between the two categories the Complainants contend that this practice has a disparate effect on women. The Respondent contended that if that is the case there is an abundance of factors relating to the role and training of members of An Garda Siochána upon which a difference in pay can be objectively justified.

While that is clearly a cogent argument the fact remains that the practice results in clerical work of equal value within the force being remunerated at a higher rate when it is performed by members of a group made up predominantly of men than when it is performed by a group made up almost exclusively of women. This, on the authority of the Judgment of the ECJ inEnderby v Frenchay Health Authority,[1993] ECR 5535 discloses indirect discrimination. Accordingly the focus of the Respondent’s defence must be on showing that the deployment of members of An Garda Siochána in this work is objectively justified in meeting the operational needs of the force. If it is established that the practice is justified on operational grounds, then it is clearly appropriate and necessary for the attainment of that operational need to pay the members of the force assigned to these posts the rate applicable to their rank.

Objective justification

Section 19(4)(b) of the Act sets out what the concept of objective justification entails, as follows: -

• "(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary."

• (1) that there were objective reasons for the difference;
  
  (2) unrelated to sex;
  
  (3) corresponding to a real need on the part of the undertaking;
  
  (4) appropriate to achieving the objective pursued;
  
  (5) it was necessary to that end;
  
  (6) that the difference conformed to the principle of proportionality;
  
  (7) that was the case throughout the period during which the differential existed.

Evidence of Chief Superintendent Grogan

Evidence on the background and circumstances in which members of An Garda Siochána came to be deployed in clerical duties was given by Chief Superintendent Grogan. This witness is attached to the Human Resources Section of the force and had 18 years' experience in that role while holding various ranks from Sergeant upwards. He told the Court that the practice of deploying police officers in clerical duties was established in the RIC, which was the precursor of An Garda Siochána, because it was considered that any duties connected with policing should be reserved to police officers. The witness said that on the foundation of An Garda Siochána civilian civil servants were seconded from the Department of Justice to augment members of the force in undertaking clerical and administrative duties. However, shortly thereafter the civilians returned to the Department and all of this work was taken over by members of the force.

In or about 1975 consultants were appointed to examine the possibilities of employing civilians in clerical posts within the force. The consultants recommended that there should be a reduction in the number of Gardai deployed on clerical duties. A working party was subsequently established to advise on the implementation of this recommendation. This working party recommend that 175 posts be designated as appropriate to members of An Garda Siochána.

The witness told the Court that in 1979 an independent commission known as the Ryan Commission again considered this subject. In its report the Ryan Commission (a copy of which was furnished to the Court) acknowledged that serving members of An Garda Siochána should always hold certain clerical posts within the force. This, the witness said, was based on the accepted belief that the duties of certain posts required the post holder to have knowledge and experience of policing and in some cases required the use of Garda powers.

According to the witness the holders of these posts are also expected to advise the District Officer on policing issues and to deputise for the District Officer in his or her absence. This necessitates the post holder having sensitive knowledge relating to crime and individuals suspected of crime. The need for knowledge and experience of policing in these positions was evidenced by the fact that eligibility for appointment to a clerical or administrative post is confined to members of An Garda Siochána with not less than five years experience. The witness said that the occupants of these posts are often required to prepare policing plans for particular events. In order to effectively undertake this task it is necessary to have an understanding of operational police matters.

Chief Superintendent Grogan told the Court that it was also considered necessary to have members of the force in these positions in order to ensure continuity of service. Members of An Garda Siochána, unlike civilian civil servants, are precluded by law from joining a trade union and cannot go on strike or engage in industrial action. A further important consideration, according to Superintendent Grogan, is that Europol and Interpol will only communicate with national police forces through serving police officers. Since some of the work associated with the clerical posts at issue involves communication with these international organisations, it is imperative that they be held by serving police officers.

The witness referred to other reports on the question of civilianisation of the force and the related issue of retaining designated posts for members of the force including a report entitled “An Garda Siochána – Civilianisation Study, and dated 7th February 2001”. These reports all endorsed the view of Garda Management that it is appropriate to deploy police officers in certain clerical posts. The witness told the Court that there are currently 298 designated posts. There are also what are known as ex-gratia posts which can be filled by civilians if available. It is the preferred option of Garda management that these posts be filled by civilians and are only filled by members of An Garda Siochána in circumstances in which no civilian is available. There are other posts which are filled by Garda Officers who also undertake normal police duties.

The Court was told that it is the view of Garda Management that for operational reasons the number of designated posts cannot fall below 219.

In cross-examination the witness agreed that the number of designated posts arose as a result of an industrial relations agreement between Garda Management and the AGSI and the GRA. The witness said that the force was actively seeking to reduce the number of posts in which members of An Garda Siochána are employed to 219. He said that they are seeking to do so in cooperation with the Garda representative bodies. He also accepted that there should be further civilianisation of the force but this had not been possible because additional civil servants were not available.

In response to further questions from the Union representative the witness agreed that in the course of the work inspection conducted by the Equality Officer, certain Comparators accepted that their work did not involve the use of Garda powers. It was also accepted by the witness that in some cases the civilian clerical officers and the Gardai performing clerical duties are interchangeable. According to the witness the posts examined were unrepresentative of the total pool of posts.

Conclusion

It would appear that the practice of reserving certain clerical posts for members of An Garda Siochána has resulted in significantly more men receiving higher pay than women for like work. On the authorities this must give rise to a presumption of unlawful indirect discrimination. That presumption can only be rebutted by showing that the impugned practice is objectively justified on grounds other than sex, within the meaning ascribed to that concept by law.

It is now clear from the decision of the Supreme Court inNational University of Ireland Cork v Ahern and Ors[2005] 2 ILRM 437 that the questions raised by a defence of grounds other than sex involves totally different considerations to those relevant to a comparison of like work. By parity of reasoning the same must be true in considering whether there is objective justification for an impugned measure which is prima facie indirectly discriminatory.

That case, in which judgment was given after these claims were made, involved a claim for equal pay by a number of male security staff using female telephonists as comparators. It had been found that the Complainants were engaged in like work with the Comparators. However the Respondent contended that there were ground other than sex for the difference in pay. In support of that contention it submitted that the work undertaken by the Comparators was less onerous than that undertaken by the majority of telephonists. It was said that they were paid the same rate as other telephonists whose job involved duties and attendance patterns which the Complainants were not required to undertake by reason of their family responsibilities.

It was held that for the purpose of considering the defence of grounds other than sex, (and in the Court’s view, by extension, a defence of objective justification) the Court should have considered if there were elements associated with the generality of the grade of telephonist which could be relied upon to make out the defence even if those elements were not present in the case of the Comparators. In effect, the Court held that the Labour Court should have considered if the position of the chosen Comparators was anomalous relative to that of others in the grade by reference to which their pay was determined.

McCracken J, in a Judgement concurred in by the other members of the Court, said this: -

• "Assuming the comparators were engaged in like work with the Respondents, it is clear in the present case that they were not in receipt of the same rates of remuneration. The question raised by s.2(3) involves totally different considerations from those which are relevant to a comparison of “like work”. The question at issue here is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential. This involves a different approach to the position of the comparators, and in particular of the context in which they were employed. I accept the arguments on behalf of the Appellant that for this purpose the Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators, namely the remaining switchboard operators."

Determination

For the reasons set out above the Court is satisfied that the Respondent did not discriminate against the Complainants in paying them less than their nominated Comparators. Accordingly the Respondent is entitled to succeed in its appeal.

The Respondent’s appeal is allowed and the Union’s cross appeal is disallowed.




Signed on behalf of the Labour Court



Kevin Duffy
27th July, 2007______________________
JBChairman



NOTE

Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.