FULL RECOMMENDATION
(R-045207-pt-06/JC) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : CATHOLIC UNIVERSITY SCHOOL (RESPONDENT) (REPRESENTED BY MARGUERITE BOLGER B.L. INSTRUCTED BY MASON HAYES & CURRAN SOLICITORS) - AND - COLM DOOLEY (CLAIMANT) (REPRESENTED BY CLIONA KIMBER B.L. INSTRUCTED BY BCM HANBY WALLACE SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision r-045206-ft-06/JC and r-045207-pt-06/JC
BACKGROUND:
2. This is an appeal from two Decisions of a Rights Commissioner under the Protection of Employees ( Fixed-Term Work) Act 2003. ( the Fixed-Term Work Act) and the Protection of Employees ( the Part-Time Work ) Act 2001 (Part-Time Work Act). Mr Colm Dooley (hereinafter referred to as the Claimant) was originally employed as a part-time teacher on a succession of fixed term contracts. He brought claims under the Fixed Term Act alleging unfavourable treatment and requiring the Catholic Univeristy School (hereinafter the called the Respondent) to furnish him with a contract of indefinite duration pursuant to Section 9 of the Fixed Term Work Act. He also brought claims under the Part-Time Work Act alleging the same unfavourable treatment.
The Claimant is paid directly by the Respondent. It is accepted by both parties that the Claimant was paid less than his chosen comparator, a full-time permanent teacher employed by the school but paid by the Department of Education. He also did not have the benefit of a number of contractual entitlements such as sick leave and pension rights to which the permanent full-time teacher was entitled.
The Respondent submits that the comparator chosen by the Claimant is not a proper comparator within the meaning of the Act. They also rely on the terms of the Fixed Term Workers Directive (Directive 99/70/EC) and the Part-time Workers Directive (Directive 97/81/EC) both of which, they claim, state that the treatment must be solely based on the Claimant's status. Finally they submit that there is objective justification for the treatment.
On 28th April 2008, in her decision on his claim under the Part-Time Work Act, a Rights Commissioner found that the Claimant, as a part-time worker, was treated less favourably than a comparable full-time worker. She found that the Respondent Employer was in breach of Section 9 of the Part-time work Act and required the Respondent, with effect from the 1st of March 2006, to ensure that the Claimant's pay( i.e. salary scale and incremental progression; payment of qualification allowances and all other conditions of employment) were no less favourable (on a pro rata basis where appropriate) than those of the whole time comparator from that date. She found that in relation to the incremental salary scale the Respondent was required to operate the same type of salary scale for the Claimant as that for the comparator including incremental progression. In relation to the Claimant's access to the Department of Education Superannuation Scheme she found that the Respondent was to ensure that the Claimant was to become a member of the scheme and to make the same employee contributions as the comparator. She awarded the Claimant €2500 in compensation for the breach of the Part-Time Work Act.
In relation to the same claim under the Fixed-Term Work Act, the Rights Commissioner found that having given relief under the Part-Time Work Act in respect of the unfavourable treatment, she was prevented by Section 18 of the Fixed-Term Work Act from granting relief arising from the same circumstances. She found that the Claimant was entitled to a contract of indefinite duration under Section 9 (3) of the Fixed-Term Work Act with effect from 26th August 2005 and awarded the Claimant a futher €2500 in respect of the Respondent's breach of Section 9 of the Fixed-Term Work Act.
The Respondent appealed against these Decisions on 5th June 2008. A Labour Court hearing took place on 5th November 2008. Since the appeal is a hearing de novo, the arguments made by the Respondent were directed equally to the unfavourable treatment meted out under both the Fixed-Term Work Act and the Part-Time Work Act. No arguments were advanced by the Respondent in relation to the Rights Commissioner's Decision to award the Claimant a contract of indefinite duration back-dated to the 26th August 2005.
The Claimant submitted that the Rights Commissioner's Decision should be affirmed. In addition, he submitted that the compensation awarded under the Acts was not effective, proportionate or dissuasive under the principles set out by the ECJ in case C-14/83Van Colson and Kamann v Land Nordrhein-Westfalen. Finally, the Claimant submitted that he was penalised contrary to section 13 of the Fixed Term work Act but this claim was not pursued at the hearing.
Respondent’s Arguments:
1. The Claimant has chosen as a comparator a permanent teacher on an incremental scale whose salary is paid by the Department of Education. This is not a correct or appropriate comparator. The only comparator with whom the Claimant can properly compare himself is a permanent and/or full-time teacher employed by the Respondent directly as a privately- paid teacher (as the Claimant is so employed). There are a number of such appropriate comparators employed by the school. The Claimant has at all times been treated no less favourably than those privately-paid teachers.
- The Respondent submitted that the question of the appropriateness of the chosen comparator, as well as the context of their employment had been considered by the Supreme Court inNational University of Ireland v Ahern2 I.R. 577, in a case in which Section 2(3) of the Anti Discrimination (Pay) Act, 1974 was analysed regarding the choice of comparator for “like work”. The Court said: -
“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 are employed. I accept the arguments on behalf of the applicant 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, mainly the remaining switchboard operators.”
The Respondent submitted that, in this case, this Court should look at the position of the Claimant's chosen comparator, i.e. the Department of Education and Science’s incrementally-paid teacher, not in isolation but in the context of the other teachers on the staff who were not chosen as comparators, i.e. the other privately-paid teachers.
3. The Respondent accepted that the Claimant has been and is treated less favourably than his colleagues whose pay and conditions are those negotiated with the Department of Education and Science, but submitted that this is unrelated to his original status as a fixed-term and now part-time worker. It is solely due to the fact that he is a privately-funded teacher paid directly by the Respondent on contracts of employment to which the Department is not a party. The Respondent had furnished the Claimant with a contract of indefinite duration, the terms of which were the same as the terms of his previous fixed-term contracts. There are substantial factual differences between the two types of teacher. The teacher paid by the Department has rights to incremental salary scales, the negotiation of terms and conditions of employment, being subject to redeployment, qualifications, probationary periods, receipt of responsibility llowances, career breaks, job-sharing and the obligation to be in Department of Education and Science Pension Scheme. None of these apply to the Claimant.
4. The Respondent further submitted that both the Fixed-Term Workers’ and the Part-Time Workers’ Directives make it clear that, in order for a case to be actionable, less favourable treatment has to besolelybecause of the part-time and/or fixed-term nature of the work being performed. This is clearly not so in the instant case.
Where it appears that an Act has not fully or properly implemented the principles of the Directives, then in such a case the Court must interpret the legislation in the light of the provisions of the Directives. If the Directives have provisions that are directly effective, the Respondents submitted that the ECJ has decided, in the case ofDepartment of Agriculture v IMPACTC 268/06 [2008] that the Labour Court has jurisdiction to apply such provisions, including Clause 4 (1) of the Fixed-Term Workers Directive, which the ECJ held in this case “to be unconditional and sufficiently precise for individuals to rely upon it before a National Court”. The same applies to the Part-Time Workers' Directive.
5. Finally the Respondent submitted, without prejudice to the arguments outlined above, that the different contractual and/or employment status of the Claimant and his chosen comparator constituted objective justification for the less favourable treatment existing.
Claimant's Arguments:
1. The draft contract of indefinite duration offered to the Claimant did not meet the requirements of the Act. It offered a “rolling “ fixed-term contract from 28th August to 2nd June each year, i.e. the contract would in fact terminate on a specific date each year. It also contained terms less favourable than those offered to other employees, including the chosen comparator.
2. The Claimant and his chosen comparators are/were both employees of the Respondent, employed by its Board of Management and are/were under the direction of the Board.
Under Section 5(2) of the Fixed Term Work Act and Section 7(2) of the Part-Time Work Act, a permanent employee is comparable to a fixed-term or part-time employee when:-(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work or
(b) the work performed by one of the employees concerned is of the same or similar nature to that performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by a relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
- The Claimant referred the Court to the test set out by the ECJ in the case ofC-129/79McCarthy’s Ltd v Smith[1980] IRLR 210, whein the Court stated;
“The decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing equal work within the meaning of Article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the service in question.”
The Claimant submited that under this test it is clear that the comparator is appropriate.
- He submitted that this was clearly the position in the instant case. The Respondent was attempting to use a minority category of permanent employees as “more appropriate comparators” to the Claimant whereas the Claimant has chosen a comparator who is a full-time and permanent teacher taken from the majority group of permanent teachers in the school.
- That claim was made under the Anti-Discrimination (Pay) Act, 1974. Under Section 7 of that Act it was a defence to proceedings to show that a difference in pay was based on “grounds other than sex”. No similar defence exists under either the Part-Time Work Act or the Fixed Term Work Act. It is not sufficient for the Respondent to show that there were grounds other than the Respondent’s fixed-term status to justify any less favourable treatment. What a Respondent must show is that there is objective justification for the unfavourable treatment.
The Claimant submitted that the objective grounds necessary to justify less favourable treatment must be for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose The claimant submitted that the unfavourable treatment fulfilled no “legitimate objective”.
The Claimant submitted that the argument that the less favourable treatment of him can be justified on the grounds that he is paid directly by the Respondent, whereas his comparator is paid by the Department of Education and Science, is basically flawed. Regardless of who pays the Claimant and his comparator, the Board of Management of the Respondent is the employer of both. Both had written contracts of employment with the Respondent at the relevant time and the comparator, similar to all of the permanent teachers in the school, receives a small monthly stipend (€40) paid directly by the Respondent in addition to her monthly salary from the Department. It was, therefore, incumbent on the Respondent to ensure that the Claimant was not treated less favourably than his chosen comparator.
The argument presented by the Respondent that financial constraints or the capping of funding by the Department of Education and Science is objective justification for the less favourable treatment afforded to the Claimant was flawed. The Claimant referred the Court to the case ofAn Employee v Limerick County CouncilFT 20397/04/JH. In that case a professional employee working for the County Council who sought a contract of indefinite duration by virtue of Section 9 of the Act was refused same on the basis that:
2. The Council had sought approval for the post from the Department of the Environment. The Department advised it could only do so if the Council suppressed another post within its permanent numbers. The Council was unwilling to do this as it would lead to industrial relations difficulties.
The Rights Commissioner held that there were no objective grounds justifying the failure to offer a contract of indefinite duration. The Rights Commissioner also indicated that the second ground advanced by the employer justifying its failure to offer a contract of indefinite clearly indicated that the treatment of the fixed-term worker was solely on the grounds that he was a fixed-term worker. The Rights Commissioner further stated that:
- “[An] arbitrary decision taken by a third party cannot be used by an employer to evade their own responsibilities as set out in the Act.”
In support of this contention the Claimant referred to the case ofHill and Stapleton v The Revenue Commissioners and the Department of Finance[1999] Case C-243/95 IRLR 466, in which the ECJ held as follows:
- “Article 119 of the Treaty and the Directive are to be interpreted as precluding legislation which provides that, where a much higher percentage of female workers than male workers are engaged in job-sharing, job sharers who convert to full-time employment are given a point on the pay scale applicable to full-time staff which is lower than that which those workers previously occupied on the pay scale applicable to job-sharing staff due to the fact that the employer has applied the criterion of service calculated by the actual length of time worked in a post, unless such legislation can be justified by objective criteria unrelated to any discrimination on ground of sex.”
- “So far as the justification based on economic grounds is concerned, it should be noted that an employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that avoidance of such discrimination would involve increased costs.”
The issues for consideration by the Court are as follows_-- “Article 119 of the Treaty and the Directive are to be interpreted as precluding legislation which provides that, where a much higher percentage of female workers than male workers are engaged in job-sharing, job sharers who convert to full-time employment are given a point on the pay scale applicable to full-time staff which is lower than that which those workers previously occupied on the pay scale applicable to job-sharing staff due to the fact that the employer has applied the criterion of service calculated by the actual length of time worked in a post, unless such legislation can be justified by objective criteria unrelated to any discrimination on ground of sex.”
- It is agreed that the Claimant and his chosen comparator are employed by the Respondent. The case being made on behalf of the Respondent closely parallels the submissions made and considered by this Court inMc ArdlevThe State Laboratory(FTD063), where an unestablished civil servant on a fixed- term contract claimed equal treatment with an established permanent civil servant with whom she was engaged in like work. The Respondent in that case contended that the Claimant could only cite a comparator with the same type of contract as herself, i.e. an unestablished civil servant. The Respondent in that case also raised a related argument, i.e. that the difference in treatment between the Claimant and her chosen comparator was related to her status as an unestablished civil servant rather than her status as a fixed-term worker. The Court, in rejecting these arguments, said as follows: -
- “Appropriate Comparator:
Section 6(1) prescribes the entitlement of fixed-term employees to equality of working conditions as follows:- “Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”
- the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
The following are the conditions mentioned in subsection (1)- - “Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”
- “Appropriate Comparator:
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
The combined effect of these provisions is that a comparable permanent employee for the purposes of the Act is a permanent employee employed by the same employer as the complainant, who is engaged in like work with the complainant.
(While the term like work is not used in the Act, the conditions set out at Section 5(2) amount to same thing. For ease of reference the term like work is used to describe those conditions).
Section 6(1) of the Act prescribes the entitlement of fixed-term employees to equality of conditions of employment with comparable permanent employees, as follows:-
- 6.- (1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee
- “[T] he decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing equal work within the meaning of Article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the service in question”.
- “The plaintiff was entitled to choose her comparator and, having done so, the equality officer was obliged to make a comparison with that person. Accordingly, if paragraph 5.9 of the Recommendation showed that the equality officer had not compared the plaintiff with her comparator, but with an other, then an error of law would have occurred and the matter would have to be sent back to the equality officer. Ainsworth (appellant) v. Glass Cubes and Components Ltd (respondents) [1977] IRLR 74 applied”
- “It is a well established principle to be applied in the consideration of an Act that where a word or expression in an Act has received clear judicial interpretation, then there is a presumption that a subsequent Act which incorporates the same word or expression in a similar context should be construed so that the word or expression is interpreted according to the meaning that has previously been ascribed to it, unless a contrary intention appears”.
It is accepted that the Claimant was engaged at all material times in doing the same job as permanent civil servants who are designated as established. Moreover, it is also accepted that there are no other civil servants employed by the Respondent engaged in like work with the Claimant who are designated as unestablished.
It is clear that the Claimant and a number of established civil servants perform the same work under the same or similar conditions and each is interchangeable with the other in relation to the work. Accordingly, such persons are comparable permanent employees in relation to the Claimant, within the meaning of Section 5 of the Act. It follows from the plain and ordinary language used in section 6(1) that, absent any of the defences provided for by subsections (2) and (5), the Claimant is entitled to the same conditions of employment as established civil servants with whom she is engaged in like work. Hence, it follows that the Claimant, as a fixed-tern employee was entitled to the same conditions of employment as nominated comparators who were established civil servants (except, of course, in relation to the duration of her contract).”
This Determination was appealed to the High Court and the Judgment of Laffoy J is reported asMinister for Finance v Mc Ardle[2007] 18ELR 165.
In dealing with the appropriateness of the chosen comparator, the Judge said:
- “I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State Laboratory, who was engaged in like work with the defendant, was a “comparable permanent employee” for the purpose of Section 6(of the Fixed-Term Act) because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in Section 5 for a comparable permanent employee vis-�-vis the defendant as a fixed-term employee. The Act expressly provides that the term “employee” includes an established civil servant. However, I emphasise that the finding made by the Labour Court was for the purposes of identifying the minimum conditions of employment to which the defendant was entitled as a fixed-term employee in accordance with Section 6”.
In the instant case, there is no dispute as to like work as between the Claimant and his chosen comparator. On the above criteria as set out by Leffoy J in the “McArdle” case, although there are some full-time privately-funded teachers in the school, the Claimant is entitled to choose a full-time Department-funded teacher as a comparator.
(2)Grounds Other Than Status.
The case here advanced by the Respondent is that the Claimant is treated differently because he is paid for out of private rather than public funds rather than because of his status as a part-time or fixed-term worker. It is argued that this is evidenced by the fact that other teachers, who are similarly privately-funded and are full-time and permanent, are treated in exactly the same manner as the Claimant.
This line of argument is predicated on the proposition that both Acts allow for a defence equivalent to that provided by Section 19 (5) of the Employment Equality Acts 1998 and 2004 (grounds other than sex).
There are two limbs to the argument advanced. Firstly, it is submitted that the presence within the employment of full-time and permanent teachers who are treated similarly to that of the Claimant is fatal to their case since it demonstrated that the treatment of which they complain is unrelated to their status. Secondly, while it appears to be accepted that both Acts do not provide for a defence in the terms contended for by the Respondent, it is submitted that such a defence is implicit in the Directives. In advancing that argument the Respondent relies on the Doctrine of Direct Effect of Community Law. It points out that the Framework Agreement annexed to Directive 1999/70/EC provides that fixed-term employees shall not be treated less favourablysolelybecause of their employment status. They say that as the Acts( Fixed-Term Work and Part-Time Work) failed to make a similar provision they are improperly transposed and the Respondent is, accordingly, entitled to rely on the Directive.
With regard to the first point, the contention that a woman cannot succeed in an equal pay claim where it is shown that a man, other than her comparator, is also paid at the lower rate has been judicially considered and rejected. InPickstone and Others v Freemans plc[1988] 2 A11 ER 803, the House of Lords considered a case in which the Plaintiff who was employed as a warehouse operative claimed equal pay with a male “checker warehouse operative”. The comparator was paid more than the Plaintiff but a male warehouse operative was paid the same rate as the Plaintiff. On that account the defendant employer submitted that the Plaintiff could not succeed. It contended that it was axiomatic that there were grounds other than gender for the difference in pay.
The Defendant's line of argument succeeded before the Industrial Tribunal, at first instance, and on appeal to the EAT. The Court of Appeal reversed the decisions of the Tribunals below but on other grounds. It gave leave for a further appeal to the House of Lords. There, in a speech concurred in by the other Law Lords, Lord Keith rejected that proposition canvassed by the Defendant Employer for a mixture of legal and policy reasons. He pointed out that if the result contended for by the Defendant were to prevail it would leave a large gap in the equal pay provision enabling an employer to evade it by employing one token man on work of equal value with that of a woman.
The decision inPickstone and Others v Freemans plcwas adopted in this jurisdiction by Barron J. inC & D Food v Cunnion1 IR 147. This was an appeal from this Court on a point of law under the Anti-Discrimination (Pay) Act 1974. The employer operated a factory in which the Claimants were employed. The wage structure involved a grading system and all workers within each of the grades were paid the same rate. Grade A workers were paid a higher rate than Grade B workers. The Claimant was in Grade B and claimed that she was being discriminated against because her work was of equal value to that of a man who was in Grade A. The Claimant succeeded before an Equality Officer and on appeal to the Labour Court. On appeal to the High Court, it was submitted by the employer, that the difference in pay between the Claimant and the comparator was based on an assessment of the jobs by the employer and that this amounted to grounds other than sex. It was submitted that as a matter of law no contrary finding could be made as both men and women were recruited to carry out the same work. In rejecting this submission, Barron J. adopted the reasoning inPickstone and Others v Freemans plc,saying: -
- “It is essential to an employer’s case that differentiation in pay scales and recruitment of men and women to the same job at the same wage should be genuine. Nevertheless, even where the employer genuinely believes that the value of the work being carried out by the employees in one occupation is higher that the value of work being carried out by employees in another occupation, he cannot avail of that belief because ultimately what is like work is a matter not for the employer but for an equality officer or the Labour Court on appeal. Undoubtedly, the fact that men and women are recruited for the same job at the same wage would be a matter to be taken into account in determining the relative values of different occupations within the factory: see Pickstone v Freemans plc [1989] AC 66. Similarly, in the present case, it was relevant that the work of one of the male comparators was also done by a woman, as it was relevant that men and women did the same grade B jobs. But these factors go only to the issue of genuine belief.”
In order to overcome this obvious difficulty the Respondent seeks to rely on the Doctrine of Direct Effect of Community Law. The substance of the submissions made on that point are that the Directive has been improperly transposed in Irish law and that in these circumstances the Respondent is entitled to rely on the Directive in defending the instant claim. This line of argument is misconceived.
The Doctrine of Direct Effect describes a rule of Community law which, subject to certain requirements, allows an individual to assert a right before a national Court by reliance on a provision of Community law. In the case of a Directive the doctrine operates where a Member State has either failed to transpose the Directive altogether or has done so inadequately. In the case of Directives, the Doctrine can only operate against the State or an emanation of the State. It appears to be accepted that the Respondent herein is such a body.
The essence of the Doctrine is that it allows individuals to vindicate rights, which they have derived from the law of the Community, by direct reliance on that law. It does not operate in order to defeat rights provided by national law. In that regard it is well settled that a Member State can go further than is required by a Directive. All Directives, including those in issue in the instant case, contain an express provision to that effect, for example, Council Directive 99/70 EC of 28th June 1999 (“the Fixed-Term Work Directive”) put into effect the Framework Agreement on fixed-term contracts concluded on 18th March 1999. Clause 8 of the Framework Agreement (provisions on implementation) provides that “Member States and/or social partners can maintain or introduce more favourable provisions than set out in this Agreement”. The same is true of the part-time working legislation. Consequently, even if it is the case that the State went further than the Directives required, it is simply wrong to say that the Directives at issue were improperly transposed on that account.
(3)Meaning of the Expression “Solely” in Clause 4.
If the Court were minded to consider the relevance or meaning of the word “solely” as used in Clause 4 of the Fixed-Term Work Framework Agreement, it could not reasonably be ascribed the meaning or effect canvassed by the Respondent. If the word were to be interpreted literally, it would mean that any factor, no matter how trivial, which influenced an employer in not applying the principle of equal treatment could operate as a full defence to a claim made under the Acts or the Directives. In that event the protection afforded by both Acts would be rendered nugatory and the objects pursued by the Directives would be subverted. This arises because there would rarely be a case in which an employer could not point to some status-neutral consideration, which influenced an impugned decision, to avoid liability for what would otherwise be unlawful discrimination. Such a result could not have been intended.
It is suggested that the apparent tension between the wording of the fixed-term work Directive, which is relied upon in this case, and the wording of the Act can be resolved on a proper analysis of the relevant Section of the Act, in relation to the defence of objective justification.
(4)Objective Justification
Section 7 of the Fixed Term Work Act and Section 12 of the Part-Time Work Act in terms which are almost identical provide, as follows: -
- "7–(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee’s contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer such treatment is appropriate and necessary for that purpose."
"12–(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a Part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer such treatment is appropriate and necessary for that purpose."
(5)The Test for Objective Justification.
The defence available under Section 7 or Section 12 must be considered by application of the established test for objective justification. That requires that the Respondent make out every element constituting the defence. In order to make out the defence it is for the Respondent as per the three-tiered test set out by the ECJ in the case ofBilka Kaufhaus GmBh v Karin Weber Von Hartz [1986] ECR 1607to identify a real need on the part of the undertaking, to show that the less favourable treatment is appropriate to meeting that need and is necessary to that end. This requires the Court to balance the detriment suffered by the worker against the benefit accruing to the employer. The Respondent must then establish that there are no alternative means by which the objective in view could be achieved which have a less discriminatory effect. This test has been used many times by this Court, notably in the case ofNBK Designs Ltd v Inoue, Determination No. EED 0212.
In this instance the objective justification relied upon appears to be that the School cannot afford to pay the cost associated with affording the Claimant equal treatment. That could not be accepted as a defence since in every case in which it is necessary to implement principles of equality there is a cost to the employer. The ECJ said in case no. C-243/95Hill & Stapleton v Revenue Commissioners & Dept of Finance[1999] IRLR 466 that
- “so far as the justification on economic grounds is concerned, it should be noted that an employer cannot justify discrimination ……solely on the ground that avoidance of such discrimination would involve increased costs”
The Court is of the view that the redress ordered in this case by the Rights Commissioner is sufficiently effective, proportionate and dissuasive.The Court notes that the initial claim of penalisation did not form part of the appeal to it.
DETERMINATION:
The Court dismisses the appeals and varies the Decisions of the Rights Commissioner in so far as that the appropriate date from which the Claimant is entitled to a contract on terms and conditions pro rata with that of his comparator is the 28th day of February 2006. The Rights Commissioner's Decision is otherwise affirmed.
The Court so determines
Signed on behalf of the Labour Court
Raymond McGee
22nd April, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.