FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : FAS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - KATHLEEN BRADLEY, SARAH COLLIER, ANN MAHONY, ROSE SWAN & MARY THOMPSON (REPRESENTED BY CIVIL AND PUBLIC SERVICES UNION) DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007.
BACKGROUND:
2. The Union, on behalf of the Workers, referred this case to the Labour Court on the 11th May, 2009, in accordance with Section 83 of the Employment Equality Acts, 1998 to 2007. A Labour Court hearing took place on the 18th May, 2010. The following is the Court's determination:
DETERMINATION:
The Claim:
CPSU on behalf of five complainants Kathleen Bradley, Sarah Collier, Ann Mahony, Rose Swan and Mary Thompson, is appealing a decision of the Equality Officer under the Employment Equality Acts 1998 -2008 (the Act)) in which the Equality Officer found that no indirect discrimination on the grounds of gender occurred when those in the Complainant’s grade were not afforded automatic progression to a higher grade resulting in a higher rate of pay and better conditions of employment as compared with men in jobs in other grades that were entitled to progress automatically to the higher grade with corresponding increases in pay and conditions of employment.
Background:
In 1982 FAS, then AnCo, concluded a productivity agreement with the trade union representing instructing Instructors, who were then paid on the Grade 10 scale. The agreement provided that, in return for substantial changes to their working arrangements, their pay scale was extended by way of a “career grade” to the maximum of the grade 9 pay scale. Access to this career grade was automatic following two years on the maximum of the Grade 10 pay scale. All other terms and conditions of employment for instructors remained unchanged. In 1997 following another productivity agreement the instructors’ pay scale was extended further to the maximum of the Grade 8 pay scale. Movement along the scale was automatic and contingent only on service in the grade. The terms and conditions of employment associated with the new higher grade were applied to Instructors after they had accrued sufficient service to qualify for movement onto that pay scale.
At the time of the claim there were roughly 1000 employees eligible to benefit from this arrangement, the majority of which are male.
FAS also employed roughly 600 Grade 11 workers who could not automatically progress to Grade 11 (a), the next highest pay grade, other than by way of promotion through competitive interview. The great majority of these workers are female.
The Claimants, who are all employed on Grade 11, contended that the different treatment of Grade 10 Instructors and Grade 11 clerical admin staff was indirectly discriminatory contrary to the provisions of the Act and the Equal Treatment Directives of the European Union.
The Complainants submitted a complaint to the Equality Tribunal pursuant to the provisions of the Act. The Equality Officer, (DEC – E2009-024) found against the Complainants and decided as follows: -
- 'Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainants have failed to establish a prima facie case of indirect discrimination on grounds of gender contrary to the Acts in respect of the regarding policies and their complaint must fail.'
1. That the Equality Officer (Tribunal) erred in law and in fact in holding that the complainants failed to establish a prima-facie case of indirect discrimination
2. That the Equality Officer (Tribunal) erred in law and in fact in holding that the disparate impact was not satisfied by the statistical comparison of the claimant and comparator groups
3. That the Equality Officer (Tribunal) erred in law and in fact by finding that indirect discrimination contrary to Section 22 of the Employment Equality Act 1998 as amended by Section 13 of the Employment Equality Act 2004 had not occurred
4. That the Equality Officer (Tribunal) erred in law and in fact by finding that discrimination on the gender ground did not occur contrary to the Equal Treatment Directives of the European Union (76/207/EEC of February 1976 and 2000/78/EC of 27th November 2000)
5. That the Equality Officer (Tribunal) erred in law and in fact by not applying the correct statistical test for disparate impact as provided for in the case law of the European Court of Justice.
The Court considered the matter on 23rd February 2010.
Preliminary issues
In the course of the hearing of the appeal the Respondents argued the case was properly characterised as an equal pay claim and not an equal treatment claim and should be dealt with accordingly.
The Complainants submitted that the Equality Officer had found against the Respondents on this point and, as they had not appealed decision E2009-24, they were not entitled to raise the issue before the Court.
The Court invited the parties to make written submissions on this point.
The Complainants, by letter dated 2nd June 2010, made a comprehensive written submission for the Court’s consideration. The Respondent made no further submissions on the matter.
The Complainants made the following points for the Court’s consideration: -
1. The Complainants’ contention that this was an equal treatment claim and did not relate to equal pay was accepted by the Equality Officer. The Respondent had not appealed this decision by the Equality Officer. Consequently this Court is only empowered to hear those issues that are appealed and no others. The “de novo” principle relates to matters of fact and law that are before it on appeal, but does not relate to matters of fact or law that have not been appealed.
2. The complaint alleged breaches of Section 8 of the Act which deals with equal treatment.
3. The Complainants also relied on Directives 76/207/EEC and 2002/73/EC which are equal treatment Directives. These are the issues before the Court.
4. Section 77 of the Act refers to the claim or case before the Director (Equality Officer). However, Section 83, which regulates appeals to the Labour Court, provides at subsection (1) that the complainant or respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.
5. In Section 84 (2) reference is made to the Courts “determination of the appeal”
6. If the entire case is to be heard de novo, there would be no necessity for Section 83(1) to refer to grounds of appeal. Accordingly the only issues before the Court should be those set out in the Grounds of appeal and the Respondent is not entitled to raise issues it has not appealed. The Complainants noted that there is little case law on this issue,. However they referred the Court to the case of DPP v Earls (1969 1 IR44) in support of their contention.
7. In that case the Supreme Court held that the appeal before the Court of Criminal Appeal was not the prosecution of the case at large, but only the “appeal which the applicant brings before the Court”. The Court had increased the sentence, when only the severity of the sentence had been appealed. The Supreme Court in it’s judgement found that only those issues raised on the appeal could be heard.
On that basis the Complainants submitted that there was no equal pay issue on appeal before the Court and that therefore it is precluded from hearing the Respondent’s submissions on this matter.
Issues for determination
The issues for determination by the Court are as follows:
•The Court must firstly determine if the Respondent is entitled to raise issues at the hearing of the Appeal that were decided by the Equality Officer and were not specifically appealed.
•The Court must then determine if the matter properly comes within the scope of the Equal Pay or Equal Treatment Directives of the European Union.
- If the Court decides :
•(b) that the claim is in fact one alleging breach of the Equal Pay provisions of the Act and or the Directives then the appeal fails and the matter is disposed of as the Complainants have conceded that relative to Instructors employed by the Respondent they are not performing like work or work of equal value.
- On the other hand if the Court decides that the claim is properly a matter that falls to be dealt with in accordance with the Equal Treatment Directives then the Court will need to reconvene the hearing and take detailed evidence from both parties on all relevant matters.
Court's Findings:
The Court has consistently held that an appeal from an Equality Officer to the Labour Court is in effect a de novo rehearing of the case and that all matters of fact and law can be reopened before it. The Court outlined this view in the case of Mid-Western Health Board v Ms Maura Fitzgerald (Determination No DEE032, 2003) where it stated:
The Court has also considered the Judgement of the Supreme Court in the case ofNorth Western Heath Board v Martyn, to which it was referred. That case concerned an appeal on a point of law from this Court to the High Court. The decision of the Supreme Court was to confirm that where the Labour Court makes findings of fact on sufficient evidence or by admissions those findings of fact should not be reopened before the High Court. The position is entirely different in an appeal from an Equality Officer to the Labour Court where all issues of fact and law can be reopened in what is, in effect, a de novo rehearing of the case
The Court is satisfied that the decision inDPP v Earlsrelied on by the Complainants is not dissimilar to the decision inNorth Western Heath Board v Martyn.An appeal to this Court from a decision of the Equality Officer is different in nature to such an appeal to the High Court or Supreme Court. An appeal to the Labour Court under this Act amounts to a de novo rehearing of the entire case and the Respondent is entitled to raise any matters of fact or law before the Court.
In keeping with the jurisprudence of the Court the Complainants submission is rejected. The Court holds accordingly, that as this is a de novo rehearing of the entire case, the Respondent is entitled to raise all issues of fact and law for consideration by the Court.
Equal Pay or Equal Treatment:
The Complainants submit that the claim is brought under Section 8 of the Employment Equality Act 1998 – 2004 and also rely on the Equal Treatment Directives No 76/207/EEC and 2002/73/EEC.
The Respondent argues that the claim is in fact an equal pay claim and not an equal treatment claim and should be dealt with accordingly.
It is accepted by both parties that following a number of decisions and in particular in the decisions referred to later in this determination the European Court of Justice (ECJ) has held that a claim grounded on the same set of facts may be brought alleging unequal treatment or inequality of pay but not both . Equally the ECJ has held that a claim for equal treatment may not be disguised as a claim for equal pay and vice versa. This Court must therefore decide whether the issue before it is one of equal pay or equal treatment.
If the true nature of the claim is for equal treatment in respect to remuneration (equal pay) it can only succeed if the complainants and the comparators are engaged in like work. If the claim relates to the application of the principal of equal treatment the complainants must show that some provision, criterion or practice in relation to employment, other than remuneration, places women at a particular disadvantage. In such a case there is no need for a complainant to establish like work with a comparator.
Determining whether an issue falls to be dealt with under the heading of equal pay or equal treatment is not a straightforward matter and the law is quite complex in this area. For this reason the Court has set out the relevant law in this case.
The Law
Section 8 of the Employment Equality Acts 1998-2008 (the Act) prohibits discrimination in relation to matters other than remuneration. It is widely drawn and includes within its ambit matters relating to promotion and re-grading (s.8(1)(d) ).
Section 8(6)(a) of the Act provides: -
- '(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.'
- 'The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as "the principle of equal treatment".'
- 'Application of the principle of equal treatment means that there shall be no discrimination whatsover on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.'
- '[T]he ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which a worker receives directly or indirectly from his employment.'
In C-12/81,Garland v B.R.E.L.[1982] 1 CMLR it was held that a dispute concerning a travel concession provided to retired employees of British Rail was an equal pay claim. Disputes concerning equality in conditions of employment which are not in the nature of pay are properly classifiable as equal treatment issues which fall to be resolved by the application of Directive 76/205/EC and s. 8 of the Act.
Because the right to equal treatment and the right to equal pay derive from different Community instruments it has consistently been held by the ECJ that a term of employment cannot come within the concept of both treatment and pay. The question of whether a claim is properly classified as one of equal pay or as equal treatment is one of substance rather than form and is a mixed question of law and fact. A claim, which is in reality for equal pay, cannot be speciously formulated as being for equal treatment or vice versa.
In many cases what appears to be a condition of employment can have direct pecuniary consequence. This can give rise to difficulties of classification. For example, matters relating to re-grading and promotion inevitably affect a workers pay,yet they are expressly covered by Directive 76/207.
The leading cases in which the distinction between equal pay and equal treatment were judicially explored are C-184/89Nimz v Freie und Hansestadt HamburgECR 1-297, C-243 andGerster v Freistaat BayernECR 1-05253. InNimzthe complainant was not challenging pay rates in themselves, but rather the rules governing the system of salary classification.
The facts of this case are particularly instructive in the context of the instant case. They are recited in the head note of the report as follows:-
- 'Helga Nimz has worked for the City of Hamburg since 1 January 1977. From 1 January 1983, she worked in the administration of the university for 20 hours per week. She was paid in accordance with scale Vb, category 1 of the collective agreement for national public services employees (“Bundesangestelltentarifvertrag”, hereafter BAT).
The agreement makes provision for employees in that grade to move automatically up to salary scale IVB, category 2 after six years' service. However, Article 23(a) of the BAT provides that whereas seniority is fully taken into account for employees working for at least three-quarters of the normal working hours of a full-time employee, only half of the period of service is taken into account where employees work for between half and three-quarters of the normal working hours of a full-time employee. The result, therefore, was that full-time employees moved up to the next salary grade after six years, whereas those who worked less than three-quarters' time had to be employed for 12 years to receive the same increase in pay.
Relying on these provisions, the administration of the City of Hamburg refused to move Mrs Nimz to the higher salary bracket after six years' service. (The provisions of the BAT were amended from 1 January 1988, but without taking into account periods of seniority acquired before that date.) Since more than 90% of public service administrators in the Federal Republic working under 75% of normal working hours are women, whereas women represent 55% of public service administrators working full-time, Mrs Nimz complained that the criterion was indirectly discriminatory.'
- 'It appears from the documents before the Court that the present case concerns a system of practically automatic salary classification based on rules relating to length of service contained in a collective agreement. Those rules govern changes in the salary due as such to an employee who continues in the same type of work.
It follows that in such circumstances the rules governing what is practically an automatic reclassification in a higher salary grade come in principle within the concept of pay as defined in Article 119 of the Treaty.'
- 'First of all, the Court emphasized in Defrenne III (Case 149/77 Defrenne v Sabena 1978 ECR 1365), paragraph 20, that the scope of Article 119 cannot be extended to aspects of the employment relationship other than those expressly referred to.
Mrs Gerster argues that, since the case before the Bayerisches Verwaltungsgericht - like the situation which gave rise to the judgment in Case C-148/89 Nimz 1991 ECR I-297 - concerns a system for the classification of salaries which is practically automatic, it falls within the scope of the term pay' as used in Article 119 of the Treaty and infringes Directive 75/117.
It should be emphasized that where, as in the present case, a civil servant is placed on the list of candidates eligible for promotion, his progression to a higher grade, and accordingly to a higher level of remuneration, is not a right but a mere possibility. Actual promotion depends on various factors such as, first, the availability of a post in the higher grade and, secondly, the maintenance of his position on the list of persons eligible for promotion. A provision such as [the national rule in contention] is thus primarily designed to lay down the conditions, in terms of length of service, for a civil servant's inclusion on the list of persons eligible for promotion and thus for access to a higher grade. Accordingly, it only affects indirectly the level of pay to which the person concerned is entitled upon completion of the promotions procedure.'
Hence, it would appear that where the impugned rules directly and automatically affect pay they should be considered under Article 141 and Directive 75/117. However, where the affect is indirect and potential in the sense of being contingent upon some other event, the impugned provisions come within the scope of Directive 76/207.
There is, however, authority for the proposition that certain provisions of the employment contract which do directly and unconditionally affect pay are nonetheless to be classified as conditions of employment and within the ambit of Directive 76/207/EC. For example working hours and in particular access to full time work as opposed to part-time work are issues of equal treatment notwithstanding that the hours which an employee works directly affects his or her pay (see Case C-313/02Wippel v. Peek & Cloppenburg Gmbh & Co KG[2005] IRLR 211)
There is also authority to show that what appears to be an issue about pay is to be regarded as a treatment issue if the difference complained of arises in consequence of a scheme or arrangement having broad application in the employment concerned. In Case C-77/02,Steinicke v Bundesanstalt f�r Arbeit, C-77/02[2003] IRLR 892 ECJ an issue arose concerning the operation of a scheme introduced in the German Civil Service under which civil servants who were within three years of retirement could opt to work 50% of full-time hours and receive 83% of full salary. Ms Steinicke had reduced her working hours to 50% of full-time hours in or about 1976 so as fulfil family responsibilities. She remained on part-time work thereafter. When she was within three years of her expected retirement date she claimed that she should receive the same rate of pay as a male employee who was participating in the scheme (83% of full-time salary)
In considering if the dispute concerned a question of equal pay or equal treatment the ECJ said the following: -
- 'In that regard, the scheme of part-time work for older employees is intended to reduce the normal working time, either by reducing the working hours at a uniform rate throughout the entire period concerned (part-time model), or by allowing the person concerned to cease work at an earlier date (two-stage model). In each case the scheme affects the exercise of the occupation of the workers concerned by adjusting their working time (see, to that effect, case C-187/00Kutz-Bauer[2003] IRLR 368, paragraph 44).
It must therefore be held that the scheme in question in the main proceedings lays down rules concerning working conditions within the meaning of Article 5(1) of Directive 76/207.
The fact that joining that scheme may have pecuniary consequences for the worker concerned is not sufficient to bring such conditions within the scope of Article 141 EC or of Directive 75/117, those provisions being based on the close connection which exists between the nature of the work done and the amount of the worker's pay (see, to that effect, the judgments in case C-236/98J�mO[2000] IRLR 421, paragraph 59, and case C-476/99Lommers[2002] IRLR 430, paragraph 28).'
Application of the law to the instant case
Arising from these authorities the Court is satisfied that a dispute in relation to a provision which (a) relates to a particular occupation or the performance of certain work, and (b) determines automatically and unconditionally the amount of a worker’s pay, the issue is one of equal pay. However where the dispute concerns a provision criterion or practice which provides a worker with the opportunity or potential to obtain enhanced pay, it is one of equal treatment.
Thus, in the instant case, if the benefit enjoyed by the comparator grades is properly classifiable as an arrangement for access to promotion or re-grading it would,prima facie, fall fairly and squarely within the ambit of Directive 76/205/EC and s.8 of the Act. If however it is more akin to an extended incremental scale the decisions inNimzandHill and Stapletonare entirely apposite and would strongly point to the case being properly classifiable as one of equal pay.
In the instant case the Court is satisfied, as a matter of fact, that the agreement reached between the Instructors and FAS in 1982 established an extended pay scale that encompassed grades 10 and 9 at that time in return for substantial productivity concessions deemed necessary to make the organisation more efficient and responsive to client needs.
The productivity agreements introduced certain changes to the instructors workloads and terms and conditions of employment. However as an individual progressed from the original Grade 10 pay scale through the new Grade 9 pay scale and finally onto the more recent Grade 8 pay scale they are not required to undertake any additional duties or responsibilities. Instructors were not required to compete for posts at grade 9 nor were they required to perform higher duties on being advanced to the grade 9 pay scale. None of the characteristics normally associated with a promotional post are evident in this case.
Similarly the productivity agreement concluded in 1997 extended the pay scale of instructors further so that it encompassed the grade 8 scale and the additional holidays that accrued to that scale were also applied to the instructors as part of the agreement.
In essence these salary and holiday benefits accrued on service and not on promotion and had no attendant increases in responsibility or changes in the type of work carried out that would normally accompany a promotion. Furthermore progression along this scale also was automatic. Progression was not subject to competition or to any selection process and it applied universally to all instructors upon meeting the relevant service criteria.
Accordingly the Court finds that the productivity agreements gave rise to an extended pay scale and consequently, based on the analysis of the jurisprudence of the ECJ outlined above the decisions inNimzandHill and Stapletonare entirely apposite. The Court finds that the case is properly classifiable as one of equal pay and not one of equal treatment.
Accordingly the appeal is rejected.
The Court so Determines.
Signed on behalf of the Labour Court
Brendan Hayes
27th August, 2010______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.