FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : BROTHERS OF CHARITY SERVICES (CLARE) LTD & BROTHERS OF CHARITY SERVICES (ROSCOMMON) LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARY KEALY & MARIAN KEIGHER (REPRESENTED BY ARTHUR COX & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Employer appealed the Equality Officer's decision to the Labour Court on the 21st July, 2010. The following is the Court's determination:
DETERMINATION:
Ms Mary Kealy and Ms Marian Keigher referred a claim to the Equality Tribunal, against their employers, The Brothers of Charity Service Clare Ltd (in the case of Ms Kealy) and Brothers of Charity Service (Roscommon) Ltd (in the case of Ms Keigher) seeking equal remuneration with named comparators.
The Respondent raised a defence,inter alia, of grounds other than sex for the impugned differences in remuneration pursuant to s.19(5) of the Employment Equality Acts 1998-2008 (the Acts). By consent, the Equality Tribunal investigated that question as a preliminary matter pursuant to s.79(3) of the Acts. The Equality Officer found against the Respondent on that preliminary issue. By notice received by the Court on 21st July 2009 the Respondent appealed against that decision.
In the appeals the Respondents raised issues relating to the existence of like work as between the Complainants and their nominated comparators. The Complainants objected to any issues relating to like work being canvassed before the Court which were not dealt with by the Equality Tribunal at first instance. The Court held a preliminary hearing to determine if the appeal should proceed.
Statutory Provisions
It is clear that that the Equality Tribunal is authorised by the Acts to conduct an preliminary investigation in the question of whether a difference in pay between a Complainant and a comparator is lawful having regard to s.19(5) of the Acts. It is not clear, however whether an appeal lies from such a decision where it is in favour of the Complainant. Section 79(6) of the Acts provides:-
- 'At the conclusion of an investigation under this section (including an investigation of a preliminary issue under subsection (3) or (3A), the Director shall make a decision and, if the decision is in favour of the complainant—
- (a) it shall provide for redress in accordance with section 82 , or
(b) in the case of a decision on a preliminary issue under subsection (3) , it shall be followed by an investigation of the substantive issue.'
- (a) it shall provide for redress in accordance with section 82 , or
Paragraph (b) of the subsection is expressed in mandatory terms and appears to require that where a decision of the Equality Tribunal under s.79(3) is in favour of the Complainant it shall be followed by an investigation of the substantive issue. On a literal construction of this section it would appear that an appeal against such a preliminary decision does not lie to the Court in isolation from an appeal on the final decision of the Equality Tribunal on the substantial issue arising in the case.
However in the instant case it is clear that the issues relating to the existence of like work as between the Complainants and the comparators cannot be satisfactorily separated from the issues being raised in advancing the defence of grounds other than sex. It would be inappropriate for this Court to embark upon an investigation of matters not dealt with at first instance or to receive evidence touching on issues which have yet to be considered by the Equality Tribunal.
In Case EDA0719The Court Service and 28 Complainantsthe Court pointed to the general policy in the law which leans against fragmentation of litigation and favours all issues in contention being dealt with in a single set of proceedings. Here the Court stated: -
'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".'
Decision of the Court
In this case the Respondents believe that they cannot adequately advance their appeal without adducing evidence relating to claimed differences in the work performed by the Complainant relative to that performed by the comparators. The Complainant strenuously object to any such evidence being considered by the Court.
In these circumstances, and while reserving its position on the jurisdictional question referred to above, the Court has decided, with the concurrence of both parties, that the case should be remitted to the Equality Tribunal for an investigation of the substantive issue in the case. The Court so determines.
Signed on behalf of the Labour Court
Kevin Duffy
17th September, 2010______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.