FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : CALOR TEORANTA (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SHARON BRIERTON (REPRESENTED BY EQUALITY AUTHORITY) DIVISION : Chairman: Mr Hayes 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 Company referred its appeal to the Labour Court on the 26th April, 2010. A labour Court hearing took place on the 8th June, 2011. The following is the Court's determination:
DETERMINATION:
Ms Sharon Brierton referred a complaint to the Equality Tribunal, against her employer, Calor Teoranta. She complained of discrimination on the age ground contrary to section 29(1) of the Employment Equality Acts 1998 – 2008 (the Act).
The Respondent rejected the complaint and as a preliminary issue stated that it was entitled to rely by way of defence on the provisions of section 34(7) of the Act as the reason for the difference in remuneration paid to the complainant and the comparator. Section 34 (7) states:
“It shall not constitute discrimination on the age ground for an employer to provide for different persons-
(a) Different rates of remuneration
(b) Different terms and conditions of employment
If the difference is based on their relative seniority (or length of service in a particular post or employment.
The Equality Tribunal investigated that issue as a preliminary matter pursuant to s.79(6) of the Acts. The Equality Officer found against the Respondent on that preliminary issue.
By notice received by the Court on 26 April 2010 the Respondent appealed against that decision.
In the appeal, as well as relying on the provisions of section 34(7) the Respondents raised further issues relating to the existence of like work as between the Complainant and her nominated comparator which issues had not been dealt with by the equality Officer.
The Court held a preliminary hearing to determine if the appeal should proceed.
Having considered the issues before it the Court has determined as follows: -
Statutory Provisions
It is clear that the Equality Tribunal is authorised by the Acts to conduct an preliminary investigation into the question of whether a difference in pay between a Complainant and a comparator is lawful having regard to s. 29(5) of the Acts.
It is not clear, however whether an appeal lies from such a preliminary decision where it is in favour of the Complainant unless the substantive issue has also been investigated by the Equality officer.
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 itshallbe 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.
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 which have already been the subject matter of an investigation
Given the provisions of Section 79(6)(b) this court is of the view that it would be inappropriate to hear an appeal relating to 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 addition to the statutory provisions the Court is also following its determinations inBrothers of Charity Services (Clare) Ltd &Brothers of Charity Services (Roscommon)Ltd v Mary Kealy &Marian Keigher Case no ADE/09/3 and inCase EDA0719The Court Service and 28 Complainants
In both of these cases the Court adverted to the general principle of law which leans against the fragmentation of litigation and favours all issues in contention being dealt with in a single set of proceedings. In the latter case 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".'
Determination of the Court
In this case the Court is satisfied that it cannot adequately advance its investigation of the appeal without considering evidence relating to claimed differences in the work performed by the Complainant relative to that performed by the comparator. The Court is satisfied that it would be inappropriate for it to embark upon such an investigation of these matters before they are fully considered by the Equality Officer at first instance.
In these circumstances the Court has decided following the Statutory provisions set out in section 79(6) (b) and the general principles already set out that the efficient administration of the law in this case requires that the case be remitted to the Equality Tribunal for an investigation of the substantive issue in question. Any appeal from a decision that emerges from the outcome of that process, including an appeal against the preliminary decision of the Equality Officer, will be considered the Court at that time.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
27th June, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.