EDA132

The Labour Court investigated this matter on Wednesday 25^thJuly 2012. The Court’s Determination is as follows:

Determination

By agreement between the parties the only issue which the Court is required to determine at this stage is whether or not the Complainants have established a prima facie case of pay discrimination under the Acts. If they have then the matter should be referred back to the Equality Tribunal for further consideration. If not then the matter is determined and subject to appeal to the High Court on a point of law.

Ms Marguerite Bolger, S.C., Counsel for the Complainants, submits that the Equality Officer erred in law when she followed the decision of this Court in Determination EDA113,Helen Buckley (INMO) v HSE. She concedes that the facts in this case and Buckley are similar but submits that this Court erred in its interpretation of both Irish and EU law in coming to its determination in that case. She notes that the Determination in Buckley was not appealed to the High Court on a point of law. She submits, however, that this Court misapplied both the Directive and the Act in coming to its Determination. She submits that this Court should address the matters before it afresh and give consideration to referring the legal questions raised to the Court of Justice of the European Union (CJEU) for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU). Counsel for the Respondent submits that this Court in Buckley has already decided the substantive matters at issue in this case, that the Court was correct in its analysis of the law and that the Equality Officer’s Decision in this case is correct and should be upheld.

The Complainant’s Position

Ms Bolger submits that the Equality Officer’s Decision in this case is based on her findings that whilst the Complainants' group is exclusively female the Comparator group is not predominantly male. On this basis she was satisfied (by reference to decisions such asIrish Aviation Authority v IMPACT[2000] ELR 29 and Determination DEP051Midland Health Board v INO) that a prima facie case of indirect discrimination had not been established.

She submits that the Equality Officer applied the wrong test in deciding this case.

She submits that the right to equal pay for equal work or work of equal value forms part of the Complainants’ fundamental rights pursuant to European law both in terms of the Recast Directive (Directive 2006/54/EC) and their Treaty and Charter Rights. She submits that these rights confer on the Complainants an unambiguous entitlement not to suffer a disadvantage as compared to their male counterparts. In that context she submits that the Equality Officer erred in the approach she adopted to the statistical evidence in this case and in particular her approach to the gender breakdowns of the Comparator group. She submits that the Equality Officer in her analysis relied on the test set out in Case C-127/92Enderby v Frenchay Health Authority & Secretary of State for Health[1993] ECR 5535. However, she submits that the statistical tests used in that case are not an end in themselves. Rather they are a set of tools that enable the Court to reveal discrimination that is not apparent at first glance. For that reason the methods used inEnderbyarebut one of any number that may be deployed by the Court as the circumstances dictate. She refers by contrast to the statistical examination deployed in Case C-167-97R v Secretary of State for Employment ex parte Seymore Smyth & Perez[1999] ECR 1-623. In that case the methods used inEnderbywould not have been adequate nor appropriate to the matters before the Court. Accordingly the Court interrogated the statistics using a different method to reveal the extent to which the Complainants in that case were being discriminated against on the gender ground. She submits that this Court must equally apply the appropriate interrogative methods to examine the information before it in this case and not confine itself to any one method that may or may not be suitable for a proper analysis of the data before it. She also referred the Court to the Decision of the Court of Appeal for England and WalesinBailey v Home Office[2005] IRLR 369.She submits that, should the Court have any doubt on this point, it might consider referring the issue for a ruling to the CJEU pursuant to Article 267 of the TFEU She submits that the correct approach in this case is to apply the analytical methods employed inSeymore Smyth. She submits that when this method is applied to the data in this case it reveals that 70% of the disadvantaged group are women whereas there are no men who fall into that category. As there are 190 disadvantaged women in the total pool, it can be assumed that for every disadvantaged man that might appear in the population there will be at least 190 disadvantaged women thereby giving a ratio of at least 190:1. She submits that this is more than sufficient prima facie evidence of indirect discrimination.

Finally, Counsel acknowledged that the issue of like work remains to be addressed. She submits, however, that the Court should make its decision on the issue before it on the assumption that the Complainants and the Comparator grades are engaged in like work as was done by this Court in theDepartment of Justice Equality and Law Reform v CPSU[2008] 19 ELR 140. Counsel submits that in this way the time and expense involved in addressing this matter would only arise for the parties should the Court uphold its appeal on this point.

The Respondent’s Position

Counsel for the Respondent, Mr John O’Donnell, S.C., submits that the matter before the Court has effectively been decided in Determination EDA113Buckley V HSE. He submits that the Court correctly applied the law in that case and that the Complainant did not appeal that Determination to the High Court as was their entitlement at the time.

He submits that it is common case that the complaints raise an issue of indirect discrimination. He refers the Court to the provisions of Section 19(4) of the Employment Equality Act 1998 (as inserted by Section 12 of the Equality Act 2004) that provides

• 
  (a)Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being A’s or B’s) 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 that aim are appropriate and necessary

  (c)In any proceedings statistics are admissible for the purpose of determining whether this Subsection applies to A’s or B’s

He submits that the complaint was filed with the Equality Tribunal in July 2008. Accordingly, he submits that the Act provides for arrears of equal remuneration in respect of not more than three years before the date of referral of the complaint. Accordingly he submits that the relevant time for the purposes of this complaint commences in July 2005. He submits that at that time the gender breakdown of the comparator group was 53% male and 48% female. In July 2008, it was 52% male and 48% female and in September 2010, it was 50.4% male and 49.6% female. On these figures he submits that at no stage during the relevant period or thereafter was the comparator group “predominantly” male.

He submits that the Complainant has failed to meet the evidential burden of proof set out by this Court inSouthern Health Board v Mitchell[2001] ELR 201. He submits that no prima facie evidence of discrimination has been made out by the Complainant. He submits that the statistical approach advocated by the Complainant would lead to absurd conclusions and cannot be adopted by the Court. He submits that this Court has already decided the legal issues that arise in this case. He submits that a reference to the CJEU would be both inappropriate and a waste of that Court's time and resources. He submits that the Decision of the Equality Officer should be upheld and the appeal rejected.

Findings of the Court

It is common case that the facts of this case are similar to those that arose in Determination EDA113Buckley V HSE.It is also common case that the legal issues that arise are similar in both cases. The Court is effectively asked to either set aside its Determination in Buckley or refer the issues raised by the Complainants to the CJEU by way of an Article 267 referral.

In Buckley a differently constituted Division of this Court found, in relevant part, as follows: -

• It is clear that at all times the Complainant was on a lesser salary scale than that which applied to the two named Comparators. Being on a lesser pay scale is not in itself contrary to the provisions of the Act. What would be contrary to the Act is if the higher salary scale was paid to a group of predominantly male workers on the one hand and that the lesser scale was paid to a group of predominantly female workers on the other hand who were engaged in like work or work of equal value at the relevant time.

  Both sides have agreed that this is not a case of direct discrimination within the statutory meaning of that term. Accordingly to ground a case of indirect discrimination the Complainant must show that, at the relevant time, “an apparently neutral provision, criterion or practice” was in place that “put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.”

  The Complainant submits that the Court should refer to the gender composition of the respective grades at the time the Blue Book was put in place to determine if there was a “provision, criterion or practice” in place that, whilst apparently neutral in nature, put persons of one sex at a particular disadvantage compared to persons of the other sex. On the basis of this information the Complainant submits that the Court must conclude that the salary scales indicate a gender bias that was sufficient to shift the burden of proof to the Respondent.

  The Court cannot accept this view. Even if the complainants establish that the scales were originally gender based, that, of itself, is not sufficient to establish a prima facie case of discrimination within the statutory meaning of that term.

  In order to establish a prima facie case the Complainant must identify the “provision, criterion or practice” that is complained of and that she or he alleges disproportionately and adversely affects her or his gender.

  He or she she must present credible evidence to the effect that that would indicate that the provision, criterion or practice continues at the time the complaint is first made ,l and that it adversely affects the Complainants gender.

  Showing that the comparator grade was at one stage in history gender biased does not meet the criteria set out above and required by the Directive and the Act. The bias and or the impugned provision, criterion or practice must be discernable, either directly or indirectly, at the time the complaint is first made to the relevant Tribunal or Court. As the Court has stated, in equal pay claims statistical evidence showing a gender imbalance between the complainant grade and the respondent grade in the three year period prior to the claim being made will be considered.

  From the figures presented by both parties to the Court the gender composition of the comparator grade at the time the claim was submitted to the Tribunal was as follows: -

  Table 3

  Year	2006
  %Female	48.2
  % Male	51.76

  From these figures it does not appear that this amounts to direct or indirect evidence that there was a “provision, criterion or practice in place that put persons of one sex at a particular disadvantage compared with persons of the other sex in accessing the grade.

  Table 4 sets out the gender composition of the comparator grade for the three years prior 2006.

  Table 4

  Year	2003	2004	2005
  % Females	49.4	47.8	47
  % Males	50.6	52.2	53

  On the basis of these figures the Court concluded that the gender composition of the comparator grade in 2006 was not a temporary phenomenon.

  Whilst at no point over that period did the number of females in the grade exceed the number of males, there is no basis on which the Court could find that it was predominantly male in nature. The Court therefore finds that the comparator Grade was not, at the relevant time, predominantly male.

  The Court must consider whether the gender composition of the Comparator and Complainant grades at the time the Blue Book came into being is relevant in this case. The Court is of the view that, whilst it is clear that the gender composition of the respective grades, at that time, was predominantly male and female respectively, this situation changed over the intervening years and was not the case at the time the Complainant commenced her claim under the Act or in the three years prior to that time.

  As times passes circumstances change. Something that was discriminatory in the past may not be in the present or the future and vice versa. Inherent in the Directive and the legislation is a provision that an employer can take steps to eliminate a discriminatory provision, criterion or practice that disproportionately disadvantages one gender . Where such steps have been taken it would not seem consistent with the purpose of the Act or the Directive for a claim to succeed on the basis that a grade scale, though not now discriminatory, was at one time in history. In the instant case it is clear that any historic discrimination which may have existed has long since disappeared and it is for individuals as individuals to decide whether to enter psychiatric nursing or general nursing.

  The Court takes the view that, whilst the historic origin of a salary scale may be an important factor in explaining the background to a particular case, any particular complaint of discrimination must be assessed at the time the complaint is submitted The Complainant has failed to establish that any such discrimination existed at the time the complaint was made.

There appear to be two main tests that have been applied by the Courts when deciding complaints of indirect discrimination on the gender ground. The first is set out in the Directive and statute and examines thecauseof the discrimination. Where the Complainant can identify a “p, c, p” that, whilst appearing neutral, in fact disadvantages women relative to men the burden of proving that the discrimination is not gender-based shifts to the employer. The second test, which was applied in the Enderby case, examines theeffectof discrimination on a grade, group or category of workers. It applies where an examination of the composition of two grades reveals that a predominantly male grade, performing like work to that performed by a predominantly female grade, enjoys an advantage in its terms and conditions of employment over the female grade. In such circumstances the burden of proving that there Is a reason other than gender justifying the advantages enjoyed by the male grade lies with the employer. This test is normally met through the application of a statistical analysis of the composition of the advantaged and disadvantaged groups in the relevant grades.

Counsel for the Complainant seeks to introduce a third test into the examination of such complaints. She submits that where two grades perform like work and the composition of one is exclusively female and the composition of the comparator grade is gender-neutral a rebuttable presumption of gender-based discrimination arises. She submits that where an analysis of the statistics in such a case reveals a “disparate adverse impact” on men or women the requirements of Section 85 (a) of the Act have been met in that facts have been established “from which it may be presumed that there has been discrimination in relation to him or her”. The logic of this position is that it must be inferred that the advantages enjoyed by the gender-neutral grade arise out of the fact that there are men in that grade while the same advantages are not enjoyed by the exclusively female grade.

She submits that an analysis of the statistics in this case similar using a method to that employed inSeymoure-Smithreveals the extent of the disadvantage suffered by the exclusively female grade thereby establishing the “adverse impact” referred to by Advocate-General Lenz in his Opinion at paragraph 28 inEnderby.

Counsel for the Respondent submits that there is no legal basis for the proposition put forward by Counsel for the Complainant and submits that the evidence does not disclose a pay differential that is related to difference in gender. The evidence discloses that the comparator group is not predominantly comprised of men but is gender-balanced and neutral. He submits that the British authorities upon which the Complainants rely do not assist the Court as the concept of indirect discrimination is not provided for in English law. Accordingly, the British Courts have responded by feeding indirect discrimination into their Section 1(3) defence. The manner in which they have done this causes the burden of proof to shift at a much earlier stage in British law.

The Court does not accept the view advanced by Counsel for the Complainants. Gender discrimination is binary in nature. In order for the Acts to take effect the pay of a woman must be compared with that of a man performing like work. Where grades are involved the pay of a predominantly female grade must be compared with the pay of a predominantly male grade in order to establish if a prima facie case of discrimination has been made out. The Acts have no effect where the pay of a woman is compared with that of another woman or the pay of a predominantly female grade is compared with that of a grade that is gender-neutral. To do otherwise is to extend the concept of equal pay beyond the law as enacted in this State or as set out in the Directive. An analysis of the statistics similar to that involved inEnderbycan only be contemplated where the binary conditions of a male and female comparators have been satisfied. The statistical analysis is then deployed to determine whether the existence of such grades has translated into a comparative disadvantage in the manner in which the female grade has been treated relative to the treatment of the male grade. In the absence of these two fundamental prerequisites the starting point for such a statistical analysis is not present. Statistical analysis is a tool to assist the Court reveal discrimination that may not be apparent at first glance. They are not a tool to reverse engineer a case of discrimination where the fundamental ingredients required by the Act are not present i.e. a male and female comparators whether they be individuals or grades.

Accordingly, the Court does not accept the arguments by Counsel for the Complainants and takes the view that they represent an extension of the law that has no support in the Directive or the statute.

Having carefully considered the submissions and arguments advanced by the parties in the instant case the Court adopts the reasoning in Buckley which this Division of the Court accepts as containing a correct analysis of the applicable law. In reaching its decision the Court has considered if it should seek the guidance of the CJEU by way of preliminary ruling on questions of European Union law.

Article 267 of the TFEU provides, in effect, that where a question of European Union law is raised before any Court or Tribunal of a Member State, that Court or Tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a rulingthereon. It is therefore a matter solely for the Court to decide whether or not a reference is necessary in order to determine the case. The Court has considered the submissions of the parties on the necessity of a reference to the CJEU and has decided that such a reference is not necessary in order for it to decide this case.

The Court has examined the findings of the Equality Officer, concurs with her analysis of the facts and her application of the law in this case and affirms her Decision.

Determination

The Court affirms the Decision of the Equality Officer and rejects the appeal.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
15th February, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.