EDA133

Background
This is an appeal by Ms Vicki Ashmore against the decision of the Equality Tribunal in her claim for equal pay with a male comparator in her employment with the Nationalist and Leinster Times Limited. Ms Ashmore, who is the appellant in the case, is referred to as the Complainant and her employer is referred to as the Respondent.

This case was taken in conjunction with another claim by the Complainant for equal pension treatment taken pursuant to the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. That claim was conjoined with the Complainant’s equal pay claim and heard together by the Equality Tribunal. The Complainant was unsuccessful in that claim and she also appealed against the findings of the Equality Tribunal to this Court. The appeals of both cases where listed together by the Court. At the commencement of the hearing the Court was told that discussions had taken place between the parties on the Pension Acts case and an application was made to adjourn that aspect of the case generally with liberty to re-enter. That application was granted and the appeal proceeded on the equal pay claim only.

The Dispute
There are two aspects to the equal pay claim being pursued by the Complainant. Firstly, she grounds her claim on a difference in overall pay as between her and her male comparator. The fact of unequal pay is admitted. This arose from the payment to the comparator of an additional element of pay referred to as ‘the house rate’ in addition to the basic industry rate for the printing sector. The Complainant is paid the industry rate only. The second aspect of the claim relates to the pensions contribution paid by the Respondent in respect of the Complainant relative to that paid in respect of the comparator. The Respondent pays a pension contribution equal to 14.84% of salary in respect of the comparator. It pays a contribution of 5% of pensionable salary into a different pension scheme in respect of the Complainant.

The Facts
The material facts of this case are not in dispute as they were helpfully agreed between Counsel on both sides.

The Respondent is a regional newspaper. The Complainant is a typesetter involved in the printing of the newspaper. The Complainant is seeking equal pay with a named comparator. It is accepted that the Complainant and this comparator are engaged in like work within the statutory meaning. The Complainant works part-time whereas the comparator works full time. It is also accepted that the Complainant is paid less than her comparator although there is some difference concerning the extent of the disparity. The Complainant contends that she is paid an hourly rate equal to 80% of that paid to the comparator. The Respondent contends that the Complainant’s rate equates to slightly over 90% of her comparators rate. This difference is not material for present purposes as the only question that the Court has been asked to determine is whether or not the Complainant is entitled to equal pay, pro-rata to her hours of work.

The origins of the present dispute can be traced to the conclusion of a collective agreement between the Respondent and a trade union representing its production staff in 1998. This agreement, in effect, facilitated a restructuring of work organisation within the employment. Previously, the work of printing the newspaper was, in common with other newspapers, performed by qualified printers who had been trained through a traditional apprenticeship system. All production staff worked full-time and there was rigidity in work practices and working hours.

The agreement was concluded against the background of significant technological innovation affecting the printing industry. These developments diminished the requirements for some of the traditional skills of printers. The agreement was primarily directed at facilitating the use of new technology and introducing more flexible working arrangements which the management of the Respondent believed were more suited to the changing needs of the business.

For present purposes the most important outcome of this agreement was that workers who had not completed a formal apprenticeship could be deployed in printing work that was previously the exclusive preserve of craft printers. It was also agreed that production workers could be employed on a part-time basis. In conjunction with this restructuring of work organisation the Respondent sought to reduce the overall level of pay applicable to production work. At the time the agreement was concluded a printer’s rate of pay was £317.71 per week. This was made up of the basic rate for the industry, which appears to have been £274.60 per week, and what was referred to as a ‘house rate’ of £43.11 per week. The Court was told that this house rate had evolved over time by the application of various additional payments for various purposes. By 1998 it had become consolidated in the printer’s rate.

The Respondent wished to eliminate this house rate. The Respondent sought to buy-out this element of pay from existing staff but this proved unsuccessful. It was eventually agreed that existing employees would retain the house rate, consolidated in their basic pay, but that it would not apply to new employees. A new hourly rate of pay was also introduced for part-time employees, which was less than the hourly rate applicable to full-time employees. In consequence of this agreement the house rate continued to be included in the pay of all production staff whose employment commenced before 1998. Those whose employment commenced after that date were paid the basic rate only.

The Complainant, who is not a time served printer, was employed by the Respondent in 2001. She worked part-time and was paid the part-time hourly rate and did not receive the house rate. In or about 2005 the Complainant brought proceedings under the Protection of Employees (Part-Time Work) Act 2001 seeking to have her rate of pay adjusted to bring it into line with the full-time rate applicable to those who, like her, commenced in employment after 1998. She succeeded in that claim and had her rate adjusted to that of a full-time production worker whose employment commenced after 1998. There remained a difference between her pay and that of comparable employees whose employment had commenced before 1998.

Prior to 1998 the Respondent operated a defined benefit pension scheme known as the IMPA scheme. After 1998 the Respondent entered all new employees in a defined contribution scheme known as the TCH scheme. The comparator is entered in the former scheme whereas the Complainant is entered in the latter scheme. While this difference in pension treatment is the subject of separate proceedings which have been adjourned generally, for present purposes the difference in contributions paid by the Respondent into the respective schemes is in issue. The Complainant contends that the employer’s contribution constitutes pay for the purpose of the Act and that the higher rate of contribution paid by the Respondent in respect of the comparator relative to that paid on her behalf amounts to a further incident of unequal pay.

The Respondent denies that pension contributions constitute pay. In relation to the admitted pay difference the Respondent contends that it is explained by the fact that the Complainant commenced employment after 1998 whereas the comparator commenced employment before that date. This, the Respondent contends, is a ground other than sex for the difference in pay. It relies on s.19(5) of the Act which, it contends, provides a full defence to the claim.

Since the introduction of the now impugned changes in 1998 nine production workers, of whom the Complainant is one, have been employed by the Respondent at various times. Seven of those workers were women and two were men. All of the seven women employed worked part-time. The two men were full-time workers although one of the male employees worked part-time during part of his service.

The Complainant contends that since the majority of those employed by the Respondent since 1998 are women, the application of the lower rates (and the different pension contributions) introduced in that year constitutes indirect discrimination against women. The Complainant further contends that the introduction of part-time working on foot of the 1998 agreement also contributed to a concentration of women workers in the lower paid category since significantly more women than men are likely to avail of part-time work.

The applicable law
In this case the difference in pay as between the Complainant and her comparator is entirely attributable to the different times at which they each took up employment with the Respondent. That, on its face, is a gender neutral provision.

It is a completed defence to a claim of discrimination for a Respondent to show that the impugned practice or decision has nothing whatever to do with the sex of the complainant. However what might appear to be a gender-neutral explanation may give rise to a claim of indirect discrimination.

A statutory definition of indirect discrimination was first codified in Directive 97/80/EC on the burden of proof in cases of discrimination based on sex. It is now contained in Directive 2006/54/EC on implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)

Article 2(1)(b) of Directive 2006/54/EC provides that indirect discrimination arises where: -

• [A]an apparently neutral provision, criterion or practice would 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;
  

• “It is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant”

• 52. In short, the important thing is whether the appellants have been able to provide an appropriate comparator for the purposes of establishing the existence of ‘a relatively large number of employees’ who do the same work as the appellants but are paid at a higher rate.
  
  53. Thenceforward the problem is one of evaluating the evidence adduced in the proceedings and, as such, it is a question which falls to the national courts to resolve. In this regard, the case-law of the Court of Justice concerning the evidential value of statistics adduced in proceedings to demonstrate the existence of indirect discrimination is applicable. As the Court held in Enderby, ‘[i]t is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant’.
  
  54. In a situation, such as this, of indirect discrimination on grounds of sex, it is for the appellants to provide sufficient evidence of the existence of a difference which, they allege, in practice disadvantages women. As I have indicated, they must establish that a ‘relatively large’ number of men, or ‘enough’ of them, are engaged in equivalent work and are paid at a higher rate than the appellants and, more generally, at a higher rate than a group of individuals predominantly made up of women. They must do so in a way which suggests something that is systemic or indicative of a pay structure that is intrinsically discriminatory, rather than a ‘fortuitous’ or ‘short-term’ phenomenon

Analysis of statistics
It is clear that before statistics can be relied upon for the purpose of showing if a PCP places men or women at a particular disadvantage the numbers in both the advantaged and the disadvantaged groups must be sufficient so to make a statistical analysis viable. In this case the numbers employed at any given point are so small as to make any such a statistical analysis meaningless and inherently open to distortion by a minor variation either way. For example, in 2001, the first year in which an employee was employed on the revised rates, there were a total of eight employees employed in production, made up of six men and two women. One woman (the Complainant) was paid the post 1998 rate and one woman was paid the pre 1998 rate. Thus, on raw statistics, 50% of the women employed were disadvantaged by the PCP in issue and 50% were advantaged. By contrast 100% of the men employed were advantaged by the PCP.

In 2006, the year in which the within claim was referred to the Equality Tribunal, there were a total of 10 employees employed in production, made up of six men and four women. Three women and one man were paid the post 1998 rate. Five men and one woman were paid pre 1998 rate. These figures show that 17% of men were disadvantaged by the PCP (one out of six) and 60% of women were disadvantaged (three out of five). Five men out of six male employees, or 83% were advantaged by the PCP whereas one woman out of four, or 25% was advantaged.

In 2010, when the hearing of the claim commenced before the Equality Officer there were four employees in production, made up of two men and two women. One woman (the Complainant) was paid the pre 1998 rate and one woman was paid the post 1998 rate. Thus, again, 50% of women were disadvantaged by the PCP and 50% advantaged. Two men, corresponding to 100% were advantaged by the PCP.

In 2012, there were six employees in production; two men and four women. The two men were paid the pre 1998 rate and the four women were paid the post 1998 rate. Thus 100% of men were advantaged by the PCP whereas 100% of women were disadvantaged.

As can be seen relatively small changes in the numbers in both groups resulted in these wide statistical variations. In the Court’s view the numbers involved are so small as to render these statistics meaningless and incapable of grounding a claim of indirect discrimination.

Conclusion
In a claim for equal pay, evidence showing that more men than women are in receipt of higher pay for like work does not, in itself, establishprima facieindirect discrimination. Where the difference is genuinely the result of a factor unrelated to gender there is no illegality. What must be demonstrated is that the cause of the difference has such disparate impact as between men and women as to infer that an ostensibly gender neutral determinative of pay is, in reality, discriminatory because it leads inexorably to unequal pay for equal work. Statistics can, in that context, be the evidential tool by which a defence of ‘grounds other than sex’ can be negated by showing that a seemingly neutral PCP is in fact intrinsically discriminatory. Hence, as pointed out by Baroness Hale of Richmond inRutherford, the concept of indirect discrimination looks beyond the formal equality achieved by the prohibition of direct discrimination towards the more substantive equality of results.

Statistics are not decisive in themselves. They are but one aspect to be taken into account in considering if a putative gender neutral requirement is in fact indirectly discriminatory. That proposition was expressly adopted by O’Keeffe J inNeil King and Ors v Minister for Finance and Ors(at par 46). The weight to be given to statistical evidence is directly related to its reliability. It is also clear that it is for the Complainant to establish on credible evidence the factual basis upon which an inference of discrimination can properly be drawn. That point was emphasised by the CJEU most recently in case C- 104/10,Kelly v National University of Ireland (UCD)[2011] ECR 1 -0000, and in case C- 415 /10Meister v Speech Design Carrier System GmbH,Unreported, CJEU, 19^thApril 2012. For reasons already given the Court is satisfied that the statistical evidence tendered in this case is wholly unreliable and of little or no probative value.

Section 19(5) of the Act provides that it is not unlawful to pay women and men engaged in like work differently based on grounds other than gender. The difference in pay at issue in this case is based entirely on the date after which the employee commenced his or her employment and is equally applicable to men and women. In the absence of a finding of indirect discrimination, this is a complete defence to the within claim for equal pay.

In the claim as it relates to pension contributions, the same considerations apply, even if these contributions can properly be regarded as an element of pay. The rate of pension contribution is determined solely on the basis of the pension scheme in which the employees are enrolled and applies equally to men and women. In the absence of reliable statistics showing indirect discrimination in the operation of the pension scheme in which the Complainant is enrolled Section 19(5) of the Act also affords the Respondent a complete defence to this aspect of the claim.

In these circumstances it is unnecessary for the Court to consider the Respondent’s contention that the Complainant is estopped from pursuing these claims.

Determination
The within appeal is disallowed and the Decision of the Equality Tribunal is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
21st January, 2013______________________
JFChairman



NOTE

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