EDA2121

1.Appeal of Adjudication Officer Decision No. DEC-E2016-041

BACKGROUND:

2.The Claimants appealed the Decision of the Adjudication Officer to the Labour Court on the 8th April 2016. Labour Court hearings took place on the26 January 2017; 2, 3 and 4 May 2017; 15 and 16 June 2017. The following is the Court's Determination:

DETERMINATION:

This is an appeal from a decision of an Adjudication Officer/Equality Officer, DEC-E2016-041, dated 4 March 2016.

The Equality Tribunal – as it then was – received a Form EE1 from each of the Complainants initiating their respective complaints under the Act (on 21 December 2011, in Mr Horgan’s case; in February 2012, in Ms Keegan’s case). The grounds of complaint stated on both forms are identical: they indicate that each Complainant is alleging discrimination by the named Respondents on the age ground in relation to (i) conditions of employment; (ii) other; (iii) equal pay. The comparators for the purpose of the complaints are identified as “All teachers who gave service as teachers in state-funded schools prior to 1 January 2011.”

The Court sat on the following dates to hear the appeal: 26 January 2017; 2, 3 and 4 May 2017; 15 and 16 June 2017. The Court is satisfied that what is in issue in this appeal is a claim for equal pay as between workers of different ages. The established jurisprudence indicates that where rules directly and automatically determine pay, any dispute in equality law concerning those rules falls to be dealt with as a claim for equal pay (see Case C-184/89Nimz[1991] ECR I-297, paragraphs 9 and 10 and Case C-181/03Mc KennaECLI:EU:C:2005:513, paragraphs 32 and 33).

Comprehensive written and verbal submissions were received from both Parties. The Court heard evidence from both of the Complainants, from an actuary, Ms Rita-Anne Keyes of Trident Consulting, and from Mr Noel Ward of the INTO. The Court also heard evidence from the following witnesses on behalf of the Respondents: Mr Feargal � Brolcháin, Department of Finance, Mr Tom Clarke, Department of Public Expenditure and Reform and Mr Philip Crosby, Department of Education and Skills.

Having carefully considered the Parties’ written and oral submissions, as well as the very extensive evidence of their respective witnesses, the Court stayed the within appeal and referred a number of questions to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 of the Treaty of the Functioning of the European Union. The questions referred to the Court of Justice and that Court’s answers to them are set out in full later in this determination.

Overview

The Appellants both graduated with a B.Ed degree in 2011 and commenced employment as national school teachers in the autumn of 2011, along with approximately 1,800 other new entrants to the profession that year. In the within proceedings, the Appellants seek to challenge the new common basic scale that was introduced for all new entrants to primary teaching from January 2011 onwards on foot of Circular 0040/2011. Their claim is that the new common basic scale – allied with the requirement that all new entrants from 2011 should be placed on the first point of that scale - constitutes an act of indirect age discrimination contrary to the Employment Equality Act 1998 (“the Act”). The Appellants submit that the appropriate pool from which to draw comparators for the purposes of their claim under the Act is the cohort of national teachers who commenced employment prior to 2011. They further submit that when compared to their chosen comparators, the Appellants are younger and will be paid approximately €100,000.00 less over the duration of their careers as national teachers. By way of redress, the Appellants are seeking arrears of equal pay backdated to the respective dates of their claim and compensation for the effects of the discriminatory treatment they allege.

The Respondents submit that the measures impugned by the Appellants do not constitute discrimination on age grounds and, therefore, they are not obliged to provide objective justification for them. They further submit that the Appellants’ choice of comparator is inappropriate and incorrect and that, in any event, the Appellants have failed to demonstrate that they have suffered a “particular disadvantage” within the meaning of the Act. Finally, the Respondents submit that, notwithstanding their submission in relation to the other matters that fall to be considered by this Court, they have ample objective justification for the impugned measures.

Evidence

Ms Rita-Anne Keyes-Trident Consulting

Ms Keyes prepared a report which examined the earnings differentials between a person who commenced as a national teacher on 1 September 2010 and a person who commenced on 1 September 2011 – taking account of the pre- and post- Haddington Road Agreement changes. Ms Keyes’s report was agreed between the parties.

Ms Keyes found that the total differential – before factoring in the latter changes – was €253,957.00. Post-Haddington Road the differential was €100,625.00. Following the introduction of the new scale on 1 January 2018, the differential will be €99,659.00. Ms Keyes also observed that pre-Haddington Road, the loss of earnings was spread evenly over the career of a 2011 joiner; post-Haddington Road, the loss is front-loaded at an earlier stage in a person’s teaching career.

Mr Tomás Horgan, Complainant
Mr Horgan gave evidence in relation to his date of birth, his age when he commenced his first teaching position in September 2011 (i.e. age 22), his second- and third-level educational history and qualification as a national teacher. The witness commenced his teaching career with a short fixed-term contract in Togher Boys’ School in Cork. He worked for the remainder of the 2011-12 academic year in Charleville, Co. Cork. He currently holds a permanent position in Sunday’s Well Boys’ School. He was placed on Point 1 of the new Common Basic Scale when he commenced teaching. His total salary for that year (including allowances) was €33,832.00. He told the Court that if he had started teaching a year previously his first year’s salary would have been €39,728.00. To the date of the hearing of this case, he calculates he had earned some €26,021.00 less than he would have had the new pay arrangements not been put in place by the Department of Education and Skills in 2011. He opined that he is being ‘demeaned’ and ‘undermined almost’ as a consequence of being remunerated differently to his more senior colleagues. He said that in his experience this creates a ‘sense of nervousness on [his] part’: “Are my older colleagues going to vote for a different pay scheme which will affect me in the future even more?” The witness stated that he does not accept that he could have gone for a job other than primary teaching once he finished in college as his whole orientation had been towards primary teaching from fourth year at secondary school. He was not in a position to re-train for a different career having spent three years pursuing his degree in education.

Under cross-examination from Mr Kennedy SC, the witness accepted that neither he nor his peers would have been happy if the Department had chosen to increase the pupil-teacher ratio in primary schools in 2011 as there would have been fewer teaching posts available for graduates. He also accepted that, unlike in the wider public service at the time, no moratorium on recruitment was applied to the teaching profession. However, he didn’t accept that he and his peers were thereby in a more privileged position than other graduates in 2010 and 2011 etc. who would have wanted a career in the public service. In the witness’s opinion, graduates in other disciplines could also look to potential employment in the private sector. This was not an option open to him.

In response to a question from the Court, Mr Horgan said that he would have been able to live more easily with, for example, a moratorium on recruitment to teaching or a cut in the pupil-teacher ratio, than the situation that prevails currently which has resulted in an unequal rate of pay between teachers doing the same job.

Ms Claire Keegan, Complainant

Ms Keegan also gave evidence of her date of birth and her age (23) when she commenced teaching in October 2011. She too was placed on Point 1 of the new Common Basic Scale. Her evidence in relation to her earnings to date compared to what her earnings would have been had she started teaching a year earlier was identical to that given by Mr Horgan. She also told the Court that her experience as a younger teacher, earning less than her colleagues for doing the same work, impacted on her self-esteem and sense of worth. These feelings have given way, in her case, to feelings of ‘anger, upset, confusion’. She went on to tell the Court that, in practical terms, because she is on a lower level of pay than she would have been but for the new pay arrangements, her ability to obtain a mortgage is impacted significantly.

Under cross-examination, Ms Keegan accepted that, had a moratorium on recruitment been imposed in the education sector, she may not have been employed in 2011 at all. However, she said that she would have held steadfast and attempted to get a job in teaching, nevertheless, as soon as she could have. She opined that a reduction in the pupil-teacher ratio would have been preferable to a reduction in pay for new entrants as at least the sense of equality amongst teachers would have been retained.

Mr Noel Ward

Mr Noel Ward is Deputy General Secretary of the INTO. In that capacity he has been involved in negotiations that led to the Haddington Road Agreement, the Landsdowne Road Agreement and more recently the negotiations regarding the Public Service Stability Agreement. He told the Court that the INTO Executive Committee, to which he reports, had a sense from early 2011 on that the pay adjustments introduced in 2011 gave rise to equality concerns. He said, that in his opinion, the State also knew that the intake to teaching in any given year comprises of typically younger people but the State, nevertheless, went ahead and made the changes. Mr Ward quantified the Appellants’ combined ‘losses’ to the date of the hearing of this case as being in the region of €50,000.00 and their career-long losses would be a combined €200,000.00.

Mr Ward said that the total additional savings required by the State in the teaching sector in 2011 was €12 million. In his opinion, he didn’t think there was any reality to the potential alternative to the pay adjustment proposed by Mr Kennedy SC to the Appellants in cross-examination i.e. the imposition of a moratorium on recruitment; this would have yielded a saving of between €48 million and €52 million. However, the INTO did propose alternatives to the Department that were not taken up e.g. a reduction in the level of State support for fee-charging secondary schools.

Mr Ward stated that the wage bill for the Department of Education for 2017 was €5.67 billion and that it would cost some €70 million more if all employees of the Department were to be moved up two points on the incremental scale. He estimated that (as of the date he gave his evidence) it would cost the Department some €195 million to pay arrears back to 1 September 2011 but accepted, nevertheless, that there is not a great expectation amongst his members that arrears would be paid; their focus is on correcting the ‘discrimination’.

Mr Ward told the Court that the proposal to apply additional cuts to new entrants to the public service did not have its origin in the Croke Park Agreement. Neither was the proposal ever balloted on by members of the INTO, nor by any other public sector trade union. He also spoke about the Haddington Road Agreement and its impact on teachers whereby new pay scales were provided specifically for them with two additional points at the commencement of the scale. Mr Ward opined that in the case of national teachers, the Haddington Road Agreement was a recognition by the State that “newly qualified young teachers had taken an adverse significant hit more than other public servants ... It changed that career-long differential as compared to a 2010 and earlier teacher from [quarter] of a million euro to approximately €100,000 over the career.”

Mr Ward also offered a detailed opinion on the detrimental effect he says the cuts imposed on national teachers have had on industrial relations in the sector. He stated he doesn’t accept the position advanced by the State to the effect that the maintenance of good industrial relations forms part of the State’s objective justification for those cuts because they have had nothing but a deleterious effect on industrial relations, in his view.

Under cross-examination by Mr Kennedy SC, Mr Ward explained the INTO’s involvement with the within proceedings and how he came to personally lodge the claims on behalf of both the Complainants. He also confirmed his agreement with the following figures: the State made savings of some €12 million in the first year following the introduction of the new Common Basic Scale; the annual value of the savings in 2017 is €60 to €65 million; the cost to the State of making payment of ‘arrears’ would (as of the date of the hearing) be some €195 million. Mr Ward also accepted that the annual saving increases on an annualised basis as and when more and more people are subject to the measures in question.

Mr Kennedy SC then asked the witness if he agreed that - commencing with the pension-related pay deduction in 2009 - there had been a suite of measures (taxation, USC, pension levy) introduced in respect of public sector pay that are progressive in nature and impact more severely on higher paid workers than lower paid workers. Mr Ward agreed with this observation.

The cross-examination moved to the alternative courses of action, the Appellants in their submission to the Court say were open to the State in 2011: (i) revisions in school staffing – the witness accepted that this would have been ‘a very unpalatable’ development in the eyes of the INTO membership; (ii) the introduction of other cost-saving measures within the education budget generally – the witness again referred to fee-charging secondary schools and the possibility of the State reducing its subvention to this sector; (iii) revisiting the Croke Park Agreement – the witness stated that although Croke Park was a hard won agreement, by its own terms it could have been revisited if there was an unforeseen deterioration in the State’s finances – which there was and which resulted in the Troika taking control of the State’s finances; (iv) the imposition of further cuts on higher paid public servants – the witness accepted that measures had been introduced both prior to and subsequent to Croke Park that impacted more severely on higher paid public servants (e.g.in the Haddington Road Agreement on people earning over €65,000 per annum); (v) taxation measures.

Mr Feargal � Brolcháin, Principal Officer, Department of Finance

Mr � Brolcháin gave evidence of his role as Principal Officer in the unit within the Department of Finance with responsibility for implementation of the programme agreed with the Troika in late 2010, against the background of the financial crisis that occurred in Ireland from 2008 onwards. He told the Court that the situation which the State found itself in, during that period, could be described as “existential”, meaning “the continued existence of the State functioning as we know it was put in jeopardy”. He outlined in detail the measures taken from July 2008 forward to address, principally, the fiscal problems caused by the collapse of the banking sector. Expenditure and taxation measures were put in place between 2008 and 2010 that amounted to some €14 billion. Those measures included the imposition of the pension-related deduction on all public servants, and a series of reductions in public service salaries.

The witness was referred by Ms Kimber SC to the National Recovery Plan (‘NRP’) published in November 2010, the purpose of which the witness told the Court was to set out a programme for recovery that would reassure the financial markets that Ireland had a substantial and rigorous programme in place so as to facilitate continued lending to the State. The NRP was also intended to address the excessive deficit in the public finances at the time as well as the very high level of debt with which the State was burdened. The increasing cost of servicing that debt resulted in a concomitant reduction in the State’s ability to fund public services. In November 2010, the yield on ten-year Irish sovereign bonds (i.e. the amount the State was then paying in interest on its borrowing) reached 9%. As a consequence of this, the State requested a programme of financial assistance from the EU and IMF that was agreed in late November 2010. The witness next explained the principal terms of the agreed assistance programme whereby the State received €85 billion in funding by way of low interest loans, disbursed on a quarterly basis during the period of the assistance programme, subject to the State meeting a range of pre-agreed targets. The first instalment was conditional on the successful adoption of Budget 2011.

Mr Brolcháin spoke about the requirement on the State to achieve structural reform of the public finances. He referred to the following passage taken from page 21 of Council Implementing Decision of 7 December 2010:

• “7.1 Ireland shall adopt the following measures during 2011, in line with specifications in the Memorandum of Understanding:
  (a) a 10% reduction for new entrants to the public service. The Irish government shall also consider an appropriate adjustment, including in relation to the public service wage bill, to compensate for potential shortfalls from projected savings from administrative efficiencies and public service numbers reductions”.

• “Pension entitlements for new entrants to the public service will also be reformed with effect from 2011. This will include a review of the accelerated retirement for certain categories of public servants and an indexation of pensions to consumer prices. Pensions will be based on career average earnings. New public service entrants will also see a 10% pay reduction. New entrants’ retirement age will also be linked to the State’s pension retirement age.”

• “On 2 December 2010 the Government approved the reduction by 10% of the salary scale and fixed allowances for new entrants to traditional recruitment grades in the public service to achieve a medium-term structural reduction in the cost of the public service with effect from 1 January 2011.”

Mr Clarke introduced himself to the Court and outlined his role in the Department of Expenditure and Reform. His unit looks after remuneration, industrial relations and pensions across a range of public sector areas, including education.

Ms Kimber SC’s examination of the witness focused on four areas: (i) the background to the Croke Park Agreement; (ii) the application of the circulars dealing with pay; (iii) costs; and (iv) the Haddington Road Agreement.

In relation to (i), Mr Clarke told the Court that in 2009 the combination of the pension-related deduction imposed on public sector workers and the decision not to concede pay increases that had previously been agreed gave rise to industrial relations “agitation or unrest” that in turn prompted the then Labour Relations Commission to intervene and invite the public sector unions and management to attend talks with a view to entering into a collective agreement and thereby avoid serious industrial chaos. In that context – he told the Court – the unions were seeking guarantees that there wouldn’t be further pay cuts or compulsory redundancies; they also had concerns on the potential impact of pay cuts on pensioners and future pensioners. Management was focused, in particular, on agreeing productivity, efficiency and flexibility improvements. He reminded the Court that the Croke Park Agreement wasn’t achieved easily and was rejected on the first ballot. Agreement was finally reached in July 2010.

The Agreement did not impose any further or new pay cuts. In fact, the text of the Agreement (at page 6) provides: “There will be no further reductions to the pay rates of serving public servants for the duration of this Agreement. This commitment is subject to compliance with the terms of this Agreement.” The Agreement was subject to a process of ongoing verification by an oversight body to ensure that the flexibilities and efficiencies agreed therein were being achieved. The first report issued in June 2011 and noted that “industrial peace has been maintained during the reporting period”. The witness stated that, in his opinion, the Croke Park Agreement was successful in achieving its objective of maintaining industrial relations harmony, while ensuring the ongoing delivery of frontline services with reduced staffing numbers in the public service. It also achieved the trade unions’ objective of no compulsory redundancies and no further pay reductions.

Ms Kimber SC invited the witness to comment on the following sentence which is included at paragraph 18 of the Appellant’s first submission to the Court: “Therefore, it was open to the Government to revisit the terms of the Agreement at any stage in the event of a further deterioration in the State’s finances.” Mr Clarke agreed that it was open to the Government to revisit the Agreement.

(ii) Ms Kimber SC opened Circular 18/2010 and asked the witness to state what the effect of this circular was. The witness ultimately agreed that Circular 18/2010 applied only to all new entrant grades in the Civil Service and had the effect of reducing their pay rates by 10%. The witness clarified that ‘new entrant grades’ to the Civil Service includes clerical officers, executive officers and administrative officers.

Ms Kimber SC then directed the witness to Mr Duffy’s letter of 21 December 2010 entitled “Guidance on application of 10% reduction in pay rates to entry grades to the public service”. The witness confirmed that both Circular 19/2010 and Mr Duffy’s aforementioned letter had the effect that the 10% pay cut was applicable to all direct entry grades to the civil service. He further told the Court that specific areas of the public service such as education and local authorities subsequently developed their own circulars advising of the precise revised pay scales that would apply in those areas. The witness accepted that there were a small number of grades not encompassed by the measures in question. These comprised largely of a small number of situations whereby persons were recruited as direct entry to management grades or certain other specialist positions. Mr Clarke also stated that trainee Gardai were henceforth to be appointed on the first point of the Garda scale reduced by 10%.

The witness next gave the example of veterinary inspectors which he said were also affected. His evidence in this respect was that on foot of a collective agreement finalised in 1999, a veterinary inspector with a basic degree in veterinary medicine only, who commenced in a relevant public service post in the Department of Agriculture, from that year onwards, automatically started on the fifth point of the relevant scale. The witness opined that this arrangement in respect of veterinary inspectors was similar to the arrangement that applied in the case of national teachers: the arrangement reflected the level of skill and study the newly appointed post-holder brought with him or her. (There followed a detailed analysis by the witness of a document which purported to illustrate the pay scale applicable to veterinary inspectors in the Department of Agriculture in the light of the changes implemented to it from 2008 onwards, including the 10% reduction applied in 2011. It is not necessary to include the full details of that analysis, at this point. The document proved to be unhelpful as it did not include sufficiently clear data to illustrate the 2011 changes.) The nub, however, of the witness’s evidence was that prior to 2011 changes, a qualified veterinary inspector commenced on point 5 of the relevant scale (i.e. €76,860); however, after 1 January 2011, a qualified veterinary inspector taking up a post for the first time was placed on point 1 (reduced by 10%) of the scale i.e. on a salary of €54,500.

Mr Clarke’s examination-in-chief resumed on Thursday, 4 May 2017 at this point. Ms Kimber SC produced copies of documents that had been generated from the Department of Finance’s payroll system overnight. The new documents were accepted by the Court as presenting the data contained in the document opened to the Court on the previous day but showing, in addition, the relevant data for 2011. By reference to the newly introduced document, Mr Clarke confirmed the evidence he had already given to the Court i.e. post 1 January 2011, a newly appointed veterinary inspector commencing employment in the Department of Agriculture started on €54,500.00 i.e. on point 1 of a scale which incorporated the 10% reduction that had been introduced on foot of the 2010 Government decision referred to previously. He estimated this to be a 23% reduction in salary when one compares point 5 of the 2008 scale with point 1 of the 2011 scale. (There was further detailed discussion on costs and of the impact of the Haddington Road Agreement on the scales which it is not necessary to record here.)

Mr Philip Crosby, Principal Officer, Department of Education and Skills

Mr Crosby is the Head of Industrial Relations and Pay Regulation in the Department of Education and Skills. He gave evidence to the Court on two dates: 4 May 2017 and again on 15 June 2017 when he was called back in order to give evidence, in particular, in relation to an additional Department of Education and Skills document that had been submitted and opened to the Court on behalf of the Complainants after Mr Crosby had completed his evidence on the first occasion.

Mr Crosby told the Court that following the imposition of pay cuts on public servants with effect from 1 January 2010, arising from the FEMPI No 2 Act of 2009, there was - what he termed – “a considerable degree of unrest around the public sector, including in the education sector”. This was the context in which the then Labour Relations Commission invited parties to participate in the process that culminated in the Croke Park Agreement. The witness summarised the outcome of that Agreement as amounting to a commitment from Government not to impose further pay cuts on those public servants who had been affected by FEMPI No 2 and a further commitment that there would be no compulsory redundancies in the public service. The Agreement applied to approximately 100,000 people in the education sector alone. However, according to Mr Crosby, it became increasingly clear throughout the course of 2010 that the state of the public finances was still in decline and that further measures would have to be taken to stabilise them. This in turn led to the formulation of the National Recovery Plan which details on pages 120-121 the further cost-saving measures agreed between the Department of Educations and Skills and the Department of Finance, all of which were subsequently implemented.

Ms Kimber SC, in her direct examination of Mr Crosby, asked him to comment specifically on the Complainants’ submission to the effect that the Department of Education and Skills could have implemented alternative cost-saving measures other than those that are in dispute in the within proceedings such as for example revision of school staffing levels. The witness replied that his Department had, in fact, taken some 1,200 “non-mainstream” teachers out of the system. It also imposed a complete moratorium on non-academic recruitment. Further savings were achieved particularly in the area of further and higher education. In addition, senior Traveller training centres across the country were closed with the loss of 300-400 jobs. The witness agreed that technically the Croke Park Agreement would have allowed the State to revisit its terms. However, in reality that was not a realistic option from either a political or industrial relations perspective. To have done so would have resulted in “industrial relations chaos” in Mr Crosby’s view.

Mr Crosby was then asked to comment on the second option suggested by the Complainants: the imposition of additional cuts on the higher paid. The witness replied that the Pension-Related Deduction and the 2010 pay cut were both progressive measures that impacted most significantly on the incomes of those public servants in higher pay grades. It would have been necessary for the State to either breach or revisit the Croke Park Agreement if it were to seek to introduce a further set of progressive measures in late 2010.

Mr Crosby also commented on a further option that the Complainants suggested was open to the Department of Education and Skills i.e.an increase in the pupil-teacher ratio. In his view, had the Department chosen that option the consequences would have included bigger class sizes and overcrowding. It would also have meant that no jobs would have been available for at least one, if not two, entire cohorts of teacher training graduates, for example in September 2011 and September 2012. It would not have been desirable from an economic point of view to take a further two to three thousand jobs out of the system.

Mr Crosby’s evidence then dealt specifically with the question of the level of savings that had accrued to the State directly from the measures which are the subject of the within appeal. The witness informed the Court that savings of between €195 million and €200 million had accrued to the State between 2011 and 2016 arising from those measures alone. He clarified that the savings were progressive i.e. the savings increase year-on-year as more teachers who are paid under the new arrangements enter the system. For example, the saving in 2016 alone was €70 million; the saving in 2017 is expected to be approximately €84 million. Mr Crosby characterised the measure as “a middle- to long-term structural reduction in the pay bill”.

Mr Crosby was recalled to give further evidence on the fifth day of hearing as a material letter (dated 31 August 2016) - prepared on behalf of the Department of Education and Skills and addressed to the secretary to the Public Sector Pay Commission (‘the Commission’) - had just come to Mr Ward SC’s attention and had been introduced by him during his examination-in-chief of Mr Noel Ward. Mr Crosby confirmed that he had signed off on this letter and that it had been prepared by the unit in the Department he headed up at the time. It is necessary to quote the following paragraph of the letter in order to provide context for Mr Crosby’s evidence at this point:

• “There has been a significant level of recruitment of new entrants to frontline teaching and academic grades in the education and training sector in recent years. This is in contrast to many other sectors where recruitment was restricted under the public sector recruitment moratorium. In addition, the 2011 government decisions in relation to new entrant pay had a more acute effect on teachers when compared to other public servants, therefore, any move to restore reductions made to the pay of new entrants will have significant cost implications in the education and training sector.”

• 1.Does it constitute indirect discrimination on grounds of age, within the meaning of Article 2(b) of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, for a Member State, in its capacity as an employer, to introduce lower salary scales for new entrants to the profession of national teacher while leaving unaltered the pay of those teachers already in employment, where:

• (a)The revised salary scales and the existing salary scales apply to all teachers in the respective categories regardless of their age;

• • (b)At the point at which they were recruited and placed on the respective scales there was no difference in the age profile of those in the higher paid group and those in the lower paid group;
  • (c)The introduction of the revised scales has resulted in a substantial difference in pay as between two groups of teachers who are engaged in work of equal value;
  • (d)The average age of those placed on the reduced salary scales is lower than that of the average age of those on the original salary scales(e)At the point at which the lower salary scales were introduced, the State’s statistics showed that 70% of teachers appointed were 25 years of age or under and it was acknowledged that this was typical of the age profile of entrants to national teaching in any given year; and
    

    (f)National teachers who entered the profession in 2011 and later suffer a clear financial disadvantage in comparison to their teaching colleagues appointed prior to 2011.

• 2. If the answer to question 1 is in the affirmative, can the introduction of the lower salary scales be objectively justified by a requirement to achieve a medium- to long-term structural reduction in the cost of the public service, having regard to budgetary constraints facing the State and/or the importance of maintaining good industrial relations with existing civil and public servants?

• 3. Would the answer to question 2 be different if the State could have achieved equivalent savings by reducing the pay of all teachers by a significantly lesser amount than the reduction applied only to newly recruited teachers?

• 4. Would the answer to questions 2 or 3 be different if the decision not to reduce the salary scales applicable to teachers already in employment was taken in compliance with a collective agreement between the Government as an employer and the trade unions representing public service workers whereby the Government committed not to further reduce the pay of existing public servants who had already been subject to pay cuts and the industrial relations consequences that would flow from a failure to comply with that agreement, having regard to the fact that the new pay scale introduced in 2011 did not form part of such a collective agreement ?

• • The first question

    18 By its first question, the referring court asks, in essence, whether Article 2(2)(b) of Directive 2000/78 must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date constitutes indirect discrimination on the grounds of age, within the meaning of that provision.

    19 First of all, it must be recalled that it follows from Article 2(1) of Directive 2000/78, read in conjunction with Article 1 thereof, that for the purposes of that directive the principle of equal treatment means that there must be no direct or indirect discrimination whatsoever on the grounds, inter alia, of age. It is clear moreover from Article 2(2)(b) of that directive that, for the purposes of that directive, indirect discrimination on grounds of age occurs where an apparently neutral provision, criterion or practice would put persons having a particular age at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

    20 Therefore, in order to determine whether Mr Horgan and Ms Keegan may rely on the principle set out in the previous paragraph, it is necessary to ascertain whether teachers recruited after 1 January 2011 are treated differently from those recruited before that date on account of their age at the date of their recruitment.

    21 In that regard, it is apparent from the file before the Court that Ireland chose to amend the remuneration conditions for newly recruited public servants, including teachers, as of 1 January 2011, by providing for a 10% reduction in remuneration and classification at the first point on the salary scale instead of classification at the second or third point.

    22 Those new conditions are applicable to the situation of Mr Horgan and Ms Keegan and to that of the other teachers recruited after that date and it is common ground that those persons are engaged in work comparable to that of the teachers recruited before that date.

    23 On the other hand, the teachers recruited before 1 January 2011 were necessarily classified on the scale in accordance with the conditions in force at the date of their recruitment, that classification determining the amount of their remuneration.

    24 That difference in treatment therefore results from the date of recruitment of the respective group of teachers, since that date determines whether the former or the new rules on the salary scale and classification on that scale are applicable.

    25 Thus the only relevant criterion for the purposes of applying the new rules on the salary scale and classification on that scale is whether the person concerned is a ‘new entrant to the public service as of 1 January 2011’, regardless of the age of the public servant at the date at which he or she was recruited. Accordingly, that criterion, which renders the application of the new rules dependant exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any taking into account of the age of the persons recruited (see, to that effect, judgment of 22 December 2008,Centeno Mediavilla and Others v Commission, C-443/07 P, EU:C:2008:767, paragraphs 81 and 83).

    26 In addition, the referring court stated that although, at the time of their recruitment, Mr Horgan, Ms Keegan and the majority of the other teachers recruited after 1 January 2011 were younger than the teachers recruited before that date, inasmuch as at that date approximately 70% of them were 25 years of age or under, it is also common ground that irrespective of the year of recruitment, both the teachers recruited after 1 January 2011 and those recruited before that date were on average 25 years of age or under.

    27 It follows from the foregoing that the new remuneration conditions introduced by Ireland are not based on a criterion which is inextricably or indirectly linked to the age of the teachers, so that it cannot be considered that the new rules establish a difference of treatment on grounds of age (see, to that effect, judgment of 7 June 2012,Tyrolean Airways Tiroler Luftfahrt Gesellschaft, C-132/11, EU:C:2012:329, paragraphs 29 and 30).

    28 Having regard to those considerations, the answer to the first question is that Article 2(2)(b) of Directive 2000/78 must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.

    The second to fourth questions

    29 In view of the answer given to the first question, there is no need to answer the second to fourth questions.”

Decision and Determination

By its answers to the questions referred by this Court to it, the Court of Justice has ruled that the measures challenged by the Complainants in the within appeal do not constitute indirect discrimination on the grounds of age within the meaning of Article 2(2)(b) of Directive 2000/78/EC of 27 November 2000. The Employment Equality Act 1998 (‘the Act’) was enacted to give effect in national law, inter alia, to Directive 2000/78/EC. The Act must be interpreted and applied, so as to achieve the purpose pursued by the Directive. Accordingly, and having regard to the judgment of the Court of Justice in Case C-154/18, the Court determines that the within appeal fails. The decision of the Equality Officer is upheld.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
13 July 2021	Deputy Chairman