Doran v Minister for Finance

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 03 April 2001
• Neutral Citation: [2001] IEHC 57
• Docket Number: [1999 No. 531
• Court: High Court
• Date: 03 April 2001

[2001] IEHC 57

THE HIGH COURT

Mr. Roderick Murphy

No. 531SP/1999

DORAN & ORS v. MINISTER FOR FINANCE & ORS

COURT NO. 6

IN THE MATTER OF THE ANTI-DISCRIMINATION (PAY) ACT, 1974

BETWEEN

AUDREY DORAN, SANDRA MURPHY, BARBARA CARRICK, CLARE PILKINGTON, PAULINE MURRAY, ANN MURPHY, KATHLEEN GLACKIN, BARBARA GALLIGAN, JOAN FITZGERALD, MARGARET O'BRIEN, JOAN ROONEY, JACQUELINE CARR, LINDA CARROLL, MARY FALLON, ANN EGAN, SIOBHÁN KERR, SHEILA SLEVIN, NUALA LYDON, BERNADETTE O'DONOVAN, BERNIE MCCABE, PATRICIA ANDREWS, MARIAN O'CONNOR, KAY BIRCH, CATHERINE BANVILLE, RITA HANROHAN, MARY AOIFE FITZPATRICK, CIVIL AND PUBLIC SERVICE UNION

APPLICANTS

AND

MINISTER FOR FINANCE, MINISTER FOR SOCIAL COMMUNITY AND FAMILY AFFAIRS, MINISTER FOR AGRICULTURE AND FOOD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR DEFENCE, OFFICE OF PUBLIC WORKS, REVENUE COMMISSIONERS

RESPONDENTS

Citations:

ANTI-DISCRIMINATION (PAY) ACT 1974 S7(1)

ANTI-DISCRIMINATION (PAY) ACT 1974 S8

ANTI-DISCRIMINATION (PAY) ACT 1974 S2(3)

FLYNN V PRIMARK 1997 ELR 218

BILKA-KAUFHAUS GMBH V WEBER 1986 ECR 1607

ENDERBY V FRENCAHY HEALTH AUTHORITY 1993 IRLR 591

EEC DIR 97/80

NATHAN V BAILEY GIBSON LTD 1996 ELR 114

MIN FOR TRANSPORT V CAMPBELL UNREP KEANE 20.6.1996 1996/7/186

IRISH CROWN CORK V DESMEND 1993 ELR 180

CLAY CROSS (QUARRY SERVICES) LTD V FLETCHER 1978 IRLR 361

SHIELDS V E COMMES HOOLDING LTD 1998 IRLR 263

HILL & STAPLETONV REVENUE COMMISSIONERS 1998 IRLR 466

SEYMOUR-SMYTH 1999 IRLR 253

SIRDAR V FARIKDATE 1894 AC 670

TREATY OF ROME ART 177

ANTI-DISCRIMINATION (PAY) ACT 1974 S8(3)

BRIDES V MIN FOR AGRICULTURE 1998 4 IR 250

ANTI-DISCRIMINATION (PAY) ACT 1974 S2(1)

ANTI-DISCRIMINATION (PAY) ACT 1974 S8(5)

CONLON V UNIVERSITY OF LIMERICK 1999 2 ILRM 131

MARA V HUMMINGBIRD 1982 ILRM 421

DEFRENN V SABENA 1976 ECR 455

Synopsis:

EMPLOYMENT

Discrimination

Equality - Equal pay claim - Determination of Labour Court - Whether Labour Court erred in law in reaching its decision - Anti-Discrimination (Pay) Act, 1974 (1999/531Sp - Murphy J - 3/4/01) [2001] 2 IR 452; [2001] ELR 330

Doran v Minister for Finance

The case concerned an equal pay claim by the applicants. The claim had been rejected in the Labour Court. In the High Court Mr. Justice Roderick Murphy held that Labour Court had erred in law in reaching its decision and the matter would be remitted for re-hearing.

1 Mr. Justice Roderick Murphy delivered the 3rd day of April 2001.

1. BACKGROUND

2 This is an application by way of Special Summons against a determination of the Labour Court of the 26th of July 1999 (No. 99/2) which held that there was objective justification for indirectly discriminatory pay practice in relation to the Applicants, who at all material times were Clerical Assistants, and comparator Paperkeepers.

3 The first 26 named Applicants were at all material times employed as Clerical Assistants by the Respondents and are represented by the Civil and Public Services Union, the last named Applicants.

2. PREVIOUS REFERENCES

4 2.1 On the 14th of November 1991 the Union referred a complaint of pay discrimination on behalf of the claimants to the head of Equality Services of the Labour Court under Section 7(1) of the Anti-Discrimination (Pay) Act 1974("The 1974 Act").

5 The Equality Officer issued recommendation EP07/98 on the 8th of April 1998 which found that, although the claimants were employed on "like work" as that performed by the compareters, the difference in pay was unrelated to sex and the Respondents' therefore had not discriminated against the Applicants, contrary to the terms of the 1974 Act.

6 2.2 On appeal to the Labour Court pursuant to Section 8 of the 1974 Act the determination, already referred to, accepted that the differences in pay for the two grades are justified on grounds other than sex. The Court, accordingly, upheld the Equality Officers recommendation.

3. LABOUR COURT DETERMINATION

7 2 3.1 The Labour Court noted what it believed to be the common case that the grade of Clerical Assistant, to which the Applicants belonged, is a recruitment grade whereas the grade of Paperkeeper (as comparators) is a promotional grade. It also regarded it to be common case that it is possible to gain promotion from the grade of Clerical Assistant while and it is not possible to gain promotion from the grade of Paperkeeper. The Labour Court also noted the Respondent's contention, among other grounds, that in order to motivate staff and to maintain a sense of vocation it was necessary to promote them and that the promotion could be accompanied by an increase in pay and result in different pay scales. These reasons, it claimed, constituted grounds other than sex under Section 2(3) the 1974 Act in relation to the difference in pay between the two grades.

8 3 3.2 The Labour Court referred to the considerable volume of European and Irish Case law on the point: Flynn -v- Primark (1997) ELR 218; Bilka-Kaufhaus Gmbh -v- Weber (1986) ECR 1607 and Enderby -v- Frencahy Health Authority (1993) IRLR591.

9 3.3 That Court also referred to the Council Directive 97/80/EC of the 15th of December 1997. Article 2 of that directive states that:

"Indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex".

10 3.4 The Labour Court accepted the fact that the Clerical Assistant grade is a recruitment grade from which the claimants may seek promotion to other grades. The Court also accepted the fact that the Paperkeeper grade from which there are no further promotional outlets. The Court then continued:

"Given the particular circumstances of the grade of Paperkeeper within the Civil Service structure, the Court finds as a fact that the creation of grade of Paperkeeper was necessitated by need to encourage motivation among staff who could attain that grade, to maintain a sense of vocation amongst them in the long-term and to raise morale amongst those members of the Respondents' staff employed within the section. Due to the fact that there were no further outlets from that grade, the only appropriate means of encouraging staff in this grade was by means of a pay differential and, accordingly, the pay difference was necessary for the reasons outlined above. The Court is assisted in this view by the fact that at the top of the respective scales, the Clerical Assistant grade, in fact, earns more than the Paperkeeper grade, allied to the fact that there are no promotional opportunities from the grade of Paperkeeper. This is not the case in the case of the Clerical Assistants who have unlimited promotional opportunities through a heirarchy of grades.

The Court, accordingly, finds as a fact that the differences in remuneration arising from those measures correspond to a real need on the part of the Respondents and were appropriate and necessary to that end".

11 3.5 As a result of those findings and views the Court accepted that the difference in pay for the two grades is justified on grounds other than sex and, accordingly, upheld the Equality officers recommendation.

4. APPLICANTS' SUBMISSION

12 4.1 Ms. Mary Honan, Barrister of Law, on behalf of the Applicants, submitted that indirect sex discrimination refers to disadvantage resulting from a criterion which is gender neutral but which nevertheless impacts adversely and substantially on a particular sex. Once a prima facia case of indirect discrimination is established the onus of proof shifts to the Respondent to show objective justification for the measures resulting in the pay differential. Having considered Enderby, Nathan -v- Bailey Gibson and Flynn -v- Primark (1) Ms. Honan referred to the classical formulation of the test for objective justification in Bilka - Kaufhaus.

13 4.2 That test, she submitted, was as follows:

14 ....where it is found that the measures chosen for achieving the objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end".

15 Moreover the measure chosen to achieve a particular objective must be consistent with the principle of proportionality.

16 4.3 Four Nett issues arise in the Applicants' submission.

17 4.3.1 The first of these, detailed in grounds (i) and (ii) relates to direct discrimination on grounds other than sex. Counsel for the Applicants submit that the Labour Court accepted that a motivational policy aimed at maintaining a sense of vocation was a ground other than sex. The means chosen to achieve this objective resulted in a grading structure with pay differential. The motivational policy was twofold: to motivate Service Officers and others to apply for the Paperkeeper grade and to motivate the Paperkeepers who had no promotional outlet.

18 In her submission, Ms. Honan says that motivation or intention is not a relevant factor in discrimination cases. Most pay discrimination could be thus validated.

19 The history of Clerical Assistant and Paperkeeper grades clearly shows, in the Applicants submission, that the grading structure is originated and developed as sex differentiated grades. To accept the nature of this structure as legitimising a pay differential is to perpetuate the discrimination which the legislation was designed to change.

20 The employer must prove that the differentiation is genuinely attributable to grounds other than sex. It cannot be used to uphold a practise which seeks to conceal discrimination on sexual grounds (See Keane J in Minister for Transport Energy and Communication -v- Campbell ( Unreported, 29.06.96) and Irish Crown Cork -v- Desmond (1993) ELR 180.

21 Ms. Honan adopted the passage of Lord Denning....