Flynn v Pennys Ltd & Min Equality & Law Reform

JudgeMr. Justice Barron,Ms. Justice Laffoy
Judgment Date04 March 1999
Neutral Citation[1997] IEHC 25
Docket NumberNo. 224 sp/1996,No. 522 SP/1997
CourtHigh Court
Date04 March 1999

[1997] IEHC 25


No. 224 sp/1996





Judgment of Mr. Justice Barrondelivered on the 12th day of February, 1997.


This is an Appeal from a determination of the Labour Court made on the 5th February, 1996. The Applicants are clerical or sales assistants employed by the Respondent in several of its stores in the Dublin area. They are predominantly female. The Compartors who are all male work as storemen in one of the Respondent's stores in Dublin. The Claimants sought to be paid equal remuneration with the Comparators under the provisions of the Anti-Discrimination (Pay) Act, 1974. The Equality Officer and on Appeal the Labour Court have both found that though the Claimants do like work within the meaning of that expression as used in the Act there are reasons other than sex for the differences in remuneration between the two classes of workers.


The issues of law raised by the special summons and as submitted by the Appellants in Court are essentially that the Labour Court in coming to its determination failed to consider whether or not there was an objective justification for the difference in remuneration.


The finding of the existence of a ground other than sex is based upon productivity agreements entered into between the employers and the Comparators between the years 1974 and 1979. The Claimants submit that the existence of such agreements does not prevent a prima facie finding of discrimination and that whether or not such agreements constitute a ground other than sex depends upon whether there is an objective justification upon economic grounds for this difference. It is a fundamental part of this submission that the appropriate date in relation to which the difference must be so justified is the date of theclaim.


In support of their submissions, the Claimants rely upon a number of authorities in which the alleged discrimination was indirect in that the practice complained of affected significantly more women than it didmen.


The principles established by a number of cases heard by the European Court is that where a practice exists which affects significantly more members of one sex than of the other, there is prima facie discrimination of a kind prohibited by Article 119 of the Treaty. Whether there is such discrimination depends upon whether the employer can establish an objective justifiable economic reason for such practice: The onus to do so lies on the employer. So in Jenkins-v- Kingsgate 1981 E.C.R. 911 the practice alleged to be discriminatory was one whereby part-time workers were paid less than full-time workers doing the same work. The former were predominantly female while the latter were predominantly male.


Material portions of the judgment of the Court appear between paragraphs 9 and 15 of the report.

"..............the purpose of Article 119 is to ensure the application of the principle of equal pay for men and women for the same work. The differences in pay prohibited by that provision are therefore exclusively those based on the difference of the sex of the workers. Consequently the fact that part-time workers paid at an hourly rate lower than pay for full-time work does not amount per se to discrimination prohibited by Article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex: Paragraph 10"


If there is no such distinction, therefore, the fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in Article 119 of the Treaty insofar as the difference in pay between part-time work and full-time work is attributable to factors which are objectively justified and are in no way related to any discrimination based on sex: Paragraph 11


Such maybe the case, in particular, when by giving hourly rates of pay which are lower for part-time work than those for full-time work the employer is endeavouring, on economic grounds which may be objectively justified, to encourage full-time work irrespective of the sex of the worker: Paragraph 12


The Court went onto indicate that Article 119 would be infringed if the pay policy could not be explained by factors other than discrimination based on sex; and that it was for the National Courts

"to decide in each individual case whether, regard being had to the facts of the case, its history and the employers intention, a pay policy such as that which is at issue in the main proceedings although represented as a difference based on weekly working hours is or is not in reality discrimination based on the sex of the worker": Paragraph 14.


Accordingly it was decided

"that a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by Article 119 of the Treaty unless it is in reality merely an indirect way of reducing the level of pay of part-time workers on the ground that that group of workers is composed exclusively or predominantly ofwomen".


In Bilka-Kaufhaus -v- Weber 1986 E.C.R. 1607 the part-time workers were excluded from an occupational pension scheme; while in Rinner-Kuhn 1989 E.C.R. 2743 there was different treatment as regards the payment of wages during periods of illness. In Enderby -v- Frenchay Health Authority 1994I.C.R. 112, there were different wage structures for different professions employed by the health authority.


The principle upon which all these cases was decided is set out in paragraph 25 of the judgment of the Court in the latter case asfollows:-

"The Court has consistently held that it is for the National Court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker sex but in fact affects more women than men may be regarded as objectively justified economicgrounds".


In Enderby, the difference in pay was the result of different industrial negotiations relating to the particular workers concerned. The Court said at paragraph 22 of its judgment:

"The facts that the rates of pay at issue are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same Trade Union are treateddifferently........

Accordingly.....the fact that the respective rates of pay of two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and, takenseparately, having themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between those two jobs".


In the same case dealing with the question of the need to offer higher rates of pay to attract candidates the Court said at paragraph 26:

"The state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified economic ground within the meaning of the case law cited above. How it is to be applied in the circumstances of each case depends on the facts and so falls within the jurisdiction of the National Court".


The effect to be given to different collective bargaining processes was referred to in The Royal Copenhagen case in 1995 in the judgment of the Court it said:-

".....the fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the National Court as a fact in its assessment whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds ofsex".


The application of these principles can be seen in the decision of the Supreme Court in Nathan -v- Bailey Gibson Limited 1996 E.L.R. 114. In this case there was a provision that applicants for particular employment should be members of a particular TradeUnion. In the course of his judgment which was the judgment of the Court Hamilton C.J. said at page 128:-

"A requirement, relating to employment or membership of a body which is not an essential requirement for such employment or membership in respect of which the proportion of persons of the other to comply are substantially higher may amount to indirect discrimination even when a person is obliged to comply therewith for reasons other than a persons sex or maritalstatus".


On the same page he further said:-

"In such a case the worker is not required, in the first instance, to prove a casual connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bear significantly more heavily on members of the complainant sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff's sex".


In the event the matter was referred back to the Labour Court for further consideration.


The principles of law established by the case law to which I have...

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