Flynn v Primark (No. 2)

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 04 March 1999
• Neutral Citation: [1999] IEHC 119
• Docket Number: No. 522 SP/1997
• Court: High Court
• Date: 04 March 1999

[1999] IEHC 119

THE HIGH COURT

No. 522 SP/1997

FLYNN & ORS v. PRIMARK T/A PENNYS LTD

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

BETWEEN

SUSAN FLYNN ORLA MURRAY RACHEL MULLEN AND MANDATE THE

UNION OF RETAIL BAR AND ADMINISTRATIVE WORKERS

APPLICANTS

AND

PRIMARK TRADING AS PENNYS LIMITED

RESPONDENT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

NOTICE PARTY

Citations:

ANTI-DISCRIMINATION (PAY) ACT 1974 S3

ANTI-DISCRIMINATION (PAY) ACT 1974 S3(C)

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

TREATY OF ROME ART 119

BILKA-KAUFHAUS V WEBER 1986 ECR 1607

ENDERBY V FRENCHAY 1993 ECR 1–5535

DENNY V MIN FOR SOCIAL WELFARE 1998 1 IR 34

C & D FOOD LTD V CUNNION 1997 1 IR 147

HILL V REVENUE CMRS 1998 IRLR 466

Synopsis

Employment

Employment; equal pay; pay negotiated by two different trade unions; appeal from Labour Court determination that difference in pay was justified on economic grounds; whether an unsustainable finding of fact underlay the entire rationale and approach of the Labour Court; whether Labour Court applied an incorrect legal principle and posed for itself the wrong question; whether Labour Court erred in law in accepting that productivity agreements could constitute objective justification on economic grounds for the difference in pay; whether Labour Court erred in law in accepting as part of the objective justification the ground that the additional pay awarded could not be removed from the work-force without serious industrial consequences; whether the difference in negotiation procedures alone could constitute objective justification; whether the appeal was properly before the Court

Held: appeal dismissed

Flynn v. Primark - High Court: Laffoy J. - 04/03/1999

The Labour Court was perfectly entitled to take an historical perspective to ascertain how the pay differential arose between the applicants and the comparator group and whether the factors giving rise to it were still current. The High Court so held in dismissing the appeal and saying that the Labour Court had done what it was supposed to do in finding that there were objectively justifiable reasons, unconnected with sex, for the difference in remuneration and that while the reasons for this were rooted in history the differential is still currently objectively justifiable on economic grounds.

1 Judgment of Ms. Justice Laffoy Delivered on the 4th day of March, 1999

THE PROCEEDINGS

2 This is an appeal on a point of law from a determination of the Labour Court made on 7th November, 1997. That determination was the sequel to a decision of this Court (Barron J.) of 12th January, 1997 in an appeal by and against the same parties from a determination of the Labour Court made on 5th February, 1996.

BACKGROUND

3 The genesis of both appeals is a claim by 550 sales and clerical assistants employed by the Respondent in its stores and offices in Dublin, three of whom are the first three named Applicants and all of whom are represented by the fourth named Applicant trade union, for equal pay with a group of eleven named comparators who work as storemen in one of the Respondent's stores in Dublin. The group whom the Applicants represent are predominantly female and the comparator group is exclusively male. The claim was initiated in December 1991.

4 In summary, the history of the claim is as follows:-

5 (1) On 6th October, 1994 the Equality Officer made a recommendation that the Applicants and the comparators were employed on like work within the meaning of Section 3 of the Anti Discrimination (Pay) Act, 1974(the Act of 1974), in that each of the Applicants performed work of equal value with each of the comparators under paragraph (c) of that Section, but that there were valid grounds other than sex for the difference in the rates of pay between each of the Applicants and each of the comparators, so that the Applicants were not entitled to the same rate of remuneration as the comparators.

6 (2) The Applicants appealed to the Labour Court against the Equality Officer's recommendation. In its determination on that appeal, which was dated 5th February, 1996, the Labour Court rejected the appeal and upheld the conclusions of the Equality Officer that the Applicants were not entitled to the same rate of remuneration as that of the comparators.

7 (3) The Applicants brought an appeal on a point of law under Section 8(3) of the Act of 1974 to this Court. In his judgment delivered on 12th January, 1997 on that appeal, Barron J. found that the Labour Court had applied the wrong legal principle and remitted the matter to the Labour Court to consider and determine the issue.

8 (4) The Labour Court reconsidered the matter and issued its second determination on 7th November, 1997. In its reasoned determination of that date the Labour Court stated that it was satisfied that the difference in pay between the Applicants and the comparators is justified on economic grounds and again upheld the conclusions of the Equality Officer and rejected the appeal of the Applicants. It is against that determination that the Applicants now appeal.

9 Before considering the grounds on which the Applicants contend that the Labour Court in its second determination erred in law, I propose considering in depth, first, the basis on which Barron J. found that the Labour Court had applied the wrong principle in its first determination and, secondly, the basis on which the Labour Court approached the issues before it on its reconsideration of them and the reasoning of the second determination.

10 In broad terms, throughout the course of the dispute, the Respondent has rejected the equal pay claim on the basis that there is a two-fold justification for the differential. First, between 1974 and 1979 the comparator group, which was in a position to flex considerable industrial relations "muscle", negotiated five uniquely advantageous flexibility and productivity agreements. Secondly, the Applicant group's pay rates, which are all unisex rates now, and the comparator group's rates are negotiated by different trade unions and via very different industrial relations channels.

JUDGMENT OF THE HIGH COURT

11 In its first determination the Labour Court stated as follows:-

"The Company raised by way of defence the claim that the difference in the rates between the claimants and the comparators arose from grounds other than sex. The Court finds this defence proved. The claimant" rates of pay are all unisex rates; the previous male/female rates were equalised through the Registered Employment Agreement for the Drapery Trade. The comparators" rates were negotiated within the industry and were increased as a result of company/union productivity agreements. The claimants and the comparators" rates of pay have been achieved by different industrial routes. and are in fact both unisex rates, even if one group is predominantly female and the other predominantly male. The Court finds that the difference between the rates is not related to the sex of the workers......".

12 In his judgment on the appeal against that determination, having outlined the principles established by a number of cases decided by the European Court of Justice on the interpretation of Article 119 of the EEC Treaty (the State's obligations under which are implemented by the Act of 1974), Barron J. summarised the effect of the case law as follows:-

"The principles of law established by the case law to which I have referred are not, in my view, in dispute between the parties. Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men then, whatever the reason, there is prima facie discrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justifiable on economic grounds".

13 Having stated that matters of fact in issue are matters to be submitted to the Labour Court, not the High Court, whose function is to determine as a matter of law whether the Labour Court has applied the correct legal principles, Barron J. went on to say:-

"Once there was a finding of like work, it was for the National Court - in our jurisdiction the Labour Court - to determine whether the difference was in fact gender based and not in reality merely an indirect way of reducing the level of pay of a group of workers exclusively or predominantly of one sex. It is only when they find that not to be the reality that a decision must be made that there is an objectively justifiable reason for the difference in pay. The appellants say that this reason must exist at the date of the determination. It seems to me that this should be so since otherwise the employer would be relying upon a factor which no longer exists".

14 Barron J. then quoted the passage from the first determination of the Labour Court, which I have quoted earlier, and went on to analyse it in the following passage:-

"It is clear from this determination that the Labour Court relied upon four matters:-"

(1) That the claimants" rates of pay were all unisex rates;

(2) That previous male/female rates were equalised through registered employment agreements;

(3) That the comparators" rates were negotiated as a result of company/union productivity agreements; and

(4) That the different rates of pay have been achieved by different industrial routes and are both unisex rates even if one group is predominantly female and the other predominantly male.

15 The Court then found that the difference between rates was not related to the sex of the workers. There is nothing in that determination which purports to deal with the question as to whether or not the practice or the circumstances giving rise to the difference in remuneration can be objectively justified. The reference to unisex rates does not seem to me to be significant. If...