Harte v The Labour Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Keane
• Judgment Date: 29 March 1996
• Neutral Citation: 1996 WJSC-HC 1330
• Docket Number: 136 JR/1995,[1995 No. 136 J.R.]
• Court: High Court
• Date: 29 March 1996

1996 WJSC-HC 1330

THE HIGH COURT

136 JR/1995

HARTE v. LABOUR COURT

JUDICIAL REVIEW

JOSEPHINE HARTE AND OTHERS

APPLICANTS

AND

THE LABOUR COURT

RESPONDENT

AND

THE NORTH WESTERN HEALTH BOARD

NOTICE PARTY

Citations:

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

TREATY OF ROME 1957 ART 119

EEC DIR 75/117 ART 1

PICKSTONE V FREEMANS 1987 ICR 867, 1988 ICR 697

MARTIN, R V MAHONY 1910 2 IR 695

MEMOREX WORLD TRADING CORPORATION V EMPLOYMENT APPEALS TRIBUNAL (EAT) 1990 2 IR 184

ANISMINIC LTD V FOREIGN COMPENSATION COMMISSION 1969 2 AC 147

HOLLAND, STATE V KENNEDY 1977 IR 193

POLYMARK (IRL) LTD, STATE V LABOUR COURT 1987 ILRM 357

Synopsis:

EMPLOYMENT

Discrimination

Remuneration - Women - Equality - Entitlement - Similar work performed by male comparators - Comparators not paid at higher rate - Labour Court appointed by legislature as tribunal to determine discrimination disputes - Statutory right of appeal to High Court on point of law from decision of Labour Court - No breach of maxim ~audi alteram partem~ - Judicial review of decision of Labour Court refused - Anti-Discrimination (Pay) Act, 1974 (No. 15), ss. 2, 3, 8 - (1995/136 JR - Keane J. - 29/3/96)

|Harte v. The Labour Court|

JUDICIAL REVIEW

Remedy

Scope - Tribunal - Functions - Statute - Powers - Conferment - Women's complaint of unlawful discrimination in relation to pay - Application for review of decision of Labour Court - Special statuory functions of Labour Court - Application dismissed - (1995/136 JR - Keane J. - 29/3/96) [1996] 2 IR 171 - [1996] 2 ILRM 450

|Harte v. The Labour Court|

TRIBUNAL

Decision

Review - Application - Grounds - Absence - Women's complaint of unlawful discrimination in relation to pay - Application for review of decision of Labour Court - Special statuory functions of Labour Court - Application dismissed - (1995/136 JR - Keane J. - 29/3/96) - [1996] 2 IR 171 - [1996] 2 ILRM 450

|Harte v. The Labour Court|

1 JUDGMENT delivered the 29th day of March, 1996 by Mr. Justice Keane

2 The nine applicants are employed by the Notice Party (hereafter "the Health Board") as part-time home helps. They seek to have quashed a determination made by the Respondent (hereafter "the Labour Court") under the Anti-Discrimination (Pay) Act, 1974 (hereafter "the Act"). They claim that they are entitled to the same rate of pay as a person employed in the same place (hereafter "the male comparator") on the ground that their work is equal in value to his. The Labour Court allowed the appeal of the Health Board against a recommendation by an Equality Officer in favour of the Applicants. They did so on the grounds that there were persons of the opposite sex doing the same work as the Applicants in the same place who were being paid at the same rate as they were.

3 On the 8th May, 1995, Barr J. gave leave to the Applicants to apply by way of judicial review for orders of certiorari, mandamus and declaratory relief setting that determination aside, declaring it to have been made ultra vires the Act and directing the Labour Court to consider the claim in accordance with law. The grounds upon which leave was given can be summarised as follows:

4 2 (1). That the Labour Court erred in law in construing the provisions of the Act as only permitting a claim to be brought under S. 3(c) of the Act where there were no persons of the opposite sex doing the same work as the applicants and acted ultra vires the Act in so holding;

5 (2) That the Labour Court acted in breach of natural justice, constitutional justice and fair procedures in allowing the appeal of the Health Board on a ground which, it was alleged, had not been argued or placed by way of submission before the Labour Court and which the Applicants were given no opportunity of refuting.

6 The Health Board having delivered a Notice of Opposition, the applicants applied by way of Notice of Motion for the relief in question and the Motion was heard by me on March 8th last.

7 The facts, in so far as they are not in dispute, are as follows. The applicants claimed through their union, IMPACT, to be entitled to the same rate of pay as the male comparator, who is employed as a full-time caretaker in the Health Board offices. Both the union and the Health Board having made submissions to the Equality Officer appointed to investigate the claim, she examined the nature of the work required of the applicants and the male comparator and concluded that it was "like work" within the meaning of the Act and that the discrimination was not on grounds other than sex. She accordingly recommended that the applicants should be paid at the same rate as the male comparator.

8 At Paragraph 2.3 of the Equality Officer's recommendation, she stated:

"The full-time home-helps are paid the same hourly rate as the male comparator. The majority of part-time home-helps earn £2.45 per hour. All but two of the home-helps are female."

9 At Paragraph 4.14 she stated:

"The (Health) Board submits that the rate for part-time home-helps is £2.45 per hour, regardless of sex. This is evidenced by the fact that the Health Board has five male part-time home-helps who are in receipt of £2.45 per hour similar to the nine claimants in this case."

10 The Health Board appealed from the recommendation of the Equality Officer. In their determination, having referred to the fact that there were men employed at the Health Board as part-time home-helps who were paid at the same rate as the applicants, the Labour Court concluded that there was no discrimination on the ground of sex. They added that the rate paid to the male comparator was the same rate as that paid to other workers in the same pay grade, the greater number of whom were women. The appeal was accordingly allowed.

11 On behalf of the Applicants, Mr. Anthony Kerr submitted that the decision of the Court would have the consequence that employers would be able to pay women lower rates than men, even though they do work of equal value and the differentiation is on grounds of sex, so long as the employer ensures that at least one man is doing the same work as the women. This, he said, was in contravention of the Act which entitled the women to the same rate as the man, where they were doing work of equal value, irrespective of whether there was another man doing the same work at the same rate. There was nothing in the Act to prevent a claimant from taking one comparator rather than another to assist his or her case. Any other construction would mean that the employer could frustrate the purpose of the Act by employing just one man at the same rate.

12 Mr. Kerr further submitted that to the extent that there was any ambiguity in the relevant provisions they should be construed in accordance with the law of the European Union. He submitted that there was nothing in the language of Article 119 of the Treaty of Rome or...