Kenny & ors -v- Minister for Justice, Equality & Law Reform & ors,  IESC 62 (2018)
|Docket Number:||212 & 222/14|
|Party Name:||Kenny & ors, Minister for Justice, Equality & Law Reform & ors|
THE SUPREME COURT [Record No. 212 & 222/14]
IN THE MATTER OF THE EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
MARGARET KENNY, PATRICIA QUINN, NUALA CONDON, EILEEN NORTON, URSULA ENNIS, LORETA BARRETT, JOANNE HEALY, KATHLEEN COYNE, SHARON FITZPATRICK, BREDA FITZPATRICK, SANDRA HENNELLY, MARIAN TROY, ANTOINETTE FITZPATRICK AND HELENA GATLEYAPPELLANTS/RESPONDENTSAND
THE DEPARTMENT OF JUSTICE, EQUALITY AND LAW REFORM, THE DEPARTMENT OF FINANCE AND THE COMMISSIONER OF AN GARDA SÍOCHÁNARESPONDENTS/APPELLANTS
Judgment of Mr. Justice John MacMenamin dated the 10th day of December, 2018
This is an appeal against a ruling and order in the High Court (McCarthy J.) on a question of costs. The ruling was made on the 24th February, 2014, three weeks after McCarthy J. delivered the principal judgment in this case on the 13th January, 2014. ( IEHC 11; (“the principal judgment”). Before the High Court was an appeal on points of law from a decision of the Labour Court. That appeal was brought by the 14 persons named as the “appellants/respondents” in this appeal. For convenience, and to avoid confusion arising from appeals to the High Court, and then to this Court on this Article 64 appeal, the 14 women will be referred to as “the claimants”. The Department of Justice and other named State appellants (“the State appellants”) now appeal the High Court costs order, submitting that the High Court judge erred in awarding the claimants two-thirds of their costs of the High Court proceedings, including the costs of the reference to the Court of Justice of the European Union (“CJEU”) pursuant to Article 267 of the Treaty on the Functioning of the European Union (“TFEU”). The State appellants, although appealing the costs order, do not appeal any finding or conclusion made by the High Court judge in his principal judgment. The claimants have filed a cross-appeal, contending they should have been awarded the full costs of the proceedings.
The Origins of the Case
In 2002 and 2005, the claimants brought claims against the State appellants to the Labour Court under the Employment Equality Act, 1998, as amended by the Equality Act, 2004 (“the Equality Act”). In order to understand what is in issue, it is necessary to go into the background in some detail.
The claimants were, at the relevant time, female clerical officers employed by the Department of Justice & Equality. They were assigned to clerical duties with An Garda Síochána. Their claim was for equal pay with members of An Garda Síochána whose remuneration was higher. A number of these clerical posts were reserved for members of the force. These were known as “designated posts”. There were other posts, which could either be filled by members of An Garda Síochána, by civilians if they were available, or by gardaí who were engaged in normal policing, but who might also undertake clerical and administrative duties. The claimants’ case was that the pay-differential between themselves and members of An Garda Síochána who did clerical work constituted indirect gender discrimination. McCarthy J. remarked in his principal judgment that the thrust of the claimants’ case was that they were seeking remuneration at a level comparable with the entire Garda force, although this point had not been stated explicitly.
The two claims were heard by an Equality Officer of the then Equality Tribunal in October 2005. The Equality Officer issued a decision on the 22nd November 2005 (DEC-E2005-057). The Equality Officer found that seven of the claimants were entitled to succeed in their claim for indirect discrimination, but dismissed the claims of the other seven. The reasons for this decision are not now material. The State appellants appealed the Equality Officer’s decision to the Labour Court. The appeal was against so much of the decision as upheld the seven successful claimants. The claimants’ trade union, in turn, cross-appealed so much of the Equality Officer’s decision which dismissed the balance of the complaints.
The appeal to the Labour Court was heard on the 24th October, 2006, and the 22nd May, 2007. McCarthy J. describes what occurred at the hearing. At the outset, the Labour Court did not, as would have been necessary under the equality legislation, address the “comparator” or “like work” issues; that is, both the identity of the gardaí who were on higher remuneration who had been chosen by the claimants as comparators, and the nature of their work. Instead, the Labour Court, with the agreement of the parties, decided to deal first with a preliminary issue, which was whether there was objective justification for what appeared to be a prima facie case of indirect pay discrimination on the grounds of gender. For the purposes of its hearing, therefore, the Labour Court proceeded on the assumption that the claimants and the chosen comparators were statistically representative, and were engaged in “like work” within the meaning of s.7(1) of the Equality Act. As the Court of Justice pointed out in its subsequent judgment in an Article 267 of the TFEU reference by McCarthy J., this procedure was flawed.
Proceeding as just described, the Labour Court placed the onus on the State appellants to prove justification. The State appellants contended that the allocation of garda officers to clerical posts was objectively justified so as to meet the operative needs of the force, and that in filling that need it was appropriate to pay police officers assigned to such posts the rate applicable to their rank as members of An Garda Síochána. In making this submission in the Labour Court, the State appellants apparently sought to re-open the question of comparators, claiming then that they had been drawn from too narrow a class.
In its decision of the 27th July, 2007 ( E.L.R. 140), the Labour Court allowed the State appellants’ appeal against the Equality Officer’s determination, and disallowed the claimants’ cross-appeal. It held there was objective justification for the disparity in pay, and that the deployment of officers of An Garda Síochána in certain clerical posts met either operational needs, or the need to continue the then ongoing process of...
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