Kenny v Minister for Justice, Equality & Law Reform

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date10 December 2018
Neutral Citation[2018] IESC 62
CourtSupreme Court
Docket Number[Record No. 212 & 222/14]
Date10 December 2018

[2018] IESC 62

THE SUPREME COURT

MacMenamin J.

Clarke C.J.

MacMenamin J.

Baker J.

[Record No. 212 & 222/14]

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

BETWEEN:
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 GATLEY
APPELLANTS/RESPONDENTS
AND
THE DEPARTMENT OF JUSTICE, EQUALITY AND LAW REFORM, THE DEPARTMENT OF FINANCE

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENTS/APPELLANTS

Costs – Discretion – Cross-appeal – Appellants seeking to appeal costs order– Whether there was a substantial departure from a lawful exercise of discretion

Facts: The High Court (McCarthy J) ruled on a question of costs on the 24th February, 2014, three weeks after McCarthy J delivered the principal judgment in this case on the 13th January, 2014. 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 (the claimants). The Department of Justice and other named State appellants appealed 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 pursuant to Article 267 of the Treaty on the Functioning of the European Union. The State appellants, although appealing the costs order, did not appeal any finding or conclusion made by the High Court judge in his principal judgment. The claimants filed a cross-appeal, contending they should have been awarded the full costs of the proceedings.

Held by the Supreme Court (MacMenamin J) that the High Court decision on costs did follow the “events”. MacMenamin J was unable to discern any substantial departure from a lawful exercise of discretion. He held that he would dismiss the appeal.

MacMenamin J held that just as the State appellants had no reasonable claim that the trial judge erred in his discretion, neither had the claimants. He held that he would dismiss the cross-appeal.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 10th day of December, 2018
Introduction
1

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. ( [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
2

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.

3

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.

4

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.

5

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.

6

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.

7

In its decision of the 27th July, 2007 ( [2008] 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 ‘civilianisation’ in accordance with an agreement made with the relevant industrial relations representative-bodies. It determined that the fact that the garda holders of the posts were paid at rates corresponding to the rates of pay for other members of An Garda Síochána met these objectives, since it would have been manifestly unfair to reduce the pay of An Garda Síochána officers assigned to clerical posts to the same level as the civilian employees. It held that, having regard to the small number of designated posts, the maintenance of industrial relations agreements, pending completion of civilianisation, was a relevant matter, to be measured in a manner proportionate to the general operational needs of An Garda Síochána. While the claim did give rise to a presumption of unlawful ‘indirect discrimination’, the Labour Court held that the State appellants had rebutted the presumption by showing that the impugned practice of paying female clerical officers less than male gardaí performing clerical duties was objectively justified on grounds other than gender, and that the named comparators were not, in fact, representative of the generality of clerical/administrative posts in which gardaí were deployed. The determination also concluded that the State appellants had justified the difference in pay on objective grounds, referring to the interests of good industrial relations as amongst the factors it also took into consideration in reaching its conclusion.

8

What is set out in the claimants” grounds of appeal is an important factor in determining the costs issue. They sought an order that the High Court set aside the determination, and a declaration that it was based on errors in law.

9

The grounds of appeal to the High Court alleged error by reason of the conclusions that:

(i) the failure to pay the claimants equal pay with their named comparators was justified on grounds other than gender;

(ii) the failure to pay the claimants equal pay...

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4 cases
  • Case Number: ADJ-00018068. Workplace Relations Commission
    • Ireland
    • Workplace Relations Commission
    • 21 May 2020
    ...in Kenny & Ors v The Department of Justice, Equality and Law Reform, The Department of Finance and The Commissioner of An Garda Síochána [2018] IESC 62 as a “careful summary of the legal procedure to be followed thenceforward.· (i) All issues arising in a claim of indirect gender discrimina......
  • Case Number: ADJ-00013657. Workplace Relations Commission
    • Ireland
    • Workplace Relations Commission
    • 21 May 2020
    ...in Kenny & Ors v The Department of Justice, Equality and Law Reform, The Department of Finance and The Commissioner of An Garda Síochána [2018] IESC 62 as a “careful summary of the legal procedure to be followed thenceforward.· (i) All issues arising in a claim of indirect gender discrimina......
  • Case Number: ADJ-00021516. Workplace Relations Commission
    • Ireland
    • Workplace Relations Commission
    • 22 May 2020
    ...in Kenny & Ors v The Department of Justice, Equality and Law Reform, The Department of Finance and The Commissioner of An Garda Síochána [2018] IESC 62 as a “careful summary of the legal procedure to be followed thenceforward.· (i) All issues arising in a claim of indirect gender discrimina......
  • Case Number: ADJ-00022454. Workplace Relations Commission
    • Ireland
    • Workplace Relations Commission
    • 21 May 2020
    ...in Kenny & Ors v The Department of Justice, Equality and Law Reform, The Department of Finance and The Commissioner of An Garda Síochána [2018] IESC 62 as a “careful summary of the legal procedure to be followed thenceforward.· (i) All issues arising in a claim of indirect gender discrimina......
1 books & journal articles

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