King & Others (plaintiffs/ appellants) v Minister for Finance and Civil and Public Service Union (defendant/ respondents) & Minister for Justice, Equality & Law Reform (Notice parties)

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 12 May 2010
• Neutral Citation: [2010] IEHC 307
• Court: High Court
• Date: 12 May 2010

[2010] IEHC 307

THE HIGH COURT

[No. 41 MCA/2007]

King v Min for Finance & Civil & Public Service Union

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT 1998 - 2004

BETWEEN

NEIL KING THE PERSONS LISTED ON THE SCHEDULE ATTACHED HERETO

PLAINTIFFS/APPELLANTS

AND

THE MINISTER FOR FINANCE AND CIVIL AND PUBLIC SERVICE UNION

DEFENDANTS/RESPONDENTS

THE LABOUR COURT AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

NOTICE PARTIES

EMPLOYMENT EQUALITY ACT 1998 S90

EMPLOYMENT EQUALITY ACT 1998 S6

EMPLOYMENT EQUALITY ACT 1998 S8

EMPLOYMENT EQUALITY ACT 1998 S77

EMPLOYMENT EQUALITY ACT 1998 S83

R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH & PERES 1999 IRLR 253 1999 2 AC 554 1999 3 WLR 460 1999 2 CMLR 273

CASTLEISLAND CATTLE BREEDING SOCIETY LTD v MIN FOR SOCIAL & FAMILY AFFAIRS 2004 4 IR 150 2004/7/1444 2004 IESC 40

NATIONAL UNIVERSITY OF IRELAND v AHERN & ORS 2005 2 IR 577 2005/44/9152 2005 IESC 40

EMPLOYMENT PROTECTION (CONSOLIDATION ACT) 1978 S64(1)(A) (UK)

EEC DIR 76/207

MARA (INSPECTOR OF TAXES) v HUMMINGBIRD LTD 1982 ILRM 421

BATES & ORS v MODEL BAKERY LTD & CHARLES KELLY LTD 1993 1 IR 359 1993 ILRM 22 1992/8/2550

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU) 2007 4 IR 70 2006 17 ELR 201 2006/3/487 2006 IEHC 201

RUTHERFORD & ANOR v SECRETARY OF STATE FOR TRADE & INDUSTRY 2004 3 CMLR 53 2004 IRLR 892

EMPLOYMENT LAW

Equality

Appeal from Labour Court - Admissibility of new evidence at appeal - Weight of statistical analysis in making determination - Status of reference to erroneous ratio in determination - Whether adducement of additional material allowed at appeal - Whether Labour Court erred in determination - Orange Ltd v Director of Telecoms (No 2) [2000] 4 IR 159 applied - Rutherford v Secretary of State for Trade and Industry (No 1) [2004] EWCA Civ 1186, [2004] IRLR 829; Ashford Castle Ltd v SIPTU [2006] IEHC 201, [2007] 4 IR 70; Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 approved; Reg v Employment Sec, Ex p Seymour-Smith [1999] ECR I-00623; Castleisland Cattle Breeding v Minister for Social Welfare [2004] IESC 40, [2004] 4 IR 150; National University of Ireland Cork v Ahern [2005] IESC 40, [2005] 2 IR 577; Mara v Hummingbird Ltd [1982] 1 ILRM 421; Bates v Model Bakery Ltd [1993] 1 IR 359 considered - Employment Protection Consolidation Act 1978 26 & 27 Elizabeth II, c 44, s 64 - Rules of the Superior Courts 1986 (SI 15/1986), O 105 - Employment Equality Act 1998 (No 21), ss 6, 8, 77, 83, 90 - EC Treaty and Council Directive (76/207/EEC), art 5 - EC Treaty, art 119 - Appeal dismissed (2007/41MCA - O'Keeffe J - 12/5/2010) [2010] IEHC 307

King v Minister for Finance

Facts: An appeal was brought by the plaintiffs/ appellants pursuant to s. 90 Employment Equality Act 1998 against a Determination of the Labour Court in 2007. A gender pay dispute in the Civil Service had been settled in 2003. Thereafter, a further group instituted proceedings claiming that they had been discriminated against in that they had not benefited from the terms of the settlement. The application was rejected by an Equality Officer in 2006 and that decision was appealed to the Labour Court. Statistical evidence including inter alia data and findings that the majority of the beneficiaries of the settlement had been female had been presented to the Labour Court. The Labour Court had found that there was an inherent vulnerability in statistics taken at a fixed time or period which would be influenced by purely fortuitous factors. The Labour Court had found that the onus of proof was on the claimants and the Court had come to the view that the statistics did not go far enough in establishing a prima facie case of discrimination. The appellants contended that the Determination of the Labour Court contained errors of law and the statistics employed were impugned as erroneous.

Held by O' Keefe J. that it was open to the Court to express its conclusions in the manner it did on the basis of the statistics as stated by it. The error complained of did not amount to an error of law. The Labour Court was entitled to reach the conclusions drawn on the basis of its specialised expertise. The findings of law made by the Court were those which it was entitled to make on its assessment of the strength of the case of the appellant. The Labour Court properly noticed that statistics were but an aspect for consideration and would not be decisive of themselves. No error of law had been demonstrated by the appellants to have occurred in the determination of the Labour Court.

Reporter: E.F.

1 1. This is an appeal pursuant to s. 90 of the Employment Equality Act 1998 ("the Act") of a Determination of the Labour Court dated 16 ^th February, 2007.

2 2. The appellants were at all material times Clerical Officers in the Civil Service. The appeal has its origins in a claim made in 1991 by 26 female clerical assistants for equality of pay, with a Civil Service grade then known as "Paperkeeper", a grade with was predominantly male. The original case on behalf of the 26 clerical assistants took almost fourteen years to complete, and was the subject of two references to the High Court.

3 3. The original claimants were joined by a further 2,200 then clerical assistants/clerical officers who also lodged claims for equality of pay.

4 4. At that time, there were 869 men in the clerical assistant grade. Their union, the Civil and Public Services Union ("CPSU") (the second named respondent) did not invite these men to apply for equality of pay on the basis that this was an equal pay claim for women only.

5 5. In 2003, the CPSU entered into an agreement with the Department of Finance that a sum of €34m would be paid by the Department of Finance in order to settle the matter. It was then a matter for the CPSU who would benefit from the settlement.

6 6. On 20 ^th November, 2003, a legal agreement was signed incorporating the terms already agreed, and slightly increasing the settlement figure.

7 7. The largest group excluded from the settlement was composed of those persons who had been serving as clerical officers in October 1997, who had not made claims of discrimination in 1997 (or in the case of men, who had not been invited to make claims) and who had been promoted before 16 ^th May, 2003 (the date of the settlement).

8 8. Between May 2003 and June 2004, some 1,849 individuals commenced proceedings under the Act claiming that they had been discriminated against on grounds of gender, martial status, family status and age within the meaning of s. 6 of the Act and in contravention of s. 8 of the Act. The claimants' case was that they had not benefited from the terms of the settlement and that the settlement was discriminatory towards them.

9 9. The appellants made an application to an equality officer pursuant to s. 77 of the Act and complained that the respondent's discriminated against them on grounds of gender by excluding them from benefit under the said agreement. By a recommendation, dated 6 ^th March, 2006, the Equality Officer rejected the appellants' application.

10 10. The appellants appealed to the Labour Court pursuant to s. 83 of the Act and by a Determination dated 16 ^th February, 2007, the Labour Court rejected the appellants' appeal stating that no prima facie case of discrimination had been established.

11 11. The appellants appealed to this Court and contend that the Determination of the Labour Court is an error of law and seek:-

(a) An Order reversing or quashing the said Determination of the Labour Court;

(b) An Order that the said Determination be set aside; and

(c) A declaration that the Labour Court erred in law in rejecting the appellants' said claim for redress.

12 12. The female members who appealed to the Labour Court had their claim rejected. Such claimants had not appealed to this Court.

13 13. The Labour Court in its determination referred to the methodology of applying the test inherent in the definition of indirect discrimination as considered by the European Court of Justice in the case of R. v. Secretary of State for Employment Ex Parte, Seymour-Smith and Peres [1999] IRLR 253.

14 14. In its Determination the Labour Court noted from the statistics advanced by the claimants that 89.3% of the beneficiaries of the settlement agreement were women whereas 10.7% were men. It also noted that in respect of beneficiaries who had not previously lodged claims, 84.4% were women and 15.6% were men. The claimants in turn comprised of 62.3% women and 37.7% men. In all cases, a substantial majority of both the claimants and the beneficiaries were female.

15 15. At p. 14 of its Determination, it was stated:-

"However, what is required by the established test is that a significantly higher proportion of men than women are disadvantaged by the requirement to have been in service on 16 ^th May, 2003, irrespective of the fact that the majority of both the advantaged and the disadvantaged group are women."

16 16. The Determination stated that in considering the question of statistics, the court must decide which "pool" to choose for consideration. The Determination at p. 14 stated:-

"The Court has come to the view that the optimum total pool from the Claimants' point of view, as well as the most logical, is that which is composed of the group who received payment, but did not claim, having no legal actual or potential entitlement to benefit from the settlement and who were C.O's in October 1997, in addition to the Claimants, who equally did not claim, were C.O's in October 1997, but did not benefit. The pool, as indicated in the case of Ruthford v. Secretary of State for Trade and Industry [2004] IRLR 829 is therefore composed of the aggregate of the Advantaged and Disadvantaged groups as set...