Margaret Kenny and Others v Department of Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Patrick McCarthy
• Judgment Date: 13 January 2014
• Neutral Citation: [2014] IEHC 11
• Docket Number: [No. 42IA/2007]
• Court: High Court
• Date: 13 January 2014

Kenny & Ors v Dept of Justice & Ors

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACTS 1998 TO 2004

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/CLAIMANTS

AND

THE DEPARTMENT OF JUSTICE, EQUALITY AND LAW REFORM, THE DEPARTMENT OF FINANCE AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENTS

[2014] IEHC 11

[No. 42IA/2007]

THE HIGH COURT

Employment law - Practice and procedure - Comparators - Equal pay - Renumeration - Gender discrimination - Objectively justified - Labour Court - Court of Justice - Like work - Employment Equality Act 1998, as amended

Facts: The proceedings arose in relation to a point of law from a Determination of the Labour Court pursuant to s. 90 Employment Equality Act 1998, as amended. At the request of the parties, the Court referred questions for determination to the Court of Justice. The claimants were civil servants and clerical officers and they had made a claim for equal pay with members of An Garda Siochana whose remuneration was higher. They alleged inter alia that the differential constituted gender discrimination, a claim rejected by the Labour Court.

Held by McCarthy J. in remitting the matter to the Labour Court. The Labour Court would have to choose comparators, drawn from generality as a class. As to validly chosen comparators, it should then address the issue of whether the work was like work, It would then consider whether the pay differential was objectively justified. Dealing with industrial relations issue was not a sole basis to justify a differential but was one of a number of factors and consideration also had to be given to the context of generality, ie all incidents of service in An Garda Siochana. No statistic had been presented to the Court as to the size of An Garda Siochana.

DEPARTMENT OF JUSTICE v CIVIL PUBLIC & SERVICES UNION UNREP 27.7.2007 EDA0713

EMPLOYMENT EQUALITY ACT 1998 S90

EMPLOYMENT EQUALITY ACT 1998 S19

EMPLOYMENT EQUALITY ACT 1998 S19(4)

EEC DIR 97/80 ART 2(2)

TREATY OF ROME ART 141

EEC DIR 75/117

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

ANTI-DISCRIMINATION (PAY) ACT 1974

Mr. Justice Patrick McCarthy

1 This is an appeal on a point of law from a Determination of the Labour Court of 27^th July, 2007 (EDA 13/2007) pursuant to the provisions of s. 90 of the Employment Equality Act 1998, as amended by the Equality Act 2004. At the request of the parties, I referred certain questions for determination by the Court of Justice of the European Union and it delivered its judgment on 28^th February, 2013.

2 The claimants are established civil servants and in particular clerical officers. Their claim is for equal pay with the members of An Garda Síochána whose remuneration is higher. They say that the differential constitutes indirect gender discrimination, a claim rejected by the Labour Court.

3 Section 19 of the Act of 1998, as amended by the Act of 2004, provides for the right to equal pay for like work and that indirect discrimination occurs in the ircumstances set out in s. 19(4). It provides, so far as material, that:-

"Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender … at a particular disadvantage in respect of remuneration compared with other employees of their employer,

[…] unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary."

4 The burden of proof is upon a claimant to establish that an apparently neutral provision puts him or her at a disadvantage in respect of remunerationvis-à-vis other employees and on the basis of valid comparators but it is then a matter for the employer to show that the differential is "objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary".

5 In its decision, the Labour Court took the view that the Irish statutory definition did not comport "fully" with the concept as defined by Article 2(2) of Council Directive 97/80/EC of December 15^th 2007 (itself the codification of the concept of indirect discrimination and elaborated by the ECJ). That provision states as follows:-

"…indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless the provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex."

6 Notwithstanding the different forms of words, I do not believe that there is any substantial difference between what is contemplated by the Directive or the statute, nor has the ECJ suggested it. Accordingly, whether one looks at the Directive or the statute, having regard to the burden of proof, effectively an employer is placed in the position of being afforded a defence of what is commonly called, for the sake of brevity, objective justification of an otherwise unlawfully discriminatory differential. It was on this issue that the Labour Court focused in the events which occurred.

7 The most startling fact about the present claim is that those established civil servants who are Clerical Officers engaged in clerical work for or in An Garda Síochána seek remuneration at the same level as that of the entire force though this fundamental fact is nowhere stated in terms. No statistic is available to me as to the size of the garda force, but it appears that the class of person engaged in pure clerical work (from whom the claimants' comparators are chosen), is a small minority and a Court must at all times look to the reality.

8 The claimants are assigned to what I will call "pure clerical duties" for the force. A number of gardaí are assigned to similar duties. Yet other gardaí are required to undertake duties which, though clerical in their nature, and to that extent similar, it is sometimes necessary that they be performed by gardaí. A third group of gardaí perform clerical duties in addition to what is described in the Determination as "normal police duties" - their clerical work is part-time. The term "the generality of comparator posts" was used to refer to all of these gardaí in the Reference (and hence, herein, "the generality"); however, it is only from the class of gardaí who perform pure clerical work that the claimants have chosen their comparators ("the claimants comparators").

9 The history of our present structure for the discharge of clerical functions in and for the police force is, firstly, that the Royal Irish Constabulary (an organisation with which the gardaí, at least in their early years, had much in common) had no outside clerical assistance - clerical work was performed by policemen. After a brief period following the foundation of the State where clerical officers were assigned to the gardaí the position thereafter was for many years that clerical duties associated with policing were performed by gardaí. A process then described as "civilianisation" was mooted and ultimately put in hand. The process began with the recommendation of certain consultants appointed in 1975 to examine the possibility of employing civilians in clerical posts within the force. They recommended a reduction in the number of gardaí deployed on such duties. A working party subsequently established recommended that the number of posts designated as appropriate to members of the gardaí be 175. Subsequently in 1979, a body commonly called the Ryan Commission, having considered the matter, acknowledged that serving members of An Garda Síochána should always hold certain clerical posts within the force, based on the fact that the duties of certain posts required an individual to have knowledge and experience of policing and in some cases required the use of garda powers. Extensive evidence was given as to the reasons why gardaí must hold a certain number of posts. The reasons so given shade into or are relevant to the issues of whether or not the claimants' work and that of comparator class, as I have identified it, is like work and, if so, work in respect of which an otherwise unlawful differential of pay is legitimate. In fact there might, in principle, be factors relevant to both issues on the facts.

10 Reference has been made to so-called designated posts: these are reserved for gardaí. Some are held by gardaí though the work involved could equally be undertaken by civilians: the evidence is to the effect that only "a small number" of purely clerical posts are held by gardaí of whom 298, with a planned reduction to 215 in all were in service.

11 In the ordinary course of events, obviously, in a claim of this kind, the Labour court should first address the issue of identity of those with higher remuneration who are chosen for the purpose of comparison by the claimants. This was not done but, at its instigation, the parties consented to proceed on the basis that the work of the claimants and the comparators chosen by them was like work. Twelve persons were chosen from amongst the gardaí engaged in pure clerical work.

12 On the face of it, accordingly, one might have thought that the respondents had placed themselves in a position where they could not reopen for the purpose of defence of the proceedings, the issue of the comparators who were chosen. They did, however, do so, when advancing the case that the differential was objectively justified. Effectively, they said that the comparators were drawn from too narrow a class and ought to have been drawn from the generality of gardaí involved in clerical duties to a greater or lesser extent; the Labour Court accepted this...