National University of Ireland Cork v Ahern

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 10 June 2005
• Neutral Citation: [2005] IESC 40
• Court: Supreme Court
• Docket Number: [S.C. No. 58 of 2005]
• Date: 10 June 2005

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS

IN THE MATTER OF THE ANTI DISCRIMINATION (PAY) ACT 1974AND

IN THE MATTER OF AN APPEAL FROM THE DETERMINATION NO. DEP021 OFTHE

LABOUR COURT AND IN THE MATTER OF AN APPEAL BY UNIVERSITYCOLLEGE

CORK

Between:

National University of Ireland Cork

Appellant

AND

Alan Ahern & Ors

Respondents

[2005] IESC 40

Murray CJ

Denham J

Hardiman J

Geoghegan J

McCracken J

058/2004

THE SUPREME COURT

Sexual assault

Defences - Mens rea - Defence of mistake -Common law offence - Whether defence excluded - Whether mistake genuine -Whether mistake reasonable - Whether objective test - Appeal in relation to sexual assault allowed (58/2004 - McCracken [nem diss] Murray Denham Hardiman Geoghegan - 10/6/2005) [2005] IESC 40

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS

The respondents claimed sex discrimination of pay pursuant to the Anti-Discrimination (Pay) Act, 1974. and an equality officer ruled in their favour relying on section 3 (c) of the Act which states:

"3. Two persons shall be regarded as employed on like work:-

......

( c ) where the work performed by one is equal in value to that performed by the other in terms of the demands it makes in relation to such matters as skill, physical or mental effort, conditions."

The Equality Officer concluded that the respondent had been discriminated against on grounds of sex and recommended that the appellant pay each of the claimants the same rate of pay as that paid to the named comparators. The appellant appealed to the Labour Court on the grounds that "like work" as defined by s.3(c) of the Anti-Discrimination Act, 1974, does not exist between the jobs of the claimant and the comparators employed as switchboard operators in a job-sharing capacity. The Labour Court upheld the Equality Officer ruling. The Appellant appealed to the Supreme Court. The respondent contended that the Labour Court determination was based largely on a question of facts.

Held by the Supreme Court (Murray CJ, Denham, Hardiman, Geoghegan, McCracken JJ) in remitting the matter back to the Labour Court and ruling that there was an error of law in considering the surrounding circumstances on the underlying facts.

The Labour Court erred in not differentiating between the matters properly to be taken into consideration when considering to accept if "like work" under s.3(c) and those relevant to be determined if the grounds of differentiating under section 2 (3).

There was considerable argument before the Court on the question of onus of proof. It did not seem to the court that in the consideration of s.2(3) the onus of proof must be on the employer, as only the employer can put forward grounds of discrimination other than sex, but the court did not consider that it had any great relevance to the issue in the present case, which did not depend on an onus of proof, but depended on whether there was a proper consideration by the Labour Court of the circumstances of the case.

Reporter: BDD.

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

ANTI-DISCRIMINATION (PAY) ACT 1974 S8

ANTI-DISCRIMINATION (PAY) ACT 1974 S2(3)

ANTI-DISCRIMINATION (PAY) ACT 1974 S8(3)

ANTI-DISCRIMINATION (PAY) ACT 1974 S2(1)

ANTI-DISCRIMINATION (PAY) ACT 1974 S11

1 Mr Justice McCrackendelivered the 10th June day of 2005

The Nature of the Proceedings

2 The Respondents are all security services operatives employed by the Appellant with the status of "general attendants". There are forty-six such employees of the Appellant, forty-two of whom are male and constitute all the Respondents. They claim that they are being discriminated against in their pay on the grounds of sex contrary to the provisions of the Anti-Discrimination (Pay) Act 1974. They originally nominated five female employees, two of whom were laboratory aids and the remaining three were telephone switchboard operators, as comparators. The matter came before an equality officer who ruled that two of the telephone switchboard operators were valid comparators being employed on like work to that of the Respondents pursuant to s.3(c) of the Act, which reads as follows:-

"3. Two persons shall be regarded as employed on likework:-"

3 ......

4 ( c ) where the work performed by one is equal in value to that performed by the other in terms of the demands it makes in relation to such matters as skill, physical or mental effort,conditions."

5 The equality officer went on to find that the Respondents had been discriminated against on the grounds of sex, and recommended that the Appellant pay each of the claimants the same rate of remuneration as that paid to the named comparators.

6 From this recommendation the Appellant appealed to the Labour Court pursuant to s.8 of the Act. The grounds of the appeal were stated tobe:-

7 "That "like work" as defined by s.3(c) of the Anti-Discrimination (Pay) Act 1974, does not exist between the jobs of the claimants and those comparators employed as switchboard operators in a job-sharing capacity, and...any other grounds which arise in the course of theappeal."

8 In its finding the Labour Court emphasised that it was asked to consider only one matter, namely that of the job of the Appellants versus the job of the comparators. In addition to relying on the investigation carried out by the equality officer, the Labour Court carried out an inspection of the work place of both the Respondents and the comparators in accordance with the wishes of both parties. The Labour Court conducted the comparison of the jobs in terms of skill, physical effort, mental effort, responsibility and working conditions, and concluded that on balance the work performed by the Respondents was equal in value to the work performed by the comparators.

9 The Labour Court then went on to consider the provisions of s.2(3) of the Act which states:-

"Nothing in this Act shall prevent an employer from paying to his employees who are employed on " like work" in the same place different rates of remuneration on grounds other thansex."

10 The Labour Court went on to hold that in respect of the Respondents there had been discrimination in relation to pay and that different rates of remuneration were not justified on grounds other than sex.

11 From that finding, the Appellant appeals to this Court pursuant to s.8(3) of the Act which reads:-

"A party to a dispute determined by the Court under subsection (1) may appeal to the High Court on a point of law."

Question of Law

12 The Respondents submit that the matters determined by the Labour Court were largely questions of fact, and that matters of fact as found by the Labour Court must be accepted by the High Court in any appeal from its findings. As a statement of principle, this is certainly correct. However, this is not to say that the High Court or this Court cannot examine the basis upon which the Labour Court found certain facts. The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law, and can be considered on an appeal under s.8(3).

The Background of the Comparators

13 The concept of equal pay is set out in s.2(1) of the Act whichreads:-

"Subject to this Act, it shall be a term of the contract under which a woman is employed in any place that she shall be entitled to the same rate of remuneration as a man who is...