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Flynn v. Primark t/a Penneys Ltd. [1997] IEHC 25 (12th February, 1997)

THE HIGH COURT

1996 No. 224 sp

SUSAN FLYNN ORLA MURRAY RACHEL MULLEN AND

MANDATE THE UNION OF RETAIL BAR AND ADMINISTRATIVE WORKERS

APPLICANTS

AND

PRIMARK TRADING AS PENNEYS LIMITED

RESPONDENT

AND

THE MINISTER FOR EQUALITY AND LAW REFORM

NOTICE PARTY

Judgment of Mr. Justice Barron delivered on the 12th day of February, 1997.

1. This is an Appeal from a determination of the Labour Court made on the 5th February, 1996. The Applicants are clerical or sales assistants employed by the Respondent in several of its stores in the Dublin area. They are predominantly female. The Compartors who are all male work as storemen in one of the Respondent's stores in Dublin. The Claimants sought to be paid equal remuneration with the Comparators under the provisions of the Anti-Discrimination (Pay) Act, 1974. The Equality Officer and on Appeal the Labour Court have both found that though the Claimants do like work within the meaning of that expression as used in the Act there are reasons other than sex for the differences in remuneration between the two classes of workers.

2. The issues of law raised by the special summons and as submitted by the Appellants in Court are essentially that the Labour Court in coming to its determination failed to consider whether or not there was an objective justification for the difference in remuneration.

3. The finding of the existence of a ground other than sex is based upon productivity agreements entered into between the employers and the Comparators between the years 1974 and 1979. The Claimants submit that the existence of such agreements does not prevent a prima facie finding of discrimination and that whether or not such agreements constitute a ground other than sex depends upon whether there is an objective justification upon economic grounds for this difference. It is a fundamental part of this submission that the appropriate date in relation to which the difference must be so justified is the date of the claim.

4. In support of their submissions, the Claimants rely upon a number of authorities in which the alleged discrimination was indirect in that the practice complained of affected significantly more women than it did men.

5. The principles established by a number of cases heard by the European Court is that where a practice exists which affects significantly more members of one sex than of the other, there is prima facie discrimination of a kind prohibited by Article 119 of the Treaty. Whether there is such discrimination depends upon whether the employer can establish an objective justifiable economic reason for such practice. The onus to do so lies on the employer. So in Jenkins -v- Kingsgate 1981 ECR 911 the practice alleged to be discriminatory was one whereby part-time workers were paid less than full-time workers doing the same work. The former were predominantly female while the latter were predominantly male.

6. Material portions of the judgment of the Court appear between paragraphs 9 and 15 of the report.

"..............the purpose of Article 119 is to ensure the application of the principle of equal pay for men and women for the same work. The differences in pay prohibited by that provision are therefore exclusively those based on the difference of the sex of the workers. Consequently the fact that part-time workers paid at an hourly rate lower than pay for full-time work does not amount per se to discrimination prohibited by Article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex: Paragraph 10

If there is no such distinction, therefore, the fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in Article 119 of the Treaty insofar as the difference in pay between part-time work and full-time work is attributable to factors which are objectively justified and are in no way related to any discrimination based on sex: Paragraph 11

Such maybe the case, in particular, when by giving hourly rates of pay which are lower for part-time work than those for full-time work the employer is endeavouring, on economic grounds which may be objectively justified, to encourage full-time work irrespective of the sex of the worker: Paragraph 12

The Court went onto indicate that Article 119 would be infringed if the pay policy could not be explained by factors other than discrimination based on sex; and that it was for the National Courts

"to decide in each individual case whether, regard being had to the facts of the case, its history and the employers intention, a pay policy such as that which is at issue in the main proceedings although represented as a difference based on weekly working hours is or is not in reality discrimination based on the sex of the worker": Paragraph 14.

Accordingly it was decided

"that a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by Article 119 of the Treaty unless it is in reality merely an indirect way of reducing the level of pay of part-time workers on the ground that that group of workers is composed exclusively or predominantly of women".

In Bilka-Kaufhaus -v- Weber 1986 ECR 1607 the part-time workers were excluded from an occupational pension scheme; while in Rinner-Kuhn 1989 E.C.R. 2743 there was different treatment as regards the payment of wages during periods of illness. In Enderby -v- Frenchay Health Authority 1994 ICR 112, there were different wage structures for different professions employed by the health authority.

7. The principle upon which all these cases was decided is set out in paragraph 25 of the judgment of the Court in the latter case as follows:-

"The Court has consistently held that it is for the National Court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker sex but in fact affects more women than men may be regarded as objectively justified economic grounds".

8. In Enderby, the difference in pay was the result of different industrial negotiations relating to the particular workers concerned. The Court said at paragraph 22 of its judgment:

"The facts that the rates of pay at issue are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same Trade Union are treated differently........

Accordingly.....the fact that the respective rates of pay of two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and, taken separately, having themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between those two jobs".

9. In the same case dealing with the question of the need to offer higher rates of pay to attract candidates the Court said at paragraph 26:

"The state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified economic ground within the meaning of the case law cited above. How it is to be applied in the circumstances of each case depends on the facts and so falls within the jurisdiction of the National Court".

10. The effect to be given to different collective bargaining processes was referred to in The Royal Copenhagen case in 1995 in the judgment of the Court it said:-

".....the fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the National Court as a fact in its assessment whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex".

11. The application of these principles can be seen in the decision of the Supreme Court in Nathan -v- Bailey Gibson Limited 1996 E.L.R. 114. In this case there was a provision that applicants for particular employment should be members of a particular Trade Union. In the course of his judgment which was the judgment of the Court Hamilton C.J. said at page 128:-

"A requirement, relating to employment or membership of a body which is not an essential requirement for such employment or membership in respect of which the proportion of persons of the other sex.....able to comply are substantially higher may amount to indirect discrimination even when a person is obliged to comply therewith for reasons other than a persons sex or marital status".

12. On the same page he further said:-

"In such a case the worker is not required, in the first instance, to prove a casual connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bear significantly more heavily on members of the complainant sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff's sex".

13. In the event the matter was referred back to the Labour Court for further consideration.

14. The principles of law established by the case law to which I have referred are not in my view in dispute between the parties. Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men then, whatever the reason, there is a prima facie discrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justifiable on economic grounds. Where the parties differ, in my view, is in their respective approaches to the facts. The Appellants submit that the issue of fact on which this case fell to be decided was not addressed by the Labour Court. The Respondents on the other hand submit that the facts establish that there was an objectively justifiable ground for holding that there was a ground other than sex for the difference in remuneration. In my view, the Respondents were dealing with the wrong issue. The issue is not whether the facts supported a finding, but whether any such finding had been made. This view is supported by the two cases upon which the Respondents mainly rely in their submissions as to how Enderby should be interpreted; Rainey and the 1995 Dansk case. The matters of fact upon which they rely are matters of fact to be submitted to the Labour Court, but not for this Court. This Court does not have to consider whether there are on an objectively justifiable basis grounds other than sex for the difference in remuneration between the Claimants and the Comparators. Its function is to determine as a matter of law whether the Labour Court has applied the correct legal principles.

15. Once there was a finding of like work, it was for the National Court - in our jurisdiction the Labour Court - to determine whether the difference was in fact gender based and not in reality merely an indirect way of reducing the level of pay of a group of workers exclusively or predominantly of one sex. It is only when they find that not to be the reality that a decision must be made that there is an objectively justifiable reason for the difference in pay. The Appellants say that this reason must exist at the date of the determination. It seems to me that this should be so since otherwise the employer would be relying upon a factor which no longer exists.

16. The decision in the Labour Court is dated the 5th February, 1996. It is accepted that the background to the case was as outlined in the Equality Officers recommendation. Having set out the grounds of appeal it then made its determination. It endorsed the conclusions of the Equality Officer that the Complainants and the Comparators were carrying out like work. The determination then continued:-

"The company raised by way of defence the claim that the difference in the rates between the Claimants and the comparators arose from grounds other than sex. The Courts finds this defence proved. The Claimants rates of pay are all unisex rates; the previous male/female rates were equalised through the registered employment agreement for the drapery trade. The comparators rates were negotiated within the industry and were increased as a result of company/union productivity agreements. The Claimants and the comparators rates of pay have been achieved by different industrial routes, and are in fact both unisex rates, even if one group is predominantly female and the other predominantly male.

The Court finds that the difference between the rates not related to the sex of workers. The Court rejects the appeal, and upholds the conclusions of the Equality Officer that the Claimants are not entitled to the same rate of remuneration as that of the comparators."

17. It is clear from this determination that the Labour Court relied upon four matters:-

(1) That the Claimants rates of pay were all unisex rates;

(2) That previous male/female rates were equalised through registered employment agreements;

(3) That the comparators rates were negotiated as a result of company/union productivity agreements; and

(4) That the different rates of pay have been achieved by different industrial routes and are both unisex rates even if one group is predominantly female and the other predominantly male.

18. The Court then found that the difference between the rates was not related to the sex of the workers. There is nothing in that determination which purports to deal with the question as to whether or not the practice or the circumstances giving rise to the difference in remuneration can be objectively justified. The reference to unisex rates does not seem to me to be significant. If the rates were not unisex there would be direct discrimination. The fact that the different rates of pay have been achieved by different industrial routes does not per se objectively justify the practice. The onus on the employer is not discharged by this circumstance alone. This is only one of the factors which they had to take into account, it did not determine the issue.

19. Where the principles of law laid down by the European Court sets out specific matters to be found by the National Court having jurisdiction to make findings of fact seems to me that such findings of fact should be made expressly and not by implication. In the present case, there is no express finding of fact that the circumstances which give rise to the difference in pay can be objectively justified on economic grounds. That is not to say that I am of the view that such a finding can be implied. In referring to economic reasons, I am not overlooking the fact that in Rainey -v- Greater Glasgow Health Board 1987 ICR 129 it was suggested that there might be reasons other than economic reasons to justify a particular practice. However in the circumstances of this case, the reasons can only be economic.

20. In the circumstances, I am of the opinion that the Labour Court applied the wrong principle. Its function was not to consider merely whether there was a reason unconnected with sex for the difference in remuneration, but whether that difference was objectively justified on economic grounds, and not merely an indirect means of reducing the pay of a group of workers exclusively or predominantly of one sex. What the Labour Court did was to accept the reason for the difference in remuneration without going on to consider whether it was objectively justified on economic grounds. The matter will be remitted to it to consider and determine the issue.