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Cite as: [1999] IEHC 93, [1999] 2 ILRM 131

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Conlan v. University of Limerick [1999] IEHC 93; [1999] 2 ILRM 131 (4th February, 1999)

THE HIGH COURT

1997 No. 533SP

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977

BETWEEN

PATRICIA CONLAN

PLAINTIFF/APPELLANT

AND

UNIVERSITY OF LIMERICK

DEFENDANT/RESPONDENT

AND

MINISTER FOR ENTERPRISE TRADE AND EMPLOYMENT

NOTICE PARTY

JUDGMENT of Mr Justice McCracken delivered the 4th day of February, 1999.

1. This is an appeal on a point of law from a determination by the Labour Court which issued on 21st October, 1997 pursuant to a claim by the Plaintiff that the Defendant had discriminated against her on grounds of sex in filling the post of Professor of Law.

2. The Plaintiff is a lecturer in law in the University of Limerick and in January, 1995 the Defendant advertised inviting applications for the position of Professor of Law. The terms of the advertisement are of considerable importance, and the relevant portion of it reads:-

"Applications are invited from suitably qualified candidates holding a higher law degree, preferably at doctorate level. The successful candidate will have several years experience at a senior academic level and be a leading published researcher in a specialist field of law."

3. The Applicant applied for the position, and on 5th May, 1995 was notified that she had not been short-listed for interview as there were other candidates whose qualifications and experience more closely matched the immediate requirements of the Defendant. The Plaintiff's basic complaint is that, in requiring that an applicant should have several years experience at a senior academic level, the Defendant was indirectly discriminating against the Plaintiff on grounds of sex, in that this requirement meant that there would be very few females qualified for the post because there were very few females at a senior academic level. The matter was referred by the Labour Court to an Equality Officer who, on the 16th September, 1996, issued a recommendation that the Defendant had not discriminated against the Plaintiff. The Plaintiff appealed from this recommendation to the Labour Court, and the appeal was heard on the 16th April, 1997. On 21st October, 1997 the Labour Court issued its determination that there was no discrimination against the Plaintiff. This appeal is brought on the grounds that the Labour Court applied wrong principles of law in making its determination, and misinterpreted sections 2 and 3 of the Employment Equality Act, 1977.

4. The relevant sections of the Act are as follows:-

"3(1) A person who is an employer or who obtains under a contract with another person the services of employees of that other person shall not discriminate against an employee or a prospective employee or an employee of that other person in relation to access to employment, conditions of employment ... training or experience for or in relation to employment, promotion or regrading in employment or classification of posts in employment

3(2) An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with Section 2(c).

3(6) Without prejudice to the generality of subsection (1) a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion."

Subsection 2 of the Act purports to define discrimination by setting four examples. The only one relevant to the present circumstances is at Section 2(c), and reads as follows:-

"Where because of his sex or marital status a person is obliged to comply with a requirement relating to employment or membership of a body referred to in Section 5, which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher."

5. Although it is not expressly stated to be so, it is accepted that the Employment Equality Act, 1977 was enacted to comply with Directive no. 76/207/EEC and Article 189(3) of the Treaty of Rome. I do not think it is necessary to set out the provisions of the Directive in this judgment, but it clearly sets out the principle that there is to be no discrimination on the grounds of sex either directly or indirectly.

6. The application of the principles of the Directive to the Act were considered by the Supreme Court in Nathan -v- Bailey Gibson & Ors (1996) ELR 114. That case established the following principles:-

1. Section 2 of the Act only refers to direct discrimination, and the examples given in it are examples of direct discrimination rather than indirect discrimination.

2. Section 3 of the Act applies to both direct and indirect discrimination.

3. The interpretation of Section 3 of the Act is not limited in any way by the provisions of Section 2, because the interpretation of Section 3 must be approached in the light of the Directive.

4. Initially, it is for the worker to show that the practice complained of bears more heavily on one sex than on the other. Once this is established, it is then for the employer to show that, notwithstanding this fact, the practice complained of is in fact based on factors which are unconnected with the sex of the worker. In this regard, the onus of proof is clearly on the employer.

7. Hamilton C.J. said at page 128:-

"In such a case the worker is not required, in the first instance, to prove a causal 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 bears significantly more heavily on members of the complainant's 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."

8. Miss Finlay S.C. has referred me to a number of decisions of the European Court which emphasise that the national Court, or in the present case, the Labour Court, must make an objective finding in considering whether the practice complained of is based on factors which have no relation to the Plaintiff's sex. I fully accept the principles set out in these cases, and I think it is probably only necessary to refer to one of them. In Bilka-Kaufhaus GmbH -v- Karin Weber Von Hartz (1986) 2 CMLR 701, which in fact concerned pensions, but which considered the whole question of discrimination in detail, it was said at page 721:-

"It falls to the national Court, which alone is competent to assess the facts, to decide whether, and if so to what extent, the grounds put forward by an employer to explain the adoption of a pay practice which applies irrespective of the employee's sex, but which in fact effects more women than men can be considered to be objectively justified for economic reasons. If the national Court finds that the means chosen by Bilka meet a genuine need of the enterprise, that they are suitable for attaining the objective pursued by the enterprise and are necessary for that purpose, the fact that the measures in question affect a much greater number of women than men is not sufficient to conclude that they involve a breach of Article 119."

9. In the present case the Labour Court certainly did not follow the procedure laid down in the Nathan case in considering the matter. At page 5 of the determination the Labour Court said:-

"In fact, the worker has not sought seriously to establish a case of direct discrimination. She really bases her case on an allegation of indirect discrimination, arguing that the requirements set down by the University for the position were not essential, and that it was more difficult for her as a woman to comply with them than it would have been for a male academic to comply with them.

In relation to that argument, the first matter for the Court to address is the question of whether or not the requirements were indeed essential requirements. If they were not, then the issue of whether a greater proportion of men than of women could comply with them would follow for determination.

But if the requirements were essential, then the question of indirect discrimination does not arise, because if a requirement is a genuinely essential requirement, any choice based on it could not arise from a sex based indirect discrimination

Section 2(c) sets out that the requirement which could lead to discrimination would be one 'which is not an essential requirement for such employment'. If, therefore, the worker could show that the requirements imposed for access to the position of Professor of Law were not essential for employment as Professor of Law, then she could go on to seek to show that the requirement negatively affected her as a woman, because the proportion of men who could comply with it was greater".

10. This portion of the determination clearly is contrary to the principles of the Nathan case, in that the Court appeared to consider that Section 2(c) applied to indirect discrimination, and also in that it appeared to put the onus of proof on the Plaintiff to show that the requirements were not essential. It also considered the question of whether the requirements were essential as the first issue, rather than determining how the different sexes were affected as the first issue.

11. The Labour Court then went on to give its findings of fact in relation to the issues in the following passage:-

"The Court finds that in relation to a senior academic post, it is not quite as simple a matter as asking whether a person with less qualifications can teach the subject or do the administrative work required. No doubt there are many people in subordinate positions who would be quite capable of doing the work which their superiors are paid to do, and who in fact do the work of their superiors from to time. But in this case the University was seeking to fill a senior position with a person of a certain status and a high level of teaching, research and administrative experience. It was important to the University that the person would not only be capable of doing the job, but would be seen to be a person of senior stature, and with considerable experience, so that students of high calibre would be attracted to the courses and that the standing of those courses with employers and with the legal professional institutions would be high. The University was not only interested in who could do the job, but who would be perceived as a suitable holder of one of the two top academic positions in the law faculty of a relatively new University. The perception was as important for the employment as the ability to do the specific tasks.

The University certainly considered their requirements to be essential for the employment, and there is no evidence that it was unreasonable in taking this position. In this case, the Court is satisfied that the institution genuinely regarded the requirements as essential, that the requirements were reasonable in the circumstances, and reasonably deemed to be essential, and that the worker has not shown them to be otherwise."

12. This was a very clear finding of fact, which was based on arguments and evidence put forward by the Defendant. While the Court did not express the view that the onus of proof was on the Defendant, it in fact reached its conclusions, based on evidence and submissions from the Defendant. It was only after reaching those conclusions that the Court then expressed the opinion that the Plaintiff had not shown matters to be otherwise. In considering a matter such as this, a stage must certainly come where a Court is satisfied that the person upon whom the onus of proof rests has discharged that onus, at which stage it becomes a matter for the other party to persuade the Court otherwise. While the Labour Court certainly did not express itself particularly well in their determination, it would seem that in fact they considered the arguments of the Defendant and satisfied themselves that the onus of proof had been discharged. Accordingly, I think they made a finding of fact that the requirements for the post were reasonable and essential for reasons not connected with the sex of the Applicants for the post, based on the Defendant's case.

13. Furthermore, I do not think it is of any relevance that they considered the question of the requirements for the post before considering whether women were adversely affected by these requirements. In reality, there are two matters upon which the Court has to be satisfied if it finds discrimination, namely, firstly whether one sex has been adversely affected as opposed to the other, and secondly whether the matter complained of is based on objectively verifiable factors which have no relation to the Plaintiff's sex. If either of these matters is determined against the Plaintiff, there must be a finding that there was no discrimination. I do not think it matters in which order a Court considers these factors, as if there are objectively verifiable factors which have no relation to the Plaintiff's sex, the question of adversely affecting one sex over the other does not arise.

14. There is no doubt that the Labour Court erred in referring to Section 2(c) in relation to this matter. However, this was simply an error in relating the question to one particular section. In fact the Labour Court considered the issue from the point of view of indirect discrimination, which was the correct approach to take, even if they attributed this approach to the wrong section. They applied the principles in relation to indirect discrimination perfectly correctly, and the fact that the reference was to Section 2(c) does not, in my view, invalidate their decision in any way.

15. I accept fully the principle that the factors relating to the requirements of the Defendant must be viewed objectively by the Labour Court. It is difficult when considering the findings of a body such as the Labour Court to put oneself in the position of judging how they approached the decision, and in particular whether that approach was subjective or objective. The portion of the decision dealing with this matter starts by setting out the claim made by the Plaintiff, that since academics at a lower level than professor are carrying out similar duties, the requirements could not have been essential. It then goes on to set out reasons why that is not so in the present case, and those reasons are of course set out subjectively in that they are the requirements of the Defendant in this particular case. They are, however, set out as the Court's findings as to the reasons why the Defendants considered the requirements to be essential, and to that extent their findings are of fact as to the belief of the Defendant. The wording of the following paragraph is the vital sentence in the decision and is not happily expressed. To repeat the sentence, it says:-

"In this case, the Court is satisfied that the institution genuinely regarded the requirements as essential, that the requirements were reasonable in the circumstances, and reasonably deemed to be essential, and that the worker has not shown them to be otherwise."

16. The use of the word "reasonable" is particularly unfortunate, as the generally accepted test is that the requirement must be "essential" . However, this is really a matter of semantics, and in my view the finding that the Court was satisfied that the requirements were reasonable in the circumstances, coupled with the last sentence of the following paragraph which says that "the Court is satisfied that the requirements laid down by the University were essential" are sufficient to lead to the inference that the Court did view these requirements as being objectively essential in the particular circumstances of the post which it was sought to fill. This seems to me to be the correct approach in accordance with the decisions of the European Court, and I would refer in particular to a paragraph from the case of Kording -v- Senator Fur Finanzen (1997) ECR 5289 at paragraph 23 of the judgment where it is stated:-

"In case C-184/89 Nimz (1991) ECR I-297, paragraph 14, the Court took the view that it is impossible to identify objective criteria unrelated to any discrimination on grounds of sex on the basis of an alleged special link between length of service and acquisition of a certain level of knowledge or experience, since such a claim amounts to no more than a generalisation concerning certain categories of workers. Although experience goes hand in had with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in each individual case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours."

17. In my view, therefore, the Labour Court adopted the correct approach in having regard to the circumstances of the particular case, and holding that in those circumstances the requirements were either reasonable or essential, depending upon which part of the wording one chooses, but in any event, in my view this finding was sufficient to objectively dispose of any question of discrimination.

18. Finally, an argument was also advanced on behalf of the Plaintiff that the Labour Court failed to apply the correct principles in that it failed to take into consideration the lack of transparency in the criteria applied for appointment to the post and accordingly, that by reason thereof, the onus was on the Respondent to establish that discrimination did not occur. In my view, the wording of the advertisement and the criteria set out were in fact quite clear. The principle requirements were "a higher law degree" , "several years experience at a senior academic level" and "a leading published researcher in a specialist field of law" . I do not think that there would be any misunderstanding as to the meaning of any of these phrases among people in the academic world, and I do not think that a lack of transparency arises. However, in any event I have accepted that the onus is on the Respondent to establish that discrimination did not occur, but it is my finding that however, by putting forward the reasons for making these requirements, which are set out in the determination of the Labour Court, the Respondent fulfilled the onus of proof upon it, and that the Labour Court considered these reasons objectively and reached the conclusion that they were essential requirements which had no connection with the sex of the Applicant.

19. Accordingly, I would dismiss the Applicant's appeal.