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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kenny & ors -v- Department of Justice Equality & Law Reform & ors [2014] IEHC 11 (13 January 2014)
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Cite as: [2014] IEHC 11
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Judgment Title: Kenny & ors -v- Department of Justice Equality & Law Reform & ors Neutral Citation: [2014] IEHC 11 High Court Record Number: 2007 42 IA Date of Delivery: 13/01/2014 Court: High Court Composition of Court: Judgment by: McCarthy J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 11 THE HIGH COURT [2007 No. 42 IA] 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 JUDGMENT of Mr. Justice Patrick McCarthy delivered on the 13th day of January 2014 1. This is an appeal on a point of law from a Determination of the Labour Court of 27th 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 28th 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 circumstances set out in s. 19(4). It provides, so far as material, that:-
[. . .] unless the provision 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 15th 2007 (itself the codification of the concept of indirect discrimination and elaborated by the ECJ). That provision states as follows:-
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 proposition. 13. The justification relied upon pertained to the operational necessity for the deployment of gardaí to clerical posts on the assumption, it seems, that if such deployment was justified, ipso facto, the differential was justified. The respondents also sought to rely upon industrial relations considerations, whether separately or as part of the justification for deployment if such deployment was pursuant to agreements made with gardaí. Ultimately, the matters in issue pertained to the choice of comparators, the basis upon which the Labour Court addressed the issue of objective justification, and the fact that it was alleged that in substance it had failed to address the reason for the differential and the significance attached to industrial relations. 14. In light of these matters and by consent of the parties, I referred the following questions to the ECJ for a preliminary ruling:-
(a) Justification in respect of the deployment of the comparators in the posts occupied by them; (b) Justification of the payment of a higher rate of pay to the comparators; or (c) Justification of the payment of a lower rate of pay to the [appellants in the main proceedings]? (2) In circumstances where there is prima facie indirect gender discrimination in pay, in order to establish objective justification, does the employer have to provide justification in respect of: (a) The specific comparators cited by the [appellants in the main proceedings] and/or (b) The generality of comparator posts? (3) If the answer to Question 2(b) is in the affirmative, is objective justification established notwithstanding that such justification does not apply to the chosen comparators? (4) Did the Labour Court, as a matter of Community Law, err in accepting that the “interests of good industrial relations” could be taken into account in the determination of whether the employer could objectively justify the difference in pay? (5) In circumstances where there is prima facie indirect gender discrimination in pay, can objective justification be established by reliance on the industrial relations concerns of the [respondent]? Should such concerns have any relevance to an analysis of objective justification?”
Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women must be interpreted as follows: Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women must be interpreted as follows: - employees perform the same work or work to which equal value can be attributed if, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation, which it is a matter for the national court to ascertain; - in relation to indirect pay discrimination, it is for the employer to establish objective justification for the difference in pay between the workers who consider that they have been discriminated against and the comparators; - the employer’s justification for the difference in pay, which is evidence of a prima facie case of gender discrimination, must relate to the comparators who, on account of the fact that their situation is described by valid statistics which cover enough individuals, do not illustrate purely fortuitous or short-term phenomena, and which, in general, appear to be significant, have been taken into account by the referring court in establishing that difference, and - the interests of good industrial relations may be taken into consideration by the national court as one factor among others in its assessment of whether differences between the pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex and are compatible with the principle of proportionality.”
18. The Advocate General, in his opinion of the 29th November, 2012, addressed the issue and his observations assist in understanding the principles involved, as elaborated by the ECJ:-
“. . . nothing more than a right to be treated on the same terms as someone in an equivalent legal situation. Thus, it is a right which is always predicated on a comparison between at least two subjects . . .” and made the fundamental point (at para. 45) that:- “[t]o be able to refer to a comparator in a way which demonstrates the difference complained of is therefore the key element in actually proving that difference.” and also stated that of course:- “[i]f the difference is born of the comparison, then its existence depends on the correct identification of the elements compared” and then (at para. 46) that:- “the comparator is the element of comparison by virtue of which the difference requiring justification is revealed.”
“. . . that the question is so much whether the relevant comparators should be the specific comparators cited by the appellants or the generality of comparator posts.” but that:- “. . . the deciding factor is, rather, whether the appellants have been able to show that there is a representative number of workers, who, although they do work that is equivalent to the work done by the appellants, are nevertheless paid at a higher rate”. and added thereafter (at para. 52):- “. . . the important point is whether the appellants have been able to provide an appropriate comparator for the purposes of establishing the existence of ‘a relatively large number of employees’ who do the same work as the appellants but are paid at a higher rate.”
“The important thing, in my opinion, is that, using the information provided by the appellants, the national court should be in a position to reach the firm view, in accordance with the applicable rules of evidence under the national procedural law, that the claimed difference actually exists, since [on the basis that] an unequivocally representative number of men who perform the same work as the appellants are nevertheless paid at a higher rate.”
22. This case is not authority for the proposition that different comparators may be used for different purposes, but, rather, when dealing with the same comparators for the purpose of addressing what I might shortly describe as justification for the differential (under the now repealed statute) one should, on given facts, have regard to context; on its facts that extended to considering the relationship between the properly chosen comparators and others, who had been rejected as valid comparators by the Labour Court. 23. Whatever else, I cannot see that different comparators could be used for different issues in a case: this would be a violation of principle (one would not, if nothing else, be treating like with like). 24. For the guidance of the Labour Court, and at the risk of repetition, I summarise the law as follows:
(ii) The comparators are valid comparators only if they cover enough individuals, do not illustrate purely fortuitous or short term phenomena and in general appear to be significant. (iii) Valid comparators cannot be based upon groups formed or individuals chosen in an arbitrary manner, or on an artificial or unrepresentative basis. In this context it is, of course, to state the obvious that the choice must be made from the whole cohort of persons with whom one seeks parity. (iv) One cannot simply discard a succession of persons or classes in the cohort to arrive, by process of elimination, at classes within the whole group whose members are performing the same work. (v) The comparators must be in an equivalent situation to the claimants. (vi) The comparators must constitute, as stated by Advocate General Cruz Villalón [at paras. 52-55]:- “‘a relatively large number of employees’ who do the same work as the claimants but are paid at a higher rate… [i.e.] a ‘relatively large number of men’ or ‘enough of them’.” 25. I think that the comparators should be drawn from the generality (of those engaged in garda clerical duties) as submitted by the respondents. My reasons are as follows:
(ii) The present system or structure for performance of clerical duties has its origins in a policy of which all are beneficiaries. (iii) On the claimants’ case gardaí who perform clerical work on a part-time basis perform like work. (iv) There is plainly a great deal of overlap in work between the gardaí who fill posts where garda membership or expertise is essential (of their nature) and that of clerical officers. (v) The number of persons in the chosen comparators’ class is precisely unknown but on any view of the evidence it is a modest proportion of the generality and an even smaller proportion of the total number of those involved in clerical work. (vi) The class from which the claimants conparators are insufficient in themselves to be of significance for valid comparison. (vii) To arrive at the chosen class of garda engaged in any pure clerical work involves the forbidden course of excluding successive classes to arrive at an unrepresentative one, favourable, it is conceived, to the claimants. (viii) The choice pays no or no proper regard to the rationally relevant principles which have been elaborated above. 27. Turning now to the question of objective justification in seeking to establish that the principal factor relied upon by the respondents is, effectively, the necessity for the deployment of gardaí to certain clerical posts on operational grounds: I do not intend to repeat the evidence here. A secondary ground pertains to industrial relations. It seems to me that it does not matter why the posts in question are filled by gardaí - there is no restriction on the Commissioner in that regard. The fact that he has chosen, for whatever reason, to assign gardaí to these tasks cannot justify a differential in pay: it is merely the reason why a differential which has always existed between gardaí and clerical workers has been highlighted. The objective justification for a differential should not be confused with the practical reasons which have led to it. It would not matter if the assignments were completely arbitrary. As pointed out above the position of the respondents is effectively that since deployment of gardaí is objectively justified for operational reasons (to put the matter shortly), or, indeed, industrial relations reasons, ipso facto the differential is justified. 28. The view of the ECJ on this topic as set out in paragraph 38 is as follows:-
31. I turn now to the question of industrial relations: in substance, it was submitted on behalf of the claimants that undue weight was given to this factor by the Labour Court. This proposition I reject. The extent to which they are relevant or the weight to be attached to them may differ when the Labour Court is called upon to consider the matter again. Since the reasons for the assignment of gardaí to the tasks in question are of no relevance, they arise only in the context of whether or not there is objective justification for the differential, something which, (at this juncture, appears to me to be unlikely), but I may or may not be proved correct in that view on the Labour Court’s rehearing. The basic rule as to the consideration of industrial relations issues is set out in the answer given by the ECJ to Question (4) in the reference. That answer is as follows:-
35. In light of my conclusions, I will remit the matter to the Labour Court. It should adopt the following approach when rehearing it, namely:-
(ii) By reference to validly chosen comparators, it should then address the issue of whether or not the work performed by the claimants is like work. (iii) If the work is held so to be the Court should then address the issue of whether or not the differential in pay is objectively justified. For the avoidance of doubt, this will not involve consideration of the reasons for the assignment of gardaí to certain posts as done at the instigation of the respondents when the case was before it. (iv) Insofar as it may be necessary to deal with industrial relations issues, they cannot of themselves be the sole basis justifying a differential, but regard may be had to them as one of a number of factors. (v) Consideration must be given to the context in which the generality work – by definition this will extend to taking into account the nature of not only the clerical work but all police work, including all incidents of service in An Garda Síochána. |