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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> National University of Ireland Cork -v- Ahern & Ors [2005] IESC 40 (10 June 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S40.html
Cite as: [2005] 2 IR 577, [2005] IESC 40, [2005] 2 ILRM 437
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Judgment Title: National University of Ireland Cork -v- Ahern & Ors Composition of Court: Murray J. Denham J. Hardiman J., Geoghegan J., McCracken J. Judgment by: McCracken J. Status of Judgment: Approved |
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Judgments
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Concurring |
Dissenting |
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McCracken J. |
Appeal allowed - set aside High Court
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Murray C.J.Denham J. HardimanJ., Geoghegan
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11
058/2004
Murray CJ
Denham J
Hardiman J
Geoghegan J
McCracken J
IN THE MATTER OF THE ANTI DISCRIMINATION (PAY) ACT 1974 AND
IN THE MATTER OF AN APPEAL FROM THE DETERMINATION NO. DEP021 OF THE LABOUR COURT AND IN THE MATTER OF AN APPEAL BY UNIVERSITY COLLEGE CORK
Between:
Appellant
AND
Alan Ahern & Ors
Respondents
Judgment of Mr Justice McCracken delivered the 10th June day of 2005
___________________________________________________________
The Nature of the Proceedings
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 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 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.
From this recommendation the Appellant appealed to the Labour Court pursuant to s.8 of the Act. The grounds of the appeal were stated to be:-
- “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 the appeal.”
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 than sex.”
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.”
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
The concept of equal pay is set out in s.2(1) of the Act which reads:-
- “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 employed in that place by the same employer … if both are employed on like work.”
Section 3 then provides that:-
- “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 two remaining comparators, namely those considered by the Labour Court, had originally been telephone switchboard operators for many years, initially employed on a full-time basis. In 1991, for family reasons, they both applied for job sharing under a scheme operated to this effect by the Appellant. In this, they were facilitated by the Appellant and they commenced a job sharing arrangement in August 1992 whereby they each worked every second week on the same hours as they had worked on a full-time basis, namely 9.15 am to 5 pm. They performed the same duties on the part-time basis as they had performed on a full-time basis.
In February 1993 the hours of operation of switchboard operators was extended to 8 am to 6.30 pm. The two comparators were unwilling to work these hours, and after negotiations with the Appellant it was decided that they should forfeit part of their duties in relation to accounts and retain the shorter hours worked. These accounts duties continued to be carried on by the remaining full-time switchboard operators. The comparators were not happy with this decision and ultimately, after conciliation procedures under the auspices of the Labour Relations Commission, it was agreed that the comparators would take back their accounts duties if they chose to work the extended hours.
As a result of these arrangements the full-time switchboard operators were performing different duties from the comparators, as the full-time operators still performed accounts duties, and worked longer hours than the comparators. However, in this regard the Labour Court found:-
- “The Court is satisfied that the terms and conditions of employment for the comparators remain the same, both before and after the introduction of job sharing arrangements. Therefore, the Court is satisfied that the argument that a difference in pay between the pay of the appellants and the comparators is based on grounds other than sex does not hold up – staying in the same job on the same terms does not constitute grounds other than sex. The fact that some employees in the same grade have different duties is of no relevance. The union has chosen them as valid comparators.
It was the University who insisted that the job sharers did not carry out the accounts duties. Their different hours of work may mean that their working conditions under section 3(c) are somewhat different, but overall their duties are similar.”
Findings in Relation to “Like Work”
The Labour Court found:-
- “The Court is satisfied that:-
In terms of skill, the job of the switchboard operators involves greater skill than the job of the security services officer;
in terms of physical effort the job of the security services officer involved greater physical effort;
in terms of mental effort, the job of the switchboard operator involved greater effort than the job of security services officer;
in terms of responsibility, the Court is of the view that the job of the security services officer is greater than that of the switchboard operator;
the working conditions of the security services officer are more onerous than those of the switchboard operator
on balance, the Court is of the view that the work performed by the security services officer is equal in value to the work performed by the switchboard operators within the meaning of “like work” under section 3(c) of the 1974 Act.”
Having made these findings, which related to the general positions of security services officers and switchboard operators, the Court went on to consider the position of the comparators and made the finding quoted above to the effect that the position had not been altered by the introduction of the job sharing arrangements or the fact that the comparators did not carry out accounts duties. The Respondents do not seriously contest the findings that in general the Respondents and the switchboard operators perform “like work”. However, the comparators chosen are not the switchboard operators in general, but the two specific operators who are involved in the job sharing arrangements.
I accept that the consideration of whether there was “like work” or not is almost entirely a question of fact. The Labour Court did set out in some detail its considerations of the various aspects of the work performed by the security services officers and the switchboard operators and reached a conclusion of fact. Insofar as this conclusion determines that there was “like work” there were grounds upon which the Labour Court was entitled to make that finding, and indeed as the general duties between the main body of switchboard operators and the comparators did not differ greatly, the Labour Court was also entitled to find that the comparators were engaged in “like work” with the Respondents.
The Question of Discrimination
Section 2(3) of the 1974 Act provides:-
- “Nothing in this Act shall prevent an employer from paying to his employees who are employed in “like work” in the same place different rates of remuneration on grounds other than sex.”
Assuming the comparators were engaged in like work with the Respondents, it is clear in the present case that they were not in receipt of the same rates of remuneration. The question raised by s.2(3) involves totally different considerations from those which are relevant to a comparison of “like work”. The question at issue here is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential. This involves a different approach to the position of the comparators, and in particular of the context in which they were employed. I accept the arguments on behalf of the Appellant that for this purpose the Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators, namely the remaining switchboard operators.
The Labour Court found that:-
- “The Court is satisfied that the terms and conditions of employment for the comparators remain the same, both before and after the introduction of job sharing arrangements.”
While this may be a perfectly valid finding in relation to the question of “like work”, it does not deal with the question of whether the relationship between the comparators and the other switchboard operators remained the same after the introduction of the job sharing arrangements. Indeed, it quite clearly altered. The comparators worked shorter hours and did not have accounts duties. It is of course very significant that the Respondents did not choose any full-time switchboard operators as comparators, although they were paid the same remuneration as the comparators. In considering whether there were grounds other than sex to justify the difference in remuneration between the Respondents and the comparators, the Labour Court ought to have taken into account the fact that the comparators were paid at the same rate as the full-time operators, although they did less work, and ought to have asked why this was so. Clearly that difference in remuneration was not based on grounds of sex but on grounds of a policy of facilitating the family obligations of the comparators. This being so, the Labour Court ought then to have considered the question whether the difference in remuneration between the Respondents and the comparators might have the same basis. The Labour Court failed to give any consideration whatever to the fact that the comparators worked shorter hours and lesser duties than their full-time colleagues.
On one view the comparators ought to have been paid less than the full-time switchboard operators, but the reason for not doing so is because of the generally accepted view that an employer should make due allowances for family responsibilities and should actively encourage initiatives such as job sharing without penalising those who benefit from such initiatives. This is not a matter which was considered at all by the Labour Court in the context of whether there was discrimination on the grounds other than sex, and it should be emphasised that the facilitating of family responsibilities is not something which is confined to female employees. It seems to be clear that it may in itself be a ground for discrimination in remuneration.
Conclusion
Accordingly, while a determination that discrimination was not on grounds other than sex may be a determination of fact, nevertheless I am quite satisfied that such finding was not based on the proper consideration of the surrounding circumstances or of the underlying facts. To this degree, I am satisfied that there was an error of law.
In particular, I consider that the Labour Court erred in not differentiating between the matters properly to be taken into consideration when considering the concept of “like work” under s.3(c) and those relevant to the determination of the grounds for differing remuneration under s.2(3).
I should add that there was considerable argument before the Court on the question of onus of proof. It does seem to me 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 I do not consider that it has any great relevance to the issue in the present case, which does not depend on an onus of proof, but depends on whether there was a proper consideration by the Labour Court of the circumstances of the case.
In these circumstances the appropriate order is that the matter be remitted to the Labour Court to be reconsidered by it in the light of the findings in this judgment.