Supreme Court remits pay discrimination case for re-evaluation of 'like work' and non-sex grounds.

THE SUPREME COURT

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:

National University of Ireland Cork

Appellant

AND

Alan Ahern & Ors

Respondents

Judgment of Mr Justice McCracken delivered the 10th June day of 2005

The Nature of the Proceedings

1. 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.”

2. 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.

3. 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.”

4. 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.

5. 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.”

6. 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.

7. 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

8. 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

9. 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.”

10. Under s.11, this subsection applies equally to a man in relation to his remuneration relative to that of a woman.

11. 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.”

12. Where a party is claiming discrimination under these provisions, it is for that party, in the present case the Respondents, to

nominate as comparators persons who it is alleged are doing “like work”. In the present case the Respondents initially nominated five

comparators, but ultimately the equality officer and the Labour Court only considered three of these persons as coming within the

terms of s.3(c) of the Act, and further considered that one of these three, who is a laboratory aid, was not relevant because there

were reasons other than sex for the difference in pay between the Respondents and that comparator.

13. 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.

14. 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.

15. 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”

16. 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.”

17. 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.

18. 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

19. 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.”

20. 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.

21. 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.”

22. 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.

23. 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

24. 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.

25. 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).

26. 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.

27. 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.