SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
DEPARTMENT OF ENTERPRISE, TRADE AND EMPLOYMENT
LABOUR RELATIONS COMMISSION
- AND -
MS DEIRDRE SWEENEY
Chairman: Ms Owens
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal by the worker that the Equality Officer's Recommendation EP10/97 has not been implemented.
2. The appeal concerns a claim by the worker that the Equality Officer's Recommendation EP10/97 has not been implemented. The claimant is head of the Employment Equality Service of the Labour Relations Commission and was found entitled to the same remuneration as that enjoyed by her three male comparators also employed by the Labour Relations Commission. The worker claims that for the Recommendation to be properly implemented, she should be graded as a Principal Officer.
The Department opposes the appeal and claims that the Recommendation has been implemented in full.
3. The Recommendation in dispute was issued on 15th August, 1997 and concludes as follows:
"In view of the conclusions of the Equality Officer that the claimant is engaged on like work with all three named comparators and in view of the rejection by the Equality Officer of the Department's argument that the claimant's rate of remuneration is based on grounds other than sex, the Equality Officer therefore recommends that in accordance with Section 8(5) of the Act the claimant Ms Sweeney be paid the same rate of pay as the comparators with effect from the 30th September, 1991".
4. The Court heard the appeal on the 7th May, 1998. The parties made written submissions (details with the Court) and expanded orally on their submissions at the hearing.
In considering this appeal by Ms. Deirdre Sweeney that the Recommendation of the Equality Officer had not been implemented, the Court had first to decide whether the matter under appeal was properly before it.
The Equality Officer in EP10/1997 recommended;
"that in accordance with Section 8(5) of the Act the claimant Ms. Sweeney
be paid the same rate of pay as the comparators with effect from 30th
In her appeal the claimant submitted that to implement in full the spirit of the Equality Officer's recommendation it is necessary for the respondent not alone to pay the claimant the same rate of pay as the comparators but to redress a discrimination in the grading system by grading her at the same grade as the comparators.
The respondents both claimed in their defence that they had implemented in full the Equality Officer's recommendation and asked the Court to dismiss the appeal.
The Court is satisfied that the matter before the Equality Officer was a claim for "remuneration" and that claim was dealt with by the Equality Officer. At no stage of the proceedings is there any record of the question of grading having been raised. Thus, it would appear that the Court was being asked to deal with a matter which had not been the subject of the Equality Officer's hearing.
The Court considered whether a finding in relation to a "rate of remuneration" could also encompass a finding in relation to a grading. The claimant, in her verbal submission, argued that it could. She cited the case of Garland v. British Rail Engineering Limited (IRLR 1982 111) in which the European Court of Justice held that " Travel facilities....fulfil the criteria enabling them to be treated as " pay " within the meaning of Article 119..." Earlier the Court had noted that in accordance with its decision in Defrenne (Case 80/70) ' the concept of pay contained in .......Article 119 comprises any other consideration, whether in cash or in kind, whether immediate or future ....'
But this Court notes that in Case 149/77 (Defrenne v. Sabena), when the Belgian Cour de Cassation sought clarification from the European Court as to the scope of Article 119, the Court stated, inter alia,
"In contrast to the provisions of Articles 117 and 118, which are essentially
in the nature of a programme, Article 119, which is limited to the question
of pay discrimination between men and women workers, constitutes a
special rule, whose application is linked to precise factors"
".....Article 119 of the Treaty cannot be interpreted as prescribing, in addition to equal pay, equality in respect of the other working conditions applicable to men and women".
On the basis of this decision, the Court has concluded that in this appeal the recommendation of the Equality Officer cannot be interpreted as having extended to the question of grade.
The appeal, therefore, is not properly before the Court and must be rejected.
The Court so determines.
Signed on behalf of the Labour Court
10th August, 1998______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.