SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
DEPT OF SOCIAL COMMUNITY & FAMILY AFFAIRS
DEPT OF FINANCE
DEPT OF EDUCATION & SCIENCE
DEPT OF DEFENCE
OFFICE OF PUBLIC WORKS
OFFICE OF THE REVENUE COMMISSIONERS
(REPRESENTED BY CHIEF STATE SOLICITORS OFFICE)
- AND -
CIVIL & PUBLIC STAFF UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Re-hearing arising from High Court Judgement in appeal against DEP992.
2. The Union lodged a claim on behalf of 26 Clerical Assistants in various Government Departments for equal pay with 9 comparators in the Paperkeeper grade. The Union claimed that claimants and comparators perform like work. The Union claims that there was direct discrimination within the meaning of Section 2 of the Anti-Discrimination (Pay) Act, 1974.
The Department of Finance initially contested the Union's assertion that 'like work' as defined by Section 3 of the 1974 Act existed between the claimants and the comparators. However, the Department subsequently accepted that 'like work' existed, and agreed to rely solely on 'grounds other than sex' arguments to justify the different pay scales. In 1991, Clerical Assistants had an 11 point pay scale ranging from £141.98 (180.28 Euro) to £210.29 (267.01 Euro) whilst Paperkeepers had a 4 point scale ranging from £184.55 (234.33 Euro) to £208.06 (264.18 Euro).
The Equality Officer found in Recommendation No. EP 7/98 that although the claimants were doing 'like work' with the comparators, the difference in pay was unrelated to sex
discrimination and that there were 'grounds other than sex' to justify the difference in pay.
On appeal to the Labour Court under Section 8 of the 1974 Act, the Court, in Determination No. DEP992 accepted that the difference in pay between the 2 grades was justified on grounds other than sex.
In the determination, the Court found the following:
- clerical assistants and paper keepers are engaged in work of equal value;
- the grade of clerical assistant is predominantly female;
- the grade of paper keeper is predominantly male;
- the grade of clerical assistant is a recruitment/entry grade;
- the grade of paper keeper is a promotional grade (from the grade of services officer, previously messenger).
The Union appealed the determination to the High Court on points of law under Section 8(3) of the 1974 Act. The High Court held that:
"The basis for the determination of the Labour Court was the acceptance of a fact that the grade of paper keeper was a promotional grade from which there were no further promotional outlets."
The respondents claim that it was not submitted at any stage to the Labour Court that the paper keeper grade was one from which there was no promotional outlet. In fact, both Paperkeepers and Clerical Assistants have access to the Clerical Officer grade by means of a confined competition. The High Court concluded that the decision of the Labour Court could have been based on a misunderstanding. It directed a re-hearing of the matter.
The respondents claim that the sole issue to be determined by this Court now is whether the conclusion of the Labour Court, to the effect that the creation of the grade of Paperkeeper was necessitated by a need to encourage motivation amongst the staff who could attain the grade, to maintain a sense of occasion amongst them in the long term, and to raise morale amongst those members of the Respondents' grades employed, would be reached in circumstances where there are, in fact, outlets from the Paperkeeper grade.
A Labour Court hearing took place on the 23rd of October, 2001. The following is the Court's determination:-
This matter arose from Labour Court Determination No. DEP992 and should be read in conjunction with that determination.
The background to this case is as per Determination No. DEP992.
In its previous determination, this Court found that the claimants had been subjected to indirect discrimination. Having understood that the Paperkeeper grade was a grade from which there was no promotional outlet, this Court also found as a fact that this constituted objective justification for the difference in pay.
This finding, along with other findings of the Court, was appealed to the High Court. In his judgement delivered the third day of April, 2001, Murphy J held that:-
- It is now common case amongst the parties that in fact the Paperkeeper grade was a grade from which there was further promotional outlet.
- That this Court's finding that there was objective justification for the indirect discrimination relied entirely upon this fact and that, therefore, this Court had erred in Law in finding that a defence of objective justification had been made out.
- That the matter would be returned to this Court for rehearing in accordance with paragraph (c) of the endorsement of claim.
Paragraph (c) of the endorsement of claim on the appeal reads as follows:-
"An order setting aside the Determination DEP992of the Labour Court insofar as the Determination found that the claimants were not entitled to the same rate of remuneration as the comparators and remitting this matter to the Labour Court to be determined in accordance with the findings of law to be made by this Honourable Court."
The sole finding of law by Murphy J. was that this Court had erred in finding that the Paperkeeper grade was a grade from which there was no promotion and, therefore, its finding that this constituted objective justification for the difference in pay was incorrect.
This is, therefore, the only matter that needs to be addressed by this Court.
In its Determination DEP992, this Court found from the evidence furnished to it at that time that:-
- The claimants had been indirectly discriminated against in that the decision to pay the Paperkeeper grade - a grade composed mostly of men - a higher salary than the Clerical Assistant grade - a grade composed mainly of women - while both were engaged on like work, was inherently discriminatory.
- That this indirect discrimination was objectively justifiable on the sole grounds that the Paperkeeper grade was one from which there was no promotion.
It is now accepted by all the parties concerned that the ground upon which the Court relied in finding that there was objective justification for the discrimination did not exist.
The Court finds that the decision to pay the Paperkeeper grade more than Clerical Assistants grade, while both were engaged on like work, was indirect discrimination. For the reasons outlined above, the Court further finds that there is no objective justification for this policy.
The claimants were discriminated against within the meaning of Section 2 of the Anti-Discrimination Pay Act, 1974. To ensure equality, each claimant should be treated as having been on the same scale as a Paperkeeper from the date on which they entered employment - with the proviso under Section 8(5) of the Act that any arrears of remuneration be limited to the three years prior to the date of bringing the claim. The exact sums due to each claimant should be negotiated between the claimants and their employer and, in the event of dispute, the matter may be referred to this Court for a final decision.
Signed on behalf of the Labour Court
17th December, 2001______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.