215 Named Individuals (unrepresented) 1,856 Named Individuals (Represented by the PSEU)
Mr. Joseph McBride (Represented by the AHCPS)
Mr. Brian Ormond (Unrepresented)
Department of Finance (Represented by the Chief State Solicitor's Office) & The Civil & Public Services Union (CPSU)
TABLE OF CONTENTS
|Summary of the Unions' Submission (PSEU/AHCPS)||1|
|Summary of the Submission from Mr. Ormond||8|
|Summary of the First Named Respondent's|
Submission (Department of Finance)
|Response to Claim by Mr. Ormond||20|
|Summary of the Second Named Respondent's|
|Summary of the Unions' Response (PSEU/AHCPS)||25|
|Conclusions of the Equality Officer||29|
|Claim by Mr. Ormond||34|
|Appendix A||Extract from Equality Officer Decision DEC-E2004-007|
|Appendix B||List of Complainants (Represented by the PSEU)|
who referred claims after 20th November, 2003
|Appendix C||List of Complainants (Unrepresented)|
who referred claims after 20th November, 2003
|Appendix D||List of Individuals (Represented by the PSEU and AHCPS)|
who referred claims before 20th November, 2003
|Appendix E||List of Individuals (Unrepresented)|
who referred claims before 20th November, 2003
215 Named Individuals (Unrepresented), 1,856 Named Individuals (Represented by the PSEU), Mr. Joseph McBride (Represented by the AHCPS) and Mr. Brian Ormond (Unrepresented) (complainants) vs Department of Finance (Represented by the Chief State Solicitor's Office) and The Civil Public and Services Union (CPSU) (respondents):
Equality Officer Decision DEC-E2006-008 (Coyle G.) 06th March, 2006
Employment Equality Act, 1998 Sections 6, 19, 22, 29, 77 and 86 - Employment - Pay - Indirect Discrimination - Gender - Marital Status - Family Status - Age - Time Limits - Collective Agreement
The complainants in these claims contended that the settlement agreement reached by the Department of Finance and the CPSU on foot of claims brought by female Clerical Assistants claiming equal pay with male Paperkeepers was indirectly discriminatory on the grounds of gender, marital status, family status and age. The named respondents have denied the allegations.
Conclusions and Decision:
The Equality Officer held that the settlement agreement was a collective agreement within the meaning of the Employment Equality Act, 1998. The Equality Officer held that, as these claims related to pay, they were not subject to the time limits set out in the 1998 Act. The Equality Officer further held that the effective date of the settlement agreement was 20th November, 2003 hence all claims referred after that date were deemed valid. Claims referred before that date were deemed invalid. The Equality Officer found that the statistics do not support the contention that the settlement agreement was indirectly discriminatory on the grounds of gender, marital status, family status and age.
Equality Officer Decision - Ms. Brady & 12 Others and Ms. McGivern v TSB ESOP Trustees Limited, Irish Life & Permanent plc, MANDATE, ATGWU and SIPTU - DEC-E2004-007
Rights Commissioner Decision - FT18670/04/JH
Labour Court Determinations:
FTC/05/5 Determination No. 056
DEP014 dated 17th December, 2001
European Court of Justice - Bilka-Kaufhaus GmbH v Weber von Hartz  C-170/84 IRLR 317; ECR 1607
1.1 The dispute concerns a claim by a total of 2,073 Named Individuals against the Department of Finance and the CPSU that they have been discriminated against on the grounds of gender, marital status, family status and age within the meaning of Sections 6(1), 6(2)(a), 6(2)(b), 6(2)(c) and 6(2)(f) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when they did not receive equal pay or any form of settlement following the Determination of the Labour Court in the case of Department of Social Community & Family Affairs, Department of Finance, Department of Education & Science, Department of Defence, Office of Public Works, Office of the Revenue Commissioners v CPSU. (2)
1.2 Consequently the PSEU on behalf of 1,856 individuals, the AHCPS on behalf of Mr. Joseph McBride, Mr. Ormond and 215 individuals who were unrepresented referred their complaints to the Director of Equality Investigations under the provisions of the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claims to Gerardine Coyle, Equality Officer on 8th February, 2005 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary hearing took place on 5th May, 2005. Following receipt of submissions a joint hearing took place on 13th December, 2005. Additional information was received from the first named respondent on 20th December, 2005.
3. SUMMARY OF THE UNIONS' (PSEU & AHCPS) SUBMISSION
3.1 The Unions note that these claims have their origin in a claim for equal pay made on behalf of 26 Clerical Assistants in 1991. The claim was brought on behalf of the staff concerned by the Civil & Public Services Union (CPSU) and was the subject of Labour Court Determination DEP014. In its Determination the Labour Court held as follows:
"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".
At the time of the Labour Court Determination the Civil Service clerical grading structure included the grades of Clerical Assistant (Data Entry) and Clerical Officer. During 1997 a restructuring of clerical grades in the Civil Service in 1997 provided for a single grade of Clerical Officer which replaced the then existing grades of Clerical Officer, Clerical Assistant (including typist and shorthand typist), Clerical Assistant (Data Entry) and Paperkeeper.
3.2 The Unions say that prior to the agreed restructuring of the Civil Service grades in October, 1997 the CPSU invited all female Clerical Assistants whose pay was below the maximum of the scale to lodge individual claims of discrimination. As a result some 2,200 female members lodged such claims. At the time it is understood that there was some 869 men in the Clerical Assistant grade who, in the words of the CPSU "could not apply for equal pay". Other staff in the Clerical Assistant grade who could not make claims were those serving on points on the scale above the Paperkeeper maximum and this included some 1,311 women who were on the maximum of the scale in 1997.
3.3 According to the Unions the CPSU and the Department of Finance were engaged in discussions to finalise an agreement which ultimately provided for the following categories of staff which would be entitled to benefit:
(a) The original 26 claimants whose claims were covered in Labour Court Determination DEP014;
(b) All of those who had made claims under the Anti-Discrimination (Pay) Act, 1974 (whatever grade they were serving in);
(c) All of those who were serving in the grades of Clerical Assistant and Clerical Officer immediately before the CPSU restructuring agreement was implemented on 30th September, 1997 and who were still serving as Clerical Officers on 16th May, 2003 irrespective as to whether they were actual claimants or not.
In the case of (a) above the settlement involved the implementation of the full Labour Court Determination. In relation to (b) and (c) above the amount involved was €5,000. Thus the Unions note that any person who had made a claim which was referred to the Equality Officer/Labour Court under the legislation, even if promoted to a grade represented by these Unions since, was entitled to benefit from the terms of the settlement. Alternatively any person who had been promoted from Clerical Officer and who had not made a claim was excluded from the settlement. This exclusion included staff in the Clerical Assistant grade at the time the claims were originally pursued even though the alleged purpose of the settlement was to deal with an equal pay issue between Clerical Assistants and Paperkeepers.
3.4 The Unions note that the complainants covered by these claims are staff who had been Clerical Officers/Clerical Assistants on or before 30th September, 1997 and who did not make out individual claims under the equality legislation. Their contention is that the position in which they find themselves is not only unfair but is in breach of the Employment Equality Acts, 1998 - 2004. In making this contention the Unions point to the fact that the settlement which has been made is not confined to Clerical Assistants who made individual claims but rather to all Clerical Assistants and Clerical Officers who had not been promoted by 16th May, 2003. Persons who had been clerical staff but were promoted before May, 2003 consider this to be a completely arbitrary cut-off point with no particular rationale. The Unions say that the inclusion in the settlement of staff who had not made any claims at all means that the agreement between the Department of Finance and the CPSU is a settlement of equality claims so far as claimants are concerned and a straightforward industrial relations agreement so far as the non-claimants are concerned. It is the Union's contention that the implementation of the settlement was discriminatory against staff who were Clerical Assistants/Clerical Officers on or before 30th September, 1997 and who were promoted before 16th May, 2003 in that they also suffered from the discrimination in pay terms which was being corrected for those who made out claims of discrimination and, also, those who did not make out such claims because, as males, they were advised by the CPSU not to do so.
3.5 The Unions note that the approach of the CPSU was to discourage men from submitting claims. According to the Unions of the 1,848 PSEU claimants 689 were male and in the case of the group who were paid the €5,000 (even though they did not submit claims) just 15.6% of these were men and 84.4% were female. Thus of those who did not make claims and who were paid, a far more substantial proportion of these were female when compared to the complainants. The Unions claim that the vast bulk, if not all, of the persons who made claims covered by the settlement were women. Men were excluded by the CPSU from bringing claims and were not invited to do so. However the actual agreement concluded with the Department of Finance covered men who did not make any claims at all simply because they had not secured promotion by 16th May, 2003. It is the Unions' understanding that in making payments the Department of Finance included staff who had been in the Paperkeeper grade who clearly could not have claimed discrimination on the grounds claimed by others. The Unions contend that the entire basis on which the claims covered by the collective agreement were approached was discriminatory against men as the CPSU deliberately excluded them from submitting claims. In the case of PSEU complainants and the complainant represented by the AHCPS this exclusion has been compounded by their further exclusion from the settlement simply because they were promoted by 16th May, 2003. The Unions say that men can point to the fact that they were not in a position to submit claims, that nearly 85% of those who did not submit claims and who benefited were female and, according to the Unions, this is clear evidence of discrimination against men on gender grounds. Aside from persons who benefited from the settlement who had not ever submitted claims the Unions note that a further 2,200 staff who had submitted claims benefited as well from the terms of the agreement. It is the Unions' understanding that all of these persons were female. Thus the total number of females to benefit would be 4,088 who did not make claims and who had not been promoted and 2,200 females who did make claims and who benefited. Therefore a total of 6,110 females benefited from the agreement as against some 755 men. Of the total beneficiaries of some 6,865 89% were female. In relation to the PSEU complainants, who were precluded from benefiting by virtue of having been promoted, the Unions note that 37.34% of these were male whilst the beneficiaries of the settlement is composed of 84.4% females if one looks at the group who had not made claims or over 89% if female claimants are included. The Unions note that males comprise just 10.71% of the beneficiaries while the make up of the PSEU complainants is 37.34% male. In addition to the foregoing the Unions state that males can point to the fact that females whose pay exceeded that of Paperkeepers and who did not submit claims received the benefit of the settlement which purported to settle an equal pay claim when males, whose pay was less than that of the comparators, were not allowed to make claims by their Union. It is, therefore, the Unions argument that the agreement which excluded males from payment is a discriminatory agreement.
3.6 The Unions argue that the concluded agreement potentially discriminated against the complainants on the grounds of marital status. The Unions provided details on the marital status of the vast bulk of the complainants and note that the Department of Finance did not provide similar information for the comparator group. In the absence of such information from the Department of Finance the Unions relied on CSO data from the 2002 Census which contained details of the marital status of workers who declared themselves as central and local government workers under each of the headings for this category in the Census form. From this information the Unions concluded that the complainants represented by the PSEU have a higher marriage rate of some 19.04% than those persons who classified themselves as Civil Service Clerical Staff in the CSO Census. In the absence of similar data from the Department of Finance in relation to those who benefited from the agreement the Unions submit that it is reasonable to infer that their marriage rate co-incides with that shown by the CSO data and consequently the settlement reached had the effect of discriminating against those complainants who were married. The Unions contend that the discrimination complained of would not have occurred but for the arbitrary imposition of a requirement that staff be serving in the Clerical grades on 16th May, 2003. According to the Unions this date was selected without any objective basis and could not be said to have been "justified by a legitimate aim and the means of achieving that aim". The Unions note that the parties to this agreement were fully aware that there were complaints about the settlement before it was formally signed and nothing was done to establish if the potential for bias existed. Rather they proceeded to finalise the terms of the agreement without considering the real possibility of discriminatory effect.
3.7 The Unions state that they have examined the ages of the PSEU complainants and compared this data with the known ages of the comparators as furnished by the Department of Finance. The Unions do not have the ages of all of the complainants and the Department of Finance has not provided age details for all of the persons who benefited from the settlement. On the basis of the information relating to age that is available the Unions conclude that there is a very significant variation in the percentage of persons under the age of 40 in the two groups i.e. 59.92% of the PSEU complainants as against 42.57% of those who benefited from the settlement. Consequently it is the view of the Unions that this significant variation indicates that the structure of the settlement complained of had the effect of discriminating against younger staff.
3.8 The Unions examined the family status of the PSEU complainants but was unable to provide information in this regard on all of the complainants. No similar information was provided by the Department of Finance in relation to those who benefited from the agreement. The Unions again compared its data to that provided by the CSO in the 2002 Census and noted a stark contrast between the family status of the complainants and the family status of those other categories provided by the CSO. The examination concluded that the complainants were some 32% more likely to have a family status than Civil Service Clerical Officers and Assistants as provided in the CSO 2002 Census. On the basis of the information available the Unions considered that it is reasonable to infer that those who do not have a family status suffered as a result of discrimination. The Unions submit that the discrimination would not have occurred but for the arbitrary imposition of a requirement that staff be serving in the Clerical grades on 16th May, 2003.
3.9 The Unions note that at the preliminary hearing of this claim the Equality Officer drew attention to the fact that a Rights Commissioner Decision (3) determined that the effective date of the agreement complained of was 20th November, 2003 (the date on which it was finalised) rather than 16th May, 2003 (the date of the CPSU Conference ratification of the proposed terms). While the bulk of the claims submitted by the Unions were done no later than six months beyond 20th November, 2003 the Unions accept that some of the claims may have been submitted after the six month period. In this regard the Unions note that the €5,000, from which its members were excluded, was not effected until December, 2003 and therefore claims submitted no later than six months after the payment date might be regarded as being on time given that the non-payment of that €5,000 to the complainants on that date constituted the actual act of discrimination. If this view is not accepted the Unions contend that there are reasonable grounds for extending the time limit given that the Determination of the Rights Commissioner was not given until 5th April, 2005 and could not have been known to the Unions before then. On this point the Unions note that its understanding of the position put by the Equality Officer at the preliminary hearing was that so far as the complaints constitute complaints concerning a collective agreement, then time limits are not an issue.
3.10 The Unions are critical of the Department of Finance for not supplying information on the marital and family status of persons who benefited from the agreement having regard to the provisions of Section 81 of the Employment Equality Act, 1998. The Unions believe that the Department of Finance should have taken steps to secure data in respect of the comparator group in order to establish if the agreement it was concluding had an effect of discriminating against staff on the grounds of marital status and family status. It is the Unions' submission that it would be appropriate that inferences be drawn from the fact that the reason the respondent would not secure the information was because it would demonstrate that the agreement complained of had a discriminatory effect.
3.11 In conclusion the Unions ask the Equality Officer to find that the decision of the parties to the agreement to exclude the complainants from the benefit of the €5,000 payment was a discriminatory act contrary to the Employment Equality Act, 1998 which was given effect by an agreement which is a discriminatory agreement.
4. SUMMARY OF THE SUBMISSION FROM THE COMPLAINANT (MR. ORMOND)
4.1 The complainant states that while he was working as a Clerical Officer in Dun Laoghaire Employment Exchange in September, 1997 he was approached by a work colleague (and Union Representative) to sign a form in support of a claim by the CPSU on behalf of Clerical Assistants for equal pay with the Paperkeeper category. Then in May, 2003 when the claim was near resolution the complainant says that he contacted the CPSU seeking confirmation that his form had been received and he was given this confirmation along with a copy of the original form he had submitted to the Union. According to the complainant the CPSU issued a circular (217/03) dated 20th May, 2003 giving details of the equal pay settlement reached with the Department of Finance. Those who would benefit were listed under item 8 of the circular. These included 2,200 complainants who signed the form in 1997 regardless of the current grading as they had a legal entitlement to the settlement terms.
4.2 The complainant states that on 12th September, 2003 the CPSU issued a circular (313/03) advising that the discussions with the Department of Finance on the provisional CA/PK settlement terms were still ongoing and asking that current serving Clerical Officers and Staff Officers (who claimed equal pay in 1997) to complete another form which the complainant duly completed and returned to the CPSU. According to the complainant the settlement agreement between the CPSU and the Department of Finance was signed off on 20th November, 2003 and the schedule to that agreement contained a list of eligible claimants. Those eligible included Clerical Assistants or Clerical Officers who filed equal pay claims on/before 31st April, 1998. Item 10 of the Agreement specifies "Persons not identified as eligible claimants until after the 31st December, 2003 shall, if otherwise eligible, be paid the settlement sum without interest". It is the complainant's contention that it is obvious from the foregoing that he qualifies for payment under the terms of the Settlement Agreement and he concludes that he was excluded, on the basis of gender, from the list of claimants submitted by the CPSU to the Department of Finance.
4.3 In conclusion therefore the complainant claims payment of the full amount of €5,000 as was paid to those eligible under the Settlement Agreement.
5. SUMMARY OF THE SUBMISSION FROM THE DEPARTMENT OF FINANCE - FIRST NAMED RESPONDENT
5.1 The respondent states that the CPSU (the second named respondent) lodged equality claims on behalf of 26 claimants which were rejected by the Equality Officer and this finding was upheld by the Labour Court on appeal. When the CPSU made an appeal to the High Court the Court referred the case back to the Labour Court which then found in favour of the claims. The Department of Finance appealed the second finding to the High Court. While the case was with the High Court the Department of Finance and the CPSU had discussions about a possible settlement on an industrial relations basis. Agreement was reached and it was decided that an overall amount of €34 million would be paid to settle the claim. The first named respondent says that the only people who had possibly valid claims under the equality legislation were the 26 original claimants and the 2,200 people who made claims in 1997. However the CPSU wanted to divide the money among a larger number of people and the first named respondent did not object to this as there was no increase in the cost of the settlement. Apart from the original 26 claimants and the 2,200 who made claims the CPSU wished to add people who were serving as Clerical Assistants or Clerical Officers on 31st October, 1997 - the date sanction was issued for a new clerical structure in the civil service and who were still Clerical Officers in 2003. The respondent states that the CPSU put this proposal to its annual delegate conference on 16th May, 2003 and the conference approved it. According to the respondent the numbers qualifying were about 6,800 and a legal agreement was drawn up between the Department of Finance and the CPSU which provided for a settlement amount of €5,000 to eligible people and there were two categories of eligible people as follows:
- Clerical Assistants or Clerical Officers serving on 31st October, 1997 and who were still serving Clerical Officers on 16th May, 2003 and
- Clerical Assistants or Clerical Officers who filed equal pay claims on/before 30th April, 1998.
5.2 The first named respondent notes that while the settlement expanded the numbers covered beyond those who had made claims, there were categories of people who had not made claims and were Clerical Assistants and Clerical Officers in 1997 who were not covered by the settlement including:
- persons promoted before May, 2003
- persons not serving on 16th May, 2003 and
- persons who had broken service between 31st October, 1997 and 16th May, 2003
Some 6,800 were covered by the Agreement. The first named respondent states that if everyone who was a Clerical Assistant or Clerical Officer on 31st October, 1997 had been covered there would have been about 10,000 people and the payment per individual would have been a lot less than €5,000.
5.3 The first named respondent states that the settlement agreement provided that people promoted out of the Clerical Officer grade would not be included in the settlement and a cut off date for this had to be settled. According to the first named respondent the date on which the Annual Delegate Conference actually voted to accept the settlement proposal was a logical date to choose having the benefit of clarity and it ensured that members of the CPSU on that date were the only people who were able to cast a vote on the settlement proposals.
5.4 The first named respondent notes that a large number of complaints have been submitted by the PSEU on behalf of its members alleging discrimination on the grounds of gender, marital status, family status and age on behalf of female complainants and on the grounds of marital status, family status and age on behalf of male complainants. These complaints were lodged with the Equality Tribunal on varying dates from August, 2003 onwards. The first named respondent notes that the Equality Officer indicated at the preliminary hearing of this claim that she did not consider this to be a claim of discriminatory treatment or a claim for equal pay. In relation to a collective agreement the first named respondent notes that the PSEU was invited to set out why it considered the agreement to have been discriminatory on the grounds cited. Having regard to Section 86 of the Employment Equality Act, 1998 which governs the reference of collective agreements to the Equality Tribunal the first named respondent submits that the definition in Section 86(2)(b) of the Act does not encompass the complainants as the settlement agreement is not part of remuneration and the conditions of employment of the complainants are not affected by the agreement.
5.5 In relation to the date of the act of alleged discrimination the first named respondent notes that the settlement agreement has been the subject of a number of claims under the Protection of Employees (Fixed Term Work) Act, 2003. The Labour Court found that "...for the purpose of these claims the operative date of occurrence alleged to constitute an infringement of the Act was 20th November, 2003". The first named respondent submits that this must also be the date of the agreement for the purpose of these claims. It is the first named respondent's further submission that the approval of the proposed settlement by the annual delegate conference of the CPSU took place without any involvement of the Department of Finance. The first named respondent notes that the PSEU has cited the Department of Finance as a party to the agreement and it further notes that the agreement was signed on its behalf on 20th November, 2003. Therefore it is submitted that the act or collective agreement complained of took place on 20th November, 2003 as decided by the Labour Court. It is thus the first named respondent's contention that any complaints lodged with the Tribunal up to November, 2003 were complaints about an act that had not taken place and were made by people who had not been affected by the agreement. The first named respondent states that the Employment Equality Acts make no provisions for prospective acts, that is acts which have not yet taken place. According to the first named respondent other legal remedies were available to the PSEU but it chose not to pursue them. In these circumstances the first named respondent states that the investigation of these complaints should be terminated. According to the first named respondent the claims which were lodged with the Equality Tribunal between 20th November, 2004 and 20th May, 2004 were all lodged within the time limits prescribed by the Act and it is accepted that these are appropriate for investigation.
5.6 The first named respondent states that the complainants were excluded from the settlement because they were not members of the Clerical Officer grade on 16th May, 2003 the date the settlement was ratified by the annual delegate conference of the CPSU. According to the first named respondent this was because they had been promoted in the interim and the effect of a promotion from Clerical Officer to Executive Officer is significant in pay terms. It is the first named respondent's contention that this is an objective reason for the exclusion of people who were promoted to Executive Officer or higher from the settlement agreement. The first named respondent says that they were earning more that the comparator grade which was used in the CPSU claim so they would not have been able to make a successful equal pay claim similar to the CPSU claim. A person promoted would receive the benefit of the average increment plus the accrued increment and the normal incremental progression is quicker because the increments on the Executive Officer scale are higher than those on the Clerical Officer scale. The first named respondent, therefore, submits that this factor justifies the exclusion of the complainants from the settlement agreement.
5.7 According to the first named respondent the agreement was reached between the Minister for Finance and the CPSU to settle the equal pay cases and the CPSU represented its members in reaching the settlement. The first named respondent notes that this is normal in industrial relations. In respect of some of the complainants in these claims the first named respondent notes that the PSEU has stated that it has 'no membership record" for these complainants. It is the first named respondent's view that these complainants have stated on their referral forms that they are being represented by the PSEU but the PSEU are refusing to represent them because they are not members.
5.8 The first named respondent states that, while the PSEU members who were excluded from the settlement on the basis that they were no longer members of the grade consider that their exclusion is unfair, it is not based on any of the grounds of discrimination under the Employment Equality Acts. According to the first named respondent the Minister for Finance was faced with a real need to resolve a large number of equal pay claims which had been lodged by CPSU members in 1997 at the lowest possible cost to the exchequer and in a manner which was administratively efficient. The manner which was used to address this need was to negotiate a settlement with the CPSU. Alternatively the Minister was faced with having to calculate the differences between the actual pay of the claimants and their notional pay if they were paid the same rate as Paperkeepers from 1997 to the current date and revising their future pay. The first named respondent submits that the manner chosen was appropriate to addressing this need. For the CPSU to get agreement on the settlement it was necessary that people who were in the Union but would not otherwise benefit from the settlement should be included it. The first named respondent further submits that that meets the requirements set out in the Bilka Kaufhaus(4) case.
5.9 The first named respondent notes that the PSEU in its submission described the claimants as "staff who had been Clerical Officers/Clerical Assistants on or before 30 September, 1997 and who did not make out individual claims under the equality legislation". It claims that the inclusion of non-claimants in the settlement is an industrial relations agreement as far as the non-claimants are concerned. The first named respondent does not accept this interpretation and states that the settlement was just that a settlement of a number of equal pay cases. The expansion of the number of people covered to include others represented by the CPSU was part of the agreed settlement and could not be considered to be anything other than the settlement. The first named respondent denies that it was an industrial relations agreement. Rather the settlement was a legal agreement which was signed and witnessed on behalf of both parties to it. It is the first named respondent's submission that this is different to the normal industrial relations process in which agreements are signed off either through an exchange of correspondence or by way of Agreed Reports under the Conciliation and Arbitration Scheme. Furthermore the means of financing the payments made by individual Departments was by way of a supplementary estimate as many Departments would not have had sufficient funds to make the payments.
5.10 The first named respondent notes that the PSEU in its submission stated that the claimants "also suffered from the discrimination in pay terms which was being corrected for those who made out claims of discrimination". According to the first named respondent it is clearly stated in the settlement agreement "The Minister has offered the Settlement Sum in full and final settlement of the Claim by the Claimants without any admission of liability on the part of the Minister for Finance". The first named respondent states that there was never any acceptance that there was any pay discrimination and the PSEU cannot make such an allegation. In relation to the point made by the PSEU that the CPSU advised that male members should not make claims the first named respondent states that the CPSU case was founded on indirect discrimination between the male dominated Paperkeeper grade and the female dominated Clerical Assistant grade. In these circumstances it would not have been possible for a male to succeed in a claim of indirect discrimination using a male dominated grade as a comparator.
5.11 On the use of statistics by the PSEU the first named respondent says that the Central Statistics Office (CSO) has confirmed that the category called 'Civil Service Clerical Officers and Assistants' by the PSEU (but actually 'Civil Service Administrative Officers and Assistants in the CSO lists) comprises far more than clerical officers. According to the first named respondent the particular category used by the PSEU includes all those who described themselves as Administrative Officer, Clerical Officer, Tax Officer or similar and also those who described themselves as 'Civil Servant' without further specification. The first named respondent contends that it is clearly invalid to infer relatively fine distinctions for Clerical Officers from the characteristics of this group. It is, the first named respondent submits, established case law that an inference of indirect discrimination should only be drawn in cases where the complainant grade is predominately one gender and the comparator grade is predominately of the other gender and it is for the national court to decide whether significant statistics disclose an appreciable difference. The provision at issue in these claims is that which excludes people who were no longer serving in the grade of Clerical Officer in 2003. The first named respondent says that this provision had the effect of excluding 3,100 people who were in the Clerical grades in 1997 from the settlement. According to the first named respondent there were approximately 29,000 civil servants in October, 1997 so this provision had the effect of excluding approximately 19,000 people who were not serving in the Clerical grades in 1997. The first named respondent notes that the PSEU has lodged claims on behalf of 1,848 people who claim to have been serving Clerical staff in 1997 and remain civil servants in 2003 but not as Clerical Officers. According to the first named respondent this figure represents 60% of the total number of people who were serving in the Clerical grades in 1997 but were excluded from the settlement. The first named respondent says that it represents less than 10% of the total number of civil servants who were serving in 1997 and were excluded from the settlement. In these circumstances the first named respondent submits that the PSEU statistics about its complainants do not represent significant statistics in relation to the claim. The overall statistics in relation to the people who have not been included in the equal pay settlement have not been submitted in support of the claim. The first named respondent notes that the PSEU attempts to draw inferences about some characteristics of the comparator group from the CSO census statistics and considers that there are several flaws in their reasoning. The Census category used is 'Civil Service Clerical Officers & Assistants' amounting to 19,136 in the 2002 Census. The Civil Service Staff Levels statistics (compiled quarterly) show a total number of clerical officer posts of 10,386 for March, 2002 and 10,912 for 30th June, 2002. The first named respondent notes that the difference from the CSO category is not related to the distinction between people and whole-time equivalents, rather it comprises far more than clerical officers. The comparator group, for whom the PSEU draws inferences from the census data, amounts to 4,843 (about 25%) of the quoted CSO category. The first named respondent says that this sample of 25% is significantly biased as it consists of those who had been clerical officers for at lease 6 years (since 1997) which implies a significant bias in relation to inferences about marital and family status. The age statistics show just one member of the comparator group aged less than 25 years. The comparator group also excludes the 2,200 original all female claimants which indicates a further source of bias. The first named respondent contends that it is spurious in the extreme to base a claim for discrimination on the grounds of marital or family status on these inferences.
5.12 The first named respondent notes that the PSEU, in its submission, states that both parties to the agreement were aware that complaints were being made about the settlement before it was signed. It appears to suggest that the employer should be criticised for its failure to actually collect statistics in relation to those included in the settlement. The first named respondent rejects this contention. It notes that in a circular dated May, 2003 from the PSEU to branch secretaries it is stated "It would be impossible for a member of this Union who is not covered by the settlement to make out a case for equal pay with the grade of Paperkeeper because the grade no longer exists. Thus it would not be possible to show any discrimination now. In addition it is impossible for members of this Union of make a case in retrospect to 1997 because the provisions of the Employment Equality Act, 1998 require that a case is made within 6 months of the discrimination arising (or 12 months in exceptional circumstances)". The first named respondent says that it is clear from this that the PSEU did not consider that it could make a claim for discrimination in May, 2003 but a subsequent decision led to the current claims. According to the first named respondent it is satisfied that there was no discrimination in the legal settlement and in these circumstances it did not consider that any attempt to collect the statistics now sought could be justified given the considerable administrative burden and the invasion of privacy that would ensue. The first named respondent does not consider it appropriate to hold information on individuals' status on the nine grounds which are covered by the Employment Equality Acts. It is the first named respondent's submission that it is for the national court to decide the significance of statistics. In this regard the first named respondent notes that a 45% female grade was not accepted by the Equality Officer as considerably smaller in percentage terms than 55% males in Decision DEC-E2004-007 (5) .
5.13 The first named respondent states that the PSEU wilfully appears to ignore the fact that the CPSU claim was gender based and therefore could only include people of one gender. It appears to allege that the CPSU discriminated against men by not inviting them to make equal pay claims even though those claims could not have succeeded since there would not be a gender difference between the claimants and their comparators. Even if such a claim could be substantiated the act of excluding men from a gender based claim took place in 1997 and the time limit for such a claim is long since expired. The first named respondent notes that this exclusion was effected by the CPSU and not by the Department of Finance. In relation to the statistical information submitted by the PSEU the respondent submits that the gender breakdown as put forward by the PSEU is not relevant to this claim. According to the first named respondent the only statistics which may be relevant are those which relate to valid claims, that is claims which were made within six months of 20th November, 2003 (the date of the agreement). The first named respondent accepts that all persons who made claims in 1997 were female but it says that no inferences can be drawn from this fact as the claims were alleging gender discrimination against women. It is further accepted by the first named respondent that the majority of people who benefited from the extension of those covered by the settlement agreement were women. However it does not accept that any inference of gender discrimination can be drawn from this fact since the settlement of a gender based equal pay claim must, by definition, favour those of one gender. It is the first named respondent's submission that if these claims by the PSEU were settled the people who would benefit would be predominately male and this, the first named respondent argues, exposes a fundamental flaw in the logic of the PSEU pursuing these claims. Under the Employment Equality legislation equality claims may be settled by mediation without investigation and decision. Any such resolution may involve the making of payments to a group of people who are predominately on one side of the divide on any grounds of discrimination. The first named respondent submits that if this was found to be discriminatory then the process of mediation would not work. According to the first named respondent a further fundamental flaw in this claim by the PSEU and specific to the gender ground is that the PSEU claim forms allege discrimination on gender grounds against women. The first named respondent says that the PSEU submission seems to be claiming that there was discrimination against men, but this was not the basis of the claims.
5.14 The first named respondent notes that the PSEU has argued that the settlement agreement "potentially" discriminated on the grounds of marital status and says that it does not hold information on the marital status of the comparator group. In relation to the PSEU's attempt to draw inferences from CSO data on the marital status of civil service workers the respondent considers this an invalid use of the statistics. According to the first named respondent the only statistics that are relevant in relation to the comparator group are those which actually apply to that group. The first named respondent notes that the claim forms allege discrimination on grounds of marital status on behalf of all complainants. Thus the PSEU is claiming that single people, married people, widowed people, separated people and divorced people and even people whose marital status is unknown were discriminated against on the grounds of marital status. The first named respondent submits that this is a logical absurdity as it is not possible for an act to discriminate against people who belong to all the different categories of marital status. It is the first named respondent's contention that the statistics quoted by the PSEU are not sufficient to support a claim in indirect discrimination on the grounds of marital status.
5.15 In relation to the allegation of discrimination on the grounds of age the first named respondent notes that the PSEU does not have information on 54 of its complainants. As a result the first named respondent submits that these claims should be dismissed as far as the allegation of discrimination on the age grounds is concerned. The first named respondent accepts that the statistics show that there is a divergence between the comparators and the complainants as regards age profile but it does not accept that this is due to any discrimination nor can it lead to an inference of indirect discrimination.
5.16 In relation to the allegation of discrimination on the grounds of family status the PSEU provides details of the family status of 1743 complainants. However such information is not provided for 105 people. The first named respondent, therefore, submits that these claims should be dismissed as far as the allegation of discrimination on the grounds of family status is concerned. According to the first named respondent the PSEU, in its submission, purports to show that the complainants have a different composition in relation to family status to the general working population and to both Civil Service Executive Officers and Clerical Officers. This, the first named respondent says, is the most glaring example of the misuse of statistics by the PSEU.
5.17 The first named respondent draws the Equality Officer's attention to the fact that certain trends are likely in relation to the statistics quoted and these are not in any way related to discrimination. Since the people in the complainants group served in 1997 and were promoted to PSEU grades and seniority is a factor in many promotions, it is likely that the complainants had more seniority than those not promoted. The first named respondent says that older people are likely to have more seniority and the exclusion may have been connected to seniority rather than age. According to the first named respondent it is also a fact that older people are more likely to be married, divorced/separated or widowed than younger people. Furthermore married, divorced/separated and widowed people are more likely to have family status than younger single people. The first named respondent states that it is satisfied that the claims by the PSEU are without foundation.
Response to claim by Mr. Brian Ormond
5.18 The first named respondent states that the original CPSU case was an equal pay claim based on the differential between the predominately female Clerical Assistant grade and the predominately male Paperkeeper grade. A male could not participate in such a claim and the first named respondent notes that the CPSU accepted this fact. The complainant (Mr. Ormond) named a female comparator in his 1997 claim but the first named respondent says that the claim could not have succeeded because the Paperkeeper grade was predominately the same gender as Mr. Ormond. The first named respondent notes that the CPSU accepted that male claimants would not be successful in 1997 and gave instructions to that effect to their members. It presumes that the claim was lodged by the CPSU in error. As Mr. Ormond did not lodge a valid claim in 1997 the first named respondent says he was not entitled to be included in the settlement agreement.
5.19 The first named respondent states that Mr. Ormond's pay increased as a result of his promotion to Staff Officer on 1st February, 1999. His pay from that date onwards exceeded his notional pay if he had remained as a Clerical Officer. The first named respondent submits that the difference between his notional pay as a Clerical Officer and his actual pay as a Staff Officer up to the date of his submission amounts to in excess of €21,000. It is submitted that this fact alone would justify his exclusion from the settlement. The first named respondent notes that Mr. Ormond has enclosed a copy of a form which he signed on 7th October, 2003 in which he accepts the settlement terms agreed between the CPSU and the Department of Finance. According to the first named respondent his current claim does not accept the settlement and no reason is given for his change in position. The first named respondent states that it is satisfied that the claims by Mr. Ormond are without foundation.
6. SUMMARY OF THE SUBMISSION FROM THE CPSU - SECOND NAMED RESPONDENT
6.1 The second named respondent states that it does not see itself as the main respondent in these claims and is not, therefore, making a formal response to the PSEU/AHCPS case. Rather it has set out in its submission an outline of how the second named respondent handled these original claims and how its decisions were made.
6.2 In 1991 the second named respondent selected 26 claimants in the Clerical Assistant grade as test cases for a claim that the starting pay rate of Clerical Assistants as compared with the starting pay rate for the Paperkeeper grade was discriminatory on gender grounds. The purpose of these test claims was to seek, through the equality legislation, to alter the starting pay rate for the Clerical Assistant and Clerical Officer grades. However, the case could only be taken on behalf of Clerical Assistants as the maximum of the Clerical Officer grade exceeded that of the Paperkeeper grade though the Clerical Officer and Clerical Assistant grades had similar starting pay rates. After the claim was made discussions took place with the Department of Finance. By 1997 when a restructuring of the clerical grades (i.e. the amalgamation of the Clerical Assistant, Clerical Officer and Paperkeeper grades) was in the process of being finalised, the Equality Officer had not issued a recommendation in the case. For this reason the second named respondent decided that, although a test case had been submitted on behalf of 26 claimants, in the event that the claim succeeded there would be no possibility of follow on claims for other members similarly affected by the pay discrimination in 1991 because of the amalgamation of the grades. The Executive Committee indicated that it would be unhappy with a situation where the expansion of the claim beyond the 26 claimants would impact on the negotiations in relation to the restructuring.
6.3 The second named respondent says that, for this reason, it was only after the finalisation of the CPSU ballot on Grade Restructuring in August, 1997 that the CPSU was able to seek the expansion of the equal pay claim beyond the 26 original claimants. The second named respondent then invited all Clerical Assistants and all Clerical Officers up to the maximum of the Clerical Assistant maximum point i.e. approximately 11th point of the Clerical Officer scale, to submit claims with named Paperkeeper comparators. According to the second named respondent it did not invite males to make claims as they were not considered to have valid equal pay claims on the gender ground. Given the short time involved in inviting additional claims from members, not everybody invited to claim actually did so. The second named respondent says that some 2,200 people did make claims and these were submitted to the Equality Officer in the Labour Relations Commission.
6.4 The Equality Officer, in his recommendation, decided against the claimants on the grounds that the Paperkeeper grade was a promotional outlet for Service Officers. The second named respondent appealed this recommendation to the Labour Court and the Labour Court decision was that the difference in pay was justified because Clerical Assistants had promotion outlets whereas Paperkeepers did not. According to the second named respondent this was factually incorrect and it appealed the decision to the High Court on the basis that the Labour Court had erred in accepting as a basis for decision something that was factually incorrect. The High Court referred the matter back to the Labour Court and the Labour Court then ruled in favour of the claimants. The second named respondent says that it was on the initiative of the first named respondent that discussions took place in order to seek a resolution of the matter as they had appealed the decision again back to the High Court.
6.5 In taking the approach to settle the case the second named respondent sought to include in the settlement all those who, on the basis of the 1991 decision of 26 claimants, would have a valid case. Given that the intention of the second named respondent originally was to change the pay structure which would have equally benefited both females and males within the clerical structure in settling the case the second named respondent decided not to draw a distinction on gender grounds between males and females within the grade complement who would benefit. In 1991 the second named respondent had made a case on behalf of 26 claimants who were Clerical Assistants and whose maximum was similar to the Paperkeeper but who had a significantly different starting pay rate. No claims were made on behalf of Clerical Officers or indeed Staff Officers even though they would have started on lower pay rates than Paperkeepers. The second named respondent considered that this would have been a very complex case to prove and decided to confine the claim to members and a grade where the maximum salary point was similar to that for Paperkeepers.
6.6 When approaching the settlement formula which provided for a settlement for Clerical Assistants and Clerical Officers who had filed equal pay claims in October, 1997 the second named respondent sought to expand the case, with the exception of the gender issue mentioned above, to Clerical Officers intended to be included once the Equality Officer recommendation was made. The reason this last category was not included in 1997 was because it might have allowed the first named respondent to go back to the Equality Officer and argue that the entire claim was invalid because substantial number of claimants exceeded the Paperkeeper maximum. On the basis that post Grade Restructuring the Clerical Officers and Paperkeepers had an identical maximum point arising from Grade Restructuring the second named respondent considered that this later category had a valid equal pay claim.
6.7 The second named respondent states that at no time had it ever sought claims on behalf of Staff Officers on the basis that they had in the past suffered discrimination by having starting pay rates lower than the Paperkeeper grade. The second named respondent considered this to be an entirely different and more complex case. According to the second named respondent staff who actually filed equal pay claims had to agree to effectively share the settlement terms with others on the basis that the others that they were being asked to share with were people on whose behalf the second named respondent intended to make a claim i.e. people who for whatever reason did not claim in 1997 though invited to do so and people who the second named respondent intended to submit claims on behalf of once the Equality Officer recommendation issued i.e. Clerical Officers in 1997 irrespective of their point on the Clerical Officer scale.
6.8 The criteria that went before the CPSU's Annual Delegate Conference in May, 2003 to be included in the claim were:
- those who had submitted equal pay claims.
- those who were Clerical Assistants or Clerical Officers serving on 31st October, 1997 and were still serving on 16th May, 2003.
Not included were people who were promoted on the grounds that this was an entirely different claim which had never been made. It was uncertain whether such a claim could succeed and it would not have been reasonable to ask the 26 and 2,200 claimants to share the settlement terms with persons who it was not certain had valid claims. Staff recruited after October, 1997 were not included in the settlement as those members were part of a pay structure which included former Clerical Assistants, former Clerical Officers and former Paperkeepers. There was no discrimination within that grade structure and, therefore, the second named respondent did not see the people recruited post 1997 as having valid claims. The second named respondent states that it did include males even though they had not been invited to claim on the basis that it was considered that had the claim succeeded in its original intention the pay structure would have been altered and the males would have stood to benefit.
6.9 In summary the people the second named respondent included in the settlement agreement were as follows:
- 26 original claimants.
- the 1997 2,200 claimants.
- those invited to claim in 1997 but who, for whatever reasons, did not do so provided they were still Clerical Officers.
- those not invited to claim in 1997 because they were Clerical Officers and exceeded the maximum of the Paperkeeper scale but who now were not in that category because the Paperkeeper had also gone to the maximum of the Clerical Officer scale.
- males who met the above criteria.
The second named respondent never made a claim for people who were in the Staff Officer grade as it was considered that that was a different and more complex case.
7. SUMMARY OF THE UNIONS' (PSEU/AHCPS) RESPONSE
7.1 The Unions do not accept that these claims are not covered by a provision in a collective agreement as argued by the first named respondent. It is the Union's view that the payment of a sum of €5,000 is remuneration under the provisions of the Employment Equality legislation. Furthermore the Unions argue that the complainants are affected by a provision in the collective agreement in that the requirement that they be serving in the Clerical Officer grade on 16th May, 2003 is clearly a provision in the collective agreement which affected whether or not persons who had not made any equality claims were to benefit from the terms of the agreement. The Unions note that the complainants were all persons who were Clerical Assistants or Clerical Officers on 31st October, 1997 (the first qualifier in the collective agreement in their case). Without prejudice to what the Unions have to say about the effective date of the agreement for the purposes of these claims, the Unions say that the first named respondent's argument about the date being that of November, 2003 represents a recognition on its part that it concluded an agreement at that time in respect of staff who were not in grades represented by the second named respondent at the time. The Unions observe that the settlement, so far as it covered staff who actually lodged claims, also encompassed staff who were not in membership of the second named respondent in either May, 2003 or November, 2003 as they were PSEU members. The Unions state that they are satisfied that the agreement reached is an industrial relations agreement dealing with an industrial relations issue and it is irrelevant how the agreement was actually signed off/concluded. According to the Unions it is a collective agreement by any understood standards of the meaning of the phrase collective agreement. It is the Unions' submission that the first named respondent, in response to a question put by the Equality Officer at a preliminary hearing of these claims on 5th May 2005, confirmed that the agreement complained of was a collective agreement.
7.2 The Unions say that the emphasis placed by the first named respondent on its decision to set aside a sum of €34 million for these claims by the second named respondent to seek to minimise cost can hardly be described as an objective justification. The fact is that the first named respondent concluded a collective agreement which has had a discriminatory effect on the complainants and the cost considerations are largely irrelevant to the case at issue. As regards the time limit issue the Unions note that the first named respondent is attaching significance to the agreement as being 20th November, 2003 and, therefore, seeking to rule out a considerable number of the complainants on the basis that their claims did not conform to the time limits as specified in the legislation. The Unions point out that the Rights Commissioner Decision (6) on this point only issued on 5th April, 2005 and was only affirmed by the Labour Court (7) on 8th August, 2005. On this basis the Unions say that the complainants would have had no way of knowing this at the time their claims were submitted in circumstances where it was understood that the effective date of the agreement was 16th May, 2003. The Unions further note that the first named respondent is seeking to argue that all claims lodged prior to 20th November, 2003 are invalid as they were lodged before the date of the agreement. Some significance is accorded by the Unions to the fact that the vast bulk of claims were lodged by 16th November, 2003 within six months of 16th May, 2003 (the date of the CPSU Annual Delegate Conference). The Unions further note that the first named respondent in its comments on the case taken by Mr. Ormond pointed to the fact that Mr. Ormond signed a form accepting the settlement agreement between the CPSU and the first named respondent on 7th October, 2003. As a consequence the Unions question how Mr. Ormond could have signed a form accepting something that was not there. The Unions also note that the first named respondent had argued before the Rights Commissioner that the settlement date was effectively 16th May, 2003 and the Unions find it odd that the first named respondent could seek to represent that claims made in the context of its own view at the time of the effective date could now be regarded as invalid. The Unions contend that in the context of the issue at the core of these claims - a discriminatory collective agreement - they are not affected by a time limit.
7.3 The Unions say that the requirement that persons still be serving in the clerical grades on 16th May, 2003 had a discriminatory effect. According to the Unions 89% of the beneficiaries of the agreement are female. In the case of the PSEU complainants 37.34% of these are male whereas just 10.71% of the total beneficiaries are male. In the case of the beneficiaries who had not made out equality claims 84.4% of these are female and 15.6% are male as against 37.34% of the complainants who are male. The Unions say that effectively this means that for males, when the two groups are compared, they were significantly more than two times as likely to be excluded from the terms of the settlement. It is the Unions' contention that they have demonstrated that there is an appreciable difference between the genders of those who benefited on foot of the agreement and those who did not. On this basis the Unions submit that there is clearly a case for the first named respondent to answer in relation to the figures available to it at the time it made the agreement. The Unions note that the first named respondent is seeking to suggest that the persons excluded from the terms of the agreement reached with the CPSU should be examined and it seems to suggest that the comparator group should be all Civil Servants. The Unions do not accept this and say that they cannot see how the group excluded should be expanded to cover all Civil Servants as they clearly could not all fulfil the criteria that they were serving in the clerical grades in October, 1997. Based in the statistics the Unions are of the view that on the grounds of gender and age there is clearly a discriminatory effect. However in the case of marital and family status the Unions acknowledge that the absence of data makes it difficult to make a precise assessment of the position.
7.4 The Unions accept that had the terms of the collective agreement (reached between the first and second named respondents) been confined to those who had made equality claims then it might conceivably be possible to seek to 'ring-fence' that agreement from other staff who might have felt aggrieved by its terms. Rather the first named respondent agreed to extend the benefits to people who did not make claims on the basis of an arbitrarily fixed date and thus created the enormous feeling of resentment amongst staff who, having been denied the opportunity to serve claims, were further disadvantaged by reason of having secured a career advancement. The Unions submit that it could hardly be the case that the parties to an agreed settlement, irrespective of the case involved, could be free to include discriminatory provisions in such a settlement safe in the knowledge that the settlement could not be challenged because of the circumstances which gave rise to the settlement.
7.5 The Unions note that the first named respondent seeks to advance the view that persons were excluded from the agreement by reason of grade. According to the Unions this was not the case as persons who were promoted after 16th May, 2003 were paid the settlement sum even though they no longer served in the clerical grades. The Unions do not accept that the reasons advanced by the first named respondent for the exclusion of staff from the scope of the agreement by reason of the date they left the clerical grade are objective reasons. Having regard to Bilka-Kaufhaus(8) it is the Unions submission that the desire of the first named respondent to resolve particular claims at the lowest possible cost does not constitute an essential need. The Unions say that there is no objective standard by which it can be determined that any particular level of expenditure by the first named respondent is 'correct'. Furthermore they contend that a desire by the first named respondent to avoid the administrative inconvenience of many calculations affecting individual employees is not, of itself, essential. If it were accepted that this latter point was a real need the Unions contend that it is difficult to see how it can be objectively justified to include staff in the settlement who had never made equality claims in the first place.
7.6 In relation to the submission from the second named respondent the Unions note the following:
- the confirmation that the inclusion of men in the settlement was envisaged by the second named respondent as their original strategy had envisaged a change in the pay structure from which men would also have benefited;
- the second named respondent excluded men from their original claims as they did not think they could argue that they had valid claims. In the settlement some men did benefit but a large number of those serving in 1997 were excluded simply because they had changed grade;
- the document states that persons who were promoted were not included although it is not entirely clear why this was the case given that the settlement did, in fact, cover people who had been promoted and payments were made to persons who had been promoted;
- the second named respondent decided that it was not reasonable to ask people to share a settlement with certain people even though this is, in fact, the effect of what was done;
- it was decided to include persons in the settlement who could not have been invited to claim in 1997 because their pay exceeded that of the Paperkeeper grade.
8. CONCLUSIONS OF THE EQUALITY OFFICER
8.1 The issue for decision in these claims is whether or not the complainants have been indirectly discriminated against on the grounds of gender, marital status, family status and age as a result of the settlement agreement resulting from previous claims brought by the CPSU on behalf of female complainants. In making my decision in these claims I have taken into account all the submissions, both written and oral, from the parties.
8.2 The first issue to address in these claims is whether or not the settlement agreement reached between the first and second named respondents is a collective agreement within the meaning of the 1998 Act. Section 86(2)(b) of the Act provides that
"a person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it)".
I note that the first named respondent has argued that this definition does not encompass the complainants as the settlement agreement is not part of remuneration and/or the conditions of employment of the complainants were not affected by the agreement. The agreement was reached as a result of an equal pay claim. A settlement amount was agreed in preference to the calculation by the first named respondent of the differences between the actual pay of the claimants and their notional pay if they were paid the same rate as Paperkeepers from 1997 to the current date and revising their pay for the future. In these circumstances I am satisfied that the settlement agreement reached between the first and second named respondents related to remuneration and is, therefore, a collective agreement within the meaning of the Employment Equality Act, 1998.
8.3 The next issue to address is that of time limits. I dealt with this issue in detail in my Decision in the case of Ms. Brady & 12 Others and Ms. McGivern v TSB ESOP Trustees Limited, Irish Life & Permanent plc, MANDATE, ATGWU and SIPTU (9) (paragraphs 5.6 to 5.14 refer) and are set out in Appendix A to this Decision for convenience. As a consequence of my ruling in that case I am satisfied that this collective agreement relates to remuneration and, therefore, is not subject to the time limits as are set out in Section 77(5) and 77(6) of the 1998 Act.
8.4 The parties to these claims disputed the effective date of the settlement agreement. I note that this matter has been considered by both a Rights Commissioner (10) and the Labour Court (11). I concur with the Rights Commissioner and the Labour Court that the effective date of the settlement agreement was 20th November, 2003. While the basis of an agreement had been reached between the parties prior to that date it could have been rejected by either or both parties prior to being signed off on by both parties and in these circumstances it is entirely reasonable to find that the effective date of the settlement agreement was 20th November, 2003. Where the effective date for the agreement was 20th November, 2003 then only claims lodged with the Equality Tribunal on or after that date are valid claims under the 1998 Act. All claims lodged before 20th November, 2003 are not deemed to be valid claims under the Act as they are claims which were made to the Equality Tribunal before the collective agreement came into existence. Where no collective agreement existed it could not be challenged. Details of complainants are set out in the following appendices:
- Appendix B contains a list of names of complainants (Represented by the PSEU) who referred valid claims on or after 20th November, 2003
- Appendix C contains a list of names of complainants (who are unrepresented) and who referred claims on or after 20th November, 2003
- Appendix D contains a list of individuals (Represented by the PSEU and the AHCPS) who referred claims before 20th November, 2003
- Appendix E contains a list of individuals (who are unrepresented) who referred claims before 20th November, 2003.
8.5 The issue for decision is whether or not the collective agreement is discriminatory. Effectively this means did the agreement impact more favourably on one group as opposed to another on the grounds of gender, marital status, family status and age as is alleged in these claims. According to the first named respondent at the hearing of these claims a total of 6,870 individuals were covered by the settlement agreement. While exact figures were not available on the gender breakdown of these 6,870 individuals it was agreed by all parties that the majority were female. For this agreement to be discriminatory on the gender ground it would have to adversely impact on significantly more males than females. Taking account of the valid claims before me I note that 50 males and 120 females did not benefit from the terms of the agreement i.e. 29% males and 71% females. It is clear from these statistics that significantly more females than males were adversely affected by this agreement. On this basis the complainants cannot argue that this collective agreement was indirectly discriminatory on the grounds of gender.
8.6 It has been alleged that the collective agreement was discriminatory in terms of marital status, family status and age. In relation to both marital status and family status I note that the first named respondent was unable to provide such details for all persons who benefited from the settlement agreement. I do not accept that the first named respondent should have been required to establish such information as was argued by the Unions. I note that the Unions used statistics obtained from the Central Statistics Office. In a case such as this I can only find discrimination/discriminatory treatment on the basis of statistics provided for the complainants and for the named comparators - not for a group of individuals who have responded to a CSO questionnaire and described themselves as central and local government workers. In these circumstances and in the absence of statistics I cannot make a finding that the collective agreement was discriminatory on the grounds of marital and family status as alleged.
8.7 In relation to the allegation that the collective agreement was discriminatory on the grounds of age I note that the Unions were unable to provide details of the ages of all the complainants and the first named respondent was unable to provide details of the ages of all those who benefited from the settlement. In these circumstances I an unable to conclude that the collective agreement was discriminatory on the grounds of age as alleged.
8.8 I note that there was a lack of clarity in relation to statistics in these claims. For instance the respondents have stated that 2,200 claimants referred claims under the Anti-Discrimination (Pay) Act, 1974 in relation to the original case and were, therefore, entitled to the settlement. The total number of referral forms received by the Equality Officer at the time numbered 2,115. The respondents were unable to account for the discrepancy. In relation to others (totalling 4,644) who had not referred claims but who did benefit from the settlement agreement the respondents were unable to provide a gender breakdown. It came to my attention that a female claimant in the original case (who had benefited from the settlement agreement) was also named as a complainant in this case. The first named respondent also identified another similar female. Given the number of individuals involved in both claims it is difficult to say with certainty that there are not others in these current claims who were not claimants in the original case. All of this uncertainty in relation to the statistics makes it impossible to make a conclusive finding in these claims on the basis of the statistics.
8.9 As the Unions in these claims have stated many of the complainants, who were in the Clerical Assistant/Clerical Officer grade in 1997, feel aggrieved that they have not been covered by the settlement agreement because they had failed to complete a referral form (if they are female), they were not allowed to complete a referral form (if they are male) and they had been promoted to a higher grade e.g. Staff Officer, Executive Officer, etc. before 16th May, 2003. It is, therefore, useful to set out the sequence of events in relation to the original complaints. A claim on behalf of 26 Clerical Assistants for equal pay with Paperkeepers was referred to the Equality Service of the LRC in 1991. In 1997 the CPSU invited all other female members of the Clerical Assistant/Clerical Officer grades to submit claims. As the claims were based on gender male members of these grades could not make claims. The Equality Officer Recommendation found against the complainants (12) and this was appealed to the Labour Court who also found against the complainants (13) . The Labour Court Determination was appealed to the High Court on a point of law and the High Court referred the claims back to the Labour Court. The Labour Court then found in favour of the complainants (14). Before this Determination was appealed to the High Court by the employer and as a result of the Labour Court Determination the CPSU was then in a position to lodge further claims with the Equality Tribunal namely in excess of 700 claims from males claiming equal pay with 26 named females and in excess of 4,000 claims from females claiming equal pay with former Paperkeepers who could go to the maximum of the scale. The settlement agreement covered the original 26 claimants, the 2,200 female claimants who the respondents agreed submitted referral forms in 1997 and all males and females who referred claims in 2003. Before the settlement agreement was signed the CPSU withdrew the claims referred to the Equality Tribunal in 2003.
8.10 For clarity I wish to confirm that under the provisions of the Employment Equality Act, 1998 if I had found that the complainants had been indirectly discriminated against in relation to the settlement agreement it was open to me to declare the offending provisions of the collective agreement null and void and order the parties (i.e. the respondents) to amend it. I disagree with the second named respondent when it says that it does not see itself as the main respondent in these claims. Both respondents are equally liable in these claims and they would both be charged with amending this agreement had it been found to have been indirectly discriminatory.
Claim by Mr. Ormond
8.11 Mr. Ormond states that he was entitled to the settlement agreement on the basis that he referred a claim at the time of the original complaint. He was not a beneficiary of the settlement agreement and he alleges that the reason was gender related.
8.12 From my examination of the original referrals submitted to the Equality Officer who dealt with the original complaints I note that the referral which was received from Mr. Ormond was invalid as no comparator was named. Mr. Ormond did attach a claim form to his submission which had a comparator named. At the hearing of this claim Mr. Ormond confirmed that he had sent this form to the CPSU at the time. There was no evidence that the CPSU had forwarded this referral form to the Equality Officer investigating the original complaints.
8.13 Had a valid referral been received from Mr. Ormond in the original case the Equality Officer could not have found in favour of Mr. Ormond as the original case was a claim for equal pay by predominately female Clerical Assistants with Paperkeepers which was a predominately male grade.
9.1 On the basis of the foregoing conclusions I find that the settlement agreement concluded by the Department of Finance and the CPSU did not indirectly discriminate against the complainants (those represented by the PSEU, the AHCPS and those unrepresented) on the grounds of gender, marital status, family status and age.
06th March, 2006
Extract from Equality Officer
5.6 Section 77(5) of the Employment Equality Act, 1998 provides as follows:
"Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
Section 77(6) of the 1998 Act states:
"If on an application made by the complainant the Director, ...is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5) -
(a) the Director, ...may direct that, in relation to that case, subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and
(b) where such a direction is given, this Part shall have effect accordingly".
In its written submission the second named respondent contends that these claims are outside the six month time limit imposed by Section 77(5) of the Employment Equality Act, 1998 and consequently I have no jurisdiction to proceed with an investigation of these claims. The complainants referred their claims to the Director on 30th April, 2003. It is the second named respondent's contention that the relevant occurrence was the setting up of the Trust in April, 2001 because as and from that date the entitlement to the shares was defined and part-time employees were aware of their entitlement. Furthermore the entitlement could not be altered as the first named respondents were bound by law to administer the Trust in accordance with its terms.
5.7 At the full hearing of these claims I informed the parties to these claims that the Equality Tribunal had sought and obtained senior counsel's opinion in October, 2000 on the issue of time limits properly applicable under the 1998 Act in respect of claims relating to pay. In accordance with the relevant High Court caselaw (15) I gave the parties to these claims a copy of the relevant questions put to counsel on behalf of the Director of Equality Investigations at that time and a copy of counsel's opinion, copy attached at Appendix B to this Decision. I indicated to the parties that I would be taking this opinion into account in deciding the time limit issue in these claims and I invited their submissions on this opinion which I indicated I would take into account. Having considered the opinion the complainants indicated their acceptance of it. The first named respondents did not submit any arguments on the issue of time limits and the second, third, fourth and fifth named respondents indicated that they held a different view to the opinion received by the Equality Tribunal. Set out in Appendix C are the arguments received from the second named respondent. Despite being asked to submit their arguments in writing the legal representatives for the third, fourth and fifth named respondent (hereinafter referred to as the Unions) failed to do so. However at the hearing of these claims the legal representative for the Unions stated that he supported the arguments of the second named respondent and said that had the Oireachtas intended there to be no time limits in relation to equal remuneration claims it could easily have clarified this in the legislation. Furthermore he noted that the imposition of a 6 months time limit is not unique to the Employment Equality Act, 1998 but is also a feature of other legislation e.g. Payment of Wages Act, 1991. The legal representative for the Unions also stated that no time limit or a 6 year time limit in relation to equal remuneration claims is to stretch the interpretation of the 1998 Act.
5.8 In deciding the preliminary issue on time limits in these claims I have carefully considered both the opinion originally provided to the Director and the submissions made by all the parties in relation to it. As they are attached in Appendices B and C, the written arguments and reasoning are not repeated here. It has to be said that the 1998 Act is not perfectly clear or well drafted on this issue and none of the interpretations considered is perfectly consistent with all of its provisions. In trying to decide this issue I have focused on trying to identify what was the intention of the legislature when the 1998 Act was enacted.
5.9 In relation to time limits the first point worth making is that the Anti-Discrimination (Pay) Act, 1974 (which was repealed by the Employment Equality Act, 1998) did not contain any time limit and it was never the practice to apply one. Hence if the intention was to introduce a six month time limit for equal pay claims in the Employment Equality Act, 1998 one would expect that it would have been done clearly and unambiguously.
5.10 In its submission (see Appendix C) I do not accept the second named respondent assertion that excluding equal pay claims from the power to extend time (Section 77(6)) is a clear indication that equal pay by implication falls within the time limit provision in Section 77(5). It would seem anomalous that equal pay claims would be treated more restrictively than other causes of action under the 1998 Act by imposing a six months time limit and removing the Director's power to extend time. The suggestion that the power to extend is unnecessary as time would begin to run afresh every time pay in breach of the equal remuneration clause was received cannot be regarded as removing every instance where an extension of time may be appropriate for example equal pay claims are often raised in situations where the person has since left the employment.
5.11 In terms of the arguments made by the second named respondent in respect to Statute of Limitation, 1957 I am of the view that the Statute could be applied to proceedings other than court proceedings in appropriate circumstances given that Section 2 of that Act defines an action to which the time limits apply as "includes any proceeding (other than a criminal proceeding) in a Court established by law". The use of the word "includes" suggest that civil proceedings other than those in courts may also be covered. Furthermore the argument that the Statute is not itself applicable to non-Court proceedings does not establish that it is incorrect to apply the six-year time limit. If it is accepted that Section 77(5) of the 1998 Act does not apply then the most reasonable course in the interests of legal certainty would be to analogously apply the six-year time limit where an equal remuneration clause is breached.
5.12 Finally the statutory definition of "discrimination" in Section 6 of the 1998 Act cannot be reconciled with the plain terms of Section 77(1) of that Act which expressly distinguishes between discrimination, failure to provide equal remuneration, failure to provide a benefit under an equality term and victimisation. It is clear from the terms of Section 77(1) that "discrimination" is in practice intended and used within that section in a different and more restrictive meaning to the terms of Section 6 of the 1998 Act.
5.13 While I have considered carefully the arguments made by the respondents in these claims I note that the opinion obtained by the Director in October, 2000 has examined Sections 77(5) and 77(6) of the Act, not in isolation or in the context of one particular claim but, in the context of the manner in which the entire Act has been structured in relation to the prohibition against discrimination and the entitlement to equal remuneration, the different approach of the Act to equal remuneration claims and the differences in the express consequences of situations of indirect discrimination in relation to remuneration and other aspects of employment. Given the distinction between discrimination and entitlement to equal remuneration in relation to the prohibitions set out in Sections 8, 10, 11, 12, 13 and the further distinctions made between discrimination and failing to comply with an equality clause or equal remuneration in terms of Section 62(1), 62(5), 67(1), 74(2) and 76(1) I am satisfied that it is reasonable to conclude that the legislature intended this distinction in relation to the referral of claims and that the six months time limit does not apply to equal pay claims.
5.14 It should be noted that, in terms of redress under Section 82(1) of the 1998 Act, the Director can make an order of compensation in the form of arrears of remuneration "in respect of so much of the period of employment as begins not more than 3 years before the date of referral under Section 77(1) which has led to the decision". I disagree with the second named respondent's contention that an employer would not be free from the risk of an equal pay claim no matter how long the period of time which has elapsed since the alleged discrimination. If a claim was made for equal pay in relation to a disparity which had occurred more than three years previous and which was no longer continuing the Director would not be able to award any compensation prior to the date of the disparity for example if a claim is made for equal pay in relation to a disparity which occurred some four or more years previous then the Director could not award redress under the Act.
1. This Summary is provided for convenience only and is not part of the Decision for legal purposes
2. Labour Court Determination DEP014 dated 17th December, 2001
3. Rights Commissioner Decision - FT18670/04/JH
4. ECJ Bilka-Kaufhaus GmbH v Weber von Hartz  C-170/84 IRLR 317; ECR 1607
5. Equality Officer Decision - Ms. Brady & 12 Others & Ms. McGivern v TSB ESOP Trustees Limited, Irish Life & Permanent plc, MANDATE, ATGWU and SIPTU
6. Rights Commissioner Decision - FT18670/04/JH
7. Labour Court Determination - FTC/05/5 Determination No 056
8. ECJ Bilka-Kaufhaus GmbH v Weber von Hartz  C-170/84 IRLR 317; ECR 1607
9. Equality Officer Decision - DEC-E2004-007 dated 11th February, 2004
10. Rights Commissioner Decision - FT18670/04/JH
11. Labour Court Determination - FTC/05/5 Determination No 056
12. Equality Officer Recommendation EP07/1998
13. Labour Court Determination DEP992
14. Labour Court Determination DEP014