EQUALITY OFFICER'S DECISION NO: DEC-E/2007/007
28 NAMED EMPLOYEES
(REPRESENTED BY CPSU)
THE COURTS SERVICE
(REPRESENTED BY MCCANN FITZGERALD - SOLICITORS)
File No: EE/2003/278-302
Date of issue 7 February, 2007
This dispute involves a claim by 28 Named Employees that they perform like work in terms of section 7 of the Employment Equality Act, 1998 with named female comparators and they are therefore entitled to the same rate of remuneration as that paid to those comparators in accordance with section 19 of the Act.
The complainants (see Appendix A) are employed as Court Messengers by the respondent at various locations (court buildings) throughout the country. The named comparators are employed as Staff Officers at similar locations and in other government department/offices throughout the country. The complainants' Union referred claims on their behalf to the Equality Tribunal on 8 August, 2003 under the Employment Equality Act, 1998. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. The respondent rejects the assertion that the complainants perform "like work" with the comparators and notwithstanding this submits that there are grounds other than gender for the difference in the rates of remuneration paid to them respectively. The Equality Officer decided to investigate that issue as a preliminary matter in accordance with section 79(3) of the Employment Equality Act, 1998. Submissions were received from both parties and Hearings took place on 10 March, 2005, 27 June, 2005 and 15 November, 2005. A number of points required further clarification and this gave rise to correspondence between the Tribunal and the parties.
3. SUMMARY OF RESPONDENT'S CASE
3.1 The respondent rejects the assertion that there is indirect discrimination on grounds of gender in respect of the rates of remuneration paid to the complainant and comparator groups. Whilst accepting the gender composition of the complainant group the respondent submits in the first instance, that the correct pool of comparators for the purposes of the claim is not Staff Officers in the Courts Service, rather it is Staff Officers in the Civil Service generally - which has a gender breakdown of 81% Female and 19% Male. It makes such a submission because Staff Officers in the Court Service are assigned to it by the Public Appointments Commission and are civil servants of the State. Those staff could equally be assigned to any other Department, Agency or organisation in the wider Civil Service. In addition they are eligible to compete for promotional outlets in those bodies in due course in the same manner as Staff Officers in any government department and can transfer to or from them, if necessary. Finally, the terms and conditions of employment for all Staff Officers are set centrally by the Department of Finance - not by the Courts Service. The respondent relies on the decision of Budd J in Brides v Minister for Agriculture (1) in this regard. The respondent further submits that the gender composition of the comparator group as set out above does not fulfil the statistical requirement to be predominately of one gender in order to ground a case of indirect discrimination.
3.2 The respondent states that public service remuneration, including the pay rates of Staff Officers and Court Messengers, have been determined for many years under a number of Collective Agreements, the most recent of which is the Programme for Prosperity and Fairness (PPF). The PPF also provided for an alternative approach to review public service rates of remuneration through benchmarking public service jobs and rates of pay through a quantative and qualitative measurement/evaluation with jobs in the private sector. It submits that this benchmarking process, which was adopted by the Public Sector Unions, including the complainants' Union, forms part of the State's social and economic policy as the PPF, which is the instrument that gives effect to the process, touches on topics beyond public sector pay to include housing, taxation, healthcare etc. It submits that the European Court of Justice has adopted a more lenient test in respect of objective justification for social and economic policy than that set out in Bilka Kaufhaus v Karin Weber Von Hertz (2) and relies on the ECJ decisions of Rinner Kuhn (3), Nolte (4) Seymour Smith (5) and Nikoloudi (6) in that regard. It argues that these tests are more appropriate than the Bilka test in the circumstances of this claim. Notwithstanding this submission the respondent argues that a difference in bargaining procedures and the fact that rates of remuneration have been arrived at on foot of a process governed by a collective bargaining process are factors which can be taken into account by a national court in assessing whether or not differences in remuneration were due to objective factors unrelated to sex.(7)
3.3 The respondent states that the post of Court Messenger first received legal recognition in 1926. County Sheriffs were entitled to appoint their own Court Messenger and the manner in which their remuneration and other terms were determined was "ad hoc" and informal. It adds that since the creation of the Court Service a more structured approach has been adopted as regards the recruitment of Court Messengers and that a structured payscale for the position had existed for a number of years prior to that. This was not the case with Staff Officers who have been covered by a structured process as regards pay, terms and conditions of employment and appointment for many years. The respondent submits that there are historical reasons for the difference in the rates of remuneration paid to both groups. It contends that this difference has its origins at a time when both grades were almost exclusively male (the marriage bar impeded women from progressing to the promoted grade of Staff Officer until the early 1970s) and the jobs were not considered to be equal in value as the post of Court Messenger (which was a departmental grade) was traditionally linked for pay purposes to the general service grade of Service Officer - a link which remains today following the benchmarking process. It adds that the difference in remuneration has remained over time, notwithstanding the fact that the Staff Officer grade now comprises a majority of women. It submits that such reasons are unrelated to gender and constitute justification for the difference in pay between them. In this regard it seeks to rely on the Decision of the High Court in Flynn & Others v Primark (8).
3.4 The respondent further submits that any difference in remuneration can be attributed in part to the fact that the complainants' post is an entry/recruitment post whereas the comparators' is a promotional one. It adds that as such, the post of Staff Officer can only be attained by someone who can demonstrate a record of relevant work achievement and a certain level of skill and experience. It argues that these requirements are entirely unrelated to a person's gender and constitute objective justification under the Act.
3.5 In conclusion the respondent submits that the ECJ caselaw on objective justification recognises the complexities and interrelatedness of many factors and it does not therefore adopt a checklist approach rather it examines the totality of the situation. It points to the ECJ decisions in Nikoloudi (9) and Nimz v Frie und Hansestadt Hamburg (10) in support of this argument. It submits that the totality of the factors outlined above constitute objective justification under the Act.
4 SUMMARY OF COMPLAINANT'S CASE
4.1 The complainants (see Appendix A) are employed by the respondent as Court Messengers at various Circuit Court locations throughout the country. They claim they perform like work in terms of section 7(c) of the Employment Equality Act, 1998 with a number of named female comparators, all of whom are Staff Officers in the civil service (a number of which are assigned to the Courts Service) and they are therefore entitled to the same rate of remuneration as those comparators in accordance with section 19 of the Act. The complainants' Union submits, in the first instance, that the appropriate pool of comparators for the purposes of the claim is that comprising Staff Officers in the Courts Service. It contends that the gender breakdown of this group is 92% Female - 8% Male. The gender breakdown of the complainant's group is 93% Male - 7% Female. It argues therefore that the gender breakdown of the respective groups (one is predominately male and the other predominately female) and the differences in the rates of remuneration paid to them, assuming that they both perform work of equal value in accordance with the Act, gives rise to a prima facie case of indirect discrimination on grounds of gender (11) . The Union argues that the onus therefore shifts to the respondent to demonstrate that differential in the rates of remuneration paid to the complainant and comparator groups is objectively justified in accordance with section 19(4) of the Act. It contends that this proposition stands even if the comparator pool is taken to be Staff Officers in the Civil Service generally as the gender breakdown of that pool is 81% Female and 19% Male.
4.2 The Union submits that the test set out at section 19(4) of the Acts merely encapsulates the caselaw of the European Court of Justice on the issue of objective justification - in particular Bilka Kaufhaus v Karin Weber Von Hertz (12) and Hill and Stapleton v Revenue Commissioners and the Department of Finance (13) and that these set out the correct tests to be applied in this case. It argues that the Bilka case requires the respondent to show that the practice adopted by it of paying the comparator group a higher rate of remuneration than the complainants constitute "a real need on the part of the respondent to achieve a stated objective, are appropriate with a view to achieving the objective in question and are necessary to that end". It adds that Hill and Stapleton states that it is not sufficient for the respondent to make generalised statements as justification for the pay differentials.
4.3 The Union submits that the respondent cannot use the benchmarking exercise and the
collective bargaining process under the PPF as objective justification. In this regard it relies on the ECJ decision in Enderby v Frenchay Health Authority (14) and the judgement of Laffoy J in Flynn & Others v Primark (15) where she said "although a difference in bargaining procedures is a factor to be taken into account, it cannot per se be determinative". The Union also submits the respondent is incorrect in its interpretation that the High Court/Labour Court accepted as objective justification that there were historical reasons for the differences in the rates of remuneration paid to the parties in the above case. It submits the Labour Court ultimately found that the differences which were achieved through industrial relations processes, were objectively justifiable on economic grounds and that the benefit which ensued to the respondent continued to exist at the time of the equal pay claim. It argues therefore that it is irrelevant to the instant case. Notwithstanding this argument the Union submits that the Labour Court, in Various Government Departments v CPSU (16) rejected historical pay scales as objective justification for different rates of remuneration.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is (i) whether or not the complainants have established a prima facie case of indirect discrimination on grounds of gender in respect of their claim for equal pay and (ii) if so, has the respondent discharged the burden that the difference in the rates of remuneration paid to the parties can be justified by reference to objective factors unrelated to gender. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me by the parties. I would add that I have premised my Decision on the assumption that the parties perform "like work" in terms of section 7 of the Act although I stress that no finding of fact in that regard should be taken or implied by that approach and such a finding is a matter for a separate investigative process under the Act.
5.2 The first issue I must consider is whether or not the complainant's have established a prima facie case of indirect discrimination on grounds of gender. The principle that men and women receive the same rate of remuneration for work of equal value is enshrined in Article 141(formerly Article 119) of the EC Treaty and the EU Directive on Equal Pay (17). It is also well established that a national court is obliged to interpret domestic legislation in light of the EU Directives and jurisprudence on those matters (18). The ECJ in Enderby v Frenchay Health Authority (19) (paragraph 19) held that where there is a difference in pay between two jobs of equal value "one of which is carried out exclusively by women and the other predominately by men.... it is for the employer to show that the difference is based on objectively justified factors unrelated to discrimination on grounds of sex." In the instant case there is dispute between the parties as to what might comprise the correct pool of comparators Staff Officers in the Courts Service or Staff Officers in the wider Civil Service. Having examined that statistics submitted on the gender composition of both these groups it is clear that there is a tiny difference in the respective gender breakdowns. In the interests of clarity I wish to state that I consider the Staff Officers in the wider Civil Service to be the most appropriate pool of comparators for the reasons set out by the respondent - in that the pay and conditions of Staff Officers generally are attributable to a single source (20). The gender composition of the comparator group is therefore 81% Female and 19% Male. The gender composition of the complainant group is 93% Male and 7% Female. I find that the gender composition of these groups comply with the test set out by the ECJ in Enderby and the complainants have established a prima facie case of indirect discrimination on grounds of gender. The burden therefore shifts to the respondent in those circumstances.
5.3 Consequently, the respondent must show that the difference in the rates of remuneration paid to the parties can be justified by reference to objective factors unrelated to gender. The Union submits that the ECJ has set out a test in Bilka Kaufhaus v Karin Weber Von Hertz (21) which the respondent must satisfy to demonstrate objective justification. It further submits that this test comprises five separate elements as follows: (i) there is a stated objective of the employer; (ii) that there is a means chosen by the employer for that objective; (iii) that this means correspond to a real need on that part of the undertaking; (iv) that the means chosen are appropriate and necessary to achieving that object and (v) that they are necessary to that end. It contends that each of these elements must be satisfied independently and that mere assertions unsupported by objective criteria are insufficient for this purpose (Hill and Stapleton v Revenue Commissioners and the Department of Finance (22) .). The respondent submits in the first instance that the Union is incorrect in its interpretation of the Bilka test and argues that the test comprises three elements - (i) that any difference in treatment must correspond to a real need on the part of the undertaking, (ii) be appropriate to achieving that need and (iii) are necessary to that end. It further submits that the Bilka test is not applicable in all circumstances and quotes a range of ECJ caselaw in support of this assertion. In addition the respondent submits that other judgements of the ECJ state that the totality of factors should be considered in determining the question of objective justification and it has cited a number of ECJ judgements in support of this assertion.
5.4 The first issue which I must examine is what the appropriate test for objective justification is in this case. I have examined the ECJ judgements cited by both parties in support of their respective arguments. The Bilka case concerned access to an occupational pension scheme which was operated by the employer in question and which required employees to have a minimum period of full-time employment with it in order to qualify for a pension. In my view it therefore had a restricted application in that only employees of Bilka were affected. The cases cited by the respondent Rinner Kuhn (23), Nolte (24) Seymour Smith (25) and Nikoloudi (26) concern either national legislation or collective agreements. These issues clearly have a broader application in that they can cover the entire workforce or significant segments of it. The determination of both the complainant and comparator groups' rates of remuneration have largely been regulated by a series of National Agreements negotiated and agreed between the Government and Trades Unions under a partnership process over last two decades. These Agreements have not been restricted to pay determination in the public and private sectors, rather they have covered issues of housing, health, taxation, job creation, employment rights, social inclusion etc. One of the objectives of the process was to create a stable environment for investment, job creation and growth. This entailed sound and orderly management of public finances, which included public sector pay rates. In pursuit of this objective the benchmarking process emerged from the PPF as a mechanism of evaluating public sector pay rates with comparable jobs in the private sector and required continued civil service productivity gains in response to any pay increase. I am satisfied that this objective reflects legitimate economic and social policy aims of the Government - objectives which transfers in full to the respondent as an employer of civil servants. I am therefore satisfied that the correct test for objective justification in this case is that set out in the ECJ judgements cited by the respondent - that if the respondent can show that the measures chosen reflect a necessary aim of its social policy and are suitable and necessary for achieving that aim, it has objectively justified the approach adopted.
5.5 I shall now examine the arguments advanced by the respondent in support of its claim of objective justification. In the first instance it submits that the totality of factors must be assessed in making a determination on objective justification. I have examined the ECJ judgements cited by the respondent in this regard and I am satisfied that such an approach is correct. The first argument advanced by the respondent is that there are historical reasons for the difference in the rates of remuneration and that these have the origins at a time when both grades were almost exclusively male. Neither party has been able to furnish real evidence on this point although I note it is accepted between them that there has always been a difference in pay and that this difference predates the Union's representation of the complainant's to a time when they were represented by another Trade Union and their rates of pay were linked to other grades represented by it. The Union argues that historical pay rates were rejected as objective justification by the Labour Court Various Government Departments v CPSU (27). I have examined those Decisions and disagree with the proposition made by the Union on this point. The second element argument offered by the respondent is that the grade of Staff Officer is a promotional one which can only be attained by someone who can demonstrate a record of relevant work achievement and a certain level of skill and experience, whereas the grade of Court Messenger is a recruitment grade. The grading structure in the Civil Service is hierarchical and a number of avenues of promotion are maintained to afford staff an opportunity for career progression and to provide a mechanism for staff motivation. Clearly a mechanism for career advancement is essential in any employment to retain high quality staff and maintain staff morale. The very essence of promotion is that with increased responsibility and status within the organisation there is an allied increase in remuneration. I am satisfied that both the aforementioned measures constitute objective reasons for the difference in the rates of remuneration which are unconnected to gender and are necessary and suitable in the circumstances.
5.6 The final argument advanced by the respondent is that over the years the rates of remuneration have been determined by a process of collective bargaining, negotiated centrally between the Government and, inter alia, the Public Sector Trades Unions, the most recent of which is the Programme for Prosperity and Fairness. This Agreement provided for the Benchmarking Process - a process of evaluating jobs in the public sector against comparable posts in the private sector. I note the comment of the Labour Court in Department of Finance v 7Named Complainants that the Report of the Benchmarking Body could not be regarded as a collective agreement. However, the recommendations of this Report were applied to civil service payscales on the basis of terms included in the PFF. I note the definition of collective agreement included in the Equality Act, 2004 as follows - " collective agreement means an agreement between an employer and a body or bodies representative of the employee to which the agreement relates". I find this definition instructive in reaching the conclusion that the PPF is a collective agreement, as were its predecessors and that any issues covering the rates of remuneration paid to the complainants and comparators on foot of those Agreements flow from a process of collective bargaining. I would add that the fact that bodies other than employer or employee bodies are party to the Agreement does not, in my view, alter that outcome. The Union submits that this does not constitute objective justification and relies on the judgement of Laffoy J in Flynn & Others v Primark (28) in support of this contention. I have examined the judgement in question and I do not concur with the interpretation placed on it by the Union. In my view Laffoy J stated, whilst having regard to ECJ jurisprudence that "although a difference in bargaining procedures is a factor to be taken into account (in determining objective justification), it cannot per se be determinative". This clearly permits the collective bargaining process to be included as a factor in deciding the issue of objective justification and I accept it as such.
5.7 In light of my comments in the preceding paragraphs I am satisfied that the respondent has fulfilled the obligation placed on it to show that the difference in the respective rates of remuneration paid to the complainant and comparator groups is justified by objective factors unrelated to gender, as required by section 19(4) of the Employment Equality Act, 1998.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that the difference in the respective rates of remuneration paid to the complainant and comparator groups is justified by objective factors unrelated to gender, as required by section 19(4) of the Employment Equality Act, 1998 and the complainants' claim therefore fails.
7 February, 2007
LIST OF COMPLAINANTS COVERED BY CLAIM
Maurice Ahearne Clonmel Circuit Court
Desmond Amond Carlow Circuit Court
John Bredin Carrick-on-Shannon Circuit Court
Eamon Cleary Waterford Circuit Court
Paul Comisky Cavan Circuit Court
Seamus Dennison Sligo Circuit Court
Ulick Devane Tralee Circuit Court
Patrick Dunne Portlaoise Circuit Court
Willie Evans Castlebar Circuit Court
James Fitzgerald Dundalk Circuit Court
Peter Fitzgerald Limerick Circuit Court
Gerard Foley Galway Circuit Court
Michael Gillespie Tullamore Circuit Court
Denis Halpin Clonmel Circuit Court
Michel Hanrahan Kilkenny Circuit Court
Michael Holman Wexford Circuit Court
John Hurson Longford Circuit Court
Declan Kelly Mullingar Circuit Court
Liam Kitt Ennis Circuit Court
Aidan McCarron Letterkenny Circuit Court
Patrick McCarron Monaghan Circuit Court
Donal McDermott Sligo Circuit Court
John Madden Limerick Circuit Court
Michael Melia Kilkenny Circuit Court
Donie Morgan Tralee Circuit Court
Martin Mulhern Letterkenny Circuit Court
Hugh Noone Naas Circuit Court
Tomas Tancred Wicklow Circuit Court
(1)  4 IR 250
(2) Case C-170/84
(3) Case C-171/88
(4) Case C-317/93
(5) Case C-167/97
(6) Case C-196/02
(7) Flynn & Others v Primark  ELR 89 and Royal Copenhagen ECJ Case C-400/93
(8)  ELR 89
(9) Case C-196/02
(10) Case C-184/99
(11) Enderby v Frenchay Health Authority et al. [ECJ C-127/92]
(12) Case C-170/84
(13) Case C-243/95
(14) Case C-127/92
(15)  ELR 89
(16) DEP 992 and DEP 014
(17) EU Directive 75/17/EEC of 10 February, 1975
(18) Von Colson and Kamann v Land Nordrhein-Westfalen  ECR 1891
(19) Case C-127/92
(20) ECJ Case C-320/00 Lawrence & Others v Regent Office Care Ltd & Others
(21) Case C-170/84
(22) Case C-243/95
(23) Case C-171/88
(24) Case C-317/93
(25) Case C-167/97
(26) Case C-196/02
(27) DEP 992 and DEP 014
(28)  ELR 89