SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
DEPARTMENT OF FINANCE AND
CIVIL AND PUBLIC SERVICES' UNION
- AND -
PUBLIC SERVICE EXECUTIVE UNION/ASSOCIATION OF HIGHER CIVIL AND PUBLIC SERVANTS
MS. MARY VESEY
Chairman: Mr McGee
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Appeal under Section 83 of the Employment Equality Act, 1998. Dec-E2006-008.
2. This appeal has its origin in a claim made in 1991 by 26 female Clerical Assistants for equality of pay with paperkeepers, a grade which was predominantly male. This case took almost 14 years to complete. In its original decision this Court found that there was objective justification for the difference in pay. This decision was overturned on appeal and the case remitted to this Court. This Court found in favour of the then Claimants and the matter was again appealed to the High Court. During the proceedings the Grades of Clerical Assistant, Paperkeeper and Clerical Officer were all subsumed into one single grade of Clerical Officer. At that time the Union representing the original Claimants invited a further 2200 then Clerical Assistants to also lodge claims. Some 869 male Clerical Assistants and some 1311 female Clerical Officers who already earned in excess of the Paperkeeper scale could not at that time make claims.
In or about early 2003 the Department of Finance (“the Department” -the first-named Respondent) approached the Civil and Public Services Union (CPSU) – the second named Respondent) who were acting for the then Claimants and the two parties had discussions in an effort to settle the case on an industrial relations basis. It was agreed that a sum of €34,000,000 would be paid out in order to settle the matter. This posed a considerable dilemma for the CPSU in that they then had to decide who would benefit from this settlement. It was immediately agreed that there were two defined categories of people who should be included:
(a) Female Clerical Assistants or Clerical Officers serving on the 31st October, 1997, and who were still serving as Clerical Officers on the 16th May, 2003. (the date on which a special conference to ratify the Agreement was to be called).
(b) Female Clerical Officers or Assistants who filed equal pay claims on or before the 30th April, 1998.
- Subsequently for industrial relations reasons some further categories were added by the CPSU. This was not challenged by the Department on the basis that the larger number would still share the same total payment, i.e. €34 million.
- Subsequently for industrial relations reasons some further categories were added by the CPSU. This was not challenged by the Department on the basis that the larger number would still share the same total payment, i.e. €34 million.
- (d) Those not invited to claim in 1997 because their remuneration exceeded that of paperkeepers but who because of rises in Paperkeepers’ remuneration were not now in that category.
(e) Males who met any of the above criteria.
In all cases, potential beneficiaries had still to be serving as CO’s on 16th May, 2006.
On the 16th of May, 2003, at its Annual Delegate conference, the CPSU approved the settlement and the groups who would benefit from the settlement on the above basis. There was some further negotiation between the Department and the CPSU on the basis that in order to give each person in the designated categories a sum of €5,000 each, the figure of €34,000,000 would have to be altered slightly. Finally, on the 20th November, 2003, a legal Agreement was signed incorporating the terms already agreed and slightly increasing the settlement figure.
By far the largest group excluded from the settlement was composed of those persons who had been serving as Clerical Officers in October, 1997, and who had been promoted before 16th May, 2003. Between May and October, 2003, some 1849 named individuals commenced proceedings under the Act claiming that they had been discriminated against on the grounds of gender, marital status, family status and age within the meaning of Section 6(1), 6(2)(a), 6(2)(b), 6(2)(c) and 6(2)(f) of the Act and in contravention of Section 8 of the Act.
It was the Claimants’ case that they had not benefited from the terms of this settlement and that this was discriminatory towards them on the stated grounds.
In her decision (DEC-E2006-008) dated 6th March, 2006, the Equality Officer concluded in summary that: -
"The settlement agreement was an agreement relating to remuneration and was therefore a collective Agreement within the meaning of the Act, and not subject to the time limits set out in Section (77)(5) and Section77(6) of the Act."
- She concluded that the effective date of the Agreement under which the claimants were discriminated against was 20th November, 2003 and, therefore, only claims lodged on or after that date were valid claims under the Act. Claims made before the 20th November 2003 were deemed invalid as they were made before the collective Agreement came into existence.
On the basis of the statistics as applied to those claims which the Equality Officer found to be valid, the Equality Officer concluded the Agreement was not indirectly discriminatory on the grounds of gender, and the statistics were incomplete and inadequate for the purpose of concluding whether the Agreement was discriminatory on the grounds of family status, marital status and age. Therefore no findings of discrimination on any of the grounds could be made.
Accordingly, the Equality Officer decided that the Agreement concluded by the Respondents did not indirectly discriminate against the Complainants on any of the stated grounds.
On the 10th April, 2006, the PSEU and the AHCPS appealed the Decision to the Labour Court. A Labour Court hearing was held on 26th September, 2006.
Claimants’ Arguments: (PSEU, AHCPS & Mary Vesey)
The Claimants contended that the date on which the Equality Officer relied (20th November, 2003) was first called into question during the case of Department of Foreign Affairs v Brown & Vickers (FTD056) under another Act [Protection of Workers (Fixed-Term Work) Act 2003], before a Rights Commissioner, and subsequently before the Labour Court, on appeal. The Claimants contended that the Department of Finance actually argued before the Rights Commissioner that the effective date was 16th May, 2003. The Claimants also contended that the issue of the effective date was not at the core of the Rights Commissioner’s Recommendation under the 2003 Act.In the appeal from the Rights Commissioner’s decision the question as to what was the effective date was not canvassed by either side and therefore the Labour Court’s use of this date as the effective date of the Agreement was “obiter dictum” i.e. it was mentioned in passing as if accepted by both sides. It was not at issue in the case.The Claimants contended that at the time the claims were made they could not have known that the effective date, which at the time was accepted by all parties as being 16th May, 2003, would be regarded as having been changed following a Rights Commissioner’s hearing and then a Labour Court Appeal (both in 2005), to 20th November, 2003. It would be illogical and unjust to have expected the Claimants to make further claims after the 20th November, 2003, when it was accepted by all parties at the time that the date of the alleged act of discrimination was the 16th May, 2003.Section 77(5) of the Act provides a time limit of 6 months from the date of the occurrence of the act of discrimination or victimisation. This act, it is claimed, took place when the decision to accept the terms of the Agreement was taken by the CPSU conference on 16th May, 2003.
1. The Claimants are staff who were Clerical Officers (COs) or Clerical Assistants (CAs) on or before the 30th September, 1997, who did not make out individual equality claims at that time and who were promoted (or left the service, in the case of Ms Vesey) before the 16th May, 2003, i.e. were not still serving COs on that date. The Claimants state that the settlement was discriminatory in that it did not reward Claimants who had been promoted or those who did not claim because, being male, they were not invited to do so by the CPSU.
Time Limit – Validity of Claims
A considerable amount of argument was expended by both sides on the question as to when the settlement took effect. It was contended that the Equality Officer erred in finding that all but 171 of over 2000 Claimants had made invalid claims because they had made claims before the effective date (20th November, 2003) of the Agreement. The Claimants further contended that at the time the majority of the claims were made, it was accepted by the first named Respondent (Department of Finance) that the effective date of the alleged act of discrimination was 16th May, 2003, and most of the claims were made within 6 months of that date. Therefore, the Claimants’ substantive case was not heard owing to what amounted to a technicality.
The Claimants further contended that even if the Court were to find that the effective date of the Agreement was the 20th of November, 2003, the time limits in the Act were inserted to prevent the processing of “stale claims”. There is no mention in Section 77(5) of the Act of claims that are submitted “too early” and therefore the claims submitted after the alleged act of discrimination but before the terms of settlement were reduced to writing were properly before the Court.
In addition, in the case of a Mr Denis Ormond, at the hearing before the Equality Officer, the Department of Finance argued that he signed a form accepting the Department of Finance/CPSU settlement on 7th October, 2003. He could not have accepted something which, the Department is now arguing, had then not yet come into being.
A small proportion of the claims were not submitted within 6 months either of the 16th May, 2003, or of 20th November, 2003. Payment of the €5000 amount was not effected until December 2003 and the Claimants contended that claims within 6 months of that date should be regarded as being “on time”. In any event, there were reasonable grounds for extending the time limit, given that the Rights Commissioner’s Determination on the effective date did not issue until 5th April 2005.
Finally, on this issue, the Claimants contended that the Agreement which was concluded, whenever it was concluded, was a collective Agreement, proceedings in respect of which are not subject to time limits. In that case, therefore, the workers whose claims were excluded by virtue of being lodged between May and November, 2003, could re-lodge their claims with the Equality Tribunal by November, 2006, to accord with the provisions of Section 82 (1)(a) of the Act.
In view of the above, the Claimants submitted that, in justice, the merits of the Complainants’ case should be now heard and determined upon.
Presentation of Statistics
The Claimants contended that the Equality Officer erred in finding that the statistics presented in relation to the gender of the sample group were not properly representative. They contended that she should have chosen as the proper representative sample the 1849 who had actually made claims rather than 171 whom she had found to be Claimants.
The Claimants contended that the decision taken by the CPSU to include in the settlement Agreement staff who did not make claims made it legitimate for staff who did not claim and were not included in the settlement to claim that the settlement discriminated against them.
On the Claimants’ figures, 89.3%of the beneficiaries of the Agreement were women, while only 10.7% were men. In the case of beneficiaries who had not claimed, 84.4% are women and 15.6% are men, as opposed to 37.3% of the Claimants who are men while 62.3% were women.
The Claimants stated that men were therefore more than twice as likely as women to be excluded from the terms of the settlement.
The Claimants did not accept the proposition put forward by the Department of Finance that the comparator group should beallCivil Servants. The correct comparator group to take was those serving as Clerical Officers in 1997.
The Claimants finally contended that it was wrong of the Equality Officer to reach the conclusion that, because the Department of Finance had been unable to provide statistics on the gender of those who did not submit claims, it was therefore impossible to make a conclusive finding on the basis of statistics.Failure to Provide InformationThe Claimants contended that the Department failed to provide statistics, even though such statistics were within its possession. This failure, in the Union’s view was a breach of Section 81 of the Act from which the Equality Officer should have drawn an inference of discrimination. The Department had the data or should have taken steps to receive and produce the data in defending a discrimination case. Data was available from the CSO.
Discrimination on the grounds of Marital Status, Family Status and Age.The Claimants did not expand on their submissions regarding discrimination on the grounds of marital status, family status or age.
Ms Mary Vesey
Mary Vesey was a CA/CO in September 1997, but resigned on 13th July, 2002. It was her view that she was discriminated against because she did not get a proportion of the €5000 paid to officers who were still serving as COs on 16th May, 2003. In support of her claim, she pointed out that retired officers had got the benefit of the Benchmarking increase as did she although she had already resigned.First Respondent’s (Department of Finance) Arguments:
While the initial proceedings were still in being, discussions were held between the Department and the CPSU on the possibility of Agreement on an industrial relations basis. The Department agreed to settle on the basis that it would pay €34,000,000 in settlement of the claim with the CPSU to decide how the money was to be divided amongst its members. It was accepted that those with valid claims were the 26 people who had originally made claims in 1991 and the 2200 who had made claims in 1997. The CPSU wished to include those who were still serving as COs in 2003, a further 4600 people approximately. The Department did not object to this once the overall sum of €34 million did not increase. The CPSU Annual Conference approved this arrangement on 16th May, 2003. Following this a legal agreement was drawn up which provided for the payment of €5,000 to all eligible Claimants. This Legal Agreement was signed by the parties on 20th November, 2003.
The date of 16th May, 2003, was a logical cut-off date, being the date when acceptance of the proposed arrangement was decided upon by the members of the CPSU.
A large number of claims were lodged by the PSEU with the Equality Tribunal from August 2003 onwards.
It was indicated by the Equality Officer at the preliminary hearing that she did not consider the claims of the PSEU to be a claim for discriminatory treatment or a claim for equal pay.
The Department argued that the settlement Agreement does not conform to the definition of a collective Agreement under Section 86(2)(b) of the Act as it did not form part of remuneration, nor were the conditions of employment of the Claimants affected by the Agreement.
The impugned provision of the settlement Agreement provides that those benefiting would include CAs or COs serving on 31st October, 1997, and who were still serving COs on 16th May, 2003.
The sum originally agreed was €34 million, but this increased somewhat later on in the negotiation process, when it was agreed that each beneficiary would receive €5,000.
If all the CAs & COs as of 31/10/97 were included, including those promoted before 16/5/03, a further 3100 people would have been included and the benefit would have been considerably less than €5000 per person.
The majority of the PSEU claims were made in August and September, 2003. It is alleged by the PSEU that the date of the alleged act of discrimination was 16th May, 2003, and that the 6 months’ time limit expired on 16th November, 2003. Yet the PSEU also argued that the monies were not paid out until December, 2003 and that any claim within 6 months of that date should also qualify as being within time. It was submitted by the Department that the PSEU was itself uncertain as to the date of the alleged discriminatory act.
The settlement Agreement was the subject of a number of claims under the Protection of Employees (Fixed Term Work) Act 2003, which came into operation on 14th July, 2003. The Rights Commissioner decided that the effective date of the Agreement was 20th November, 2003. This was appealed to the Labour Court which, in 2005, issued a Decision (FTD056) in which it stated: -
- “for the purpose of these claims the operative date of the occurrence alleged to constitute an infringement of the Act was 20th November, 2003”
It was therefore submitted that the act or collective Agreement complained of took place on 20th November, 2003, as previously decided by the Labour Court. Therefore, any claims made before this date were complaints by people not affected by the Agreement, about an act that had not yet taken place. There is no provision in the Act for prospective acts of discrimination. The claims are therefore invalid. The only claims valid for investigation are those lodged between 20th November, 2003, and 20th May, 2004.
The Department stated that even if the arrangement/ Agreement was deemed to be indirectly discriminatory then the arrangements/ Agreement could be objectively justified using the test set out in Bilka Kaufhaus GmBH V Weber Von Hartz ECJ170/84 as follows:
"The means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end."
The Department contended that Complainants who were promoted between October, 1997, and 16th May, 2003, the date of the ratification of the Agreement by the CPSU Conference, were excluded from the settlement by virtue of not having been members of the CO grade on the above date of ratification. The vast majority of the PSEU Claimants are on the Executive Officer’s (EO) grade with some members of the Higher Executive Officer (HEO) or Administrative Officer (AO) grade, which are higher paid than EO. The comparators are COs. The rates of pay of the higher grades (indeed, one claimant is a member of AHCPS, whose member grades are still higher paid again) are considerably higher than those of COs. As they were earning more, excluding them from the settlement was justified objectively. Neither could they have made a successful equal pay claim to the CPSU claim, as they were, in fact, earning more than the chosen comparators.
This justification is reinforced both by the rules governing starting pay on promotion, (which generally provide that an officer enters the higher grade at a point equal to or higher than their existing pay plus an extra increment) and by the very size of the annual increments which are, by the nature of the scale, considerably higher than those on the CO scale.
In the settlement, the beneficiaries were members of the CO grade in 2003 who had been in the clerical grades in 1997. The Department did not object to the expansion of the numbers beyond those who made claims, as this did not, in general, increase the cost of the settlement. It is not, however, logical to argue that the CPSU should have wished to include those who were not its members in the expanded numbers, thus reducing the amount of the settlement to each beneficiary.
While the PSEU/AHCPS members feel their exclusion is unfair, it does not however transgress any of the discriminatory grounds under the Act.
It was also argued by the Department that there was a real need to resolve a large number of claims at the lowest cost to the Exchequer and in an administratively effective manner. The means chosen were to negotiate a simple settlement with the CPSU. As the settlement had to be accepted by the CPSU Annual Conference, it was necessary to include CPSU members who would not otherwise have benefited from the settlement.
Thus the arrangements made to settle the claim were, even if the Court found that the Agreement was discriminatory, objectively justifiable.
The Department contended that it is clear that the settlement was not a collective Agreement but a legal agreement reached and subsequently reduced to writing by the parties and which was done in settlement of equal pay cases. It could not be considered to be a collective Agreement as that term is generally understood in industrial relations negotiations. The resolution on which the Oireachteas voted €36 million in a supplementary estimate was for the settlement of an equal pay claim and the settlement of these proceedings could not be deemed to be a collective Agreement.
The Department further contended that while the PSEU points out that the CPSU advised that males should not make claims in 1997, this did not preclude the PSEU or individual members making claims. The CPSU case was founded on a claim of indirect discrimination between male-dominated Paperkeeper grades and the female dominated CO/CA grades. A male could not succeed in a claim of indirect discrimination using a male-dominated grade as a comparator.
Presentation of Statistics:
The Department contended that, in relation to the use of statistics by the Claimants, a number of points arose: -
-Some of the general points on statistics raised by the Claimants are taken from CSO figures. These figures tend to group staff categories differently from the Civil Service itself, and the occupational categories arise from the Census and are based on self-description. It is invalid and certainly inaccurate to infer fine distinction for “Clerical Officers” using the CSO categories.
-It is established case law that an inference of indirect discrimination can only be drawn where the complainant grade is predominantly of one gender and the comparator grade is predominately of the other gender.
-The provision at issue excludes 3100 people who were in the Clerical grades in 1997 and who were no longer serving in those grades in 2003. As there were 29,000 Civil Servants in October, 1997, the provision also excludes 19,000 people who were not serving in the Clerical grades in 1997. The PSEU/AHCPS have lodged claims on behalf of 1849 people who claim to have been serving as CA/COs in 1997 and to have remained Civil Servants in 2003 but not as COs. The figure represents 60% of the total number of people serving in the CA/CO grades in 1997 but excluded from the 2003 settlement. It represents less than 10% of the total number of Civil Servants serving in 1997 and excluded from the settlement. It is therefore submitted by the Respondent that the PSEU statistics about its Complainants do not represent significant statistics in relation to the claim.
Similarly, the Claimants attempt to draw inferences from CSO census statistics about the comparator group. These statistics are similarly unreliable, for the same reasons as those given for the complainant group.The Respondents also argue that it is clear from a circular to members issued by the PSEU in May 2003 that it (the PSEU) did not believe at that time that it was possible to make a claim of discrimination, as the Paperkeeper grade no longer existed and any question of retrospective claims to 1997 would be invalid because they would be out of time. Thus it has been claimed that the settlement Agreement is discriminatory, which the Respondent denies. The Respondent does not hold, nor has it been asked to hold, information on individuals’ status or personal information on the nine grounds covered by the Act.
The Respondents stated that while it is for the National Court to decide the significance of statistics it should be noted that 45% of females was not held in each case as a “considerably smaller proportion” in percentage terms by an Equality Officer in case DEC-E2004-007.
The Respondent contended that the CPSU claim was gender-based and could only include one gender. The Claimants appear to allege that the CPSU discriminated against men in not inviting men to make equal pay claims even though, by definition, such claims could not have succeeded. In any event, the Act of excluding men took place in 1997 and the time limit for this has long expired. The first-named Respondent was not involved in this exclusion.
The Respondent contented that the only relevant statistics are those on claims admitted by the Equality Officer as valid i.e. those lodged within 6 months after 20th November 2003. The statistics quoted by the Claimants mainly concerned claims lodged prior to the 20th November, 2003, and should therefore be discounted.
The Respondent stated that most of the beneficiaries of the Agreement were women – no inference of gender discrimination can be drawn from this since the settlement of a gender-based equal pay claim must, de facto, favour one gender.
Finally the Respondents pointed out that to allow this claim would result in an absurdity in that the Claimants began by claiming discrimination against women, but are now claiming discrimination against men.Claims on the grounds of Marital Status, Family Status and Age
The Department did not put forward its arguments against the cases on the grounds of marital status, family status or age, as the Claimants did not pursue these.Ms Mary Vesey
In the case of Ms Mary Vesey, she lodged a claim of gender discrimination on 11th March 2004 claiming that, as she resigned on 13th July 2002, she was entitled to a proportion of the monies paid to the beneficiaries. Ms Vesey was not serving on the 16th May 2003, in any grade.Her claim was also time-barred because she resigned more than 12 months before making a claim. She also failed to name a comparator, inserting the word “Paperkeeper” instead. She appealed within the time limits but failed to specify the grounds of her appeal merely repeating her original assertions and asking questions regarding benchmarking and the position regarding retired officers.
Benchmarking applied from 1st December, 2001, so Ms Vesey was due, and was paid, arrears to the date of her resignation.
CAs/COs who made equal pay claims in or before April, 1998, benefited from the settlement irrespective of whether they continued to serve in the CO grade or not. One or more of these officers retired prior to 16th May, 2003. Ms Vesey does not qualify under this heading.
There was never an acceptance of discrimination and, indeed, the settlement Agreement is “without any admission of liability on the part of the Minister of Finance”.The Department, once again, does not accept that the Agreement is one which qualifies as a collective Agreement within the definition of Section 86(2)(b) of the Act. Ms Vesey had resigned in 2002 and could not, therefore, be affected (either by her remuneration or her conditions of employment) by the Agreement.
For all the above reasons, the Department submits that Ms Vesey was not discriminated against in relation to the Agreement made with the CPSU to resolve their equal pay claims.Observations of the Second Respondent – CPSU:
The CPSU outlined its approach to the settlement Agreement. It did not make any submissions in relation to the Claimants’ case. It stated as follows: -
The original claim (for 26 test cases in the CA grade) was that their starting pay as compared with that of Paperkeepers was discriminatory on gender grounds, in 1991.
By 1997, the matter was being discussed in the context of grade restructuring when the CA/CO and Paperkeeper grades were being merged into one CO grade.
Following the finalisation of grade restructuring, the CPSU invited all CA & CO staff to the maximum point of the CA scale (approximately point 11 of the CO scale), who were female, to make claims of gender-based discrimination against Paperkeepers. Males would not have a valid claim and were therefore not invited to apply.
Some 2200 people made claims, within a short time frame, due to the urgency of the Union’s position in grade restructuring negotiations. It was these reasons that framed the basis for the Union’s subsequent decision to expand the settlement of the case beyond the 26 original Claimants and the 2200 later Claimants.
The Equality Officer found against the Claimants and the Union appealed to the Labour Court, who upheld the Equality Officer’s Decision. This Determination was appealed by the Union to the High Court which referred the case back to the Labour Court which then ruled in the Union’s favour. The Department of Finance then referred the matter back to the High Court but took the initiative at the same time to enter into discussions on a possible resolution of the matter with the CPSU.
While the negotiations were ongoing, the CPSU sought to expand the cadre of Claimants to include COs serving in 1997 (i.e. those whose maximum salary point was similar at that time to that of the Paperkeeper grade). Post-grade restructuring, COs and Paperkeepers were the one grade and had identical maximum points on the scale. The Union never claimed on behalf of Staff Officers, whose salary point was lower than the Paperkeepers, but whose maxima were higher.
So the initial staff members put forward by the CPSU in May, 2003, for inclusion in the settlement was: -
(a) those who had submitted equal pay claims; and
(b) those who were CAs or COs serving on 31/10/97 and still serving as COs on 16/05/03.
The CPSU decided not to include those people in the CO grade who had in the interim been promoted to a higher grade. They had already moved on to a higher pay scale and were no longer members of the CPSU. Similarly, the CPSU did not include any person recruited after 31st October, 1997, as they were part of the new, non-discriminatory and restructured grade.
It was decided that time-qualified males would also be included on the grounds that had the original claim succeeded the pay structure would have been changed and males would have benefited. They were also included for the practical reason that the Union had to gain majority acceptance of this position at its annual conference for the deal to go through
In summary, those included in the final settlement were:
-26 original Claimants;
-2200 Claimants from 1997; and
-those invited to claim in 1997 but who did not do so, provided they were still COs (as well as the males described above, who were not invited).
The Department did not object to this as long as there was no increase in the total amount allocated to settle the claim (€34,000,000).
The CPSU also told the Court that the basis of the Agreement changed in substance through discussion between 16th May, 2003, (date of acceptance by the CPSO Conference) and 20th November, 2003, (date of signing the legal agreement).
Originally, a sum of €34,000,000 was to be divided amongst the Claimants. It eventually agreed that each claimant would receive €5,000, making the total settlement nearing €36,000,000.
1.The Act of Discrimination:
The first question for consideration by the Court is exactly when the act of discrimination complained of took place. Was it on the 16th of May, 2003, when the CPSU conference decided on who should benefit from the settlement or was it on the 20th November, 2003, when the terms of payment were finally concluded and signed? In the view of this Court the act complained of occurred on the 16th of May, 2003. The history of this case consists of the confluence of a series of events and actions, some of which may have been discriminatory in their own right. The defining act, however, was the decision taken on 16th May, 2003, to determine the composition of the group who would benefit from the settlement and thus determining who would be excluded. The Claimants did not benefit from any subsequent decisions in the course of these proceedings. At that point in time it became clear to the Claimants that they were not included in the terms of settlement and this is evidenced by the fact that within the next six months some 1800 of them made claims alleging discrimination to the Equality. Officer.
A further question which arises is exactly what constitutes the act complained of. It appears to this Court that the act complained of consisted of the decision of the CPSU not to include those COs who had been COs in 1997 but had since been promoted in the settlement. The Department of Finance had argued that it was entirely the Union’s decision whom to include. The Court does not accept this submission. It is clear that the decision was taken with the concurrence of the Department of Finance and that the Department was party to that decision.
As no complaint was made under Sections 86 & 87 of the Act that a collective agreement or a provision thereof is discriminatory (as defined in Section 9 of the Act) was before the Court, it is not necessary for the Court to decide whether the Agreement complained of is a collective agreement within the meaning of the Act.
3.The Substantive Issue
The substantive complaint made by the Complainants is that they were indirectly discriminated against on the gender, marital status and age grounds. The Complainants did not pursue their complaints in so far as they are grounded on marital status, family status and age. The substance of their claim of discrimination on the gender ground is that the impugned arrangement was indirectly discriminatory against men. Thus, the claim can only proceed in so far as it related to the male Claimants.
Indirect discrimination is defined by Section 19(4) of the Act as follows: -
- (4) Where a term of a contract or a criterion applied to employees (including A and B)-
(b) is such that the remuneration of those employees who fulfil the term or criterion is different from that of those who do not,
(c) is such that the proportion of employees who are disadvantaged by the term or criterion is substantially higher in the case of those of the same sex as A than in the case of those of the same sex as B, and
(d) cannot be justified by objective factors unrelated to A’s sex, then, for the purpose of subsection (1), A and B shall each be treated as fulfilling or, as the case may be, as not fulfilling the term or criterion, whichever results in the higher remuneration.
A more concise definition is that contained at Article 2 (2) of the Directive 97/80/EC on the Burden of Proof in Cases of Discrimination based on Sex, as follows: -
- "For purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex."
In this case the Complainants contend that the criterion to be in service as a clerical officer on the 16th May, 2003, disadvantaged a substantially higher proportion of men than women.
The methodology for applying the test inherent in the definition of indirect discrimination was considered by the ECJ in R v Secretary of State for Employment ex parte Seymour – Smith and Perez  IRLR 253. Here the Court held as follows: -
- "58 As regards the establishment of indirect discrimination, the first question is whether a measure such as the rule at issue has a more unfavourable impact in women than on men.
- 59 Next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirements of two years’ employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of person affected, since that depends on the number of working people in the Member State as a whole as well as the percentage of men and women employed in that State.
- 60 As the Court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years’ employment required by the disputed rule. That situation would be evidence of apparent sex discrimination unless the disputed rule were justified by objective factors unrelated to any discrimination based on sex.
- 61 That could also be the case if the statistical evidence revealed a lesser but persistent and relatively constant disparity over a long period between men and women who satisfy the requirement of two years’ employment. It would, however, be for the national court to determine the conclusions to be drawn for such statistics.
- 62 It is also for the national court to assess whether the statistics concerning the situation of the workforce are valid and can be taken into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena, and whether, in general, they appear to be significant (see Case C-127/92 Enderby 1993 ECR I-5535, paragraph 17). It is, in particular, for the national court to establish whether, given the answer to the fourth question, the 1985 statistics concerning the respective percentages of men and women fulfilling the requirement of two years’ employment under the disputed rule are relevant and sufficient for the purposes of resolving the case before it."
It is clear from this passage that the existence of indirect discrimination should normally be established by statistics which establish that the impugned criterion prejudices significantly more members of one sex than the other.
The basic statistics advanced by the Claimants are as follows: - 89.3%of the beneficiaries of the Agreement were women, while 10.7% were men. In the case of beneficiaries who had not previously lodged claims, 84.4% are women and 15.6% are men. The Claimants in turn are comprised of 62.3% women and 37.7% men. In all cases a substantial majority of the Claimants and beneficiaries are female. However, what is required by the established test is that a significantly higherproportionof men than women are disadvantaged by the requirement to have been in service on the 16th May, 2003, irrespective of the fact that the majority of both the advantaged and the disadvantaged group are women.
In considering the question of statistics, the Court must then decide which pool to choose for consideration. The Department has argued that the correct pool would be all Civil Servants who were serving in 1997 and were excluded from the settlement. This would not, however, be logically the correct pool as many members of that pool are not comparable on the grounds that they were never members of the CPSU or of Clerical grades and could never have been Claimants on that basis.
The Court has come to the view that the optimum total pool from the Claimants’ point of view, as well as the most logical, is that which is composed of the group who received payment, but did not claim, having no legal actual or potential entitlement to benefit from the settlement and who were CO’s in October 1997, in addition to the Claimants, who equally did not claim, were CO’s in October 1997. but did not benefit. The pool, as indicated in the case ofRutherford v Secretary of State for Trade and Industry IRLR 892 is therefore composed of the aggregate of the Advantaged and Disadvantaged groups as set out above. The following table sets out the relevant figures in the manner adopted inRutherford(after Seymour-Smith).
Total Pool: 6450
MenWomenGender Ratio W/M
Disadvantaged 685 1165 1.7: 1
Advantaged 736 3864 5.25: 1
Total Pool 1421 5029 3.5: 1
Disadv. as % 48% 23% 0.48: 1
Adv. as %
of Pool 52% 77% 0.67: 1
While the above statistics, when considering the advantaged group in particular, would appear to disclose some disproportionate impact as between men and women, the question as to whether this impact is sufficient to justify a finding of discrimination is another matter. In the view of the Court, the level of disproportionate discriminatory effect shown by the statistics is not sufficient to justify such a finding.
In this instance, the Court is of the view that there is an inherent vulnerability in statistics taken at a fixed time or period and which could be influenced by purely fortuitous factors. Any consideration of such statistics must also be influenced by the undisputed fact that both the advantaged and disadvantaged groups are composed predominantly of women; also, there is the undisputed fact that a finding that the statistics indicated a degree of discrimination would result in men benefiting from a case which was originally taken as a general discrimination claim by women. It is therefore difficult in logic to see how the statistics could support a finding of discrimination.
Given that the onus of proof is on the Claimants, the Court has come to the view that the available evidence, including statistics, does not go far enough to establish aprima faciecase of discrimination.
It should be noted that the statistics are but an aspect for consideration and would not, in any event, be decisive in themselves. This principle was enunciated by the E.A.T inRutherfordand quoted with approval by the House of Lords in their consideration of the same case.
It is established case law that it is for the National Court to satisfy itself that any set of statistics provide a sufficiently reliable evidential basis ofprima faciediscrimination.
As noprima faciecase of discrimination has been established, the question of considering arguments regarding objective justification does not therefore arise. In addition the Court does not need to consider when the alleged act complained of occurred, and, if that act took place on the 16th May, 2003, it took the form of a collective agreement.
5.Ms Mary Vesey:
As Ms. Vesey was not in service in any grade in 2003, and as her claim would in any event appear to have been time-barred, it is the view of the Court that it cannot succeed. The Court does not have to consider whether a decision by a Union as to whom should share in a settlement offered by a employer in settlement of proceedings could be deemed to be a discriminatory act by an employer within the meaning of the Act.
For the reasons given above, the Court overturns the decision of the Equality Officer as to the date of the alleged act of Discrimination and finds that the effective date should have been 16th May, 2003.
The Court, again for the reasons outlined above, finds that the appellants have not established a case of indirect discrimination on the gender ground and upholds the decision of the Equality Officer and dismisses the appeal.
The Court does not find that Ms. Mary Vesey has established a case of indirect discrimination on the gender ground in the settlement Agreement and dismisses her appeal.
Signed on behalf of the Labour Court
16th February, 2007______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.