THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-024
Kathleen Bradley, Sarah Collier, Ann Mahony,
Rose Swan and Mary Thompson
(represented by CPSU)
File Reference: EE/2005/269
Date of Issue: 3rd April 2009
1.1 The claim relates to a system of regrading applied by the respondent to certain grades as a result of a number of collective agreements seeking to, inter alia, increase productivity and adjust attendance hours in respect of those grades. The grades to which the regrading practice relates, grades 10, 9 and 8, are entitled, one year after reaching the final point on the incremental pay scale, to move automatically from grade 10 pay scale to grade 9 pay scale and on completion of that scale, to move automatically to grade 8 pay scale. The grades with this automatic progression are called career grades. The claimants allege that employees in the grades to whom this practice is applied are mainly male and that their grade is predominantly female. The claim asserts that the right to automatic progression through the grades is indirectly discriminatory on the gender ground. The claim also asserts that this automatic progression is an equal treatment issue.
1.2 The respondent asserts that the claim is an equal pay claim and since the complainants do not perform ‘like work’ in terms of section 7 of the Acts the claim is unfounded. In the alternative, if the claim is found to be one of equal treatment, the respondent argues that the statistics relating to the gender breakdown of the comparator group do not support an allegation of indirect discrimination. The respondent pointed to other grades on pay scales 10, 9 and 8 that have no entitlement to automatic progression. Notwithstanding that, the respondent argues that objective justification exists for the treatment, if found to be indirectly discriminatory, in the additional productivity etc. secured as a result of the various collective agreements.
1.3 The five complainants referred a claim of indirect discrimination on the gender ground relating to regrading to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004. In accordance with her powers under section 75 of the Act, the Director delegated the case to Ms. Mary Rogerson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. However before Ms. Rogerson was able to conclude her investigation she transferred from the Tribunal. The Director then delegated the claim to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The date of delegation was 17th April 2008 and I began my investigation on that date.
1.4 A hearing relating to the preliminary matter of whether or not the claim related to equal pay or equal treatment was held on 19th May 2008. The parties were informed of my finding in this regard and the hearing of the substantive issues took place on 17th October 2008. Statistics in relation to the gender breakdown at the time of the claim and in relation to 2008 were requested from the employer. These were submitted as part of the post-hearing correspondence which ended on 4th February 2009.
2 SUMMARY OF COMPLAINANTS’ CASE
2.1 While not relying on Gerster entirely, with regard to whether or not the claim is one of equal pay or equal treatment, the complainants asserted that while promotion can give rise to increased pay, access to promotion relates to equal treatment.
2.2 In relation to the assertion that the claim is one of indirect discrimination with regard to equal treatment, the claimants submit that the statistics indicate the existence of a prima facie case of discrimination. They referred to the objective justification test in the Bilka-Kaufhaus case. They assert that all grades were subject to productivity issues in relation to the Programme for Competitiveness and Work and that productivity was not uniquely an issue for those in the career grades. They stated in their second submission dated 12th January 2009 that the figures submitted by the respondent relate to the current date (i.e. October 2008) but that they are unlikely to differ substantially from the statistics relating to the date of the claim. The claimants preferred to rely on the statistics that they had used in their first submission which they asserted had been provided by the employer on 17th October 2006. They also asserted, in the second submission, that the burden of proof in relation to indirect discrimination was the same regardless of whether or not there was a neutral provision, criterion or practice: “In the absence of a provision, criterion or practice (PCP) the European Court of Justice in the Enderby  V’s Frenchay Authority case also set out that indirect discrimination can arise where there is different treatment for an almost exclusively female grade in comparison to a predominantly male grade.”
2.3 The complainants seek similar automatic progression from grade 11 pay scale to grade 11A scale as that available to the comparator career grades from 10 through to 8.
3 SUMMARY OF RESPONDENT’S CASE
3.1 The respondent argued that the claim was one of equal pay and referred to the Nimz  decision where automatic career progression is considered an equal pay issue.
3.2 In relation to the substantive issue, it was asserted that the statistics did not support the claim of indirect discrimination and that no prima facie case exists. It presented the genesis of the career grades through the various agreements including the creation of FÁS from the merging of Anco and the National Manpower Service, and the subsuming of the National Rehabilitation Board. The gains made in relation to productivity, attendance hours etc were presented as factors which were capable of objectively justifying the existence of the career grades.
3.3 By letter dated November 21st 2008, the respondent submitted details of all of those employees, by grade title and gender, on grade 8, 9, 10, 11 and 11A pay scales. The data relating to the various career grades was highlighted in that correspondence. This information is shown in Table 1 in collated form.
4 The Law
4.1 Subsections (1) and (4) of Section 8 of the Acts provide as follows:
8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(4) A person who is an employer shall not, in relation to employees or employment—
(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
Section 22 states:
(1) (a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
(1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1) applies in relation to A or B.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 What is to be decided in this case is whether:
· The regrading constitutes an equal pay or equal treatment issue;
· The regrading arrangements applying to the career grade could constitute the behavior referred to in subections 8(1) and (4),
· Persons of a particular gender, in this case females, are at a particular disadvantage in respect of regrading, that is if a prima facie case of indirect discrimination on the gender ground arises in terms of s22(1)(a) and if so,
· Evidence has been presented that would amount to objective justification in terms of s22(1)(b)
Equal Pay v Equal Treatment
5.2 The claimants state that they are not claiming equal pay or ‘like work’ with the comparators. What they are claiming is that it is discriminatory they do not have automatic progression between their grades as the comparators do in theirs because of the gender breakdown and they rely, in part, on Gerster. The respondent argues that Nimz states in paragraph 9 that automatic progression is an equal pay issue.
5.3 In the latter case referred to above Ms. Nimz lodged a claim of unlawful indirect discrimination with comparators who had automatically progressed to a higher salary scale. Ms. Nimz would also have progressed automatically had she worked more than 75% of the normal full time hours. Both Ms. Nimz and her comparators were entitled to automatically progress to the higher salary scale depending on their length of service based on hours of attendance. Paragraphs 9 and 10 of the Nimz decision are as follows:
(9)It appears from the documents before the Court that the present case concerns a system of practically automatic salary classifications based on rules relating to the length of service contained in a collective agreement. Those rules govern changes in the salary due as such to an employee who continues in the same type of work.
(10) It follows that in such circumstances the rules governing what is practically an automatic reclassification in a higher salary grade come in principle within the concept of pay as defined in Article 119 of the Treaty.
5.4 Within the comparator group in the instant case, as in Nimz, there are rules relating to length of service that govern the move to the higher salary scale. As in Nimz, the rules governing this move or reclassification “come in principle within the concept of pay as defined in Article 119 of the Treaty” (Nimz 9-10). However, in this case the issue is not with the application of the rules governing the reclassification within the group who are entitled to automatic progression. The issue, in fact, is in relation to an entitlement to the same or similar rules and I find that this distinguishes the instant case from Nimz. Paragraph 24 of the Gerster decision is as follows:
(24) Nimz concerned progression to a higher grade upon completion of a qualifying period, on the basis of a specified length of service. Such a move was practically automatic where the person concerned had completed the period prescribed and had not been dismissed. The rules which apply in the present case, albeit indirectly linked to pay, concern access to career advancement. Inequality in this context does not therefore fall within the scope of Article 119  of the Treaty or of Directive 75/117.
Lommers, at paragraph 28 states:
“it should be noted that the Court has previously held that the fact that the fixing of certain conditions may have pecuniary consequences is not sufficient to bring such conditions within the scope of Article 119  of the EC Treaty…. which is a provision based on the close connection existing between the nature of the work done and the amount of pay”.
Landsting, at paragraph 59, states:
“…the Court has already held that the fact that the fixing of certain working conditions may have pecuniary consequences is not sufficient to bring such conditions within the scope of Article 119 , which is based on the close connection which exists between the nature of the services provided and the amount of remuneration. (Case 149/77 Defrenne III  ECR1365, paragraph 21).
In the instant case what is sought is a career advancement mechanism the same as, or similar to, what is available to the comparator group. While this career advancement has pay implications, that is not sufficient, in my view, to bring it within the scope of Article 141 of the Treaty as in Gerster, Lommers and Landsting above.
5.5 The complainants have not argued that they perform like work with the comparator group. Nor have they argued that they should be entitled to equal pay. What is argued is that they should have the same entitlement to automatic progression within their own grades as the comparator group has in theirs. If this argument is successful the result may be that they would be given that automatic progression entitlement. Nimz states that the rules governing what is practically an automatic reclassification come within the concept of pay. Access to such a career advancement mechanism does not. I therefore find that the claim is one of equal treatment.
Behavior in Terms of Sections 8(1) and 8(4)
5.6 I am satisfied that the regrading relating to the career grades may be considered regrading in terms of Section 8(1)(d) in relation to which an employer is required not to discriminate against an employee. I am also satisfied, based on the evidence presented, that the manner of regrading available to the career grades constitutes a practice in terms of section 8(4)(b) which, it is alleged, impacts disadvantageously on a class of persons, i.e. female employees.
Indirect Discrimination on the Gender Ground
5.7 I am satisfied that the requirement for a ‘neutral provision’ in section 22 is satisfied by the provisions included in the various collective agreements.
5.8 The respondent submitted details of the gender breakdown, as existed on 1st June 2005, in relation to grade scales 11, 11A, 10, 9 and 8. The career grades are identified in these statistics which are summarised in table 1 below. The date the claim was lodged was 3rd August 2005. I am satisfied that there were no significant changes to the overall numbers during the intervening period. The complainants did not dispute these figures except to suggest that the breakdown was not sufficiently detailed. I am satisfied that the figures relating to 1st June 2005 are acceptable and that the detail is sufficient for the purposes of my investigation.
5.9 In order to establish a prima facie case of indirect discrimination on the gender ground the complainants must establish that the practice complained of has a disproportionate impact on women, that is, that the regrading policy puts women at a particular disadvantage. In Nathan v Bailey Gibson  the Chief Justice held that:
“It is sufficient for (the complainant) to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on verifiable factors which have no relation to the complainant’s sex.”
5.10 The ECJ in Enderby v Frenchay Health Authority, paragraph 19, states
In these circumstances, the answer to the first question is that, where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.”
Notwithstanding that the ECJ was dealing with an issue concerning equal pay I am satisfied that the principle set out in this judgement equally applies to equal treatment cases such as the case to hand. It has largely been interpreted as indicating that an inference of indirect discrimination should only be drawn in circumstances where the claimant grade is predominantly of one sex and the comparator grade is predominantly of the other sex. This test have been applied by this Tribunal in a number of decisions concerning what constitutes “a particular disadvantage” in terms of indirect discrimination in accordance with the Acts. In DEC-E2007-007 the Equality Officer in addressing an equal pay claim considered the Enderby test as follows:
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.
In the previous case the statistics were accepted as representing an imbalance sufficient to establish a prima facie case. The concept of indirect discrimination was also addressed in DEC-E2001-006, also an equal pay claim, as follows:
In this regard the opinion of the Advocate General Leger in the case of Nolte v Landesversicherungsantalt Hannoveris useful. In this opinion it was suggested that a figure of 60% imbalance per se, would probably be quite insufficient, whereas based on Rinner-Kuhn, an imbalance of 89% would be sufficient. The decision of the European Court of Justice in Enderby indicates that an inference of indirect discrimination should only be drawn in circumstances where the claimant grade is predominately of one sex and the comparator grade is predominately of the other sex.
TABLE 1 (Based on statistics submitted relevant to 1st June 2005)
|Comparator Career Grades 8, 9, & 10||337||649||986|
5.11 In this case the complainant grade, that is the disadvantaged group, is 88% female and 12% male. I find that the complainant group complies with the test, i.e. is predominantly female. The comparator group, that is the advantaged group, is made up of 34% female and 66% male. I am satisfied that the imbalance in the comparator group is not sufficiently large to comply with the Enderby test i.e. is not predominantly male. In the present case I find, as a matter of fact, that the complainant grade was predominantly female at the time of the claim whereas the comparator grade was not predominantly male. It follows, therefore, that women were not at a particular disadvantage in respect of regrading in terms of section 22(1)(a) at the date of the claim and the complainants have failed to establish a prima facie case of indirect discrimination contrary to the Acts.
5.12 Since I have found that the complainants have not established a prima facie case it is unnecessary to address whether or not evidence has been presented that would amount to objective justification in terms of section 22(1)(b).
6. DECISION DEC-E2009-024
Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainants have failed to establish a prima facie case of indirect discrimination on grounds of gender contrary to the Acts in respect of the regarding policies and their complaint must fail.
3rd April 2009
  C-1/95 Hellen Gerster v Freistaat Bayern
 C-170/84 Bilka- Kaufhaus GmbH v Karin Weber von Hartz.
 Complainant-127/92 Dr. Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health.
 C184/89Helga Nimzv Freie und Hansestadt Hamburg.
 C476/99H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij.
 C236/98Jämställdhetsombudsmannen v Örebro läns landsting.
  2 IR 162
 Case C-127/92
 ECJ Case C-317/93  ECR 1-4625
 ECJ Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH