An interesting case has been heard in the Court of Justice for the European Union (CJEU, formerly the ECJ) whereby a group of female workers argued that they were indirectly discriminated against when they were paid less than male counterparts carrying out the same work.
These female civil servants were carrying out clerical duties for the Gardaí and claimed that they were paid less than male employees carrying out the same work. These male employees were assigned to specific clerical posts reserved for members of the Gardaí, called ‘designated’ posts, whcih was part of a Trade Union negotiated agreement to reduce Gardaí numbers.
The case of Kenny v Minister for Justice, Equality and Law Reform, Minister for Finance, and the Commissioner of An Garda Síochána stemmed originally from an equal pay claim before the Equality Tribunal in the early 2000's and which was appealed to the Labour Court, who found that they had a prima facie case of indirect pay discrimination, on the basis that the majority of designated posts were occupied by men and the majority of clerical officers were female. The employer argued that any difference in pay was justified on the basis of operational need as well as on the basis that the number of designated posts had been determined by a collective agreement negotiated with the Trade Union.
The employees appealed to the High Court, which referred questions to the CJEU. The CJEU had to consider (assuming that the two groups were carrying out like work) whether the difference in pay could be objectively justified by the fact that the rates of pay had been determined by collective bargaining and so was due to objective factors unrelated to any sex discrimination.
In their determination the CJEU found the answers to the questions referred is that Article 141 EC and Directive 75/117 must be interpreted as follows:
- employees perform the same work or work to which equal value can be attributed if, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation, which it is a matter for the national court to ascertain;
- in relation to indirect pay discrimination, it is for the employer to establish objective justification for the difference in pay between the workers who consider that they have been discriminated against and the comparators;
- the employer’s justification for the difference in pay, which is evidence of a prima facie case of gender discrimination, must relate to the comparators who, on account of the fact that their situation is described by valid statistics which cover enough individuals, do not illustrate purely fortuitous or short‑term phenomena, and which, in general, appear to be significant, have been taken into account by the referring court in establishing that difference, and
- the interests of good industrial relations may be taken into consideration by the national court as one factor among others in its assessment of whether differences between the pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex and are compatible with the principle of proportionality.
The Court also stated "it must be noted that in relation to indirect discrimination, there may be diverse reasons for the difference in pay and the justification for such difference may be equally diverse and may relate to national legislation, agreements intended to regulate collectively paid labour or even to a practice or unilateral action of the employer with regard to his employees. It follows that, in relation to indirect pay discrimination, it is for the employer to provide objective justification for the difference in pay between the workers who consider that they have been discriminated against and the comparators."
The important consideration that the CJEU held was that collective bargains are one factor in determining whether differences of pay are due to objective factors. However, employers’ industrial relations concerns, although subject to the requirement to not discriminate, cannot on their own justify indirect sex discrimination. These answers have been referred back to the High Court to rule on this, however it is very clear that like with retirement, objective justification is essential when making these decisions. An employer must point to legitimate reasons for doing so and they must be able to point to legitimate business reasons for such differences in treatment.
