Part-Time Workers
Cases
Hill & Stapleton v. The Revenue Commissioners and The Department of Finance
C-243/95
Summary
A system of incremental credit based on the criterion of actual time worked which, where 98% of job-sharers are women, treats former job-sharers who have returned to full-time work in a manner less favourable than workers who have always worked full-time constitutes discrimination on the grounds of sex unless such unfavourable treatment can be objectively justified.
The purpose of the system of job-sharing, which was introduced into the Irish Civil Service in 1984, was to permit two civil servants to share one full-time job equally in such a way that both workers benefitted equally while the costs of the post for the national administration remained the same. Job-sharers work half the number of hours of full-time workers and are paid the same hourly rate. The scale of annual incremental salary increases for job-sharers are parallel to that for full-time workers with each point on the job-sharers scale representing 50% of the corresponding point on the full-time scale. 98% of job-sharers in the Irish Civil Service are women. According to the national referring tribunal a job-sharer can acquire the same experience as a full-time worker.
When Mrs Hill and Mrs Stapleton transferred from job-sharing to full-time work they were initially assimilated to the same point on the full-time incremental scale as that which they had occupied on the job-sharers’ scale. They were both subsequently reclassified at a lower point on full-time scale on the grounds that two years on the job-sharers’ scale represented one year on the full-time scale. The questions posed to the Court of Justice by the Labour Court in Ireland arose from the decision by Mrs Hill and Mrs Stapleton to contest their reclassification.
The Court of Justice took the view that workers who transferred from job-sharing, where they worked 50% of full-time hours and were paid 50% of full-time pay, to full-time work, were entitled to expect both the number of hours that they worked and the level of their pay to increase by 50%, in the same way as workers converting from full-time work to job-sharing would expect these factors to be reduced by 50%, unless a difference of treatment can be justified. Such development did not occur in this case, with the result that, as former job-shares are paid less than twice their job-sharing salary, their hourly rate of pay as full-time workers is reduced.
Within the category of full-time workers, therefore, there is unequal treatment, as regards pay, of employees who previously job-shared, and who regress in relation to the position which they already occupied on the pay scale.
In so finding, the Court observed that the use of the criterion of actual time worked during the period of job-sharing fails to take account, inter alia, of the fact that job-sharing is a unique category of work, given that it does not involve a break in service, or of the fact that a job-sharer can acquire the same experience as a full-time worker. Furthermore, a disparity is retroactively introduced into the overall pay of employees performing the same functions so far as both the quality and quantity of the work performed is concerned.
In such a case, application of provisions of the kind at issue before the national tribunal result in discrimination against female workers which must be treated as contrary to Article 119 of the Treaty.
The Court of Justice concluded that it would be otherwise only if the difference of treatment which was found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination on the grounds of sex. It added that it is for the national tribunal to decide if any such objective factors exist.
“32 The regression to which workers are subject when entering or returning to full-time work directly affects their pay. They are in fact paid less than double what they would have earned had they been job-sharing. Consequently, their hourly rate of pay is reduced. Reference to the criterion of hours worked during the period of job-sharing employment, as provided for under the scheme applicable here, fails to take account either of the fact that job-sharing, as pointed out in paragraph 26 of the present judgment, is in a unique category as it does not involve a break in service, or of the fact, stated in paragraph 27 of the present judgment, that a job-sharer can acquire the same experience as a full-time worker. Furthermore, a disparity is retroactively introduced into the overall pay of employees performing the same functions so far as concerns both the quality and the quantity of the work performed. The result of this disparity is that employees working full time but who previously job-shared are treated differently from those who have always worked on a full-time basis.
33 Within the category of full-time workers, therefore, there is unequal treatment, as regards pay, of employees who previously job-shared, and who regress in relation to the position which they already occupied on the pay scale.
34 In such a case, provisions of the kind at issue in the main proceedings result in discrimination of female workers vis-à-vis male workers and must in principle be treated as contrary to Article 119 of the Treaty and therefore contrary to the Directive. It would be otherwise only if the difference of treatment found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination based on sex (see, along these lines, Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 29; Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, paragraph 12; Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243, paragraph 31).
35 It is for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision which, though applying independently of the sex of the worker, actually affects a greater number of women than men is justified by objective reasons unrelated to any discrimination on grounds of sex (Jenkins, paragraph 14; Bilka, paragraph 36; and Rinner-Kühn, paragraph 15).
37 In the view of the Revenue Commissioners and the Department of Finance, a method of pay progression based on the duration of work actually performed is objectively justified by criteria which satisfy the conditions laid down by the Court in its case-law.
38 In this connection, neither the justification provided by the Revenue Commissioners and the Department of Finance to the effect that there is an established practice within the Civil Service of `crediting’ only actual service, nor that stating that this practice establishes a reward system which maintains staff motivation, commitment and morale, is relevant. The first justification is no more than a general assertion unsupported by objective criteria. With regard to the second, the system of remuneration for employees working on a full-time basis cannot be influenced by the job-sharing scheme.
39 So far as concerns the justification that, if an exception were to be made in favour of job-sharing, this would result in arbitrary or inequitable situations or would amount to impermissible discrimination in favour of women, it should be pointed out, as is clear from paragraph 29 of the present judgment, that to grant to workers who convert to full-time employment the same point as that which they had under their job-sharing contract does not constitute discrimination in favour of female workers.
40 So far as the justification based on economic grounds is concerned, it should be noted that an employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that avoidance of such discrimination would involve increased costs.
41 It must be borne in mind that all the parties to the main proceedings, and the national tribunal, agree that almost all job-sharing workers in the Irish public sector are women. It is apparent from the case-file that approximately 83% of those who chose that option did so in order to be able to combine work and family responsibilities, which invariably involve caring for children.
42 Community policy in this area is to encourage and, if possible, adapt working conditions to family responsibilities. Protection of women within family life and in the course of their professional activities is, in the same way as for men, a principle which is widely regarded in the legal systems of the Member States as being the natural corollary of the equality between men and women, and which is recognised by Community law.
43 The onus is therefore on the Revenue Commissioners and the Department of Finance to establish before the Labour Court that the reference to the criterion of service, defined as the length of time actually worked, in the assessment of the incremental credit to be granted to workers who convert from job-sharing to full-time work is justified by objective factors unrelated to any discrimination on grounds of sex. If such evidence is adduced by those authorities, the mere fact that the national legislation affects far more women than men cannot be regarded as constituting a breach of Article 119 of the Treaty and, consequently, a breach of the Directive.
44 The answer to the questions submitted must therefore be that Article 119 of the Treaty and the Directive are to be interpreted as precluding legislation which provides that, where a much higher percentage of female workers than male workers are engaged in job-sharing, job-sharers who convert to full-time employment are given a point on the pay scale applicable to full-time staff which is lower than that which those workers previously occupied on the pay scale applicable to job-sharing staff due to the fact that the employer has applied the criterion of service calculated by the actual length of time worked in a post, unless such legislation can be justified by objective criteria unrelated to any discrimination on grounds of sex.”
Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno
(C-395/08),
“
1. The Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, annexed to Directive 97/81, in particular clause 4, pursues an aim which is in line with the fundamental objectives enshrined in Article 1 of the agreement on social policy, set out in the first paragraph of Article 136 EC, the third recital in the preamble to the TFEU and paragraph 7 and the first subparagraph of paragraph 10 of the Community Charter of the Fundamental Social Rights of Workers, to which the abovementioned provision of the EC Treaty refers. Those fundamental objectives are associated with the improvement in living and working conditions and with the existence of proper social protection for workers. In particular, they are directed at improving working conditions for part-time workers and ensuring that they are protected from discrimination.
In the light of those objectives, clause 4 of the Framework Agreement must be interpreted as articulating a principle of European Union social law that may not be interpreted restrictively.
(see paras 30, 32)
2. The term ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, annexed to Directive 97/81, covers pensions that depend on an employment relationship between worker and employer, excluding statutory social security pensions, which are determined less by that relationship than by considerations of social policy.
The only possible decisive criterion is whether the retirement pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, which is based on the wording of Article 141 EC itself. However, that criterion cannot be regarded as exclusive, since pensions paid under statutory social security schemes may reflect, wholly or in part, pay in respect of work. However, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed or if its amount is calculated by reference to the last salary.
In order to determine whether a retirement pension falls within the scope of the Framework Agreement, the national court, which alone has jurisdiction to assess the facts in the cases before it and to interpret the national legislation applicable, must consider whether the pension satisfies the three conditions set out above.
(see paras 42, 46-48)
3. With regard to retirement pensions, clause 4 of the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, annexed to Directive 97/81, must be interpreted as precluding national legislation which, for vertical-cyclical part-time workers, disregards periods not worked in calculating the period of service required to qualify for such a pension, unless such a difference in treatment is justified on objective grounds.
The principle of pro rata temporis is not applicable for the purpose of determining the date required to acquire pension rights, since that depends solely on the worker’s length of service. The length of service is, in fact, the actual duration of the employment relationship and not the amount of time worked during that period. In accordance with the principle of non-discrimination as between full-time and part-time workers, therefore, the period of service taken into account for the purpose of determining the date on which a worker becomes entitled to a pension should be calculated for a part-time worker as if he had held a full-time post, periods not worked being taken into account in their entirety.
Catholic University School -v- Dooley & Anor
[2010] IEHC 496
Dunne J.
“Three principal issues arose before the Labour Court and indeed on appeal to this Court. The first issue is whether or not the claimants have chosen the appropriate comparator. The second issue relates to whether or not the Directive 97/81/EC has been properly transposed into national law. The final issue relates to the defence of objective justification. I now propose to deal with these issues.
The Appropriate Comparator
There is no dispute between the parties that a claimant is entitled to choose their own comparator. The question is whether the comparators chosen by the claimants are appropriate. The claimants have sought to compare themselves with a permanent teacher on an incremental scale whose salary is paid by the Department of Education. It is contended on behalf of the school that this is not a correct or appropriate comparator. The school contends that the appropriate comparator is a privately paid teacher employed by the respondent directly. There are a number of such teachers employed by the school. The first point made on behalf of the school is that the chosen comparator has to be in the same type of employment contract or employment relationship. There was no issue as to the teaching ability of either of the claimants and that in that regard each of the claimants presents identically by comparison to their chosen comparators. However, the principal point made on behalf of the school is that there is a difference between the contractual arrangements of the claimants and their chosen comparators and that this is a relevant feature. The school contends that the appropriate comparator should be a full time privately paid teacher. Reference was made in that regard to two members of staff employed by the school who are permanent full time privately paid teachers. It was submitted that the claimants had been treated equally and no less favourable than those employees or any other privately paid teacher paid by the school.
Although it was accepted by the school that the claimants are entitled to choose their comparator, it was submitted that they could not be disingenuous in their choice of comparator. The context in which the comparator was employed had to be considered. Indeed it was suggested that it might be appropriate to consider other teachers in a similar employment relationship i.e. someone from within the private sector not the State sector. Reference was made to the decision of the Supreme Court in the case of National University of Ireland v. Ahearn [2005] 2 IR 577. That was a case that considered the provisions of s. 2(3) of the Anti-Discrimination (Equal Pay) Act 1974. An employee under the provisions of that legislation was entitled to compare themselves to another employee in seeking to establish that they were being paid unequal pay for like work. McCracken J. at p. 583 of the judgment in that case commented:-
“The question at issue here is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential. This involves a different approach to the position of the comparators, and in particular of the context in which they were employed. I accept the arguments on behalf of the applicant that for this purpose the Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators, namely the remaining switchboard operators.”
Therefore it was submitted that one had to consider the context in which the chosen comparator was employed not in isolation but also in the context of other teachers on the staff who where not chosen as comparators namely, the other privately paid teachers. In this context, particular emphasis was placed by the school on the definition of employer within the meaning of the Protection of Employees (Part Time Work) Act 2001, which is set out above and in particular that part of the definition which states “the person who under a contract from his employment referred to in para. (b) of the definition of contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer”. It was suggested therefore that having regard to the definition of employer in the 2001 Act as set out above that the chosen comparator was not even employed by the same employer as the claimants. In emphasising this particular point, it was noted that the school has no hand, act or part in the negotiations between the teachers or their union and the Department.
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Reference was also made to the decision of the High Court in the case of Wilton v. Irish Steel [1999] E.L.R. 1. That was an equal pay claim. The plaintiff in that case took over the duties of her chosen comparator at a salary of £11,000. Her chosen comparator, Mr. Clarke, had been earning £14,000 when he was in the defendant’s employ. The plaintiff claimed that she was entitled to the same pay on the grounds that she was doing like work and that the only distinction between them was one of sex. An equality officer recommended that the plaintiff was not entitled to the same rate of pay as her comparator because the different rates paid could be justified on grounds other than sex. That recommendation was affirmed by the Labour Court. The equality officer had in the course of reaching a decision made detailed comparison with another individual who had taken on responsibilities similar to those of the plaintiff at the same time and was also paid less than the comparator. It was held by O’Sullivan J. in dismissing the appeal that the Labour Court had relied on the recommendations of the equality officer and had found that there were grounds other than sex which justified the difference in pay which could be “adequately identified”. It was also held that the plaintiff was entitled to choose her comparator and having done so, the equality officer was obliged to make a comparison with that person. Accordingly, if the recommendation showed that the equality officer had not compared the plaintiff with her comparator but with another, then an error of law would have occurred and the matter would have to be sent back to the equality officer. It is clear from that decision, as both parties accept, that a claimant is entitled to choose their own comparator but it is also possible in appropriate cases to conduct an analysis not only of the chosen comparator but also of others not chosen by a claimant as the comparator.
A further authority opened in relation to this particular issue was the case of Minister for Finance v. Una McArdle [2007] 18 E.L.R. 165 a decision of the High Court (Laffoy J.). That case related to a person employed as a lab technician with the State Laboratory on a fixed term contract of one year. It was found by Laffoy J. in refusing the reliefs sought by the Minister for Finance that “the defendant was treated less favourably than her chosen comparator in relation to eligibility for the vacancy and that the difference in treatment was not objectively justified. The defendant was entitled to rely on an established civil servant as a comparator as well as the same conditions of employment as the comparator including pension entitlements and access to a career break but excluding tenure as an established Civil servant.”
In the course of her judgment in that case, Laffoy J. at p. 8 of 14 stated:-
“The Labour Court summarised the combined effect of sub-ss. (1) and (2) of s. 5 as being that a comparable permanent employee for the purposes of the Act the permanent employee employed by the same employer as the complainant, who is engaged in like work with the complainant. The Labour Court followed the decision of this Court (O’Sullivan J.) in Wilton v. Steel Company of Ireland [1999] E.L.R. 1, where it was held that, for the purposes of the Anti Discrimination (Pay) Act, 1974, an employee is entitled to choose his or her comparator. Apropos of the position of the defendant, the Labour Court stated that it was accepted that she was engaged at all material times in doing the same job as permanent civil servants who were designated as established, and it was also accepted that there were no other civil servants employed by the plaintiff engaged in like work with her, who were designated unestablished. The Labour Court found that the defendant and a number of established civil servants performed the same work under the same or similar conditions and each was interchangeable with the other in relation to work. Therefore, the Labour Court found that the established civil servants were comparable permanent employees in relation to the defendant within the meaning of s. 5. On that basis, the Labour Court concluded that the defendant, as a fixed-term employee, was entitled to the same conditions of employment as her nominated comparators who were established civil servants (except, of course, in relation to the duration of her contract).
In this Court, counsel for the plaintiff did not dispute that the defendant was entitled to choose her comparator, but it was submitted that she had to choose a comparator for the purposes of the Act. He submitted that the difference in treatment between the defendant and her chosen comparator of which she complained was not due to her fixed-term status, but to her status as an unestablished civil servant. It was submitted that the discrimination of which she complained was not within the ambit of the Act. . . .
Counsel for the defendant submitted that the Labour Court was correct in holding that she was entitled to select as a comparator an established civil servant working in the State Laboratory. In relation to the application of s. 5 to her, para. (1)(a) was complied with, in that she and her comparator had a common employer and the Labour Court had found as a fact, and there was no appeal against the finding, that she complied with para. (a) of subs. (2). It was submitted that in the Act comparability is defined not by reference to status but by reference to having the same employer and being engaged in like work. Therefore, it was submitted that the plaintiff’s contention that the Labour Court fell into error was misconceived.
I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State Laboratory, who was engaged in like work with the defendant was a ‘comparable permanent employee’ for the purposes of s. 6 because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in s. 5 for a comparable permanent employee vis-à-vis the defendant as a fixed-term employee.”
Thus it was argued on behalf of the school relying on the above decision that the chosen comparator does not have the same employer. Indeed it was added that in the case of Sullivan v. The Department of Education referred to above, it is of significance that it was the department and not the relevant board of management that was the defendant in those proceedings. Thus a significant part of the school’s arguments are based on the contention that the appropriate employer in this case is the Department and not the school. In support of these arguments reference was also made to two decisions of Rights Commissioners in the cases of Mannion and Jacques and Keating v. Scoil Áine and the case of Noone v. St. Mary’s Holy Faith Secondary School Killester. In the first of those cases the Rights Commissioner found that there were two separate contracts in existence, one between the school and the claimant funded by the Department and the other which was privately funded between the school and each of the claimants outside the control of the funding of the Department. In other words the Rights Commissioner had regard to the different funding arrangements and contractual arrangements between the claimants and the school. In the second of those cases, that of Imelda Noone, the Rights Commissioner rejected a claim for pro rata pay and conditions in respect of the claimant’s Department paid incremental colleagues and therefore found that the claimant was not comparable to the Departmental paid incremental teachers on the respondent staff.
In support of their arguments on this point, reference was made on behalf of the school to a number of factual matters which it was contended showed significant differences between the claimants and their chosen comparators.
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The Claimants Response in Relation to the Appropriate Comparator
As I have mentioned previously, there is no issue between the parties as to the fact that a claimant is entitled to choose its comparator. Further it was accepted by counsel on behalf of the claimants that, as has been contended on behalf of the school, not only must the position of the comparator be considered, but the context in which they are employed must be considered and taken into account. In other words the claimants do not disagree with the findings of the Supreme Court in the case of National University of Ireland v. Ahearn and the High Court in the case of Wilton v. Irish Steel referred to above.
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Transposition of the European Directive
I now wish to deal briefly with the issues raised in regard to the transposition of the Directive. As noted previously Clause 4 of the Fixed Term Workers Directive states:-
“In respect of employment conditions, fixed term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed term contract or relation unless different treatment is justified on objective grounds.”
The Part Time Workers Directive is in similar terms as it provides:-
“In respect of employment conditions, part time workers shall not be treated in a less favourable manner than comparable full time workers solely because they work part time unless different treatment is justified on objective grounds.”
It was argued on behalf of the school that it is clear from the Directives that in order to be actionable the less favourable treatment must be solely because of the part-time or fixed term nature of the work. It is contended that neither the 2003 Act nor the 2001 Act fully implement those provisions of the Directive. If one looks, for example, at s. 9(1) of the Protection of Employees (Part Time Work) Act 2001, it provides:-
“Subject to subsection (2) and (4) and section 11(2) a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”
Section 6(1) of the Protection of Employees (Fixed Term Work) Act 2003, is in similar terms. It will be noted that the word “solely” is omitted from the provisions of the Act. it is the omission of that word that has led to the argument on behalf of the school that the State has failed to properly transpose the Directive in to Irish law.
Counsel on behalf of the claimants noted that the purpose of the Directive was to provide protections to part-time workers and fixed term workers by ensuring the application of the principle of non-discrimination and to establish the general framework for eliminating discrimination against part-time and fixed term workers. It was pointed out on behalf of the claimants that Clause 6(1)(i) of the Part-Time Workers Framework Agreement provides:-
“Member States and/or the Social Partners can maintain or introduce more favourable provisions for worker set out in this Agreement.”
On that basis it was argued that the Directive rights are a floor not a ceiling. In other words, the Directive provides the minimum rights that may be provided and the State legislature can expand on that.
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I now wish to look at the issue of objective justification. The submission of the school in relation to objective justification is that the different contractual and/or employment status of the chosen comparators compared to the complainants constitute objective justification for the less favourable treatment which has occurred. The Labour Court in its determination referred to the defence available under s. 7 of the Protection of Employees (Fixed Term Work) Act 2003, and s. 12 of the Protection of Employees (Part-Time Work) Act 2001, which deal with that defence. Section 12(1) provides as follows:-
“A ground shall not be regarded as an objective ground the purposes of any provision of this part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.”
The Labour Court in its determination made the point that:-
“In this instance the objective justification relied upon appears to be that the school cannot afford to pay the cost associated with affording the claimant equal treatment. That could not be accepted as a defence since in every case in which it is necessary to implement principles of equality there is a cost to the employer. The ECJ said in case No. C-243/95 Hill & Stapleton v. Revenue Commissioners & Department of Finance [1999] I.R.L.R. 466, that:-
“So far as the justification on economic grounds is concerned, it should be noted that an employer cannot justify discrimination…solely on the ground that avoidance of such discrimination would involve increased costs.
Moreover, there are clearly alternative means available to the employer in order to reflect the true economic cost of paying teachers in accordance with the statutes. It is a matter of choice for the respondent school as to whether or not it wishes to adopt such a course.”
Accordingly, the Labour Court in its determination rejected the defence of objective justification. The claimants in their submissions on this issue pointed out that it is well settled in community law that costs cannot objectively justify discrimination. The Labour Court referred to a number of authorities including Jorgensenv Forenigen Af Speciallaeger Case No. C-226/98 [2000] E.C.R.I. – 2447, and Schonheit v. Stadt Frankfurt Ammain Case No. C-4/02 and C-5/02 [2003] ECRI 12575. Finally, I should refer briefly to the decision in Del Cerro Alonso v. Osakidetza-Servicio Vasco De Salud Case C-307/05. That case considered the interpretation of the concept of objective grounds. In the course of its decision the court stated:-
“The court held that that concept of “objective reasons” must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed term employment contracts. Those circumstances may result in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a member state….
The same interpretation is necessary, by analogy, regarding the identical concept of “objective grounds” within the meaning of Clause 4(1) of the Framework Agreement.
In those circumstances, that concept must be understood as not permitting a difference in treatment between fixed term workers and permanent workers to be justified on the basis that the differences provided for by a general, abstract national norm, such as a law or collective agreement.
On the contrary, that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”
Relying on that authority, counsel on behalf of the claimants has strongly submitted and urged upon the court that the school has failed to establish that the unequal treatment in this case responds to genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.
Decision
The Appropriate Comparator
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It can be seen that there is a difference between the definitions of employer contained in the two Acts. Essentially however, an employer is the person with whom the employee has entered into or for whom the employee works under a contract of employment.
The provisions of s. 24 of the Act apply to schools which are fully State funded and schools which are private schools and partly funded by the State. Section 24(1) provides for the appointment of teachers and staff of a school by the Board of Management. The provisions of s. 24 go on to deal with the number and qualifications of teachers and staff of a school to be paid from monies provided by the Oireachtas and sets out various matters in that regard. It is clear from the terms of the statute that the terms and conditions of employment and other staff of a school appointed by a Board and who are to be paid from monies provided by the Oireachtas, shall be determined by the Minister with the concurrence of the Minister for Finance. Section 24(6) provides as follows:-
“Where all or part of the remuneration and superannuation of teachers and other staff of a school is paid or is to be paid from monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Finance.”
There are some observations which I think it is necessary to make in relation to those provisions. The first point to note as I have already said is that they apply to all schools, private and State schools. It is implicit, for example, in s. 24(6) that not all of the teachers in a school may be paid from monies provided by the Oireachtas. It is also clear that the terms and conditions of employment and the remuneration and superannuation of teachers paid from monies provided by the Oireachtas are matters which will be determined by the Minister. In other words, the Minister determines the terms and conditions of employment of State paid teachers and the Minister determines the remuneration and superannuation of the State paid teachers. I think it is also clear from the provisions of s. 24 that the employer of teachers is the Board of Management. It is the Board of Management of the school that appoints teachers. It is also clear from the provisions of the Act, and in particular s. 24(2), that the numbers and qualifications of teachers paid from monies provided by the Oireachtas is subject to the approval of the Minister. Nevertheless, all teachers are appointed by the Board of Management.
I have considered the authorities that were opened to me in the course of this hearing. It is interesting to note in the case of Sullivan v. Department of Education, a case before the Employment Appeals Tribunal, that there the respondent in those proceedings was the Department of Education although the claimant was employed by a school. The issue in that case related to the recognition of a degree allowance and she was a Department paid teacher. None of the cases opened to me in the course of the hearing involve a situation where the contract of employment between the employer and the employee is one in which the employer in respect of the chosen comparators has no hand, act or part in fixing important terms of the contract i.e. terms and conditions, including remuneration and superannuation.
In this Court counsel for the plaintiff did not dispute that the defendant was entitled to choose her comparator, but it was submitted that she had to choose a comparator for the purposes of the Act. He submitted that the difference in treatment between the defendant and her chosen comparator of which she complained was not due to her fixed term status, but to her status as an unestablished civil servant. It was submitted that the discrimination of which she complained was not within the ambit of the Act.
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” on the monthly certification form at the form is not conclusive.”
The decision in the case of Sullivan v Department of Education highlights the different and complicated employment arrangements as between Department funded teachers and privately funded teachers. One wonders what relief, if any, could have been obtained by the claimant in the case of Sullivan v Department of Education had she pursued her case against the school concerned as opposed to the Department. It is hard to see how the Tribunal in that case could have come to any other conclusion. The recognition of qualifications and the payment of a qualification allowance was always a matter to be dealt with by the Department of Education, because it set the criteria for the payment of that allowance. That case provides one small example of the different contractual arrangements that exist between Department funded teachers and the school in which they are employed and privately funded teachers and the school in which they are employed.
Although the chosen comparators appear to come within the definition of comparable full-time employees as defined in the legislation, I have come to the conclusion that because of the fact that the Minister determines the terms and conditions of the Department funded teacher and the school determines the terms and conditions of the privately paid teachers, the Labour Court has fallen into error in finding that the claimants were entitled to choose a full time Department funded teacher as a comparator. The school has no hand, act or part in determining the salary and other terms and conditions of the Department funded teacher. In determining the employer for the purpose of the legislation in relation to agency workers, the legislation expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is in an analogous position. I do not accept that the chosen comparators have the same type of employment contract or relationship as the claimants with the school. To that extent, it seems to me that the Department has to be viewed as the employer of the chosen comparators for the purpose of the legislation.
Objective justification
I want to make some very brief observations on this issue. The school in this case has argued that the different contractual and/or employment status of the chosen comparators as compared to the claimants constitutes objective justification for a less favourable treatment which has occurred as between the claimants and their chosen comparators. The Labour Court in the course of its determination stated that “the objective justification relied upon by the school appears to be that the School cannot afford to pay the cost associated with affording the claimants equal treatment.” There is an abundance of authority to which reference has already been made to the effect that the issue of cost cannot justify unequal treatment. I have already referred to the decision in Hill & Stapleton v. Revenue Commissioners & Department of Finance and to the decision of the ECJ in Jorgensen above. It seems to me to be very clear and obvious that the purpose of the Directive and the legislation transposing the Directive into Irish law would be defeated if cost alone was accepted as a defence because as pointed out by the Labour Court “in every case in which it is necessary to implement principles of equality there is a cost to the employer”.
As I have already mentioned, part of the argument in this case centred on the omission of the word “solely” from the legislation and in particular from the provisions of section 12 and section 7 referred to above. An argument was made on the behalf of the school to the effect that the omission of that word meant that the directors had been improperly transposed into Irish law. I do not accept that argument on the part of the school and I accept the arguments of counsel on behalf of the claimants in that regard. It is important to remember the purpose of the framework agreement, which has been put into effect by the directive and implemented by the legislation referred to in these proceedings. If one considers Council directive 1999/74/EC in relation to fixed term work it will be seen that its purpose is stated to be to:
“(a) improve the quality of fixed term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships.”
In the part time work directive it was stated as follows:
“Whereas the signatory parties wished to conclude a framework agreement on part-time work setting out the general principles and minimum requirements of part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers and to group and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike.”
In other words, the purpose of the Directives and the legislation implementing the Directives is to prevent discrimination against workers by reason of their status as fixed term workers or part time workers.
I accept that the test to be applied in considering a defence of objective justification is that set out in the case of Del Cerro Alonso referred to above, namely, that the unequal treatment responds to a genuine need; is appropriate for achieving the objective pursued and is necessary for that purpose. However, in the light of the finding as to the chosen comparator, it is not necessary to further address the arguments in this area.
Matthews & Ors v. Kent and Medway Towns and Fire Authority & Ors
[2006] UKHL 8
Lady Hale
“The same type of contract?
As the whole purpose of the PTWR is to prohibit unjustified discrimination in the terms and conditions of employment, this threshold requirement is clearly looking for comparable types of employment relationship rather than for comparable terms and conditions of employment. As the Employment Tribunal put it, “It is self evident . . . that a ‘part-time contract’ is probably almost certainly ‘a different’ contract from a whole time contract. Our problem was how to assess and identify the existence of ‘a different type of contract'” (para 132).
The Tribunal referred to the “high degree of commonality” between the contractual terms and conditions of both retained and whole time fire-fighters (para 75). They share the same ranking structure, although the retained fire-fighters cannot progress beyond the rank of sub-officer. They are subject to the same strict discipline. They are covered by the same legislation. Their job descriptions are identical until they get to item 6 (of which more below).
However, the retained fire-fighters have different working patterns from the whole-timers. The whole-timers work a “very structured shift system of 42 hours per week with overtime” (para 28). The part-timers commit themselves to regular weekly attendance, of two to three hours, for training and drill. They also commit themselves to being on call for a set number of hours per week, varying from 84 to 156 hours. They are required to be able to attend at the fire-station within 5 minutes of being called out. The Tribunal found that the “part of the retained fire fighters’ job role which is . . . virtually unique in our experience is the ad hoc demand led nature of the role of attending call outs to emergency situations” (para 31), although they thought that the coast guard and life boat services might be comparable. The different working patterns are also reflected in different packages of pay. The whole-timers have a conventional salary with overtime structure. The part-timers have a more complicated arrangement, including three main features: an initial ‘retaining fee’, payment for their regular routine working, and payments for being called out. The Tribunal concluded that “because of the many differences . . . and the many special features of the working patterns as set out above, the Applicants are indeed employed under a different type of contract.” (para 142) They also found that there were good reasons for these differences and that it was reasonable for the employer to treat the employees differently on the ground that they had a different type of contract (para 143).
The Court of Appeal, however, accepted the appellants’ argument on the construction of regulation 2(3). In my opinion they were correct to do so. Regulation 2(3)(f) cannot be designed to allow employers to single out particular kinds of part-time working arrangements and treat them differently from the rest. The list in regulation 2(3) is clearly designed to define different categories of working relationship, within which part-time and full-time workers are to be regarded as comparable but between which they are not. Each category therefore contemplates the possibility of both full-time and part-time workers in that category. Thus the categories are designed to be mutually exclusive. It is accepted by all that categories (a) to (e) are indeed exclusive. But the respondents argue that category (f) is different.
….
These purely linguistic considerations are reinforced by the purpose of the regulation. It is there only to provide a threshold to require the comparison between full and part-time workers to take place. Regulation 5 then provides, as we shall see, for a sensible appreciation of what is and is not less favourable treatment. It also allows for differences in treatment to be objectively justified. Part-time employment is inevitably different from full-time employment in a number of ways, yet the purpose of the PTWR is to secure that it is treated equitably. If the threshold of comparability is set too high this can only apply in the most straightforward of situations, for example, where full-timer and part-timer work in exactly the same way but one for, say, 40 hours a week and the other for, say, 20 hours a week. Yet the watchword of the Directive was flexibility in meeting the needs of both employers and workers. Particular workplaces may wish to arrange the pattern of part-time working differently from that of full-time working to suit their particular needs. There is nothing unusual in employing people who are called upon as and when needed. A good example is the judicial system, which in England and Wales makes substantial use of part-time workers who are remunerated on a daily, fee-paid basis. Rather like the retained fire-fighters, these part-timers commit themselves to attending a minimum amount of training when required to do so and to undertaking a minimum amount of judicial sitting when invited to do so. The draftsman clearly foresaw that these part-time members of the judiciary would otherwise fall within the PTWR because he expressly excluded them by regulation 17.
………….. For these reasons, essentially the same as those given by Maurice Kay LJ in the Court of Appeal, I would hold that retained and whole-time fire-fighters are employed under the same type of contract for the purpose of regulation 2(4)(a).
The same or broadly similar work?
The “main purpose of the job” of both retained and whole-time fire-fighters in the Kent Fire Brigade is:
“1. To save life.
To protect property from fire and the effects of fire.
To render humanitarian [and special] services.
To assist in safeguarding the environment.
To assist in ‘Making Kent Safer’ by advising and educating the general public and participating in locally organised events.”
The first five items in their “main duties and responsibilities” are also the same:
“1. Respond immediately to all emergency calls.
2. Regularly check, test and maintain all fire appliance and station equipment, thereby ensuring its readiness for use.
3. Regularly attend and participate in practical drills, exercises, lectures and other forms of training ensuring that a high personal standard of practical and technical expertise is maintained.
4. Operate as an effective team member at all times and maintain the high level of fitness necessary.
5. Acquire and maintain a good knowledge of special risks, potential hazards, water supplies and fixed installations within the Fire Station area.”
Thereafter, item 6 of the retained fire-fighter’s list says only that they must “carry out any other duties as directed by supervisory officers”. Whole time fire-fighters have these three items:
“6. Assist with the fire safety workload of the Brigade by becoming familiar with the relevant legislation and carrying out routine inspections and visits,provide advice for other organisations and the general public.
7. Comply with responsibilities in accordance with the Health and Safety at Work Act and the Fire Authority’s Health and Safety Framework to ensure own safety and that of other employees and persons who may be affected by their work.
8. Promote and support the principles of fairness at all times in accordance with the Fire Authority’s Policy Statement on Fairness at Work and other Brigade Fairness at Work policies and relevant legislation.”
In practice, the Tribunal found that “at the scene of the fire the actual job function carried out by all attending is effectively the same.” (para 7) The retained and whole-time fire-fighters were indistinguishable from one another. The first most senior fire-fighter at the scene assumes and remains in control. The main difference was that while the retained fire-fighters spent a high proportion of their time responding to emergencies, the proportion of the working week spent on this by whole-timers was much lower. Accordingly, the whole-timers spent much more of their time on “non-occurrence duties”, community fire safety work, such as home fire risk assessments, advising on installation of home fire detectors, attending local events and giving demonstrations. Although retained fire-fighters could do this sort of work, in practice they were never, or hardly ever, called upon to do so. They were not qualified to issue fire certificates. Hence the Tribunal concluded that “there are measurable additional job functions which are carried out by the whole-time fire fighter . . . and on that ground alone we would find that it is a fuller wider job than that of the retained fire fighter.” (para 152) They also found that because of differing entry standards, probationary standards, probationary training and ongoing training, “there are material differences in the ‘level of qualification and skills'” between retained and whole time fire-fighters (para 153). Putting together the “fuller wider role” and the “higher level of qualification and skills” they concluded that the two were not “engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience” for the purpose of regulation 2(4)(a)(ii) (para 154).
…………… However, while there are similarities between the two types of comparison, they are not the same. The sole question for the Tribunal at this stage of the inquiry is whether the work on which the full-time and part-time workers are engaged is “the same or broadly similar”. I do not accept the appellants’ argument, put at its highest, that this involves looking at the similarities and ignoring any differences. The work which they do must be looked at as a whole, taking into account both similarities and differences. But the question is not whether it is different but whether it is the same or broadly similar. That question has also to be approached in the context of regulations which are inviting a comparison between two types of worker whose work will almost inevitably be different to some extent.
In making that assessment, the extent to which the work that they do is exactly the same must be of great importance. If a large component of their work is exactly the same, the question is whether any differences are of such importance as to prevent their work being regarded overall as “the same or broadly similar”. It is easy to imagine workplaces where both full and part-timers do the same work, but the full-timers have extra activities with which to fill their time. This should not prevent their work being regarded as the same or broadly similar overall. Also of great importance in this assessment is the importance of the same work which they do to the work of the enterprise as a whole. It is easy to imagine workplaces where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks: the fact that they both do some of the same work would not mean that their work was the same or broadly similar. It is equally easy to imagine workplaces where the full-timers and part-timers spend much of their time on the core activity of the enterprise: judging in the courts or complaints-handling in an ombudsman’s office spring to mind. The fact that the full-timers do some extra tasks would not prevent their work being the same or broadly similar. In other words, in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.
In my view, looking at the extended reasons of the Tribunal as a whole, it is difficult to escape the conclusion that they saw themselves as conducting essentially the same exercise as that required by the Equal Pay Act. They acknowledged that the fire-fighters’ work at the fire ground was the same and said that they gave that factor high importance. But they failed to acknowledge the centrality of that work to the enterprise of the Fire Brigade as a whole. That centrality is demonstrated by the fact that in large areas of the country cover is provided only by retained fire-fighters. Nor did the Tribunal suggest that there was any qualitative difference in the work done by both at the fire ground. Special qualifications, which retained fire-fighters do not have, are needed to operate certain specialist equipment, but not all whole time fire-fighters have those qualifications either. The Tribunal’s reliance upon the higher qualification and skills of the whole-time fire-fighters was in connection with the further activities which they were called upon to carry out (para 155).
…………………..
I would not wish to rule out the possibility that, in certain cases, a less favourable term might be so well balanced by a more favourable one that it could not be said that the part-timers were treated less favourably overall. Nor would I wish to rule out the possibility that more favourable treatment on one point might supply justification for less favourable treatment on another. But in this case, even supposing it were to go back before a Tribunal, the question is unlikely to arise. The differences complained of are three: a different way of calculating sick pay which the Tribunal found to be less favourable (para 116); a lower hourly rate for additional duties (para 119); but above all, the exclusion of retained fire-fighters from the pension scheme, which again the Tribunal found would be less favourable treatment, at least in some cases (para 110). The Tribunal found it difficult to see any objective justification for these differences, and in their concluding remarks gave some encouragement to the industry to devise a simple pension scheme and a more equitable sick pay scheme. Although it would be open to a Tribunal hearing the case on remission to reach a different conclusion on consideration of the overall package, it is difficult at this stage to see how the differently structured pay package could justify total exclusion from the pension scheme or a sick pay scheme which is unrelated to the hours actually worked.
For those reasons, and those given by my noble and learned friend, Lord Hope of Craighead, with which I agree, I would allow this appeal and remit the case to the Employment Tribunal for reconsideration of the “same or broadly similar work” issue and any further issues which arise as a result of their conclusion on that.
Wippel v Pek
[2004] EUECJ C-313/02
In the first question the referring court is asking essentially whether a worker with a contract of employment, such as that in the main proceedings, under which hours of work and the organisation of working time are dependent upon quantitative requirements in terms of available work and are determined only on a case-by-case basis by agreement between the parties, comes within Directive 76/207 and the Framework Agreement annexed to Directive 97/81.
As regards Directive 76/207, such a contract of employment comes within the scope of that directive, as the Court has already held at paragraph 31 hereof. Accordingly, a worker with such a contract also comes within that directive.
Under Clause 2(1) of the Framework Agreement annexed to Directive 97/81, that agreement applies to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State. Under Clause 3(1), the term part-time worker refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.
…..Second question
In the second question the referring court is asking essentially whether, in circumstances where the national provisions themselves determine for part-time workers neither the hours of work nor the manner in which working time is to be organised, Clause 4 of the Framework Agreement annexed to Directive 97/81 and Articles 2(1) and 5(1) of Directive 76/207 must be interpreted as precluding another provision, such as Paragraph 3 of the AZG, which lays down a basic normal working time of 40 hours per week and 8 hours per day.
First, in regard to Clause 4 of the Framework Agreement annexed to Directive 97/81, under that provision, part-time workers are not to be treated less favourably as regards employment conditions than comparable full-time workers on the sole ground that they work part time unless different treatment is warranted on objective grounds.
Secondly, in regard to Articles 2(1) and 5(1) of Directive 76/207, it is settled case-law that national provisions discriminate indirectly against women where, although worded in neutral terms, they work to the disadvantage of a much higher percentage of women than men, unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of sex (see, in particular, Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 29; Case C-‘322/98 Kachelmann [2000] ECR I-7505, paragraph 23; and Case C-25/02 Rinke [2003] ECR I-8349, paragraph 33).
Accordingly, in order to provide a useful reply to the referring court, it must be ascertained whether application of Paragraph 3 of the AZG results, in regard to Clause 4 of the Framework Agreement annexed to Directive 97/81, in less favourable treatment of part-time workers in relation to comparable full-time workers and, in regard to Articles 2(1) and 5(1) of Directive 76/207, in a difference of treatment as between those two categories of workers.
In that regard the AZG, which transposed into national law the provisions of Directive 93/104, provides in Paragraph 3 thereof that the normal, that is to say the maximum, length of working time is 40 hours per week and 8 hours per day. Moreover, Paragraph 19d of the AZG defines part-time work as a situation in which the agreed weekly working time is less than the abovementioned statutory maximum working time.
…..According to the same provisions, such harmonisation at Community level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – and adequate breaks and by providing for a ceiling on the duration of the working week (see Case C-303/98 Simap [2000] ECR I-7963, paragraph 49; BECTU, paragraph 38, and Jaeger, paragraph 46). That protection constitutes a social right conferred on each worker as an essential minimum requirement in order to ensure the protection of his security and health (BECTU, paragraph 47).
…………..Accordingly, Paragraph 3 of the AZG does not result, in regard to Clause 4 of the Framework Agreement annexed to Directive 97/81, in less favourable treatment of part-time workers in relation to comparable full-time workers or, in regard to Articles 2(1) and 5(1) of Directive 76/207, in a difference of treatment as between those two categories of workers.
In the light of the foregoing, the reply to the second question must be that Clause 4 of the Framework Agreement annexed to Directive 97/81 and Articles 2(1) and 5(1) of Directive 76/207 must be interpreted as not precluding a provision, such as Paragraph 3 of the AZG, which lays down a basic maximum working time of 40 hours per week and 8 hours per day and which thus also regulates maximum working time and the organisation of working time in regard to both full-time and part-time workers.
Third question
By the third question the referring court is asking essentially whether, on the one hand, Clause 4 of the Framework Agreement annexed to Directive 97/81 and, on the other, Articles 2(1) and 5(1) of Directive 76/207 must be construed as precluding a contract for part-time employment, such as that at issue in the present proceedings, under which weekly working time and the organisation of working time are not fixed but are dependent on quantitative requirements in terms of the work to be performed, which are to be determined on a case-by-case basis, with the workers concerned having the choice to accept or refuse such work.
That question is raised in the circumstances of the main proceedings in which, as is clear from the file, Ms Wippels contract of employment ought in her view to have contained a clause stipulating a fixed weekly working time with a predetermined salary, whether the person concerned had or had not worked for the whole of that working time.
In that regard, first, as has already been pointed out at paragraph 42 hereof, Clause 4 of the Framework Agreement annexed to Directive 97/81, in regard to employment conditions, precludes part-time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part-time unless different treatment is warranted on objective grounds.
Secondly, in accordance with the settled case-law cited at paragraph 43 hereof concerning Articles 2(1) and 5(1) of Directive 76/207, national provisions discriminate indirectly against women where, although worded in neutral terms, they operate to the disadvantage of a much higher percentage of women than men, unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of sex. The same is true of a contract of employment such as that in the main proceedings.
The prohibition on discrimination enunciated in the abovementioned provisions is merely a particular expression of a fundamental principle of Community law, namely the general principle of equality under which comparable situations may not be treated differently unless the difference is objectively justified (see Case C-‘381/99 Brunnhofer [2001] ECR I-4961, paragraph 28, and Case C-320/00 Lawrence and Others [2002] ECR I-7325, paragraph 12). That principle can therefore apply only to persons in comparable situations (Joined Cases C-‘122/99 P and C-125/99 P D and Sweden v Council [2001] ECR I-4319, paragraph 48).
Accordingly, it must first be examined whether a contract of part-time employment according to need, such as that at issue in the main proceedings, results in less favourable treatment of a worker such as Ms Wippel than of full-‘time workers in a situation comparable to hers within the meaning of Clause 4 of the Framework Agreement annexed to Directive 97/81.
In that regard, Clause 3 of the Framework Agreement provides guidelines for determining what is a comparable full-time worker. Such a person is defined as a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills. Under the same clause, where there is no comparable full-time worker in the same establishment, the comparison is to be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.
A part-time employee working according to need, such as Ms Wippel, works under a contract which stipulates neither the weekly hours of work nor the manner in which working time is to be organised, but it leaves her the choice of whether to accept or refuse the work offered by P&C. The work is remunerated by the hour only for hours actually worked.
A full-time worker works under a contract which fixes a working week of 38.5 hours, fixing the organisation of the working week and salary, and which requires him to work for P&C for the whole working time thus determined without the possibility of refusing that work even if the worker cannot or does not wish to do it.
Under those circumstances, the employment relationship referred to in the preceding paragraph hereof differs, as to subject-matter and basis, from that of a worker such as Ms Wippel. It follows that no full-time worker in the same establishment has the same type of contract or employment relationship as Ms Wippel. It is apparent from the file that in the circumstances of the main proceedings, the same is true of all the full-time workers, in respect of whom the applicable collective agreement provides for a working week of 38.5 hours.
In the circumstances of the main proceedings, there is therefore no full-time worker comparable to Ms Wippel within the meaning of the Framework Agreement annexed to Directive 97/81. It follows that a contract of part-time employment according to need which makes provision for neither the length of weekly working time nor the organisation of working time does not result in less favourable treatment within the meaning of Clause 4 of the Framework Agreement.
Secondly, in regard to Articles 2(1) and 5(1) of Directive 76/207, it is apparent from the file that, according to Ms Wippel, the situations of the workers to be compared are, first, the situation of part-time employees working according to P&Cs needs whose contracts of employment make provision neither for the length of weekly working time nor for the organisation of working time and, secondly, the situation of all P&Cs other workers, both full-time and part-time, whose contracts of employment make such provision.
Given that the latter category of workers has the obligation to work for P&C for a fixed weekly period, without the possibility of refusing that work should the workers concerned not be able or not wish to work, it is sufficient to note that, for the reasons set out at paragraphs 59 to 61 hereof, the situation of those workers is not analogous to that of part-time employees working according to need.
Accordingly, in circumstances such as those of the main proceedings, in which the two categories of workers are not comparable, a contract of part-time employment according to need which makes provision for neither the length of weekly working time nor the organisation of working time does not constitute an indirectly discriminatory measure within the meaning of Articles 2(1) and 5(1) of Directive 76/207.
In the light of all the foregoing, the reply to the third question must be that Clause 4 of the Framework Agreement annexed to Directive 97/81 and Articles 2(1) and 5(1) of Directive 76/207 must be interpreted as meaning that, in circumstances where all the contracts of employment of the other employees of an undertaking make provision for the length of weekly working time and for the organisation of working time, they do not preclude a contract of part-time employment of workers of the same undertaking, such as that in the main proceedings, under which the length of weekly working time and the organisation of working time are not fixed but are dependent on quantitative needs in terms of work to be performed determined on a case-by-case basis, such workers being entitled to accept or refuse that work.
In the light of the replies to the second and third questions there is no need to reply to the fourth question.
Catholic University School -v- Dooley & Anor (further)
[2010] IEHC Dunne J.
The key issue to be determined in these proceedings is whether the determination of the Labour Court made in April of 2009, in respect of the claimants respective claims to the effect that the claimants are entitled to a contract on terms and conditions pro rata with that of his comparator is correct. The Rights Commissioner in her decision on the claimants claim under the Part Time Work legislation, found that the claimant, Mr. Dooley, as a part time worker was treated less favourably than a comparable full time worker. She found that the respondent employer was in breach of s. 9 of the Part Time Work Act, and required the respondent to ensure that the claimant’s pay (i.e. salary scale and incremental progression, payment of qualification allowances and all other conditions of employment) were no less favourable (on a pro rata basis where appropriate) than those of the whole time comparator from that date. She found that in relation to the incremental salary scale the respondent was required to operate the same type of salary scale for the claimant as that for the comparator including incremental progression. In relation to the claimant’s access to the Department of Education’s superannuation scheme, she found that the respondent was to ensure that the claimant was to become a member of the scheme and to make the same employee contributions as the comparator. It is that decision that was subject to minor variations affirmed by the Labour Court. There was also a claim under the Fixed Term Work Act, but for the purpose to these proceedings I do not think it is necessary to deal with that aspect of the matter to any extent.
The Appropriate Comparator
There is no dispute between the parties that a claimant is entitled to choose their own comparator. The question is whether the comparators chosen by the claimants are appropriate. The claimants have sought to compare themselves with a permanent teacher on an incremental scale whose salary is paid by the Department of Education. It is contended on behalf of the school that this is not a correct or appropriate comparator. The school contends that the appropriate comparator is a privately paid teacher employed by the respondent directly. There are a number of such teachers employed by the school. The first point made on behalf of the school is that the chosen comparator has to be in the same type of employment contract or employment relationship. There was no issue as to the teaching ability of either of the claimants and that in that regard each of the claimants presents identically by comparison to their chosen comparators. However, the principal point made on behalf of the school is that there is a difference between the contractual arrangements of the claimants and their chosen comparators and that this is a relevant feature. The school contends that the appropriate comparator should be a full time privately paid teacher. Reference was made in that regard to two members of staff employed by the school who are permanent full time privately paid teachers. It was submitted that the claimants had been treated equally and no less favourable than those employees or any other privately paid teacher paid by the school.
Although it was accepted by the school that the claimants are entitled to choose their comparator, it was submitted that they could not be disingenuous in their choice of comparator. The context in which the comparator was employed had to be considered. Indeed it was suggested that it might be appropriate to consider other teachers in a similar employment relationship i.e. someone from within the private sector not the State sector. Reference was made to the decision of the Supreme Court in the case of National University of Ireland v. Ahearn [2005] 2 IR 577. That was a case that considered the provisions of s. 2(3) of the Anti-Discrimination (Equal Pay) Act 1974. An employee under the provisions of that legislation was entitled to compare themselves to another employee in seeking to establish that they were being paid unequal pay for like work. McCracken J. at p. 583 of the judgment in that case commented:-
“The question at issue here is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential. This involves a different approach to the position of the comparators, and in particular of the context in which they were employed. I accept the arguments on behalf of the applicant that for this purpose the Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators, namely the remaining switchboard operators.”
Therefore it was submitted that one had to consider the context in which the chosen comparator was employed not in isolation but also in the context of other teachers on the staff who where not chosen as comparators namely, the other privately paid teachers. In this context, particular emphasis was placed by the school on the definition of employer within the meaning of the Protection of Employees (Part Time Work) Act 2001, which is set out above and in particular that part of the definition which states “the person who under a contract from his employment referred to in para. (b) of the definition of contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer”. It was suggested therefore that having regard to the definition of employer in the 2001 Act as set out above that the chosen comparator was not even employed by the same employer as the claimants. In emphasising this particular point, it was noted that the school has no hand, act or part in the negotiations between the teachers or their union and the Department. Criticism of the decision of the Labour Court was based on the fact that the Labour Court allowed the claimants to compare their contract with the school with the contract agreed between two separate parties, namely, the chosen comparators and the Department of Education and Science. Reference in this context was made to a decision of the Employment Appeals Tribunal (Sullivan v Department of Education 1998 E.L.R. 217) in relation to a claim in respect of an alleged unlawful deduction within the meaning of the Payment of Wages Act 1991. It was found in the particular case that there were sufficiently close ties and control exercised by the Department of Education in relation to individual teachers and that therefore the Department was the employer for the purpose of the Payment of Wages Act 1991. On that basis it was argued that the Department could be deemed to be the employer in this context. It was pointed out that the Department can determine the conditions applicable to State paid teachers without any input from the school.
……………..
A further authority opened in relation to this particular issue was the case of Minister for Finance v. Una McArdle [2007] 18 E.L.R. 165 a decision of the High Court (Laffoy J.). That case related to a person employed as a lab technician with the State Laboratory on a fixed term contract of one year. It was found by Laffoy J. in refusing the reliefs sought by the Minister for Finance that “the defendant was treated less favourably than her chosen comparator in relation to eligibility for the vacancy and that the difference in treatment was not objectively justified. The defendant was entitled to rely on an established civil servant as a comparator as well as the same conditions of employment as the comparator including pension entitlements and access to a career break but excluding tenure as an established Civil servant.”
In the course of her judgment in that case, Laffoy J. at p. 8 of 14 stated:-
“The Labour Court summarised the combined effect of sub-ss. (1) and (2) of s. 5 as being that a comparable permanent employee for the purposes of the Act the permanent employee employed by the same employer as the complainant, who is engaged in like work with the complainant. The Labour Court followed the decision of this Court (O’Sullivan J.) in Wilton v. Steel Company of Ireland [1999] E.L.R. 1, where it was held that, for the purposes of the Anti Discrimination (Pay) Act, 1974, an employee is entitled to choose his or her comparator. Apropos of the position of the defendant, the Labour Court stated that it was accepted that she was engaged at all material times in doing the same job as permanent civil servants who were designated as established, and it was also accepted that there were no other civil servants employed by the plaintiff engaged in like work with her, who were designated unestablished. The Labour Court found that the defendant and a number of established civil servants performed the same work under the same or similar conditions and each was interchangeable with the other in relation to work. Therefore, the Labour Court found that the established civil servants were comparable permanent employees in relation to the defendant within the meaning of s. 5. On that basis, the Labour Court concluded that the defendant, as a fixed-term employee, was entitled to the same conditions of employment as her nominated comparators who were established civil servants (except, of course, in relation to the duration of her contract).
……
I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State Laboratory, who was engaged in like work with the defendant was a ‘comparable permanent employee’ for the purposes of s. 6 because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in s. 5 for a comparable permanent employee vis-à-vis the defendant as a fixed-term employee.”
Transposition of the European Directive
I now wish to deal briefly with the issues raised in regard to the transposition of the Directive. As noted previously Clause 4 of the Fixed Term Workers Directive states:-
“In respect of employment conditions, fixed term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed term contract or relation unless different treatment is justified on objective grounds.”
The Part Time Workers Directive is in similar terms as it provides:-
“In respect of employment conditions, part time workers shall not be treated in a less favourable manner than comparable full time workers solely because they work part time unless different treatment is justified on objective grounds.”
It was argued on behalf of the school that it is clear from the Directives that in order to be actionable the less favourable treatment must be solely because of the part-time or fixed term nature of the work. It is contended that neither the 2003 Act nor the 2001 Act fully implement those provisions of the Directive. If one looks, for example, at s. 9(1) of the Protection of Employees (Part Time Work) Act 2001, it provides:-
“Subject to subsection (2) and (4) and section 11(2) a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”
Section 6(1) of the Protection of Employees (Fixed Term Work) Act 2003, is in similar terms. It will be noted that the word “solely” is omitted from the provisions of the Act. it is the omission of that word that has led to the argument on behalf of the school that the State has failed to properly transpose the Directive in to Irish law.
….Counsel on behalf of the school had pointed out that any less favourable treatment in this case is not on the grounds of the fixed term or part-time status of the employee and that the less favourable treatment was due to the different contractual arrangements between the claimants and their chosen comparators who are paid by a third party, namely the Department.
“So far as the justification on economic grounds is concerned, it should be noted that an employer cannot justify discrimination…solely on the ground that avoidance of such discrimination would involve increased costs.
……Finally, I should refer briefly to the decision in Del Cerro Alonso v. Osakidetza-Servicio Vasco De Salud Case C-307/05. That case considered the interpretation of the concept of objective grounds. In the course of its decision the court stated:-
“The court held that that concept of “objective reasons” must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed term employment contracts. Those circumstances may result in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a member state….
The same interpretation is necessary, by analogy, regarding the identical concept of “objective grounds” within the meaning of Clause 4(1) of the Framework Agreement.
In those circumstances, that concept must be understood as not permitting a difference in treatment between fixed term workers and permanent workers to be justified on the basis that the differences provided for by a general, abstract national norm, such as a law or collective agreement.
On the contrary, that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”
Relying on that authority, counsel on behalf of the claimants has strongly submitted and urged upon the court that the school has failed to establish that the unequal treatment in this case responds to genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.
Decision
The Appropriate Comparator
……
I have considered the authorities that were opened to me in the course of this hearing. It is interesting to note in the case of Sullivan v. Department of Education, a case before the Employment Appeals Tribunal, that there the respondent in those proceedings was the Department of Education although the claimant was employed by a school. The issue in that case related to the recognition of a degree allowance and she was a Department paid teacher. None of the cases opened to me in the course of the hearing involve a situation where the contract of employment between the employer and the employee is one in which the employer in respect of the chosen comparators has no hand, act or part in fixing important terms of the contract i.e. terms and conditions, including remuneration and superannuation.
In reaching its conclusions on this issue, the Labour Court found:-
“In the instant case, there is no dispute as to like work as between the claimant and his chosen comparator. On the above criteria as set out by Laffoy J., in the McArdle case, although there are some full-time privately funded teachers in the school, the claimant is entitled to choose a full-time department funded teacher as a comparator.”
…………….There is no doubt that the school is the employer of the claimants. Bearing in mind the decision in O’Keeffe v Hickey, it appears that the school is also the employer of the chosen comparators for the purpose of issues of vicarious liability. That decision highlights the unusual tripartite relationship between the Department funded teacher, the Department and the school. However, the provisions of s. 24 of the Education Act 1998 are also of importance. S. 24 (3) makes it clear that the task of appointing teachers funded by the State falls on the board of management of a school. S. 24 (5) of the Act makes it clear that the terms and conditions of teachers funded by the ……………..
In all of those circumstances, the tribunal does not accept that the Department is simply a “paying agent”, which simply pays out the money at the request of the State School concerned. In relation to the question of the hours worked for which a teacher qualifies for his or her monthly salary, the school principal has a role in terms of certifying the hours worked. However in respect of all teachers, when it comes to the question of qualification allowances, these aspects of the teacher’s salary involve no role for the school and are something which go to the teachers particular qualification and are a constant. In fact the school principal describes him or herself as “employer” on the monthly certification form at the form is not conclusive.”
…………………………..
Although the chosen comparators appear to come within the definition of comparable full-time employees as defined in the legislation, I have come to the conclusion that because of the fact that the Minister determines the terms and conditions of the Department funded teacher and the school determines the terms and conditions of the privately paid teachers, the Labour Court has fallen into error in finding that the claimants were entitled to choose a full time Department funded teacher as a comparator. The school has no hand, act or part in determining the salary and other terms and conditions of the Department funded teacher. In determining the employer for the purpose of the legislation in relation to agency workers, the legislation expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is in an analogous position. I do not accept that the chosen comparators have the same type of employment contract or relationship as the claimants with the school. To that extent, it seems to me that the Department has to be viewed as the employer of the chosen comparators for the purpose of the legislation.
Objective justification
I want to make some very brief observations on this issue. The school in this case has argued that the different contractual and/or employment status of the chosen comparators as compared to the claimants constitutes objective justification for a less favourable treatment which has occurred as between the claimants and their chosen comparators. The Labour Court in the course of its determination stated that “the objective justification relied upon by the school appears to be that the School cannot afford to pay the cost associated with affording the claimants equal treatment.” There is an abundance of authority to which reference has already been made to the effect that the issue of cost cannot justify unequal treatment. I have already referred to the decision in Hill & Stapleton v. Revenue Commissioners & Department of Finance and to the decision of the ECJ in Jorgensen above. It seems to me to be very clear and obvious that the purpose of the Directive and the legislation transposing the Directive into Irish law would be defeated if cost alone was accepted as a defence because as pointed out by the Labour Court “in every case in which it is necessary to implement principles of equality there is a cost to the employer”.
As I have already mentioned, part of the argument in this case centred on the omission of the word “solely” from the legislation and in particular from the provisions of section 12 and section 7 referred to above. An argument was made on the behalf of the school to the effect that the omission of that word meant that the directors had been improperly transposed into Irish law. I do not accept that argument on the part of the school and I accept the arguments of counsel on behalf of the claimants in that regard. It is important to remember the purpose of the framework agreement, which has been put into effect by the directive and implemented by the legislation referred to in these proceedings. If one considers Council directive 1999/74/EC in relation to fixed term work it will be seen that its purpose is stated to be to:
“(a) improve the quality of fixed term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships.”
In the part time work directive it was stated as follows:
“Whereas the signatory parties wished to conclude a framework agreement on part-time work setting out the general principles and minimum requirements of part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers and to group and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike.”
In other words, the purpose of the Directives and the legislation implementing the Directives is to prevent discrimination against workers by reason of their status as fixed term workers or part time workers.
I accept that the test to be applied in considering a defence of objective justification is that set out in the case of Del Cerro Alonso referred to above, namely, that the unequal treatment responds to a genuine need; is appropriate for achieving the objective pursued and is necessary for that purpose. However, in the light of the finding as to the chosen comparator, it is not necessary to further address the arguments in this area.
Conclusion
As I have found that the Labour Court fell into error in relation to the selection of the chosen comparators, I will hear further from the parties as to the effect of that finding.
Helen Thornton v Galway-Mayo Institute of Technology
RP666/2003
Employment Appeals Tribunal
20 April 2005
[2005] 16 E.L.R. 229
Determination
Having given this matter careful consideration the tribunal has decided by majority the following:
The claimant commenced employment with the respondent on September 15, 1994. She received notice of termination of employment on June 11, 2003. Her employment was terminated on the grounds of redundancy.
It is common case that the claimant is entitled to redundancy consisting of 19 weeks’ remuneration calculated at the rate of her normal weekly remuneration.
The claimant was employed as a “pro-rata part-time assistant lecture”. She was classed as a part-time member of staff and held a contract but unlike her full-time staff counterpart, who was required to teach 18-hours a week, the claimant’s contract contained a clause whereby the claimant’s contract hours “could go up as well as down from year to year”. The claimant’s salary in any year was calculated pro-rata or pro tanto the hours allocated to her with reference to the salary of her 18-hour full time counterpart.
The respondent contends that the normal weekly remuneration of the claimant is to be calculated with reference to the date of the redundancy notice. The claimant does not contest this but points out (i) that there was, in fact, no redundancy noticed served and argues (ii) that, as the redundancy came about due to a fall-off in demand for German language tuition over a period of time, normal weekly remuneration should be determined pro tanto the average number of hours worked per week before redundancy began to take and reduce the claimant’s salary.
It is unnecessary in this case for the tribunal to consider the claimant’s argument because the tribunal takes the view that the claimant’s normal weekly remuneration is the weekly remuneration to which she was entitled in law at the date of the redundancy. On December 20, 2001, by virtue of the Protection of Employees (Part-Time Work) (Commencement) Order (S.I. No.636 of 2001), *231 the claimant’s employment became subject to the Protection of Employees (Part-time Work) Act 2001 (No.45 of 2001), implementing Directive 97/81 concerning the Framework Agreement on Part-Time Work.
Section 9 of the 2001 Act provides:
“… a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”
Section 10 provides the extent to which any of the conditions of employment provided to a part-time employee shall be related to the proportion which the normal hours of works of that employee bears to the normal hours of work of the comparable full-time employee.
Section 14 provides that a provision in an agreement shall be void in for far as it purports to exclude or limit the application, or is inconsistent with, any provision in the Act.
It follows that the clause in the claimant’s contract whereby her hours could go up as well as down, became void in so far as it could cause her to suffer a reduction in pay since there was no similar clause in the contract of her comparable full-time counterpart which could reduce the latter’s pay. This clause became void on December 20, 2001, as a discrimination between the part-time worker and her comparable counterpart.
It follows that the reduction in the claimant’s weekly remuneration caused by her reduction in hours from 11 to 5 in September 2002 was unlawful. Under European law as implemented in Ireland, this tribunal, in assessing her redundancy, is obliged, to give her an effective remedy for her substantive rights under the Directive (see Magorrian and Cunningham v EHSSB and DHSS Case C-246/96 [1997] E.C.R. I-7153).
It follows that the claimant is entitled to redundancy calculated at €430.23 per week plus €24.05 overtime.
Mr Redmond, in his dissenting view, found the claimant’s pay in August 2002 be used for the calculation of her redundancy lump sum payment, under the Redundancy Payments Acts 1967–2003 should be as submitted by the claimant and calculated as follows:
Weekly remuneration × years service × Statutory entitlement + one week pay
The tribunal is unanimous in being satisfied that the employment of the claimant was terminated by reason of redundancy. Accordingly, the tribunal allows the apppeals under the Redundancy Payments Acts 1967–2003 and award the claimant statutory redundancy lump sum payment based on the following criteria: *232
Claimant’s date of birth: November 19, 1966; employment commenced: September 15, 1994; employment ceased: August 31, 2003; gross weekly wage: €454.28.
Marie Inoue v NBK Designs Ltd
EED0212
Labour Court
25 November 2002
[2003] 14 E.L.R. 98
Background
NBK Designs Ltd (the respondent) carries on the business of providing architectural, interior design, and project management services. Ms Marie Inoue (the complainant) was employed by the respondent as a part-time secretary/personal assistant between October 2000 and March 2001, when she was dismissed.
The complainant is a lone parent with a school going child. She worked between 9.30 a.m. and 2.30 p.m. on Monday to Friday. Another part-time employee carried out the same duties as those of the complainant in the afternoons commencing at 2 p.m. During the course of 2001 the respondent decided to amalgamate the two part-time positions into a single full-time post. The complainant was asked to take on this full-time job. She was unable to accept this offer by virtue of her childminding responsibilities. The complainant was then given four weeks’ notice of dismissal. A Labour Court hearing took place on October 15, 2002.
Issue in dispute
It is the complainant’s case that she was dismissed in circumstances amounting *100 to discrimination contrary to section 8 of the Employment Equality Act 1998 (the Act). Specifically, the complainant contends that the requirement to work full-time is a condition of employment which disadvantages significantly more women than men and significantly more people of her marital and family status than people of a different marital and family status. This, it is claimed, amounts to indirect discrimination on gender, family status and marital status grounds.
The respondent contends that it is a matter for the complainant to produce evidence to show that the decision complained of bears significantly more heavily on either women or people of her martial and family status. The respondent further contend that even if a prima facie case of discrimination is made out (which is denied) the decision to amalgamate the two part-time jobs was appropriate and necessary and can be justified by objective factors unrelated to the complainant’s sex, marital or family status.
The facts
The material facts as admitted or as found by the court are as follows.
The respondent carries on business from office premises in Dublin. At the time material to this case the respondent had seven employees. There were three principals in the business, two of whom were Architects and directors of the company. The third principal is company secretary.
The complainant was recruited in October 2000 as a secretary/personal assistant and her duties involved assisting the directors of the company. This involved general secretarial duties including arranging meetings, typing, and answering incoming telephone calls. The complainant normally finished work at 2.30 p.m. Another part-time employee commenced work at 2 p.m. The complainant would use this overlapping half-hour to discuss the work that was outstanding with her colleague, which she would then hand over to her.
It appears that an important part of the complainant’s duties involved taking telephone messages for members of staff whose jobs regularly required them to be out of the office. It is the complainant’s recollection, which the court accepts, that she would take approximately 10 telephone messages in a typical day. These messages would be routine and would be little more than noting the identity of the caller, the purpose of the call and passing on a request to the appropriate person to return the call.
The respondent never had cause to complain about the way in which the complainant discharged her duties. For her part, the complainant was extremely happy in the employment and found her job fulfilling and rewarding. Over the period in which the complainant was employed the respondent’s business grew significantly and this required the principals of the business to take on an increasing amount of project management and site supervisory work. In early 2001 the principals of the business came to the view that splitting the secretarial/personal assistant role between two people was unsatisfactory. They felt it would *101 be better for the business if one person had this function throughout the day.
In the course of evidence the court was told of what could best be described as inconveniences experienced by the principals of the respondent arising from the job-sharing arrangement. These matters were not discussed with the complainant nor were any proposals put forward which could have overcome whatever difficulties existed.
In February 2001 a firm decision was taken to abolish the two part-time posts and create one full-time post. At the time this decision was taken the respondent was aware that the complainant could not take on full-time employment. The complainant was nonetheless asked to work full-time. When she declined she was given notice of dismissal.
The law
In a line of authorities starting with Bilka-Kaulhaus GmbH v Karin Weber von Hartz Case 170/84 [1986] ECR 1607 the ECJ has held that indirect discrimination arises where a requirement in relation to employment bears significantly more heavily on persons of one gender relative to that of persons of the other gender. This principle of European law was adopted in this jurisdiction by the Supreme Court in Nathan v Bailey Gibson [1998] 2 IR 162. In his judgment, with which the other members of the Court agreed, Hamilton CJ held as follows:
[A] requirement relating to employment or membership of a body which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher may amount to indirect discrimination even when a person is obliged to comply therewith for reasons other than a person’s sex or marital status.
The position thus enunciated is now given statutory expression in the Employment Equality Act 1998. Section 22(1) of that Act, as amended by Regulation 4(b) of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2000 provides as follows:
22.—
(1) Where a provision (whether in the nature of a requirement, practice or otherwise) which relates to any of the matters specified in paragraphs (a) to (e) of section 8(1) or to membership of a regulatory body—
(a) applies to both A and B,
(b) is such that the proportion of persons who are disadvantaged by the provision is substantially higher in the case of those of the *102 same sex as A than in the case of those of the same sex as B, and
(c) is not appropriate and necessary and cannot be justified by objective factors unrelated to A’s sex,
then for the purpose of this Act, A’s employer or, as the case may be, the regulatory body shall be regarded as discriminating against A on the gender ground contrary to section 8 or, as the case may be, section 13.
Subsection (4) of section 22 provides as follows:
(4) The reference in subsection (1)(b) to persons who are disadvantaged by a provision includes not only those who are so disadvantaged because of their sex but also those who are so disadvantaged by reference to their marital status or family status.
The effect of this provision is to bring within the ambit of discrimination on the gender ground situations where, as in the present case, the disadvantage alleged arises not from a person’s gender per se, but from the combination of their gender, family status and/or their marital status.
The term ‘family status’ is defined at section 2(1) of the Act as meaning responsibility:
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) [not relevant]
Issues for decision
There are two questions which arise for determination in this case. There is first the question of whether the requirement to work full-time is one which can be complied with by a significantly higher proportion of men than women and/or those of a different marital or family status to that of the complainant. If the answer to that question is in the affirmative the requirement is prima facie discriminatory. Secondly, if the answer to the first question is in the affirmative the court must consider if the requirement is appropriate and necessary and can be justified by objective factors unrelated to the complainant’s sex.
Indirect discrimination
The respondent submitted that there is an onus on the complainant to prove in evidence that the circumstances contemplated by section 22(1)(b) of the Act exist in relation to the impugned provision. Counsel on behalf of the complainant submitted that the unequal effect of a requirement to work full-time is so obvious that it should not require formal proof. Counsel also referred to the wealth of authorities in the jurisprudence of the ECJ, which are based on an *103 acceptance of the proposition that significantly more women than men are engaged in part-time employment. Thus, counsel submitted, the abolition of a part-time post in favour of a full-time post would impact to a significantly disproportionate degree on women relative to men. It was also submitted that it is self-evident that a requirement to work full-time bears more heavily on women with childminding responsibilities, and in particular on those who are lone parents. Counsel nonetheless undertook to furnish the court with appropriate extracts from the Labour Force Survey, which would illustrate the points made.
The question of whether an expert tribunal (such as the court) can reach conclusions by relying on the knowledge and experience of its members, without any evidence being adduced on the point, does not appear to have been previously considered by this court. However that question has been considered in the U.K. and Northern Ireland.
In Price v Civil Service Commission [1977] IRLR 291, which is a judgment of the Employment Appeals Tribunal, the following passage appears in the headnote:
In determining whether the proportion of women who can comply with the condition as to age limits is considerably smaller than the proportion of men who can do so, within section 1(1)(b)(i), it is proper to take into account the current usual behaviour of women, as observed in practice, putting on one side behaviour and responses that are unusual or extreme.
Later, in Perera v Civil Service Commission [1982] IRLR 147 Browne-Wilkinson J, giving the judgment of the Employment Appeals Tribunal in England, stated as follows:
However, there remains the root problem that, by any normal statistical standards, the only statistical evidence laid before the Industrial Tribunal is in fact inadequate. It is based on a very small sample from a very small number of non-typical offices. Is it therefore right to hold that the complainant has proved his case? We have this very difficult point. On the one hand, the burden is on the complainant to prove his case and, viewed in isolation, the statistics produced do not prove it. On the other hand it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the United States has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of section 1(1)(b) are satisfied.
*104 The passage just quoted is adopted by the Employment Appeals Tribunal in Clymo v Wainsword London Borough Council [1989] IRLR 241.
In Briggs v North Eastern Education and Library Board [1990] IRLR 181 the Court of Appeal in Northern Ireland considered this question in an appeal against the findings of an industrial tribunal. In that case the parties had agreed that the Tribunal should rely on its own knowledge and experience. On that account the Court of Appeal found it unnecessary to express a concluded opinion on whether a tribunal, in the absence of agreement of the parties, can be guided by their own experience. Sir Brian Hutton LCJ stated that position thus:
[I]t is unnecessary for us to express a concluded opinion on whether a Tribunal, in the absence of agreement by the parties, can make a decision in relation to Article 3(1)(b)(iii) by relying on their own knowledge and experience without any evidence being adduced before them on that point. But we are in agreement with the approach taken in the English cases that Tribunals are not debarred from taking account of their own knowledge and experience and that it is most undesirable that, in all cases of alleged indirect discrimination, elaborate statistical evidence should be required before the case can be found proved.
The procedures of this court are intended to facilitate parties whether they appear represented by solicitor or counsel, industrial relations practitioners or unrepresented, alike. It would be alien to the ethos of this court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the court by drawing on their own knowledge and experience.
Whilst there are many cases in which the unequal effect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the court is satisfied that this is not such a case.
In the instant case the complainant has submitted extracts from the Labour Force Survey which show the participation rates in full-time and part-time employment, broken down by gender and family status.
The statistics submitted were forwarded to the respondent for comment. In response it submitted that this survey does not support the case made by the complainant since the results indicate that there are almost as many women working full-time as there are working part-time. It further contends that a similar situation pertains in relation to women who have young children and women who do not.
The court does not accept that these aspects of the survey can avail the respondent. The comparison for the purpose of section 22 of the Act is not between one category of women and another. It is between women and men.
The statistics show that a significant majority of part-time workers are *105 women. That is particularly so when the statistics relating to participation in the labour force by parents of young children and those who are single or separated are examined. From these statistics it may be inferred that the abolition of part-time jobs will impact disproportionately on women and in particular on women who are lone parents. This merely provides confirmation of what the court understands the position to be, based on the knowledge and experience of its members.
On the facts disclosed it is clear that the complainant was unable to work full-time, not because she is a woman per se, but because she is the mother of a school-going child and the primary carer of that child. It is still the reality in modern society that mothers are more likely to fulfil that role than are fathers. More relevant to the instant case is the fact that where parents are separated or single, it is the mother who is much more likely to have custody of children. Consequently, as a general proposition, women who have children and are single, separated or divorced find it more difficult to work full-time than fathers who are single, separated or divorced or men who are not parents.
The complainant claims to have been discriminated against on the gender, family status and marital status grounds. The court has been invited to find that discrimination occurred on each of those grounds. However, having reached the conclusion that the impugned provision disadvantaged the complainant by reference to her sex, family status and marital status combined, the effect of section 22(4) is to bring the discrimination within the scope of the gender ground only.
The court is reinforced in that view by the provision at section 31(5) of the Act. This provides, in effect, that where a provision is such as to be regarded as discriminating against an individual on the marital status or family status grounds and also as discriminating against that individual on the gender ground, a finding of discrimination can only be made on the gender ground.
The court therefore finds that the provision introduced by the respondent, which would have required the complainant to work full time, amounts, prima facie, to indirect discrimination by the combined effect of subsections (1)(b) and (4) of section 22 of the Act. However, a finding of discrimination only arises if the provision cannot be objectively justified in terms of paragraph (c) of subsection (1), as amended. The onus of establishing objective justification rests on the respondent.
Objective justification
The wording of section 22(1)(c) must be interpreted as contemplating the three-tiered test for objective justification set out by the ECJ in Bilka-Kaufhaus. This test requires that the court be satisfied that the impugned measures:
(a) correspond to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and *106
(c) are necessary to that end.
In applying this test, the following emerges on the facts:
Does the requirement to work full-time correspond to a real need on the part of the respondent?
The respondent claims that there was a need to improve efficiency in the administrative function performed by the two part-time employees. The witnesses who gave evidence on their behalf could not give any concrete example of significant inefficiencies in the previous arrangement. Evidence was given that having a full-time secretary had proved more satisfactory but this evidence was non-specific and general in nature.
In Nathan v Bailey Gibson Hamilton CJ pointed out that the test applies where the impugned requirement is not an essential requirement of the employment. In Conlon v University of Limerick and the Minister for Enterprise and Employment [1999] ELR 155 McCracken J made it clear that it is insufficient to conclude that a requirement is reasonable and that the accepted test is that it be essential.
On the evidence before it the court is far from convinced that the exigencies of the respondent’s business made it essential that the complainant work full-time.
Were the means chosen appropriate?
This aspect of the test requires that the means chosen be proportionate to the objective which they are intended to achieved. Whilst the respondent may have gained some improvement in efficiency by amalgamating the two part-time jobs, the inevitable consequence of so doing was to render it impossible for the complainant to remain in employment. In the court’s view the value of the benefit which accrued to the employer, when balanced against the discriminatory effect of the method by which it was achieved, could not satisfy the requirement of proportionality.
Was the method appropriate to achieve the end in view?
The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect, by which the objective in view could have been achieved. It is clear from the evidence that the respondent gave no consideration to alternative ways of improving efficiency at the office, although a number of options readily suggest themselves. The respondent could have discussed whatever difficulties there were with the complainant and her colleague and invited their suggestions as to a solution. A system of prioritising messages could have been devised. Where messages were of particular importance or com *107 plexity the caller could have been directed to the relevant person’s mobile telephone number.
The court is satisfied that the respondents gave no consideration to any other option by which their dissatisfaction with the job-sharing arrangement could have been addressed. It cannot therefore be said that there were no alternative less discriminatory means by which the respondent’s objective of improving efficiency could have been achieved.
Accordingly, the court is satisfied the impugned requirement is not necessary and appropriate and cannot be justified by objective factors unrelated to the complainant’s sex.
Determination
The court is satisfied that the complainant herein was indirectly discriminated against on the gender ground, and by reference to her family status and marital status, within the meaning of section 22(1) and contrary to section 8 of the Act.
The court determines that the appropriate remedy is an award of compensation. The complainant obtained alternative employment shortly after her dismissal and her financial loss was of the order of €1,400. The complainant did, however suffer inconvenience and distress in consequence of the dismissal and in bringing these proceedings. The court is further conscious of the need to provided redress which is effective, proportionate and dissuasive. Taking all the circumstances of the case into account the award which the court considers reasonable is measured at €10,000. The complainant is awarded compensation in that amount.
Blackrock College -v- Browne
[2013] IEHC 607 (20 December 2013)
JUDGMENT of Mr. Justice Hedigan delivered on the 20th day of December 2013
Application
1. The appellant seeks an order pursuant to s. 17 (6) of the Protection of Employees (Part Time Work) Act 2001, and pursuant to the provisions of O. 84C of the Rules of the Superior Courts setting aside the determination of the Labour Court of 18th July, 2012, made in favour of the respondent.
Parties
2. The appellant is a private school and has its place of business at Rock Road, Blackrock, County Dublin. The respondent is a secondary school teacher employed by the appellant.
Background
3.1 The respondent is a fully qualified secondary school teacher and is registered with the Teaching Council. She has been employed privately by the appellant to teach Spanish in the appellant college since 6th November, 2000. The appellant employs a number of fulltime and part-time teachers, most of whom are paid a salary and other benefits by the Department, and a small number (such as the respondent) who are paid directly by the appellant. The respondent teaches 14 hours a week. She is also required to perform certain work outside of school hours in the same manner as comparable full-time teachers that are paid by the Department of Education and Skills (hereinafter “the Department”).
3.2 In accordance with circular 25/2011 published by the Department on the 8th April, 2011, the respondent is required to work up to an additional 33 hours each year. These additional hours are not pro-rata by reference to the respondent’s part-time hours/salary. Her proportionate additional hours are therefore in fact greater than those of fulltime teachers in the school.
3.3 On 12th July, 2006, the respondent brought a complaint before the Rights Commissioner pursuant to s. 16 of the Protection of Employees (Part-Time Work) Act 2001, claiming that she had been treated less favourably in respect of her pay, pension and other conditions of employment than another teacher (the comparator teacher) paid by the Department and who is employed in a fulltime capacity. The Rights Commissioner on 30th September, 2008, decided that the respondent’s complaint was well founded and directed that she be awarded a contract of indefinite duration comparable to her colleagues on the full time staff.
3.4 On 31st October, 2008, the appellant appealed this decision pursuant to s. 17 of the 2001 Act, to the Labour Court contending that the respondent should not be entitled to use as a comparator a fulltime Department-funded teacher. The Labour Court, with the agreement of the parties and with a view to saving costs, determined by way of preliminary hearing the question of whether the comparator nominated by the respondent was an appropriate comparator for the purposes of s. 7 of the 2001 Act.
In its determination of the preliminary issue of 2nd February, 2009, the Labour Court declined to uphold the school’s case on the appropriateness of the respondent’s chosen comparator finding that:-
1. The nominated comparator was a comparable employee vis à vis the respondent;
2. The respondent and the comparator were engaged in like work for the purposes of the act;
3. The respondent was entitled to succeed in her claim unless the impugned differences were justified on objective grounds.
3.5 When the case came on for hearing on 13th of February 2012, the appellant sought to have the Labour Court reverse or vacate its preliminary determination on the basis that the Labour Court’s preliminary determination was in conflict with the decision of the High Court in Catholic University School v Dooley & Keogh [2010] IEHC 496 (hereinafter “CUS”) which was delivered after this preliminary ruling. In that case, Dunne J. found that the Labour Court had misdirected itself in law in an almost identical ruling in a similar case in relation to the appropriateness of the comparator who was paid by the state rather than by the individual school.
3.6 The Labour Court ruled on 13th February, 2012, that it had no jurisdiction to vacate its preliminary determination and proceeded on the basis that there were two outstanding issues, namely whether there were objective grounds justifying the less favourable treatment and if there was no objective justification the redress to which the respondent was entitled.
3.7 On 18th July, 2012, the Labour Court determined that there were no objective grounds justifying the less favourable treatment and therefore found that the respondent’s claim was well founded. It determined that the respondent was entitled to the same terms and conditions of employment as those afforded to her nominated comparator with effect from a date 6 months prior to the date on which her claim was initiated before the Rights Commissioner i.e. on 12th January, 2006.
The appellant has now appealed this ruling of the Labour Court to this Court.
Appellant’s Submissions
4. 1. An appeal is appropriate.This appeal is brought pursuant to the provisions of s. 17(6) of the Protection of Employees (Part-Time Work) Act 2001 which permits an appeal on a point of law to this Court from a determination of the Labour Court. This section states:-
“(6) A party to proceedings before the Labour Court under this section may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.”
The reliefs sought by the appellant concern the procedure adopted by the respondent and relate to the law as applied by the Labour Court. The appellant relies on the Supreme Court judgment in EMI Records (Ireland) Limited v The Data Protection Commissioner [2013] IESC 34, where, at para. 4.8 Clarke J. outlined the procedure to be followed in similar circumstances to those herein:-
“4.8 Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings. The reason for this approach is, as pointed out by Hogan J. in Koczan, that it must be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily, those dissatisfied with an initial decision might be entitled to have the initial decision questioned.”
An appeal is therefore entirely appropriate and the appellant would have been met with an objection that it had not exhausted alternative remedies had it failed to utilise that appeal mechanism.
4.2. There should be no referral to the Court of Justice of the European Union
The appellant does not agree with the respondent’s submission that this Court should make a preliminary reference to the CJEU. Article 267 of the Treaty on the Functioning of the European Union is designed to be used only if there is a question to be answered which falls into one of the categories mentioned in the first part of that Article. Thus, the decision to make a preliminary reference is discretionary and that discretion is not absolute.
Article 267 states:-
“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon…”
The respondent in this matter requested the Labour Court to make a referral to the CJEU for a preliminary ruling in relation to the very question that had already been answered by Dunne J. in the “CUS” case, namely whether the definition of “comparable full-time worker” encompasses a person who works in the same establishment but whose salary, terms and conditions are determined by a third party over whom the appellant has no control.
In CILFIT Srl and Lanificio di Gavardo SpA v. Ministry of Health (Case C- 283/81) the CJEU at para. 11 of its judgment made it clear that a reference need only be made when the national court:-
“consider[s] that recourse to Community law is necessary to enable [it] to decide a case…”
Likewise, in Monin Automobiles-Maison du Deux Roues (Case C-428/93) at para. 9 the CJEU stated that for a reference to be admissible:-
“…there must be proceedings pending before the national court and the answer to the problem of interpretation must be necessary for resolving those proceedings.”
An application for a reference for a preliminary ruling is not a relief in itself. It is either necessary for the national court to make a reference in order to make its decision or it is not. The appellant argues that such a reference is unnecessary and therefore this Court should not refer the matter.
4. 3. The respondent chose the wrong comparator
The central issue in this case is whether the respondent is entitled to choose a department paid full time teacher as her comparator. Section 7(2) of the 2001 Act defines who can be a comparator for the purposes of a claim by a part-time employee to equal treatment with a fulltime employee.
The appellant contends that the comparator chosen by the respondent is not an appropriate comparator and that the appropriate comparator is a privately paid full time teacher employed by the appellant. It asserts that its view is supported by the wording of Directive 97/81/EC which the 2001 Act was intended to implement. Clause 3(2) of that Directive defines a full-time worker:-
“2. The term ‘comparable full-time worker` means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills.”
The appellant contends that the respondent has avoided comparing herself to an appropriate comparator since it could not be shown that she is treated less favourably by reference to that comparator.
4.4 The respondent and comparator have different employers.
Department paid teachers are employed within a tripartite contractual arrangement in which the appellant is one of the parties, the Department and the teacher being the other two parties. The bipartite contract which exists between the private teacher and the appellant is not the same type of employment contract or relationship which Department paid teachers have and it is submitted by the appellant that the respondent at no time has had any contractual relationship with the Department.
For Department paid teachers, the Department is their paymaster and is the sole determiner of their financial terms and conditions of employment including rates of pay, pension arrangements, sick pay and maternity leave. They are also registered with the Teaching Council and have access to the Teachers Conciliation Council (hereinafter “TCC”) within a framework to which the appellant is not a party. Privately paid teachers are employed directly by the school, have no relationship whatsoever with the department and are not regulated by it. They do not enjoy the benefits enjoyed by the department funded teachers such as pension scheme, extensive sick pay and maternity pay entitlements, access to a re-deployment panel, access to career breaks and various other financial benefits which have been negotiated directly with the Department.
The respondent belatedly points out that the Joint Management Board (of which the school is a member) sits at the TCC and suggests that Dunne J. in CUS was not aware of this. The Labour Court in this case was never provided with any evidence or submissions to suggest that the Joint Management Board had any influence in any discussions which took place at the TCC between the teachers’ unions and the Department in determining the terms and conditions of Department paid teachers that are regulated by the Department.
The appellant refutes any suggestion that the terms and conditions of Department teachers are set by the teaching Council and asserts that they are merely negotiated by them which is different. The Joint Management Board’s role is observatory not active and there is no evidence that those negotiations influence the Minister for Education in setting the terms and conditions of teachers. Moreover, s. 24(3) of the Education Act 1998 (as amended) confirms that terms and conditions of Department paid teachers appointed by the Board of Management “shall be determined from time to time by the Minister”. Therefore as a matter of law, the TCC cannot determine terms and conditions, including pay, for department paid teachers and cannot override clear legislative provisions.
The ratio of Dunne J. in CUS was not based on a finding that the Department has no input into the terms and conditions of privately paid teachers but rather that the school has no input into the Department paid teachers. Notwithstanding the above, it is argued that no concrete evidence was put before the Labour Court in this case that the school has such control.
The respondent’s argument that the appellant retains pay cuts imposed on the respondent merely demonstrates to an even greater degree the absence of the Department’s role in relation to the terms and conditions of privately paid teachers.
4.5 Relevance of Financial Emergency Measures in the Public Interest. Many of the factual claims now sought to be made by the respondent were not put before the Labour Court prior to the making of the determination in July 2012 e.g. the argument that extensive changes were brought about by the Financial Emergency Measures in the Public Interest Legislation (hereinafter “FEMPI”) such as the imposition of 33 hours of unpaid work.
This court cannot be expected or required to examine factual matters which were not before the Labour Court, whether because they were not cited to the Labour Court or whether because that particular factual scenario had not materialised at the time of the Labour Court’s determination of the issues.
Even if the respondent is correct to say that there is a difference in circumstances now to what pertained when CUS was decided and if FEMPI means the department has a role in the respondent’s contract, the appellant argues that such role is no different to the role it exerted previously and could be likened to the role of the state in the solicitors’ profession. If it in any way establishes a tripartite relationship it is an entirely different one to that argued by the respondent. All FEMPI does is increase the department’s role in the respondent’s job by imposing a percentage cut on her pay. This is not the same as setting her pay and does not signify that the Department has any input into her terms and conditions.
The respondent issued a fresh claim before the Rights Commissioner in December 2011 and it is submitted that that is the appropriate forum to ventilate any arguments she may have in relation to FEMPI. Such matters cannot be relevant to this Court’s determination of whether the Labour Court misdirected itself in law in the conclusions it drew of the law and/or on the facts before that legislation was introduced.
4.6. Catholic University School v Dooley & Keogh
It is submitted that the decision in CUS to the effect that Department paid teachers were not suitable comparators was correct and the appellant contends that the Labour Court erred in law in failing to follow that binding judgment.
Dunne J. in CUS recognised that the department had some input into how a private teacher was treated by their employer i.e. the Board of Management. She found however that the state’s ability to direct that the pay rate set by the school be subject to a percentage reduction was not sufficient to create a tripartite relationship. Likewise, it was accepted that private teachers had access to the department pension scheme, were obliged to teach the department curriculum and were subject to departmental evaluation. This notwithstanding Dunne J. found that the Department paid teachers were not the correct comparators.
The appellant relies on Metock & Ors –v.- Minister for Justice Equality & Law Reform [2008] IEHC 77 where Finlay Geoghegan J. stated at para.50 in a situation where the matter at issue was already the subject of another High Court decision that:-
“50 . This is a decision of a court of equal jurisdiction by which I am not bound. Nevertheless, I should only depart from this decision if the applicants clearly establish that it was wrongly decided, in accordance with the principles set in Irish Trust Bank v. Central Bank of Ireland [1976 – 7] I.L.R.M. 50.
Thus, it is argued this Court should not depart from the decision in CUS.
Respondent’s Submissions
5. 1. Appeal is not the appropriate remedy.
The present appeal is brought pursuant to s. 17(6) of the 2001 Act which provides for a confined jurisdiction on a point of law. The reliefs sought by the appellant concern the procedure adopted by the Labour Court and do not concern a point of law. These reliefs, the respondent argues, should therefore be sought by way of judicial review (an order of certiorari and/or mandamus) rather than appeal, and the appellant has not done this.
Moreover, the respondent contends that the time to lodge any appeal of the preliminary decision of the Labour Court has expired. Likewise, she contends, time has expired to appeal the determination of the Labour Court of the 13th February, 2012, in which it ruled that it could not vacate or alter its preliminary decision.
5. 2. The limited role of the Court to change a decision.
The respondent asserts that the Labour Court was fully entitled on the law and on the facts to determine that she and her nominated comparator were engaged in like work within the meaning of the 2001Act.
The burden of proof in establishing an error of law is on the appellant and it is an onerous one. In Minister for Agriculture v Barry [2008] IEHC 216, at p.618, Edwards J., referring to the role of an appellate court, made reference to the judgment of Sir John Donaldson M.R. in the English case of O’Kelly v. Trusthouse Forte plc. [1983] I.C.R 728 where he stated at pp. 760 to 761:-
“Unless the direction on law has been expressed it can only be so satisfied if, in its opinion, no reasonable tribunal, properly directing itself on the relevant questions of law, could have reached the conclusion under appeal. This is a heavy burden on an appellant.”
In An Post v Monaghan [2013] IEHC 404 this Court stated at para. 5 of the decision:-
“5. This is an appeal on a point of law from a decision of the Labour Court. I will deal first with the role of the Court in such an appeal. It is plainly a limited role. The Court may only intervene where it finds that the Tribunal based its decision on an identifiable error of law or an unsustainable finding of fact. The Court should be slow to interfere with the decisions of the Labour Court because it is an expert administrative Tribunal. See Henry Denny & Sons. v. The Minister for Social Welfare [1998] 1 I R. 539. Unless a claim of irrationality is sustained, the Court cannot weigh the strengths or weaknesses of the arguments or evaluate its determination thereon. See Wilton v. Steel Company of Ireland Ltd. [1999] ELR 1, (O’Sullivan J., p. 5). The Court may, however, examine the basis upon which the Labour Court found certain facts. It can consider whether certain matters ought or ought not to have been considered or taken into account by the Labour Court in determining the facts. See NUI Cork v. Ahern [2005] IESC 40 (McCracken J.).”
5. 3. Objective justification
Council Directive 97/81/EC provides that part-time workers may not be treated in a less favourable manner than comparable fulltime workers solely because they work part-time unless different treatment is justified on objective grounds. The Protection of Employees (Part Time) Work Act 2001 was adopted to implement this Directive. In this instance it is argued that the respondent is clearly being treated less favourably than her fulltime comparator, in breach of the Directive. The respondent cannot claim parity with the Department paid teachers in respect of sick pay or indeed any pay, notwithstanding that any deductions imposed upon the Department funded teachers are automatically imposed upon the respondent. Moreover, she is obliged to attend meetings outside school hours in circumstances where she will not be paid for same while her comparator is paid. Thus the respondent is required to bear the same adverse measures as are imposed on a department funded teacher without receiving the same benefits.
5.4. The respondent is entitled to choose her comparator
This Court is being asked to decide whether the Rights Commissioner and the Labour Court were correct in finding that the respondent was entitled to choose a full time department funded teacher as comparator under s.7(2)(a) of the 2001 Act.
Section 7(2) of the 2001 Act provides:-
“7.—(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—
(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees.”
The respondent chose as her comparator a teacher who works in the same school, who is engaged in like work with her and whose salary is paid by the Department. The respondent refutes the appellant’s contention that the comparator chosen is not valid because the department pays the salary of the comparator teacher and the appellant pays the respondent’s salary. The respondent asserts that the legal position is that in assessing whether there is equal pay for equal work, the work of the entire pool of workers in a group should be examined and not merely a subset of a group. By choosing that particular comparator the respondent was seeking to compare herself with a broad number of employees who represent the majority not the minority.
The CJEU decision in Specialarbejderorbundet i Danmark v Dansk Industri (Case C-400/93) was posed as to whether it was possible to section off a certain subset of painters and compare them with a certain subset of turners. The CJEU stated very clearly at para. 38 that such sub-division was not possible.
“…[f]or the purposes of the comparison to be made between the average pay of two groups of workers paid by the piece, the national court must satisfy itself that the two groups each encompass all the women who, taking account of a set of factors such as the nature of the work…can be considered to be in a comparable situation and that they cover a relatively large number of workers ensuring that the differences are not due to purely fortuitous or short-term factors or to differences in the individual output of the workers concerned.”
The respondent argues that it is settled law that an employee is entitled to choose her comparator and she made the correct choice. She relies on the comments of O’Sullivan J. in Wilton v Irish Steel [1999] ELR 1, in this regard. In that case, O’ Sullivan J. stated at p.3:-
“I agree that that the plaintiff is entitled to choose her comparator…”.
In the Supreme Court decision in National University of Ireland, Cork v Ahern & ors. [2005]SC IE40, referring to Wilton, Mc Cracken J. in giving the determination of the court stated at para.13 of his decision:-
“Where a party is claiming discrimination under these provisions, it is for that party, in the present case the respondents, to nominate as comparators persons who it is alleged are doing ‘like work’.
Moreover, in The Minister for Finance v Una Mc Ardle [2007] IEHC 98, the High Court affirmed the Labour Court’s decision that the respondent was entitled to choose her own comparator.
Therefore it is argued that the respondent was entitled to choose a department funded teacher as her comparator within the meaning of s.7 of the 2001 Act and such comparator is valid in law.
5. 5. The decision in CUS should not be followed.
The appellant seeks an order compelling the Labour Court to follow the judgment of the High Court in CUS, delivered subsequent to the preliminary determination of the Labour Court in this matter on 2nd February, 2009.
The respondent argues however that the judgment in CUS is not determinative of this matter and it is contrary to decided authority, namely the Supreme Court decision in O’Keeffe v Hickey [2009]2 IR 302. That case is authority for the proposition that the school is the employer of both the claimant and the comparator. At para. 206 of the judgment Fennelly J found:-
“Responsibility for day to day management and in particular, the hiring and firing of teachers remains with the manager…[a] teacher may not be employed if his qualifications are not recognised by the Minister, and ,if the Minister withdraws recognition, he may be unemployed. Nevertheless, it is the manager and not the Minister who decides on which teacher to employ. The contract of employment is between the manager and the teacher. The manager may dismiss a teacher without the sanction of the Minister.”
In CUS, the court departed from this general legal position and based its decision on the conclusion that there existed a tri-partite relationship between teachers entirely paid by the Department, the school and the Department, while erroneously concluding that only a bipartite relationship existed between the privately paid teachers and the school. The court based its reasoning on the belief that the appellant has no part in the salary of the Department funded teachers and by implication the Department has no part in the salary of the privately paid teachers. This is not the case. The respondent and other privately paid teachers are in fact entitled to join the Department pension scheme. Privately paid teachers are inspected by the department in the context of whole school evaluations and course subject inspections. Likewise, the school plays a part in fixing the terms and conditions of all of its teachers, including those paid by the department. These terms and conditions are negotiated through the Teachers Conciliation Council at which the school is represented through the joint Boards of management. Therefore, as far as concerns all the usual indicia of employment Department teachers are actually employed by the school although they are paid by the Department. Moreover, for privately paid teachers there is a tripartite relationship such as exists for the comparator.
Even if it were found that the terms and conditions of the respondent and her comparator were determined by different processes this does not exclude the application of Directive as held by the Court of Justice of the European Union in Dr Pamela Enderby v Frenchay Health Authority and Secretary of State for Health (Case C- 127/92).
When CUS was decided Dunne J. was unaware of the State’s power to intervene in private contracts. Subsequent to her decision, there was a significant change in the factual circumstances applicable to the employment of the respondent with the enactment of the FEMPI legislation. From the resultant changes imposed on the respondent’s salary, it is now fully clear that the Department has always been empowered to determine to a large extent the terms and conditions of both Department funded and privately paid teachers and that the school no longer exclusively determines the terms and conditions of privately paid teachers such as the respondent. The Department has imposed upon the respondent a pay cut of 5% as of 1st May, 2011, which has been implemented by the school, and which deduction is not remitted by it to the Department. While it appears from correspondence sent by the appellant to the respondent that it did not wish to reduce her pay, it felt it was statutorily bound to do so. The respondent has also suffered a pay increment freeze, a pension levy introduced for public sector workers on the 1st March, 2009, and the requirement to work 33 additional hours per year pursuant to the Croke Park Agreement.
The respondent also argues that CUS should not be followed since it took the incorrect view of the definition of an employer.
The appellant relies on the difference in the paymasters of the respondent and the comparator to argue that the respondent is not entitled to compare herself to a Department paid teacher and relies on the ratio decidendi of the Dunne J. that:-
“…the legislation expressly provides that the party paying the worker is, for the purpose of the legislation, the employer…”
If it is accepted as a general principle of law that the payer is the employer this would have immense implications for other persons for whom the State provides funding for their employment. It is a matter of fact that some teachers have part of their salary funded by the Department and part of their salary funded by the Board of management. CUS cannot be relied upon in situations where teachers are paid both publicly by the department and privately by the school. By the rationale of the decision in that case this would amount to these teachers having two separate employers which is an untenable position.
5. 6. Preliminary Reference
The respondent argues that the refusal of the court to refer to the CJEU in CUS arose from a procedural issue, namely that the request for a reference had not been made at the time that the matter was still pending before the court.
The respondent therefore argues that if this court is now to conduct a de novo consideration of the applicability of s. 7(2) of the Act to the respondent or is inclined to remit the matter to the Labour Court or in the event that the court is inclined to decide against her on the question of whether the existence of a bipartite relationship in respect of her employment and a tripartite relationship in respect of the comparator’s employment justifies discrimination it should refer the matter to the CJEU for clarity.
DECISION
6.1 Is this appeal the appropriate format or should the appellant have moved in judicial review? It seems to me as the Oireachtas has provided a particular statutory appeal in this type of case, then that is the way the appellant should proceed. Here, the Labour Court has made a determination which, the appellant argues, is based on an error of law i.e. its preliminary finding was incorrect in law as demonstrated by the subsequent decision of Dunne J. in CUS. Section 17(6) provides specifically for an appeal on a point of law. It is difficult to see how it would be more appropriate to move in judicial review in the circumstances of this case. Thus, it seems to me that the appeal format is the correct one in the light of the specific determination herein. See EMI Records (Ireland) Ltd. v. The Data Protection Commissioner [2013] IESC 34, Clarke J. at para. 4.8:
“4.8 Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings. The reason for this approach is, as pointed out by Hogan J. in Koczan, that it must be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily, those dissatisfied with an initial decision might be entitled to have the initial decision questioned.”
I gratefully adopt this dictum.
6.2 The role of the court in this kind of appeal was considered by this court in An Post v. Monaghan [2013] IEHC 404, at para. 5:
“5. This is an appeal on a point of law from a decision of the Labour Court. I will deal first with the role of the Court in such an appeal. It is plainly a limited role. The Court may only intervene where it finds that the Tribunal based its decision on an identifiable error of law or an unsustainable finding of fact. The Court should be slow to interfere with the decisions of the Labour Court because it is an expert administrative Tribunal. See Henry Denny & Sons. v. The Minister for Social Welfare [1998] 1 I R. 539. Unless a claim of irrationality is sustained, the Court cannot weigh the strengths or weaknesses of the arguments or evaluate its determination thereon. See Wilton v. Steel Company of Ireland Ltd. [1999] ELR 1, (O’Sullivan J., p. 5). The Court may, however, examine the basis upon which the Labour Court found certain facts. It can consider whether certain matters ought or ought not to have been considered or taken into account by the Labour Court in determining the facts. See NUI Cork v. Ahern [2005] IESC 40 (McCracken J.).”
Thus, where as herein, the appeal is essentially one limited to a consideration of the legal question as to whether the correct comparator was used, the court must be satisfied that the Labour Court based its decision upon an identifiable error of law. Was the preliminary determination such an error?
6.3 It was agreed by both sides that the central question was as to whether the comparator chosen by the respondent was the correct one. Could she choose a fulltime ‘Departmental’ teacher or was she obliged to choose a fulltime ‘private’ teacher in order to find a true comparator. This question was directly addressed by Dunne J. in the CUS case (cited above). The appellant relies upon this judgment whilst the respondent argues that it was wrongly decided, primarily because the learned judge did not then know of the power of the Minister under the FEMPI legislation.
In that case, the key finding is set out at p. 520 of the IEHC report as follows:
“[53] Although the chosen comparators appear to come within the definition of comparable full time employees as defined in the legislation, I have come to the conclusion that because of the fact that the Minister for Education determines the terms and conditions of the Department funded teacher and the school determines the terms and conditions of the privately paid teachers, the Labour Court has fallen into error in finding that the claimants were entitled to choose a full time Department funded teacher as a comparator. The school has no hand, act or part in determining the salary and other terms and conditions of the department funded teacher. In determining the employer for the purpose of the legislation in relation to agency workers, the legislation expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is in an analogous position. I do not accept that the chosen comparators have the same type of employment contract or relationship as the claimants with the school. To that extent, it seems to me that the Department has to be viewed as the employer of the chosen comparators for the purpose of the legislation.”
Since that judgment, the FEMPI legislation was passed. Under it, the Department of Education imposed a 5% cut as of 1st May 2011, on the respondent and she was required to work 33 hours more under the Croke Park Agreement. Did this action on the part of the Department effect a substantial change in the nature of the relationship such that the above findings of Dunne J. are no longer valid? Does the Department now determine the terms and conditions of the appellant in place of the school? Does the Department now determine the salary and other terms and conditions under which the respondent works? Certainly, the reduction in her pay has been directed by the Department. It should be noted, however, that the school retains the 5% that it has deducted from her pay. So, also, the requirement to work 33 extra hours. Yet, the key rationale of Dunne J. is that:
“In determining the employer for the purpose of the legislation in relation to agency workers, the legislation expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is in an analogous position.”
Thus, although the school has imposed upon the respondent new terms and conditions, it still remains the party that pays the worker i.e. the respondent. Thus, the relationship of employer and employee continues to be, in essence, as Dunne J. found it and upon which she determined that the Departmental teacher was an incorrect comparator.
The question as to whether I should follow this judgment of a court of equal jurisdiction does not arise because I agree with Dunne J’s judgment.
This finding is dispositive of the case. I do not see any necessity, therefore, for a referral to the CJEU.
There will be an order setting aside the determination of 18th July 2012 of the Labour Court herein on the basis that it erred in law in finding that the respondent was entitled to choose a fulltime Departmental-funded teacher as a comparator.
Catholic University School -v- Dooley & Anor
[2010] IEHC 496 (20 July 2010)
JUDGMENT of Ms. Justice Dunne delivered the 20th day of July 2010
The appellant herein has sought an order pursuant to the provisions of O. 84C of the Rules of the Superior Courts and pursuant to s. 17(6) of the Protection of Employees (Part Time Work) Act 2001, setting aside the determination of the Labour Court No. PTD092 dated the 22nd April 2009, and pursuant to O. 84C of the Rules of the Superior Courts and pursuant to s. 15(6) of the Protection of Employees (Fixed Term Work) Act 2003, setting aside the determination of the Labour Court No. FTD094 dated the 21st April, 2009 and finally in respect of an order pursuant to the provisions of O. 84C of the Rules of the Superior Courts and pursuant to s. 17(6) of the Protection of Employees (Part Time Work) Act 2001 setting aside the determination of the labour Court No. PTD093 dated the 22nd April, 2009. For ease of reference I will refer to the appellant as “the school” and to the respondents as “the claimants”.
It will be seen that Mr. Dooley, one of the claimants, has brought a claim in respect of two Acts referred to in the title of these proceedings and Ms. Scannell, the second claimant, has brought a claim under one of those Acts. The same issues arise in respect of the appeals and all the appeals were heard at the same time and it is appropriate therefore to deal with the matter by way of one judgment.
The school is a private school which employs a number of full time and part time teachers. The majority of the teachers are paid salary and other benefits by the Department of Education and Science and a small number (including the claimants) are privately paid by the school. There is no dispute that that the claimants are treated less favourably than their incremental, Department paid colleagues. Without going into all of the details at this point, it is that difference in treatment which prompted the claimants to bring their dispute with the school to a Rights Commissioner in the first place and ultimately before the Labour Court. The claimants make the point that they are entitled to be paid at the same rate as their State paid colleagues. It is contended on behalf of the school that the pay differential is independent of the claimants part time and/or fixed term status and in those circumstances that it is not open to the claimants to rely on the rights and entitlement to which a State paid teacher is entitled and accordingly, the legislation relied on together with the European Directives to which reference will be made later does not avail the claimants.
I propose now to refer to the Directives and to the relevant legislation. The Part Time Workers Directive (Directive 97/81/EC) provides as follows:-
“Article 1 The purpose of the Directive is to implement the framework agreement on part-time work concluded on 6 June 1997 by the general cross-industry organisations . . . annexed hereto.
Article 2(1) Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 20th January 2000, or shall ensure that, by that date at the latest, the social partners have introduced the necessary measures by agreement, the Member States being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.
Clause 1. Purpose
The purpose of this Framework Agreement is:
(a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work;
(b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organization of working time in a manner which takes into account the needs of employers and workers.
Clause 3. Definitions
For the purpose of this agreement:
1. The term ‘part-time worker’ refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.
2. The term ‘comparable full-time worker’ means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills.
Where there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.
Clause 4. Principle of non-discrimination
1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely (my emphasis) because they work part time unless different treatment is justified on objective grounds.
Clause 6. Provisions on implementation
1. Member States and/or social partners may maintain or introduce more favourable provisions than set out in this agreement.
2. Implementation of the provisions of this Agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field of this agreement. This does not prejudice the right of Member States and/or social partners to develop different legislative, regulatory or contractual provisions, in the light of changing circumstances, and does not prejudice the application of Clause 5.1 as long as the principle of non-discrimination as expressed in Clause 4.1 is complied with.”
There is also a Fixed Term Workers Directive (Directive 99/70/EC). The definitions set out in that Directive in relation to Fixed Term Worker and Comparable Permanent Worker are similar to those in the previous Directive and I do not think it is necessary to set out the details thereof. The principle of non discrimination contained in Clause 4.1 is in similar terms to that contained in the previous Directive.
I now want to set out the relevant terms of the Protection of Employees (Part Time Work) Act 2001. Section 31 provides:-
“In this Act, unless the context otherwise requires . . .
‘employee’ means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act, 1941, or of a harbour authority, health board or vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be;
‘employer’ means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of ‘contract of employment’ is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;”
I also propose to refer to s. 7(1) which contains a number of definitions which may be of relevance:-
“Comparable Employee” shall be construed in accordance with subs. (2);
‘full-time employee’ means an employee who is not a part-time employee;
‘normal hours of work’ means, in relation to an employee, the average number of hours worked by the employee each day during a reference period;
‘part-time employee’ means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her. . . .
‘relevant part-time employee’ shall be construed in accordance with subsection (2).
(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee first mentioned in the definition of ‘part-time employee’ in this section (the ‘relevant part-time employee’) if –
(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.
(3) The following are the conditions mentioned in subsection (2) –
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”
The key issue to be determined in these proceedings is whether the determination of the Labour Court made in April of 2009, in respect of the claimants respective claims to the effect that the claimants are entitled to a contract on terms and conditions pro rata with that of his comparator is correct. The Rights Commissioner in her decision on the claimants claim under the Part Time Work legislation, found that the claimant, Mr. Dooley, as a part time worker was treated less favourably than a comparable full time worker. She found that the respondent employer was in breach of s. 9 of the Part Time Work Act, and required the respondent to ensure that the claimant’s pay (i.e. salary scale and incremental progression, payment of qualification allowances and all other conditions of employment) were no less favourable (on a pro rata basis where appropriate) than those of the whole time comparator from that date. She found that in relation to the incremental salary scale the respondent was required to operate the same type of salary scale for the claimant as that for the comparator including incremental progression. In relation to the claimant’s access to the Department of Education’s superannuation scheme, she found that the respondent was to ensure that the claimant was to become a member of the scheme and to make the same employee contributions as the comparator. It is that decision that was subject to minor variations affirmed by the Labour Court. There was also a claim under the Fixed Term Work Act, but for the purpose to these proceedings I do not think it is necessary to deal with that aspect of the matter to any extent.
Three principal issues arose before the Labour Court and indeed on appeal to this Court. The first issue is whether or not the claimants have chosen the appropriate comparator. The second issue relates to whether or not the Directive 97/81/EC has been properly transposed into national law. The final issue relates to the defence of objective justification. I now propose to deal with these issues.
The Appropriate Comparator
There is no dispute between the parties that a claimant is entitled to choose their own comparator. The question is whether the comparators chosen by the claimants are appropriate. The claimants have sought to compare themselves with a permanent teacher on an incremental scale whose salary is paid by the Department of Education. It is contended on behalf of the school that this is not a correct or appropriate comparator. The school contends that the appropriate comparator is a privately paid teacher employed by the respondent directly. There are a number of such teachers employed by the school. The first point made on behalf of the school is that the chosen comparator has to be in the same type of employment contract or employment relationship. There was no issue as to the teaching ability of either of the claimants and that in that regard each of the claimants presents identically by comparison to their chosen comparators. However, the principal point made on behalf of the school is that there is a difference between the contractual arrangements of the claimants and their chosen comparators and that this is a relevant feature. The school contends that the appropriate comparator should be a full time privately paid teacher. Reference was made in that regard to two members of staff employed by the school who are permanent full time privately paid teachers. It was submitted that the claimants had been treated equally and no less favourable than those employees or any other privately paid teacher paid by the school.
Although it was accepted by the school that the claimants are entitled to choose their comparator, it was submitted that they could not be disingenuous in their choice of comparator. The context in which the comparator was employed had to be considered. Indeed it was suggested that it might be appropriate to consider other teachers in a similar employment relationship i.e. someone from within the private sector not the State sector. Reference was made to the decision of the Supreme Court in the case of National University of Ireland v. Ahearn [2005] 2 IR 577. That was a case that considered the provisions of s. 2(3) of the Anti-Discrimination (Equal Pay) Act 1974. An employee under the provisions of that legislation was entitled to compare themselves to another employee in seeking to establish that they were being paid unequal pay for like work. McCracken J. at p. 583 of the judgment in that case commented:-
“The question at issue here is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential. This involves a different approach to the position of the comparators, and in particular of the context in which they were employed. I accept the arguments on behalf of the applicant that for this purpose the Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators, namely the remaining switchboard operators.”
Therefore it was submitted that one had to consider the context in which the chosen comparator was employed not in isolation but also in the context of other teachers on the staff who where not chosen as comparators namely, the other privately paid teachers. In this context, particular emphasis was placed by the school on the definition of employer within the meaning of the Protection of Employees (Part Time Work) Act 2001, which is set out above and in particular that part of the definition which states “the person who under a contract from his employment referred to in para. (b) of the definition of contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer”. It was suggested therefore that having regard to the definition of employer in the 2001 Act as set out above that the chosen comparator was not even employed by the same employer as the claimants. In emphasising this particular point, it was noted that the school has no hand, act or part in the negotiations between the teachers or their union and the Department. Criticism of the decision of the Labour Court was based on the fact that the Labour Court allowed the claimants to compare their contract with the school with the contract agreed between two separate parties, namely, the chosen comparators and the Department of Education and Science. Reference in this context was made to a decision of the Employment Appeals Tribunal (Sullivan v Department of Education 1998 E.L.R. 217) in relation to a claim in respect of an alleged unlawful deduction within the meaning of the Payment of Wages Act 1991. It was found in the particular case that there were sufficiently close ties and control exercised by the Department of Education in relation to individual teachers and that therefore the Department was the employer for the purpose of the Payment of Wages Act 1991. On that basis it was argued that the Department could be deemed to be the employer in this context. It was pointed out that the Department can determine the conditions applicable to State paid teachers without any input from the school.
Reference was also made to the decision of the High Court in the case of Wilton v. Irish Steel [1999] E.L.R. 1. That was an equal pay claim. The plaintiff in that case took over the duties of her chosen comparator at a salary of £11,000. Her chosen comparator, Mr. Clarke, had been earning £14,000 when he was in the defendant’s employ. The plaintiff claimed that she was entitled to the same pay on the grounds that she was doing like work and that the only distinction between them was one of sex. An equality officer recommended that the plaintiff was not entitled to the same rate of pay as her comparator because the different rates paid could be justified on grounds other than sex. That recommendation was affirmed by the Labour Court. The equality officer had in the course of reaching a decision made detailed comparison with another individual who had taken on responsibilities similar to those of the plaintiff at the same time and was also paid less than the comparator. It was held by O’Sullivan J. in dismissing the appeal that the Labour Court had relied on the recommendations of the equality officer and had found that there were grounds other than sex which justified the difference in pay which could be “adequately identified”. It was also held that the plaintiff was entitled to choose her comparator and having done so, the equality officer was obliged to make a comparison with that person. Accordingly, if the recommendation showed that the equality officer had not compared the plaintiff with her comparator but with another, then an error of law would have occurred and the matter would have to be sent back to the equality officer. It is clear from that decision, as both parties accept, that a claimant is entitled to choose their own comparator but it is also possible in appropriate cases to conduct an analysis not only of the chosen comparator but also of others not chosen by a claimant as the comparator.
A further authority opened in relation to this particular issue was the case of Minister for Finance v. Una McArdle [2007] 18 E.L.R. 165 a decision of the High Court (Laffoy J.). That case related to a person employed as a lab technician with the State Laboratory on a fixed term contract of one year. It was found by Laffoy J. in refusing the reliefs sought by the Minister for Finance that “the defendant was treated less favourably than her chosen comparator in relation to eligibility for the vacancy and that the difference in treatment was not objectively justified. The defendant was entitled to rely on an established civil servant as a comparator as well as the same conditions of employment as the comparator including pension entitlements and access to a career break but excluding tenure as an established Civil servant.”
In the course of her judgment in that case, Laffoy J. at p. 8 of 14 stated:-
“The Labour Court summarised the combined effect of sub-ss. (1) and (2) of s. 5 as being that a comparable permanent employee for the purposes of the Act the permanent employee employed by the same employer as the complainant, who is engaged in like work with the complainant. The Labour Court followed the decision of this Court (O’Sullivan J.) in Wilton v. Steel Company of Ireland [1999] E.L.R. 1, where it was held that, for the purposes of the Anti Discrimination (Pay) Act, 1974, an employee is entitled to choose his or her comparator. Apropos of the position of the defendant, the Labour Court stated that it was accepted that she was engaged at all material times in doing the same job as permanent civil servants who were designated as established, and it was also accepted that there were no other civil servants employed by the plaintiff engaged in like work with her, who were designated unestablished. The Labour Court found that the defendant and a number of established civil servants performed the same work under the same or similar conditions and each was interchangeable with the other in relation to work. Therefore, the Labour Court found that the established civil servants were comparable permanent employees in relation to the defendant within the meaning of s. 5. On that basis, the Labour Court concluded that the defendant, as a fixed-term employee, was entitled to the same conditions of employment as her nominated comparators who were established civil servants (except, of course, in relation to the duration of her contract).
In this Court, counsel for the plaintiff did not dispute that the defendant was entitled to choose her comparator, but it was submitted that she had to choose a comparator for the purposes of the Act. He submitted that the difference in treatment between the defendant and her chosen comparator of which she complained was not due to her fixed-term status, but to her status as an unestablished civil servant. It was submitted that the discrimination of which she complained was not within the ambit of the Act. . . .
Counsel for the defendant submitted that the Labour Court was correct in holding that she was entitled to select as a comparator an established civil servant working in the State Laboratory. In relation to the application of s. 5 to her, para. (1)(a) was complied with, in that she and her comparator had a common employer and the Labour Court had found as a fact, and there was no appeal against the finding, that she complied with para. (a) of subs. (2). It was submitted that in the Act comparability is defined not by reference to status but by reference to having the same employer and being engaged in like work. Therefore, it was submitted that the plaintiff’s contention that the Labour Court fell into error was misconceived.
I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State Laboratory, who was engaged in like work with the defendant was a ‘comparable permanent employee’ for the purposes of s. 6 because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in s. 5 for a comparable permanent employee vis-à-vis the defendant as a fixed-term employee.”
Thus it was argued on behalf of the school relying on the above decision that the chosen comparator does not have the same employer. Indeed it was added that in the case of Sullivan v. The Department of Education referred to above, it is of significance that it was the department and not the relevant board of management that was the defendant in those proceedings. Thus a significant part of the school’s arguments are based on the contention that the appropriate employer in this case is the Department and not the school. In support of these arguments reference was also made to two decisions of Rights Commissioners in the cases of Mannion and Jacques and Keating v. Scoil Áine and the case of Noone v. St. Mary’s Holy Faith Secondary School Killester. In the first of those cases the Rights Commissioner found that there were two separate contracts in existence, one between the school and the claimant funded by the Department and the other which was privately funded between the school and each of the claimants outside the control of the funding of the Department. In other words the Rights Commissioner had regard to the different funding arrangements and contractual arrangements between the claimants and the school. In the second of those cases, that of Imelda Noone, the Rights Commissioner rejected a claim for pro rata pay and conditions in respect of the claimant’s Department paid incremental colleagues and therefore found that the claimant was not comparable to the Departmental paid incremental teachers on the respondent staff.
In support of their arguments on this point, reference was made on behalf of the school to a number of factual matters which it was contended showed significant differences between the claimants and their chosen comparators.
I think it is necessary to set out some of the details referred to on behalf of the school in relation to the differences between the claimants and their chosen comparators. The first point to note is that incremental teachers have salary paid according to the Department’s “rules for the payment of incremental salary to secondary teachers”. There are two categories of teachers entitled to receive incremental salary, a registered teacher and a recognised teacher. To be employed or paid by a private school a teacher does not have to come within those categories. The terms and conditions of a recognised and registered teacher’s employment are determined by the Department. Negotiations in relation to terms and conditions take place within the teachers conciliation council, a forum not open to privately paid teachers. A Department paid teacher is subject to redeployment, whereas a privately paid teacher such as the claimant is not. The qualifications are determined by the Teaching Council pursuant to the Teaching Council Act 2001. If not acceptable to the Teaching Council a teacher is not eligible for payment of salary from the Department. Such qualifications are not necessary for privately funded teachers. A State employed teacher is obliged to undergo a period of probation. This does not apply to a privately funded teacher. A privately paid teacher is not entitled to be appointed to a post of responsibility funded by the Department. The career break scheme is not open to privately paid teachers. The job sharing scheme is not open to privately paid teachers. Finally there are some differences in relation to the pension scheme provided by the Department of Education and Science.
The Claimants Response in Relation to the Appropriate Comparator
As I have mentioned previously, there is no issue between the parties as to the fact that a claimant is entitled to choose its comparator. Further it was accepted by counsel on behalf of the claimants that, as has been contended on behalf of the school, not only must the position of the comparator be considered, but the context in which they are employed must be considered and taken into account. In other words the claimants do not disagree with the findings of the Supreme Court in the case of National University of Ireland v. Ahearn and the High Court in the case of Wilton v. Irish Steel referred to above.
A principal part of the argument on behalf of the claimants was based on what was described as the tripartite relationship as identified in the decision in O’Keefe v. Hickey and Ors [2008] IESC 72. That case concerned a plaintiff who brought an action for damages for personal injuries arising from a series of sexual assaults committed by the first defendant on her in 1973, in her national school where the first defendant was the principal. The school was owned, managed and run by a private religious group but recognised by the State as a national school. The plaintiff claimed that the second, third and fourth defendants (“the State”) were vicariously liable for the tortuous acts of the first defendant. The plaintiff appealed to the Supreme Court against the decision of the High Court dismissing her claim against the State while holding that the state was not vicariously liable for the acts of sexual abuse of the first defendant. The Supreme Court held in dismissing the appeal that the State defendants were not liable to the plaintiff for the actionable wrongs committed against her by the first defendant as there was no direct employment relationship between the first defendant and the State. It was further held that the State could not be liable for the first defendant’s tortuous and criminal acts on the ordinary and established principles of vicarious liability. The first defendant was not the State’s employee: he was employed by the patron of the school and directed and controlled by the school’s manager. Accordingly, there was no question of the State defendant as having put the first defendant in his position as a national school teacher to do the class of acts in respect of which the action was brought. The Minister laid down rules for national schools that were general in nature and did not allow him to govern the detailed activities of any individual teacher. As a result of the system historically in place, the Minister was deprived of direct control of the schools. In the course of the submissions, counsel on behalf of the claimants referred in particular to a passage from the judgment of Hardiman J. at para. 125, where he stated:-
“But, in the end, my views on the Canadian and antipodean decisions are not central since I consider that even if they were to be followed here, except perhaps in their most extreme form, the Minister’s absence of direct control over the first-named defendant, (because such control had long since been ceded to the Manager and the Patron), prevents a finding against him. The first defendant was not an employee of the Minister and neither was he in any form of relationship with him which corresponds to any of the ordinary legal triggers for vicarious liability. Their relationship – a triangular one with the Church – is entirely sui generis, a product of Ireland’s unique historical experience.”
Thus in that case concerning the issue of vicarious liability, it was found that the first defendant in that case, the principal of a catholic national school was not an employee of the Minister.
The historical relationship between the State schools and teachers is considered at length in the course of the judgments in that case. I was also referred to the provisions of s. 24 of the Education Act 1998, which contains provisions relating to staff. It provides at s. 24(1) as follows:-
“(1) Subject to this section, a board may appoint such and so many persons as teachers and other staff of a school as the board from time to time thinks necessary for the performance of its powers and functions under this Act.
(2) The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance.
(3) A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate. . . .”
Relying on the decision of the Supreme Court in the case of O’Keeffe and Hickey and the provisions of s. 24 of the Education Act 1998, it was contended on behalf of the claimants that it is clear that teachers are appointed by the Board of Management of a school and that the Board is the employer of the teachers. Accordingly, it was submitted that in law the school or the Board of Management is the employer for all purposes.
Transposition of the European Directive
I now wish to deal briefly with the issues raised in regard to the transposition of the Directive. As noted previously Clause 4 of the Fixed Term Workers Directive states:-
“In respect of employment conditions, fixed term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed term contract or relation unless different treatment is justified on objective grounds.”
The Part Time Workers Directive is in similar terms as it provides:-
“In respect of employment conditions, part time workers shall not be treated in a less favourable manner than comparable full time workers solely because they work part time unless different treatment is justified on objective grounds.”
It was argued on behalf of the school that it is clear from the Directives that in order to be actionable the less favourable treatment must be solely because of the part-time or fixed term nature of the work. It is contended that neither the 2003 Act nor the 2001 Act fully implement those provisions of the Directive. If one looks, for example, at s. 9(1) of the Protection of Employees (Part Time Work) Act 2001, it provides:-
“Subject to subsection (2) and (4) and section 11(2) a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”
Section 6(1) of the Protection of Employees (Fixed Term Work) Act 2003, is in similar terms. It will be noted that the word “solely” is omitted from the provisions of the Act. it is the omission of that word that has led to the argument on behalf of the school that the State has failed to properly transpose the Directive in to Irish law.
Counsel on behalf of the claimants noted that the purpose of the Directive was to provide protections to part-time workers and fixed term workers by ensuring the application of the principle of non-discrimination and to establish the general framework for eliminating discrimination against part-time and fixed term workers. It was pointed out on behalf of the claimants that Clause 6(1)(i) of the Part-Time Workers Framework Agreement provides:-
“Member States and/or the Social Partners can maintain or introduce more favourable provisions for worker set out in this Agreement.”
On that basis it was argued that the Directive rights are a floor not a ceiling. In other words, the Directive provides the minimum rights that may be provided and the State legislature can expand on that.
Counsel on behalf of the school had pointed out that any less favourable treatment in this case is not on the grounds of the fixed term or part-time status of the employee and that the less favourable treatment was due to the different contractual arrangements between the claimants and their chosen comparators who are paid by a third party, namely the Department.
The Labour Court in its conclusion on this particular matter stated as follows:-
“If the court were minded to consider the relevance or meaning of the word “solely” as used in Clause 4 of the Fixed Term Work Framework Agreement, it could not reasonably be ascribed the meaning or effect canvassed by the respondent. If the word were to be interpreted literally, it would mean that any factor, no matter how trivial, which influenced an employer in not applying the principle of equal treatment, could operate as a full defence to a claim made under the Acts or the Directives. In that event the protection afforded by both Acts would be rendered nugatory and the objects pursued by the Directives would be subverted. This arises because there would rarely be a case in which an employer could not point to some status neutral consideration, which influenced an impugned decision, to avoid liability for what would otherwise be unlawful discrimination. Such a result could not have been intended.”
The claimants have argued in this respect that the determination of the Labour Court is correct. They argued that the Directive provided that different treatment of workers based solely in their status as part-time or fixed term workers is prohibited and that Irish legislation goes further and that it is permissible for the Irish legislation to provide greater rights than those provided by community law. This is not a violation of community law, but is a permissible extension of that law.
I should add in parenthesis in dealing with this issue that both sides are agreed that in one respect the determination of the Labour Court was in error on the law insofar as it dealt with the issue of the doctrine of direct effect in respect of a Directive. This related to the argument on behalf of the school to the effect that the Directive had been improperly transposed. As was noted in the determination of the Labour Court, the case advanced by the respondent was that the claimant was treated differently because he was paid for out of private rather than public funds as opposed to his status as a part-time or fixed term worker. This argument was supported by the fact that other teachers, also privately funded and full-time and permanent, are treated in the same manner as the claimant. The argument in this regard was based on the view that the Acts allow for a defence equivalent to that provided by s. 19(5) of the Employment Equality Acts 1998 and 2004, that is, grounds other than sex.
In the course of the determination the Labour Court stated:-
“In any event, these points are of academic interest in relation to the instant case. Neither the Part Time Work Act nor the Fixed Term Work Act provide for the defence on which the respondent seeks to rely. The only defence available under both Acts is to show that the impugned differences are objectively justified on grounds unrelated to the status of the claimants as either fixed term or part-time employees. In effect, the respondent is inviting the court to import into the legislation a provision which is simply not there. It is settle law that a court cannot interpret a statute by adding to or taking from the plain language in the text which was enacted by the Oireachtas. To do so would be for this Court to trespass into the legislative domain.”
In order to overcome this obvious difficulty the respondent seeks to rely on the Doctrine of Direct Effect of community law. The substance of the submissions made on the that point are that the Directive has been improperly transposed in Irish law and that in these circumstances the respondent is entitled to rely on the Directive in defending the instant claim. This line of argument is misconceived.
The Doctrine of Direct Effect describes a role of community law which, subject to certain requirements, allows an individual to assert a right before a national court by reliance on a provision of community law. In the case of a Directive the Doctrine operates where a member state has either failed to transpose the Directive altogether or had done so inadequately. In the case of Directives, the Doctrine can only operate against the State or an emanation of the State. It appears to be accepted that the respondent herein is such a body.”
The latter statement that it appears to be accepted that the respondent school is such a body is accepted by the claimants and the school to be an error of law. In other words, it is agreed that the school is not an emanation of the State. However, having conceded that that is an error of law, it appears to be the view of both sides that the error does not affect the decision of the Labour Court overall.
I now wish to look at the issue of objective justification. The submission of the school in relation to objective justification is that the different contractual and/or employment status of the chosen comparators compared to the complainants constitute objective justification for the less favourable treatment which has occurred. The Labour Court in its determination referred to the defence available under s. 7 of the Protection of Employees (Fixed Term Work) Act 2003, and s. 12 of the Protection of Employees (Part-Time Work) Act 2001, which deal with that defence. Section 12(1) provides as follows:-
“A ground shall not be regarded as an objective ground the purposes of any provision of this part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.”
The Labour Court in its determination made the point that:-
“In this instance the objective justification relied upon appears to be that the school cannot afford to pay the cost associated with affording the claimant equal treatment. That could not be accepted as a defence since in every case in which it is necessary to implement principles of equality there is a cost to the employer. The ECJ said in case No. C-243/95 Hill & Stapleton v. Revenue Commissioners & Department of Finance [1999] I.R.L.R. 466, that:-
“So far as the justification on economic grounds is concerned, it should be noted that an employer cannot justify discrimination…solely on the ground that avoidance of such discrimination would involve increased costs.
Moreover, there are clearly alternative means available to the employer in order to reflect the true economic cost of paying teachers in accordance with the statutes. It is a matter of choice for the respondent school as to whether or not it wishes to adopt such a course.”
Accordingly, the Labour Court in its determination rejected the defence of objective justification. The claimants in their submissions on this issue pointed out that it is well settled in community law that costs cannot objectively justify discrimination. The Labour Court referred to a number of authorities including Jorgensenv Forenigen Af Speciallaeger Case No. C-226/98 [2000] E.C.R.I. – 2447, and Schonheit v. Stadt Frankfurt Ammain Case No. C-4/02 and C-5/02 [2003] ECRI 12575. Finally, I should refer briefly to the decision in Del Cerro Alonso v. Osakidetza-Servicio Vasco De Salud Case C-307/05. That case considered the interpretation of the concept of objective grounds. In the course of its decision the court stated:-
“The court held that that concept of “objective reasons” must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed term employment contracts. Those circumstances may result in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a member state….
The same interpretation is necessary, by analogy, regarding the identical concept of “objective grounds” within the meaning of Clause 4(1) of the Framework Agreement.
In those circumstances, that concept must be understood as not permitting a difference in treatment between fixed term workers and permanent workers to be justified on the basis that the differences provided for by a general, abstract national norm, such as a law or collective agreement.
On the contrary, that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”
Relying on that authority, counsel on behalf of the claimants has strongly submitted and urged upon the court that the school has failed to establish that the unequal treatment in this case responds to genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.
Decision
The Appropriate Comparator
The arguments on this point centred on the decision in the case of O’Keeffe v. Hickey, the provisions of s. 24 of the Education Act 1998 and the provisions of s. 3(1) of the Protection of Employees (Part Time Work) Act 2001 and s. 2(1) of the Protection of Employees (Fixed Term Work) Act 2003, which define employers respectively as follows:-
“Employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment is ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individuals employer” and
“Employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employee has ceased, entered into or worked under), a contract of employment.”
It can be seen that there is a difference between the definitions of employer contained in the two Acts. Essentially however, an employer is the person with whom the employee has entered into or for whom the employee works under a contract of employment.
The provisions of s. 24 of the Act apply to schools which are fully State funded and schools which are private schools and partly funded by the State. Section 24(1) provides for the appointment of teachers and staff of a school by the Board of Management. The provisions of s. 24 go on to deal with the number and qualifications of teachers and staff of a school to be paid from monies provided by the Oireachtas and sets out various matters in that regard. It is clear from the terms of the statute that the terms and conditions of employment and other staff of a school appointed by a Board and who are to be paid from monies provided by the Oireachtas, shall be determined by the Minister with the concurrence of the Minister for Finance. Section 24(6) provides as follows:-
“Where all or part of the remuneration and superannuation of teachers and other staff of a school is paid or is to be paid from monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Finance.”
There are some observations which I think it is necessary to make in relation to those provisions. The first point to note as I have already said is that they apply to all schools, private and State schools. It is implicit, for example, in s. 24(6) that not all of the teachers in a school may be paid from monies provided by the Oireachtas. It is also clear that the terms and conditions of employment and the remuneration and superannuation of teachers paid from monies provided by the Oireachtas are matters which will be determined by the Minister. In other words, the Minister determines the terms and conditions of employment of State paid teachers and the Minister determines the remuneration and superannuation of the State paid teachers. I think it is also clear from the provisions of s. 24 that the employer of teachers is the Board of Management. It is the Board of Management of the school that appoints teachers. It is also clear from the provisions of the Act, and in particular s. 24(2), that the numbers and qualifications of teachers paid from monies provided by the Oireachtas is subject to the approval of the Minister. Nevertheless, all teachers are appointed by the Board of Management.
Counsel on behalf of the claimants in this case laid particular emphasis on the decision in the case of O’Keeffe v. Hickey as referred to previously. I have already referred to a number of passages from that judgment which deal with the issue of vicarious liability and which outlined and described in some detail the nature of the relationship between the Minister, teachers and a school. It is undeniably a feature of this case that the contractual arrangements between the claimants and the school, and the chosen comparators and the school are different. The State through the provisions of s. 24 controls key aspects of the contract of employment, namely terms and conditions and remuneration and superannuation of State funded teachers. The school has no input into the contract of employment of a State funded teacher and has no control over the significant terms of such contract of employment. On the other hand, the school does have control over those aspects of the contract of employment as between the claimants and the school. If the school in this case had control over the fixing of the terms and conditions of employment of all the teachers in the school, including the determination of the remuneration and superannuation, there could be no objection to the chosen comparators.
I have considered the authorities that were opened to me in the course of this hearing. It is interesting to note in the case of Sullivan v. Department of Education, a case before the Employment Appeals Tribunal, that there the respondent in those proceedings was the Department of Education although the claimant was employed by a school. The issue in that case related to the recognition of a degree allowance and she was a Department paid teacher. None of the cases opened to me in the course of the hearing involve a situation where the contract of employment between the employer and the employee is one in which the employer in respect of the chosen comparators has no hand, act or part in fixing important terms of the contract i.e. terms and conditions, including remuneration and superannuation.
In reaching its conclusions on this issue, the Labour Court found:-
“In the instant case, there is no dispute as to like work as between the claimant and his chosen comparator. On the above criteria as set out by Laffoy J., in the McArdle case, although there are some full-time privately funded teachers in the school, the claimant is entitled to choose a full-time department funded teacher as a comparator.”
As can be seen from that particular passage, the Labour Court referred to the decision in the case of Minister for Finance v. McArdle [2007] 18 E.L.R. 165. I now want to look at that decision in more detail. The facts of that case were that the defendant commenced employment in the State laboratory in her capacity as a laboratory technician in March, 2000 on a fixed contract for one year. The purpose of her employment was to assist in the analysis of samples of drivers suspected to have been under the influence of drugs. Her contract was renewed on an annual basis thereafter until 21st March, 2004. at that point, as was accepted before a Rights Commissioner, her contract was not managed appropriately. It was not until May 31st, 2005, that she was furnished with the renewed contract which, in the language of the Labour Court, purported to be in respect of the period from March 22, 2004 until March, 21, 2005. As was recorded in the determination of the Labour Court the plaintiff (the Minister for Finance) accepted that the contract furnished on 21st May, 2004, did not comply with the requirements of s. 8 of the Act and that the defendant became entitled to a contract of indefinite duration with effect from 22nd March, 2004. It appears from the decision that the defendant was governed by the same terms of employment as other permanent employees in respect of “annual leave, sick leave, pay, hours of attendance, etc”. The matters at issue, and which were the subject of complaint related to pension, access to career breaks and tenure.
Having set out the various submissions in relation to the entitlement of the employee to choose his or her comparator, it was noted in the course of the judgment as follows:-
“The Labour Court stated that it was accepted that she was engaged at all material times in doing the same job as permanent civil servants who were designated as established, and it was also accepted that there were no other civil servants employed by the plaintiff engaged in like work with her, who were designated unestablished. The Labour Court found that the defendant and a number of established civil servants performed the same work under the same or similar conditions and each was interchangeable with the other in relation to work. Therefore, the Labour Court found that the established civil servants were comparable, permanent employees in relation to the defendant within the meaning of section 5. On that basis, the Labour Court concluded that the defendant, as a fixed term employee was entitled to the same conditions of employment as her nominated comparators who were established civil servants (except, of course, in relation to the duration of her contract).
In this Court counsel for the plaintiff did not dispute that the defendant was entitled to choose her comparator, but it was submitted that she had to choose a comparator for the purposes of the Act. He submitted that the difference in treatment between the defendant and her chosen comparator of which she complained was not due to her fixed term status, but to her status as an unestablished civil servant. It was submitted that the discrimination of which she complained was not within the ambit of the Act.
…
Counsel for the defendant submitted that the Labour Court was correct in holding that she was entitled to select as a comparator an established civil servant working the State Laboratory. In relation to the application of s. 5 to her, para. 1(a) was complied with, in that she and her comparator had a common employer and the Labour Court had found as a fact, and there was no appeal against the finding, that she complied with para. (a) of subs. (2). It was submitted that in the Act comparability is defined not by reference to status but by reference to having the same employer and being engaged in like work. Therefore, it was submitted that the plaintiff’s contention that the Labour Court fell into error was misconceived.”
In relation to those submissions, Laffoy J. went on to state:-
“I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State Laboratory, who was engaged in like work with the defendant was a “comparable, permanent employee” for the purposes of s. 6 because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in s. 5 for a comparable permanent employee vis-a-vis the defendant as a fixed term employee.”
The provisions in s. 7 of the Protection of Employees (Part Time Work) Act 2001, mirror the provisions of s. 5 of the Protection of Employees (Fixed Term Work) Act 2003. Accordingly, an employee is a comparable permanent employee if the employee and the relevant part-time employee are employed by the same employer and one of the conditions referred to in subs (3) of s. 7 is satisfied in respect of those employees namely,
“(a) Both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(b) The work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed and/or the conditions under which it is performed by each, either are of small importance in relation to the work of whole or occur with such irregularity as not to be significant, and
(c) The work performed by the relevant part-time employee is equal or greater in value or the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”
There is no doubt that the school is the employer of the claimants. Bearing in mind the decision in O’Keeffe v Hickey, it appears that the school is also the employer of the chosen comparators for the purpose of issues of vicarious liability. That decision highlights the unusual tripartite relationship between the Department funded teacher, the Department and the school. However, the provisions of s. 24 of the Education Act 1998 are also of importance. S. 24 (3) makes it clear that the task of appointing teachers funded by the State falls on the board of management of a school. S. 24 (5) of the Act makes it clear that the terms and conditions of teachers funded by the State shall be determined by the Minister, with the concurrence of the Minister for Finance.
In a private school there will be a cohort of Department funded teachers and usually there will also be a cohort of privately paid teachers. The paymaster for each cohort is different. In the case of O’Keeffe v Hickey to which I have referred above, the unusual nature of the tri-partite agreement was described; the Board of management was found to be the employer of the teacher concerned in that case which involved the question of vicarious liability although the teacher was paid by the Department. There is no tri-partite arrangement in the case of the claimants. I have already referred to the case of Sullivan v Department of Education, a decision of the Employment Appeals Tribunal. It was observed in the course of argument in that case which involved a teacher, that the Department, as the paymaster of the teacher, was the respondent. It was argued by the Department in that case that the Department was not the employer but the “paying agent”. The tribunal in that case stated in relation to that argument:
“The tribunal does not accept that the Department is not the employer. The board of management or other managing authority of a school may well have a role in the day-to-day running of the school and indeed in engaging teachers, interviewing etc. The reality is that such boards of management or other managing authority in relation to state schools have little or no role when it comes to the question of remuneration of teachers, which is a most important element and aspect of the relationship between teachers and their employers. The tribunal considers that the role of the Department of education goes beyond that of “paying agent”. The Department is empowered to negotiate teachers salaries and qualification allowances and makes policy decisions in relation to the type of degree to which Ms Sullivan and other teachers have studied for in relation to the starters of such degree. As regards qualification allowances. The Department has a role in the whole area of maintaining appropriate pupil/teacher ratio in directly and regulates the number of teachers in any particular school as in the scheme of redeployment. If ultimately redeployment in the case of any particular teacher it cannot be settled by agreement, the Minister is empowered to withhold the grant of a sum of money which would go towards paying that particular teacher’s salary and effectively has the power to deprive a particular teacher of his or her salary.
In all of those circumstances, the tribunal does not accept that the Department is simply a “paying agent”, which simply pays out the money at the request of the State School concerned. In relation to the question of the hours worked for which a teacher qualifies for his or her monthly salary, the school principal has a role in terms of certifying the hours worked. However in respect of all teachers, when it comes to the question of qualification allowances, these aspects of the teacher’s salary involve no role for the school and are something which go to the teachers particular qualification and are a constant. In fact the school principal describes him or herself as “employer” on the monthly certification form at the form is not conclusive.”
The decision in the case of Sullivan v Department of Education highlights the different and complicated employment arrangements as between Department funded teachers and privately funded teachers. One wonders what relief, if any, could have been obtained by the claimant in the case of Sullivan v Department of Education had she pursued her case against the school concerned as opposed to the Department. It is hard to see how the Tribunal in that case could have come to any other conclusion. The recognition of qualifications and the payment of a qualification allowance was always a matter to be dealt with by the Department of Education, because it set the criteria for the payment of that allowance. That case provides one small example of the different contractual arrangements that exist between Department funded teachers and the school in which they are employed and privately funded teachers and the school in which they are employed.
Although the chosen comparators appear to come within the definition of comparable full-time employees as defined in the legislation, I have come to the conclusion that because of the fact that the Minister determines the terms and conditions of the Department funded teacher and the school determines the terms and conditions of the privately paid teachers, the Labour Court has fallen into error in finding that the claimants were entitled to choose a full time Department funded teacher as a comparator. The school has no hand, act or part in determining the salary and other terms and conditions of the Department funded teacher. In determining the employer for the purpose of the legislation in relation to agency workers, the legislation expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is in an analogous position. I do not accept that the chosen comparators have the same type of employment contract or relationship as the claimants with the school. To that extent, it seems to me that the Department has to be viewed as the employer of the chosen comparators for the purpose of the legislation.
Objective justification
I want to make some very brief observations on this issue. The school in this case has argued that the different contractual and/or employment status of the chosen comparators as compared to the claimants constitutes objective justification for a less favourable treatment which has occurred as between the claimants and their chosen comparators. The Labour Court in the course of its determination stated that “the objective justification relied upon by the school appears to be that the School cannot afford to pay the cost associated with affording the claimants equal treatment.” There is an abundance of authority to which reference has already been made to the effect that the issue of cost cannot justify unequal treatment. I have already referred to the decision in Hill & Stapleton v. Revenue Commissioners & Department of Finance and to the decision of the ECJ in Jorgensen above. It seems to me to be very clear and obvious that the purpose of the Directive and the legislation transposing the Directive into Irish law would be defeated if cost alone was accepted as a defence because as pointed out by the Labour Court “in every case in which it is necessary to implement principles of equality there is a cost to the employer”.
As I have already mentioned, part of the argument in this case centred on the omission of the word “solely” from the legislation and in particular from the provisions of section 12 and section 7 referred to above. An argument was made on the behalf of the school to the effect that the omission of that word meant that the directors had been improperly transposed into Irish law. I do not accept that argument on the part of the school and I accept the arguments of counsel on behalf of the claimants in that regard. It is important to remember the purpose of the framework agreement, which has been put into effect by the directive and implemented by the legislation referred to in these proceedings. If one considers Council directive 1999/74/EC in relation to fixed term work it will be seen that its purpose is stated to be to:
“(a) improve the quality of fixed term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships.”
In the part time work directive it was stated as follows:
“Whereas the signatory parties wished to conclude a framework agreement on part-time work setting out the general principles and minimum requirements of part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers and to group and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike.”
In other words, the purpose of the Directives and the legislation implementing the Directives is to prevent discrimination against workers by reason of their status as fixed term workers or part time workers.
I accept that the test to be applied in considering a defence of objective justification is that set out in the case of Del Cerro Alonso referred to above, namely, that the unequal treatment responds to a genuine need; is appropriate for achieving the objective pursued and is necessary for that purpose. However, in the light of the finding as to the chosen comparator, it is not necessary to further address the arguments in this area.
Conclusion
As I have found that the Labour Court fell into error in relation to the selection of the chosen comparators, I will hear further from the parties as to the effect of that finding.
British Airways Plc v Pinaud
[2018] EWCA Civ 2427
Lord Justice Bean:
Florence Pinaud joined British Airways on 24 June 1985 as a full-time cabin crew member. She was promoted to the rank of purser in 1993. Until 2005 she was employed on a full-time contract under which she would work six days on duty followed by three days off duty. This 2:1 ratio meant that she was paid on the basis of 243 work days per year.
On her return from maternity leave in 2005 she made a request, which was accepted, for a part-time contract described as a “14-14” contract. Under this contract she would be on duty for 14 days and off duty for the next 14 days. Within the 14-day period during which she was on duty she had to be “available for work” on only ten days. “Available for work” did not usually mean her having to work on each of the ten days. She might, for example, actually be in the air on six of the ten days; go on a training course on one day; and be on standby (whether at home or at the airport) on three days, during which she could be summoned to go on a flight at very short notice. Since (disregarding fractions of a day) there are 13 28-day cycles in a calendar year, the effect of the 14-14 contract was that she had to be available for work on 130 days each year.
On 30 April 2015 Ms Pinaud’s employment terminated when she took voluntary redundancy. On the same date she submitted a written grievance complaining that she had been discriminated against as a part-time worker, because, although she was paid exactly 50% of a full-time salary, the number of days on which she was required to be available to work each year (130) was 53.5% of the number of days when a full-time worker in the same job was required to be available (243).
Following the rejection of her grievance and an unsuccessful internal appeal Mrs Pinaud presented her complaint to an employment tribunal on 25 August 2015. We were told that 628 of her colleagues have presented tribunal claims against British Airways, which have been stayed pending the outcome of this appeal, and that this is regarded both by British Airways and by the trade unions to which their cabin crew belong as a test case.
In a skeleton argument submitted on behalf of Ms Pinaud to the Reading Employment Tribunal (“ET) at the start of the hearing before them, Michael Smith of counsel submitted at paragraph 19 that:-
“(1) The Claimant as a part-time worker, was required to perform 3.5% more work days proportionately than a full-time worker from 2005-2015; and
(2) The Claimant was regularly required to work more than 50% of the duty hours of a full-time employee, despite receiving 50% of a full-time employee’s salary.
The above constitutes less favourable treatment under Regulation 5″
It was agreed before the ET that Ms Fiona Evans, a cabin crew Purser who had been employed on a full-time 6-3 contract since 1993 was a suitable comparator.
The regulations
Regulation 5 of the Part-Time Workers (Prevention of Less Favourable) Treatment Regulations 2000 (“the PTW Regulations”) provides:-
“5.—(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker—
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if—
(a) the treatment is on the ground that the worker is a part-time worker, and
(b) the treatment is not justified on objective grounds.”
These two subparagraphs are at the heart of the present case. It is convenient shorthand to refer to paragraph 5(1), coupled with paragraph 5(2)(a), as dealing with prima facie unfavourable treatment, which has to be shown before the issue of justification falls to be considered.
British Airways, however, also refer to the pro rata principle which is dealt with in Regulations 5(3), 1(2) and 1(3):-
“5(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.”
The “pro rata principle” mentioned in Regulation 5(3) is defined in Regulation 1:-
“1(2) In these Regulations—
…
“pro rata principle” means that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker;
1(3) In the definition of the pro rata principle and in regulations 3 and 4 “weekly hours” means the number of hours a worker is required to work under his contract of employment in a week in which he has no absences from work and does not work any overtime or, where the number of such hours varies according to a cycle, the average number of such hours.”
It was common ground between counsel before the ET, as it has been before us, that the first way in which the Claimant put her case, namely that she was required to perform 3.5% more work days proportionately than a full-time work, did not engage the pro rata principle, but that the second way of putting the case, namely that she was required to work more than 50% of the duty hours of a full-time employee despite receiving only 50% of the latter’s salary, did engage the pro rata principle.
The decision of the employment tribunal (ET)
The ET (Employment Judge Vowles and two lay members) heard evidence from the Claimant and from two witnesses on behalf of British Airways. They found that the Claimant had been treated less favourably on the ground that she was a part-time worker; rejected the employer’s defence that the less favourable treatment was justified; and ordered that the case should be listed again to determine remedy. On the central issue their judgment was short and to the point:-
“25. It was … not in dispute that the claimant had to be available for work on 130 days per year and the comparator had to be available for work on 243 days per year.
26. The respondent accepted that the requirement to be available for 243 days and 130 days respectively amounted to terms of the respective contracts of employment of the comparator and the claimant.
27. 50% of 243 days would be 121.5 days. The Claimant had to be available for 130 days. That was 8.5 days more than 50%. Put another way, she had to be available for 53.5% of the days on which the comparator had to be available, but was only paid 50% of the comparator’s salary.
28. The Tribunal found that the Claimant had therefore been treated less favourably than the comparator as regards the terms of her contract within the meaning of Regulation 5(1)(a).
29. Under Regulation 8(6) where less favourable treatment is found it is for the employer to identify the ground for that less favourable treatment.
…
33. The Tribunal rejected the suggestion that 3.5% additional availability was trivial. The requirement to be available for work for an additional 8.5 days over the course of a year was a significant period.”
The ET went on to find that the reason for the requirement to be available for the additional 8.5 days per year was because the Claimant was employed on the 14-14 contract on which only part-time workers were employed. After referring to the decision of the EAT in Carl v University of Sheffield [2009] ICR 1286 they found that part-time worker status was the “effective and predominant cause” of the less favourable treatment. It was common ground before us that, if the ET were correct in their view that the requirement to be available for 130 days rather than 121.5 days constitutes less favourable treatment, causation is not an issue.
We can summarise the ET’s decision on justification briefly since, as will shortly appear, it was not in dispute before us. The ET found that there was a legitimate objective in the part-time shift pattern but that the less favourable treatment was not a necessary or appropriate means of achieving the objective; and that “a non-discriminatory means of achieving the same legitimate aim would be to simply re-name the part-time 14-14 contract as a part-time 53.5% contract and pay an annual salary of 53.5% of the full-time 6-3 salary.”
The ET went on to note that they had been presented with a range of statistics showing the actual hours worked by the Claimant and the comparator and others who, like Ms Evans, were also on a 6-3 full-time contract. They found that, so far as concerned the first way in which the Claimant put her case, the statistics were not only unnecessary but irrelevant. They emphasised that “the tribunal’s finding is based on the requirement to be available for work on a specific number of days and not on the actual work which was carried out on those days.”
They concluded by saying that they considered it unnecessary to consider the complaint based on the alternative way of putting the Claimant’s case (being required to work more than 50% of the duty hours of a full-time comparator despite receiving 50% of her salary) but added that that matter, and the statistics presented to them about the actual number of hours worked, might be relevant to the issue of remedy.
The appeal to the Employment Appeal Tribunal
The appeal to the EAT was heard by HHJ David Richardson, sitting alone. In a reserved judgment given on 8 September 2017 he held that the ET had been right to compare the number of days the Claimant was required to be available for work (130) with the number of days on which the comparator was required to be available for work (243), but that the ET had erred in their approach to justification. He decided to remit the issue of justification to the ET and said:-
“46. The ET, having accepted that the unfavourable treatment was in pursuance of a legitimate aim, was, to my mind, bound to make a practical assessment of the impact of the unfavourable treatment, when deciding whether the treatment was appropriate and necessary for achieving the objective pursuit. Part of the case of the Respondent on this question depended on the statistical evidence. It argued that the impact on the part-time worker was limited, because the statistics showed that the part-time worker, once the bidding process was undertaken, was in practical terms not required to work more hours than her full-time comparator. Hence, even if there was, as so the ET found, unfavourable treatment, the Respondent said that the statistics showed that its impact was minimal.
47. I confess that I am sceptical about the Respondent’s “swings and roundabouts” argument based on the statistical evidence. I find it difficult to see why, if the part-time worker had to be available for a greater number of days, this should not work its way through into a significant impact for the employee, both in terms of days of availability and hours worked. However, once granted that the ET found the unfavourable treatment to be in pursuance of a legitimate aim, I think the Respondent’s case about the practical impact required to be addressed. The ET appears to have thought that the mere fact that the Claimant would have to be available to work on proportionately more days meant that the statistics were irrelevant. I do not think this was correct. The fact that the Claimant had to be available to work on proportionately more days was the feature that required to be justified. Its existence did not rule out an enquiry into the extent to which it impacted on her so that a conclusion could be reached on whether the measure was proportionate.
48. It also seems to be impossible for the ET to advocate, as it did, an increase in salary as a simple, non-discriminatory way of achieving the same aim, without asking whether the unfavourable treatment, in terms of days of availability, did work its way through into the amount of work the Claimant did. If it did not, then it is far from obvious that an increase in salary was an alternative way of achieving the legitimate aim, which the Respondent could be expected to adopt. It might, indeed, be out of proportion to the impact of the disparate treatment on the Claimant.
49. I am told that this feature, the ET’s suggestion of a salary increase, did not figure largely in the hearing and was not put to the Respondent’s witnesses. If it had been, I think the ET would have understood more clearly the importance of addressing the statistical evidence which it had before it.
50. It follows that on that ground, the appeal will be allowed. The ET’s finding of less favourable treatment will be upheld but the question of justification will be remitted.
51. I turn now to the question of remission. If justification of the first way in which the Claimant put her case is to be remitted then as matter of elementary justice the ET will also have to consider the second way in which she put her case, so the matter is remitted for the ET to consider afresh justification in respect of the first way in which the claimant put her case and all aspects of the second way in which she put her case.”
The appeal to this court
British Airways appeal against the decision of the EAT insofar as it upheld the finding by the ET that the fact that the Claimant had to be available for 130 days rather than 121.5 days per year established her case of prima facie less favourable treatment within Regulation 5(1)-5(2). There is no cross-appeal against Judge Richardson’s decision to set aside the ET’s decision on justification and remit it to a freshly constituted ET for re-hearing; and it is clear that when the case does come before the ET again they should pay careful attention to what Judge Richardson has said about how the justification issue should be approached.
I have said that the ET dealt with the central issue briefly and I shall do the same. The terms of the Claimant’s contract required her to be available for work 130 days per year. The terms of the comparator’s contract required her to be available 243 days per year. The Claimant was paid 50% of the comparator’s salary. Half of 243 is 121.5. There may be advantages to the part-time worker from the way the 14-14 contract was constituted, and these may or may not be found sufficient to establish the justification defence when the case is remitted to the ET. But that does not affect the question of whether the terms of the Claimant’s contract, insofar as they require her to be available for 130 days rather than 121.5 days, were prima facie less favourable than those of her full-time comparator: which is all we are concerned with in this appeal. In my view the ET were right to hold that they were.
We were referred to the decision of this court in Royal Mencap Society v Tomlinson-Blake [2018] IRLR 932 as to the meaning of the phrase “required to work” in the National Minimum Wage Regulations 1999 and 2015. I did not find this of assistance in the present case for two reasons. Firstly, the phrase “required to work” only occurs in the PTW Regulations in the sections dealing with the pro rata principle which are irrelevant to the point in issue on this appeal. Secondly, the NMW Regulations have extensive and detailed provisions on what amounts to work which are not found in the PTW Regulations.
When the case is remitted to the ET, as I consider it should be, on the basis that a prima facie case of less favourable treatment has been established, the ET will first have to consider the justification defence. If that is rejected, the ET will then have to go on to consider remedy. British Airways were understandably concerned at the ET’s observation that a non-discriminatory way of treating the part-time workers on the 14-14 contract would have been to increase their pay to 53.5% of the full-time salary. The Claimant’s schedule of loss puts forward as one alternative a simple claim for 3½% of salary and pension contributions over the ten-year period during which the Claimant was on the 14-14 contract: a claim for more than £50,000 in her case alone.
The remedy under Regulation 8 of the 2000 Regulations is compensation:-
“(9) … such as the tribunal considers just and equitable in all the circumstances having regard to (a) the infringement to which the complaint relates; and (b) any loss which is attributable to the infringement having regard … to the pro rata principle except where it is inappropriate to do so; and
(10) The loss shall be taken to include
(a) any expenses reasonably incurred by the claimant in consequence of the infringement; and
(b) loss of any benefit which he might reasonably have expected to have had, but for the infringement.”
Both counsel before us accepted that should the case at the remitted hearing get to the stage of remedy, compensation would be at large. I will only say that if the Tribunal accepts the statistical evidence put forward by British Airways to the effect that the days per year actually worked by the Claimant were fewer pro rata than the days actually worked by her comparator, but rejects the defence of justification, it would be a very surprising conclusion to go on to find that she has suffered “loss attributable to the infringement” amounting to 3.5% of her total remuneration over the ten year period which is the subject of her claim, or that compensation on that special damage basis would be just and equitable in all the circumstances.
I would dismiss this appeal.
Lord Justice Flaux:
I agree.
Lord Justice Peter Jackson:
I also agree.
Code of Practice on Access to Part-time Work
1. Introduction
2. Background
3. Purpose of the Code
4. General Principles
5. Business Context
6. Reviewing and Developing Company/Organisational Policies and Practices
7. Recruitment
8. Requests by employees
to (a) transfer from full-time to part-time work, and (b) transfer from part-time to full-time work or to increase their working time should the opportunity arise