The Supreme Court has sent a dispute over alleged sex discrimination in pay back to the Labour Court, finding that it had not properly considered the circumstances behind different rates of remuneration.
The case was brought by 42 male security services operatives employed by National University of Ireland Cork as “general attendants”. They claimed their pay was discriminatory compared with that of two female telephone switchboard operators. The Supreme Court judgment, delivered by Mr Justice McCracken on 10 June 2005, identifies the respondents collectively as Alan Ahern & Ors.
An equality officer had found that the two operators were valid comparators and recommended that the claimants receive the same rate of pay. The Labour Court upheld that finding after examining the jobs, including through a workplace inspection. It concluded that, on balance, the work was of equal value and that the pay difference was not justified on grounds other than sex.
The two operators had worked full time before entering a job-sharing arrangement in August 1992, each working every second week. When switchboard hours were extended in February 1993, they retained shorter hours and gave up accounts duties, which continued to be done by full-time operators. The Labour Court considered their work sufficiently similar to that of the security staff to constitute “like work”. The Supreme Court held that it was entitled to reach that factual conclusion.
But the Supreme Court said the Labour Court had to assess the separate question of why pay differed in the wider context of the operators’ work arrangements and their full-time colleagues. The two comparators were paid at the same rate as full-time operators despite working shorter hours and having fewer duties. The Supreme Court said the Labour Court should have considered why that arrangement existed and whether the pay difference with the security staff might have the same basis.
Mr Justice McCracken said the Labour Court had failed to consider the effect of the shorter hours and reduced duties when deciding whether reasons other than sex justified the pay difference. The judgment said facilitating family responsibilities through job sharing could be a basis for different remuneration and was not confined to female employees.
The Supreme Court did not itself decide whether the claimants had been discriminated against. It found an error of law in the Labour Court’s consideration of the surrounding circumstances and ordered the matter remitted to that court for reconsideration in light of the judgment. It also said the employer must bear the onus of putting forward grounds other than sex under the relevant provision, though that point was not decisive in this appeal.