CPSU
EQUALITY REPORT
THERESA DWYER,
EQUALITY OFFICER
ANNUAL DELEGATE
CONFERENCE
CORK
2012
GARDA EQUAL PAY CASE
1. BACKGROUND
The claim or equal pay for CPSU members against Garda who were performing
clerical/administrative duties in the Garda area was originally identified in the early
1990s. At that time the Garda area was under the aegis of the Department of
Justice and the majority of our members there were in the CA/Typist grade. The
union did not seek to lodge a claim at that time as discussions were taking place on
restructuring the grades to amalgamate the Paperkeeper, CA, CA/Typist and CO into
one grade of CO. The union feared that if an equal pay claim was lodged that the
Department of Finance would, through the Grade Restructuring negotiations, try to
trade off on any such claim. The impact of the Restructuring negotiations for the
Garda area was a huge level of uplifts to CO on the basis that there were such poor
promotional opportunities prior to this. The Grade Restructuring agreement
concluded in 1997 and in 1998 Ursula Nolan, the official with responsibility for
Justice (including the Garda area) and Blair Horan put together a complaint on
behalf of seven members citing seven Garda comparators and submitted the claims
to the Equality Tribunal. Rosaleen Glackin returned to CPSU in 1999 and the Justice
areas as well as these complaints were assigned to her.
2. EQUALITY TRIBUNAL / LABOUR COURT
Up to 1998 there were only two pieces of equality legislation that the union could rely
on to claim discrimination – the Anti-Discrimination Pay Act 1974 and the
Employment Equality Act 1977. However in 1998 a new comprehensive piece of
equality legislation was introduced called the Employment Equality Act which came
into force in October 1999 and provided for Mediation to be offered in all claims of
discrimination. The union was invited and agreed to go to Mediation in the Equality
Tribunal and through this process were offered promotions to SO for the seven CO
claimants as a settlement. This confirms the unions suspicion that had we taken a
case prior to the conclusion of the Grade Restructuring Agreement the Department
of Finance would have sought to trade a small number of promotions to get closure
on the claim. The union refused this paltry offer and in 2004 the case was assigned
to an Equality Officer and following submissions it then proceeded to a hearing.
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The Equality Officers Decision was comprehensive and ruled in favour of the union’s
case on behalf of the claimants. The employer appealed the case to the Labour
Court. The Labour Court ruled against the union on this appeal giving three main
reasons:


The comparators were not representative of the Garda who were in
the group assigned to designated posts.
Gardaí are required to exercise police powers. The seven
comparators cited did not need police powers.
Industrial relations factors. The Chairman of the Labour Court
accepted that there were more Garda doing CO work than needed but
Garda management were making a genuine effort to reduce this
number through Civilianisation and the only Garda left in these posts
had police powers.
What this effectively meant was that the Labour Court did not accept the
comparators were performing ‘like work’ or work of equal value with that of the
claimants, that there are objective grounds other than gender justifying why Garda
are doing the work and that genuine efforts were being made by the employer to
address the issue. The union never agreed with the Labour Court accepting the
management view on the comparators not being representative of the group.
However for technical reasons beyond our control at the time, management were
allowed to give sworn evidence at the hearing without our knowledge while we had
opted not to give sworn evidence.
3. APPEAL TO HIGH COURT
The Labour Court Decision came out in August 2007. In September 2007 (following
the retirement of Rosaleen Glackin) Blair Horan again took over as Case Officer and
appealed the Labour Court Decision to the High Court arguing with our legal team to
have the legal issues in contention referred to the Court of Justice of the European
Union (CJEU). While I had a working knowledge of the case it was at this stage that
I became fully involved in the issues. After receiving submissions from both sides
and hearing the arguments in the Court the Judge agreed to the referral to the
CJEU. When agreement was finally reached as to the questions to be referred by
the Judge it was then a matter of working with our legal team in preparing our
submission. The union’s submission went to the CJEU in early December 2011.
The five questions referred are:-
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Question 1
In circumstances where there is prima facie indirect gender discrimination in pay, in
breach of Article 141 (now Article 157 TFEU) and Council Directive 75/117/EEC, in
order to establish objective justification, does the employer have to provide:
a. Justification in respect of the deployment of the comparators in the
posts occupied by them;
b. Justification of the payment of a higher rate of pay to the
comparators; or
c. Justification of the payment of a lower rate of pay to the
complainants?
Question 2
In circumstances where there is prima facie indirect gender discrimination in pay, in
order to establish objective justification, does the employer have to provide
justification in respect of:
a. The specific comparators cited by the complaints and/or
b. The generality of comparator posts.
Question 3
If the answer to Question 2(b) is in the affirmative, is objective justification
established notwithstanding that such justification does not apply to the chosen
comparators?
Question 4
Did the Labour Court, as a matter of Community Law, err in accepting that the
“interests of good industrial relations” could be taken into account in the
determination of whether the employer could objectively justify the difference in pay?
Question 5
In circumstances where there is prima facie indirect gender discrimination in pay,
can objective justification be established by reliance on the industrial relations
concerns of the respondent? Should such concerns have any relevance to an
analysis of objective justification?
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4. COURT OF JUSTICE OF EUROPEAN UNION
While a decision is not expected for twelve to eighteen months I have received
notification of the written observations of the Kingdom of Spain and of the European
Commission which are quite positive for the union. Under the Rules of Procedure of
the CJEU the Court may decide to skip the oral part of the procedure provided that
both parties do not lodge written objections. The oral hearing has always been a
very important part of the process and our legal team have been instructed to lodge
an objection and seek to ensure the oral hearing takes place. The time limit for
Member States to lodge their observations was the 10th April 2012 and I am awaiting
confirmation as to whether or not any further observations have been lodged. This
is significant because the two sets of observations so far are very positive from our
perspective.
The two key concerns for us centre around the comparators we can use and whether
or not industrial relations agreements can be used as objective justification as a
defence in this equal pay case. In relation to the first issue the Kingdom of Spain
observes that ‘….the justification must relate to work of like value to that of the
appellants, that is to say the comparators referred to by the appellants who,
according to the order of reference, carry out the same work.’ This means the actual
comparators cited in the case and not the generality of the comparator posts should
be used. In terms of the industrial relations issues their view is that it is not
acceptable to try to ensure ‘good industrial relations’ at the cost of discrimination on
grounds of sex. The Commission have observed that as there is a group of Garda
performing the same work as the complainants then that is the group that would be
the only appropriate comparator group in this case. As regards the industrial relation
issues their view is that ‘…once discrimination in relation to pay has been
established, and as long as measures for bringing about equal treatment have not
been adopted, the employer must grant to the persons in the disadvantaged class
the same advantages as those enjoyed by the favoured class.’ In other words equal
pay, therefore industrial relations cannot be used as a defence in terms of objective
justification. If these views are shared by other Member States then I would be quite
optimistic as to the outcome from the CJEU.
5. FOLLOW ON CLAIMS
To date the union has, in addition to the original seven claimants, lodged a further
7,289 claim with the Equality Tribunal. These are broken down as follows:-
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CO Female Garda Area
CO Female Justice Area
CO Female All Departments
631
465
5,202
SO Female Garda Area
SO Female Justice Area
SO Female All Departments
106
64
821
I have commenced work on these follow-up cases in terms of updating our files. The
above figure will fluctuate as I work through the claims and identify those still in
membership and those who have joined or re-joined CPSU and must be added to
the list. Where members have left the union I intend to invite them to re-join on the
basis of this case otherwise they will have to be removed as the union will not have
any representation rights on their behalf. In addition a ‘data bank’ broken down by
Department/Office, grade and location will have to be established.
6. FURTHER CLAIMS
When this piece of work is complete the union will be in a position to conduct further
trawl inviting members who satisfy the criteria as a complainant to lodge a claim and
they will be represented. The union also has a number of male claimants on file but
up to now there was no legal basis on which to allege discrimination. However on
foot of a case in the UK our male members can now be included in this case which
means that I will have to look for new comparators for not just the new female
claimants but also for all male claimants.
7. CONCLUSION
This is a huge body of work and will take a number of months to complete and will be
influenced by the outcome in the CJEU which will not issue for at least twelve
months. During this time I intend to complete the task of establishing and updating a
‘data bank’ for claims, those already received and those that will be invited to make a
claim in the future. There are legal and procedural requirements that must be met
when making a claim of discrimination and members will be advised and guided
through the process in the coming months. While members may be anxious to know
if they are on the list of those that have already made a claim, please note that all
members will have an opportunity to be part of this case if they wish. Any queries
received in Head Office to date will be dealt with in due course.
END
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