Who pays the guards?
Labour & European Law Review Weekly Issue 318 09 May 2013
Article 141 of the EC Treaty lays down the principle of equal pay between men and women for equal work or work of equal value. In Kenny and ors v Minister for Justice, Equality and Law Reform and ors, the Court of Justice of the European Union (CJEU) held that the goal of good industrial relations is just one factor among many that courts could take into account when deciding a claim of indirect sex discrimination in pay.
A group of (mainly female) civil servants who were assigned to clerical duties with the Garda, the Irish police, claimed in July 2000 that they were doing work equivalent to male police employees who carried out clerical duties in so-called “designated” posts.
The number of designated posts had been determined by an agreement concluded between the management and the representative bodies of the Garda as part of a process of reduction known as “civilianisation”.
Decisions of lower courts
The Irish Labour court found prima facie indirect pay discrimination - at the time the claims were lodged, 279 of the 353 designated posts were male, whereas most of the 761 clerical officers were female.
However, it also found that the deployment of police officers in reserved clerical posts could be justified as it was appropriate and necessary in order to meet the operational needs of the force; and that paying them rates which corresponded to the rates of pay of members of the police force met the objective.
The High Court asked the CJEU to decide whether the lower rates of pay could be justified, given the finding of prima facie indirect gender discrimination in pay in breach of article 141. It also asked whether the Labour Court was wrong when it decided that the “interests of good industrial relations” could be taken into account when justifying differences in pay.
Decision of CJEU
The CJEU said that employees perform the same work or work to which equal value can be attributed if, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, they can be considered to be in a comparable situation although this was for the national court to decide.
It also reiterated the principle that any difference in pay between men and women for the same work or work of equal value must be considered contrary to article 141 unless it could be justified by objective factors based on a legitimate objective.
As the means chosen to achieve that objective must be appropriate and necessary for the purpose, the issue for the court to decide was not whether the employer could justify different rates of pay between different groups of comparators, but whether they could justify the difference in pay based on objective factors of a representative group of comparators over a reasonable period of time.
The CJEU has previously held that rates of pay decided by collective bargaining could be taken into account by national courts as a factor when assessing whether differences in pay were due to objective factors unrelated to sex discrimination. It therefore held that courts could take the interests of good industrial relations into consideration (as one factor among others in a defence of justification) as long as they corresponded to a real need on the part of the employer.
The collective agreements must also observe the principle laid down in article 141 and must be just one factor among many for the national court to take into account. It was also for the national court to decide to what extent they should be taken into consideration.