High Court of Ireland Decisions

1. The first to tenth named Applicants are employed in the Department of Agriculture, Food and Forestry and are referred to as "the Claimants". The eleventh named Applicant is the Claimants' trade union and represented the Claimants before an Equality Officer and the Labour Court in respect of the decision which is the subject matter of these proceedings. The Respondent and the Notice Party are both Ministers of Government.

2. The Claimants are all employed in the Department of Agriculture, Food and Forestry ("the Department") as Poultry Officers. The Union made an application to an Equality Officer on their behalf pursuant to the provisions of the Anti-Discrimination (Pay) Act, 1974 ("the 1974 Act"). On 31st May, 1995, the Equality Officer issued a recommendation bearing record number EP03/1995 which found that the Claimants were employed on "like work" with that performed by their male comparator in terms of section 3(c) of the 1974 Act. The comparator was employed by Teagasc as an Agricultural Development Officer but the Equality Officer further found that the Claimants and the comparator did not have the same terms and conditions of employment for the purposes of section 2(1) and therefore he was unable to find that they were employed by "associated employers". Consequentially, the Equality Officer recommended that the Claimants were not entitled to equal pay with the comparator.

3. The Union, on behalf of the Claimants, appealed the recommendation to the Labour Court, pursuant to section 8 of the 1974 Act, on the following grounds:-

4. On 7th May, 1996, the Labour Court issued its determination, DEP296, which dismissed the appeal, after considering all the submissions and held as follows:-

5. The Applicants claim that, in reaching its determination, the Labour Court erred in law:-

6. The Applicants' claim is for a declaration that they are entitled to the same rate of remuneration as the comparator with whom the Claimants have been found to perform "like work"; and, in the alternative, an Order setting aside the determination of the Labour Court in so far as the determination found that the Claimants were not entitled to the same rate of remuneration as the comparator and remitting the matter to the Labour Court to be determined in accordance with the findings of law made by this Court.

7. The matter is brought before this Court on foot of the grounding Affidavit of Kevin Callinan sworn on 27th May, 1996 and filed on 28th May, 1996 and the exhibits therein, namely the recommendation dated 31st May, 1995 of the Equality Officer bearing record number EP03/1995 which found that, although the Claimants were all employed on "like work" with the named comparator, they were not entitled to the same rate of remuneration, and the determination, DEP296, of the Labour Court on the appeal which upheld the Equality Officer's recommendation and dismissed the appeal. The replying Affidavit of the 15th November, 1996 on behalf of the Respondent was sworn by James Caddle, Assistant Principal Officer formerly of the Department, who was responsible for representing the Department before both the Equality Officer and the Labour Court.

8. It is common case that in respect of adjudicating on the issues before this Court the comparator and the Claimants should be regarded as performing "like work". Some of the issues are overlapping and intertwined. I propose to set out Article 119 of the Treaty of Rome and the most relevant provisions of Council Directive 75/117/EEC (the "Equal Pay Directive") and also the material sections of the Anti-Discrimination (Pay) Act, 1974 ("the 1974 Act") and relevant provisions of the Employment Equality Act, 1977 ("the 1977 Act"). I consider the issues under the headings:-

9. Article 119 of the Treaty of Rome reads as follows:-

10. Council Directive 75/117/EEC of 10th February, 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women ("the Equal Pay Directive") is designed to facilitate the practical application of the principle of equal pay outlined in Article 119 as can be seen from Article 1 of the Directive which states as follows:-

11. In this way, the onus is on the Member States, in accordance with their national circumstances and legal systems, to take the measures necessary to ensure that the principle of equal pay is applied and effective means are available to guarantee its observance.

12. In an effort to comply with the principle laid out in Article 119, the Anti-Discrimination (Pay) Act, 1974 was enacted, the relevant parts of which are as follows:-

13. Counsel for both parties agreed that the issues arise in a complex and difficult area of law and that the function of this Court is to decide whether the Labour Court was correct in its findings and in the manner of reaching its findings. Furthermore, this Court cannot go behind the findings of fact as found by the Labour Court (although it might perhaps draw different inferences from such findings of fact).

14. Counsel for the Applicants urges that the principle of equal pay on grounds of gender as set out in Article 119 and in the Equal Pay Directive has direct application and does not entail the inclusion of any refinement that this principle has to be construed as being in respect of work in the same employment; on the contrary, the Applicants should be entitled to use any comparator who is doing like work of equal value. His second line of argument is that he is, in any event, entitled to succeed on the narrower submission which takes Article 119 and applies it in the context of equal work in the same establishment or service. Finally, he contends that, if this Court is disinclined to accept his submissions, then as his wider submission is urging the Court on a course which he described as a logical extension of previous decisions and as moving out into legal terra incognita, he was entitled to seek a reference under Article 177 of the Treaty of Rome, 1957. This submission can be dealt with in the heel of the hunt. The jurisdiction of the national Court to refer a question under Article 177 arises where the Court considers that a decision on a question of European law is necessary for the decision. While the decision whether to refer is a matter for the national Judge, the question as to the necessity of a reference is a matter of Community law, the principles of which are to be found in a decision of the European Court in Case 283/81, CILFIT -v- Minister of Health [1982] ECR 3415. In that case, the Court indicated that there would be no need to refer where the question of EC law is irrelevant or has already been interpreted by the Court or the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved.

15. Counsel for the Applicants says that nothing in the Directive reduces the wide scope of Article 119. In particular, he stresses that Article 8 of the Directive does not curtail the thrust of Article 119 of the Treaty. Article 8 reads:-

16. The preamble to the Treaty of Rome indicates that the original objective of the Community was to foster the development of a closer union through cooperative efforts devoted to economic and social progress. However, the architects of the Treaty made the underlying assumption that the main contribution of the EEC to social progress would be an indirect one in that the free circulation of production factors, including labour, would in the end lead to the improvement and harmonisation of working conditions . As Deirdre Curtin, Irish Employment Equality Law , 1989 says at page 44:-

17. In 1957, the French had enacted legislation providing for equal pay for men and women and feared that the higher direct and indirect wage costs in France would detrimentally affect French industries' ability to compete in the Common Market particularly in industries with large numbers of female workers. The impetus for Article 119 came from the economic need to protect French industry against competition from other Member States who paid their female workforce less than their male counterparts and thus Article 119 had its genesis in this economic necessity and not merely from idealistic reasons of principle. In the above cited Defrenne (No. 2) case at page 472, the European Court of Justice noted the double aim of Article 119 in saying:-

18. The effect of Article 119 and its relationship with the Equal Pay Directive was considered by the Court of Justice in Defrenne (No. 2) where the Court outlined the scope of the direct application of Article 119. In doing so, it distinguished between direct and overt discrimination and indirect and disguised discrimination noting that the former can be dealt with by reference to the criteria referred to in the Article, i.e. equal pay for equal work or work of equal value as interpreted in the Directive. The Court recognised the practical difficulties in confronting the latter type of discrimination by commenting that it

19. Hence the reluctance of the Court to extend the scope of the direct application of Article 119 beyond cases where men and women receive unequal pay for equal work carried out in the same establishment or service as such an extension implicitly enters the realm of the hypothetical away from concrete comparisons in respect of which gender discrimination can be proven. The rationale for such a distinction is clearly explained at paragraph 23 where the Court states:-

20. The ratio of Defrenne is to be found in the Court's reply to the first question:-

21. Counsel for the Applicants says that the European Court of Justice was not in fact confining the ambit to those employed in the same establishment or service. His criticism of the Labour Court is that it only asked the question under Irish domestic law as to whether the Claimants and the comparator were in the same employment. He criticises the Labour Court for saying that the Claimants were not entitled to equal pay and for failing to go on to consider what would in the circumstances be equal pay. He stresses that Article 119 does not say equal pay for equal work "in the same employment" or even "equal work which is carried out in the same establishment or service", whether private or public.

22. Counsel for the Applicants argued that the Directive facilitated the implementation of a principle already enshrined in the Treaty and did no more than to explain in greater detail the concepts of "equal pay" and "equal work" used in Article 119 which stipulated no exceptions to the principle therein stated and was silent on the issue of the scope of the equal pay comparison.

23. Counsel for the Applicants accepted that in Defrenne (No. 2) the Court of Justice did refer to equal work which is carried out in the same establishment or service but submitted that this judgment should not be read as confining the principle in Article 119 to work carried out in the same establishment or service. Counsel argued that on the face of Article 119 the principle of equal pay is not limited to cases where discrimination is evidenced by reference to comparators in the same place of work or even the same place of employment. In this context, he relied on Advocate General Verloren Van Themaat's opinion delivered on 24th October, 1984 in case 143/83, Commission -v- Denmark [1985] E.C.R. 427. In that case, Article 1 of the Danish legislation on equal pay stated that "the principle of equal pay applied only to 'the same work' ('samme arbejde') at the same place of work". The Advocate General, at page 428, interpreted the principle of equal pay in Article 1 of the Directive as meaning:-

24. At page 429, the Advocate General continued:-

25. At page 430, the Advocate General said:-

26. For the sake of completeness, I should add that the judgment of the Court declined to treat of this aspect as the Commission had not formally raised an objection to the Danish condition of interpreting the principle of equal pay in relation to a "single work place". The Court instead chose to focus its objection on the omission of the term "work of equal value". This latter objection was upheld by the Court as it was seen to restrict the scope of the principle and thus constituted a failure to fulfil Treaty obligations.

27. Counsel for the Applicants refers to section 2 of the 1974 Act and says that the references therein to employment "in that place by the same employer" involves supplementary conditions for equal pay which have no valid basis in Article 119. If the Court is inclined to regard the phrase "in that place by the same employer" as involving permissible restrictions, then Counsel urges the Court to seek the views of the European Court of Justice by way of reference in respect of the proper interpretation of Article 119.

28. Counsel seeks to draw support from a decision of the Employment Appeal Tribunal in England in Scullard -v- Knowles & Southern Regional Council for Education and Training [1996] I.R.L.R. 344. Susan Scullard was employed as a Further Education Unit Manager. She was the only woman employed as a unit manager in the twelve Further Education Units in Great Britain. She brought an equal pay claim seeking to compare herself to the unit managers employed by other councils, all of whom received higher salaries for the same or similar work. An Industrial Tribunal dismissed the complaint on the grounds that the male comparators were not employed "in the same employment" as Mrs. Scullard. Section 1(6)(c) of the Equal Pay Act, 1970 (as amended) provided that:-

29. The Employment Appeal Tribunal (the "E.A.T.") held that the Industrial Tribunal erred in law in finding that the Appellant Further Education Unit Manager employed by a regional advisory council could not bring an equal pay claim comparing herself to male unit managers employed by other regional advisory councils because the comparators were not in the "same employment", as defined in section 1(6)(c) of the Equal Pay Act, 1970, i.e., employees of associated companies at establishments in Great Britain at which common terms and conditions of employment are observed either generally or for employees of the relevant classes.

30. The Tribunal held that the class of comparators defined in section 1(6) was more restricted than applies under Article 119 of the EC Treaty, as interpreted by the European Court of Justice. In accordance with the decision of the European Court in Defrenne (No. 2) , the essential question was whether the Applicant and her comparators are employed "in the same establishment or service". The English legislation however drew a distinction between work carried out in the same establishment or service of limited companies and of other employers. Consistent with the supremacy of Community law, the Tribunal held that:-

31. The case was remitted to a different industrial tribunal to make findings of fact relevant to the test under Article 119, as interpreted by the European Court. On this aspect of the claim, the E.A.T. said that it would be relevant whether the regional advisory councils (even though none is a company) were directly or indirectly controlled by a third party, the Training and Education Directorate ("TEED"), the extent and nature of control and whether they constitute the same "establishment or service"; it would also be relevant to consider whether common terms and conditions of employment were observed in the regional advisory councils for the relevant class of employees.

32. Counsel for the Applicants relied on Case 129/79, Macarthys Limited -v- Smith [1980] ECR 1275. In that case, Mrs. Smith, as an employee of Macarthys, was paid £10 less per week as a Stockroom Manageress than the man who had, until some four months before, held the same position. The European Court of Justice held that the principle of equal pay enshrined in Article 119 applied to the case where it is established that, having regard to the nature of her services, a woman has received less pay than a man who was employed prior to the woman's period of employment and who did equal work for the employer. The Court accepted that if the principle of equal pay was limited to contemporaneous employment then this would encourage widespread evasion by encouraging segregation or concentration of workers of one sex in particular sectors or categories of employment. Under the heading, The Interpretation of Article 119 of the EC Treaty, the Court said:-

33. The Court recognised that differences in pay between workers occupying the same post at different periods in time may be justified by factors unrelated to gender. It left this aspect to the national court or tribunal to decide and confined its decision to a general elucidation of Article 119 as follows:-

34. The judgment is also noteworthy for the refusal by the Court to consider an equal pay claim by reference to a hypothetical male comparator in the absence of an actual male comparator who was currently performing, or who had previously performed, similar work. The Court categorically declined to extend the equal pay principle set out in Article 119 to this type of situation. The Court said:-

35. Next, Counsel for the Applicants referred to case 96/80, Jenkins -v- Kingsgate (Clothing Productions) Limited [1981] ECR 911. Kingsgate were manufacturers of ladies clothing in Essex where 89 people were employed of whom 35 were male and 54 female. All the male employees, except for one, worked full-time; of the female employees, 5 worked part-time. Mrs. Jenkins worked part-time for about 30 hours per week. Mrs. Jenkins took the view that she was being unfairly treated by the fact that, although she was engaged to perform the same work as that performed by a male colleague, who was employed full-time, she drew an hourly rate of pay lower than that drawn by her colleague. The employer acknowledged that Mrs. Jenkins had been engaged to perform like work with that of her male colleague. Nevertheless, the employer maintained that there was a material difference other than the difference of sex between the two cases. The Industrial Tribunal held that working for a period representing 75% of the full working hours constituted a "material difference, other than the difference of sex", sufficient to justify in Mrs. Jenkins' case an hourly rate of pay 10% lower than that of her male colleague. The Court ruled that a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by Article 119 of the Treaty unless it is in reality merely an indirect way of reducing the pay of part-time workers on the ground that such group of workers is composed exclusively or predominantly of women:-

36. Thus Article 119 is directly applicable to all forms of discrimination identifiable by reference to the criteria of equal work and equal pay referred to in Article 119. A specific instance of this is " where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private ".

37. The F.E.A. did not resist the equal pay application. However, the D.E.D. and the D.O.F.A.P. entered a joint appearance arguing, amongst other things, that any control they had over the F.E.A. and the E.O.C. was not such as to render the two agencies "associated employers" within the meaning of section 1(7)(c). The Court of Appeal held that the Industrial Tribunal had correctly concluded that the Fair Employment Agency and the Equal Opportunities Commission for Northern Ireland were not associated employers within the meaning of section 1(7)(c) of the Equal Pay Act (N.I.) so that the appellant was not entitled to bring an equal pay claim comparing her work to that of a man employed by the E.O.C. since they were not employed "in the same employment". However, Lord Lowry went on to say that the Industrial Tribunal had erred in finding that the F.E.A. and E.O.C. by virtue of their functional independence were not either directly or indirectly controlled by D.E.D. or D.O.F.A.P. within the meaning of section 1(7)(c); those departments have financial control of the F.E.A. and the E.O.C. and also control of the numbers and grades of the persons employed and of their terms and conditions of employment. By comparison with this control, the functional independence of the F.E.A. and the E.O.C. is irrelevant. Lord Lowry, having referred to the Defrenne (No. 2) and the Macarthys judgments, at paragraph 26 said:-

38. However, although Lord Lowry was to accept that it could be argued on this broad view that Article 119 did apply, nevertheless, he was of opinion that if Article 119 was to be called in aid, there must be some evidence of discrimination against the Applicant on the ground of her sex and he could not see any such evidence or even infer its existence and accordingly dismissed the appeal.

39. This case is instructive as it illustrates the practical application of the principles in Article 119. It is consistent with Macarthys in upholding the requirement of evidence of discrimination on grounds of gender. It is of particular interest as Lord Lowry considered the status of the statutory corporations which employed the applicant and the comparator in a wider context and he took the view that the F.E.A. and the E.O.C., although appearing to be independent of the State, in reality depended on the State for their existence and their financial upkeep. Lord Lowry was dealing with an applicant and a comparator who were not civil servants but were in public service of the same kind, holding posts which are graded by the same officers and on the same principles of job evaluation, and who were both employees of similar statutory corporations. The case can be distinguished on the basis that Lord Lowry was not comparing a civil service applicant with a comparator who was an employee of a statutory corporation. Nevertheless, it is fair to infer that he scrutinised the practical realities of the situation of employment of both the applicant and the comparator and the status of their employer and found a considerable and real similarity.

40. By way of recapitulation, Counsel for the Applicants contends that a logical extension of the above cases and the principles explained in them is that the comparator does not have to be confined to being in the same employment as the applicant but can be found in a wide spectrum of employments provided that there is direct comparability of the nature of the services provided by the male and female workers. A woman will only be entitled to receive equal pay where she is engaged in equal work with the male comparator. The touchstone is suggested to be the comparable quality of the work done and services provided by the female applicant and the male comparator.

41. The jurisprudence of the European Court does not support the Applicants' claims. In Macarthys -v- Smith , while the Court accepted the argument that the principle of equal pay should not be confined to situations in which men and women are contemporaneously doing equal work for their employer, it was not prepared to hold that a comparison could be made with an hypothetical comparator. The Court said that this would be classed as indirect and disguised discrimination the identification of which, as the Court explained in the Defrenne judgment, implies the need for comparative studies of entire branches of industry and therefore requires, as a prerequisite, the implementation of measures at the community or national level along the lines of the criteria laid down in Defrenne (No. 2) . This need for further elucidation of the criteria for assessing whether there is equal pay for equal work would mean that this type of discrimination would fall outside the scope of the direct effect of Article 119 and therefore outside the forms of discrimination which can be subject to direct judicial identification. Paragraph 15 of the judgment makes it clear that an applicant employee is only entitled to rely directly on Article 119 in the national court of a Member State when the applicant can produce a comparator drawn on the basis of a concrete or actual appraisal of work in practice done by employees of different gender within the same establishment or service. In short, one has to find an actual concrete real life comparator of the other sex. As Lord Lowry pointed out in Hasley -v- Fair Employment Agency at paragraph 20:-

42. He then quoted the pertinent paragraphs of Defrenne (No. 2) and Macarthys and noted that, while neither judgment treats the principle in Article 119 as confined to work in the same establishment or service, they do cast valuable light on the meaning of Article 119.

43. A prerequisite to a claim under the equal pay principle is evidence of discrimination. Hence the restriction of the direct applicability of Article 119 to situations within the same establishment or service. The Equal Pay Directive requires in Article 2 that Member States introduce the necessary measures to ensure the implementation of the principle. Article 6 states:-

44. Given that Article 119 encompasses those in the same establishment or service and the European Court has declined to extend the scope of the direct applicability of this Article, it was incumbent upon the individual Member States to legislate so as to implement the principle. In extending the definition of "same employer", it seems logical therefore that, in order to keep the necessary identification of discrimination, the requirement of the "associated employer" was inserted. Otherwise a prospective claimant could pick a comparator from anywhere, having no connection with the employer of the claimant and rely simply on the fact that they perform like work. The ramifications of such a wide application of the principle of equal pay are far flung and would go far beyond the scope of the principle as envisaged in Defrenne (No. 2) and Macarthys.

45. On this analysis, the Irish legislation fulfils the obligations imposed by the Treaty and the Directive by legislating in an area which the Court chose to leave to the Member States. The fact that this area was left to the Member States is clear from the case law discussed above; as enunciated in Defrenne and then confirmed in Macarthys, where the Court refused to extend the application of the principle to the hypothetical male worker. The requirement of gender discrimination was stressed in Jenkins -v- Kingsgate and then reiterated in Hasley. The introduction of some criteria once the claimant and comparator are not in the same establishment or service is essential and, provided such criteria do not lead to the ineffectiveness of the principle, it is consistent with Community law. In this regard, the Irish legislation must be considered in the light of the principle of effective judicial protection the primary example of which is to be found in Case 14/63, Von Colson -v- Land Nordrhein-Westfalen [1984] ECR 1891, where Article 6 of the Equal Treatment Directive 76/207 which required Member States to introduce the necessary measures ensuring that those wronged by failure to apply the principle of equal treatment would be able to avail of an effective remedy. The Court stated at paragraph 23:-

46. While the interpretation in that case was of one particular Article of a directive, the principle enunciated therein represents a specific application of the duty imposed on Member States via Article 5 of the Treaty of Rome to take all appropriate measures to ensure the fulfilment of Community obligations. This principle was the underlying reasoning behind the Court's decision in Case 109/88, Handels-og Kontorfunktionaernes Forbund I Danmark -v- Dansk Arbejdsgiverforening, acting on behalf of Danfoss , [1989] E.C.R. 3199, where a reference was made under Article 177 by a Danish employees union asking whether the Equal Pay Directive must be interpreted as meaning that where an employer undertaking applies a system of pay lacking in transparency it is for the employer to prove that its practice with regard to wages is not discriminatory. In that case, the female workers had established that the average pay for women was less than for men. In such circumstances, the Court decided that the burden of proof could be moved to the employer. The Court justified this at paragraph 14 as follows:-

47. This purposive approach goes some way to alleviate the perceived defect in the implementation of the principle of equal pay where a comparator cannot be found as for example in an exclusively female sector of industry.

48. Counsel for the Respondent submits that no evidence of direct or overt discrimination against the Applicants was adduced before the Labour Court. Certainly, there is no suggestion of any such evidence in the determination of the Labour Court. Furthermore, relying on the phraseology used in paragraph 15 above of Macarthys Limited -v- Smith , Counsel stresses that the Applicants and their chosen comparator did not carry out work in the same establishment or service.

49. As for the Applicants' apprehension that the State could, by segregating its workforce through semi-state bodies, effectively avoid its obligations under Article 119 and the Equal Pay Directive, Counsel for the Respondent submitted that the Applicants and their chosen comparator were never employed in the same establishment or service and accordingly the Applicant's apprehension of segregation of its workforce by the State for the purpose of evading the equal pay principle does not arise. Counsel also submitted that while the Equal Pay Directive provided details regarding the material scope of Article 119 in elaborating what is meant by "equal work", the Directive does not provide further details regarding the scope of Article 119 in its application to "associated employers". He also relied on Jenkins -v- Kingsgate (Clothing Productions) in stressing that the Equal Pay Directive cannot expand the scope of Article 119. He submitted that Article 119, the Equal Pay Directive and the jurisprudence of the European Court of Justice are silent on the subject of associated employers and accordingly that it is under Irish law that equal pay on such a cross-employer basis is to be ensured. Jenkins -v- Kingsgate (Clothing Productions) also reiterated that the differences in pay prohibited by Article 119 are "exclusively those based on the difference of the sex of the workers" (p. 925). In Hasley, Lord Lowry stressed that there must be some evidence of discrimination based on gender. As Costello J. said in Bank of Ireland -v- Kavanagh , unreported 19th June, 1987 at p. 9:-

50. He then referred to the passages about this in Macarthys Limited -v- Smith . At page 10, he went on to say:-

51. On the basis of these submissions on behalf of the Respondent, Article 119 and the Equal Pay Directive are not capable of having direct application in the circumstances of the present case. I respectfully agree with Costello J. that the Act of 1974 seems to fulfil the requirement to give effect to Article 119 and the Directive as far as it goes in dealing with the situation. There is difficulty in providing for the implementation of the principle in Article 119 in at least one set of circumstances. There are certain industries in this country and probably throughout the E.C. in which the vast preponderance of workers are female, as in the present case of the Claimant poultry inspectors or in the case of female workers in the electronics industries who assemble circuit boards. In such circumstances, there may be difficulty in finding a male comparator in the same employment or even performing the same work. However, the decision in Danfoss ameliorates this problem by shifting the onus of proof on to the employer to show that its practice is not discriminatory when it pays a lesser average wage to women than it pays to men.

52. This Court has jurisdiction to deal with this appeal under section 8(3) of the Anti-Discrimination (Pay) Act, 1974 whereby a party to a dispute determined by the Court under subsection (1) may appeal to the High Court on a point of law. This encompasses hearings and decisions of the Labour Court. Since this is an appeal on a point of law, it is not a rehearing. Accordingly, the facts as found by the Labour Court are binding on this Court where those facts are supported by credible evidence and this Court should be slow to disregard the inferences drawn by the Labour Court from its findings of fact unless the inferences drawn are wholly unwarranted on the findings of fact made. The role of this Court has been explained by Kenny J. in the Supreme Court in Mara (Inspector of Taxes) -v- Hummingbird Limited [1982] I.L.R.M. 421 at page 426 in a Case Stated where the Income Tax Appeal Commissioners found, as a fact, that Hummingbird purchased premises in Baggot Street, Dublin, as an investment and so its sale was not in the course of trade. At page 426, Kenny J. said:-

53. These considerations can be applied by analogy to the High Court hearing an appeal on a point of law from the Labour Court although one should bear in mind that the Labour Court is more inquisitorial and would have received written and oral submissions. Both the Equality Officer and the Labour Court have made findings as to fact and this Court is bound by the findings of primary fact made by the Labour Court.

54. The Labour Court found that the Department of Agriculture, Food and Forestry was not the same employer as Teagasc; that the Applicants and comparator did not have the same terms and conditions of employment and that the Department was not an associated employer with Teagasc within the meaning of section 2(1) and (2) of the 1974 Act. The Applicants submit that the Labour Court erred in law in this approach to and in the making of the determination.

55. Counsel for the Applicants submits that the State should be regarded as the employer of both the Applicants and the comparator. In fact, it would appear from the dictum of Walsh J. in Byrne -v- Ireland [1972] I.R. 241 at page 285 that the Claimants are employed by or under the State rather than by the Minister in whose department they carry on their work. At page 285, Walsh J. said:-

56. In the recent Supreme Court case of Central Bank of Ireland -v- Gildea in a judgment delivered on 14th March, 1997, Keane J., with whom Hamilton C.J. and Barrington J. agreed, at page 17 said:-

57. Thus both civil servants and the Minister can be regarded as employees of the State for the purpose of this case.

58. It was common case that the comparator was employed by Teagasc which had taken over the functions of Acot and An Forás Taluntais. The provisions of section 3 and the first schedule to the Agriculture (Research, Training and Advice) Act, 1988 provide that Teagasc shall be a body corporate with perpetual succession.

59. The Applicants submit that the Labour Court was in error as they contend that both the Applicants and the comparator should be regarded as being employed by the same employer from the perspective of EC law. They submit that for the purposes of the law on equal pay, Article 119 and the Equal Pay directive, Teagasc is the State or an emanation of the State. The Applicants rely on two decisions of the European Court of Justice in this context. Both cases concern the issue of whether the claimants could rely on the provisions of the Equal Pay Directive and are relied on as authority for the proposition that the provisions of a directive can be relied upon by a claimant as against the State or any organs or emanations of the State whether acting as a public authority or as an employer. In Case 152/84, Marshall -v- Southampton & South West Hampshire Area Health Authority [1986] ECR 723, the claimant was dismissed from her employment with the Southampton and South West Hampshire Area Health Authority as a Senior Dietitian a few weeks after she had attained the age of 62 notwithstanding that she was willing to continue in employment until the age of 65. The Court of Appeal referred the case to the European Court of Justice under Article 177 of the EC Treaty. The European Court of Justice decided that wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise those provisions may be relied upon by an individual against the State where that State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly. A State cannot plead its own failure to implement a directive and an individual can rely on the directive before a national Court. It was pointed out that where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or public authority. In either case, it is necessary to prevent the State from taking advantage of its own failure to comply with Community law. It is for the national Court to apply those considerations to the circumstances of each case. However, the Court of Appeal had stated in the order for reference that the Respondent, Southampton and South West Hampshire Area Health Authority, was in fact a public authority.

60. The second case relied upon by the Applicants is Case 188/89, Foster -v- British Gas Plc [1990] E.C.R. 1 3313, which was a reference for a preliminary ruling from the House of Lords. Paragraph 16 of the judgment reiterated that the Equal Pay directive can be relied upon against the State. Foster extends this to a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals. These two cases, Marshall and Foster, seem to be authority for the proposition that a Member State, which has not adopted the implementing measures required by the Equal Pay directive within the prescribed period, may not plead as against individuals its own failure to perform the obligations which the directive entails. Wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon, in the absence of implementing measures adopted within the prescribed period, against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State. A body, whatever its legal form, which is being made responsible pursuant to a measure adopted by the State for providing a public service under the control of the State, and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals, is included in any event among the bodies against which the provision of a directive capable of having direct effect may be relied upon. However, both these decisions relate to the direct effect of Council Directives and are not in point on the question of whether the State and emanations of the State, such as State approved bodies, or State authorities, are the same employer. The Applicants are not relying on Article 119 of the EC Treaty or on the Equal Pay directive in a claim against Teagasc. Underlying the provision in section 2 of the 1974 Act is the need to thwart any segmentation of a workforce by the State so as to be able to avoid or minimise its obligations under Article 119. In making the finding that the Department (or the State) was not the same employer as Teagasc, I do not think that the Labour Court adopted an incorrect approach. In its reasoning, the Labour Court referred to the Marshall and Foster cases and said that the cases do not assist in relation to the particular question at issue since they relate to the direct effect of European Directives and not to the question of whether State and semi-state employers are the same employer. The Labour Court was satisfied that on the one hand there was a government department with responsibility for promoting the development of agricultural, food and horticultural industries in Ireland and said that, in respect of the Department, the State is the employer and the employees are civil servants. A distinction was drawn between this situation and that, on the other hand, of Teagasc, which is the Agricultural and Food Development Authority providing certain services to the agricultural and food industries. It was established by the Agriculture (Research, Training and Advice) Act, 1988. The Labour Court found that it was an autonomous body having an 11 member authority and was an employer in its own right and that its employees are its servants. I think that the Labour Court correctly looked at the terms of the Agriculture (Research, Training and Advice) Act, 1988 with regard to the establishment and role of Teagasc. With regard to the identity of the relevant employers for the purposes of this case, it seems to me that the provisions of the Employment Equality Act, 1977 are of assistance as they provide that it is to be construed with the Act of 1974.

61. The definition of "employer" contained in section 1(1) of the 1977 Act is therefore relevant to an interpretation of section 2 of the Act of 1974. This section provides as follows:-

62. Accordingly, I think that the Applicants being civil servants can be regarded as employees of the State and of the government for the purposes of this case whereas the comparator is an employee of Teagasc. The Applicants and the comparator are therefore not employed by the same employer and so their claim now should be considered under the extended definition of employers under the 1974 Act, i.e. whether they are employees of associated employers having the same terms and conditions of employment.

63. The Equality Officer, the Labour Court and Counsel considered the Irish legislation under the criterion of "same terms and conditions".

64. The Applicants submit that they are employed by an associated employer of Teagasc. It is clear that the Labour Court looked carefully at the provisions of section 2(1) and came to the conclusion that the Applicant civil servants and the comparator in Teagasc did not have the same terms and conditions of employment even though both were employed on like work. In this context, I think that it was reasonable for the Labour Court to look at the grading structures, the contractual terms relating to hours of work and conditions of employment and dismissal procedures in ascertaining whether the Applicants enjoyed the same terms and conditions of employment as the comparator in Teagasc. I note the finding that civil servants do not have the same terms and conditions of employment as the employees of Teagasc although some of the terms would be similar. In particular, the Labour Court noted the different conditions with regard to dismissal. I accept that the Minister for Agriculture, Food and Forestry and the Minister for Finance must consent to appointments in Teagasc in the overall context of supervision of the finances of a semi-state body, nevertheless the appointees are employees of Teagasc which fixes the terms and conditions of their employment.

65. The Applicants further submit that the requirement that employees of "associated employers" have the same terms and conditions as the comparator - when no such requirement attaches to employees of the same employer - is incompatible with the requirements of Article 119 as illuminated by the Equal Pay directive. The Applicants submit that the differences in the terms and conditions of employment identified by the Labour Court were fundamentally threefold - superannuation, separate recruitment procedures and industrial relations and pay on termination procedures. They say that superannuation differences are a divergence in one aspect of remuneration and cannot be taken into account because it is the difference in remuneration which is the basis of the Applicants' claim. The Applicants further submit that neither of the other two alleged differences relate to differences in terms and conditions of employment. In this regard, they refer to the decision of the Supreme Court in O Cearbhaill -v- Bord Telecom Éireann [1994] E.L.R. 54 in which Blayney J. said that the phrase "conditions of service" meant the conditions one would expect to find in a contract of employment between an employer and an employee and that, in considering what these terms would be, it had to be borne in mind that a contract of employment was a contract between an employer and a single employee. That judgment was dealing with whether there was a valid collective agreement and also whether the plaintiffs' prospects of promotion were part of their conditions of service. It was in these circumstances that Blayney J. said at p. 61:-

66. It was in this particular context that Blayney J. set out relevant terms of contract. The present situation is different. I think that the Labour Court did take into account the appropriate matters for the purpose of its decision by taking a broad and overall view in respect of the differences in the terms and conditions of employment between the Applicant civil servants on the one hand and the comparator in Teagasc on the other hand.

67. The Applicants argue that if they cannot point to a man who is employed in that place (meaning the same place as the woman) by the same employer then they can point to a comparator employed by an associated employer if the employees, whether generally or of a particular class, of both employers have the same terms and conditions of employment and if both are employed on like work. The Applicants analyse the situation in the light of section 2(2) of the Anti-discrimination Pay Act, 1974. It is conceded that both the Applicants and the comparator are employed on like work. Teagasc is a body corporate and accordingly the crucial question is whether the Department or the State either directly or indirectly has control of Teagasc in the context of the 1974 Act and EC Equal Pay law. It is not necessary to decide whether section 2(2) of the Act of 1974 provides a definition of associated employers or whether it merely states an instance when employers are to be treated as associated as Teagasc is admittedly a body corporate and the crucial question is whether the Department or the State has control of Teagasc.

68. I note in passing that the English legislation which was the subject of the Scullard case defines "associated employers" in terms of companies; the implicit distinction therein between employees of limited companies and other employers was found to be unacceptable. By comparison, the Irish legislation is wider and uses the term "body corporate".

69. While it is arguable that the provision confines the circumstances in which employers may be associated to those in which one of the employers is a body corporate, I do not have to decide whether section 2(2) of the 1974 Act is exemplary or exclusionary, as Teagasc is admittedly a body corporate as provided in Article 1 of the first schedule of the 1988 Act creating it and section 2(2) stipulates the criterion according to which "association" is to be ascertained. This criterion is control. The term "control" is not defined by the 1974 Act.

70. Does the other employer, being the State or government or the Department, have control of Teagasc within the meaning of section 2(2)? There is no suggestion that both Teagasc and the State are bodies corporate of which a third person, directly or indirectly, has control. The Applicants say that the Labour Court erred in addressing this question by asking whether the Department exercised control over Teagasc. While the Labour Court in its reasoning did refer to the Department, it seems to me that the Labour Court was referring to the Department as synonymous with the State and at page 4 said:-

71. Some of the text books suggest that "associated employers" are defined in section 2(2) in terms of companies. This seems too narrow as the phrase used is "body corporate". It would seem that employers are "associated" if one is a body corporate of which the other has control or if both are bodies corporate of which a third person has control. The Applicants argued before the Labour Court that section 2(2) of the 1974 Act does not as such define the phrase "associated employer" but rather explains or gives an example of it. I think that the provision with regard to an associated employer had its origin in preventing the mischief of an employer using subsidiaries as the employer of a category of workers in order to evade the equal pay principle.

72. The Applicants submitted that the State does in fact exercise control over Teagasc. Teagasc was established by the State and can be disestablished by the State. Its functions are prescribed by statute and the exercise of additional functions requires a ministerial order laid before both houses of the Oireachtas. The State provides considerable funding to Teagasc. The Respondent and the Minister for Finance must consent to appointments to Teagasc (see section 8 of the 1988 Act) and likewise the pay and other terms and conditions of grades of staff and the numbers of staff in each grade all require the consent of the Respondent and the Minister for Finance. The Applicants relied on the decision in Hasley -v- Fair Employment Agency where it was held that the Fair Employment Agency and the Equal Opportunities Commission for Northern Ireland were controlled by the Department of Economic Development and the Department of Finance and Personnel. The Labour Court made careful findings on whether the Department has control over Teagasc and said at p.7:-

73. The Labour Court helpfully went on to analyse Hasley -v- Fair Employment Agency in which it was argued that the Fair Employment Agency and the Equal Opportunities Commission for Northern Ireland were "associated employers" since both were directly or indirectly controlled by the Department of Economic Development and the Department of Finance and Personnel. Lowry L.C.J. held that the Departments did control the F.E.A. and the E.O.C. He found that those Departments had financial control over the two bodies and also control over the numbers and grades of the persons employed and of their terms and conditions of employment. By comparison with this control, the Appeal Court found that the functional independence that the F.E.A. and the E.O.C. enjoyed was irrelevant. The Labour Court, by way of contrast, made the distinction that it was not being suggested that both Teagasc and the Department were "bodies corporate" and that the Department of Finance was a third "person" within the meaning of section 2(2) of the Act which has control over both. In any event, the Labour Court clearly felt that the functional independence of Teagasc differed from the subservience of the F.E.A. and the E.O.C. in Northern Ireland.

74. In my view, the Labour Court properly directed its attention to the issue of control and in this respect made reasonable and appropriate findings. While voting control may be relevant in a company law situation, the badges of control which the Labour Court looked at were relevant given that Teagasc is a body corporate and a creature of statute.

75. Counsel for the Respondent says that there is a dearth of Irish authority on the issue of "associated employers". He referred to a case of Clonskeagh Hospital -v- Two Telephonists E.P. 40 / 1979 in which an Equality Officer was dealing with the situation of an applicant who was working in Clonskeagh Hospital and claimed to be entitled to pay equal to that received by a male comparator employed in a different hospital. On the basis that both hospitals were "run by" the same Health Board, they were found to have been "associated employers" for the purposes of section 2 of the Act of 1974. This finding was made for the purposes of a recommendation of the Equality Officer and seems to have been a rational and practical application of the section. The Labour Court, by way of contrast, in the present case found as a fact that the Respondent could not tell Teagasc how to do its work or even what work to do and on the basis of the findings that the Respondent cannot tell Teagasc how certain things are to be done or how money under its control is to be spent, it seemed a reasonable conclusion that Teagasc is not run by the government but is an independent body with regard to day to day control. Thus, in my view, the Labour Court in deciding that Teagasc was not controlled by the Respondent did not err in law and had regard to the relevant criteria as to control.

76. Counsel for the Applicants has drawn to my attention that application for a reference under Article 177 has to be made to this Court prior to this Court giving judgment. There is an appeal to the Supreme Court open from the judgment of the High Court in this case and accordingly it is a matter for the discretion of this Court as to whether there should be such a reference. EC law is fundamental to the resolution of this case with regard to

77. On my analysis of the Defrenne (No. 2) and Macarthys cases, the European Court of Justice has clearly distinguished between direct and overt discrimination which can be dealt with solely on the criteria referred to in Article 119 and secondly, by way of contrast, indirect and disguised discrimination which can only be identified by reference to Community provisions, such as a directive, or by national legislation which spells out the tests to be applied in implementing the principle in Article 119. The European Court of Justice in those cases has confined the scope for location of a comparator and did not extend the range by allowing a comparison with an hypothetical comparator of the other gender. These cases seem to be clear authority on this issue and, in coming to these decisions, the Court must have been well aware of the difficulty which could arise in situations of the type of single gender employment establishments such as in the electrical board assembly business where there would be a dearth of male comparators. In short, the Applicants' argument is that if equal pay legislation is to have a real effect in undermining gender discrimination then it should provide a mechanism for assuring that all women are able to secure what would be the male rate for the job. However, the European Court of Justice rejected this approach in both Defrenne (No. 2) and Macarthys -v- Smith by holding that comparisons are confined to parallels which may be drawn on the basis of concrete appraisals for the work actually performed by employees of the opposite sex within the same establishment or service. Therefore, as this area of EC law has already been the subject of interpretation in the European Court, I do not consider a reference on a question of European law to be necessary for this decision. However sympathetic one may be to the argument that there is a difficulty in the situation with regard to single gender employment type situations, nevertheless these two decisions seem to be clear authority on this aspect. In the absence of an appropriate comparator of the opposite sex, one cannot say that there is indirect discrimination in any given situation. In the present case, there is a false assumption that if the male comparator in Teagasc was working for the Department as a civil servant then he would be paid more than the female Applicants for doing the same work. In fact, the reality is that in the civil service he would be paid on the basis of his grade. There was no evidence before the Labour Court to suggest that the male comparator in Teagasc if employed in the Department of Agriculture would have been paid any more than the Applicants. Accordingly, this is not an appropriate case in which to exercise the untrammelled discretion of this Court to make a reference under Article 177.

78. The Irish legislation contains a further definition of "same employer" extending the category of those who may benefit from the equal pay principle to situations where employees have associated employers and the same terms and conditions of employment. The necessity for this latter requirement has already been considered. Having failed to fall within the category of "same establishment or service" under Community law or the analogous "same employer" under Irish law, under the 1974 Act the claimants had the further possibility of bringing their claim within these further criteria. Considering the interplay of Community and Irish law in this context, I agree with Costello J. in Bank of Ireland -v- Kavanagh when he said:-

79. For these reasons, I do not think that the claimants are entitled to the same rate of remuneration as the male comparator in Teagasc and I decline to set aside the determination of the Labour Court.

80. Cases referred to:-