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Jones v. Primark t/a Pennys Ltd. [1999] IEHC 120 (4th March, 1999)
THE
HIGH COURT
1998
No. 145 Sp
IN
THE MATTER OF THE ANTI-DISCRIMINATION (PAY) ACT, 1974
BETWEEN
MICHELLE
JONES AND MANDATE THE UNION OF RETAIL BAR AND ADMINISTRATIVE WORKERS
APPLICANTS
AND
PRIMARK
TRADING AS PENNYS LIMITED
RESPONDENT
AND
THE
MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
NOTICE
PARTY
Judgment
of Ms. Justice Laffoy delivered on 4th March, 1999
This
matter was heard concurrently with
Flynn
& Others -v- Primark (trading as Pennys Limited)
(Record No. 1997 No. 522 Sp) in which I have just delivered judgment.
The
appeal in this case is an appeal on a point of law under
Section 8(3) of the
Anti-Discrimination (Pay) Act, 1974 against a determination made by the Labour
Court on 19th March, 1998. There were two categories of claimants before the
Labour Court, namely, sales assistants employed by the Respondent in the stores
and supervisors employed by the Respondent in the stores. The only issue
before this Court is the determination of the Labour Court on the sales
assistants' claim for equal pay.
In
its determination, which post-dated the judgment of Barron J. in
Flynn
& Others -v- Primark (trading as Pennys Limited)
delivered
on 12th January, 1997, the Labour Court stated that it was common case that the
group of sales assistants represented by the Applicants and the comparator
group of storemen perform "like work" and that the issue for the Labour Court
was whether there are "grounds other than sex" for the pay differential between
the two groups. The finding of the Labour Court was set out as follows:-
"The
Court is satisfied that the differences in pay between the sales assistants and
the comparator storepersons arose because of matters which are unrelated to the
sex of the workers, and are objectively justified on economic grounds".
Having
expressly referred to the judgment of Barron J. in
Flynn
& Others -v- Primark (trading as Pennys Limited),
the Labour Court went on to find as follows:-
".....this
Court finds that the company was economically justified in arriving at the
higher rates of pay for the comparators. This justification is founded on the
basis of objective economic factors which are unrelated to the sex of the
workers and which the court is satisfied were appropriate and necessary to
achieve economic viability. These factors are still valid, because the company
continues to have the benefit of the terms of the industrial relations
agreements reached, and because it would be inviting serious industrial
relations unrest to attempt to reduce those terms at this point in time.
It
should further be noted that the parties in this dispute are not represented by
the same trade union and that their wage rates (which are both unisex rates)
have been achieved by quite separate industrial relations processes. Given the
differences in these processes, the analogy which the Union has sought to make
with the
Enderby
case is inappropriate".
1. It
was common case on the hearing of this appeal that the issues which arose on
the appeal in the
Flynn
case, in which I have just delivered judgment, also arise in this case.
2. The
only additional point which arose in this case is that the Applicants sought to
make "capital" out of the fact that, in its determination of 19th March, 1998,
the Labour Court adjudicated in favour of the claimants, the supervisors, in
the second claim before it and agreed with the conclusions of the Equality
Officer that the supervisors perform "like work" with the comparator storemen
and with her rejection of the defence of the Respondent that there were
"grounds other than sex" for the differences in the rates of pay between the
two groups. On behalf of the Applicants it was submitted that the
determination of the Labour Court on the supervisors' claim may suggest that
there was acceptance by the Labour Court of the Respondent's subjective
valuation of the supervisors' work. While it was not suggested that the sales
assistants must be successful because the supervisors were successful, it was
submitted that, as a matter of legal principle and logic, it was difficult to
understand how the Labour Court could treat the supervisors and the sales
assistants differently. The inference to be drawn, it was suggested, is that
the Labour Court did not address the matter in the correct legal way and that
it was influenced by the Respondent's subjective assessment of the value of the
work to it of the respective claimant groups.
3. In
my view, the issues to which the supervisors' claim gave rise are not before
this Court and it would not be proper for this Court to draw any conclusions as
to the Labour Court's approach or process from the mere fact that the Labour
Court found for the supervisors.
4. The
principles set out in the judgment which I have just delivered apply to the
Applicants in this case and the Applicants' appeal must be dismissed.
© 1999 Irish High Court
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