ECJ 28 February 2013, case C-427/11 (Margaret Kenny and 13 others - v - Minister for Justice, Equality and Law Reform, Minister for Finance and Commission of An Garda Síochàna), Gender discrimination

Facts

In  July  2000,  when  this  case  started,  the  Irish  police  force  (Garda) included  1,114  clerical  positions.  Of  these,  based  on  an  agreement between  Garda  management  and  Garda  representative  bodies,  353 were ‘designated’ or ‘reserved’ posts, which meant that they were held by police officers, mainly being men (279 men versus 74 women). The remaining 761 clerical positions were held by civil servants employed by  the  Department  of  Justice,  Equality  and  Reform  and  deployed  to clerical duties in the police force. These civilians were predominantly women. The police force was in the process of reducing the number of reserved posts (a process known as civilianisation), so that only those positions that really needed to be held by a trained police officer would remain reserved for police officers.
The two groups of clerical workers - the police officers and the others - were remunerated according to separate pay scales. This resulted in the police officers being paid more than their civilian colleagues.

National proceedings

The  plaintiffs  in  this  case  were  civilian  clerical  staff.  They  brought proceedings  before  the  Equality  Tribunal,  then  the  Labour  Court. They  compared  themselves  to  those  police  officers  who  occupied positions in which there was no need for a trained police officer. Those comparators  were  paid  more  than  the  plaintiffs.  The  latter  alleged that this was discriminatory. The Labour Court, assuming (without so holding) that the plaintiffs and their chosen comparators carried out ‘like’ work within the meaning of Irish equal pay  law, held that the plaintiffs’  claims  were  properly  classified  as  indirect  discrimination and  that  the  proportions  of  men  and  women  in  the  relevant  groups disclosed prima facie indirect pay discrimination. 
The issue was whether this discrimination was objectively justified. The Labour Court found that this was the case, holding that deployment of police officers on clerical duties meets either the operational needs of the police or the need to implement the agreement made with the police representative bodies. In particular, paying the police officers assigned to those clerical posts at the rate applicable to police officers addresses this objective. Having regard to the small number of ‘designated’ posts, maintaining the arrangements agreed with the representative bodies pending  completion  of  the  process  of  civilianisation  is  proportionate to the operational needs of the police. The plaintiffs appealed to the High Court, which referred to the ECJ five questions, which the ECJ summarises  as  follows:  (i)  how  to  determine  what  the  employer’s justification of the prima facie case of indirect gender discrimination in pay consists of, (ii) how to determine which workers must be provided with such justification and (iii) whether the interest of good industrial relations can be taken into account when examining that justification.

ECJ’s findings

1.  The first part of the ECJ’s findings is devoted to the fact that the referring court, with the agreement of the parties, skipped the issue of whether the plaintiffs and their comparators performed comparable work, simply presuming this to be the case for the time being, and proceeded to investigate the issue of objective justification.  Even  though  the  questions  referred  to  the  ECJ do  not  relate  to  the  issue  of  comparability  of  work,  the  ECJ summarises  its  doctrine.  Where  seemingly  identical  tasks  are performed by different groups of persons who do not have the same  training  or  professional  qualifications,  it  is  necessary  to ascertain whether the different groups in fact do the same work. Professional training is not merely one of the factors that may justify different pay; it is also one of the criteria for determining whether the same work is being performed (§ 18-34).
2.  It  is  for  the  employer  to  provide  objective  justification  for  the difference  in  pay  between  the  workers  who  consider  that  they have been discriminated against and the comparators (§ 35-41).
3.  If  the  pay  of  one  group  of  workers  is  significantly  lower  than that of another group and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two groups perform duties of equal value and the statistics describing that situation are valid. It is for the national courts to assess whether the statistics cover enough individuals, whether they illustrate purely  fortuitous  or  short-term  phenomena,  and  whether,  in general,  they  appear  to  be  significant.  A  comparison  is  not relevant where it involves groups formed in an arbitrary manner (§ 42-45).
4.  As the ECJ held in Royal Copenhagen (C-400/93), the fact that the rates of pay have been determined by collective bargaining may be taken into account when assessing whether a pay differential is unrelated to any discrimination on the grounds of sex. It is for the national court to determine to what extent the interests of good industrial relations may be taken into consideration (§ 46-51).

Ruling

Article 141 EC and Directive 75/117 must be interpreted as follows:
•  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, those persons can be considered to be in a comparable situation. This is a matter for the national court to ascertain.
•  In relation to indirect pay discrimination, it is for the employer to establish objective justification for the difference in pay between the  workers  who  consider  that  they  have  been  discriminated against and the comparators.
•  The  employer’s  justification  for  the  difference  in  pay,  which  is evidence  of  a  prima  facie  case  of  gender  discrimination,  must relate to the comparators. Their situation will need to have been described  by  valid  statistics  covering  enough  individuals  and appearing  to  be  significant  (thus,  not,  for  example,  providing purely fortuitous or short term phenomena) and these will have been taken into account by the referring court in establishing the  difference in pay.
•  The  interests  of  good  industrial  relations  may  be  taken  into consideration by the national court as one factor among others in its assessment of whether the differences between the pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex and are compatible with the principle of proportionality.