THE shop workers' union Mandate is to appeal an equal pay case involving 550 female workers at Penneys to the High Court.
It is the largest such claim ever taken against an employer in the private sector. The claim has already been rejected by the Labour Court and an equality officer but Mandate hopes a recent decision by the European Court of Justice in a British case involving a British speech therapist, Dr Pamela Enderby, could overturn these decisions.
If Penneys loses it will have to pay out more than £500,000 in back pay since 1991, when the claim was lodged. Mandate wants parity with the company's 11 male warehouse and stores staff, who are SIPTU members.
The Labour Court found the female staff gave work of overall equal value to the men's but the differential they enjoyed was based on a productivity deal negotiated by SIPTU.
In its Enderby ruling, the EU Court of Justice says women doing work of similar value to men should not be discriminated against simply because their pay agreement was negotiated separately. Mandate argued that the Penneys' differential was historical and the productivity deal aimed to protected it.
Mandate is appealing to the High Court on the basis that the Labour Court erred on a point of law by ignoring Enderby, which involved a High Court appeal in Britain by Dr Enderby against a UK industrial tribunal determination.
The British High Court referred the case to the EU court under the Treaty of Rome. The latter ruled that work measures that adversely affect "substantially more members of one or other sex" could not be put in place.
Under Article 119 of the Treaty of Rome an employer must show that pay differentials are "based on objectively justified factors unrelated to any discrimination on grounds of sex".
The industrial tribunal in Britain has still to give a final decision on Enderby. But the EU ruling could enable many women workers in employments where they are traditionally segregated by gender to lodge equal pay claims.