Discrimination - Like work - Whether grounds other than sex for the payment of different rates of remuneration - Whether plain- tiff entitled to choose her comparator - Anti-Discrimination (Pay) Act 1974, section 2 (3).

The High Court (Mr Justice O'Sullivan); judgment delivered 28 May 1998.

A plaintiff claiming under the Anti-Discrimination Pay Act 1974 is entitled to chose his or her comparator. The High Court so held in dismissing the appeal against a determination of the Labour Court whereby the Labour Court found that there were grounds other than sex justifying the pay differential between the comparator and the plaintiff.

Joseph Finnegan SC and Donal Seligman BL for the plaintiff/ appellant; Roderick Horan BL for the defendant/ respondent.

Mr Justice O'Sullivan said that the plaintiff was employed in the credit control department of the defendant's company. In September 1993 the plaintiff took over the duties of one Mr Tony Clarke (the comparator) who left the company having being paid a salary of £14,000. The plaintiff's salary was £11,000 and, despite alleged promises, was not increased. Mr Justice O' Sullivan noted that grade 8 was the comparator's grade whereas the plaintiff's grade was 7. The plaintiff claimed that the defendant was in breach of the 1974 Act upon the ground that she was doing like work as the comparator and that the only ground of distinction between her work and his was her sex. The plaintiff's claim was heard by an equality officer whose recommendation, dated 16 May 1996, was that the plaintiff was not entitled to the same rate of compensation as the comparator. On appeal by the plaintiff, the Labour Court agreed with the equality officer that there were grounds - which could be identified in paragraph 5.9 of the equality officer's recommendation - other than sex which justified the payment of different rates to the plaintiff from those paid to the comparator. The plaintiff then appealed this decision on a point of law. Mr Justice O' Sullivan said that the point of law is that paragraph 5.9 of the equality officer's recommendation shows that the equality officer compared the plaintiff not with the comparator as she was obliged to do, but with a Mr Butler, which she was not entitled to do. To support this submission the plaintiff relied on the case of Ainsworth v Glass Cubes and Components Ltd [1997] IRLR 347, in the course of which Mr Justice Kilner Brown said "In other words, in broad terms, the Industrial Tribunal was choosing the person with whom to make the comparison as to whether or not there was like work and ignored the proposition put forward by the applicant that it was another person with whom comparison should be made in assessing whether or not there was like work. This is so obviously a misdirection that it is unnecessary to deal with the matter in any further detail."

Mr Justice O'Sullivan agreed that the plaintiff was entitled to choose her comparator and in this case she had chosen Mr Clarke whom she replaced in the credit control department of the defendant. Mr Justice O'Sullivan went on to say that if paragraph 5.9 of the equality officer's report, on a reasonable construction, shows that equality officer compared the plaintiff with Mr Butler rather than Mr Clarke as she chose, then an error of law had occurred and the matter should be sent back. Quoting paragraph 5.9, Mr Justice O'Sullivan said that it is to be noted that the Labour Court was satisfied that the grounds on which the equality officer relied upon in reaching her decision can be "adequately identified" in paragraph 5.9 of the recommendation and he then went on to see what grounds could be identified from the said paragraph. Mr Justice O'Sullivan said the first point made in paragraph 5.9 was that the union did not respond to the defendant's argument in relation to "grounds other than sex" at the hearing but did so subsequently. Further it was clear from the paragraph that the union were contending for the proposition that Mr Butler was an assistant credit controller whereas the plaintiff was to be regarded as a credit controller.

Mr Justice O'Sullivan said the relevance of this was not immediately clear but what was clear is that the union, on behalf of the plaintiff, were prepared to engage in comparisons between the plaintiff and Mr Butler. The equality officer rejected the union's submission on this point and held that Mr Butler and the plaintiff were at the same level within the same company. Mr Justice O'Sullivan said that although it was not explicitly stated in paragraph 5.9 itself, it was a reasonable inference that the equality officer regarded the fact that Mr Butler was paid less than the comparator was justifiable on objective grounds, which clearly in his case did not include his sex, and therefore by extension regarded the fact that the plaintiff, who was at the same level within the company, was paid less than the comparator was also justified on grounds other than her sex. Mr Justice O' Sullivan said that it was also clear that the equality officer had the comparator in mind when expressing her views in paragraph 5.9 as she explicitly stated - "Had the claimant's male colleague been graded and paid the same as the comparator then the fact that the claimant was on a lower grade and (paid) less could have been related to her sex." Mr Justice O' Sullivan said on a prima facie reading he would consider that the meaning of paragraph 5.9 is that the equality officer was making a finding, contrary to the post-hearing submissions of the union on behalf of the plaintiff, that the plaintiff was on par in the company with Mr Butler and that accordingly the discrimination between her and the comparator was not on the grounds of sex. The equality officer was satisfied that there were grounds other than sex for the difference in grade and pay between the plaintiff and the comparator.

However Mr Justice O' Sullivan did not think that the other grounds were set out explicitly in paragraph 5.9, but bearing in mind the Labour Court's determination which indicated that the grounds could be "adequately identified" in paragraph 5.9, he considered it appropriate to turn to the argument put forward by the defendant under section 2(3) dealing with "grounds other than sex".

Mr Justice O'Sullivan said that the first point that emerged from the equality officer's report was that the comparator commenced employment at grade 8 on the clerical scale whereas the plaintiff and Mr Butler commenced at grade 7. Mr Butler was paid more than the plaintiff due to his greater length of service. Both the defendant and the union agreed that the plaintiff and Mr Butler performed the same job and were inter-changeable with each other. The defendants had argued that if the plaintiff was being paid less than the comparator on the basis on her sex, then it would have followed that Mr Butler should have been graded and paid the same as the comparator which was not the case.

Mr Justice O'Sullivan said that the summary of the defendant's arguments to the equality officer provided the background to the references to the comparison between the plaintiff and Mr Butler at paragraph 5.9 and also indicated one of the non-sexual grounds of distinction made by defendant between the plaintiff and the comparator. Mr Justice O'Sullivan said that elsewhere in the equality officer's report the company argued that the comparator dealt with different sets of accounts, had another member of staff reporting to him and reported direct to the general manager, in each of which respects his job was different to that of the plaintiff and justified a higher rate of pay. The equality officer in her report had accepted that the plaintiff and the comparator were performing "like work" but then went on to hold against the plaintiff that there were "grounds other than sex" which differentiated between the plaintiff and the comparator.

Mr Justice O'Sullivan said there was clearly evidence to support the conclusion of the equality officer and if this evidence and these grounds were endorsed by the Labour Court, he would have no jurisdiction to replace them with his own inferences or assessment, as in this appeal he could only deal with a point of law. Mr Justice O'Sullivan said that the point of law advanced on behalf of the plaintiff was that at paragraph 5.9 the equality officer had confined herself to comparing the plaintiff with the wrong comparator, namely Mr Butler, instead of the chosen comparator, namely, Mr Clarke. Mr Justice O'Sullivan accepted the principle of law underlying this submission but as a matter of fact he did not agree that this was a correct interpretation of paragraph 5.9. Mr Justice O'Sullivan said that paragraph 5.9 indicated not only that the plaintiff and Mr Bulter were at the same level within the company, but also by necessary inference from the balance of the material referred to in paragraph 5.9, that there were grounds justifying the pay differential between the comparator on the one hand and both of these employees on the other. The Labour Court has indicated these grounds can be "adequately identified" in paragraphs 5.9 and a full reading of this paragraph indicated what those grounds are.

Mr Justice O'Sullivan said the grounds justifying the pay differential did not refer to the sex of the plaintiff and once these grounds were submitted, then it was not his function to test their adequacy or otherwise. Mr Justice O'Sullivan found the point of law relied upon the plaintiff/ appellant did not arise and therefore upheld the determination of the Labour Court in dismissing the appeal.

Solicitors: Bernard L. Gaughran & Company (Dublin) for the plaintiff/ appellant; A. & L. Goodbody (Dublin) for the defendant/ respondent.