Industrial relations concerns cannot on their own justify sex discrimination

In Kenny and ors –v- Minister for Justice, Equality and Law Reform and ors the ECJ has held that the industrial relations concerns of an employer cannot be the sole basis in which it seeks to justify indirect sex discrimination in the workplace.

Under the Equality Act 2010 an employer has a potential defence to an equal pay claim if he can show that the pay differential complained of is attributable to a material factor other than sex. If it can be established that the difference in pay is indirect sex discrimination, an employer would need to show objective justification in order to avoid liability. This means that the employer must show the difference in pay corresponds to a legitimate aim and is an appropriate and necessary means of achieving the objective pursued.

The Claimants, Kenny and ors, were female civil servants employed in clerical roles in the Irish Police Force. In addition to these female employees, male Garda officers also carried out the same duties. The Claimants’ trade union lodged claims for equal pay on the basis that the female workers were paid a clerical officers rate which was lower than that of their male counterparts. It was found by the Irish Labour Court that the proportion of men and women in the relevant groups amounted to obvious indirect sex discrimination but that this was objectively justified as the deployment of the male Garda officers met the operational needs of the Police and the need to have certain clerical roles carried out by Garda officers for industrial relations purposes. This was also in accordance with an agreement made with the police representative bodies. It was held that it was both appropriate and necessary to pay those police officers properly according to their rank and therefore the claim for equal pay was rejected.

The Claimants appealed to the Irish High Court and it in turn referred questions to the ECJ including whether, and to what extent, the interests of good industrial relations can legitimately constitute one of the grounds of justification when there is obvious sex discrimination in relation to pay.

The ECJ held that the interests of good industrial relations may be taken into account as one factor among others in a national court’s assessment of objective justification however, could not be the only basis for justifying discrimination. The ECJ confirmed that it was up to national courts to determine the extent to which industrial relations concerns may be taken into account when attempting to justify an obvious case of indirect discrimination in pay. This decision supports the UK Courts’ approach to the extent in which an employer can rely solely on cost to justify discriminatory treatment under the Equality Act 2010. An employer cannot justify such treatment solely with reference to cost-saving reasons but that cost can be weighed in the balance with other factors.

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