BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. This is an Appeal on a point of law from a decision of the Labour Court dated the 17th June, 1994. The Applicant is a Communications Assistant employed in the Respondent's Aviation and Marine Communications Service Office at Dublin Airport. Her claim and that of other female Communications Officers is brought under the Anti-Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977. They allege discrimination as between their grade and that of Radio Officers employed in the same office at Dublin Airport.

2. The basic facts show that both grades are employed on shift work and that each shift is normally staffed by two Radio Officers and one Communications Assistant both working in the same office. In relation to the claim of discrimination two main issues have arisen:-

3. At the hearing of their claim under the Anti-Discrimination (Pay) Act, 1974, the Equality Officer found as a fact that although the claimants did work similar in nature to that of the comparators nevertheless the work which they did was not like work within the meaning of Section 3(b) or Section 3(c) of the Act.

4. The conclusion of the Equality Officer in relation to Section 3(b) as set out in his report was as follows:-

5. In relation to Section 3(c) of the Act, the Equality Officer considered that the work performed by the comparators was more demanding in terms of skill and responsibility than that performed by the claimants. In relation to skill, the Equality Officer found that Radio Officers had more extensive training. Further, in order to comply with UN conventions on broadcasting on aeronautical and maritime frequencies, Radio Officers had to have certain qualifications which were not required of Communications Assistants. He found:-

6. In relation to responsibility, the Equality Officer found that the normal work performed by the comparators carried an equivalent level of responsibility to that of the work carried out by the claimants. In addition he found that the comparators could also be responsible for handling maritime emergencies when operating the maritime VHF station. He found that handling maritime emergencies, although not occurring on a regular basis, involved taking full responsibility for the safety of those involved and in his opinion involved a greater level of responsibility than in solely receiving and transmitting information which was drawn up by others and which was checked with the various addressees to which it was sent. The comparators were required also to examine and record all information in relation to any aeronautical emergency. They also had supervisory/admisistration responsibilities not shared by Communications Assistants.

7. Although it was not necessary for his decision the Officer indicated that he considered that the higher qualifications required of Radio Officers and the greater demands associated with their work would have constituted valid grounds other than sex for the higher rate of remuneration associated with their grade.

8. The claimants' claim under the Employment Equality Act, 1977 was that because of their sex, they had been treated less favourably than male Radio Officers employed in the same office at Dublin Airport. They alleged that the Department had discriminated against them in failing to afford them the same treatment in relation to promotion, overtime, re-grading, shift-work, work experience and training/education as was afforded to the male Radio Officers since the circumstances in which they were employed were not materially different.

9. The Equality Officer was satisfied that on the basis of the conclusions which he had reached in relation to the claim under the Anti-Discrimination (Pay) Act, 1974 that there were material differences between the work performed by Communications Assistants and that performed by Radio Officers and that those differences were not related to sex. He was accordingly satisfied that there were genuine reasons other than sex for the difference in treatment afforded to the claimants as against that afforded to the comparators. He found that all the incidents of alleged discrimination arose in effect from the fact that the claimants and the comparators were employed at different jobs.

10. The determination of the Labour Court dealt with the claims under both Acts. The determination set out the grounds of appeal from the determination of the Equality Officer and also the arguments of both sides on the hearing of the Appeal. Its determination was as follows:-

11. Much of the claimants case before the Respondent related to the ability of the claimants to do the work being carried out by the comparators. It was also submitted that the qualification required by the Respondent was unnecessary for the work which the comparators carried out. It was accepted that the work involving emergencies at work which only the comparators could carry out but it was maintained that these occurred so infrequently as to have no material difference on the quality of the work being carried out by each of them. In relation to the need for qualifications on the part of the Radio Officers, it was submitted that the premises at which the parties worked was not an aeronautical station but was a station forming part of the aeronautical fixed telecommunication network.

12. Substantial criticism was made of the determination of the Labour Court on the basis that one of its members was retiring the following day and that accordingly it was ill thought out and unsatisfactory. It seems to me that so far as it upholds the findings of the Equality Officer under the Anti-Discrimination (Pay) Act and highlights the difference in skills and responsibility that it is upholding the findings of the Equality Officer in relation to like work whether under Section 3(b) or Section 3(c) of the Act. At the same time, I consider that for the same reasons the Labour Court is also upholding the finding of the Equality Officer that the difference in treatment is not on the grounds of sex.

13. The special endorsement of claim sets out nine grounds of appeal. In a letter dated 14th November, 1996 several further grounds for appeal were included, mainly though not exclusively relating to the finding that Dublin Airport was an aeronautical station.

14. In my view, these grounds of appeal in reality are no more than an appeal on the facts rather than on the law. Saving one paragraph, there is no averment that findings were not supported by evidence. I have no doubt that the Applicant believes that she, and those in her grade, do like work with radio officers and are being discriminated against by reason of their sex. But the facts to support such a claim must be established before the Labour Court. They were not established there and in my view the controversy must end with that failure.

15. It has been submitted that the finding of fact that the station at Dublin Airport was not an aeronautical station, but was a station forming part of the aeronautical fixed telecommunication network was wrong. It followed from that submission that the requirement for the additional qualifications was unnecessary for the work being carried out. The Labour Court made this finding by noting the obligation of the Department under international conventions to staff the station in question with acceptably qualified personnel. This clearly accepted that part of the Respondent's argument that the qualifications of the comparators was required to comply with international UN broadcasting conventions.

16. I think it unfortunate that the Labour Court in its determination having regard to the fact that it is the final tribunal of fact does not and did not on this occasion set out clearly what facts it was deciding and how it was applying those facts having regard to the legal principles applicable. Nevertheless, it did achieve the basic minimum required.

17. My view is supported by the decision of Keane J. in Golding -v- The Labour Court (1994) E.L.R. 153. That was a case in which relief by way of Judicial Review was sought upon the ground that the determination by the Labour Court did not indicate the reasons for its determination sufficient to enable the appellant to ascertain whether a point of law existed to allow an Appeal to the High Court. Dealing with the nature of a proper determination by the Labour Court, Keane J. said at page 157:-

18. On the same page he said:-

19. That was a case of Judicial Review whereas the present is one of an Appeal on a point of law. Nevertheless, it seems to me that what is essential is that the manner in which the decision is expressed leaves no room for doubt as to the findings of fact and reasons which led to the decision.

20. Having regard to the matters contained in the Labour Courts determination and the matters which it indicates that it took into account, it seems to me clear that the matters which affected its determination were the differences in skill, responsibility and qualifications between the claimants and the comparators. In my view, findings in relation to these matters were supported by evidence before the Labour Court. Once the question of like work was decided against the claimants then it seems to me that the question of the qualifications was not necessary. Without like work the claimants claim under the Anti-Discrimination (Pay) Act failed.

21. These matters also governed a claim under the Employment Equality Act. Even if the additional qualification was not required for employment as a radio officer, this would not have assisted the Applicant. Such requirement would not have been a means of indirect discrimination effecting predominantly more women than men. The nature of the two employments has been found to be different and that the matters complained of spring from this basic fact.

22. I am satisfied that the Labour Court exercised its jurisdiction correctly. In my view, there is no point of law upon which the claimants may rely to set aside that determination.