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1. In 1993 the Plaintiff was employed in the Credit Control Department of the Defendant and in September of that year took over the duties of one Mr. Tony Clarke (the comparator) who left the company having been on a salary of £14,000. The Plaintiff's salary had been £11,000 and, despite alleged promises to discuss it, was not increased.

2. As a result she claimed that the Defendant was in breach of the Anti-Discrimination (Pay) Act, 1974 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.

3. The Plaintiff's dispute with the Defendant was heard by an Equality Officer who made a recommendation dated the 16th May, 1996 and the evidence before me exhibits the entire of her report and recommendation.

4. The recommendation was that the Plaintiff was not entitled to the same rate of remuneration as the comparator.

5. From this decision the Plaintiff appealed to the Labour Court which issued their determination on the 8th April, 1997. In the course of that determination, the Labour Court said:-

6. From this it can be seen that the decision of the Labour Court was that it agreed with the Equality Officer that there were grounds - which could be identified in paragraph 5.9 of her recommendation - other than sex which justified the payment of different rates to her from those paid to the comparator.

7. The Plaintiff has appealed that determination to this Court on a point of law as she is entitled to do under Section 8(3) of the above-entitled Act.

8. 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. The Plaintiff points to the following portion of paragraph 5.9:-

9. In support of this submission the Plaintiff relies on the judgment of Kilner Brown J. in Ainsworth (Appellant) v. Glass Cubes and Components Limited (Respondents) (Industrial Relations Law Reports: Volume 6: 1977: at 347 following). In the course of his judgment Kilner Brown J. said:-

10. I agree that the Plaintiff is entitled to choose her comparator and in this case has chosen Mr. Clarke whom she replaced in the Credit Control Department of the Defendant.

11. I think that the Labour Court has pinned its colours to paragraph 5.9 of the Equality Officer's report and if that paragraph on a reasonable construction shows that the Equality Officer compared the Plaintiff with Mr. Butler rather than Mr. Clarke as she chose, then I agree that an error of law has occurred and the matter should be sent back.

12. In order to test the foregoing, I think it is appropriate to quote paragraph 5.9 of the Equality Officer's recommendation in full and I do so as follows:-

13. It is to be noted that the Labour Court said that it was satisfied "that the grounds on which the Equality Officer relied can be adequately identified" in the above-quoted paragraph. I must now try to see what grounds can be identified from the foregoing paragraph.

14. The first point made in paragraph 5.9 is that the Union did not respond to the company's argument in relation to "grounds other than sex" at the hearing but did so subsequently. It is further clear from the text of paragraph 5.9 itself 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. The relevance of this is not immediately clear but what is 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 score and held that Mr. Butler and the Plaintiff were at the same level within the same company.

15. Although not explicitly stated in paragraph 5.9 itself, it is 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 Ms. Wilton ( "who was at the same level within the company" ) was also justified on grounds other than her sex.

16. That would appear to me to be the "prima facie" thought process underlying paragraph 5.9. It is clear, also, that the Equality Officer had the comparator in mind when expressing her views in paragraph 5.9 because she explicitly stated:-

17. It will be recalled that the Labour Court said that the grounds on which the Equality Officer relied could be "adequately identified" in paragraph 5.9 of her recommendation.

18. On a prima facie reading as I have said, I would consider that the meaning of paragraph 5.9 is that the Equality Officer is making a finding, contrary to the post-hearing submissions of the Union on behalf of the Plaintiff, that the Plaintiff was on a par in the company with Mr. Butler and that accordingly the discrimination between her and the comparator was not on the grounds of sex. She was satisfied that there were grounds other than sex for the difference in grade and pay between the Plaintiff and the named comparator.

19. I do not think that those other grounds are set out explicitly in paragraph 5.9 but bearing in mind the phraseology of the Labour Court's determination which indicated that the grounds could be "adequately identified" in paragraph 5.9, I consider that it is appropriate to turn to the argument put forward by the company under Section 2(3) dealing with "grounds other than sex" which are explicitly referred to at the outset in paragraph 5.9. This argument appears at pages 14 ff. of the Equality Officer's report and recommendation. Before I allude to these, I would make it clear, of course, that it is no part of my function to test the strength or weaknesses of such arguments. This is not a Court of appeal, but only a Court of appeal on a point of law, which is an entirely different matter. No argument was made on behalf of the Plaintiff that the Labour Court was irrational in reaching its decision and therefore it is not for this Court to weigh the strengths or weaknesses of the arguments or evaluate its determination thereon.

20. The first point that emerges is 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. It is stated in the report that both the Defendant and the Union on behalf of the Plaintiff agreed that the Plaintiff and Mr. Butler performed the same job and were inter-changeable with each other. The Defendant had argued that if the Plaintiff was being paid less than the comparator on the basis of 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. This summary of the Defendant's arguments to the Equality Officer provides the background to the references to the comparison between the Plaintiff and Mr. Butler at paragraph 5.9 and also indicates one of the non-sex grounds of distinction made by the company between the Plaintiff and the comparator.

21. Elsewhere in the Equality Officer's report it is clear that 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.

22. In the conclusion section of the Equality Officer's report she accepted that the Plaintiff and the comparator were performing "like work" but then went on the hold against the Plaintiff that there were "grounds other than sex" to differentiate between the Plaintiff and the comparator.

23. In light of all of this, there was clearly evidence to support the conclusion of the Equality Officer. If this evidence and these grounds were endorsed by the Labour Court, I would have no jurisdiction to replace them with my own inferences or assessment. In this appeal I can only deal with a point of law. The point of law advanced on behalf of the Plaintiff is that at paragraph 5.9 (which was referred to in the Labour Court's determination) the Equality Officer has confined herself to comparing the Plaintiff with the wrong comparator, namely, Mr. Butler, instead of the chosen comparator, namely, Mr. Clarke. I accept the principle of law underlying this submission but as a matter of fact I do not agree that this is a correct interpretation of paragraph 5.9 of the Equality Officer's recommendation. In my view, paragraph 5.9 indicates not only that the Plaintiff and Mr. Butler were at the same level within the company (contrary to the submission on the Plaintiff's behalf made by the Union), 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 these employees on the other. The Labour Court has indicated that these grounds can be "adequately identified" in paragraph 5.9 and a full reading of this paragraph (which at the outset refers to the argument put forward by the company relating to "grounds other than sex" ) indicates what those grounds are. They do not relate to the sex of the Plaintiff and once these grounds were submitted, then it is not my function to test their adequacy or otherwise. In the circumstances I consider that the determination of the Labour Court was correct, that the point of law relied upon by the Plaintiff/Appellant does not arise and accordingly I must dismiss this appeal.