The Supreme Court has held that the Labour Court erred in law in the way it concluded that 42 male security employees at University College Cork were being discriminated against on grounds of sex.
The Labour Court had said they were entitled to the same rates of pay as two female employees, who are job-sharing telephone switchboard operators.
Giving the Supreme Court decision, Mr Justice McCracken remarked that the facilitating of family responsibilities through job-sharing, which was not something confined to female employees, might in itself be a ground for differentiation in pay.
The five-judge court yesterday directed that the security operatives' claim be returned to the Labour Court for reconsideration in the light of the Supreme Court's findings, particularly its finding that the court erred in how it decided that the security service operatives and the two job-sharing women were engaged in "like work".
Mr Justice McCracken, with whom the other four Supreme Court judges agreed, said that in considering whether there were grounds other than sex to justify the pay difference between the security workers and the two switchboard operators, the Labour Court should have taken into account the fact that the job-sharing workers were paid at the same rate as the full-time operators, although they did less work.
The judge said the Labour Court should have asked why this was so.
Clearly, the pay difference was not based on grounds of sex but on grounds of facilitating the family obligations of the two workers.
He said the Labour Court failed to consider the fact that the two women worked shorter hours and performed lesser duties than the full-time switchboard operators.
On one view, he said, the two women should have been paid less than the full-time operators but the reason they were not was because of the generally accepted view that an employer should make due allowances for family responsibilities and should actively encourage initiatives such as job-sharing without penalising those who benefit from such initiatives.
He said this matter was not considered at all by the Labour Court in the context of considering whether there was discrimination between the job-sharing workers and the security workers on grounds other than sex.
He granted an appeal by UCC against the decision of the Labour Court that the security operatives were discriminated against on grounds of sex and directing that UCC pay each of the operatives the same rate of pay as that paid to switchboard operators.
Mr Justice McCracken said he was satisfied that the Labour Court's finding was not based on the proper consideration of the surrounding circumstances or of the underlying facts of the matter. To that degree, he was satisfied there was an error of law.
In particular, he considered that the Labour Court had erred in not differentiating between the matters properly to be taken into consideration when considering the concept of "like work" as set out in the Anti-Discrimination Pay Act, 1974, and the matters relevant to the determination of the grounds for different rates of pay.
While it was not seriously contested by UCC that the security operatives and the full-time switchboard operators in general were engaged in "like work", the comparators chosen by the Labour Court in its decision were the two job-sharing operators and not full-time operators.
He said the two job-sharing operators were telephone switchboard operators for many years and were initially employed on a full-time basis.
As a result of job-sharing arrangements agreed in 1993 between the two women and UCC, the full-time switchboard operators were performing different duties from the two women in that the former worked longer hours and still performed accounts duties.
The Labour Court's decision did not deal with the issue of whether the position of the two women and the other operators remained the same after the job-sharing arrangements.
In fact, that position had clearly altered, Mr Justice McCracken said.