Patricia Conlon (applicant) v University of Limerick (respondent); Minister for Enterprise Trade and Employment (notice party).

Employment Law - Indirect discrimination on grounds of sex - Whether respondent had imposed an essential requirement - Onus of proof - Whether Labour Court applied correct principles of law - Employment Equality Act 1977, sections 2, 3.

The High Court (before Mr Justice McCracken); judgment delivered 4 February 1999.

In considering whether a requirement imposed by an employer in relation to employment was essential, the Labour Court must be satisfied that the requirement was objectively necessary. In advertising the position of professor, the respondent was entitled to require that the person appointed would not only be capable of doing the job, but would be seen to be a person of senior stature. The Labour Court had made findings of fact as to the subjective belief of the respondent and had also satisfied itself that the requirements imposed were essential. Mr Justice McCracken in the High Court so held in upholding the determination of the Labour court and in dismissing the applicant's appeal.

Mary Finlay SC and Michael Vallely BL for the applicant; Ercus Stewart SC and Roderick Horan BL for the respondent; Peter Ward BL for the notice party.

Mr Justice McCracken said that the applicant was a lecturer in law employed by the respondent. In January 1995 the respondent advertised the position of Professor of Law in the following terms:

"Applications are invited from suitably qualified candidates holding a higher law degree, preferably at doctorate level. The successful candidate will have several years experience at a senior academic level and be a leading published researcher in a specialist field of law."

The applicant applied for the position and was notified that she had not been short-listed for interview as there were other candidates whose qualifications and experience more closely matched the immediate requirements of the respondent. The applicant's basic complaint was that, in requiring that an applicant should have several years experience at a senior academic level, the respondent was indirectly discriminating against the applicant on grounds of sex, in that there would be very few females qualified for the post because there were very few females at a senior academic level.

The matter was referred by the Labour Court to an Equality Officer who issued a recommendation that the respondent had not discriminated against the applicant. On appeal, the Labour Court determined that there had been no discrimination against the applicant. From this determination the applicant had appealed on a point of law to the High Court on the basis that the Labour Court had misinterpreted sections 2 and 3 of the Employment Equality Act 1977.

Section 3 provides, inter alia, as follows "(1) A person who is an employer . . . shall not discriminate against an employee or a prospective employee . . . in relation to access to employment, conditions of employment . . . training or experience for or in relation to employment, promotion or re-grading in employment or classification of posts in employment.

(2) An employer shall not . . . have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with section 2(c)...

(6) Without prejudice to the generality of subsection (1), a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion."

Section 2 provides examples of discrimination, the only one relevant to this case being that in section 2(c), as follows "Where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment . . . , which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex . . . able to comply is substantially higher."

Mr Justice McCracken said that the Act was enacted to comply with Article 189(3) of the Treaty of Rome and with Directive No 76/207/EEC, which Directive clearly set out the principle that there was to be no discrimination on the grounds of sex, either directly or indirectly. The application of the principles of the Directive to the Act had been considered by the Supreme Court in Nathan v Bailey Gibson and Others [1996] ELR 114.

That case had established that (1) Section 2 of the Act only refers to direct discrimination. (2) Section 3 applies to both direct and indirect discrimination. (3) The interpretation of section 3 is not limited in any way by the provisions of section 2, because the interpretation of section 3 must be approached in the light of the Directive. (4) Initially, it is for the worker to show that the practice complained of bears more heavily on one sex than on the other.

Once this is established, it is then for the employer to show that, notwithstanding this fact, the practice complained of is in fact based on factors which are unconnected with the sex of the worker. Mr Justice McCracken said that the national court, in this case the Labour Court, must make an objective finding in considering whether the practice complained of is based on factors which have no relation to sex.

In Bilka-Kaufhaus GmbH v Karin Weber Von Hartz [1986] ECR 1607 the European Court of Justice stated: "If the national court finds that the means chosen by Bilka meet a genuine need of the enterprise, that they are suitable for attaining the objective pursued by the enterprise and are necessary for that purpose, the fact that the measures in question affect a much greater number of women than men is not sufficient to conclude that they involve a breach of Article 119."

Mr Justice McCracken said that, in this case, the Labour Court had failed to apply the principles established in Nathan v Bailey Gibson and Others. The determination stated that the first matter to be addressed was whether or not the requirements were essential requirements.

If they were not, then the issue of whether a greater proportion of men than women could comply with them would follow for determination. But if the requirements were essential, then the question of indirect discrimination would not arise because any choice based on a genuinely essential requirement could not arise from a sex-based indirect discrimination.

It also stated that if the applicant could show that the requirements imposed for access to the position of Professor of Law were not essential for employment as Professor of Law, then she could go on to seek to show that the requirement negatively affected her as a woman, because the proportion of men who could comply with it was greater.

This approach was clearly contrary to the principles in Nathan v Bailey Gibson and Others in that the Labour Court appeared to consider that section 2(c) applied to indirect discrimination and that the onus of proof was on the applicant to show that the requirements were not essential.

The Labour Court had found as a fact that, in relation to a senior academic post, it was not quite as simple a matter as asking whether a person with fewer qualifications can teach the subject or do the administrative work required. It was important to the university that the person would not only be capable of doing the job, but would be seen to be a person of senior stature, so that students of high calibre would be attracted to the courses and so that the standing of those courses with employers and with the legal profession in general would be high.

The perception was as important for the employment as the ability to do the specific tasks. The university regarded its requirements as essential and there was no evidence that it was unreasonable in taking this position. This very clear finding of fact was based on arguments and evidence put forward by the respondent.

Mr Justice McCracken said that while the Labour Court did not express itself particularly well in its determination, it would seem that in fact it considered the arguments of the respondent and satisfied itself that the onus of proof had been discharged.

Furthermore, Mr Justice McCracken said that he did not think it was of any relevance that it considered the question of whether the requirements for the post were essential before considering whether women were adversely affected by these requirements. The order in which these matters were considered was not important: so long as there was a finding that there were objectively verifiable factors which have no relation to the applicant's sex, the question of adversely affecting one sex over the other did not arise.

Mr Justice McCracken said that there was no doubt that the Labour Court erred in referring to section 2(c). However, this was simply an error in relating the question to one particular section.

In fact, the Labour Court considered the issue from the point of view of indirect discrimination, which was the correct approach to take, even if it attributed this approach to the wrong section. It applied the principles in relation to indirect discrimination perfectly correctly, and the fact that the reference was to section 2(c) did not invalidate its decision in any way.

Mr Justice McCracken said that the factors relating to the requirements of the respondent must be viewed objectively by the Labour Court. It was difficult when considering the findings of a body such as the Labour Court to put oneself in the position of judging how it approached the decision, and in particular whether that approach was subjective or objective. The vital sentence in the decision was not happily expressed. It said "In this case, the court is satisfied that the institution genuinely regarded the requirements as essential, that the requirements were reasonable in the circumstances, and reasonably deemed to be essential, and that the worker has not shown then to be otherwise."

The use of the word "reasonable" was particularly unfortunate, as the generally accepted test was that the requirement must be "essential". However, this was a matter of semantics, and the finding that the court was satisfied that the requirements were reasonable in the circumstances, coupled with the last sentence of the following paragraph, which says "the court is satisfied that the requirements laid down by the university were essential", were sufficient to lead to the inference that the court did view these requirements as being objectively essential in the particular circumstances of the post which it was sought to fill. This approach was correct in accordance with the decisions of the European Court of Justice: see Kording v Senator Fur Finanzen [1997] ECR 5289 where it was stated (at paragraph 23) that "the objectivity of . . . a criterion depends on all the circumstances in each individual case."

The final argument of the applicant was that the Labour Court had failed to apply the correct principles in that it failed to take into consideration the lack of transparency in the criteria applied for appointment to the post, and the onus was therefore on the respondent to establish that discrimination did not occur.

Mr Justice McCracken said that the wording of the advertisement and the criteria set out were in fact quite clear and that a lack of transparency did not arise. He also said that he had already found that the onus was on the respondent and that that onus had been discharged before the Labour Court. He therefore dismissed the appeal.

Solicitors: Hughes Murphy & Co (Dublin) for the applicant; Holmes O'Malley & Sexton (Limerick) for the respondent; Chief State Solicitor for the Notice Party.