In a surprising decision, the European Court of Justice has ruled that two-tier pay scales for Irish teachers are not discriminatory on age grounds.
In 2011, Circular 0040/2011 ‘New Pay Scales for New Appointees to Teaching in 2011 (the ‘Circular’)’, was introduced into Irish law. The Circular provided for a 10% reduction in pay of new entrants to the public service, in this case teachers. As such, all new teachers appointed on or after 1 January 2011 would be subject to this 10% reduction in pay. New teachers were therefore starting at the first point of this pay scale, whereas those who had become teachers before the 1 January 2011 were not subject to the reduction. This, in effect, created a two-tier pay scale system.
Tomás Horgan and Claire Keegan qualified as school teachers and began working at a primary school during the autumn of 2011. As new entrants to teaching they were subject to the 10% reduction in pay. Both Mr Horgan and Ms Keegan were members of the Irish National Teachers' Organisation trade union (INTO). On behalf of its two members, INTO argued before the Irish Labour Court that the effect of the Circular was age discrimination, as approximately 70% of new teachers who were appointed on or after the aforementioned date were 25 years of age or under.
The Labour Court acknowledged that the Circular had resulted in the coexistence of two groups of teachers, both conducting the same type of work, but both receiving different levels of pay. The main difference between both groups was age. However, the Labour Court also recognised that the factor determining what pay scale the teachers were placed on was the year in which they began teaching and not determined by age. In turn the Labour Court considered whether there had been any indirect discrimination. Two justifications had been put forward:
Ireland was responding to an economic crisis and had introduced the measures for public servants in order to comply with budgetary restraints; and
An obligation to prevent any further reduction in the pay of public servants recruited before 2011.
The Labour Court did not believe that these grounds were individually capable of being valid justifications, but thought they might, in combination, warrant justification. The question was referred to the European Court of Justice.
The ECJ dismissed the claim.
The ECJ concluded that the recruitment criterion (i.e. when the teacher was recruited) was “manifestly unconnected” to the age of the persons recruited. It was held that the remuneration conditions are not based on a criterion which in inextricably or indirectly linked to the age of the teacher, so there could therefore not be a difference of treatment on grounds of age.
After ruling on this point, the ECJ declined the opportunity to go on to consider justification.
Comment on the decision
This is a surprising decision. Whilst it is accepted that no causation means no direct discrimination, the same cannot be said for indirect discrimination. Indirect discrimination requires a neutral provision, criterion or practice that has a disparate impact on an age group; if the criterion expressly related to age, it would cease to be neutral. For example, a criterion that job applicants must have a degree obtained within the past 10 years is a neutral criterion on the face of it – it does not mention age at all. However, it would have a disparate impact on those aged 32+, since most people go to university immediately after secondary education (possibly with a gap year).
Tomás Horgan and Claire Keegan v Minister for Education & Skills and Others: C 154/18, Second Chamber, 14 February 2019