In the Irish case of Kenny v Minister for Justice, female civil servants carrying out clerical duties for the national police claimed that they were paid less than male employees carrying out the same work. These male employees were assigned to specific clerical posts reserved for members of the police, called ‘designated’ posts, in an effort to reduce police numbers.

The employees brought an equal pay claim before the Equality Tribunal in Ireland and appealed to the Labour Court (Ireland), which found that they had a prima facie case of indirect pay discrimination, on the basis that that the majority of designated posts were occupied by men and the majority of clerical officers were female. The employer argued that any difference in pay was justified on the basis of operational need as well as on the basis that the number of designated posts had been determined by a collective agreement negotiated with the Trade Union.

The employees appealed to the High Court (Ireland), which referred questions to the Court of Justice for the European Union (CJEU, formerly the ECJ). The CJEU had to consider (assuming that the two groups were carrying out like work) whether the difference in pay could be objectively justified by the fact that the rates of pay had been determined by collective bargaining and so was due to objective factors unrelated to any sex discrimination. The CJEU held that collective bargains are one factor in determining whether differences of pay are due to objective factors. However, employers’ industrial relations concerns, although subject to the requirement to not discriminate, cannot on their own justify indirect sex discrimination.

This case highlights the need for employers to be aware of any potential discrimination issues whilst negotiating collective agreements, as if an indirect effect of the agreement is that it is discriminatory, they cannot rely solely on the fact that the agreement was collectively agreed to justify this effect.