THE HIGH COURT
		1997 No. 522 SP
IN THE MATTER OF THE ANTI-DISCRIMINATION (PAY) ACT, 1974
BETWEEN
SUSAN FLYNN  ORLA MURRAY  RACHEL MULLEN AND MANDATE THE UNION OF RETAIL BAR AND ADMINISTRATIVE WORKERS
		APPLICANTS
AND
PRIMARK TRADING AS PENNYS LIMITED
		RESPONDENT
AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
		NOTICE PARTY

Judgment of Ms. Justice Laffoy delivered on the 4th day of March, 1999

THE PROCEEDINGS
	
	This is an appeal on a point of law from a determination of the Labour Court made on 7th November, 1997.  That determination was the sequel to a decision of this Court (Barron J.) of 12th January, 1997 in an appeal by and against the same parties from a determination of the Labour Court made on 5th February, 1996.

BACKGROUND

	The genesis of both appeals is a claim by 550 sales and clerical assistants employed by the Respondent in its stores and offices in Dublin, three of whom are the first three named Applicants and all of whom are represented by the fourth named Applicant trade union, for equal pay with a group of eleven named comparators who work as storemen in one of the Respondent's stores in Dublin.  The group whom the Applicants represent are predominantly female and the comparator group is exclusively male.  The claim was initiated in December 1991. 
	In summary, the history of the claim is as follows:-

(1)	On 6th October, 1994 the Equality Officer made a recommendation that the Applicants and the comparators were employed on like work within the meaning of Section 3 of the Anti Discrimination (Pay) Act, 1974 (the Act of 1974), in that each of the Applicants performed work of equal value with each of the comparators under paragraph (c) of that Section, but that there were valid grounds other than sex for the difference in the rates of pay between each of the Applicants and each of the comparators, so that the Applicants were not entitled to the same rate of remuneration as the comparators.  

(2)	The Applicants appealed to the Labour Court against the Equality Officer's recommendation.  In its determination on that appeal, which was dated 5th February, 1996, the Labour Court rejected the appeal and upheld the conclusions of the Equality Officer that the Applicants were not entitled to the same rate of remuneration as that of the comparators.
                                                                                                                             
(3)	The Applicants brought an appeal on a point of law under Section 8(3) of the Act of 1974 to this Court.  In his judgment delivered on 12th January, 1997 on that appeal, Barron J. found that the Labour Court had applied the wrong legal principle and remitted the matter to the Labour Court to consider and determine the issue.  

(4)	The Labour Court reconsidered the matter and issued its second determination on 7th November, 1997.  In its reasoned determination of that date the Labour Court stated that it was satisfied that the difference in pay between the Applicants and the comparators is justified on economic grounds and again upheld the conclusions of the Equality Officer and rejected the appeal of the Applicants.  It is against that determination that the Applicants now appeal.

	Before considering the grounds on which the Applicants contend that the Labour Court in its second determination erred in law, I propose considering in depth, first, the basis on which Barron J. found that the Labour Court had applied the wrong principle in its first determination and, secondly, the basis on which the Labour Court approached the issues before it on its reconsideration of them and the reasoning of the second determination.
	In broad terms, throughout the course of the dispute, the Respondent has rejected the equal pay claim on the basis that there is a two-fold justification for the differential.  First, between 1974 and 1979 the comparator group, which was in a position to flex considerable industrial relations "muscle", negotiated five uniquely advantageous flexibility and productivity agreements.  Secondly, the Applicant group's pay rates, which are all unisex rates now, and the comparator group's rates are negotiated by different trade unions and via very different industrial relations channels.

JUDGMENT OF THE HIGH COURT

	In its first determination the Labour Court stated as follows:-

	"The Company raised by way of defence the claim that the difference in the rates between the claimants and the comparators arose from grounds other than sex.  The Court finds this defence proved.  The claimants' rates of pay are all unisex rates; the previous male/female rates were equalised through the Registered Employment Agreement for the Drapery Trade.  The comparators' rates were negotiated within the industry and were increased as a result of company/union productivity agreements.  The claimants and the comparators' rates of pay have been achieved by different industrial routes, and are in fact both unisex rates, even if one group is predominantly female and the other predominantly male.  The Court finds that the difference between the rates is not related to the sex of the workers......".

In his judgment on the appeal against that determination, having outlined the principles established by a number of cases decided by the European Court of Justice on the interpretation of Article 119 of the EEC Treaty (the State's obligations under which are implemented by the Act of 1974), Barron J. summarised the effect of the case law as follows:-

	"The principles of law established by the case law to which I have referred are not, in my view, in dispute between the parties.   Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men then, whatever the reason, there is prima facie discrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justifiable on economic grounds".

	Having stated that matters of fact in issue are matters to be submitted to the Labour Court, not the High Court, whose function is to determine as a matter of law whether the Labour Court has applied the correct legal principles, Barron J. went on to say:-

	"Once there was a finding of like work, it was for the National Court - in our jurisdiction the Labour Court - to determine whether the difference was in fact gender based and not in reality merely an indirect way of reducing the level of pay of a group of workers exclusively or predominantly of one sex.  It is only when they find that not to be the reality that a decision must be made that there is an objectively justifiable reason for the difference in pay.  The appellants say that this reason must exist at the date of the determination.  It seems to me that this should be so since otherwise the employer would be relying upon a factor which no longer exists".

	Barron J. then quoted the passage from the first determination of the Labour Court, which I have quoted earlier, and went on to analyse it in the following passage:-

	"It is clear from this determination that the Labour Court relied upon four matters:-

	(1)	That the claimants' rates of pay were all unisex rates;
	(2)	That previous male/female rates were equalised through registered employment agreements;
	(3)	That the comparators' rates were negotiated as a result of company/union productivity agreements; and
	(4)	That the different rates of pay have been achieved by different industrial routes and are both unisex rates even if one group is predominantly female and the other predominantly male.  

	The Court then found that the difference between rates was not related to the sex of the workers.  There is nothing in that determination which purports to deal with the question as to whether or not the practice or the circumstances giving rise to the difference in remuneration can be objectively justified.  The reference to unisex rates does not seem to me to be significant.  If the rates were not unisex there would be direct discrimination.  The fact that the different rates of pay have been achieved by different industrial routes does not per se objectively justify the practice.  The onus on the employer is not discharged by this circumstance alone.  This is only one of the factors which they had to take into account, it did not determine the issue. 

	Where the principles laid down by the European Court set out specific matters to be found by the National Court having jurisdiction to make findings of fact [it] seems to me that such findings of fact should be made expressly and not be implication.  In the present case, there is no express finding of fact that the circumstances which gave rise to the difference in pay can be objectively justified on economic grounds.  That is not to say that I am of the view that such a finding can be implied".

	Having expressed the view that the Labour Court applied the wrong principle, Barron J. concluded as follows:-

	"Its function was not to consider merely whether there was a reason unconnected with sex for the difference in remuneration, but whether that difference was objectively justified on economic grounds, and not merely an indirect means of reducing the pay of a group of workers exclusively or predominantly of one sex.  What the Labour Court did was to accept the reason for the difference in remuneration without going on to consider whether it was objectively justified on economic grounds".

The judgment of Barron J. was not appealed.  It dealt comprehensively with the relevant case law and the principles to be deduced from the case law.  In my view, it would be otiose to attempt to cover the same ground in this judgment.

DETERMINATION OF THE LABOUR COURT

	It is clear from its express terms that, in formulating its second determination, the Labour Court had due regard to the principles enunciated in the judgment of Barron J. and was astute in following the guidance he had given.  It stated that it was satisfied, having considered the evidence and the submissions put forward by both parties to the dispute, that the Respondent is justified in paying different rates to the Applicants and the comparators and that the justification is objectively based on economic grounds.  
	The Labour Court considered the differences from an historic perspective and pointed out that the existing differences arose in the first instance because the comparator group was able to exert considerable industrial pressure on the Respondent in the period 1974 to 1979 to achieve increases in pay.  Five industrial relations agreements were entered into in that period, which included agreement to proposals made by the Respondent for the removal of uneconomic and unproductive practices in return for which increases in pay were granted by the Respondent.  The Labour Court made the following finding:-

	"The court is satisfied that, had the company not reached agreement with the work force during that time, there would have been very serious negative economic consequences for the company's business.  The court is also satisfied that the changes in work practices generated economic and industrial benefits to the company."

The Labour Court also found that the workers in the comparator group had particular negotiating leverage because they were a relatively small group employed in a highly competitive sector.  Conceding to their demands achieved industrial harmony, without disrupting the overall competitiveness of the Company, since it was only a small group within the company.  It was the series of productivity agreements negotiated with the comparator group (the storemen) during the 1970's which resulted in those workers passing out the maximum point of the sales assistants and clerical assistants pay scale, which by then, the Labour Court noted, was a unisex scale.  Continuing from an historical perspective, the Labour Court pointed out that the group which the Applicants represent, sales assistants and clerical assistants, had also benefited from productivity agreements.  Both groups, that is to say, the group represented by the Applicants and the comparator group, had negotiated increased payments in return for productivity "without any sex-based ingredient in the negotiating process".  
	On the Applicants' submission that, even if the changes in work practices were objectively justifiable reasons in the 1970's for the differences in pay, they occurred so long ago as to be no longer relevant, the Labour Court stated as follows:-

	"The Labour Court is satisfied, however, as a matter of fact, that the changes which were made in work practices relevant to the comparator group continue to be applied and continue to generate economic benefits for the Company.  Some of the changes have been listed by the Company.....and the Court accepts that these are valid benefits.  The Court has no doubt but that if those work practices were to be altered back to their original state, the Company would face increased costs and a reduction in productivity.  

	Furthermore, the Company had to bargain with extra pay for the changes in work practices, which said extra pay could not now be removed from the work force without serious industrial consequences.

	It is for this Court to decide whether the economic benefits which led to the differential in pay between the two groups continue to objectively justify that differential.  The Court is satisfied on the facts in this case, on the history of industrial relations affecting the comparator group, and on the normal industrial relations practices of holding on to the benefits you have acquired, that the continuance of the benefits to the comparator group is objectively justified on economic grounds".  

Having referred to the principles laid down by the European Court of Justice in case 170/84 Bilka-Kaufhaus GmbH -v- Weber von Hartz (1986) ECR 1607, the Labour Court stated it was satisfied that, in accordance with those principles, the measures taken by the Respondent in the 1970's corresponded to a real need on the part of the Respondent, were appropriate with a view to achieving economic viability of the Respondent and were necessary and "that they continue today to be necessary to that end".  	
	The Labour Court went on to deal in its second determination with the argument which had been advanced by the Applicants in reliance on case C-127/92 Enderby -v- Frenchay Health Authority (1993) ECR 1-5535.  In distinguishing the Enderby case, where the parties in dispute were represented by the same trade union, albeit by different groups within the union, on the facts, the Labour Court highlighted the differences in the bargaining processes employed by the two groups - the group represented by the Applicants and the comparator group and stated as follows:-

	"The claimants and the comparators are represented by different unions.  The parties' representatives carry out different types of negotiations, and both of these types of negotiations end up with unisex rates of pay.  The comparators negotiate through their union directly with the company employer.  The claimants negotiate on a very different basis, and not directly with the company at all.  The claimants' rates of pay are fixed on an industry-wide basis through an industrial relations process which results in a Registered Employment Agreement for the whole of the drapery trade......  The union, MANDATE, negotiates with the Irish Business and Employers Confederation (IBEC), as a result of which pay rates are fixed for all workers to whom the agreement applies, and those rates are then to be paid by all the employers in establishments selling certain classes of goods in the Dublin area."

	The Labour Court concluded that the two bargaining processes are simply not comparable; that they are so different "as to make any analogy with the rationale of the Enderby judgment quite unjustified".

GROUNDS OF APPEAL

	The Applicants have identified five bases on which they contend the Labour Court erred in law in its second determination.  I will deal with each basis in turn.  

GROUND 1

	It was contended that an unsustainable finding of fact underlies the entire rationale and approach by the Labour Court in its second determination.  In putting the current differences between the Applicants' and the comparators' rates of pay into historical perspective, the Labour Court narrated the Respondent's history of industrial relations difficulties "with a unionised group, which included those workers which now are the comparators".  It was submitted that the evidence before the Labour Court and, in particular, Appendix 8 to the Equality Officer's recommendation made it clear that all the persons who had been chosen as comparators were not parties to the five productivity agreements entered into between 1974 and 1979, because some of the comparators entered into employment with the Respondent subsequent to 1979 and one of the comparators, Noel Kelly, had entered into employment with the Respondent just three years prior to the Equality Officer's investigation.
	The Respondent acknowledged that there was an incorrect statement in the second determination, in that all of the comparators were not in the unionised group which was in dispute with the Respondent between 1974 and 1979, some of the comparators having only entered into employment with the Respondent subsequently.  However, it was submitted that the Labour Courts conclusion was not "based on an unsustainable finding of fact so as to require it to be corrected" (cf. the judgment of Hamilton C.J. in the Supreme Court in Henry Denny & Sons (Ireland) Limited -v- Minister for Social Welfare (1998) 1I.R. 34 at p.37.  The Applicants had not raised the issue of Mr. Kelly's recent employment with the Respondent before the Labour Court.  That some of the comparators had commenced employment with the Respondent after the conclusion of the five productivity agreements was simply not in issue before the Labour Court.  The Labour Court was not focused on the identity of the individual comparators.  Its focus was on the group.
	In my view, the entire rationale and approach of the Labour Court is not premised on all of the persons who are now the comparators having participated in the five productivity agreements entered into between 1974 and 1979.  The underlying rationale is that in that period one group of workers in the employment of the Respondent, comprising storemen in the Mary Street premises and in the Dublin Port and Docks area, through the five productivity agreements, achieved better rates of pay than another group, comprising the sales assistants and the clerical assistants.  The resulting differential was objectively justifiable on economic grounds at the time it was achieved and it continues to be so justified.  The Labour Court identified the reason why one group did better than the other and investigated whether there was historically objective justification on economic grounds for the differential between the two groups and whether there continues to be and is currently objective justification on economic grounds for the differential between the two groups.  The focus of the Labour Court's comparison was between one group and another group, not between the individual members of one group and the individual members of the other group.  While the statement in the Labour Court determination highlighted by the Applicants in this submission is not accurate, in my view, the Applicants have not established that in consequence the determination of the Labour Court is based on an unsustainable finding of fact and is wrong in law on that account.  In short, the Labour Court was not required to make and made no finding of fact in relation to members of the comparator group who entered employment with the Respondent after the conclusion of the productivity agreements.

GROUND 2

	It was submitted that the Labour Court applied an incorrect legal principle and posed for itself the wrong question.  It should have examined, as it was required to do by the judgment of Barron J., whether the difference in pay is currently objectively justified on economic grounds, is necessary to the Respondent and is proportionate.  It should have asked itself whether at the date of the hearing before it there currently existed factors which constituted objective justification.  The approach adopted, identifying alleged changes in work practices achieved in the 1970's and considering whether such changes continued to be applied and to generate benefits for the company was not a permissible approach, particularly when the increases in pay were achieved so long ago by an all-male group in a position to exert considerable industrial relations pressure.
	The Respondent characterised this submission as an attempt to reorder the facts.  It was submitted that it was logical to take an historical perspective, identify when and how the differences evolved and whether they were discriminatory on the grounds of sex and then consider whether the factors which gave rise to the differences were still current.  The Labour Court's finding, it was submitted, was that it was the negotiating leverage of the storemen group which was significant, not the maleness of the group.  The point was made on behalf of the Respondent that that group constituted valid comparators only because its members were all male.  
	It seems to me that the Labour Court did precisely what it was enjoined to do by Barron J. in his judgment.  It found that there was a reason unconnected with sex for the difference in remuneration between the Applicants' group and the comparator group.  That reason was rooted in history: between 1974 and 1979 the comparator group traded the removal of inflexible, uneconomic and unproductive work practices for increases in pay and in so doing its pay scale passed out the pay scale of the sales assistants and the clerical assistants, who did not have the same negotiating leverage.  Moreover, the Labour Court found that the reason still subsisted at the date of its second determination, in that the flexible and productive work practices introduced between 1974 and 1979 continue to be applied and continue to generate economic benefits for the company.  The Labour Court found not only that the pay differential between the two groups was historically objectively justifiable on economic grounds but also that it continues to be and is currently objectively justified on economic grounds, in that it would be economically disadvantageous to the Respondent to revert back to the old work practices and, in any event, the extra pay could not be removed from the comparator group without serious industrial relations consequences.  

GROUND 3

	The Applicants submitted that the Labour Court erred in law in accepting that the five productivity agreements entered into between 1974 and 1979 could, as a matter of law, constitute objective justification on economic grounds for the difference in pay.  The effect of the five productivity agreements was summarised in Appendix 4 to the Respondent's first submission to the Labour Court.  It was submitted that when one analyses the effect of the agreements it can be seen that the benefits which accrued to the Respondent from them fall into two categories, namely:-

(i)	an increase in productivity and additional work to be undertaken as part of the job description of the comparator storemen then employed, and
(ii)	certain changes in work practices which permitted other employees to carry out certain duties formerly carried out by the storemen.  

It was submitted that, as a matter of law, additional work could never constitute objective justification where the additional work formed part of the job description prior to the date of the claim.  In support of this proposition the Applicants relied on the following passage from the judgment of Barron J. delivered on 30th July, 1996 in C&D Foods Limited -v- Dympna Cunnion & Ors., (unreported):-

	"In the instant case, the comparator receives more remuneration than the claimant because his employer has evaluated his work more highly than that of the claimant.  It is submitted that this is a ground other than sex.  In my view, this submission is based upon a false premise.  The work is not more valuable to the employer and this has been so found by the Equality Officer and on appeal by the Labour Court."

In the instant case, it was submitted, the Equality Officer made an objective finding that the work carried out by the Applicants is equal in value to the work carried out by the comparators.  However, in determining whether there was objective justification for the pay differential, the Labour Court accepted the Respondent's subjective evaluation of the comparators' work.  Changes in work practices, it was submitted, could never constitute objective justification for pay differential between those of the comparators, for example, Mr. Kelly, whose employment had commenced since the implementation of the flexibility agreement and who had never agreed to make any changes in their work practices.  This was not a situation in which the employer could make a "red circling" argument - that the comparators were paid on a special basis because of special circumstances.  Mr. Kelly was obviously paid the same rate as the other storemen because that was the grade rate for the job, which is a higher rate than the going rate for the work.  
	The Respondent characterised the Applicants' submission as an attempt to deconstruct the second determination and to reduce it to parts which are less than the sum of the whole.  The true test of objective justification, it was submitted, is whether the explanation proffered is based on real, on genuine, factors or whether it merely masks discrimination based on sex.  In the instant case, it was submitted that the Labour Court found as a matter of fact that the productivity agreements were not covert forms of sexual discrimination.  They were genuine factors.  It was reiterated that the position of Mr. Kelly was not raised as an issue before the Labour Court.
	In my view, it is not to be inferred from its second determination that the Labour Court accepted the Respondent's subjective evaluation of the comparators' work.  The Labour Court focused on the comparators as a group which traded the removal of demarcation and restrictive work practices and uneconomic and unproductive work practices for increases in pay, which outstripped increases in pay for productivity achieved by the group which the Applicants represent.  In my view, the rationale of the finding of objective justification on economic grounds is not that the Respondent subjectively puts a higher value on the work of the comparator group than it puts on the work of the group which the Applicants represent.  Rather, the rationale is that the increased pay awarded to the storemen as a group between 1974 and 1979 for relinquishment of inflexible, uneconomic and unproductive work practices was historically objectively justifiable in economic terms and the continued adherence to changed work practices currently objectively justifies in economic terms the pay differential between the rates applicable to the comparator group and the group of which the Applicants form part.  In simple terms what the Labour Court found was not that the Respondent believed that the storemen's work was worth more than the work of the sales and clerical assistants, but that historically the storemen had more to bargain with than the sales and clerical assistants, so that the Respondent had to pay them a higher price, in terms of additional pay, to achieve flexibility and productivity and the differential has had to be maintained down to present times to maintain that flexibility and productivity.  In essence, on this submission, I do not accept the Applicants' interpretation of Labour Court's reasoning.  
	In relation to the position of Mr. Kelly, which was not raised as an issue before the Labour Court, I repeat what I stated in relation to Ground 1.  The thrust of the Labour Court determination was to compare two groups.  It was not invited to and did not focus on the position of individuals within the comparator group.  In my view, the Applicants have not laid any foundation for a challenge to the Labour Court determination on the ground that, as a matter of law, productivity agreements which predated the commencement of the employment of an individual member of the comparator group could never constitute objective justification.
GROUND 4

	The Applicants submitted that the Labour Court erred in law in accepting as part of the objective justification the ground that the additional pay awarded to the comparator group between 1974 and 1979 could not be removed from the work-force without serious industrial consequences.  It was submitted that, if prima facie discrimination is established, such a ground could never legally constitute objective justification for the preservation of a pay differential.  If it were an acceptable objectively justified ground, then it could justify the continuation of almost every pay differential.  Such justification, it was submitted, is as it were, "the other side of the coin" of the justification rejected by the European Court of Justice in case C-243/95, Hill -v- Revenue Commissioners, reported in 
9 ELR 225, No.5 at p.225.  In its judgment of 17th June, 1998 in that case, the Court stated at paragraph 40:-

	"So far as the justification based on economic grounds is concerned it should be noted that an employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that avoidance of such discrimination would involve increased costs."

	It was submitted on behalf of the Respondent that this submission does not do justice to the determination of the Labour Court.  Where, as in the instant case, the pay differential is based on grounds other than sex for an employer to contend that it cannot be removed is a relevant present factor.  This submission was characterised as an attempt to isolate a sentence in a judgment and rely on it. 
	In my view, this submission distorts the reasoning in the Labour Court's second determination.  At the time of the second determination the pay differential was in place for approximately 18 years.  The Labour Court found that the evolution of the differential was objectively justified on economic grounds and identified the economic factors which had come into play at its inception: the necessity of reaching agreement with a group of workers who had particular negotiating leverage to remove bad work practices the continuance of which would have had serious negative economic consequences for the Respondent's business.  The Labour Court's conclusion that currently there is objective economic justification for the continuance of the differential was not solely based on the proposition that the extra pay could not be removed from the comparator group without serious industrial consequences.  The Labour Court examined the current position and found that the good work practices introduced in return for the extra pay were still applied.  It also found that to revert to the old bad practices would be economically disadvantageous to the Respondent.  It was in that context that it stated that the extra pay which was the price the company paid for the relinquishment of the bad work practices in the 1970's could not now be removed without serious industrial consequences.  On this submission, also, I do not accept the Applicants' interpretation of the Labour Court's reasoning.

GROUND 5

	The Applicants submitted that, in the absence of any other objective justification, on the authority of the Enderby case, the difference in negotiation procedures alone cannot constitute objective justification.  As I have rejected the other grounds of alleged error and accepted that the Labour Court did not err in law in finding objective justification, strictly speaking, this submission does not arise.  It is common case that, in accordance with the jurisprudence of the European Court of Justice, although a difference in bargaining procedures is a factor to be taken into account, it cannot per se be determinative.  In Enderby, in paragraphs 22 and 23 of the judgment of the Court, which are partly quoted in the judgment of Barron J., it was stated as follows:-

	"[22] - The fact that the rates of pay at issue are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same trade union are treated differently.  If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as a sufficient justification for the difference in pay, he could, as the German Government pointed out, easily circumvent the principle of equal pay by using separate bargaining processes.  

	[23] - Accordingly, the answer to the second question is that the fact that the respective rates of pay of two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and, taken separately, have in themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between those two jobs".

As will be clear from the passages from its second determination which I have quoted earlier, the Labour Court distinguished the instant case from the Enderby case on the facts.  In the instant case it is not a case of two groups with the same employer and the same trade union being treated differently; in the instant case there were different trade unions and wholly different negotiating procedures.  I have no doubt that the Labour Court correctly identified the significant factual distinction between the Enderby case and the instant case.  However, it is not necessary for this Court to express any view on the Labour Court's conclusion that the bargaining processes which the two groups in the instant case follow are so different from each other "as to make any analogy with the rationale of the Enderby judgment quite unjustified", because it was acknowledged on behalf of the Respondent that a difference in negotiating procedures cannot of itself constitute objective justification on economic grounds.

TECHNICAL DEFENCE

	Finally, the Respondent raised a technical defence to this appeal.  While the special summons was issued on 3rd December, 1997, within the time limited by Order 106, Rule 4 of the Rules of the Superior Courts, 1986, the summons was not served on the Respondent until 11th February, 1998 and it was served with a covering letter indicating that a new return date had been obtained for 19th February, 1998 instead of the original return date appearing on the face of the summons, 18th December, 1997.  The Respondent was not served with any affidavit verifying the Applicants' claim at the time of service of the summons or before the return date of 19th February, 1998, the verifying affidavit having been sworn on 4th March, 1998.  I reject the argument that this appeal is not properly before the Court.  The summons was issued within the time limit prescribed by law.  If there has been a technical breach of the Rules, and it is not clear to me that there has, I deem the service on the Respondent to be good.  Notwithstanding that the Applicants' claim dates back to 1991, the Respondent could not, in my view, be prejudiced by the failure to swear the verifying affidavit until 4th March, 1998.

DECISION

	It follows from what I have said earlier that the Respondent's substantive defence succeeds.  The appeal is dismissed.