Labour Court Database __________________________________________________________________________________ File Number: EED873 Case Number: OED871 Section / Act: S27EE Parties: WESTERN HEALTH BOARD - and - ITGWU (NCO) |
Claim, under Section 27 of the Employment Equality Act, 1977, concerning the alleged discriminatory dismissal of four long-term temporary psychiatric nurses.
Recommendation:
5. The Court finds that the four nurses concerned were dismissed
due to their temporary status. In accordance with a Union/
Management agreement, two of the nurses were offered the
opportunity to compete for permanent jobs and did not do so. The
other two workers were not eligible to so compete. The Court
therefore finds that the claim under Section 27 of the Employment
Equality Act, 1977, fails.
The Court notes the Board's statement that should it be possible
to extend enhanced redundancy terms to these staff on a
retrospective basis, it would do so and the Court suggests that
this and any other matter related to the redundancy or retention
of these nurses be pursued under the normal industrial relations
procedures.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
EED873 THE LABOUR COURT OED1/87
Section 27 EMPLOYMENT EQUALITY ACT, 1977
ORDER NO.1 OF 1987
Parties: WESTERN HEALTH BOARD (WHB)
(Saint Patrick's Hospital, Castlerea)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
(NATIONAL NURSING COUNCIL)
Subject:
1. Claim, under Section 27 of the Employment Equality Act, 1977,
concerning the alleged discriminatory dismissal of four long-term
temporary psychiatric nurses.
Background:
2. The four claimants had all been permanent and pensionable
nurses in the hospital but, in line with provisions which then
existed, were required to resign when they got married. They were
then re-employed in 1974 on a temporary basis and although there
were a number of breaks between then and 1979, their employment,
since then, has been continuous until the date of redundancy on
the 20th July, 1987.
The Board claim that they were let go because they were temporary
and there was no work available for them. This is rejected by the
Union which argues that they were not temporary in any real
meaning of the word and were not meant to be covered by the terms
of the Government decisions in this regard. Furthermore, it
believes the selection of these nurses for dismissal was
discriminatory and derived entirely from their status as married
women.
By letter dated the 14th August, 1987, the Union referred the case
under Section 27 of the Employment Equality Act, 1977, to the
Labour Court for investigation. The Court investigated the
dispute at a hearing in Galway on the 30th September, 1987.
Union's arguments:
3. (a) There can be no question that these nurses were temporary
in the normal way in which the word is used, even in an
employment context.
(b) Being temporary has often meant, as it does in this case,
not holding a post on a pensionable basis and is a
technical rather than a real notion of temporary status.
The fact that the claimants were not temporary is further
emphasised by the fact that they were granted incremental
credit by the Board. Normally temporary nurses are paid
on the first point of the scale. In addition, they were
treated as permanent staff for the purpose of annual
leave and were generally regarded as permanent by
colleagues and local management.
(c) In 1981 the Unions concerned negotiated an agreement at
national level which allowed nurses with certain service
to compete in a confined competition for permanency. Two
of the claimants fell within the service requirements,
while the other two were ineligible. The two who were
eligible did not attend for interview for what the Union
considers good reasons. Their primary reason was the
failure of the Board to provide pre-interview preparation
and their general anxiety about the interview. It is
generally accepted that the provision of some preparation
for interviews is essential. In all the circumstances,
the Board's efforts to provide permanent employment in
the case of the two nurses was not very serious. In any
event, it did not cover the position of the other two
nurses.
(d) Section 2 of the Employment Equality Act, 1977, makes it
illegal to discriminate on grounds of marital status. In
this case, the Board clearly intended to, or at least
subsequently did, employ the nurses in question, not on a
temporary basis but on a continuing and permanent basis
(using these terms in the normal meaning rather than that
of the superannuation code).
(e) Section 3(2) makes it illegal to discriminate by
operating a practice which "results or would be likely to
result in an act which is a contravention of any
provision of this Act". Taken further, with Section
3(4), it is illegal to discriminate in relation to
"redundancies or dismissals". If the entire picture is
looked at, it will be clear that the Board has been
substantially in breach of the terms and spirit of the
legislation in that it failed to undo the effects of the
marriage bar by offering permanent employment to the
nurses in question and by exposing them to the risk
(which ultimately became a reality) of termination as
temporary staff, even though they were not temporary in
any normal meaning of the term.
(f) In DEE-3-82 the Court held that it had the
"responsibility to determine that the continuing effects
of past discrimination should be corrected ..." In line
with that recommendation and the facts of this case, the
continued employment of the nurses in question on a
"temporary basis" placed them at a continued, unfair and
discriminatory disadvantage vis a vis colleagues who were
not required to retire on marriage. Furthermore, in a
succession of other cases involving psychiatric nurses,
the Court has held that the adverse consequences of
re-employment on a temporary basis following a return to
work, which placed nurses at a disadvantage compared with
permanent colleagues, had to be undone. In the main
these related to service for seniority purpose. However,
the principle was quite clear. It was that where nurses
were re-employed they should not be treated less
favourably than had they not been forced to retire on
marriage.
(g) In this case, the intention of the Board was to maintain
the nurses in continuing employment but without the
benefits of technical "permanency". The treatment of the
nurses in question during their period of employment was
discriminatory. The fact that they were selected for
dismissal was further illegal.
(h) The Union requests the Court to declare that:
- the claimants have been treated in a discriminatory
manner contrary to various provisions of the
Employment Equality Act, 1977.
- that the WHB be directed to restore them to their
employment immediately on whatever basis it is
possible to do so.
- that the WHB set in train as soon as possible whatever
steps are necessary to establish these nurses in
permanent posts.
- that they be compensated for the period of their
employment.
- that the WHB grants them full retrospective
incremental credit.
Board's arguments:
4. (a) The Board's financial allocation was severely reduced in
1987, and as a result, it was necessary to curtail
services. All areas of possible savings were looked at
and where it was possible to curtail pay costs through
the shedding of temporary staff and the non-filling of
permanent vacancies, this was done. In St Patrick's
Hospital, Castlerea, patient numbers had fallen. As a
result, staffing levels were in excess of requirements.
There was no work available to the four temporary nurses
concerned, and they were made redundant. Certain other
household staff were also made redundant at the same
time. There are also surplus permanent staff at the
Hospital, and it is hoped to correct this situation
through voluntary redundancy.
(b) The claimants were temporary and could, therefore, only
be employed when work was available. This is the nature
of temporary employment status, and the staff were aware
of this. Many other temporary staff in nursing,
clerical, para-medical, medical and non-nursing areas
have been made redundant in 1987, for similar reasons.
(c) The Board applied the terms of the Minimum Notice and
Terms of Employment Act and the Redundancy Acts in full
to the four nurses concerned. They have refused the
redundancy payments to date on the basis that enhanced
redundancy terms have been extended to permanent staff
opting for voluntary severance terms. The Board has
guaranteed that should it be possible to extend these
terms to temporary staff on a retrospective basis, then
this would apply in the case of these four staff.
(d) The Board has not, at present, any vacancies for
psychiatric nurses in any of its institutions, and the
prospect of employment opportunities in the near future
is also remote.
(e) The four nurses concerned were in no doubt as to their
temporary status. Their method of recruitment and
payment, and also the rate of PRSI deduction would
clearly identify them as temporary. Also, the fact that
two of those concerned were afforded an opportunity to
compete in a confined competition in 1982 for permanent
posts, would have confirmed the temporary status.
(f) The claimants have referred their case under Section 27
of the Equality Act, 1977. In this regard, the Board can
categorically state that the sex or marital status of the
claimants had no bearing on their selection for
redundancy. These employees were temporary psychiatric
nurses, and as such, were not discriminated against
relevant to other temporary nurses in similar situations.
Had the claimants been male or unmarried, they would
still have been chosen for redundancy at this time. The
claim under Section 27 is not therefore sustainable.
(g) The method of recruitment in the Psychiatric Nursing
Service and the conditions applying to temporary
psychiatric nurses in other institutions and on a
nationwide basis, were the subject of previous debate.
These matters have been resolved to the satisfaction of
the Employment Equality Agency, the trade unions and
Management (details supplied to the Court).
(h) The Department of Health has imposed an embargo on the
filling of vacancies and the employment of temporary
staff, and this fact also made it impossible for the
Board to retain the staff concerned in employment. In
any event, there is no work available to them.
(i) Were the claimants to succeed in their claim, it would
overturn previous decisions in relation to the conditions
of temporary psychiatric nurses accepted by the
Employment Equality Agency, the unions and Health Boards.
Decision:
5. The Court finds that the four nurses concerned were dismissed
due to their temporary status. In accordance with a Union/
Management agreement, two of the nurses were offered the
opportunity to compete for permanent jobs and did not do so. The
other two workers were not eligible to so compete. The Court
therefore finds that the claim under Section 27 of the Employment
Equality Act, 1977, fails.
The Court notes the Board's statement that should it be possible
to extend enhanced redundancy terms to these staff on a
retrospective basis, it would do so and the Court suggests that
this and any other matter related to the redundancy or retention
of these nurses be pursued under the normal industrial relations
procedures.
~
Signed on behalf of the Labour Court
30th October, 1987 Nicholas Fitzgerald
DH/PG Deputy Chairman