Labour Court Database __________________________________________________________________________________ File Number: EED871 Case Number: DEE881 Section / Act: S27EE Parties: MICHAEL O'NEILL & SONS LIMITED - and - FEDERATED WORKERS' UNION OF IRELAND;ASSISTED BY THE EMPLOYMENT EQUALITY AGENCY |
Claim, by the Union on behalf of two female part-time workers, regarding alleged discriminatory selection for redundancy.
Recommendation:
Due to technical difficulties this Determination is only available
by displaying the full document.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
EED871 DETERMINATION NO. DEE188
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27(1)
PARTIES: MICHAEL O'NEILL & SONS LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
FEDERATED WORKERS' UNION OF IRELAND
(Assisted by the Employment Equality Agency)
SUBJECT:
1. Claim, by the Union on behalf of two female part-time workers,
regarding alleged discriminatory selection for redundancy.
BACKGROUND:
2. Up to 1986, the Company operated a retail business attached to
a pork factory in Crumlin village. In 1986, as a result of
trading difficulties, the Company decided to diversify its retail
operation and introduce the sale of beef and lamb. On 5th
September, 1986, the Company issued six weeks protective notice to
the staff of the retail operation as a result of a serious
reduction in sales turnover and continued losses that threatened
to seriously damage the total operation of the Company.
3. Following local discussions between the parties, the Company
proposed to "attempt to revamp the business by the reduction in
staff numbers and by increasing the emphasis on the beef side of
the business". It was a condition under this proposal that the
two part-time workers, (i.e. the workers concerned in this case),
would be let go. This proposal was put to the members of the
staff and a secret ballot was held on 14th October, 1986. The
proposal was accepted by eight votes to two. The Union alleged
that pressure was brought to bear on the staff to accept the
proposal by members of management. The two part-time workers were
let go within the week. The Company gave an undertaking that if
the volume of business required the recruitment of staff,
part-time or full-time, then the workers made redundant would be
considered for such work.
4. The Union alleged that direct and indirect discrimination
occurred in the selection of the workers concerned for redundancy
and the Company was therefore in breach of Section 3(4) of the
Employment Equality Act, 1977, in terms of Sections 2(a), 2(b),
and 2(c) of the Act. Consequently, on 21st January, 1987, the
matter was referred to the Labour Court for investigation under
Section 27 of the Act. A Court hearing took place on 3rd April,
1987. Subsequent to the Court hearing, the Union was requested by
the Court to elaborate further in relation to its claim under
Section 2 of the Employment Equality Act, 1977. Additional
submissions were received and exchanged between the parties.
UNION'S ARGUMENTS:
5. 1. The practice relating to redundancy procedure in this
industry is set out in an agreement of July, 1986, between the
Dublin Master Victuallers Association, the Federated Union of
Employers and the Union. The agreement expressly covers all
employees, including part-time staff. Clause 10 of the
agreement states:-
'The event of lay-off or redundancy arising, service with
the employer shall be a deciding factor subject however to
the need of the employer to retain the skills and ability
necessary for the viable operation of the business. In the
event of lay-off or redundancy arising, consultation with
the union shall take place.'
If a 'last in first out' (LiFo) system had been applied the
two workers would not have been made redundant because of
their years of service. The Union believes that the
application of this clause was carried out in a discriminatory
manner. The selection of part-time staff, both of whom are
married, for redundancy purposes was unfair and is not
consistent with this clause.
2. In the UK, the Employment Appeals Tribunal adopted a broad
approach to the interpretation of the scope of the statutory
language in the equivalent section on indirect discrimination
in the U.K. Act. It was held that a redundancy procedure
which provided that part-time workers would be selected before
full-time workers, did apply a 'requirement' or condition,
(Clarke V Eley IMI Kynock Ltd). Section 2(c), of the 1977
Act, defines a discriminatory requirement as one in respect of
which a substantially higher proportion of persons of one sex
than of the other sex are able to comply, or in respect of
which a substantially higher proportion of persons of a
particular marital status than of a different marital status
but of the same sex, are able to comply. It is therefore
necessary to make a comparison on the basis of sex and/or
marital status of those who can comply with the requirement
and those who are at risk under it. In this particular
instance, those at risk are the part-time workers and those
who can comply are full-time workers. The requirement is the
ability to work full-time to avoid being "first out" in the
redundancy procedure.
A comparison on the basis of marital status, in the context of
the figures for total employment in the shop shows that the
Company employs three single females of whom all three are
full-time workers and can therefore comply with the
requirement concerned. In contrast the Company employs three
married females and this figure includes the cashier who is
not a shop person and who may be more appropriately dealt with
in a separate category. If included she, the cashier, is a
full-time worker and can comply with the requirement
concerned. If the calculation is carried out excluding the
cashier, the only two female married workers who could not
comply with the requirement are the two workers concerned. It
is obvious, therefore, that a higher proportion of single
female employees than married female employees can comply with
the requirement concerned. A comparison on the basis of sex
shows that one out of one male or three out of three males
(including the owner and the manager) can comply with the
requirement and four out of six females can comply. It is
obvious that a higher proportion of males than females can
comply with the requirement and it is therefore also
discriminatory on the basis of sex.
3. The Company's proposal to review the part-time employees
with a view to making selection for dismissal among them
affected a greater proportion of the female employees than the
male employees. The proposal affected all the married
part-time female employees. The requirement of working
full-time in order to escape selection for redundancy, as
contained in the proposal, was not justified. The two workers
could not comply with such a requirement because the Company
could not offer them full-time employment. More women than
men work part-time, therefore redundancy forcing part-time
women out first affects a substantially higher number of
married women. The business re-organisation in the shop could
have been organised in a different way without creating an
adverse impact on the part-time employees both of whom were
female and married.
4. The Company gave an undertaking to re-employ the workers
if recruitment of staff became necessary in the future. Since
the redundancies, the Company has employed new staff who
appear to be engaged on similar duties to those formerly
carried out by the workers concerned.
5. No opportunity for further training was given to the
workers. An employer should offer the same opportunities for
training and job experience to all employees regardless of sex
or marital status. In the past the Company has refused access
to training to another female worker based on assumptions
about her future domestic responsibilities.
6. Management in the Company portrayed a prejudicial attitude
about women's participation in the labour market and in
particular about married women's participation. Assumptions
were made about the workers concerned not needing the work and
this was conveyed to the rest of the workforce. Marital
status was used as a ploy to pressurise the other members of
staff to vote in favour of the Company's proposal.
7. The Union contends that the discrimination by the Company
occurred because, in 1985, the workers concerned brought a
case to the Labour Court which found in their favour in a
claim for the application of the 'skilled' rate as against the
'semi-skilled' rate they were being paid.
8. The Union seeks the following remedy:
- that the Court finds that the workers concerned were
unfairly selected for redundancy on the basis of
marital status;
- that the Court finds that training should be given to
further career development irrespective of marital
status;
- that the workers concerned be reinstated in either the
positions they held immediately before redundancy, or
in such positions as would be reasonably suitable for
them;
- that they be compensated by the amount which they
would have received in wages had they not been made
redundant; and
- that they be compensated for the upset and anxiety
caused to them by their discriminatory selection.
COMPANY'S ARGUMENTS:
6. 1. Given the poor performance of the retail outlet and the
consequent losses, radical measures were needed. The steps
which were taken by the Company were taken after detailed
consideration of the situation and following lengthy
discussions with the Union. At no stage during these
discussions did the Union object to the part-time workers
being made redundant, nor did they mention Clause 10 of the
agreement. The action taken safe-guards the employment of the
six full-time staff in the shop. The alternative to
redundancy would probably have been the sale, leasing or
closure of the shop, with resultant loss of jobs.
2. The Union's contention that the two part-time workers were
selected on the basis of either sex or marital status is
totally without foundation. The selection for redundancy was
based on the standard practice that part-time employees would
be made redundant before any full-time employees. The workers
to be made redundant and their redundancy terms were fully
negotiated with the Union and accepted by the staff after a
secret ballot. This was not a situation where the redundancy
was unilaterally imposed by management, but it was a case
where the Union and staff accepted that the proposal was the
most preferable resolution.
3. The Company contends that at the time the workers were
made redundant in October, 1986, there were in the particular
retail shop six other full-time employees, of whom two were
male and four were female. Of these, one of the males was
married and one of the females was married. Not long after
the redundancies another female employee married. It will,
therefore, be apparent that both now and at the time of the
redundancies the employment structure of the retail outlet
comprised of a reasonable mix of male and female employees and
married employees of both sexes. The fact that the workers
concerned, the only part-time employees in the shop, are both
female and married is entirely a coincidence.
DETERMINATION:
Due to technical difficulties this Determination is only available
by displaying the full document.
~7. 1. This claim was submitted under the following headings:
(1) the workers were unfairly selected for dismissal on
grounds of marital status contrary to the terms of
Section 2(b) of the Employment Equality Act, 1977.
(2) The Company could have re-trained the workers as an
alternative to dismissal contrary to Section 3(1) of the
above named Act.
(3) In selecting "part-time workers" the Company was in
breach of Section 2 taken in conjunction with Section
3(4) of the above mentioned Act.
The Court established at the hearing that the following had
been employed in October, 1986, with their service at that
time:
Mr Lloyd Manager Full time 1 yr 3 mths
Mrs C Counahan Cashier Full time 7 yrs
Eileen Lynch Full time 6 yrs 10 mths
Miss Bourke Full time 3 yrs 10 mths
Miss Kavanagh Full time 3 yrs 4 mths
Mrs Mahon (Claimant) Part time 7 yrs 2 mths
Mrs O'Reilly (Claimant) Part time 8 yrs
The Company also employed a boy runner at the time. It was
agreed by the parties that he is not relevant to the case.
In the period between the lodgement of the claim and the
hearing some changes took place, for instance one woman
married. These changes were not such as would alter the
Court's determination. The Court considers that the claimants
have a grievance in that had the opening provisions of Clause
10 of a Company/Union agreement been implemented they would
not have been selected for redundancy. However, this case was
brought to the Court under Section 27 of the Employment
Equality Act and the Court has a duty to interpret the terms
of the Act, apply that interpretation to the facts of the case
and issue its findings accordingly.
2. General aspects of the claim
It was not disputed that the firm, at the time the
redundancies were sought, was experiencing serious trading
difficulties.
A Company/Union agreement dated 1986 states at Clause 10:
"In the event of lay-off on redundancy arising, service
with the employer shall be a deciding factor, subject
however to the need of the employer to retain the skills
and ability necessary for the viable operation of the
business. In the event of lay-off or redundancy arising
consultation with the Union shall take place."
Consultation did take place and a number of proposals which
would allow the retail shop to continue to trade were put to
the Union (letter of 10th October, 1986 refers). These
proposals included inter alia the proposal:
"That all full time staff would be retained and that the
two part-time employees would have to be let go."
The Company went on to say that this proposal was the most
attractive as it retained in employment a majority of staff.
The proposals contained in the letter of the 10th October,
1986, referred to above were put to ballot of the employees
and accepted by a majority.
The claim under Section 2(b) of the Act of 1977
3. The Court notes that it was submitted in evidence by the
Union side that while the proposed terms were under
consideration by the employees the Company tried to influence
the outcome in an unfair manner and by reference to the
marital status of the two part-time workers. The Court does
not accept this allegation as sufficient evidence to
substantiate the claim that the Company was in breach of
Section 2B of the Act. It is clear that the selection was
based solely on whether the employee was full or part time.
No evidence was given which would lead the Court to believe
that had a single person been part-time he/she would have been
retained and a married full-time employee made redundant.
The Court accordingly rejects the claim under Section 2(B) of
the Act of 1977.
The claim for training - Section 3(1) of the Act of 1977
4. The Court considered the claim of discrimination made
under Section 3(1) in regard to further "on the job" training
which would have enabled the claimants to undertake a wider
range of duties. Given the critical situation of the firm the
Court is satisfied that further on the job training was not a
realistic option for the firm, as they needed to reduce the
workforce. Neither the claimants nor any other of the
employees were offered further training.
The Court is therefore satisfied that there was no
discrimination against the claimants under the terms of
Section 3(1).
The claim under Section 2 taken in conjunction with Section
3(4)
5. The Court has given detailed consideration to this aspect
of the claim.
Initially it may be helpful to state that had the
Union/Company agreement referred to above included a provision
that part-time workers were to be laid off first in any
redundancy situation, it would be open to the Court to find
such a selection procedure in breach of the Act. It was such
a selection procedure which was found to be discriminatory in
the case of Clarke & Powell -V- Eley (IMI) Kynock Ltd. - In
this case the procedure for selection laid down was that
service would be a deciding factor and that consultation with
the Union would take place. It was following that
consultation that a departure from the selection procedure was
proposed.
Section 2(c) of the Employment Equality Act of 1977 provides:-
"For the purpose of this Act discrimination shall be taken
to occur in any of the following cases:
where because of his sex or marital status a person is
obliged to comply with a requirement, relating to
employment or membership of a body referred to in
section 5, which is not an essential requirement for
such employment or membership and in respect of which
the proportion of persons of the other sex or (as the
case may be) of a different marital status but of the
same sex able to comply is substantially higher".
and Section 3(4) states:-
"Without prejudice to the generality of subsection (1), a
person shall be taken to discriminate against an employee
or prospective employee in relation to conditions of
employment if he does not offer or afford to a person or
class of persons the same terms of employment (other than
remuneration or any term relating to an occupational
pension scheme), the same working conditions and the same
treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals
(other than a dismissal referred to in Section 25) and
disciplinary measures as he offers or affords to another
person or class of persons where the circumstances in
which both such persons or classes are or would be
employed are not materially different."
The Union argues that as a greater number of women than men
work on a part-time basis and a greater number of married
women than single women also work on a part-time basis, the
proportion of married women who can not comply with the
condition of working full-time is greater than the proportion
of single women and that therefore the selection for
redundancy of the two claimants (married and part-time
workers) contravene Section 2(c) of the Act.
In dealing with the claim under Sections 2 and 3(4) the Court
addressed the following question:
What was the requirement with which the claimants were
obliged to comply with in order to avoid selection for
redundancy?
The answer was working full-time.
There were six females employees in the firm at the time the
claimants were made redundant. Three were married and three
were single. The fact that one of the married women was the
Cashier does not affect the case. Therefore, at the time the
redundancies occurred one of the three married women complied
with the condition of working full time, whilst three out of
three single women complied with the requirement.
Applying the same question to the breakdown of the employees
on the basis of sex, the Court found that one out of one male
employee worked full time as against four out of six females.
Accordingly on the basis of sex and marital status a greater
proportion of males and single women employed in the firm at
the time the redundancies occurred could comply with the
requirement of working full time and therefore, avoided
selection for redundancy.
The Court wishes to state that there was no evidence that the
Company discriminated in any way in the manner in which they
recruited staff. There was no obligation to be of a
particular sex or marital status, or to be employed either on
a full or part-time basis. The problem the Court was required
to address was the selection for redundancy.
A further question to be addressed was whether it was an
"essential requirement" of the Company that the two part-time
workers be made redundant rather than any other employee. The
Company submitted that it was essential to reduce staff
numbers and their preferred option was to let the two
part-time workers go, which they maintained was normal custom
and practice. They further submitted that a majority of the
employees agreed with the method of selection. On the
evidence shown in this case the Court does not find any
essential requirement which justified the selection of
part-time workers only for redundancy.
In the light of the findings set out above the Court rejects
the claim under Section 2(b) and 3(1) of the Act of 1977 but
finds that the Company discriminated indirectly against the
claimants contrary to the terms of Section 2(c) taken in
conjunction with Section 3(4) of the Act of 1977.
In addressing the question of awarding compensation the Court
notes that the Company indicated that given an improvement in
its trading position, the Company would be prepared to
re-employ the claimants. The Court consider this to be an
appropriate approach to the problem. Taking into account all
aspects of the case and the financial situation of the Company
the Court awards #250 to each of the claimants by way of
compensation.
~
Signed on behalf of the Labour Court
Evelyn Owens
_______________________
11th May, 1988. Deputy Chairman
B.O'N./P.W.