Labour Court Database __________________________________________________________________________________ File Number: AEP881 Case Number: DEP885 Section / Act: S8(1)AD Parties: BRITISH HOME STORES (DUBLIN) LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union on behalf of approximately 127 female workers against Equality Officer's Recommendation EP1/1988 concerning a claim that as the uniforms worn by two male catering assistants (Peter Snow and Terry McSweeney) were laundered free of charge by the Company, the female catering assistants are entitled, under the Act, to have their uniforms laundered free of charge or to be reimbursed the cost of laundering their uniforms.
Recommendation:
6. This appeal was lodged on specific grounds, namely:
"the Equality Officer erred in recommending that the provision
of laundered uniforms to male employees did not constitute
any part of the consideration which they received in respect
of their employment".
The Court has examined all the points made in the submissions and
taken account of the arguments advanced and precedents referred to
in the course of the hearing by the parties concerned in the
appeal.
In the circumstances of this case the Court finds that the
provision of a laundered uniform to the named male comparators
does not come within the meaning of "remuneration" as defined in
Section 1 of the Anti-Discrimination (Pay) Act, 1974, and that
therefore the claimants do not have an entitlement under Section 2
of the said Act. The Court accordingly finds that the Equality
Officer did not err in law, and rejects the appeal.
In view of the above finding, the Union's point invoking Section
56(2) of the Employment Equality Act, 1977 does not arise.
The Company also lodged a defence under Section 2(3) of the Act of
1974 but in view of the Court's findings set out above it is not
considered necessary to deal with the points made by the parties
under this heading.
Division: Ms Owens Mr Heffernan Mr O'Murchu
Text of Document__________________________________________________________________
AEP881 DETERMINATION NO. DEP588
EP1/1988
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 5 OF 1988
PARTIES: BRITISH HOME STORES (DUBLIN) LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union on behalf of approximately 127 female
workers against Equality Officer's Recommendation EP1/1988
concerning a claim that as the uniforms worn by two male catering
assistants (Peter Snow and Terry McSweeney) were laundered free of
charge by the Company, the female catering assistants are
entitled, under the Act, to have their uniforms laundered free of
charge or to be reimbursed the cost of laundering their uniforms.
BACKGROUND:
2. BHS (Dublin) Limited operates a retail store at O'Connell
Street, Dublin and is part of the British Home Stores plc Group.
The Company employs approximately 127 female catering assistants
and supplies them with uniforms which they have to launder
themselves. Between June 1984 and October 1985, two part-time
male catering assistants were employed by the Company and were
supplied with uniforms which the Company laundered free of charge.
The Union claimed that this was discriminatory and raised the
issue with the Company. Following the failure of local level
discussions to resolve the matter, the Union referred the case to
an Equality Officer for investigation and recommendation under the
terms of the Anti-Discrimination (Pay) Act, 1974, on the 25th
September, 1985.
During the course of the Equality Officer's investigation under
the terms of the Anti-Discrimination (Pay) Act, 1974, the Union
also referred the dispute to the Labour Court for investigation
under the terms of Section 19 of the Employment Equality Act,
1977. Section 19(5) of the 1977 Act provides that "Save only
where a reasonable cause can be shown, a reference under this
Section shall be lodged not later than six months from the date of
the first occurrence of the act alleged to constitute the
discrimination". The act alleged by the Union to be
discriminatory first occurred earlier than six months prior to the
date of reference of the dispute to the Labour Court under the
1977 Act and the Court considered that the Union had not shown
reasonable cause as to why the dispute had not been lodged within
six months of the first occurrence of the act. Consequently, the
dispute could not be processed further under the terms of the 1977
Act.
3. Following an investigation of the matter, the Equality Officer
issued the following recommendation on the 14th April, 1988:-
"17. In the case here concerned the claimants and the male
comparators were in receipt of identical rates of pay, had
identical working patterns and practices but in the case of the
male comparators the Company laundered their uniforms whereas
the claimants have to launder their own uniforms. The dispute
concerns the question of whether or not the claimants have any
entitlement under the terms of the Anti-Discrimination (Pay)
Act, 1974 to have their uniforms laundered by the Company or to
be reimbursed in respect of the expenses incurred in laundering
them.
18. Section 2(1) of the Act states as follows:-
"Subject to this Act, it shall be a term of the contract
under which a woman is employed in any place that she
shall be entitled to the same rate of remuneration as a
man who is employed in that place by the same employer ...
if both are employed on like work".
The first point to be decided in the case here concerned is
what was the rate of remuneration paid to the two named male
comparators, or more specifically, whether or not the
laundering of their uniforms constituted remuneration.
Remuneration is defined in the Act as including "any
consideration, whether in cash or in kind, which an employee
receives, directly or indirectly, in respect of his employment
from his employer".
In Recommendation EP9/1987 the Equality Officer stated that
"Consideration may be described as some advantage moving from
one party to a contract to the other party to the contract in
return for something given or promised by the other party under
the contract". I accept this definition of consideration.
19. In the case here concerned, as in the case considered by
the Equality Officer in EP9/1987, the contract in question is a
contract of employment. In the case here concerned the Union
contends that the employer gives an advantage or benefit to the
male employees by laundering their uniforms free of charge and
that this constitutes consideration in respect of their
employment which is not also extended to the claimants. I
consider that irrespective of whether or not the employer, in
laundering the uniforms of the males, is giving the males an
advantage or benefit, the employer is not providing the
laundering of the uniforms in return for something given or
promised by the employee under the contract. In fact, both the
male and female employees are employed in the first instance
subject to the condition that they wear the uniforms provided
by the employer in the course of their duty and that they must
appear clean at all times in order to comply with the hygienic
standards set by the employer. Consequently, I find that as
the male comparators were employed subject to the condition
that they wore a uniform which had to be clean, the provision
of laundered uniforms to the male employees concerned did not
constitute any part of the consideration which they received in
respect of their employment.
20. In view of my finding in the above paragraph I am
satisfied that the claimants do not have an entitlement under
the Act to have their uniforms laundered by the Company or to
be reimbursed for the expenses incurred in laundering them."
4. The Union, on behalf of the claimants, appealed the Equality
Officer's Recommendation to the Labour Court under Section 8(1) of
the Anti-Discrimination (Pay) Act, 1974, on the 13th May, 1988. A
Court hearing was held on the 16th September, 1988.
5. The Union's Notice of Appeal in addition to the the written
submissions from the parties are attached as appendices to this
Determination.
DETERMINATION:
6. This appeal was lodged on specific grounds, namely:
"the Equality Officer erred in recommending that the provision
of laundered uniforms to male employees did not constitute
any part of the consideration which they received in respect
of their employment".
The Court has examined all the points made in the submissions and
taken account of the arguments advanced and precedents referred to
in the course of the hearing by the parties concerned in the
appeal.
In the circumstances of this case the Court finds that the
provision of a laundered uniform to the named male comparators
does not come within the meaning of "remuneration" as defined in
Section 1 of the Anti-Discrimination (Pay) Act, 1974, and that
therefore the claimants do not have an entitlement under Section 2
of the said Act. The Court accordingly finds that the Equality
Officer did not err in law, and rejects the appeal.
In view of the above finding, the Union's point invoking Section
56(2) of the Employment Equality Act, 1977 does not arise.
The Company also lodged a defence under Section 2(3) of the Act of
1974 but in view of the Court's findings set out above it is not
considered necessary to deal with the points made by the parties
under this heading.
~
Signed on behalf of the Labour Court
24th October, 1988 Evelyn Owens
DH/PG Deputy Chairman