Labour Court Database __________________________________________________________________________________ File Number: AEE891 Case Number: DEE893 Section / Act: S21EE Parties: ELECTRICITY SUPPLY BOARD - and - EMPLOYMENT EQUALITY AGENCY |
Appeal by the Employment Equality Agency on behalf of one worker against Equality Officer's Recommendation No. EE7/1988.
Recommendation:
3. 1. To assist the Court in deciding this appeal the Parties
submitted a considerable amount of documentation including
copies of Union/Management agreements. The Court wishes
to record its appreciation of the details presented.
2. Eleven points of appeal were submitted by Counsel for the
appellant. The Court does not consider it necessary to
deal with each point of appeal separately as they are to a
large extent interrelated. However in view of the
objections raised by the appellants with regard to the use
of "relevant parts" of Mr. Finnan's report the Court
decided to disregard that report and to ignore all
references to it contained in the Equality Officer's
report.
3. The Court has examined the promotion system operating in
the E.S.B. and is satisfied that whilst seniority is
obviously a factor in promotion, it is no more than that.
The Court notes in this regard stated E.S.B. policy as set
out in the document submitted as evidence entitled:
"Extract from Personnel Policy in the E.S.B." and which
states inter alia.
"To recruit and promote on merit only: promotion
is not based on age or seniority."
In support the Board submitted details of promotions in
different parts of the organisation in recent times. Whilst
these details indicate that seniority is a significant factor
in determining promotion it is not the sole factor. The Court
examined the claimant's contention that she was discriminated
against because of her sex in that a named male engineer with
less service had been promoted. The Court is satisfied that
whilst the claimant had a justifiable expectation that she
would be promoted to the vacancy in question, the evidence
presented to the Court supports the Employer's contention that
the named male was promoted on the basis of merit and
performance.
The Court accordingly rejects the appeal on the basis of
seniority.
4. The Court also considered the arguments made in relation
to working conditions and access to training and is
satisfied that the findings of the Equality Officer were
correct with regard to both these items. The Court
accordingly rejects the appeal made in this regard under
Section 3 of the Employment Equality Act, 1977.
5. Finally the Court investigated the appeal that the
claimant was discriminated against on Grounds of Sex
within the meaning of Section 2A. of the Employment
Equality Act, 1977.
Having examined the documentation and taking into account the
arguments made at the hearing the Court finds no evidence
which substantiates the claim. The Court rejects the appeal
made under Section 2A.
In view of the findings listed above the Court upholds the
Equality Officers recommendation and rejects the appeal.
Division: Ms Owens Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
AEE891 DETERMINATION NO. DEP489
PARTIES: ELECTRICITY SUPPLY BOARD
AND
EMPLOYMENT EQUALITY AGENCY
SUBJECT:
1. Appeal by the Employment Equality Agency on behalf of one
worker against Equality Officer's Recommendation No. EE7/1988.
BACKGROUND:
2. The worker concerned in this dispute commenced employment with
the Board in September, 1978 and held the positions of Graduate
Engineer and Professional Engineer until her promotion in May,
1984 to Senior Professional Engineer in the rates section of the
Marketing Department. There are two grades of Senior Professional
Engineer in the Company, SPE 2 being the higher grade and SPE 1
being the lower grade. The worker claimed that progression from
the lower to the higher grade is based soley on length of service
at the lower grade. In January, 1987 the worker learned that two
male SPE 1's had been promoted to SPE 2. The worker considered
that on length of service at SPE 1 level she should have got one
of these promotions and she brought this to the attention of her
supervisors. In May, 1987 she was informed by her Divisional
Manager, that the Marketing Department had recommended that she be
promoted to SPE 2 level. This promotion did not materialise. In
August, 1987 the worker learned that another male had been
promoted from SPE 1 to SPE 2. The worker contacted the
Employment Equality Agency to complain about what she perceived as
discriminatory treatment. On 26th October, 1987, the Agency
acting on the workers behalf, referred the complaint to the Labour
Court. The Court referred the case to an Equality Officer for an
investigation and recommendation. On 9th November, 1987, the
Equality Officer requested a statement from the Agency setting out
details of the alleged act of discrimination. On 16th May, 1988,
the Agency furnished its submission. In investigating the matter,
the Equality Officer held several joint meetings of the parties to
the dispute, and received comprehensive oral and written
submissions.
On 14th December, 1988, the Equality Officer issued a
recommendation, finding that the E.S.B. had not discriminated
against the worker. A copy of the Equality Officer's
recommendation No. E.E. 7/1988 is attached at Appendix 1. On
23rd January, 1989 the Agency wrote to the Court on behalf of the
worker and appealed the Equality Officer's recommendation on the
following grounds:-
1) The Equality Officer erred in law and in fact in
failing to hold that the Respondent was in breach of
the 1977 Act in not promoting the Appellant to SPE 2
level. The Respondent treated male engineers and a
Mr. Kevin McFarnan in particular more favourably by
promoting them to SPE 2 level;
2) The Equality Officer erred in law and in fact in
accepting that the issuing of a letter on the
Appellant's behalf by her Solicitors, in the month
of May, 1987, to the Respondent, (which said letter
alleged sex discrimination against the Appellant),
did or could constitute valid grounds for the
Respondent's admitted frustration of the Appellant's
pending application for promotion (which had been
recommended by the Marketing Department);
3) The Equality Officer erred in law and in fact in
accepting that an alleged investigation carried out
by a Mr. Finnan, Manager Manpower Department, which
was initiated by the Respondent pursuant to the
issuing of a letter of complaint by the Appellant's
Solicitors in the month of May, 1987, could justify
the failure to promote the Appellant;
4) The Equality Officer erred in law and in fact in
giving any credence to a purported internal
investigation carried out at the Respondent's
direction by the said Mr. Finnan, which purported
investigation, was embodied in the said Report which
has been withheld by the Respondent despite demand
for production;
5) The Equality Officer erred in law and in fact in
accepting the efficacy or the bona fides of the
Respondent's purported internal investigation (which
was carried out ex parte and in flagrant disregard
for the tenets of natural justice) particularly
since the compiler of the Report, Mr. Finnan, was
responsible for the withholding of sanction for the
promotion of the applicant;
6) The Equality Officer misconstrued her powers under
the said Act of 1977, alternatively, applied an
invalid legal test in postulating the questions as
set out in paragraph 32 of her Recommendation.
7) The Equality Officer erred in law and in fact in
failing to insist that the Respondent release
Mr. Finnan's Report;
8) The Equality Officer erred in law and in fact in
not accepting the uncontroverted evidence adduced
by the Appellant relating to work allocated to her
in the Rates Section;
9) The Equality Officer erred in law and in fact in
that she gave credence to allegations which were
made by the Respondent to the effect that the
Appellant was not satisfactorily performing her
duties though such allegations only emerged
consequent on the complaint by the Appellant that
she was the victim of sexual discrimination;
10) The Equality Officer erred in law and in failing to
hold that the Respondent did not offer or afford to
the Appellant the same working conditions as those
afforded to the Appellant's male colleagues and
most notably a Mr. McGillion where the employment
circumstances of the Appellant and the said
Mr. McGillion were not materially different, and
without prejudice to the contention at paragraph 9
above, the Equality Officer disregarded the clear
and unequivocal evidence that the said
Mr. McGillion carried out work of a more varied and
responsible character than that assigned to the
Appellant;
11) The Equality Officer failed to establish or take on
board relevant factual matters (though adduced) as
evidenced in errors in the chronology of events
appended to her Recommendation;
The appeal on behalf of the worker was disputed by the
Electricity Supply Board. A Court hearing took place in
Dublin on 24th February, 1989. The submissions of the
Employment Equality Agency and the Electricity Supply Board
are attached as appendices 2 and 3 respectively. Following
the hearing, there ensued a prolonged exchange of
correspondence between the Court and the two parties, in which
a number of issues were clarified.
DETERMINATION:
3. 1. To assist the Court in deciding this appeal the Parties
submitted a considerable amount of documentation including
copies of Union/Management agreements. The Court wishes
to record its appreciation of the details presented.
2. Eleven points of appeal were submitted by Counsel for the
appellant. The Court does not consider it necessary to
deal with each point of appeal separately as they are to a
large extent interrelated. However in view of the
objections raised by the appellants with regard to the use
of "relevant parts" of Mr. Finnan's report the Court
decided to disregard that report and to ignore all
references to it contained in the Equality Officer's
report.
3. The Court has examined the promotion system operating in
the E.S.B. and is satisfied that whilst seniority is
obviously a factor in promotion, it is no more than that.
The Court notes in this regard stated E.S.B. policy as set
out in the document submitted as evidence entitled:
"Extract from Personnel Policy in the E.S.B." and which
states inter alia.
"To recruit and promote on merit only: promotion
is not based on age or seniority."
In support the Board submitted details of promotions in
different parts of the organisation in recent times. Whilst
these details indicate that seniority is a significant factor
in determining promotion it is not the sole factor. The Court
examined the claimant's contention that she was discriminated
against because of her sex in that a named male engineer with
less service had been promoted. The Court is satisfied that
whilst the claimant had a justifiable expectation that she
would be promoted to the vacancy in question, the evidence
presented to the Court supports the Employer's contention that
the named male was promoted on the basis of merit and
performance.
The Court accordingly rejects the appeal on the basis of
seniority.
4. The Court also considered the arguments made in relation
to working conditions and access to training and is
satisfied that the findings of the Equality Officer were
correct with regard to both these items. The Court
accordingly rejects the appeal made in this regard under
Section 3 of the Employment Equality Act, 1977.
5. Finally the Court investigated the appeal that the
claimant was discriminated against on Grounds of Sex
within the meaning of Section 2A. of the Employment
Equality Act, 1977.
Having examined the documentation and taking into account the
arguments made at the hearing the Court finds no evidence
which substantiates the claim. The Court rejects the appeal
made under Section 2A.
In view of the findings listed above the Court upholds the
Equality Officers recommendation and rejects the appeal.
~
Signed on behalf of the Labour Court
Evelyn Owens
________________________
16th August, 1989 Deputy Chairman.
P.F./M.F.