Labour Court Database __________________________________________________________________________________ File Number: AEE884 Case Number: DEE891 Section / Act: S21EE Parties: BECTON DICKINSON AND COMPANY LIMITED - and - TWO WORKERS MR P BUTLER AND MR B SMITH;THE EMPLOYMENT EQUALITY AGENCY |
Appeal by the Company against Equality Officer's Recommendation No. EE 6/1988 and appeal by Mr P Butler and Mr B Smith (represented by the Employment Equality Agency) for a determination that Equality Officer's Recommendation No. EE6/1988 has not been implemented.
Recommendation:
25. Under the terms of the Employment Equality Act, 1977 an
employer is not entitled to treat an employee of one sex
differently to an employee of the other sex in relation to shift
work unless the different treatment is permitted by Section 14 of
the Act. I have found in this case that the complainants were
treated less favourably than the female employees and that the
different treatment was not permitted by Section 14. It follows
that the complainants are entitled under the Act to be treated in
the same way as female employees in relation to shift work.
Accordingly, I recommend that the complainants be put in the
position which they would now be holding but for the
discrimination against them i.e. that they should not be required
to do night shift duty. I also recommend that the complainants
should in the future be required only to work the same shift
rosters as the existing female employees in the Company.
26. I note that the Company has argued that in its opinion the
only alternative to its policy of redeploying males would be to
redeploy females on the same basis as males, but that the females'
contracts restricted it from doing so. It is not necessary for
me, for the purposes of this investigation, to give any opinion on
what action the Company should take in relation to future
redeployment of staff to night duty, except to state that whatever
policy is implemented by the Company must not be contrary to the
terms of the Employment Equality Act, 1977.
27. I note that the complainants are also seeking compensation
for the distress and anxiety caused by the discrimination.
Undoubtedly the complainants suffered a degree of inconvenience
and distress by being transferred to night duty against their
wills. This inconvenience will have already been compensated for
to a certain degree by the payment of the shift premium which
applies to the night shift. I note, however, that both
complainants did not consider the shift premium as adequate
compensation for reverting them to night duty as both continued to
object to the redeployment. Therefore, I recommend that each
complainant be paid the sum of £500 as additional compensation for
the distress and inconvenience caused by the requirement on them
to work on night duty for the period from October, 1987 to date."
On 6th December, 1988, the Company lodged an appeal with the
Labour Court against Equality Officers Recommendation No.
EE6/1988. The basis for the appeal as stated by the Company was
as follows:-
"1. In 1986, when drawing up the Company/Union
agreement on Seniority/Redeployment, females were
precluded from carrying out industrial work at
night by reason of the provisions of section 46 of
the Conditions of Employment act 1936. Both the
Company and the Union were acting within the
parameters of the Act in concluding a collective
agreement. It would have been illegal for the
Trade Union and the Company to have reached any
other agreement than that which was signed in 1986.
2. In consultation with the Trade Union we have
recognised the validity of Statutory Instrument No.
112 and have agreed that all future employees
coming into the Company both male and female, will
be liable for the same shift rosters. A shift
licence has been obtained to give effect to this
with the consent of the Trade Union.
3. To comply with the wishes of the appellants, it
would be necessary for us to change the Contract of
Employment with all female employees. We believe
that we would leave ourselves open to a claim for
constructive dismissal or redundancy by
unilaterally changing the contracts.
4. The Trade Union on behalf of female employees, will
not consent to amending the present Terms and
Conditions of Employment for female employees.
5. We contest the award of compensation to the
appellants on two grounds:-
(a) The employees were only doing what was in
the Contract and
(b) one of the appellants P. Butler had only
been on night shift for a period of 5
months.
8. On 7th December, 1988 the complainants (represented by the
Employment Equality Agency) lodged an appeal with the Labour Court
for a determination that Recommendation No. EE6/1988 had not been
implemented.
9. The Court heard both appeals on 23rd February, 1989. The
written submissions to the Court are attached as appendices 3 and
4 to this Determination. The parties enlarged on these
submissions at the hearing.
DETERMINATION:
10. Having considered the submissions made by the parties and the
reasoning of the Equality Officer in the Recommenation, the Court
upholds the Recommenation.
Division: Mr O'Connell Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEE884 DETERMINATION NO DEE189
EMPLOYMENT EQUALITY ACT, 1977
PARTIES: BECTON DICKINSON AND COMPANY LIMITED
and
TWO WORKERS MR P BUTLER AND MR B SMITH
(Represented by the Employment Equality Agency)
SUBJECT:
1. Appeal by the Company against Equality Officer's
Recommendation No. EE 6/1988 and appeal by Mr P Butler and Mr B
Smith (represented by the Employment Equality Agency) for a
determination that Equality Officer's Recommendation No. EE6/1988
has not been implemented.
BACKGROUND:
2. Equality Officer's Recommendation No. EE6/1988 concerned an
allegation by the complainants, Mr. Butler and Mr Smith, that
Becton Dickinson & Co. Ltd discriminated against them contrary to
the terms of the Employment Equality Act, 1977 in redeploying them
to night duty under the terms of an agreement under which only
males were considered for redeployment.
3. The Company is engaged in the manufacture of hypodermic
syringes and needles. It has plants in Drogheda and Dun
Laoghaire. Mr Butler and Mr Smith are employed at the Dun
Laoghaire plant as Process Employees. There are approximately 200
Process Employees in this plant. The Company operates day work, 2
shift rotating, 3 shift rotating, 4 shift and permanent night
shift. The majority of employees are employed on 2 shift day
work. Both complainants are members of the Irish Transport and
General Workers' Union.
4. Traditionally, it was the Company's practice to employ only
males for night duty. This practice was implemented in order to
comply with Section 46 of the Conditions of Employment Act, 1936
which made it unlawful to employ females for night work. Males
employed on night duty subsequently got opportunities to move to
more favourable shift patterns. Both complainants commenced
employment on night work and were subsequently transferred to
days. In 1986 an agreement was drawn up between the Company and
the Union. With regard to redeployment to night duty the
agreement stated that -
"In the event of redeployment where a person with more senior
service might only be redeployed on permanent nights, the
least senior man on shifts or day work in the department
where the redeployment takes place, moves out of the
department and displaces the least senior man on the shifts
or day work in the plant, provided he has more seniority
over the said man and the latter moves to permanent nights."
5. In April, 1987 the Employment Equality (Employment of Women)
Order, Statutory Instrument No. 112 of 1987 (copy at Appendix I)
removed the prohibition on the employment of females in industrial
work at night. Six months later in October, 1987 both
complainants were redeployed to night duty under the terms of the
1986 agreement. The complainants alleged that their selection for
redeployment as the least senior males discriminated against them
by reason of their sex in that they were treated less favourably
than females who were not considered for redeployment. They
claimed that this constituted discrimination against them within
the meaning of Section 2(a) and contrary to Section 3 of the
Employment Equality Act, 1977.
6. On 25th March, 1988 the Employment Equality Agency, on behalf
of the complainants, referred the dispute to the Labour Court.
Under Section 19(2) of the Act the Labour Court referred the
dispute to an Equality Officer for investigation and
recommendation. Details of the Equality Officer's investigation
are set out in Appendix 2 to this Determination. The Equality
Officer issued his conclusions and recommendation (No. EE6/1988)
on 3rd November, 1988. The document includes details of the case
made by the complainants and that made by the Company. The
conclusions and recommendation of the Equality Officer were as
follows:-
"Conclusions of Equality Officer:
16. Under Section 2(a) of the Act discrimination is taken to
occur "where by reason of his sex a person is treated less
favourably than a person of the other sex". Section 3(4)
prohibits any discrimination in relation to, among other things,
treatment in relation to shift work. This general prohibition is
qualified by Section 14 which states that "nothing done by an
employer in compliance with any requirement of or under an Act to
which this section applies shall constitute discrimination in
contravention of this Act." It is clear, therefore, that
discrimination as described in Section 2(a) can be permissible
under Section 14, but only where the discrimination results from
compliance with an Act to which Section 14 applies.
17. In this case the complainants were selected for redeployment
to night duty because they were the least senior male employees in
the plant. It is clear that sex was a determining factor in the
selection of the complainants as female employees with less
service than the complainants were not selected. In these
circumstances I have no doubt but that the selection of the
complainants for redeployment to night duty constituted
discrimination against them within the terms of Section 2(a) and
contrary to the terms of Section 3 of the Act. The only question
which remains is whether or not that discrimination was
permissible by means of the operation of Section 14.
18. The Company argues that the redeployment of the complainants
was permissible under Section 14 and did not unlawfully
discriminate against them. It submits that:
- The redeployment was in compliance with Clause 3 of the 1986
Company/Union Agreement which was drawn up in accordance with
Section 46 of the Conditions of Employment Act 1936 which
section required it to discriminate in relation to selection
for night duty.
- Under the terms of their contacts males were liable for night
work whereas females were not. The differentiation in the
contracts was not unlawfully discriminatory as it was
required in order to comply with the law as it existed when
the contracts were drawn up.
- In October, 1987 when the complainants were redeployed the
Company only had a night work shift licence in respect of
male employees. It was required, therefore, in order to
comply with its shift licence, to consider only males for
redeployment.
19. I note that in April, 1987 the "Employment Equality
(Employment of Women) Order 1986, S.I. No. 112 of 1987" was
introduced (copy at Appendix I). S.I. No. 112 of '87 repealed
Section 46 of the Conditions of Employment Act 1936 which had up
until then made it unlawful for an employer to permit a woman to
do industrial work at night. The first question which arises is
whether or not the selection of males only for redeployment to
night duty became no longer permissible under Section 14 of the
Act after the introduction of S.I. No. 112 of '87 or whether the
existing terms of the Agreement and of the individual contracts of
employment continued to permit the company to discriminate on the
basis of sex in redeploying employees to night duty.
20. The purpose of the Employment Equality Act, 1977 as set out
in the Short Title is "to make unlawful in relation to employment
certain kinds of discrimination on grounds of sex...." Section 14
provides a derogation which has the effect of limiting the
application of the Act. I consider that it is reasonable and
logical to interpret Section 14 in a manner which is consistent
with the overall purpose of the Act. For this reason I consider
that an employer, before successfully invoking Section 14 as a
justification for discriminating, is obliged to take all
reasonable steps which are available to avoid the necessity to
discriminate. I note that in the case of Tayto Limited and Seven
Female Employees (EE. 13/1985) the Equality Officer, in
considering the extent to which Section 14 permits an employer to
discriminate, found that -
"It is important to bear in mind that an employer has a
measure of control over the circumstances in which his
employees are employed. This means that the extent to
which it may be necessary for an employer to confine
employment to men in order to comply with these other
Acts may actually be influenced by his own actions or,
indeed, inactions. Therefore, and having regard to the
objective of the 1977 Act in seeking to eliminate all
forms of unnecessary sex discrimination in relation to
access to employment, it seems reasonable to me to
conclude that the extent to which section 14 of the
1977 Act permits an employer to confine employment to
men in order to comply with legislation such as the
Factories Act, 1955 is limited to the extent that is
necessary after an employer has taken all reasonably
practicable steps to minimise his necessity to do so.
In other words, section 14 does not apply in
circumstances in which an employer could have taken
reasonably practicable steps to provide for the
employment of persons of either sex without being in
breach of any requirement of or under the various Acts
to which the section refers."
I consider that the reasoning applied in the Tayto case can be
equally applied to this case.
21. With regard to the Company's arguments in relation to the
terms of the 1986 Agreement and in relation to the different terms
in the male and female contracts of employment, I note that no
effort was made by the Company to negotiate new non-discriminatory
terms to replace those which differentiated between males and
females and which were no longer necessary subsequent to the
removal of the ban on the employment of females in industrial work
at night. In such circumstances, where the Company has failed to
take any steps even to ascertain if it would be possible to
replace the discriminatory terms, I consider that there must be
some doubt surrounding the Company's claim that it was actually
required to discriminate against the complainants.
22. However, even if it was found that all reasonable steps were
taken, I am satisfied that under Section 14 the redeployment of
the complainants would not be permissible by reason of the
existence of the Agreement or the contracts of employment. In
order to show that the redeployment was permissible within the
terms of Section 14 the Company would have to establish that the
action was done in compliance with a requirement under an Act to
which Section 14 applies (in this case the Conditions of
Employment Act, 1936). It is not sufficient for the Company to
state that the action was done in order to comply with the terms
of an Agreement or of contracts of employment, even if those
terms, when drawn up, were in compliance with Section 14. In
October, 1987, when the complainants were redeployed, Section 46
of the Conditions of Employment Act, 1936 had been repealed and it
was no longer unlawful for an employer to permit a woman to do
industrial work at night. Therefore, the Company cannot claim
that it was required to consider only males in order to comply
with Section 46 of Conditions of Employment Act, 1936.
23. The next question to be dealt with concerns the claim by the
Company that it was required, in order to comply with its shift
licence, to consider only males for night shift duty and that for
this reason the discrimination was permissible within the terms of
Section 14. It is a fact that in October, 1987 the Company's
shift licence, with which it was obliged to comply under Section
32 of the Conditions of Employment Act, 1936, permitted it to
employ only male workers on night duty. However, as I have stated
in paragraph 20 above, I consider that Section 14 only permits
discrimination in circumstances where an employer has taken all
the reasonably practicable steps available to it to avoid
discriminating. The Company could have applied for a new shift
licence applying to all adult workers following the introduction
of S.I. No. 112 of '87 but it states that it decided not to as it
felt that an application for such a licence would be opposed by
the trade unions. S.I. No. 112 of '87 removed the requirement on
the employer to restrict night duty to male employees only. It is
obvious that in this case the employer had a choice as to whether
to continue operating under the existing licence or whether to
apply for a new extended licence. I note that the employer never
raised the question of extending the licence with the Union and
made no effort to replace the existing licence. In May, 1988 on
expiry of its shift licence the Company applied for a renewal and
was automatically issued with one which applied to all adult
workers. I consider that by failing to take any action to replace
the discriminatory shift licence the employer failed to take all
of the reasonably practicable steps open to it to avoid
discriminating against the complainants. In all of these
circumstances, I cannot accept that it was genuinely necessary for
the employer to consider only male employees for redeployment to
night duty. It follows that the existence of the night shift
licence in respect of male employees only did not permit the
Company to discriminate within the terms of Section 14 against the
complainants.
24. In view of my findings in the above paragraphs I am satisfied
that the complainants were discriminated against in October, 1987
within the meaning of Section 2(a) of the Act and contrary to
Section 3 and that the discrimination was no permissible within
the terms of Section 14 of the Act.
RECOMMENDATION
25. Under the terms of the Employment Equality Act, 1977 an
employer is not entitled to treat an employee of one sex
differently to an employee of the other sex in relation to shift
work unless the different treatment is permitted by Section 14 of
the Act. I have found in this case that the complainants were
treated less favourably than the female employees and that the
different treatment was not permitted by Section 14. It follows
that the complainants are entitled under the Act to be treated in
the same way as female employees in relation to shift work.
Accordingly, I recommend that the complainants be put in the
position which they would now be holding but for the
discrimination against them i.e. that they should not be required
to do night shift duty. I also recommend that the complainants
should in the future be required only to work the same shift
rosters as the existing female employees in the Company.
26. I note that the Company has argued that in its opinion the
only alternative to its policy of redeploying males would be to
redeploy females on the same basis as males, but that the females'
contracts restricted it from doing so. It is not necessary for
me, for the purposes of this investigation, to give any opinion on
what action the Company should take in relation to future
redeployment of staff to night duty, except to state that whatever
policy is implemented by the Company must not be contrary to the
terms of the Employment Equality Act, 1977.
27. I note that the complainants are also seeking compensation
for the distress and anxiety caused by the discrimination.
Undoubtedly the complainants suffered a degree of inconvenience
and distress by being transferred to night duty against their
wills. This inconvenience will have already been compensated for
to a certain degree by the payment of the shift premium which
applies to the night shift. I note, however, that both
complainants did not consider the shift premium as adequate
compensation for reverting them to night duty as both continued to
object to the redeployment. Therefore, I recommend that each
complainant be paid the sum of £500 as additional compensation for
the distress and inconvenience caused by the requirement on them
to work on night duty for the period from October, 1987 to date."
On 6th December, 1988, the Company lodged an appeal with the
Labour Court against Equality Officers Recommendation No.
EE6/1988. The basis for the appeal as stated by the Company was
as follows:-
"1. In 1986, when drawing up the Company/Union
agreement on Seniority/Redeployment, females were
precluded from carrying out industrial work at
night by reason of the provisions of section 46 of
the Conditions of Employment act 1936. Both the
Company and the Union were acting within the
parameters of the Act in concluding a collective
agreement. It would have been illegal for the
Trade Union and the Company to have reached any
other agreement than that which was signed in 1986.
2. In consultation with the Trade Union we have
recognised the validity of Statutory Instrument No.
112 and have agreed that all future employees
coming into the Company both male and female, will
be liable for the same shift rosters. A shift
licence has been obtained to give effect to this
with the consent of the Trade Union.
3. To comply with the wishes of the appellants, it
would be necessary for us to change the Contract of
Employment with all female employees. We believe
that we would leave ourselves open to a claim for
constructive dismissal or redundancy by
unilaterally changing the contracts.
4. The Trade Union on behalf of female employees, will
not consent to amending the present Terms and
Conditions of Employment for female employees.
5. We contest the award of compensation to the
appellants on two grounds:-
(a) The employees were only doing what was in
the Contract and
(b) one of the appellants P. Butler had only
been on night shift for a period of 5
months.
8. On 7th December, 1988 the complainants (represented by the
Employment Equality Agency) lodged an appeal with the Labour Court
for a determination that Recommendation No. EE6/1988 had not been
implemented.
9. The Court heard both appeals on 23rd February, 1989. The
written submissions to the Court are attached as appendices 3 and
4 to this Determination. The parties enlarged on these
submissions at the hearing.
DETERMINATION:
10. Having considered the submissions made by the parties and the
reasoning of the Equality Officer in the Recommenation, the Court
upholds the Recommenation.
The Court notes the Equality Officer's statement at paragraph 26
regarding those workers whose existing contracts restrict them
from redeployment to night work. This and any residual problems
fall to be resolved through normal industrial relations machinery
in accordance, as stated in the Recommendation, with the
provisions of the Employment Equality Act, 1977.
~
John O'Connell
22nd June, 1989 ---------------
A.K./U.S. Deputy Chairman
APPENDIX I
S.I. No. 112 of 1987
EMPLOYMENT EQUALITY (EMPLOYMENT OF WOMEN) ORDER, 1986
I, BERTIE AHERN, Minister for Labour, in exercise of the power
conferred on me by section 14 of the Employment Equality Act, 1977
(No. 16 of 1977), hereby make the following Order, with respect to
which, pursuant to that section, a draft has been laid before each
House of the Oireachtas and a resolution approving of the draft
has been passed by each such House:
1. This Order may be cited as the Employment Equality
(Employment of Women) Order, 1986, and shall come into
operation on the 4th day of May, 1987.
2. In this Order "the Act of 1936" means the Conditions of
Employment Act, 1936 (No. 2 of 1936).
3. Section 38 of the Act of 1936 is hereby amended by the
substitution of the following subsection for subsection (1):
"(1) Save as otherwise provided by this Act, it shall
not be lawful for any employer who employs any
adult worker to do industrial work in an industrial
undertaking on day work to permit such adult worker
to continue work after any of the following limits
(in this Act referred to as time limits for day
work), that is to say:
(a) the hour of 8 p.m. on any ordinary
working day,,
(b) the hour of 1 p.m. on any short day,
(c) the time in any ordinary working day when
such adult worker has completed nine
hours work on that day,
(d) the time in any week when such adult
worker has completed forty-eight hours
work in that week.".
4. Section 46 of the Act of 1936 is hereby repealed.
Notice of the making of this Statutory Instrument was published in
"Iris Oifigiuil" of 21st April, 1987.
5. Subsection (2) of section 49 of the Act of 1936 is hereby
amended by the deletion of "male", and that subsection, as so
amended, is set out in the Table to this paragraph.
TABLE
(2) Notwithstanding anything contained in the next preceding
subsection of this section, an employer may employ an
adult worker to do, on any Sunday, for a period not
exceeding three hours or for two or more periods not
exceeding in the aggregate three hours, any industrial
work to which the prohibition affected by the said next
preceding subsection applied.
Given under my Official Seal, this 14th
day of April, 1987.
BERTIE AHERN,
Minister for Labour.
EXPLANATORY NOTE.
(This note is not part of the Instrument and does not purport to
be a legal interpretation.)
The purpose of this Order is to remove the prohibition on the
employment of women on industrial work at night and on Sundays by
amending the Conditions of Employment Act, 1936.