Labour Court Database __________________________________________________________________________________ File Number: AEE897 Case Number: DEE894 Section / Act: S21EE Parties: SOUTHERN HEALTH BOARD - and - MEDICAL LABORATORY TECHNOLOGISTS ASSOCIATION |
Appeal by the Board against Equality Officer's Recommendation No. EE5/1989 concerning a claim by one female that she suffered discrimination on grounds of her sex and marital status.
Recommendation:
6 1. The Court has considered the three points of appeal by
the Southern Health Board against the Equality Officers
recommendation (REF. EE5/1989).
2. The Court is satisfied that the reason Ms O'Sullivan was
not considered for temporary employment was solely
because she was a former employee of the Board who had
been paid a marriage gratuity. As marriage gratuities
are payable only to female employees who leave
employment on grounds of marriage it is self evident
that no male or single female could be excluded from
consideration of temporary employment on these grounds.
Accordingly the Court is satisfied that Ms O'Sullivan
was treated less favourably on grounds of sex and
marital status and this treatment was discriminatory in
terms of Sect 2(a) and 2(b) of the Act.
3. The Equality Officer recommended that the Board should
withdraw the Clause B from the terms of the circular
dated 11th April as the existence of this clause had led
to the discrimination set out above. The Court is
satisfied that the clause referred to is discriminatory
and should be withdrawn immediately.
4. The Court accordingly rejects the Boards first two
points of appeal.
5. The 3rd point of appeal relates to the monetary
compensation recommended by the Equality Officer.
Whilst not disagreeing with Equality Officer's reasoning
as set out in Para 17 of EE5/1989, the Court
nevertheless considers it reasonable to take into
account the details of the original claim. In the
circumstances the Court considers it would not be
reasonable to recommend payment of the full amount
recommended by the Equality Officer and accordingly the
Court consider that she should be paid an ex gratia sum
equal to 50% of the gross pay she could have earned in
the period 16th January, 1989 until the 2nd June, 1989.
6. The Court accordingly rejects the Boards 3rd point of
appeal and determines that
(A) the Board withdraw Clause B of the Circular
dated 11th April, 1988
and
(B) Pay Ms O'Sullivan compensation calculated on the
basis set out in para (5) above.
Signed on behalf of the Labour Court
Evelyn Owens
8th November, 1989 ---------------
A. McG/U.S. Deputy Chairman
Division: Ms Owens Mr Brennan Mr O'Murchu
Text of Document__________________________________________________________________
AEE897 DEE489
EMPLOYMENT EQUALITY ACT, 1977
DETERMINATION NO. 4 OF 1989
PARTIES: SOUTHERN HEALTH BOARD
and
MEDICAL LABORATORY TECHNOLOGISTS ASSOCIATION
SUBJECT:
1. Appeal by the Board against Equality Officer's Recommendation
No. EE5/1989 concerning a claim by one female that she suffered
discrimination on grounds of her sex and marital status.
BACKGROUND:
2. On 11th April, 1988 the Southern Health Board issued a
circular setting out the following restrictions which would apply
when selecting temporary staff:-
"(a) Staff who have accepted the terms of the
voluntary redundancy/early retirement scheme
must not, under any circumstances, be
re-employed in a temporary capacity.
(b) Staff who have resigned from the Board and who
have been paid Marriage Gratuities are not to be
re-employed in a temporary capacity.
(c) Immediate relatives of the Board's staff are not
to be employed in a temporary capacity in
situations where others have not been given an
opportunity of applying for temporary work.
This applies specifically where applicants for
permanent posts have been placed on a panel and
are available for temporary employment. Lack of
experience is not acceptable as a reason for
avoiding this requirement."
The claimant who was the subject of the Equality Officer's
Recommendation had worked with the Board until 1980 when she
resigned on a voluntary basis, receiving a marriage gratuity.
She subsequently worked with the Board in a temporary capacity, on
a number of occasions prior to the issue of the circular.
Following its issue, a similar temporary position became available
and was filled by a male worker on 16th January, 1989. The
claimant complained to the Labour Court under the Employment
Equality Act, 1977 on 15th June, 1989.
3. An Equality Officer investigated the dispute and issued a
recommendation on 1st August, 1989. (conclusions and
recommendation is attached at Appendix 1).
Labour Court Investigation
4. On 28th August, 1989 the Southern Health Board appealed the
recommendation of the Equality officer to the Labour Court. The
Board's grounds of appeal are as follows:-
(a) The Board does not accept that it discriminated against
Ms O'Sullivan in relation to temporary employment,
because of her sex or marital status. In fact the
decision to issue the Circular, dated the 11th April,
1988 was taken because the Board's management was
concerned to ensure that the selection of all grades of
staff for temporary employment was fair and equitable
and would be seen by the public to be such particularly
in a situation of high unemployment levels and where
many school leavers and newly qualified people are
anxious to avail of temporary employment to gain work
experience.
(b) For the reasons as outlined above the Board does not
consider that it should be necessary to delete Clause
(b) from the terms of the circular of the 11th April,
1988.
(c) It is considered that the recommendation to pay Ms
O'Sullivan full salary in respect of the period from
16/1/89 to 2/6/89 is unreasonable particularly in a
situation where because of the Boards critical
financial situation, it has been necessary to make many
harsh decisions involving hospital ward closures,
reduction of services, laying off of temporary staff,
granting voluntary redundancies, non-filling of
permanent staff vacancies and reduction in staff
earnings. These measures had to be introduced to
enable the Board to provide the best possible service
from very limited resources and to safeguard the jobs
of its permanent staff.
5. The Court heard the appeal in Cork on 4th October, 1989. The
written submissions to the Court are attached as Appendices II and
III.
DETERMINATION:
6 1. The Court has considered the three points of appeal by
the Southern Health Board against the Equality Officers
recommendation (REF. EE5/1989).
2. The Court is satisfied that the reason Ms O'Sullivan was
not considered for temporary employment was solely
because she was a former employee of the Board who had
been paid a marriage gratuity. As marriage gratuities
are payable only to female employees who leave
employment on grounds of marriage it is self evident
that no male or single female could be excluded from
consideration of temporary employment on these grounds.
Accordingly the Court is satisfied that Ms O'Sullivan
was treated less favourably on grounds of sex and
marital status and this treatment was discriminatory in
terms of Sect 2(a) and 2(b) of the Act.
3. The Equality Officer recommended that the Board should
withdraw the Clause B from the terms of the circular
dated 11th April as the existence of this clause had led
to the discrimination set out above. The Court is
satisfied that the clause referred to is discriminatory
and should be withdrawn immediately.
4. The Court accordingly rejects the Boards first two
points of appeal.
5. The 3rd point of appeal relates to the monetary
compensation recommended by the Equality Officer.
Whilst not disagreeing with Equality Officer's reasoning
as set out in Para 17 of EE5/1989, the Court
nevertheless considers it reasonable to take into
account the details of the original claim. In the
circumstances the Court considers it would not be
reasonable to recommend payment of the full amount
recommended by the Equality Officer and accordingly the
Court consider that she should be paid an ex gratia sum
equal to 50% of the gross pay she could have earned in
the period 16th January, 1989 until the 2nd June, 1989.
6. The Court accordingly rejects the Boards 3rd point of
appeal and determines that
(A) the Board withdraw Clause B of the Circular
dated 11th April, 1988
and
(B) Pay Ms O'Sullivan compensation calculated on the
basis set out in para (5) above.
Signed on behalf of the Labour Court
Evelyn Owens
8th November, 1989 ---------------
A. McG/U.S. Deputy Chairman
~
APPENDICES
CONTENTS
APPENDIX I EQUALITY OFFICER'S CONCLUSIONS
and RECOMMENDATION
APPENDIX II UNION'S SUBMISSION
APPENDIX III BOARD'S SUBMISSION
APPENDIX I
Conclusions of the Equality Officer:
1. The first question for consideration in this case is whether
or not Ms O'Sullivan referred her complaint for investigation in
accordance with the terms of Section 19(5) of the Act which
states:-
"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 first question to be addressed, in deciding whether or not Ms
O'Sullivan's reference of her complaint satisfied the provisions
of section 19(5) of the Act, is the date on which the Act alleged
to constitute the discrimination first occurred.
2. Ms. O'Sullivan's complaint, which she referred for
investigation on 15th July, 1989, is that Clause (b) of the
Board's circular, which issued on 11th April, 1988, excluded her
from temporary employment in January, 1989 and discriminated
against her. It is clear, therefore, that the Board had a policy,
since 11th April, 1988 of excluding staff who had resigned from
the Board and who had received marriage gratuities, from all
grades of temporary employment. It is also clear, however, that
despite this policy Ms O'Sullivan worked two periods of temporary
employment in June and July, 1988. I am satisfied that no futher
period of temporary employment in Ms. O'Sullivan's discipline
arose until January, 1989. In other words, it was not until
January, 1989 that Ms O'Sullivan was excluded from temporary
employment under the terms of the circular. Consequently, I am
satisfied that the first occurrence of the act alleged to
constitute the discrimination in this case was on 16th January,
1989 and, accordingly, Ms O'Sullivan's reference of her complaint
on 15th July, 1989 was made within six months of the date of the
first occurrence of the alleged act of discrimination.
3. The next question for consideration is whether or not the
Board's refusal to consider Ms. O'Sullivan for employment in
January, 1989 constituted discrimination against her on grounds of
her sex and/or marital status. The reason the Board refused to
consider Ms. O'Sullivan for employment was because of the terms of
Clause (b) of the circular of 11th April, 1988 which read as
follows:-
"Staff who have resigned from the Board and who have
been paid Marriage Gratuities are not to be re-employed
in a temporary capacity/"
There are a further two clauses in the circular which read as
follows:-
"(a) Staff who have accepted the terms of the voluntary
redundancy/early retirement scheme must not, under any
circumstances, be re-employed in a temporary capacity.
(c) Immediate relatives of the Board's staff are not to be
employed in a temporary capacity in situations where
others have not been given an opportunity of applying
for temporary work. This applies specifically where
applicants for permanent posts have been placed on
a panel and are available for temporary employment.
Lack of experience is not acceptable as a reason for
avoiding this requirement."
Section 2(a) and 2(b) of the Act states as follows:-
"2. For the purposes of this act, discrimination shall be
taken to occur in any of the following cases:-
(a) where by reason of his sex a person is treated less
favourably than a person of the other sex,
(b) where because of his marital status a person is
treated less favourably than another person of the
same sex".
4. It is clear that the reason Ms. O'Sullivan was not considered
for temporary employment in January, 1989 was solely because she
was a former employee of the Board who had been paid a marriage
gratuity. It is also clear that the Board's refusal to consider
her for temporary employment solely on this basis was refusal to
which no single woman and no man could have been subjected.
Consequently, it constituted less favourable treatment on grounds
of both sex and marital status and was discriminatory in terms of
Section 2(a) and 2(b) of the Act.
In coming to this conclusion I have not overlooked the fact that
Clauses (a) and (c) of the Board's circular also exclude persons
from consideration for temporary employment. However, unlike the
exclusion in Clause (b), which relates solely to married women and
which I have found to be discriminatory, the exclusions in Clauses
(a) and (c) apply to persons of both sexes and apply irrespective
of marital status. The fact that certain exclusions in the
circular apply irrespective of sex and marital status does not
prevent an additional exclusion, which applies solely to married
women, from constituting discrimination in terms of section 2(a)
and 2(b) of the Act.
Recommendation:
5. Having established that, as a consequence of the
discrimination practised by the Board against Ms O'Sullivan, on
grounds of her sex and marital status, she was refused access to
temporary employment, the final question for consideration is the
remedy which should be recommended.
I consider that in deciding on a remedy in cases where it has been
established that discrimination has occurred it is appropriate, as
far as possible, to put the person in the position they would have
enjoyed but for the discrimination practised against them.
6. At the joint hearing of the parties to this dispute the Board
did not dispute that Ms O'Sullivan was offered, without interview,
all the temporary employment which arose for a medical laboratory
technician at St. Catherine's Hospital from 1981 until July, 1988.
Consequently, I am satisfied that, if the exclusion contained in
Clause (b) of the Board's circular of 11th April, 1988 had not
existed, Ms. O'Sullivan would have secured the period of temporary
employment from 16th January, 1989 until 2nd June, 1989. I
recommend, therefore, that the Board pay Ms O'Sullivan the
remuneration she would have earned but for their exclusion of her
from the position. I also recommend that the Board delete the
exclusion contained at Clause (b) from the terms of the circular
of 11th April, 1988.