Labour Court Database __________________________________________________________________________________ File Number: AEE886 Case Number: DEE901 Section / Act: S21EE Parties: MS. SIOBHAN LONG - and - POWER SUPERMARKETS LIMITED TRADING AS QUINNSWORTH |
Appeal by Ms. Long against Equality Officer's recommendation No. EE5/1988 concerning the alleged discrimination by Quinnsworth against Ms. Long on grounds of sex within the meaning of Section 2(a) of the Employment Equality Act, 1977 and in breach of Section 3 of that Act by denying her access to full-time employment because of her pregnancy.
Recommendation:
37. I find that Power Supermarkets Limited, trading as
Quinnsworth did not discriminate against Ms. Long within the
meaning of Section 2(a) of the Act by not giving her a
starting date for employment."
8. Ms. Long, through the Employment Equality Agency and her Union
appealed the recommendation to the Labour Court on the 2nd
December, 1988 under Section 21 of the Employment Equality
Act, 1977 on the following grounds:-
"1. That although the Equality Officer accepts Ms. Long's
description of her visit to Quinnsworth on the 29th
December, 1987, during which the Company said it
could not guarantee her future employment on a
specified date after the baby was born, she erred in
law in concluding that the claimant was not directly
discriminated against on grounds of her pregnancy in
breach of section 3 of the Act in terms of section
2(a) of the same Act.
2. That the Equality Officer erred in making a
comparison between a male employee who was unable to
take up employment on the appointed date due to
illness and the claimant. That the Equality Officer
erred in comparing a healthy pregnant woman capable
of performing her work with a sick male employee who
was incapable of performing his work.
3. That the Equality Officer, on the basis of the facts
established in the investigation, erred in law in not
finding the imposition of a requirement not to be
pregnant to be a breach of section 3 of the Act in
terms of section 2(c) of the same Act.
4. On all other grounds as have been argued and included
in written and verbal submissions to the Equality
Officer in the course of her investigation and on
such further or other grounds as may be argued herein
and at the hearing."
9. The Court heard the appeal on the 9th March, 1989 and 4th May,
1989. Submissions from the parties are attached as appendices
to this recommendation. These arguments were expanded on
orally by the parties concerned at the hearings.
DETERMINATION:
10. The Court experienced great difficulty in coming to a
conclusion on this case because of the direct conflict of evidence
given by the parties in their accounts of the events as they
occurred on the 29th December, 1987 and which are in a real sense
at the very heart of the case brought by the appellant.
Having considered the submissions made by the parties at the
appeal and the supporting oral evidence, the Court has come to the
conclusion that it is safest to rely on the record of these events
as recorded by the Equality Officer when the memory of what
transpired was fresher in the minds of the parties. For these
reasons the Court concurs with the conclusion of the Equality
Officer in respect of the account of what occurred on 29th
December, 1987.
The Court further concurs with the conclusion of the Equality
Officer in that it finds that Ms. Long was not discriminated
against contrary to the terms of Section 3 of the Employment
Equality Act, 1977. Taking account of the treatment of the male
employee as recounted by the Company the Court is satisfied that
Ms. Long was treated in the same way. The issue is not a question
of a comparison between a healthy pregnant female worker and a
sick male but of the treatment of employees temporarily unable to
take up employment on the date offered.
The Court is further satisfied that the Equality Officer's
decision, that she had no jurisdiction to consider the case under
Section 2(c) of the Act was correct. In particular the Court had
regard to the very specific terms under which the appellant and
her representative brought her case.
Division: Mr O'Connell Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
AEE886 DETERMINATION NO. DEE190
EMPLOYMENT EQUALITY ACT, 1977
PARTIES: MS. SIOBHAN LONG
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY AND INUVGATA)
and
POWER SUPERMARKETS LIMITED TRADING AS QUINNSWORTH
SUBJECT:
1. Appeal by Ms. Long against Equality Officer's recommendation
No. EE5/1988 concerning the alleged discrimination by Quinnsworth
against Ms. Long on grounds of sex within the meaning of Section
2(a) of the Employment Equality Act, 1977 and in breach of Section
3 of that Act by denying her access to full-time employment
because of her pregnancy.
BACKGROUND:
2. Ms. Long had been employed as a full time Delicatessen
Assistant with H. Williams Limited at their Sandymount Branch
until the Company went into receivership in October, 1987. Ms
Long was made redundant.
3. The Sandymount branch was one of four stores which had been
owned by H. Williams Limited purchased by Quinnsworth. Agreement
was reached between Quinnsworth and the Union that the interview
list for each of the four stores would consist of full-time and
pro rata staff who were in regular employment in that particular
store on 2nd November, 1987.
4. Ms. Long was interviewed by Quinnsworth on the 6th November,
1987. She was subsequently informed by letter on 15th December,
1987 that she had been selected for employment in Sandymount and
she was requested to telephone the personnel officer on the 29th
December, 1987 in order to confirm her starting date and other
details.
5. Ms. Long called in person to the Company's head office on 29th
December, 1987 and the dispute centres on the conversation which
took place on that date between Ms. Long and an employee of the
Personnel Department and subsequent conversations which took place
between the Union and employees of the Company's Personnel
Department.
6. On 16th February Ms. Long issued the questionnaire form
prescribed under Section 28 of the Act to Quinnsworth stating that
she had been denied access to employment on the 29th December,
1987 on the grounds that she was pregnant and that this was
contrary to the Employment Equality Act, 1977. The Company did
not respond to the questionnaire within the prescribed 21 days
from date on which the form had been served.
7. On 6th April, 1988 the Union, acting on behalf of Ms. Long
referred the complaint to the Labour Court. The Court referred
the case to an Equality Officer for investigation and
recommendation. The Equality Officer investigated the complaint
and on the 27th October, 1988 issued the following recommendation:
"Conclusion of the Equality Officer:
21. Ms. Long has alleged that Quinnsworth discriminated
against her within the meaning of Section 2(a) of the
Employment Equality Act, 1977 and in breach of Section 3 of
that Act. It is an accepted fact that in making an
allegation of direct discrimination under Section 2(a) of the
Act, it is difficult for persons making the allegation to
produce evidence which would support their contention that
discrimination was practised against them. I consider that
as direct evidence of discrimination will seldom be available
to the person making the complaint, the affirmative evidence
of discrimination will normally consist of inferences to be
drawn from the facts of the case. I consider it necessary,
therefore, as a first step to establish the facts of the
case. If the facts indicate that there has been an act of
discrimination I will require the employer to give an
explanation. Should the employer's explanation be inadequate
or untrue, the inference of unlawful discrimination from the
facts of the case would mean that the complaint of
discrimination has been established.
22. The facts which I consider to be central to this case
are as follows:-
(i) Ms. Long received a letter from the Company on 15th
December, 1987 stating that she had been selected for
employment and requesting that she contact the Company
on 29th December, 1987 when she would receive her
starting date and details of her position.
(ii) Ms. Long was pregnant and due to give birth on 29th
January, 1988.
(iii) Ms. Long called in person to the Company on 29th
December, 1987. A conversation took place between Ms.
Keogh, an employee in the Company's personnel
department, and Ms. Long.
Ms. Long's version of this conversation is that Ms. Keogh
asked her if she had come to take the job. She replied that
she had called to see what her position would be and to
inform the Company that her baby was due on 29th January,
1988. Ms. Keogh went to speak to Ms. Conroy, the Personnel
Officer, and on her return thanked Ms. Long for calling in
person and said that the Company could not offer her a job,
but if she came back when her baby was born they would
re-consider her for employment, although they could not
guarantee her a job.
Ms. Keogh's version of this conversation is that she was
advised by reception that Ms. Long was in the store. She
went down to reception and saw Ms. Long who had the letter in
her hand notifying her that she had been selected for
employment. While Ms. Keogh is unable to recall the exact
details of her conversation with Ms. Long she is fairly sure
that Ms. Long said that she had decided to call in person
rather than telephone and advised her that her baby was due
on 29th January, 1988. It was Ms. Keogh's understanding that
Ms. Long could not take up work because of the expected birth
of her baby in the near future. Ms. Keogh informed Ms.
Conroy of the fact that Ms. Long's baby was due on 29th
January, 1988. Ms. Keogh states that Ms. Conroy said "tell
Ms. Long to contact the Company when the baby is born and
when she is ready to take up employment."
23. It is evident from the submissions made by both Ms. Long
and Ms. Keogh that there is a clear conflict of evidence
concerning the content of the conversation they had on 29th
December, 1987. Ms. Long is adamant that she was told by Ms.
Keogh that while the Company could not offer her a job, if
she came back when her baby was born they would re-consider
her for employment, but could not guarantee her a job. Ms.
Keogh is adamant that it was her understanding that Ms. Long
was drawing the Company's attention to the fact that she
could not take up work at the time because of the expected
birth of her baby. Ms. Keogh is also adamant that she never
said the Company could not guarantee Ms. Long a job. In her
evidence to me concerning this conversation Ms. Keogh
accepted that Ms. Long never actually said that she did not
want to take up her position at the time but Ms. Keogh
understood from the conversation that Ms. Long could not
start work at the time because her baby was due in 4 weeks.
It was on this basis that Ms. Long was advised to contact the
Company after her baby was born and when she was ready to
take up employment.
24. The crucial fact which is not in dispute in this case is
that had Ms. Long not been pregnant she would have received a
starting date and information on her position when she called
to the Company on 29th December, 1987. The Company accepts
that Ms. Long wanted the job but contends that she was not
available for work at the time and consequently the question
of giving her a starting date did not arise. The question to
be decided is, therefore, whether the reason Ms. Long did not
get a starting date was the result of direct discrimination
being practised against her on grounds of her pregnancy.
25. In the course of this investigation I asked the Company
if they had ever previously had a new employee who was unable
to take up employment on the appointed date. Ms. Conroy
informed me that in March, 1988, a new male employee due to
start work in the Ballybrack store, broke his leg at a
football match and was unable to take up employment on the
appointed date. He was informed by Ms. Conroy that she would
not be able to keep the position open but would consider him
for employment if he contacted her when he was available for
work.
26. Having considered the totality of the evidence in this
case I note the following points concerning the evidence
presented by the Company:-
(i) On 15th February, 1988 Ms. Long issued the
questionnaire form prescribed under Section 28 of the
Act to the Company stating that she had been denied
access to employment on 29th December, 1987 on the
grounds that she was pregnant. Following receipt of
Questionnaire Form 28 the Company took no action until
almost four weeks later when Ms. Conroy contacted Mr.
Douglas by telephone with an offer of a pro-rata
position for Ms. Long. It seems to me that, had a
position always been available for Ms. Long, subject
to her contacting the Company when she was available
for work, the obvious course of action for the Company
would have been to formally contact Ms. Long or her
representative immediately on receipt of the
Questionnaire Form.
(ii) A male employee who was unable to take up employment
on the appointed date was informed by Ms. Conroy that
she would not be able to keep the position open but
would consider him for employment if he contacted her
when he was available for work.
I consider that both these facts support Ms. Long's version
of events and I consider it probable that when she called to
the store on 29th December, 1987 and stated that she was due
to give birth on 29th January, 1988, she was informed by Ms.
Keogh that if she came back when her baby was born they would
re-consider her for employment but could not guarantee her
employment.
27. The next question to be addressed is whether or not the
Company's failure to give Ms. Long a starting date and
details of the position for which she had been selected
constituted discrimination being practised against her. Ms.
Long has alleged that the Company discriminated against her
within the meaning of Section 2(a) of the Employment Equality
Act, 1977 and in breach of Section 3 of that Act. Section
2(a) of the Act deals with direct discrimination and states
that discrimination shall be taken to occur:-
"where by reason of his sex a person is treated less
favourably than a person of the other sex."
28. There is a school of thought which argues that direct
discrimination is automatically established when less
favourable treatment is meted out to a pregnant woman. The
thinking behind this argument is that the less favourable
treatment is a result of an attribute of the woman's sex.
Having considered this approach to direct discrimination I am
not convinced that it is either the approach intended or
required by the Employment Equality Act, 1977. I consider
the purpose and intention of the direct discrimination
provision in the 1977 Act is to equalise the treatment
afforded to both sexes in employment or seeking access to
employment. Section 2(a) of the Act requires that the test
of favourability of the treatment afforded to a claimant
rests on a comparison between the treatment afforded to the
claimant and that afforded to a person of the apposite sex.
In approaching the construction of Section 2(a) of the 1977
Act, it is important to keep in mind one of the principle
purposes of the Act, which is to prevent persons in
employment, or persons seeking access to employment, being
treated less favourably because of their sex than a person of
the opposite sex.
29. In deciding a case under Section 2(a) of the Act, an
Equality Officer is required to make a comparison between the
treatment afforded to a claimant and that which was or would
be afforded to a person of the apposite sex. The Equal
Treatment Directive 76/107/EEC, is also based on the
principle of a comparison between the sexes. It is obvious
that the question arises as to whether in cases involving
alleged direct discrimination on grounds of pregnancy it is
appropriate to ask whether pregnancy, with its associated
consequences, is capable of being matched by analogous
circumstances applying to a man, and if so, whether they are
closely enough matched to enable a fair comparison to be made
between the favourableness of treatment accorded to a woman
in a pregnancy situation and to a man in any situation which
has the same consequences for the employer.
30. It is clear that no male can become pregnant. Pregnancy
is an exclusively female condition. It is also clear from
the evidence supplied by the Company during the course of
this investigation that, as a matter of fact, a male
employee, unable to accept a specified starting date, was
treated in exactly the same manner as Ms. Long. The male
employee in question, Mr. Gary Kelly, was selected for
employment as a Packer and was due to commence employment on
21st March, 1988. Mr. Kelly broke his leg on 20th March,
1988. Ms. Conroy supplied me with a copy of his application
form which records the following facts:-
- Mr. Kelly had broken a leg.
- He had been told to contact Ms. Conroy when he was
recovered.
- He confirmed to Ms. Conroy on 21st March, 1988 that he
would like to start work.
- He was not promised a job by the Company.
31. In making a comparison between the treatment afforded to
the claimant and that which was in this case afforded to a
male employee who was unable to commence employment on a
particular starting date specified by the Company one must
reach the conclusion that the treatment afforded to one was
no less favourable than that afforded to the other. It is,
therefore, a question of fact that the treatment afforded to
Ms. Long as a pregnant female was the same as that which was
afforded to a male. It appears to me that if, as a result of
the comparison which the Equality Officer is required to make
under Section 2(a) of the Act, it is evident that the
treatment afforded to the claimant is no less favourable than
that which is or which would be afforded to a person of the
other sex then an allegation of direct discrimination must
fail.
32. I note that Section 16 of the Employment Equality Act,
1977 provides that it is not "unlawful for an employer to
arrange for or provide special treatment to women in
connection with pregnancy or childbirth." Had Ms. Long been
given a deferred starting date she would have been treated
more favourably than Mr. Kelly because of her pregnancy.
This would not have been contrary to the Act because of the
provision in Section 16 but there is no requirement on an
employer to treat a pregnant woman more favourably than he
would treat a man in a situation which has the same
consequences for the employer.
33. In view of the conclusions reached in the above
paragraphs 21 - 32, I find there is no evidence to support
Ms. Long's contention that she was discriminated against
contrary to Section 2(a) of the Act.
34. This case was referred for investigation solely under
the direct discrimination provision in Section 2(a) of the
Act. The purpose and intention of the direct discrimination
provision of the Act as set out at Paragraph 28 ante can be
contrasted with the purpose and intention of the indirect
discrimination provision set out at Section 2(c) of the Act.
The aim of Section 2(c) of the Act is to render unlawful, in
the contexts covered by the Act, those requirements which,
while not overtly sex-based, have a dispropriationate adverse
impact on one sex and cannot be justified by the employer. I
note the existence of certain previous cases of
discrimination where claimants have successfully argued that
the treatment afforded to them while pregnant constituted
indirect discrimination in terms of Section 2(c) of the Act.
35. Consequently, during the course of this investigation I
raised the question of the possibility of indirect
discrimination having occurred in this particular case and
informed the parties that I would consider any submissions
they wished to make in terms of Section 2(c) of the Act. In
reply the Company argued that the reference of the claim to
the Equality Officer was specific to Section 2(a) of the Act
i.e. a claim of direct discrimination and, therefore,
disputed the Equality Officer's jurisdiction to hear the case
under Section 2(c) of the Act, i.e. as an indirect
discrimination claim. The Union made no submission in terms
of Section 2(c) of the Act.
36. I have given careful consideration to the Company's
argument that I do not have jurisdiction to hear the case
under Section 2(c) of the Act and I must accept as valid the
Company's objections in this regard. At no stage of the
proceedings did the Union indicate that there was a dispute
concerning indirect discrimination. Having examined the
claimants reference of this dispute to the Labour Court it is
clear that the dispute was referred specifically as a case of
direct discrimination. On 15th February, 1988 Ms. Long
issued the quesionnaire form prescribed under Section 28 of
the Act to the Company stating as follows:-
"I was denied access to employment on the grounds of my
pregnancy, contrary to Sections 2(a), 3(1) of the
Employment Equality Act, 1977....."
On 6th April, 1988 the Union, acting on behalf of Ms. Long
referred the complaint to the Labour Court stating, inter
alia, that Ms. Long
"was denied access to employment on the grounds of her
pregnancy contrary to Sections 2(a), 3(1) of the
Employment Equality Act, 1977."
There is, therefore, no valid basis on which I could conclude
that I have jurisdiction to hear this case as a case of
indirect discrimination in terms of Section 2(c) of the Act.
Recommendation:
37. I find that Power Supermarkets Limited, trading as
Quinnsworth did not discriminate against Ms. Long within the
meaning of Section 2(a) of the Act by not giving her a
starting date for employment."
8. Ms. Long, through the Employment Equality Agency and her Union
appealed the recommendation to the Labour Court on the 2nd
December, 1988 under Section 21 of the Employment Equality
Act, 1977 on the following grounds:-
"1. That although the Equality Officer accepts Ms. Long's
description of her visit to Quinnsworth on the 29th
December, 1987, during which the Company said it
could not guarantee her future employment on a
specified date after the baby was born, she erred in
law in concluding that the claimant was not directly
discriminated against on grounds of her pregnancy in
breach of section 3 of the Act in terms of section
2(a) of the same Act.
2. That the Equality Officer erred in making a
comparison between a male employee who was unable to
take up employment on the appointed date due to
illness and the claimant. That the Equality Officer
erred in comparing a healthy pregnant woman capable
of performing her work with a sick male employee who
was incapable of performing his work.
3. That the Equality Officer, on the basis of the facts
established in the investigation, erred in law in not
finding the imposition of a requirement not to be
pregnant to be a breach of section 3 of the Act in
terms of section 2(c) of the same Act.
4. On all other grounds as have been argued and included
in written and verbal submissions to the Equality
Officer in the course of her investigation and on
such further or other grounds as may be argued herein
and at the hearing."
9. The Court heard the appeal on the 9th March, 1989 and 4th May,
1989. Submissions from the parties are attached as appendices
to this recommendation. These arguments were expanded on
orally by the parties concerned at the hearings.
DETERMINATION:
10. The Court experienced great difficulty in coming to a
conclusion on this case because of the direct conflict of evidence
given by the parties in their accounts of the events as they
occurred on the 29th December, 1987 and which are in a real sense
at the very heart of the case brought by the appellant.
Having considered the submissions made by the parties at the
appeal and the supporting oral evidence, the Court has come to the
conclusion that it is safest to rely on the record of these events
as recorded by the Equality Officer when the memory of what
transpired was fresher in the minds of the parties. For these
reasons the Court concurs with the conclusion of the Equality
Officer in respect of the account of what occurred on 29th
December, 1987.
The Court further concurs with the conclusion of the Equality
Officer in that it finds that Ms. Long was not discriminated
against contrary to the terms of Section 3 of the Employment
Equality Act, 1977. Taking account of the treatment of the male
employee as recounted by the Company the Court is satisfied that
Ms. Long was treated in the same way. The issue is not a question
of a comparison between a healthy pregnant female worker and a
sick male but of the treatment of employees temporarily unable to
take up employment on the date offered.
The Court is further satisfied that the Equality Officer's
decision, that she had no jurisdiction to consider the case under
Section 2(c) of the Act was correct. In particular the Court had
regard to the very specific terms under which the appellant and
her representative brought her case.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
19th January, 1990. Deputy Chairman
M.D./J.C.