Labour Court Database __________________________________________________________________________________ File Number: AEE883 Case Number: DEE903 Section / Act: S21EE Parties: AER RIANTA - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION. |
Appeal by the Company against Equality Officer's Recommendation EE 11/1987 concerning a claim by the Union on behalf of 37 of its male members employed by Aer Rianta that the Company's adoptive leave scheme, which applies only to women, discriminates against male employees contrary to Section 2(a) taken in conjunction with Section 3 of the Employment Equality Act, 1977.
Recommendation:
- Company's Notice of Appeal (Appendix I)
- Company submission for hearing
on the 7th March, 1988 (Appendix II)
- Union submission for hearing on
the 7th March, 1988 (Appendix III)
- Company submission for hearing
on the 6th October, 1989 (Appendix IV)
- Union submission for hearing on
6th October, 1989 (Appendix V)
- Judgement of Mr. Justice Barrington (Appendix VI)
DETERMINATION:
7. After hearing the appeal, the Court holds that there is not
discrimination by Aer Rianta in applying its adoptive leave scheme
only to women employees.
The Court sets out the grounds for its findings in the following
paragraphs.
Section 16 of 1977 Act (SAVER)
The Company argues that the purpose and intent of the Employment
Equality Act 1977 was to give effect to the European Council
Directive 76/207/EEC. Section 16 of the Act reads:-
"Nothing in this act shall make it unlawful for an employer to
arrange for or provide special treatment to women in
connection with pregnancy or childbirth".
The corresponding provision in the Directive is Article 2(3) which
states:-
"This Directive shall be without prejudice to provisions
concerning the protection of women, particularly as regards
pregnancy and maternity.
Consistent with its submission that the purpose of the 1977 Act
was to give effect to the Directive, the Company argues that it is
appropriate to consider relevant interpretations of the Directive
by the European Court of Justice as these interpretations
establish the intent of the Directive with which the Act should be
ad idem. The Company quotes two cases which they claim clearly
establish the intent of the Directive in respect of special leave
for women and confirm that the Company was not in breach of the
Directive. These cases are Hofmann v Barmer Ersatzkasse (Case No.
184/83) and Commission of the European Communities v Italian
Republic (Case 163/82).
For its part the Union argues that Section 16 of the 1977 Act is
quite clear and specific and is an exception to the general
principle of equal treatment and as such must be construed
strictly. In the circumstances the Union submits that there is no
need to rely on Article 2(3) to clarify Section 16 - the latter
being more specific and narrow in scope.
The Equality Officer, in his recommendation, considered that
Section 16 provided a more limited derogation from the principle
of equal treatment than is permitted by Article 2(3) but
considered that this was not contrary to the provisions of the
Directive. In the circumstances he held that the Company could
not rely on the Directive to extend the meaning of section 16.
The Court is satisfied that the 1977 Act, including Section 16
thereof, was introduced to give effect to Directive 76/207/EEC,
including Article 2(3) of the Directive. Article 2(3) of the
Directive allows for different treatment of women, particularly if
such treatment is connected with pregnancy and maternity.
Provisions for the protection of women in relation to pregnancy
and maternity are incorporated in the Maternity Protection of
Employees Act 1981. This Act allows an employee to take up to 14
weeks paid maternity leave, with the stipulation that she must
take at least 4 of those weeks before the end of the week in which
the baby is due and four weeks after that week. The remaining
period of six weeks can be taken either before or after the birth.
It seems clear that, since the employee is obliged to take four
weeks of her maternity leave immediately after the birth, that
stipulation in the Act is directly related to the physical
condition of the mother in the immediate post-birth period. But
the same argument cannot be made in respect of the further six
weeks maternity leave available when, at the option of the mother,
Division: CHAIRMAN Mr Collins Mr Devine
Text of Document__________________________________________________________________
AEE883 DETERMINATION NO. DEE390
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21(1)
PARTIES: AER RIANTA
(REPRESENTED BY MR. TOM MALLON B.L. INSTRUCTED BY
BYRNE, COLLINS AND MORAN, SOLICITORS)
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION.
SUBJECT:
1. Appeal by the Company against Equality Officer's
Recommendation EE 11/1987 concerning a claim by the Union on
behalf of 37 of its male members employed by Aer Rianta that the
Company's adoptive leave scheme, which applies only to women,
discriminates against male employees contrary to Section 2(a)
taken in conjunction with Section 3 of the Employment Equality
Act, 1977.
BACKGROUND:
3. On 5th January, 1987 the Union wrote to the Company requesting
it to indicate if adoptive leave applied to its members in Aer
Rianta. By letter of 12th January, 1987 the Company confirmed
that it had a policy on adoptive leave which had been in existence
since 1984 and it set out the terms of that policy. In response
to the Company's letter the Union wrote on 5th February, 1987
requesting immediate implementation of equal adoptive leave for
male workers. The Company replied on 23rd March, 1987 that the
adoptive leave scheme only applied to married women stating that:
"The Adoptive Leave Scheme overcomes an anomaly between the
leave applying to natural mothers and adoptive mothers. The
Company would not wish to create a further anomaly by
introducing paid adoptive leave for fathers."
On 26th March, 1987 the Union referred the dispute to the Labour
Court under the Employment Equality Act, 1977 claiming that the
Company's adoptive leave scheme discriminated against its members
in the Company on the basis of both sex and marital status. The
Labour Court held a hearing to consider submissions from the
parties on the issue of whether or not the reference complied with
Section 19(5) of the Act. Having decided that the reference
complied with Section 19(5) of the Act the Court referred the
dispute to an Equality Officer for investigation and
recommendation.
On 3rd September, 1987 the Company wrote to the Equality Officer
and the Union to clarify the Company policy with regard to
adoptive leave which it was stated -
"applies to all female staff in permanent employment
irrespective of marital status."
In response the Union acknowledged that the scheme no longer
discriminated on the basis of marital status and indicated that it
wished the Equality Officer to proceed with the investigation of
its claim that the adoptive leave scheme discriminated against
males.
3. Following an investigation of the dispute, the Equality
Officer issued the following conclusions and recommendation on the
21st December, 1987:
24. The Employer has raised preliminary issues in respect of
the time limit for referral and the status of the adoptive
leave scheme. I propose to deal with these issues before
proceeding to deal with the substantive question as to whether
or not the scheme is saved from contravening the provisions of
the Act by means of the operation of Section 16.
25. The Employer submits that the dispute has not been
referred within the time limit set out in Section 19(5) of the
Act, that the Labour Court should not have dealt with this as
a preliminary issue and that the Equality Officer should,
therefore, investigate this issue as part of the overall
investigation. In my opinion the following are the
sub-sections of Section 19 which are most relevant to this
question:
"(2) Where a dispute is referred under this section to the
Court, it shall endeavour to settle the dispute through
an industrial relation officer of the Court or refer the
dispute to an Equality Officer for investigation and
recommendation....."
"(3) Where a dispute is referred under this section to an
Equality Officer he shall investigate the dispute and
issue a recommendation thereon."
and
"(5) Save only where 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."
It is clear from Section 19(2) that the Labour Court does have
a preliminary function in deciding whether to refer a dispute
to an Industrial Relations Officer or an Equality Officer. It
is not unreasonable to conclude that this preliminary function
includes a consideration of whether or not a dispute has been
referred in accordance with the terms of Section 19(5). In
any event the Labour Court did make a decision on this
preliminary issue prior to referring the dispute to an
Equality Officer. Section 19(3) gives power to an Equality
Officer only to investigate the dispute referred to him by the
Labour Court. As the dispute under Section 19(5) was already
decided in favour of the Union by the Labour Court it was no
longer a part of the dispute which was referred to the
Equality Officer under section 19(2). It follows that I have
no jurisdiction to deal with the issues raised by the Company
under Section 19(5).
26. In relation to the question of whether or not the scheme
constitutes a condition of employment I note that in its
letters of August, 1984 and January, 1987 setting out the
terms of the adoptive leave scheme the Company states that it
"has in operation a policy on adoptive leave" and that "paid
adoptive leave will be granted" when certain conditions are
satisfied. It is quite clear that the Company has made the
adoptive leave scheme available to all of its female employees
and that the scheme applies to any female member of staff who
adopts a child. If a female is adopting a child she has an
entitlement to adoptive leave under the scheme. I consider
that for a condition of employment to exist it is not
necessary to have it formally accepted and incorporated into
the terms of the employment contract as is submitted by the
Company. For example it could be a condition of employment
that an employee would work in an office of his/her own or
that that office might be carpeted. However, these would be
unlikely to be contractual matters. There is no definition of
the meaning of "conditions of employment" in the Act.
However, for the reasons set out above, I have no doubt that
the adoptive leave scheme constitutes part of the employment
package offered by the Company to its female employees and as
such constitutes a condition of employment of those employees.
27. Section 2(a) of the Act 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." I
have no doubt but that the exclusion of males from the
adoptive leave scheme constitutes less favourable treatment of
them on the basis of their sex. However, whether or not this
discrimination is unlawful discrimination depends on whether
or not it is permitted under the terms of Section 16 of the
Act which states:-
"Nothing in this Act shall make it unlawful for an
employer to arrange for or provide special treatment to
women in connection with pregnancy or childbirth."
28. I note that in the case of Electricity Supply Board and
E.S.B. Officers Association (EE. 3/80) the Equality Officer's
opinion was that because Section 16 could extend to special
post-natal leave concessions given to natural mothers it
followed that it would also extend special leave concessions
to adoptive mothers. I find I am unable to agree with this
opinion. I consider that the basic difference between natural
childbirth and adoption is that in the case of natural
childbirth there is a period of pregnancy and an actual
childbirth whereas in an adoption there is not. Section 16
refers only to special treatment for women in connection with
pregnancy or childbirth. The European Court has stated in the
case of Johnson v. Royal Ulster Constabulary (case 222/84)
that Article 2(2) of the directive "being a derogation from an
individual right laid down in the directive, must be
interpreted strictly." For the same reason I consider that
Section 16 of the Act being a derogation from the principle of
equal treatment must be interpreted strictly. Looking at the
words in Section 16 and construing them in their ordinary and
natural meaning, I cannot conclude that the provisions for
special treatment for women in connection with pregnancy or
childbirth can apply to an adoption situation where the person
adopting a child experiences neither pregnancy nor childbirth.
29. The Company submits that Section 16 was included in the
Act as a means of giving effect to Article 2(3) of the EEC's
equal treatment directive which states that:
"This Directive shall be without prejudice to provisions
concerning the protection of women, particularly as
regards pregnancy and maternity."
It refers to two decisions of the European Court one of which
states that Article 2(3) protects the special relationship
between a woman and her child during the period following the
pregnancy and delivery (Case 184/83) and the second of which
states that it is not contrary to the terms of the Directive
to have special adoptive care arrangements exclusively for
women (Case 163/82).
The Company submits that national legislation must be
implemented and interpreted in conformity with the European
Directive and interpretations of the European Court. It
submits that in order to be consistent with Article 2(3) of
the Directive the interpretation of "pregnancy and childbirth"
should be extended to include maternity and it refers to the
Advocate General's view in Murphy v. Bord Telecom in support
of this view.
30. I have given careful consideration to this submission.
Article 1 of Directive 76/207/EEC sets out the purpose of that
Directive as follows:
"The purpose of this Directive is to put into effect in
the Member States the principle of equal treatment for
men and women as regards .... working conditions ....
This principle is hereinafter referred to as "the
principle of equal treatment."
Derogations from the principle of equal treatment are provided
by Articles 2(2), 2(3) and 2(4). Article 2(3) provides a
derogation in respect of provisions concerning the protection
of women firstly and then goes on to specify "particularly as
regards pregnancy and maternity." Section 16 of the Act is
set out in much more specific terms referring only to special
treatment to women in connection with pregnancy or childbirth.
In this case the national legislation provides for a more
limited derogation from the principle of equal treatment than
is provided in Article 2(3) of the directive and thus allows
for a wider implementation of the principle of equal treatment
as set out Article 1.
31. I note that in the case of Johnston v. Royal Ulster
Constabulary (Case 222/84) the European Court stated that:
"The question whether an individual may rely upon a
provision of the directive in order to have a derogation
laid down by national legislation set aside arises only
if that derogation went beyond the limits of the
exceptions permitted by Article 2(2) of the directive."
In this case Section 16 does not go beyond the limits of the
exceptions permitted by Article 2(3) of the Directive but
provides for a lesser derogation which is within those limits.
I am satisfied that it is not contrary to the provisions of
Directive 76/297/EEC which sets out the principle of equal
treatment to have a lesser derogation from the principle than
is set out in Article 2(3). I do not consider therefore that
the Company can rely on the Directive to extend the meaning of
Section 16.
32. I note that the European Court has not yet issued a
decision in the Murphy v. Bord Telecom case. However, even if
it had issued a decision along the lines suggested by the
Advocate General it would not affect my view in this case. In
Murphy v. Bord Telecom the wide interpretation suggested by
the Advocate General was to ensure the implementation of the
principle of equal pay which is outlined in Article 119 of the
Treaty of Rome and Article (1) of Directive 75/117/EEC. In
this case an interpretation of Section 16 which provides for a
lesser derogation than Article 2(3) is not contrary to the
principle of equal treatment as set out in Directive
76/297/EEC and does not restrict the implementation of that
principle. Therefore, as stated above, the Directive cannot
be relied upon to extend the meaning of Section 16 of the Act.
33. For the reasons set out above I do not consider that the
adoptive leave scheme operated by the Company is saved by the
operation of the provisions in Section 16. I am satisfied
that the adoptive leave scheme discriminates against the male
claimants contrary to Section 2(a) when taken in conjunction
with Section 3 of the Act.
34. Accordingly, I recommend that access to the adoptive
leave scheme should be made available to the 37 named male
claimants on the same basis as it is available to to the
Company's females employees.
4. The Company rejected this recommendation and appealed it to
the Labour Court under S.21(1) of the Employment Equality Act,
1977 (copy of the Company's Notice of Appeal is attached at
Appendix I).
5. When the appeal came before the Labour Court on the 7th March,
1988, the Court refused to hear the claim unless the grounds of
appeal set out in paragraphs 1(a), 1(j) and 1(k) of the Company's
Notice of Appeal were withdrawn. These paragraphs read as
follows:
1(a) The Equality Officer erred in law in concluding that the
function of the Labour Court under Section 19(2) of the
Act of 1977 included deciding whether or not a dispute
was referred in accordance with the provisions of Section
19(5) of the Act.
1(j) The Labour Court erred in law in dealing with the
question arising under Section 19(5) as it did or at all.
1(k) There was no evidence adduced on which the Labour Court
could have reasonably exercised their discretion under
Section 19(5).
The Court was of the view that it was being asked to act as a
Court of Appeal regarding actions taken/decisions made by another
division of the Court (the division which had dealt with the
S.19(5) issue). The Company was unwilling to withdraw any of its
grounds of appeal and accordingly the Court decided not to proceed
with the hearing. The Company subsequently sought leave to apply
for Judicial Review. When this matter came before Mr. Justice
Blayney on the 20th June, 1988 he ordered that the Company be
given leave to apply to the High Court for an order of (1)
Certiorari and (2) Mandamus. This matter came for hearing before
Mr. Justice Barrington who delivered his judgement on the 16th
March, 1989. In the course of his judgement he stated that it
appeared to him that the Labour Court had erred in relation to
this matter and that its decision to refuse to hear the appeal
until the grounds complained of were deleted from the Notice of
Appeal must be quashed and he therefore stated an absolute Order
of Certiorari. As a consequence, the matter was once again put
before the Labour Court for a full hearing, with all the grounds
of appeal set out in the original Notice of Appeal to be
considered. The Court heard the dispute on the 6th October, 1989.
6. The following documents are attached as appendices to this
determination:
- Company's Notice of Appeal (Appendix I)
- Company submission for hearing
on the 7th March, 1988 (Appendix II)
- Union submission for hearing on
the 7th March, 1988 (Appendix III)
- Company submission for hearing
on the 6th October, 1989 (Appendix IV)
- Union submission for hearing on
6th October, 1989 (Appendix V)
- Judgement of Mr. Justice Barrington (Appendix VI)
DETERMINATION:
7. After hearing the appeal, the Court holds that there is not
discrimination by Aer Rianta in applying its adoptive leave scheme
only to women employees.
The Court sets out the grounds for its findings in the following
paragraphs.
Section 16 of 1977 Act (SAVER)
The Company argues that the purpose and intent of the Employment
Equality Act 1977 was to give effect to the European Council
Directive 76/207/EEC. Section 16 of the Act reads:-
"Nothing in this act shall make it unlawful for an employer to
arrange for or provide special treatment to women in
connection with pregnancy or childbirth".
The corresponding provision in the Directive is Article 2(3) which
states:-
"This Directive shall be without prejudice to provisions
concerning the protection of women, particularly as regards
pregnancy and maternity.
Consistent with its submission that the purpose of the 1977 Act
was to give effect to the Directive, the Company argues that it is
appropriate to consider relevant interpretations of the Directive
by the European Court of Justice as these interpretations
establish the intent of the Directive with which the Act should be
ad idem. The Company quotes two cases which they claim clearly
establish the intent of the Directive in respect of special leave
for women and confirm that the Company was not in breach of the
Directive. These cases are Hofmann v Barmer Ersatzkasse (Case No.
184/83) and Commission of the European Communities v Italian
Republic (Case 163/82).
For its part the Union argues that Section 16 of the 1977 Act is
quite clear and specific and is an exception to the general
principle of equal treatment and as such must be construed
strictly. In the circumstances the Union submits that there is no
need to rely on Article 2(3) to clarify Section 16 - the latter
being more specific and narrow in scope.
The Equality Officer, in his recommendation, considered that
Section 16 provided a more limited derogation from the principle
of equal treatment than is permitted by Article 2(3) but
considered that this was not contrary to the provisions of the
Directive. In the circumstances he held that the Company could
not rely on the Directive to extend the meaning of section 16.
The Court is satisfied that the 1977 Act, including Section 16
thereof, was introduced to give effect to Directive 76/207/EEC,
including Article 2(3) of the Directive. Article 2(3) of the
Directive allows for different treatment of women, particularly if
such treatment is connected with pregnancy and maternity.
Provisions for the protection of women in relation to pregnancy
and maternity are incorporated in the Maternity Protection of
Employees Act 1981. This Act allows an employee to take up to 14
weeks paid maternity leave, with the stipulation that she must
take at least 4 of those weeks before the end of the week in which
the baby is due and four weeks after that week. The remaining
period of six weeks can be taken either before or after the birth.
It seems clear that, since the employee is obliged to take four
weeks of her maternity leave immediately after the birth, that
stipulation in the Act is directly related to the physical
condition of the mother in the immediate post-birth period. But
the same argument cannot be made in respect of the further six
weeks maternity leave available when, at the option of the mother,
it is taken after the birth. The Court considers that the six
weeks optional leave within the statutory period of 14 weeks when
taken after the birth is related to the broader aspects of
maternity such as the bonding process between mother and child.
As the Court believes that the provisions of the 1981 Act are in
harmony with Section 16 of the 1977 Act, it considers that the
latter section, where it refers to "childbirth", can properly be
interpreted in a broad rather than a restrictive sense.
The Court also looks to the wording in the Directive when
interpreting section 16 of the 1977 Act, and favours an
interpretation in keeping with the Directive. The Court therefore
concludes as stated in the preceding paragraph, that 'childbirth'
in section 16 is not restricted to the actual childbirth but
includes such broader aspects as the bonding process between
mother and child; it follows that the permissable protection
allowed by Section 16 must apply to the mother who has the
maternal task of caring for the child even if the mother is an
adoptive rather than a natural mother.
If one adopts that wider meaning of 'childbirth', which the Court
does, then the favoured treatment by the company of an adopting
mother is justified as in the case of Commission v. Italian
Republic (Case 163/82).
In that case, the Commission alleged (inter-alia) that the
provision in Italian Law for compulsory leave for a mother who
adopts a child while not affording the adoptive father a similar
right amounted to discrimination in working conditions within the
meaning of the Directive. However, the European Court held that
the distinction was justified "by the legitimate concern to
assimilate as far as possible the conditions of entry of the child
into the adoptive family to those of the arrival of a newborn
child in the family during the very delicate initial period". The
judgement concluded "In those circumstances the difference in
treatment criticised by the Commission cannot be regarded as
discrimination within the meaning of the Directive."
This judgement established common ground between the position of a
natural mother in the period after childbirth and that of an
adoptive mother in the period after adopting a child. This common
position permitted the granting of special leave to each mother
without requiring that such leave should be afforded to either a
natural or an adoptive father.
This judgement clearly established that special leave granted to
adoptive mothers but denied to adoptive fathers was not in breach
of the Directive. In making its determination the Court relies on
this judgement as an authoritative interpretation of the
Directive.
In the case of Hofmann v Barmer Ersatzkasse (Case No. 184/83), the
European Court of Justice held that it was not a breach of the
Equal Treatment Directive for an employed father to be denied paid
paternity leave by the State after the birth of his child even
though an employed mother was entitled to such leave. The
European Court added that it recognised the legitimacy of the
protection of the special relationship between the woman and her
child during the period which follows pregnancy and delivery by
making sure this relationship is not disturbed by any duties
resulting from the simultaneous pursuit of employment.
The European Court's views in the Hofmann case on the legitimacy
of protecting the special relationship between a woman and her
child are in complete conformity with its views on leave for
adoptive mothers in the case of the Commission v Italian Republic
(Case 163/82).
Since the 1977 Act, including Section 16, was introduced to give
effect to Directive 76/207/EEC, the Court considers that Section
16 should be interpreted in accordance with the European Court
judgement in the case of the Commission v Italian Republic. The
Court is further satisfied that this interpretation is not in
conflict with the actual wording of Section 16. Accordingly, the
Court does not consider that the Company was in breach of the 1977
Act in granting special leave to adoptive mothers while denying a
similar provision to adoptive fathers.
In view of the grounds for its determination set out above, the
Court does not deem it necessary to deal with the other grounds of
appeal put forward by the Company.
~
Signed on behalf of the Labour Court
Kevin Heffernan
__________________________
10th April, 1990. Chairman
D.H./J.C.