Labour Court Database __________________________________________________________________________________ File Number: AEE902 Case Number: DEE911 Section / Act: S21EE Parties: BAILEY GIBSON LIMITED - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY |
Appeal by a Company against an Equality Officer's Recommendation and an appeal by a worker against the Recommendation or alternatively that the Recommendation be implemented.
Recommendation:
This determination is in the "doc" only.
Division: MrMcGrath Mr Keogh Mr Devine
Text of Document__________________________________________________________________
AEE902 DETERMINATION NO. DEE191
EMPLOYMENT EQUALITY ACT, 1977
DETERMINATION NO. 1 OF 1991
PARTIES: BAILEY GIBSON LIMITED
(Represented by the Federation of Irish Employers)
IRISH PRINT UNION
and
A WORKER
(Represented by the Employment Equality Agency)
SUBJECT:
1. Appeal by a Company against an Equality Officer's
Recommendation and an appeal by a worker against the
Recommendation or alternatively that the Recommendation be
implemented.
BACKGROUND:
2. Ms. B. Nathan (hereinafter referred to as 'the worker') has
been employed by Bailey Gibson Limited (hereinafter referred to as
'the Company') for approximately twenty years, and for about ten
of these has been an assistant to the operator on the carton
folder/gluer machine. In January, 1988 the man operating this
machine retired and the worker applied for the position. The
Company has an agreement with the Irish Print Union (hereinafter
referred to as 'the I.P.U.') that an operator of a carton
folder/gluer machine must be a member of the I.P.U. On 29th
April, 1988 the Company wrote to the Union requesting it to
consider the training of the worker concerned for the post. On
13th May, 1988 the Union wrote to the Company stating that the
normal practice must apply, i.e. that the vacancy must be
advertised and the Union would have to be satisfied that there
were no suitable I.P.U. applicants available before it would
consider the Company's request. On 12th May, 1988 the Company
advertised the vacancy and subsequently interviewed a number of
candidates, all of whom were male and members of the I.P.U.
However, both the first and second preferences rejected the
Company's job offer. On 28th June, 1988 the Company wrote to the
Union stating that it would again like to propose training the
worker concerned here for the position. The Union requested the
Company to interview unemployed I.P.U. members with a view to
retraining one of these for the position. Seven male unemployed
I.P.U. members were interviewed and on 1st September, 1988 the
vacancy of carton folder/gluer operator was filled by one of them.
The worker concerned in this complaint was of the opinion that
both the Company and the Union had discriminated against her. On
28th February, 1989 the Employment Equality Agency on behalf of
the worker referred her complaint to the Labour Court under
Section 19 of the Act. The Court referred the case to an
Equality Officer for investigation and recommendation. The
Equality Officer's Recommendation (EE1/1990) issued on 6th
February, 1990 (see Appendix 1). She found that the Company had
indirectly discriminated against the worker in terms of section
2(c) of the Employment Equality Act, 1977, and recommended that
the Company pay the worker #700 in respect of distress and injury
to feelings.
3. In its appeal, the Company argued that no proper reference had
been made under section 2(c) of the Act, and furthermore that the
dispute (if any) was between the I.P.U. and the worker, the
Company having done everything within its power to obtain an
I.P.U. card for the worker. The Company also objected to the
statistical evidence used by the Equality Officer, and argued that
the rules about employing an I.P.U. member applied to both male
and female workers. The Company finally objected to the redress
given by the Equality Officer, claiming that there was no
provision in the Act for the granting of compensation for injury
to feelings.
4. The worker, in her appeal was essentially dissatisfied with
the Recommendation of monetary compensation, and claimed that the
proper remedy for the discrimination found by the Equality Officer
was to appoint her to the position she had sought in the Company,
or that she be compensated for the loss of earnings which resulted
from the failure to appoint her.
5. Before proceeding with the appeals, the Court decided that
since the I.P.U. was directly involved in the case, it would be
preferable if it were represented at the appeals, although the
Equality Officer had made no finding in this particular case
against the Union. The I.P.U. indicated its wish to be
represented before the Court at the hearing of the appeals. The
Union argued that the requirement that the holder of the job be an
I.P.U. member was an essential requirement because it was based on
a collective agreement in a very structured industry. But it also
argued that the requirement did not in any event operate to
discriminate against the worker. The distinction is between
members and non-members in relation to employment opportunities,
not the sex of those members or non-members. The Union also
objected to the comparison pool chosen by the Equality Officer.
6. The Court heard the appeals and the I.P.U. submission on 8th
November, 1990. The written submissions made to the Court at the
hearing are attached as appendices 2, 3 and 4.
THIS IS THE DETERMINATION
7. Having considered the oral and the written submissions made by
the parties and the Recommendation of the Equality Officer, the
Court holds that there was a reference by the worker under
sections 2 and 3 of the Employment Equality Act, which was enough
to include a claim under section 2(c) of the Act. However, the
Court finds that there was not indirect discrimination against the
worker in the terms of section 2(c) or in contravention of section
3 of the Act.
The Court bases its determination on the following grounds:
1. In the Irish printing industry, craft workers were organised
in specific unions, including the Irish Print Union, while
non-craft employees were in general organised on a gender basis -
with male non-craft employees organised by the I.T.G.W.U., and
female non-craft employees organised by the Irish Women Workers
Branch of the F.W.U.I. Membership of the I.P.U. was not based on
gender. The I.P.U. grants membership to non-craft workers in
particular circumstances, and when it does so, membership is
granted irrespective of the sex of the employee. However, its
first objective is to keep its existing members in employment, be
they male or female.
2. In pursuance of that objective, the I.P.U. had an agreement
with the Company that certain procedures be observed in relation
to recruitment. The Equality Officer was satisfied that the
policy of recruitment resulted in the same difficulties for
applicants, whether the candidate for employment was male or
female - the Company could only recruit independently with a
guarantee of a membership card for the proposed employee if the
agreed procedures had first been implemented to the satisfaction
of the I.P.U..
3. The fact of the matter is that there are many more male
members of the I.P.U. than there are female members. This is
because, historically, the craft area of the printing industry
attracted more men, and it is only in recent years that women have
entered this employment area. Therefore, if the Company could
only recruit someone with a Union card, inevitably the pool of
people who could comply with the requirement to have a Union card
was going to contain more men than women.
4. The Equality Officer has pointed out in her Recommendation
that currently in excess of 80% of I.P.U. membership is male. (In
this context the Court notes the I.P.U. at the hearing of the
appeal indicated that 82% of its membership is male and 18% is
female). The Equality Officer was satisfied that it was therefore
reasonable to conclude that the reason females were substantially
more affected by the requirement to have a card than males was
related to an attribute of their sex. The Court does not agree
with the logic of this argument. We take the view that the worker
first had to show that there was a causal link between the
requirement to have a Union card and her sex. Only then would it
become relevant whether the proportion of men able to comply with
the requirement was substantially higher. But what was this
'attribute' of her sex? In North Western Health Board V. Martyn
(High Court 1984, Supreme Court 1987) an age requirement was the
relevant attribute. But this Court finds that there are no
conditions for membership of the I.P.U. or for apprenticeship in
the industry which are more onerous on women than on men. It is a
fact that more men than women have I.P.U. cards, but this is
simply because historically males occupied the craft positions in
the Irish printing industry. The requirement for certain
employees to hold an I.P.U. card was agreed between the Union and
the Company. But that requirement which was craft based and which
was imposed on the worker by the Company bore no relationship to
the sex of the worker. It was imposed in circumstances in which,
had the agreed procedures not resulted in the recruitment of an
I.P.U. member (male or female), it was a matter of indifference to
the Union whether a male or a female was recruited for the job -
the person would automatically have been given Union membership,
and the training necessary to carry out the work concerned (in
other words, craft status would have been conferred without the
need for a formal apprenticeship being entered into).
5. We find, in effect, that the disproportionate impact of the
requirement on women is not causally linked with sex, but is
historic. It was not because she was a woman that the worker
could not become a member of the Union; it was because she was a
non-craft worker in a non-craft Union, and because there were
existing I.P.U. members available for employment. In Revenue
Commissioners v. Kelly (EE 9/1987), the requirement imposed on
applicants for a job was that they hold a full driving licence.
In that case the Equality Officer was unable to establish any
attribute of their sex which would result in a lower proportion of
females than males being able to comply with the requirement. In
this case, the requirement was to hold a Union card. But unless
the Union was discriminating between men and women in those to
whom they gave cards, and only gave them to men, or imposed
conditions which made it more difficult for women to obtain them,
the worker could not claim that the requirement to have a card
discriminated against her. Historical circumstances which have
resulted in more men than women in a craft industry do not lead to
the conclusion that the small number of women in the industry now
is an attribute of their sex.
6. In the light of its findings at paragraphs 4 and 5 above that
the requirement imposed on the worker was not causally related to
the sex of the worker, the other matters raised by the appeals and
by the I.P.U. submission are irrelevant.
DETERMINATION:
This determination is in the "doc" only.
~
Signed on behalf of the Labour Court
Tom McGrath
______________________
8th April, 1991. Deputy Chairman
U.M./J.C.
APPENDICES
CONTENTS
1. Appendix 1 - Equality Officer's Conclusions
and Recommendation
2. Appendix 2 - Company's submission
3. Appendix 3 - Worker's submission
4. Appendix 4 - Union's submission