Labour Court Database __________________________________________________________________________________ File Number: AEE901 Case Number: DEE912 Section / Act: S21EE Parties: BONNYBROOK UNEMPLOYMENT ACTION GROUP - and - MS DOREEN VAVASOUR;;THE EMPLOYMENT EQUALITY AGENCY |
Appeal by the Employment Equality Agency, on behalf of Ms Doreen Vavasour, against Equality Officer's Recommendation No. EE11/1989 concerning an allegation that, in being denied access to employment under the Social Employment Scheme, Ms Vavasour suffered discrimination in terms of Section 2(c) of the Act and that the discrimination contravened Sections 3, 7 and 9 of the Act.
Recommendation:
9. This appeal was made to the Court against the recommendation
of the Equality Officer Ref. No. EE11/1989.
This recommendation states:-
"In view of my conclusion that the eligibility criteria of
the Social Employment Scheme do not constitute
discrimination in terms of section 2(c) of the Act, I find
as follows:-
(i) In being obliged to comply with the eligibility
criteria of the Scheme Ms. Vavasour did not suffer
discrimination in terms of Section 2(c) of the Act.
(ii) Bonnybrook Unemployment Action Group did not
discriminate against Ms. Vavasour contrary to Section 3
of the Act by refusing her access to employment under
the Scheme because she could not comply with the
eligibility criteria.
(iii) Neither FAS nor the Minister for Labour contravened
section 7 of the Act.
(iv) Neither FAS nor the Minister for Labour procured or
attempted to procure discrimination contrary to Section
9 of the Act."
The appeal falls to be determined under Section 2(c) 3, 7 and 9 of
the Act of 1977.
The Court in the first instance considered Section 2(c) of the Act
which deal with indirect discrimination and states "where because
of his sex or marital status a person is obliged to comply with a
requirement, relating to employment or membership of a body
referred to in Section 5 which is not an essential requirement for
such employment or membership and in respect of which the
proportion of persons of the other sex or (as the case may be) of
a different marital status but of the same sex able to comply is
substantially higher".
Having regard to the judgement of Mr Justice Barron on an appeal
to the High Court from a Labour Court Determination in the case of
Martyn/North Western Health Board (Ref. DEE1/1982) the Court
considers that there are four questions to be addressed in order
to determine whether or not discrimination has occurred within the
meaning of Section 2(c). They are as follows:-
(i) What is the requirement with which the claimant was
obliged to comply.
(ii) Was that requirement such that a higher proportion of
males than of females could comply with it.
(iii) If the answer to (ii) ante is positive was the fact
that females were substantially more affected by the
requirement than males a result of an attribute of
their sex.
(iv) If the answer to (iii) ante is positive is the
requirement an essential one.
The Court notes that the Equality officer followed this procedure.
The Requirements:
The qualifying criteria, operative at the time of the alleged
discrimination were:-
(a) That a person be over 25 years of age.
(b) Be registered as unemployed for at least 12 months.
(c) Be in receipt of either Unemployment Benefit,
Unemployment Assistance, or a combination of both for
at least 12 months.
In operating within the above criteria, FAS and the Department of
Labour contend that no element of discrimination existed, and that
their purpose was to realise an objective set by the passing of
legislation, i.e. relief for long term unemployed over the age of
25 years. The appellant on the other hand maintains that the
criteria as such are discriminatory, in that having regard to the
manner in which Unemployment Assistance is calculated, a married
woman is more likely than a person of any other category to be
excluded from participation in the Scheme. The Court noted that
while eligibility contained four elements i.e. age, length of
unemployment, receipt of unemployment benefit, or receipt of
unemployment assistance, the main grievance in the case put
forward by the appellant was in relation to the criteria used in
deciding entitlement to Unemployment Assistance.
Division: Ms Owens Mr Keogh Mr Walsh
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