Labour Court Database __________________________________________________________________________________ File Number: EED9012 Case Number: EEO911 Section / Act: S27EE Parties: INTERNATIONAL CONTRACT CLEANERS LIMITED - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY |
Claim by the Agency concerning the alleged unfair dismissal of a worker contrary to Sections 3 and 9 of the Employment Equality Act, 1977, in terms of Section 2 of that Act.
Recommendation:
6. The Court has investigated this case and considered all of the
facts put forward by the parties.
It is not disputed that the complainant was removed from the
A.I.B. site as a consequence of failing a security test. However,
the Court did not find any evidence that the complainant was
dismissed. It is not unusual, as was pointed out by the Company,
for employees in the Industry to be transferred to other sites.
In this case the Court finds that the Company (I.C.C.), having
removed the complainant from the A.I.B. site, offered her a job in
the same district at the same terms and conditions.
The complainant did not respond to this offer, and it was only as
a consequence of receiving no response that I.C.C. after a period
of time forwarded to her the P.45. In the circumstances the Court
finds that the employee was not dismissed by the Company.
As previously stated it is not disputed that the complainant was
removed from the A.I.B. site as a consequence of failing a
security test. It was alleged by the complainant that she failed
the test for reasons relating to her husband. In support of this
contention the complainant referred to comments which she alleged
were made by the Secretary of the Custom House Docks Development
Authority to the effect that the complainant's husband was the
reason for her failing the security test.
The Company contended that the complainant was made aware at
interview that she would be subject to a security check. It was
further contended that she gave two RSI numbers, one at interview
and one at a later date and that this action was sufficient to
effect the transfer of the complainant to another site.
Having considered the evidence, the Court finds that there was no
evidence to sustain the allegation that I.C.C. was in possession
of any information regarding the complainant's husband. The
complainant herself stated that the Secretary of the Custom House
Docks Development Authority had been unable to discuss the case
with I.C.C. In that event, the view which he had expressed could
not have been that of I.C.C. At the same time, given the
stringent security requirements of the client, the presentation of
two RSI numbers by the complainant would appear to the Court to be
a reasonable reason for I.C.C. to remove her from the A.I.B. site.
Accordingly, the Court is not satisfied that the complaint is
well-founded. It concludes that the complainant was not treated
less favourably on the grounds of marital status, that she was not
obliged to comply with a requirement in the circumstances which
amounted to discrimination, and that the employer did not
discriminate against her. The Court further concludes that A.I.B.
Bank did not procure or attempt to procure the employer to
discriminate.
Division: MrMcGrath Mr Brennan Mr Devine
Text of Document__________________________________________________________________
EED9012 EEO191
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27, INDUSTRIAL RELATIONS ACT 1946
PARTIES: INTERNATIONAL CONTRACT CLEANERS LIMITED
(REPRESENTED BY DR. MARY REDMOND, SOLICITOR)
A.I.B. BANK
and
A WORKER
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Claim by the Agency concerning the alleged unfair dismissal of
a worker contrary to Sections 3 and 9 of the Employment Equality
Act, 1977, in terms of Section 2 of that Act.
BACKGROUND:
2. On the 6th of November, 1990, the Employment Equality Agency
(E.E.A.) referred a dispute to the Labour Court concerning an
alleged discriminatory act against a female contract cleaner. The
worker concerned was employed by International Contract Cleaners
Limited (I.C.C.) on 19th April, 1990, and was stationed at the
A.I.B. Financial Services Centre. The E.E.A. alleges that on 7th
May, 1990, A.I.B. Bank procured I.C.C. to dismiss the worker on
grounds that she failed to satisfy a security check. The E.E.A.
contends that the dismissal contravened the Employment Equality
Act, 1977. The claim is refuted by both I.C.C. and A.I.B. Bank.
The Labour Court investigated the dispute on 9th May, 1991.
E.E.A.'S ARGUMENTS:
3. 1. The worker concerned was informed on 7th May, 1990, by her
supervisor, that she had not passed the security check and
thus could not continue working. On 8th May, 1991, the
Contracts Manager of I.C.C. informed the worker that she 'did
not meet all the security requirements of our clients.' The
Contracts Manager was unable to inform her why she had failed
the security check.
2. The worker believes that there is no legitimate reason why
she should fail a security check. She did her work well and
has a good work record. She had previously worked for another
contract cleaning Company, which she left because of her
pregnancy at the time.
3. The worker had a meeting with the Secretary of the Customs
House Development Authority on 1st June, 1990. Comments made
at this meeting led the worker to believe that she had failed
the security check because of her husband's involvement with
the Gardai in the past. This was the first time her husband
was mentioned in connection with her dismissal.
4. The E.E.A. contends that the worker's dismissal is
contrary to Section 3(4) in terms of Section 2(b) of the Act.
It alleges that married women must satisfy the relevant
security check for employment, or continued employment, with
I.C.C. in the A.I.B. Financial Services Centre, not only in
relation to themselves but in relation to their husbands. No
such burden falls on single women. It is submitted therefore
that the worker concerned, a married woman, was treated less
favourably than a single woman because of her marital status
regarding dismissal from employment. The worker was dismissed
because her husband failed to satisfy the security check.
5. No single woman is subject to the burden of having to
satisfy the security check in relation to a husband. Only
married women are subjected to such a burden. In line with
the Court's reasoning in case No. DEE4/89 (Southern Health
Board V. Anne O'Sullivan), the E.E.A. argues that since only
married women have husbands, it is self evident that no single
woman could be excluded from employment on these grounds,
whether by dismissal or otherwise. Accordingly, the worker
was treated less favourably on the grounds of her marital
status.
6. There was an implied requirement imposed on I.C.C. workers
at the A.I.B. Centre, for employment or continued employment.
This requirement adversely affected certain women. This
implied requirement was that to be eligible for
employment/continued employment an otherwise eligible woman
must satisfy a security check in respect of her husband, if
any. This requirement has an adverse impact on married women
and no impact on single women. No single woman is vulnerable
to this type of unfavourable treatment. The worker concerned
was dismissed because she could not comply with this
requirement. Her husband's past involvement with the Gardai
has no relevance to her work record or character. The
requirement has a disproportionate adverse impact on married
women. A substantially higher proportion of single women than
married women will be able to satisfy the requirement.
7. The requirement is not essential for the employment in
question, namely cleaning work at the A.I.B. Centre. An
essential requirement "is that the requirement must be such
that it is essential in relation to the employment to which it
applies." (Ref. Packard Electric V. I.T.G.W.U., A.T.G.W.U.
and E.E.A., E.E. 14/85).
8. A.I.B. Bank procured I.C.C. to discriminate against the
worker by requiring the operation of a discriminatory security
check. The security check criteria imposed by A.I.B.
discriminate on the basis of marital status and insistence on
these criteria contravened Section 9 of the Act.
9. A prima facie case has been established, taking account of
all the circumstances of the case, which is sufficient to
raise a strong inference of discrimination and to shift the
burden of proof onto the respondents. If this inference is
not answered by the respondents then it is reasonable to
conclude that discrimination probably took place. The
standard of proof is the civil standard , on 'the balance of
probabilities' rather than the criminal standard, 'beyond
reasonable doubt.' There is an evidential burden on the
respondents to provide a clear and specific explanation for
the worker's dismissal.
I.C.C.'S ARGUMENTS:
4. 1. I.C.C. tendered for the contract with the A.I.B.
Financial Services Centre expressly on the basis that
candidates are screened for security where clients deem it
necessary. It was awarded the prestigious contract where
areas to be cleaned involved high security. The worker was
informed at her interview that employment was subject to a
security check. Screening for security, where appropriate,
applies to all cleaners, male and female, married and single.
It extends, and necessarily so, to being alert for security
risks by association. The expression "Security" is wide
ranging and a security check is not met if, for example, the
I.C.C. is put on enquiry about someone.
2. I.C.C. was put on notice because the worker concerned
provided two different R.S.I. numbers: one at her interview
and the other about two weeks later. It raised sufficient
doubt for the Managing Director to decide to transfer the
worker concerned to another location, which under her
conditions of employment he was entitled to do. On 7th May,
1990, the worker was informed by the Contracts Manager that
the I.C.C. was unhappy with its security check and that it
would transfer her to another job with the same rates of pay
and in the same district. She was told she was not being
dismissed. The worker said she would consider the proposal
and left the I.C.C. with the impression that she would accept
the proposed job. As she failed to contact the I.C.C.
subsequently she was furnished on 17th May, 1990, with her
P45.
3. The worker concerned was not an employee for the purposes
of the Act. Under the Act an employee means a person "who has
entered into or works under ... a contract of employment with
an employer..." A claimant must have worked under a contract
of employment to substantiate a claim. In this instance the
contract cleaning worker is not employed by I.C.C. under a
contract of service, strictly speaking, but a contract sui
generis. Workers who are employed to do various jobs from
time to time by contract companies are part of a tripartite
contractual relationship. The worker is not under a contract
with the I.C.C.'s customer.
4. The premise upon which the worker's case rests is that the
involvement of her husband with the Gardai allegedly gives
rise to discrimination on the grounds of marital status. At
the material time, the Company was not in possession of any
evidence to the effect that the worker's husband has or had
any criminal record. Even if there were any substance in the
allegations and if the Company had been aware of the husband's
record, a claim of discrimination on grounds of marital status
cannot be sustained. There is no causal link between failure
to pass a security check and marriage. The former is not an
incident peculiar to the latter. Following the worker's
argument to its logical conclusion, one would be forced to say
that but for a person's marital status no question of less
favourable treatment would arise on grounds of security. That
is, only spouses commit or are convicted of crime.
A.I.B. BANK'S ARGUMENTS:
5. 1. A.I.B. Bank denies that it at any time procured the
dismissal of the worker concerned. If her dismissal arose by
reason of any factor connected with the Bank, it was not by
reason of her marital status and accordingly was not contrary
to the Act.
2. The Bank contends that the case before the Court is out of
time and should accordingly be dismissed. The E.E.A.
delivered to the Labour Court a form of reference of the
dispute on 6th November, 1990. In accordance with Section
19(5) of the Act, this is the last day on which a claim could
be lodged. However, the first reference of this complaint to
the Bank was by way of a letter dated 8th November, 1990, a
date beyond the statutory time limit. A reference under
Section 19 and accordingly a reference under Section 20
requires as a pre-condition the existence of a dispute. A
dispute can clearly only arise where there has been a
complaint or allegation which has been denied or refuted. A
dispute does not arise merely because there is a complaint.
The person of whom the complaint is made must be given the
opportunity to consider that complaint and refuse to deal with
it before a dispute exists. In this instance no dispute
existed prior to 8th November, 1990, and therefore the strict
time limit had expired.
3. The Bank states categorically that it had no particular
knowledge of the worker's suitability or otherwise. In this
respect, the Bank by letters dated 31st January, 1991, to the
Court, the E.E.A. and I.C.C. stated that it had no objection
to the worker working in its premises under a contract of
employment with I.C.C. In the circumstances of this case the
onus of proof undoubtedly lies with the worker.
4. The E.E.A. has submitted (paragraph 30) that a prima facia
case has been established and that the burden of proof now
lies with the Company. However, the Supreme Court has stated
that "the burden of proving the facts necessary to establish
discrimination lies upon the person alleging it." (Ref. North
Western Health Board V. Catherine Martyn (1988) ILRM 519).
The case advanced by the E.E.A. is one solely limited to an
argument that the burden of proof shifts. The Supreme Court
decision is clear that this burden does not shift. For all of
these reasons the Court is asked to dismiss the claim.
DECISION:
6. The Court has investigated this case and considered all of the
facts put forward by the parties.
It is not disputed that the complainant was removed from the
A.I.B. site as a consequence of failing a security test. However,
the Court did not find any evidence that the complainant was
dismissed. It is not unusual, as was pointed out by the Company,
for employees in the Industry to be transferred to other sites.
In this case the Court finds that the Company (I.C.C.), having
removed the complainant from the A.I.B. site, offered her a job in
the same district at the same terms and conditions.
The complainant did not respond to this offer, and it was only as
a consequence of receiving no response that I.C.C. after a period
of time forwarded to her the P.45. In the circumstances the Court
finds that the employee was not dismissed by the Company.
As previously stated it is not disputed that the complainant was
removed from the A.I.B. site as a consequence of failing a
security test. It was alleged by the complainant that she failed
the test for reasons relating to her husband. In support of this
contention the complainant referred to comments which she alleged
were made by the Secretary of the Custom House Docks Development
Authority to the effect that the complainant's husband was the
reason for her failing the security test.
The Company contended that the complainant was made aware at
interview that she would be subject to a security check. It was
further contended that she gave two RSI numbers, one at interview
and one at a later date and that this action was sufficient to
effect the transfer of the complainant to another site.
Having considered the evidence, the Court finds that there was no
evidence to sustain the allegation that I.C.C. was in possession
of any information regarding the complainant's husband. The
complainant herself stated that the Secretary of the Custom House
Docks Development Authority had been unable to discuss the case
with I.C.C. In that event, the view which he had expressed could
not have been that of I.C.C. At the same time, given the
stringent security requirements of the client, the presentation of
two RSI numbers by the complainant would appear to the Court to be
a reasonable reason for I.C.C. to remove her from the A.I.B. site.
Accordingly, the Court is not satisfied that the complaint is
well-founded. It concludes that the complainant was not treated
less favourably on the grounds of marital status, that she was not
obliged to comply with a requirement in the circumstances which
amounted to discrimination, and that the employer did not
discriminate against her. The Court further concludes that A.I.B.
Bank did not procure or attempt to procure the employer to
discriminate.
~
Signed on behalf of the Labour Court
Tom McGrath
_______________________
8th October, 1991 Deputy Chairman.
B.O'N./J.C.