Labour Court Database __________________________________________________________________________________ File Number: AEP923 Case Number: DEE9214 Section / Act: S21EE Parties: DEPARTMENT OF DEFENCE - and - A WORKER;THE CIVIL AND PUBLIC SERVICE UNION |
Appeal by the Department of Defence against Equality Officer's Recommendation No. EE3/1992 and Appeal by the Union for implementation of Equality Officer's recommendation No. EE3/1992. The recommendation concerns a claim that the Department of Defence discriminated against the worker on grounds of sex within the meaning of sections 2(a) and 2(c) of the Employment Equality Act, 1977 by refusing her access to a promotional competition because of illness associated with her pregnancy.
Recommendation:
This Determination is to long for the Add Field.
Division: Ms Owens Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
AEP923 DETERMINATION NO. DEE1492
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21
PARTIES: DEPARTMENT OF DEFENCE
and
A WORKER
(REPRESENTED BY THE CIVIL AND PUBLIC SERVICE UNION)
SUBJECT:
1. Appeal by the Department of Defence against Equality Officer's
Recommendation No. EE3/1992
and
Appeal by the Union for implementation of Equality Officer's
recommendation No. EE3/1992.
The recommendation concerns a claim that the Department of Defence
discriminated against the worker on grounds of sex within the
meaning of sections 2(a) and 2(c) of the Employment Equality Act,
1977 by refusing her access to a promotional competition because
of illness associated with her pregnancy.
BACKGROUND:
2. 1. The background to the case is outlined in the Equality
Officer's recommendation and is attached at Appendix A.
2. The Department of Defence appealed against the above
recommendation on the 28th of May, 1992 on the following
grounds:
(i) That the Equality Officer's finding wrongly
interprets the facts of the case.
(ii) That his finding wrongly faults the Department for
failing to give guidelines and in not supplying
statements defining the adequacy of medical
evidence required.
(iii) That his finding wrongly faults the Department for
not explaining why it accepted re-certification in
one instance but not the other.
(iv) That the level of compensation recommended is
excessive.
2.
3. The Union appealed for the implementation of the above
recommendation on the 21st May, 1992, on the grounds that by
failing to pay the worker compensation of #1,000, the
Department of Defence has not implemented the recommendation.
EMPLOYER'S ARGUMENTS:
4. 1. The employer's arguments are as set out in Appendix B and
comprise a written submission to the Labour Court and a
written response to the Union's submission.
UNION'S ARGUMENTS:
5. 1. The Union's arguments are as set out in Appendix C and
comprise a written submission to the Labour Court and a
written response to the employer's submission.
The Labour Court investigated the dispute on the 18th November,
1992.
*DETERMINATION:
6. By letter dated 21st May, 1992 the Union, on behalf of the
claimant, lodged an appeal to the Court for a determination that
EE3/92 be implemented. By letter dated 28th May, 1992 the
Department of Defence lodged an appeal against the Equality
Officer's recommendation. (Both letters are attached).
The Court received submissions from the parties on all points
appealed. The essence of the Department's case was that it
applied the rules for eligibility to compete for promotion in the
correct manner, and that the Equality Officer erred in his
interpretation of the facts. The Union, for its part, maintained
that a number of the claimant's absences in the relevant period
were due to a pregnancy-related illness and, therefore, should
have been discounted.
The Court accepts that it is the policy and practice in the
Department to discount periods of sick-leave which are related to
pregnancy. The dispute in this case arose because the Department,
on the advice of the C.M.O., did not accept some of the certified
absences as being related to pregnancy.
3.
This problem really arose because the original certificates
submitted at the time of the absences did not relate the
claimant's complaint to pregnancy.
The question of eligibility for competing for promotion arose some
twelve months later. Two particular periods of illness were
relevant.
31/5/88 to 3/6/88 and 20/3/89 to 24/3/89.
Total 8 days.
The first period above was discounted by the Department on the
receipt of a further certificate from the claimant's doctor. The
re-certification of the second period was not accepted. Further
medical evidence from the Rotunda Hospital was also not accepted.
No more than the officials of the Department of Defence or the
Equality Officer, the Court does not wish to be in position of
assessing medical evidence. However, a certificate from a doctor
in the Rotunda Hospital of attendance as a patient for an
antenatal check and a threatened miscarriage on the days in
dispute must surely be taken into account as valid evidence that
the illness was pregnancy-related and should in accordance with
Departmental policy be discounted for the purpose of assessing
eligibility in accordance with Circular 34/76. The submission of
such a certificate did, in the Court's view, meet the claimant's
obligation of submitting adequate proof. When this was not
accepted by the C.M.O. the Court considers that the Department
should have arranged for a direct referral of the claimant to him
or allowed her request for a third party referral.
4.
The Court accordingly finds that the period of absence 20/3 to
24/3/89 was due to pregnancy-related illness and should have been
discounted. As pregnancy-related illness is exclusively a female
condition the Court is satisfied that the claimant was
discriminated against within the meaning of Section 2(a) of the
Employment Equality Act, 1977.
The Court accordingly rejects the Department's appeal.
The Department also appealed against the amount of compensation
recommended by the Equality Officer.
In view of the efforts made by the claimant to satisfy the
Department that the absence in question was due to
pregnancy-related illness and her appeal for a third party opinion
which was not considered appropriate by the Department the Court
considers the amount recommended by the Equality Officer to be
reasonable in the circumstances.
The Court accordingly also rejects the Department's appeal on this
ground.
By letter dated 21/5/1992 the C.P.S.U., on behalf of the claimant,
lodged an appeal pursuant to Section 21 of the Employment Equality
Act, 1977 for a determination that recommendation EE3/1992 be
implemented.
5.
In view of its findings above, the Court upholds this appeal and
(a) holds that there was discrimination against the claimant,
and
(b) awards the claimant #1,000 compensation.
DETERMINATION:
This Determination is to long for the Add Field.
~
Signed on behalf of the Labour Court
Evelyn Owens
__________________
21st December, 1992. Deputy Chairman.
M.K./J.C.
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