Labour Court Database __________________________________________________________________________________ File Number: AEE903 Case Number: DEE892 Section / Act: S21EE Parties: BRAUN IRELAND LIMITED - and - SIX FEMALE EMPLOYEES;THE SERVICES INDUSTRIAL PROFESSIONAL;TECHNICAL UNION |
Appeal by the Union against Equality Officer's Recommendation No. EE4/1990 concerning an allegation by the Union that the 6 female employees concerned have been treated less favourably than male employees under the Company's job evaluation scheme.
Recommendation:
The Court in its letter to the parties of June of 1991 has
already expressed its view on a number of the issues raised by
the parties. It also detailed the three factors which it felt
relevant to the circumstances of this appeal. These were as
follows:-
(a) Did the Equality Officer err in fact when considering the
sequence of events about which the issue revolves.
The Court notes that the appellants dispute the Equality
Officer's conclusion as to the date of the first act of
discrimination. On this issue the Court considers that the
balance of probabilities strongly supports the Equality
Officer's conclusion. This is supported, if indirectly by
figures available from the Company relating to output levels of
the various goods produced at the plant which do not show any
variation which would in itself give rise to a change in work
practices as existing between 1982 and 1987.
However even if the later date is accepted the reference to the
Court took place, not in June 1988 as alleged by the appellants,
but in September of that year. The Court cannot accept that a
letter seeking ex parte advise from the Chairman of the Court
and quite properly responded to within days constitutes a
reference.
(b) On the question as to whether the Equality Officer
overlooked any pertinent issue the Court is satisfied that all
pertinent material was taken into account.
(c) Finally no new information was provided at the second
hearing which would warrant a change in the outcome of the
Equality Officer's recommendation.
The Court has one final general observation to make on this
particular case. It would seem that at certain stages the
appellants attempted to deal with the issue by direct discussion
and negotiation, an approach which the Court would not wish to
discourage. However those concerned should have had regard to
the time limitations specified in the legislation and made their
position in this respect clear. It is the view of the Court,
having regard to the long intervals involved, that the Company
was not unreasonable in believing that the matter had been
dropped particularly as other related complaints had been dealt
with to the satisfaction of all concerned. This the Court
assumes is a situation Section 19(5) of the Act of 1977 is
designed to eliminate.
In these circumstances the Court upholds the Equality Officer's
Recommendation.
Division: Mr O'Connell Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
AEE903 DETERMINATION NO. DEE892
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
PARTIES: BRAUN IRELAND LIMITED
(Represented by the Federation of Irish Employers)
and
SIX FEMALE EMPLOYEES
(REPRESENTED BY THE SERVICES INDUSTRIAL PROFESSIONAL
TECHNICAL UNION)
SUBJECT:
1. Appeal by the Union against Equality Officer's
Recommendation No. EE4/1990 concerning an allegation by the
Union that the 6 female employees concerned have been treated
less favourably than male employees under the Company's job
evaluation scheme.
BACKGROUND:
2. The background to this case is set out in the Equality
Officer's Recommendation which is attached as Appendix 1 to this
determination.
3. The Union, by letter dated 10th May, 1990, appealed the
above recommendation on the following grounds:-
1. That the Equality Officer erred in law and in fact in
his interpretation of Section 19 (5) of the Act, and in
particular failed to interpret the section in a manner
which would give effect to Council Directive 76/207/EEC.
2. That his recommendation is not consistent with the
facts put before him in relation to the "first act" of
alleged discrimination.
3. That the claimants are prevented from having their
complaint heard by the Labour Court by virtue of the fact
that they can only appeal the terms of the recommendation
as stated, and this is not in compliance with their
entitlement to have the full facts heard by the legally
constituted tribunal of a Member State.
4. That the Labour Court procedures in this case were not
consistent with the judgement of the Supreme Court, and
therefore the recommendation is legally flawed.
5. That Section 19 (B) of the Act is not in compliance
with European legislation. We make a formal complaint to
the Labour Court that the Section is in conflict with
Council Directive 76/207/EEC, and ask that the Labour Court
refer this question to the European Court for an opinion as
to whether it infringes European legislative requirements.
4. The Court first heard the appeal on 31st October, 1990.
Having received the written and oral submissions of the parties
the Court hearing was adjourned. On 20th June, 1991 the Court
issued a letter expressing its view on a number of issues raised
at the hearing by both parties which states as follows:-
"The Court has carefully considered the arguments made by
the Union in support of its appeal against the Equality
Officers Recommendation.
It is of the opinion of the Court that the Union has not
provided any arguments that would persuade it to seek an
opinion from the European Court on the standing of Section
19(5) of the E.E.A. particularly in light of the submission
made by the Employer supported as it is by reference to
cases already decided by the European Court which clearly
allow for such time limitations.
On the issue of procedures it is noted the Equality Officer
acted in accordance with the procedure assumed by the Court
at the time to be correct. Whilst since altered to comply
with the best interpretation of the rulings of the Supreme
Court on the matter, it is the view of this Court that the
change in procedure which took place after the Equality
Officer's investigation but prior to the issue of the
Recommendation, does not invalidate the Equality Officer's
findings to the extent that they should be set aside, or
overturned without going through a process of appeal.
The basis of such appeal, in the opinion of this Court, may
be
(a) did the Equality err in fact when considering the
sequence of events about which this issue revolves?
(b) did the Equality Officer over look any pertinent issue
related to the sequence of events
(c) has any further information, related to the sequence
of events of which the Equality Officer was unaware,
emerged subsequent to the issue of the Recommendation.
It is the intention of the Court now to hear submissions
under the above headings which might give the Court reason
to believe that there was reasonable cause as to why the
limit of 6 months imposed by section 19(5) should not
apply."
5. A further hearing took place on 23rd April, 1992. The
Union made a written submission which is attached at Appendix 4.
The Company did not make a written submission to the hearing.
The submissions in respect of the initial hearing of 31st
October, 1990 are attached as Appendix 2 and 3.
DETERMINATION
The Court in its letter to the parties of June of 1991 has
already expressed its view on a number of the issues raised by
the parties. It also detailed the three factors which it felt
relevant to the circumstances of this appeal. These were as
follows:-
(a) Did the Equality Officer err in fact when considering the
sequence of events about which the issue revolves?
The Court notes that the appellants dispute the Equality
Officer's conclusion as to the date of the first act of
discrimination. On this issue the Court considers that the
balance of probabilities strongly supports the Equality
Officer's conclusion. This is supported, if indirectly by
figures available from the Company relating to output levels of
the various goods produced at the plant which do not show any
variation which would in itself give rise to a change in work
practices as existing between 1982 and 1987.
However even if the later date is accepted the reference to the
Court took place, not in June 1988 as alleged by the appellants,
but in September of that year. The Court cannot accept that a
letter seeking ex parte advise from the Chairman of the Court
and quite properly responded to within days constitutes a
reference.
(b) On the question as to whether the Equality Officer
overlooked any pertinent issue the Court is satisfied that all
pertinent material was taken into account.
(c) Finally no new information was provided at the second
hearing which would warrant a change in the outcome of the
Equality Officer's recommendation.
The Court has one final general observation to make on this
particular case. It would seem that at certain stages the
appellants attempted to deal with the issue by direct discussion
and negotiation, an approach which the Court would not wish to
discourage. However those concerned should have had regard to
the time limitations specified in the legislation and made their
position in this respect clear. It is the view of the Court,
having regard to the long intervals involved, that the Company
was not unreasonable in believing that the matter had been
dropped particularly as other related complaints had been dealt
with to the satisfaction of all concerned. This the Court
assumes is a situation Section 19(5) of the Act of 1977 is
designed to eliminate.
In these circumstances the Court upholds the Equality Officer's
Recommendation.
~
Signed on behalf of the Labour Court
John O'Connell
___________________________
3rd June, 1992
A.S./N.Ni.M. Deputy Chairman
List of Appendices
1. Equality Officer's Recommendation.
2. Union's submission at hearing of 31st October, 1990.
3. Company's submission at hearing of 31st October, 1990.
4. Union's submission at hearing of 23rd April, 1992.