Labour Court Database __________________________________________________________________________________ File Number: AEE918 Case Number: DEE927 Section / Act: S21EE Parties: TELECOM EIREANN - and - 55 FEMALE DAY TELEPHONISTS AND SENIOR DAY TELEPHONISTS;THE EMPLOYMENT EQUALITY AGENCY |
An appeal by the Company against Equality Officer's Recommendation No. EE6/1991 and an appeal by the Agency for implementation of the same Equality Officer's recommendation. The dispute concerns a claim from 55 female day telephonists and senior day telephonists that Telecom Eireann discriminated against them within the meaning of Section 2(c) of the Employment Equality Act, 1977 and in contravention of Section 3 of the 1977 Act by excluding them from a 24 hour shift rota, which was introduced o
Recommendation:
3. The Court is satisfied that there are two separate and
distinct grading systems within the Telecom Eireann ITE structure,
namely that applying to day telephonists and that applying to
night telephonists.
Each of these categories of employee is recruited separately and
there are different conditions of employment for each; they are
not interchangeable.
Prior to 1977, only females were eligible for recruitment as day
telephonists and only males were eligible for recruitment as night
telephonists. Since 1977, however, each category has been open to
both men and women. Inevitably, because of sex-based recruitment
prior to 1977 and low levels of recruitment since then, there are
significantly more females who are day telephonists and
significantly more males who are night telephonists.
However, the requirement to be a night telephonist in order to
have access to the shift rota which is at issue in this case does
not amount to indirect discrimination against the preponderantly
female staff of day telephonists, because that requirement is not
related to the sex of the worker, rather it is related to the
category of employment. Only the night telephonists are
contractually employed on the basis of 24 hour liability, 7 days a
week, and it is only those telephonists who are obliged to work
the disputed shift rota with the purpose of alleviating shortages
during daytime working hours. The Court does not agree with the
conclusions of the Equality Officer that the confining of access
to the rota to the night telephonists is related to sex. The
night telephonists are an entirely separate grade of worker, with
different conditions of employment, and it is within that category
that the question of discrimination must be examined.
Not only does the Court find that there was no discrimination
within the meaning of Section 2(c) of the Act, but its finding
that the grading systems applying to the day and to the night
telephonists are separate and distinct leads it also to the
conclusion that there are material differences between the two
categories of worker, so that there was no discrimination within
the meaning of Section 3(4) of the Act. The difference is not in
the work performed, but in the circumstances under which each
category is employed. Day telephonists are recruited on the basis
that they are available for work 16 hours a day, 6 days a week.
Night telephonists must be available 24 hours a day, 7 days a
week.
The Company has argued, and the Court accepts, that the Company
sought to address the problem of staff shortages by using the 24
hour, 7 day liability to attend, of the night telephonists, to
provide the necessary cover. The Agency argued that the liability
to attend work on a 24 hour, 7 days a week, basis was never
enforced. The Court is satisfied, however, that even if the
Company never enforced the conditions of employment for which the
night telephonists were liable, those conditions were still
enforceable; they were not nullified because they were not used.
When the Company did want to enforce the working conditions of the
night telephonists, it chose to do so by way of a voluntary rota,
which from an industrial relations point of view, would seem to
the Court a sound way to manage the situation.
Accordingly, the Court allows the appeal of the Company, and holds
that there was not discrimination by Telecom Eireann against the
claimants.
The appeal by the workers is dismissed.
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
AEE918 DETERMINATION NO. DEE792
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21
PARTIES: TELECOM EIREANN
and
55 FEMALE DAY TELEPHONISTS AND SENIOR DAY TELEPHONISTS
REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY
SUBJECT:
1. An appeal by the Company against Equality Officer's
Recommendation No. EE6/1991 and an appeal by the Agency for
implementation of the same Equality Officer's recommendation. The
dispute concerns a claim from 55 female day telephonists and
senior day telephonists that Telecom Eireann discriminated against
them within the meaning of Section 2(c) of the Employment Equality
Act, 1977 and in contravention of Section 3 of the 1977 Act by
excluding them from a 24 hour shift rota, which was introduced on
12th June, 1988.
BACKGROUND:
2. 1. The background to this case is as set out in the
Equality Officer's recommendation. It is attached as Appendix
I to this determination.
2. The Company appealed the Equality Officer's
recommendation to the Court by letter dated 11th April, 1991.
The grounds for appeal are as stated in the Company's letter
which is attached as Appendix 2. The Agency gave the Court
notice of appeal on 12th April, 1991. The notice of appeal is
attached as Appendix 3.
3. The Court heard the appeals on 7th November, 1991. The
submissions of the parties are attached at Appendices 4 and 5
to this determination. The parties expanded orally on their
submissions at the hearing.
DETERMINATION:
3. The Court is satisfied that there are two separate and
distinct grading systems within the Telecom Eireann ITE structure,
namely that applying to day telephonists and that applying to
night telephonists.
Each of these categories of employee is recruited separately and
there are different conditions of employment for each; they are
not interchangeable.
Prior to 1977, only females were eligible for recruitment as day
telephonists and only males were eligible for recruitment as night
telephonists. Since 1977, however, each category has been open to
both men and women. Inevitably, because of sex-based recruitment
prior to 1977 and low levels of recruitment since then, there are
significantly more females who are day telephonists and
significantly more males who are night telephonists.
However, the requirement to be a night telephonist in order to
have access to the shift rota which is at issue in this case does
not amount to indirect discrimination against the preponderantly
female staff of day telephonists, because that requirement is not
related to the sex of the worker, rather it is related to the
category of employment. Only the night telephonists are
contractually employed on the basis of 24 hour liability, 7 days a
week, and it is only those telephonists who are obliged to work
the disputed shift rota with the purpose of alleviating shortages
during daytime working hours. The Court does not agree with the
conclusions of the Equality Officer that the confining of access
to the rota to the night telephonists is related to sex. The
night telephonists are an entirely separate grade of worker, with
different conditions of employment, and it is within that category
that the question of discrimination must be examined.
Not only does the Court find that there was no discrimination
within the meaning of Section 2(c) of the Act, but its finding
that the grading systems applying to the day and to the night
telephonists are separate and distinct leads it also to the
conclusion that there are material differences between the two
categories of worker, so that there was no discrimination within
the meaning of Section 3(4) of the Act. The difference is not in
the work performed, but in the circumstances under which each
category is employed. Day telephonists are recruited on the basis
that they are available for work 16 hours a day, 6 days a week.
Night telephonists must be available 24 hours a day, 7 days a
week.
The Company has argued, and the Court accepts, that the Company
sought to address the problem of staff shortages by using the 24
hour, 7 day liability to attend, of the night telephonists, to
provide the necessary cover. The Agency argued that the liability
to attend work on a 24 hour, 7 days a week, basis was never
enforced. The Court is satisfied, however, that even if the
Company never enforced the conditions of employment for which the
night telephonists were liable, those conditions were still
enforceable; they were not nullified because they were not used.
When the Company did want to enforce the working conditions of the
night telephonists, it chose to do so by way of a voluntary rota,
which from an industrial relations point of view, would seem to
the Court a sound way to manage the situation.
Accordingly, the Court allows the appeal of the Company, and holds
that there was not discrimination by Telecom Eireann against the
claimants.
The appeal by the workers is dismissed.
~
Signed on behalf of the Labour Court
Tom McGrath
14th May, 1992 -----------
J.F./U.S. Deputy Chairman