Labour Court Database __________________________________________________________________________________ File Number: AEP925 Case Number: DEP932 Section / Act: S8(1)AD Parties: PACKARD ELECTRIC LIMITED - and - 38 FEMALE EMPLOYEES;THE SERVICES INDUSTRIAL;PROFESSIONAL TECHNICAL UNION AND THE;AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Appeal by Service Industrial Professional Technical Union (S.I.P.T.U.) and the Amalgamated Transport and General Workers Union (A.T.G.W.U.) against Equality Officer's Recommendation E.P. 3/1992 concerning a claim by 38 female employees that they were discriminated against on the basis of their sex contrary to the provision of the Anti-Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977, in the calculation of voluntary ex-gratia redundancy benefits.
Recommendation:
5. While the claimants were all in full-time employment at the
time of the redundancies, they had all been for some years during
their service with the company on the Twilight Shift. That shift
operated on 20 hours per week, as opposed to 39 hours for
full-time workers, and most of the workers on the Twilight Shift
were female.
In calculating the statutory redundancy, the company had not made
any distinction between years of full-time and years of part-time
service. It had used the full-time rate of pay multiplied by the
total years service in calculating the amount due. However, in
calculating the ex-gratia payment, the company had equated two
years part-time service with one years full-time service. It was
claimed that this system of calculation discriminated against
those who had worked part-time for part of their service, and that
these workers, being mostly women, the discrimination was
unlawful.
In his Recommendation, the Equality Officer had concluded that if
the company had calculated all the ex-gratia payments on the basis
of years of service at the full-time rate of pay, the result would
have been a more favourable payment to those workers who had mixed
part-time and full-time work. This, he considered, would be a
manifestly inappropriate result. He was satisfied that the
methods of calculation did not discriminate against the claimants.
The S.I.P.T.U. and the A.T.G.W.U. on behalf of the claimants
argued that it was the rate of pay at the time of the redundancies
which were relevant, and that no reduction should have been made
in relation to the workers' years on the Twilight Shift.
The company, on the other hand, argued that while the terms of the
Redundancy Payments Acts provide for payments on the basis of the
product of the normal weekly remuneration on the date of dismissal
and the number of years of continuous employment, there is no
obligation on the company to calculate an ex gratia severance
payment in the same manner. The company did make a distinction
between those workers who had worked full-time and those who had
worked part-time for part of their service but it claimed that
this distinction did not discriminate indirectly on the basis of
sex, and that even if did, such discrimination was justified under
the rule in Bilka-Kaufaus GmBH v. Weber Von Hertz.
It seems to the Court that the relevant consideration in this case
is whether the claimants received the same rate of remuneration as
the male workers in respect of the ex-gratia redundancy payments.
If they were not paid the same rate, the question would arise as
to whether the different rate was paid on grounds other than sex.
The company had calculated the amounts due by counting each two
years of service on the Twilight Shift as one year. Twilight
Shift workers had worked 20 hours per week, while full-time
workers had worked 39 hours per week. The end result of the
company's calculation was to give those who had worked some years
on the Twilight Shift in general terms the same basis for
calculating the remuneration to be paid as those who had worked
all their service on a full-time basis. There was a small anomaly
in the calculation, in that the workers who had spent time on the
Twilight Shift had worked slightly more than half of the full-time
hours. However, the Court takes the view that the difference in
the rate of remuneration caused by this slight difference in the
working hours was justified on grounds other than the sex of the
workers concerned. This was an ex-gratia payment, calculated in
overall figures, and offered to workers to accept on a voluntary
basis, or to reject. No worker was obliged to accept the package.
The lesser payments to the workers who had worked on the Twilight
Shift was based on less hours of service, the principle of which
had been specifically recognised in a Labour Agreement between the
unions and the company which allowed for 'a system of pro-rata
service operating for Twilight Shift employees in respect of
redundancy', without offending the principle of equality. The
overall result of the package gave equal remuneration for equal
amounts of service, and was applied even-handedly, including to
one male worker with mixed service who was paid on the same basis
as the claimants.
The Court determines that the appeal fails.
Division: MrMcGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
AEP925 DETERMINATION NO. DEP293
ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)(A)
PARTIES: PACKARD ELECTRIC LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
38 FEMALE EMPLOYEES
(REPRESENTED BY THE SERVICES INDUSTRIAL
PROFESSIONAL TECHNICAL UNION AND THE
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION)
SUBJECT:
1. Appeal by Service Industrial Professional Technical Union
(S.I.P.T.U.) and the Amalgamated Transport and General Workers
Union (A.T.G.W.U.) against Equality Officer's Recommendation E.P.
3/1992 concerning a claim by 38 female employees that they were
discriminated against on the basis of their sex contrary to the
provision of the Anti-Discrimination (Pay) Act, 1974 and the
Employment Equality Act, 1977, in the calculation of voluntary
ex-gratia redundancy benefits.
BACKGROUND:
2. The background to this case is set out in the Equality
Officer's Recommendation which is Appendix A to this
Determination. The Equality Officer in his Recommendation which
was issued on 27th May, 1992 found that the claimants were not
discriminated against under the Anti-Discrimination (Pay) Act,
1974 in relation to the payment of the ex-gratia redundancy
payment and that the dispute was excluded from the application of
the Employment Equality Act, 1977 by the provisions of Section
3(1) of that Act as it relates to remuneration.
3. S.I.P.T.U./A.T.G.W.U. appealed the Recommendation to the
Labour Court on the 24th June, 1992 on the following grounds:
(1) the Equality Officer erred in law in his interpretation
of the Anti-Discrimination (Pay) Act, 1974 Section 2(1),
(2) the Equality Officer erred in his assessment of the
method of calculation of redundancy payments for the
Twilight Shift Workers,
(3) such other grounds of appeal as may arise in the course
of the hearing of the Unions' appeal.
The Court heard the appeal on the 15th October, 1992 at the Labour
Court premises in Dublin.
UNION'S ARGUMENTS;
3 1. The Union's arguments are set out in a written submission
to the Court at Appendix B.
COMPANY'S ARGUMENTS:
4 1. The Company's arguments are set out in a written
submission to the Court at Appendix C.
DETERMINATION:
5. While the claimants were all in full-time employment at the
time of the redundancies, they had all been for some years during
their service with the company on the Twilight Shift. That shift
operated on 20 hours per week, as opposed to 39 hours for
full-time workers, and most of the workers on the Twilight Shift
were female.
In calculating the statutory redundancy, the company had not made
any distinction between years of full-time and years of part-time
service. It had used the full-time rate of pay multiplied by the
total years service in calculating the amount due. However, in
calculating the ex-gratia payment, the company had equated two
years part-time service with one years full-time service. It was
claimed that this system of calculation discriminated against
those who had worked part-time for part of their service, and that
these workers, being mostly women, the discrimination was
unlawful.
In his Recommendation, the Equality Officer had concluded that if
the company had calculated all the ex-gratia payments on the basis
of years of service at the full-time rate of pay, the result would
have been a more favourable payment to those workers who had mixed
part-time and full-time work. This, he considered, would be a
manifestly inappropriate result. He was satisfied that the
methods of calculation did not discriminate against the claimants.
The S.I.P.T.U. and the A.T.G.W.U. on behalf of the claimants
argued that it was the rate of pay at the time of the redundancies
which were relevant, and that no reduction should have been made
in relation to the workers' years on the Twilight Shift.
The company, on the other hand, argued that while the terms of the
Redundancy Payments Acts provide for payments on the basis of the
product of the normal weekly remuneration on the date of dismissal
and the number of years of continuous employment, there is no
obligation on the company to calculate an ex gratia severance
payment in the same manner. The company did make a distinction
between those workers who had worked full-time and those who had
worked part-time for part of their service but it claimed that
this distinction did not discriminate indirectly on the basis of
sex, and that even if did, such discrimination was justified under
the rule in Bilka-Kaufaus GmBH v. Weber Von Hertz.
It seems to the Court that the relevant consideration in this case
is whether the claimants received the same rate of remuneration as
the male workers in respect of the ex-gratia redundancy payments.
If they were not paid the same rate, the question would arise as
to whether the different rate was paid on grounds other than sex.
The company had calculated the amounts due by counting each two
years of service on the Twilight Shift as one year. Twilight
Shift workers had worked 20 hours per week, while full-time
workers had worked 39 hours per week. The end result of the
company's calculation was to give those who had worked some years
on the Twilight Shift in general terms the same basis for
calculating the remuneration to be paid as those who had worked
all their service on a full-time basis. There was a small anomaly
in the calculation, in that the workers who had spent time on the
Twilight Shift had worked slightly more than half of the full-time
hours. However, the Court takes the view that the difference in
the rate of remuneration caused by this slight difference in the
working hours was justified on grounds other than the sex of the
workers concerned. This was an ex-gratia payment, calculated in
overall figures, and offered to workers to accept on a voluntary
basis, or to reject. No worker was obliged to accept the package.
The lesser payments to the workers who had worked on the Twilight
Shift was based on less hours of service, the principle of which
had been specifically recognised in a Labour Agreement between the
unions and the company which allowed for 'a system of pro-rata
service operating for Twilight Shift employees in respect of
redundancy', without offending the principle of equality. The
overall result of the package gave equal remuneration for equal
amounts of service, and was applied even-handedly, including to
one male worker with mixed service who was paid on the same basis
as the claimants.
The Court determines that the appeal fails.
~
Signed on behalf of the Labour Court
Tom McGrath
____________________________________
8th April, 1993. Deputy Chairman
F.B./J.C.