Labour Court Database __________________________________________________________________________________ File Number: AEP924 Case Number: DEE9215 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. EE4/1992 and Appeal by the Union for implementation of Equality Officer's recommendation No. EE4/1992. 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 McHenry Mr Walsh
Text of Document__________________________________________________________________
AEP924 DETERMINATION NO. DEE1592
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. EE4/1992
and
Appeal by the Union for implementation of Equality Officer's
recommendation No. EE4/1992.
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 wrongly interprets the
facts of the case.
(ii) That he wrongly faults the Department for failing
to give guidelines and in not supplying statements
defining the adequacy of medical evidence required,
or explaining why re-certification was not
accepted.
(iii) 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 6th 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
EE4/92 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.
In examining in detail the evidence the Court established that:-
(a) In the period from 1984 to 1990 58 days absences were
recorded.
(b) 34 of those days were in the period when the claimant was
pregnant (there was no dispute on this point).
3.
(c) The certificates submitted indicated the nature of the
complaint, and with one exception, did not specifically
mention pregnancy.
(d) The one exception was for a period of 1 week and clearly
stated that the illness was pregnancy related.
If the period referred to at (d) above was discounted, the
claimant would have been eligible to compete.
As the relevant illness was related to pregnancy and as pregnancy
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.
In view of its finding as set out above, the Court does not
consider it necessary to address the other points put forward by
the Department giving reasons why it excluded the claimant from
the competition in question.
The Department also appealed against the amount of compensation
recommended by the Equality Officer.
4.
In view of the efforts made by the claimant to satisfy the
Department that most of her illnesses were pregnancy related, and
in particular in view of her reasonable requests to present her
case personally to the C.M.O. and subsequently to a Board of three
specialists, which were denied, 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 EE4/92 be
implemented.
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
____________________
22nd December, 1992. Deputy Chairman.
M.K./J.C.
A P P E N D I X A
A P P E N D I X B
A P P E N D I X C
A P P E N D I C E S
APPENDIX A : Equality Officer's Recommendation No. EE4/1992.
APPENDIX B : Employer's arguments.
APPENDIX C : Union's/Worker's arguments.