DEE935

Labour Court Database __________________________________________________________________________________ File Number: AEE9117 Case Number: DEE935 Section / Act: S21EE Parties: DEPARTMENT OF FINANCE - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY

Subject:
Appeal by the Department of Finance and the Revenue Commissioners against Equality Officer's Recommendations No. EE20/1991 and EE21/1991 and Appeal by the Employment Equality Agency for implementation of Equality Officer's Recommendations No. EE20/1991 and EE21/1991.

Recommendation:
The full text of this Determination is not available in the
Subject Field but in the Database.

Division: Mr Heffernan Mr Brennan Mr Walsh

Text of Document__________________________________________________________________

AEE9117 DETERMINATION NO. DEE593

EMPLOYMENT EQUALITY ACT, 1977
SECTION 21


PARTIES: DEPARTMENT OF FINANCE
THE REVENUE COMMISSIONERS

and

A WORKER
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)


SUBJECT:
1. Appeal by the Department of Finance and the Revenue
Commissioners against Equality Officer's Recommendations No.
EE20/1991 and EE21/1991
and

Appeal by the Employment Equality Agency for implementation of
Equality Officer's Recommendations No. EE20/1991 and EE21/1991.


BACKGROUND:
2. The background to the case is outlined in the Equality
Officer's recommendations No. E.E. 20/1991 and E.E. 21/1991 which
are attached at Appendix 1. The Department of Finance and the
Revenue Commissioners appealed against the above recommendations
on 13th December, 1991 on the following grounds:


(1) That the Equality Officer erred in concluding that the
Revenue Commissioners discriminated against the
complainant by requiring her to provide evidence of
hardship to justify her reinstatement and that the
Minister for Finance procured the Revenue Commissioners
to so discriminate;


(2) That the Equality Officer adopted an incorrect approach
in reaching her conclusion that the eligibility criteria
for reinstatement exclude only married women;



(3) That the Equality Officer erred in law either

(i) in that

- she failed to have regard to the fact that the
provisions of circular 50/79 merely repeat the
provisions contained in Section II of the Civil
Service Regulation Act, 1956 (as amended);

- she failed to have regard to the fact that the
respondents to the application had no power or
authority to implement the recommendation;

- the recommendation was bad in law and ultra vires
in purporting to require a respondent to take
steps which would be unlawful if implemented;


(ii) or, in holding, expressly or impliedly that the
provisions of the Employment Equality Act, 1977
amended Section 11 of the Civil Service Regulation
Act, 1956 (as amended) in such a manner as to
permit the reinstatement of the complainant.

The Employment Equality Agency appealed for the implementation
of the above recommendations on the grounds that:

(i) The Revenue Commissioners have failed to implement
the terms of Recommendations No. EE20/1991 and
EE21/1991.

(ii) The Revenue Commissioners have failed to reinstate
the worker in the civil service from the date she
would have been reinstated had she made her
application as a widow and have failed to pay her
with effect from that date.

(iii) Such other grounds as may arise during the course
of the appeal hearing.

The Court heard the appeal on 7th July, 1992. The Department of
Finance and the Revenue Commissioners submissions are attached at
Appendix 2. The Agency's submission is attached at Appendix 3.


*DETERMINATION:
3. 1. The facts in this case are not in dispute. The claimant
is a married woman who was a civil servant employed in the
Office of the Revenue Commissioners until 1969. In that
year the claimant resigned to get married. At that time,
women holding positions in the Civil service were required
to retire upon marriage (section 10 of the Civil Service
Regulation Act, 1956 ('the 1956 Act')). Re-admission to
the civil service was permitted in respect of widows only
under Section 11 of the 1956 Act. In 1973 that provision
was extended by Section 4 of the Civil Service (Employment
of Married Women) Act ('the 1973 Act'), and the
requirement to retire on marriage was repealed. In
January 1990 the claimant applied for reinstatement in the
civil service. In order to qualify for reinstatement,
however, the claimant was required under section 4 of the
1973 Act, to establish to the satisfaction of the Minister
for Finance that she was not being supported by her
husband.

Her claim, as presented on her behalf by the Employment
Equality Agency ('the Agency') was that this requirement
amounted to discrimination by the Revenue Commissioners
against her, contrary to section 2(b) and (c) of the
Employment Equality Act, 1977 ('the Equality Act'). The
Agency further claimed that the Minister for Finance had
contravened section 9 of the Equality Act which prohibits
procuring or attempting to procure discrimination.

2. The Equality Officer found in the claimant's favour under
section 2(b) of the Equality Act, and held therefore that
it was unnecessary for her to decide the question under
Section 2(c). The finding was made on the basis that a
widow could benefit under the provisions of the 1956 Act
in that, if she had retired for the purpose of getting
married and was widowed, she would not be required to





establish that she was being supported by a husband in
order to be reinstated. The claimant, because she was
married, was required under the 1973 Act to submit
evidence, to prove that she was not being supported by her
husband, to justify her reinstatement. The Equality
Officer decided that this requirement was less favourable
treatment, and that it was "because of her marital
status".

The Equality Officer also found that, in directing the
Revenue Commissioners under the terms of Circular 50/79,
to act in a manner which she had found to be
discriminatory, the Minister for Finance had contravened
section 9 of the Equality Act.

The Equality Officer recommended that the claimant be
reinstated in the civil service and paid with effect from
the date on which she would have been reinstated had she
made her application as a widow. She further recommended
that there should be no further discrimination on grounds
of sex or marital status in relation to eligibility for
reinstatement of employees who resign from the civil
service.

3. The Revenue Commissioners and the Minister for Finance
appealed to the Labour Court against the Equality
Officer's recommendations. The Agency and the claimant
appealed to the Labour Court for implementation of the
recommendations.




The Agency argued that married women are treated less
favourably than other women as regards re-admission to the
civil service, because they must provide evidence of their
economic circumstances, whereas single women (who resign
to marry but do not marry) and widows (who resign to marry
but whose husbands die) do not have to do so.

The Revenue Commissioners and the Minister for Finance
argued that, far from treating married women less
favourably, the purpose of the Act of 1973 was to provide
more favourable treatment for certain women with regard to
reinstatement in the civil service. A married woman only
has to show that she is not being supported by her
husband. They further submitted that the allegation of
discrimination should have been examined by reference to
all women who have resigned from the civil service, and
not just by reference to those who had resigned for the
purpose of marrying. Finally, they argued that the powers
of the Commissioners and of the Minister were entirely
subject to the legislation with regard to the re-admission
of certain women, and that there was no statutory
authority to permit the Revenue Commissioners to reinstate
the claimant without proof by her that she was not being
supported by her husband.

4. Section 10 of the 1956 Act had required women to retire on
marriage. At the same time, section 11 of the 1956 Act,
provided for the re-admission of a widow who had been a
civil servant and had retired on marriage. The marriage
bar was abolished by section 3 of the 1973 Act. Section 4
of the 1973 Act then extended the right of re-admission to
all women who resigned from the civil service for the
purpose of marriage, subject, in the case of married



women, to the requirement that they establish to the
satisfaction of the Minister for Finance that they were
not being supported by their husbands. These provisions
applied notwithstanding that women's resignations were
voluntary after the abolition of the marriage bar. Women
civil servants who resigned for any reason other than
marriage were, however, in the same situation as male
civil servants who resigned; their re-admission could only
be achieved by way of open competition conducted by the
Civil Service Commissioners.

5. The Court is satisfied that Section 11 of the 1956 Act as
amended by Section 4 of the 1973 Act discriminates in
favour of a particular category of women, namely women who
left the service to marry. In doing so, it discriminates
against all others, male and female, who leave the service
for other reasons, and includes males who leave to get
married.

Within the "favoured" group of women, certain of them,
namely those who did marry and who were not widowed, have
to establish to the satisfaction of the Minister for
Finance that they are not being supported by their
husbands in order to be reinstated. It is therefore for
the very reason that they are married that the question of
whether or not they are being supported arises. No such
question arises if they did not marry or if they are
widowed. Clearly, it is because of their marital status
that the requirement to supply information relating to
support arises.




Form RT2 (dated 3rd January, 1991) which is the form sent
by the Revenue Commissioners to the claimant for
completion by her in relation to her application for
reinstatement in the civil service, requires very detailed
financial and personal information, sought only from
married women. The Court considers that to make the fact
of her financial and personal circumstances relevant in
the consideration of her application is to treat a married
woman less favourably than a single woman or a widow,
neither of whom are subjected to such investigation.

(The Court took note of the disclaimer entered in the
course of the hearing by the appellants to the effect that
in no case was an applicant's personal means a factor in
reaching a decision on her application for reinstatement.
Only the question of her husband's financial support of
her was relevant as per the legislation. However, the
application form does require information from married
women about family income from all sources to be given).

Section 2(b) of the Equality Act provides that
discrimination will be taken to have occurred where
'because of his marital status a person is treated less
favourably than another person of the same sex'. The
claimant retired for the purposes of getting married, and
then, because she was married, she was required to
establish that she was not being supported by her husband.
The Court has concluded that the Equality Officer was
correct in finding that the claimant had been
discriminated against contrary to Section 3 of the
Equality Act.




6. It does not, however, seem right to the Court that it
should decide this case by looking only within the narrow
confines of a "favoured" group of women. The 1956 and the
1973 Acts were enacted before the adoption of the Council
Directive 72/207/EEC of the European Community. That
Directive set out to ensure the progressive
implementation of the principle of equal treatment for men
and women as regards access to employment, vocational
training and promotion and working conditions. The
Equality Act was passed in the process of Ireland's
implementation of the Directive, and a complaint of
unequal treatment falls to be dealt with by this Court
under that Act.

There is no doubt that the application of the provisions
of the 1956 and 1973 Acts, commendable as their intent may
have been, put certain women in an advantageous position
with regard to access to employment, but resulted in
discrimination against certain other women because of
their marital status and discriminated against women who
had left (but not to get married) and all men, none of
whom have any of the same advantages for reinstatement in
the civil service.

The Court is satisfied, therefore, that the whole scheme
for the reinstatement of some women in the civil service
is discriminatory and contrary to the principle of equal
treatment, and that the proper solution is to recommend
the repeal of Section 11 of the 1956 Act as amended by
Section 4 of the 1973 Act. It seems to the Court that the
situation with regard to the employment of women has
changed fundamentally since 1973, and that there is now no
justification in making special provision to enable some
women to be re-admitted to the civil service through




exceptional procedures. All recruitment to the service
should be by open competition through the Civil Service
Commission, including the re-recruitment of former civil
servants who resigned for whatever reason. Indeed, this
recommendation for repeal of parts of the Civil Service
Acts is implied in the last sentence of the Equality
officer's Recommendation where she says that "there should
be no future discrimination on grounds of sex or marital
status in relation to eligibility for reinstatement of
employees who resign from the civil service".

In other words, the Court has concluded that while the
claimant suffered discrimination by the operation of the
1956 and 1973 Acts, those Acts themselves offend the
principle of equal treatment, and the offending parts
should be repealed.

Indeed, under the Equal Treatment Directive, and in
applying the principle to the conditions for access to
jobs or posts, Member States are required to ensure that
laws, regulations and administrative provisions contrary
to the principle of equal treatment be abolished. Article
3.2(c) of the Directive calls for the revision of such
laws, regulations and administrative provisions "where the
concern for protection which originally inspired them is
no longer well founded". Nowadays concern for the
protection of access to employment is a concern which applies to both
sexes and to all marital situations. Everyone, therefore,
should have an equal chance to compete for situations for
which they are qualified.




7. Turning to the question of procurement of discrimination
by the Minister for Finance, there is no doubt but that
there was statutory authority in section 4 of the 1973 Act
(which provided that section 11 of the 1956 Act would
apply to a woman 'in respect of whom it is established to
the satisfaction of the Minister that she is not being
supported by her husband') to require the provision of
information concerning non-support by the claimant's
husband. Circular 50/79 simply repeats that provision.
It is the Court's view that insofar as Section 4 of the
1973 Act allows for discrimination against married women,
it is inconsistent with the general provisions of section
9 of the Equality Act which prohibit the procurement of
discrimination.

The Court must, therefore, apply whatever construction to
the inconsistency between section 4 of the 1973 Act and
section 9 of the 1977 Act appears the most reasonable.
(The Court notes that the 1977 Act did not directly repeal
Section 4 of the 1973 Act). It seems to the Court that a
reasonable way in which to reconcile two conflicting
statutory provisions is to treat the particular authority
given to the Minister in the 1973 Act to require proof of
non-support as an exception to the general provision in
section 9 of the 1977 Act not to procure discrimination.
Accordingly the Court does not find that the Minister for
Finance contravened Section 9 of the 1977 Act insofar as
the specific provisions of Section 4 of the 1973 Act are
concerned.




The problem of inconsistency between section 4 of the 1973
Act and section 9 of the 1977 Act would be resolved for
the future if the requirement in the Directive, to
"abolish" the law and administrative provisions found
contrary to the principle of equal treatment, were now
implemented.

The exception to the prohibition on procurement of
discrimination which we have interpreted in section 4 of
the 1973 Act cannot, however, it seems to the Court, cover
the additional requirements imposed on the claimant by the
statement relating to "grounds of hardship" in the letter
of 14th February, 1990 from the Revenue Commissioners, and
the requirement to complete Form RT2 which sought details
of family circumstances or of income from all sources.
The inevitable conclusion is that the Minister for Finance
in his directions to the Revenue Commissioners to require
this information went outside the terms of the statutory
authority in section 4 of the 1973 Act. The Court is
satisfied that by doing so the Minister for Finance
attempted to procure discrimination, given that the proof
of hardship and the revelation of certain personal and
family financial details were only required of the
claimant because she was a married woman. In this
respect, therefore, the Court upholds the findings of the
Equality Officer.

8. In hearing these appeals the Court has looked at the
broader discriminatory effects of the 1973 Act in the
context of the 1977 Act and of the Equal Treatment
Directive and of the principles which the Directive
requires Member States to apply. As a result of this
examination, the Court is not prepared to uphold the
Equality Officer's recommendation in relation to the
claimant that she be reinstated in the civil service.



In its Determination, the Court must, under the Section 22 of
the Equality Act do one or more of the following:-

(a) hold that there was or was not discrimination

(b) recommend to a person or persons concerned a
specified course of action

(c) award compensation in accordance with the Act

(d) hold that a person has or has not procured
discrimination, and if it thinks fit, recommend a
specified course of action.

In this case, the Court has decided to recommend
a "specified course of action".

The Court therefore determines as follows:-

(1) there was discrimination by the Revenue
Commissioners against the claimant in so far as
they sought to apply to her the provisions of the
Civil Service (Regulation) Act of 1956 as amended
by Section 4 of the Civil Service (Employment of
Married Women) Act of 1973, on the grounds that the
requirement to prove lack of a husband's support
was less favourable treatment of the claimant
arising from her marital status.





(2) the Minister for Finance did attempt to procure
discrimination by directing the Revenue
Commissioners to require the claimant to supply
information to establish hardship and to supply
personal and family financial details.


(3) the legislative provisions under which the
discrimination occurred and which gave rise to the
procurement of discrimination offend the principle
of equal treatment. The Court finds that since
those provisions effectively deny rights of
reinstatement to all men and certain women, and
favour a limited number of women, it is not a case
in which compensation should be awarded to one
claimant. The Court is not obliged under the Act
to compensate a claimant who has been successful in
obtaining a finding of discrimination. But in any
event the Court does not consider that the payment
of compensation is appropriate in this case because
the claimant's "right" only arises in cirucmstances
which offend the principal of equal treatment.




(4) the Court recommends that the Minister for Finance
with a view to establishing equality of opportunity
for both men and women in relation to access to
employment in the Civil Service, introduce at the
earliest opportunity the appropriate legislation to
repeal section 11 of the Civil Service Regulation
Act, 1956 as amended by Section 4 of the Civil
Service (Employment of Married Women) Act 1973.
DETERMINATION:
The full text of this Determination is not available in the
Subject Field but in the Database.
~



Signed on behalf of the Labour Court




Kevin Heffernan
__________________
23rd July, 1993. Chairman.
F.B./J.C.