Labour Court Database __________________________________________________________________________________ File Number: EED9215 Case Number: EEO938 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;DAMIEN TANSEY AND COMPANY SOLICITORS |
Alleged dismissal under Section 27 of the Employment Equality Act, 1977.
Recommendation:
5. The Labour Court investigated the dispute in accordance with
section 26 of the 1977 Act on 2nd December, 1992 and 7th April,
1993 and has considered all of the evidence put forward by the
parties in their oral and written submissions.
The establishment in this case is a retail shop trading as a
butcher and delicatessen. Given the nature of the business as
described by both sides to the dispute, the Court finds that the
work expected of the employees is of a type that is carried out by
both male and female employees in similar establishments. The
Court is satisfied that the lifting of weights in the employment
only constitutes a small part of the work required and does not
need a high level of physical effort. The Court is satisfied that
the butchering content of the work is limited, and does not
require any greater skill for its execution than would normally be
expected of both male and female employees in similar
establishments.
The Court found no reason why the employee concerned could not
have been offered training in the butchering content of the job.
In this context, the Court noted that in reply to a question for
the Court the employer indicated that he would not offer
butchering training to a woman.
In view of the above, the Court is satisfied that the complainant
did suffer discrimination in contravention of section 3(4) of the
1977 Act in that she was selected for redundancy before a male
colleague with less service when the circumstances in which both
were employed was not materially different.
The complainant has not sought re-instatement or re-engagement,
and the Court has decided therefore to award compensation.
The Court will make an order that the employer pay to the
complainant the sum of #1,000.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
EED9215 ORDER NO. EEO893
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(REPRESENTED BY HOWLEY CARTER AND COMPANY SOLICITORS)
and
A WORKER
REPRESENTED BY DAMIEN TANSEY AND COMPANY SOLICITORS
SUBJECT:
1. Alleged dismissal under Section 27 of the Employment Equality
Act, 1977.
BACKGROUND:
2. The worker concerned commenced employment with the Company as
a shop assistant on 24th June, 1991. In November, 1991 the worker
was informed by the Company that it was making her permanent.
In December, 1991, a male worker commenced employment with the
Company as a trainee butcher (hereinafter referred to as the
Comparator). His duties included lifting and transporting heavy
goods, cleaning and carrying machinery.
On 11th April, 1992, the employment of the worker concerned was
terminated. The worker referred the matter to the Labour Court
under Section 27 of the Employment Equality Act, 1977. The worker
claims that she was unfairly selected for redundancy and that her
dismissal was contrary to Section 3(4) of the Employment Equality
Act, 1977.
The Court investigated the complaint under Section 26 of the
Employment Equality Act, 1977, in Sligo on 2nd December, 1992 and
7th April, 1993. During the course of the investigation
submissions on behalf of the Company and the worker were read.
The hearing on 2nd December, 1992, was adjourned to allow the
parties make further submissions to the Court.
WORKER'S ARGUMENTS:
3. 1. The worker and the Comparator were engaged in similar
tasks in the course of their employment. There was no
distinction in the type of work carried out by the complainant
and the Comparator
2. About March, 1992, the Company informed the worker and the
Comparator that due to a reduction in the level of business it
was considering the introduction of a three-day working week
for both workers. The proposed three-day working week was
never introduced.
3. At the time of the termination of her employment the
worker was informed by management that she had been selected
for redundancy on the basis that there was insufficient
business to enable the Company to continue to employ both the
worker concerned and the Comparator and that the male employee
was needed "for the lifting".
4. The termination of the worker's employment occurred in
circumstances which contravene Section 3(4) of the Employment
Equality Act, 1977, in that the worker was selected for
redundancy in preference to the comparator who had a shorter
length of service and which selection was made on the basis
that the worker concerned was female.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned intimated to management that her
career choice was nursing and that she was intent on pursuing
a career in nursing.
2. Management were of the opinion that the worker concerned
was disinterested in her employment with the Company.
3. It has been the policy of the Company to encourage
continuity of service and management did not envisage that the
worker concerned would remain with the Company.
4. The comparator was engaged full-time with a view to
long-term employment. He showed a greater degree of interest
in the affairs of the Company than the worker concerned.
5. The terms and conditions of employment of the worker
concerned and the Comparator were different:
(1) The worker concerned was employed on a temporary
basis to replace a worker who was absent on
maternity leave, the Comparator was employed on a
permanent basis to replace a former employee who had
been employed as a butcher.
(2) The Comparator was engaged as a trainee butcher, the
worker concerned was not involved in butchery.
(3) The worker concerned was paid a lesser rate of pay
than the Comparator.
6. The Company did not contravene Section 3(4) of the
Employment Equality Act, 1977. The worker concerned was not
dismissed on the basis of gender in preference to any male
employee as alleged.
ORDER:
5. The Labour Court investigated the dispute in accordance with
section 26 of the 1977 Act on 2nd December, 1992 and 7th April,
1993 and has considered all of the evidence put forward by the
parties in their oral and written submissions.
The establishment in this case is a retail shop trading as a
butcher and delicatessen. Given the nature of the business as
described by both sides to the dispute, the Court finds that the
work expected of the employees is of a type that is carried out by
both male and female employees in similar establishments. The
Court is satisfied that the lifting of weights in the employment
only constitutes a small part of the work required and does not
need a high level of physical effort. The Court is satisfied that
the butchering content of the work is limited, and does not
require any greater skill for its execution than would normally be
expected of both male and female employees in similar
establishments.
The Court found no reason why the employee concerned could not
have been offered training in the butchering content of the job.
In this context, the Court noted that in reply to a question for
the Court the employer indicated that he would not offer
butchering training to a woman.
In view of the above, the Court is satisfied that the complainant
did suffer discrimination in contravention of section 3(4) of the
1977 Act in that she was selected for redundancy before a male
colleague with less service when the circumstances in which both
were employed was not materially different.
The complainant has not sought re-instatement or re-engagement,
and the Court has decided therefore to award compensation.
The Court will make an order that the employer pay to the
complainant the sum of #1,000.
~
Signed on behalf of the Labour Court
Tom McGrath
______________________
30th August, 1993. Deputy Chairman.
F.B./J.C.