Labour Court Database __________________________________________________________________________________ File Number: AEE9010 Case Number: DEE947 Section / Act: S21EE Parties: FAS - and - CIVIL AND PUBLIC SERVICE UNION |
Appeal by FAS against Equality Officer's Recommendation No. EE19/1990 that FAS indirectly discriminated against 92 claimants within the meaning of Section 2(c) of the Employment Equality Act, 1977.
Recommendation:
3. 1. The complaint in this case is that FAS discriminated
against the claimants in terms of Section 2(c) of the
Act, and in breach of Section 3(6) of the Act by denying
them access to the posts of Senior Employment Services
Officer and Employment Services Officer.
2. Section 2(c) of the Act states that discrimination shall
be taken to occur
"where because of his sex ..... a person is obliged to
comply with a requirement, relating to employment .....
which is not an essential requirement for such
employment ..... and in respect of which the proportion
of persons of the other sex ..... able to comply is
substantially higher".
Section 3(6) of the Act prohibits discrimination in
relation to access to opportunities for promotion.
3. The "requirement" which is relevant to the issue of
discrimination in this case was to be already in Grades
8, 9 or 10 in order to be eligible to compete for the
available posts. The Court is satisfied that a
substantially higher proportion of males than of females
could comply with that requirement. The uncontradicted
evidence before the Equality Officer was that 87% of the
male employees of FAS could comply with the requirement
to be at Grade 10 or above, whereas only 26.5% of the
female employees could comply with it.
4. If FAS had not required the applicants to be at Grades
8, 9 or 10, it would have sought applications from
amongst its existing employees. The lower clerical
grades would then have been able to apply, and these
grades consisted largely of female workers. The
Equality Officer had concluded that women in the lower
grades were affected by the requirement, and that it was
because of their sex that they were so affected. She
further found that the requirement was not essential to
the employment, and that there had been discrimination
against the claimants.
5. The Court is not satisfied that the correct deductions
were made by the Equality Officer in this case. The
requirement to be in Grades 8, 9 or 10 undoubtedly
affected a large number of women, who being in lower
grades, were not eligible to compete for the posts. But
Section 2(c) requires a causal connection to be made
between the sex (or marital status) of the person
obliged to comply with a requirement and the requirement
itself. It seems to the Court that the Equality Officer
addressed the wrong question. She enquired into the
reasons why there was a preponderance of women in the
lower grades, and related those findings to an attribute
of their sex. But the correct enquiry, in the Court's
view, was not why did women occupy the lower grades, but
why they did not occupy the higher grades which the
requirement demanded. If that inability related to sex
or marital status, then discrimination would have
occurred.
6. Mr. Justice Murphy had pointed out in Nathan v. Bailey
Gibson (ELR 1993 Vol. 4 No. 3) that the 1977 Act "does
not deem discrimination to have occurred merely because
historical factors (other than sex or marital status)
have limited the eligible candidates to a pool which
contains a larger number of the members of one sex than
the other."
To have properly established that discrimination had
occurred against the complainants, the Equality Officer
should have been satisfied that there was something
relating to their sex which made them unable to comply
with the requirement to be in the higher grades.
Mr. Justice Murphy had found in the Nathan case that the
words "because of his sex or marital status" in Section
2(c) of the Act could not be treated as mere
"surplusage". The words, he said, "seem to me to lead
inescapably to the conclusion that there must be a
causal connection between the sex or marital status of a
person and the treatment afforded to him".
The treatment in this case was the imposition of a
requirement to be in Grades 8, 9 or 10.
7. Were women excluded from Grades 8, 9 or 10. There was
no evidence or suggestion that this was so. Did the
conditions of working at those grades make it more
difficult for females than males to occupy them. Again,
there is no evidence of any such difficulty. While it
was clear that females tended to seek work at the
clerical grades, there is nothing to suggest that they
were excluded from access to the higher grades. No
causal connection was established between the sex of the
complainants and their inability to comply with the
requirement to be at Grades 8, 9 or 10. Connecting the
sex of the complainants to their occupation of Grades 11
and 12 does not, in the Court's view, address the proper
issue. It is their non-occupation of the higher grades
that should have been related to their sex to make out a
case of indirect discrimination.
8. If the complainants had been excluded from the
competition because they were in Grades 11 and 12, then
their complaint would have been that there had been a
breach of Section 2(a), and that 'by reason of their
sex' they had been treated less favourably than their
male colleagues. But there was no attempt to make such
a case. The complainants were indeed not excluded
because they were in Grades 11 and 12; they were
excluded because they were not in Grades 8, 9 or 10.
Their case therefore relied on establishing that the
imposition of the requirement to be in Grades 8, 9 or 10
related to their sex, and the Court is satisfied that
this they have failed to do.
9. The Court rejects the allegation against FAS of indirect
discrimination under Section 2(c) of the Act, and finds
that FAS did not contravene Section 3(6) of the Act.
Division: Mr McGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
AEE9010 DETERMINATION NO. DEE794
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
PARTIES:
FAS
AND
CIVIL AND PUBLIC SERVICE UNION
SUBJECT:
1. Appeal by FAS against Equality Officer's Recommendation No.
EE19/1990 that FAS indirectly discriminated against 92
claimants within the meaning of Section 2(c) of the
Employment Equality Act, 1977.
BACKGROUND:
2. 1. This case concerns a claim by the Civil and Public
Service Union (the Union) on behalf of 92 female
claimants that An Foras Aiseanna Saothair (FAS)
indirectly discriminated against them on grounds of
their sex when it denied them access to compete for the
posts of Senior Employment Services Officer and
Employment Services Officer on its establishment in
1988.
2. In January, 1988, FAS was established under the terms of
the Labour Services Act, 1987, which amalgamated three
State bodies, i.e., the National Training Authority
(AnCo), The Youth Employment Agency (YEA) and the
National Manpower Service (NMS) of the Department of
Labour.
3. In the Autumn of 1988, arrangements were made between
the Public Service Executive Union and FAS to transfer
Employment Services Officers and Senior Employment
Services Officers (formerly Placement Officers) back to
the Civil Service to fill Executive Officer and Higher
Executive Officer vacancies, and to allow staff in these
grades in the Civil Service who wished to avail
themselves of the unrestricted Voluntary Severance
Scheme available in FAS to transfer to FAS temporarily
and then to leave under the scheme.
4. This arrangement created approximately 25 vacancies at
Executive Officer and Higher Executive Officer level in
the Employment Services Offices of FAS. Sometime prior
to this arrangement being concluded, FAS, in a review of
the needs of the organisation, decided to slim down the
Training and Advisory Service. This decision left
significant numbers of staff at Grade 8 (HEO) and Grade
10 (EO) available for redeployment.
5. In December, 1988, FAS advertised the vacancies of
Senior Employment Services Officer, and Employment
Services Officer, restricting applicants to existing
staff at Grades 8, 9 and 10, with successful candidates
transferring at their existing grade.
6. On 27th March, 1989, the Union referred a complaint to
the Labour Court (the Court) under Section 19 of the
Employment Equality Act, 1977 (the Act). The Court
referred the case to an Equality Officer for
investigation and recommendation. The Equality Officer
issued a Recommendation on 4th October, 1990 (EE19/1990)
in which she found that FAS had discriminated against
the claimants within the meaning of Section 2(c) of the
Act, and had contravened Section 3(6) of the Act. She
recommended that FAS readvertise the posts of Senior
Employment Services Officer and Employment Services
Officer on an unrestricted basis.
7. FAS appealed this Recommendation under Section 21 of the
Act to the Court. The Union appealed for implementation
of the Recommendation.
8. The Court held a preliminary hearing on the question of
compliance with the time limit laid down by Section
19(5) of the Act. This hearing took place on 23rd May,
1991 and on 8th September, 1992. On 14th May, 1993, the
Court issued its findings on the time limit question.
It decided that the complaint was in time, because it
had been made within six months of the advertisement
which had notified the job opportunities giving rise to
the complaint - the complaint being that certain workers
were not eligible to apply for the vacancies.
9. The hearing of the substantive case took place on 25th
August, 1993. It was argued by FAS:-
(a) that since no promotional opportunities were
involved, the claimants had not been denied access
to promotion. The opportunities for the staff
allowed to compete for certain posts were in fact
redeployment of those staff, who, because of new
organisational structures, had become surplus to
requirements in their existing positions;
(b) that the denial to the claimants of access to
compete for certain posts was not indirect
discrimination, because it was not related to their
sex, and furthermore, the requirement that the
applicants be of a certain grade was an essential
requirement.
10. It was argued by the Union:-
(a) that by restricting access to posts in certain
grades, FAS had indirectly discriminated against
the claimants who were in grades predominantly held
by women;
(b) that the posts would be promotional posts if lower
grades competed successfully.
DETERMINATION:
3. 1. The complaint in this case is that FAS discriminated
against the claimants in terms of Section 2(c) of the
Act, and in breach of Section 3(6) of the Act by denying
them access to the posts of Senior Employment Services
Officer and Employment Services Officer.
2. Section 2(c) of the Act states that discrimination shall
be taken to occur
"where because of his sex ..... a person is obliged to
comply with a requirement, relating to employment .....
which is not an essential requirement for such
employment ..... and in respect of which the proportion
of persons of the other sex ..... able to comply is
substantially higher".
Section 3(6) of the Act prohibits discrimination in
relation to access to opportunities for promotion.
3. The "requirement" which is relevant to the issue of
discrimination in this case was to be already in Grades
8, 9 or 10 in order to be eligible to compete for the
available posts. The Court is satisfied that a
substantially higher proportion of males than of females
could comply with that requirement. The uncontradicted
evidence before the Equality Officer was that 87% of the
male employees of FAS could comply with the requirement
to be at Grade 10 or above, whereas only 26.5% of the
female employees could comply with it.
4. If FAS had not required the applicants to be at Grades
8, 9 or 10, it would have sought applications from
amongst its existing employees. The lower clerical
grades would then have been able to apply, and these
grades consisted largely of female workers. The
Equality Officer had concluded that women in the lower
grades were affected by the requirement, and that it was
because of their sex that they were so affected. She
further found that the requirement was not essential to
the employment, and that there had been discrimination
against the claimants.
5. The Court is not satisfied that the correct deductions
were made by the Equality Officer in this case. The
requirement to be in Grades 8, 9 or 10 undoubtedly
affected a large number of women, who being in lower
grades, were not eligible to compete for the posts. But
Section 2(c) requires a causal connection to be made
between the sex (or marital status) of the person
obliged to comply with a requirement and the requirement
itself. It seems to the Court that the Equality Officer
addressed the wrong question. She enquired into the
reasons why there was a preponderance of women in the
lower grades, and related those findings to an attribute
of their sex. But the correct enquiry, in the Court's
view, was not why did women occupy the lower grades, but
why they did not occupy the higher grades which the
requirement demanded. If that inability related to sex
or marital status, then discrimination would have
occurred.
6. Mr. Justice Murphy had pointed out in Nathan v. Bailey
Gibson (ELR 1993 Vol. 4 No. 3) that the 1977 Act "does
not deem discrimination to have occurred merely because
historical factors (other than sex or marital status)
have limited the eligible candidates to a pool which
contains a larger number of the members of one sex than
the other."
To have properly established that discrimination had
occurred against the complainants, the Equality Officer
should have been satisfied that there was something
relating to their sex which made them unable to comply
with the requirement to be in the higher grades.
Mr. Justice Murphy had found in the Nathan case that the
words "because of his sex or marital status" in Section
2(c) of the Act could not be treated as mere
"surplusage". The words, he said, "seem to me to lead
inescapably to the conclusion that there must be a
causal connection between the sex or marital status of a
person and the treatment afforded to him".
The treatment in this case was the imposition of a
requirement to be in Grades 8, 9 or 10.
7. Were women excluded from Grades 8, 9 or 10? There was
no evidence or suggestion that this was so. Did the
conditions of working at those grades make it more
difficult for females than males to occupy them? Again,
there is no evidence of any such difficulty. While it
was clear that females tended to seek work at the
clerical grades, there is nothing to suggest that they
were excluded from access to the higher grades. No
causal connection was established between the sex of the
complainants and their inability to comply with the
requirement to be at Grades 8, 9 or 10. Connecting the
sex of the complainants to their occupation of Grades 11
and 12 does not, in the Court's view, address the proper
issue. It is their non-occupation of the higher grades
that should have been related to their sex to make out a
case of indirect discrimination.
8. If the complainants had been excluded from the
competition because they were in Grades 11 and 12, then
their complaint would have been that there had been a
breach of Section 2(a), and that 'by reason of their
sex' they had been treated less favourably than their
male colleagues. But there was no attempt to make such
a case. The complainants were indeed not excluded
because they were in Grades 11 and 12; they were
excluded because they were not in Grades 8, 9 or 10.
Their case therefore relied on establishing that the
imposition of the requirement to be in Grades 8, 9 or 10
related to their sex, and the Court is satisfied that
this they have failed to do.
9. The Court rejects the allegation against FAS of indirect
discrimination under Section 2(c) of the Act, and finds
that FAS did not contravene Section 3(6) of the Act.
~
Signed on behalf of the Labour Court
16th December, 1994 Tom McGrath
J.F./D.T. _______________
Deputy Chairman