Labour Court Database __________________________________________________________________________________ File Number: AEE9416 Case Number: DEE953 Section / Act: S21EE Parties: NATIONAL COUNCIL FOR THE BLIND OF IRELAND (NCBI) - and - MS. MARIANNE FOX;THE EMPLOYMENT EQUALITY AGENCY |
Appeal by Ms. Fox against Equality Officer's Recommendation No. EE18/1994.
Recommendation:
This case is an appeal against the Recommendation of an Equality
Officer. It was heard by the Labour Court on 7th June 1995.
The Labour Court upholds the Recommendation of the Equality
Officer and holds that the claimant did not suffer discrimination
on the basis of her sex when she was not appointed to the post of
Instructor/Trainer by the National Council for the Blind of
Ireland (NCBI).
The Court has given careful consideration to the facts and to the
arguments in this case. It finds as a fact that the contract of
employment was a fixed term contract of limited duration which
arose as a result of a European Community financed Horizon
Programme to train visually impaired and blind persons. The Court
further finds as a fact that the training envisaged for the
contracted person was necessary to enable the employee to carry
out the required duties, and furthermore that such training had to
be undertaken by late May/early June 1992.
The Court is satisfied on the facts that had the claimant been
available to undertake the required training during the period in
question, she would have been employed. Because she was due to
give birth at the beginning of June 1992, she was not so
available. The Court has no doubt that the claimant would have
been employed, whether or not she were pregnant, had she been
available for the training. It was the timing of her delivery
which made her unavailable, not the pregnancy itself. Without the
training, the claimant was not capable of doing the job for which
she would have been contracted. The Employment Equality Agency,
on behalf of the claimant, has argued that the dates of the
training could have been changed to accommodate her, but the Court
is satisfied that this was not the case, and that the NCBI could
not have changed the dates.
The Court has considered the cases referred to it on the
claimant's behalf, namely Webb v. EMO Air Cargo (UK) Ltd (C32/93)
and Dekker v. VJV-Centrum (C177/88 ECJ). The Court is satisfied
that the circumstances of this case are fundamentally different
from the circumstances in the Webb case. Mrs. Webb had been
recruited for an indefinite period, and her case was considered by
the European court of Justice in the context of the harmful effect
on women of terminating their employment during their pregnancy.
In the case before the Labour Court, the claimant's availability
to undertake the training to equip her for a job which was to last
only 18 months was crucial. If the claimant had been hired, she
would have been unavailable for training because of her
confinement, and consequently the job could not have been done at
all.
In relation to the Dekker case, the Court is satisfied that it was
not the pregnancy which led the NCBI to refuse to employ the
claimant, but her unavailability to undertake the required
training. This reason had earlier been applied to a male
applicant who was unavailable to undertake the training required,
and therefore applied equally to applicants of both sexes. The
most important reason for the refusal of the job to the claimant
was not the fact of her pregnancy, but was that without the
training (for which she would have been unavailable), she was not
capable of doing the job at all. The motive in refusing her was
not her pregnancy, but her unavailability for the training, given
the timing of her expected date of confinement.
The appeal is dismissed.
Division: Mr Flood Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEE9416 DETERMINATION NO. DEE395
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21
PARTIES:
NATIONAL COUNCIL FOR THE BLIND OF IRELAND (NCBI)
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
AND
MS. MARIANNE FOX
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Appeal by Ms. Fox against Equality Officer's Recommendation
No. EE18/1994.
BACKGROUND:
2. The background to this case is as set out in the Equality
Officer's Recommendation which is attached at Appendix D to
this Determination. The Equality Officer, in her
Recommendation, which was issued on the 10th of November,
1994, did not find that, in April, 1993, the NCBI
discriminated against Ms. Fox on the basis of her sex. (Ms.
Fox had complained that the NCBI withdrew a job-offer made to
her subsequent to her informing the Council that she would
need to take maternity leave as she was pregnant. The NCBI
claimed that the job-offer was withdrawn because the worker
could not attend for the necessary training associated with
the position).
On the 15th of December, 1994, the Employment Equality
Agency, on behalf of Ms. Fox, appealed against the Equality
Officer's Recommendation. The Agency's notice of appeal is
attached at Appendix C. The Agency sought a remedy that
"would put the Claimant, as far as possible, into the
position that she would have been in had she not been
discriminated against". The Labour Court heard the appeal on
the 7th of June, 1995.
AGENCY'S ARGUMENTS:
3. 1. The Agency's arguments are as set out in its submission
which is attached at Appendix A. The arguments were
expanded on orally during the course of the hearing.
COMPANY'S ARGUMENTS:
4. 1. The Company's arguments are as set out in its submission
which is attached at Appendix B. The arguments were
expanded on orally during the course of the hearing.
DETERMINATION:
This case is an appeal against the Recommendation of an Equality
Officer. It was heard by the Labour Court on 7th June 1995.
The Labour Court upholds the Recommendation of the Equality
Officer and holds that the claimant did not suffer discrimination
on the basis of her sex when she was not appointed to the post of
Instructor/Trainer by the National Council for the Blind of
Ireland (NCBI).
The Court has given careful consideration to the facts and to the
arguments in this case. It finds as a fact that the contract of
employment was a fixed term contract of limited duration which
arose as a result of a European Community financed Horizon
Programme to train visually impaired and blind persons. The Court
further finds as a fact that the training envisaged for the
contracted person was necessary to enable the employee to carry
out the required duties, and furthermore that such training had to
be undertaken by late May/early June 1992.
The Court is satisfied on the facts that had the claimant been
available to undertake the required training during the period in
question, she would have been employed. Because she was due to
give birth at the beginning of June 1992, she was not so
available. The Court has no doubt that the claimant would have
been employed, whether or not she were pregnant, had she been
available for the training. It was the timing of her delivery
which made her unavailable, not the pregnancy itself. Without the
training, the claimant was not capable of doing the job for which
she would have been contracted. The Employment Equality Agency,
on behalf of the claimant, has argued that the dates of the
training could have been changed to accommodate her, but the Court
is satisfied that this was not the case, and that the NCBI could
not have changed the dates.
The Court has considered the cases referred to it on the
claimant's behalf, namely Webb v. EMO Air Cargo (UK) Ltd (C32/93)
and Dekker v. VJV-Centrum (C177/88 ECJ). The Court is satisfied
that the circumstances of this case are fundamentally different
from the circumstances in the Webb case. Mrs. Webb had been
recruited for an indefinite period, and her case was considered by
the European court of Justice in the context of the harmful effect
on women of terminating their employment during their pregnancy.
In the case before the Labour Court, the claimant's availability
to undertake the training to equip her for a job which was to last
only 18 months was crucial. If the claimant had been hired, she
would have been unavailable for training because of her
confinement, and consequently the job could not have been done at
all.
In relation to the Dekker case, the Court is satisfied that it was
not the pregnancy which led the NCBI to refuse to employ the
claimant, but her unavailability to undertake the required
training. This reason had earlier been applied to a male
applicant who was unavailable to undertake the training required,
and therefore applied equally to applicants of both sexes. The
most important reason for the refusal of the job to the claimant
was not the fact of her pregnancy, but was that without the
training (for which she would have been unavailable), she was not
capable of doing the job at all. The motive in refusing her was
not her pregnancy, but her unavailability for the training, given
the timing of her expected date of confinement.
The appeal is dismissed.
~
Signed on behalf of the Labour Court
19th July, 1995 Finbarr Flood
M.K./M.M. _______________
Deputy Chairman
Note
Enquiries concerning this Determination should be addressed to Mr.
Michael Keegan, Court Secretary.