DEE961

Labour Court Database __________________________________________________________________________________ File Number: AEE9414 Case Number: DEE961 Section / Act: S21EE Parties: PHARMACEUTICAL SOCIETY OF IRELAND (Represented by DOWLING SOLICITORS) - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY

Subject:
Appeal by the Pharmaceutical Society of Ireland against Equality Officer's Recommendation No. EE16/1994, AND Appeal by the Employment Equality Agency for implementation of Equality Officer's Recommendation No. EE16/1994.

Recommendation:
This case consists of two appeals against Equality Officer's
Recommendation No.EE16/1994.

The claimant has appealed under Section 21 of the 1977 Employment
Equality Act ('the Act') for a determination that the
Recommendation has not been implemented.

The respondent, the Pharmaceutical Society of Ireland (hereinafter
called 'the Society') had appealed under the same section against
the Recommendation.

The matter at issue in the case was the refusal by the Society to
provide the claimant with a certificate issued in accordance with
the provisions of Council Directive 85/433/EEC to state that she
had been effectively and lawfully engaged in an activity referred
to in Article 1(2) of Directive 85/432/EEC in a Member State of
the European Union for at least three consecutive years during the
five years preceding the award of the certificate.

At the hearing of the appeals, the Society informed the Court that
the claimant had, in May 1995, been furnished with the certificate
which she sought, she having by that time satisfied the required
criteria. The outcome of the case, it was pointed out, would not
affect the certification of the claimant. The Society, however,
still wished to continue with its appeal against the findings and
the Recommendation of the Equality Officer.

The claimant acknowledged that she had now been provided with a
certificate, but also wished to proceed with the appeal, and was
seeking an increase in the amount of compensation which had been
recommended by the Equality Officer.



There were two preliminary points made by the Society in its
appeal:

1. The Society asserted that the claim was statute-barred, not
having been made within the time limit prescribed by section
19(5) of the Act.

The Court has no hesitation in deciding that reasonable cause
has been shown for the delay in this case, given the origins
and history of the case, and the voluminous correspondence it
generated. Given the large numbers of letters and
representations which passed between the parties and between
the Society and third parties on behalf of the claimant, the
Society was not unaware of the claim or prejudiced by the
delay; furthermore, it could be said that the claimant had
attempted to pursue other avenues of redress before resorting
to the present claim.

2. The Society argued that it was not a 'body' within the
meaning of section 5 of the Act, since it did not act as an
employer, or in an employment capacity, and that consequently
the Court had no jurisdiction in relation to a complaint
against it. Its actions, it claimed, were those of a
competent authority appointed by the State to carry out
certain functions in relation to the implementation of
Directive 85/433/EEC.



The Court also rejects this ground of appeal. Section 5 of
the Act prohibits discrimination in relation to entry to a
profession by an organisation which controls entry to such
profession. The Society is a professional organisation which
controls the issue of particular certificates. The awarding
of these certificates in turn allows a person to practise a
particular profession. The fact that such authority was
bestowed on the Society by virtue of a statutory instrument
does not remove from the Society the duty to ensure that it
carries out its functions in a non-discriminatory manner.

The remainder of the case made by the Society was that the
Equality Officer had erred in her findings and in her
Recommendation.

The question for determination in this case concerns a requirement
within Directive 85/433/EEC that a person, in order to obtain the
Certificate which would establish that her qualifications in
pharmacy could be recognised in another Member State,even though
not satisfying the minimum training requirement laid down in
Article 2 of Directive 85/432/EEC, must have worked for a
specified period and in a specific manner, namely for at least three consecutiv
years during the five years preceding the award of the
certificate.

The claimant alleged that the Society in operating the Directive,
had discriminated against her.



The Court was satisfied, having considered the Directives, that
their purpose was three-fold, namely: a) to ensure a minimum
standard in the practice of pharmacy, b) to co-ordinate the
standards throughout the Union, and c) to ensure the mutual
recognition of qualifications throughout the Union in accordance
with the principle of the freedom of movement of workers. It is
evident that, in formulating the Directives, the Council of
Ministers was conscious of the need for strict criteria in the
training and experience of pharmacists.

Given the above, the Society was clearly the appropriate body in
the Republic of Ireland to issue the certificates envisaged in
Article 6 of Directive 85/433/EEC.

There were many questions which arose for consideration in this
case, but the kernel of the dispute is the interpretation which
the Society put on the words "three consecutive years during the
preceding five years". Initially the claimant's application had
been rejected by the Society on the basis that the required
working experience must be not only consecutive, but also
"full-time". This led to the question of whether part-time work
could be counted for the purposes of the Directive, and what
amount of part-time work would equate to three consecutive years
of full-time work.

No specific answer to these questions was ever given to the
claimant. The inference from the correspondence received from the
Commission of the European Communities, however, was to the effect
that these were matters for determination by the Society, as the
competent authority within the State to implement the Directive.



The Court addressed itself to the issue of the role of the Society
as the competent authority within the State, and came to the
conclusion that the Society having been nominated as the competent
body within the State for the issuing of certificates under the
Directives, it was not for the Court to question its actions in
that function, except on the issue of whether or not the Society
was in breach of the equality legislation.

Having given full consideration to the written and oral
submissions of the parties, and to the findings and the
Recommendation of the Equality Officer, the Court is not satisfied
that the Society did discriminate against the claimant. It
appears to the Court that the claimant was not treated in any
manner differently from the manner in which a male applicant would
have been treated. The point was made by the Equality Officer
that a higher proportion of males than of females could comply
with a requirement to work full-time for the purposes of
eligibility for a certificate from the Society. However, while
this assertion may be generally true, and have been established
from various surveys of the working population, it cannot be
concluded therefrom that a requirement to work full-time in every
profession or occupation is discriminatory. It appears to the
Court that, in this case, the Society was entitled to refuse a
certificate to the claimant until it was satisfied that the period
during which she had been engaged in working in the profession was
sufficient to satisfy the requirements of the Directive, whether
that work was on a full-time or a part-time basis.



The Court is satisfied that there was no evidence of
discrimination on the part of the Society against the claimant.
The Society arrived at its decision within the scope of its
authority, and without any act of discrimination which could be
said to have been based on the sex of the claimant.

The appeal of the Society is allowed.

The appeal of the claimant is dismissed.

Division: Ms Owens Mr Pierce Mr Walsh

Text of Document__________________________________________________________________

AEE9414 DETERMINATION NO. DEE196

EMPLOYMENT EQUALITY ACT, 1977
SECTION 21

PARTIES:
PHARMACEUTICAL SOCIETY OF IRELAND
(REPRESENTED BY DOWLING SOLICITORS)

AND

A WORKER
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)



SUBJECT:

1. Appeal by the Pharmaceutical Society of Ireland against
Equality Officer's Recommendation No. EE16/1994,

AND

Appeal by the Employment Equality Agency for implementation
of Equality Officer's Recommendation No. EE16/1994.


BACKGROUND:

2. The background to this case is outlined in the Equality
Officer's Recommendation (details supplied to the Court).
The Equality Officer in her Recommendation found that the
Pharmaceutical Society of Ireland discriminated against the
worker in terms of Section 2(c) of the Act and contrary to
Section 5 of the Act. She recommended that the Society issue
the worker with a certificate in compliance with Article 6 of
EEC Council Directive 85/433/EEC to enable the worker
carry on her profession in other member states and also
recommended that a sum of £4,000 be paid by the Society to
the worker by way of compensation.

The Pharmaceutical Society of Ireland appealed against the
above Recommendation on 7th December, 1994 and the Employment
Equality Agency appealed for implementation of the
Recommendation.

The Labour Court heard the appeal on 26th September, 1995.



DETERMINATION:

This case consists of two appeals against Equality Officer's
Recommendation No.EE16/1994.

The claimant has appealed under Section 21 of the 1977 Employment
Equality Act ('the Act') for a determination that the
Recommendation has not been implemented.

The respondent, the Pharmaceutical Society of Ireland (hereinafter
called 'the Society') had appealed under the same section against
the Recommendation.

The matter at issue in the case was the refusal by the Society to
provide the claimant with a certificate issued in accordance with
the provisions of Council Directive 85/433/EEC to state that she
had been effectively and lawfully engaged in an activity referred
to in Article 1(2) of Directive 85/432/EEC in a Member State of
the European Union for at least three consecutive years during the
five years preceding the award of the certificate.

At the hearing of the appeals, the Society informed the Court that
the claimant had, in May 1995, been furnished with the certificate
which she sought, she having by that time satisfied the required
criteria. The outcome of the case, it was pointed out, would not
affect the certification of the claimant. The Society, however,
still wished to continue with its appeal against the findings and
the Recommendation of the Equality Officer.

The claimant acknowledged that she had now been provided with a
certificate, but also wished to proceed with the appeal, and was
seeking an increase in the amount of compensation which had been
recommended by the Equality Officer.



There were two preliminary points made by the Society in its
appeal:

1. The Society asserted that the claim was statute-barred, not
having been made within the time limit prescribed by section
19(5) of the Act.

The Court has no hesitation in deciding that reasonable cause
has been shown for the delay in this case, given the origins
and history of the case, and the voluminous correspondence it
generated. Given the large numbers of letters and
representations which passed between the parties and between
the Society and third parties on behalf of the claimant, the
Society was not unaware of the claim or prejudiced by the
delay; furthermore, it could be said that the claimant had
attempted to pursue other avenues of redress before resorting
to the present claim.

2. The Society argued that it was not a 'body' within the
meaning of section 5 of the Act, since it did not act as an
employer, or in an employment capacity, and that consequently
the Court had no jurisdiction in relation to a complaint
against it. Its actions, it claimed, were those of a
competent authority appointed by the State to carry out
certain functions in relation to the implementation of
Directive 85/433/EEC.



The Court also rejects this ground of appeal. Section 5 of
the Act prohibits discrimination in relation to entry to a
profession by an organisation which controls entry to such
profession. The Society is a professional organisation which
controls the issue of particular certificates. The awarding
of these certificates in turn allows a person to practise a
particular profession. The fact that such authority was
bestowed on the Society by virtue of a statutory instrument
does not remove from the Society the duty to ensure that it
carries out its functions in a non-discriminatory manner.

The remainder of the case made by the Society was that the
Equality Officer had erred in her findings and in her
Recommendation.

The question for determination in this case concerns a requirement
within Directive 85/433/EEC that a person, in order to obtain the
Certificate which would establish that her qualifications in
pharmacy could be recognised in another Member State,even though
not satisfying the minimum training requirement laid down in
Article 2 of Directive 85/432/EEC, must have worked for a
specified period and in a specific manner, namely for at least three consecutive
years during the five years preceding the award of the
certificate.

The claimant alleged that the Society in operating the Directive,
had discriminated against her.



The Court was satisfied, having considered the Directives, that
their purpose was three-fold, namely: a) to ensure a minimum
standard in the practice of pharmacy, b) to co-ordinate the
standards throughout the Union, and c) to ensure the mutual
recognition of qualifications throughout the Union in accordance
with the principle of the freedom of movement of workers. It is
evident that, in formulating the Directives, the Council of
Ministers was conscious of the need for strict criteria in the
training and experience of pharmacists.

Given the above, the Society was clearly the appropriate body in
the Republic of Ireland to issue the certificates envisaged in
Article 6 of Directive 85/433/EEC.

There were many questions which arose for consideration in this
case, but the kernel of the dispute is the interpretation which
the Society put on the words "three consecutive years during the
preceding five years". Initially the claimant's application had
been rejected by the Society on the basis that the required
working experience must be not only consecutive, but also
"full-time". This led to the question of whether part-time work
could be counted for the purposes of the Directive, and what
amount of part-time work would equate to three consecutive years
of full-time work.

No specific answer to these questions was ever given to the
claimant. The inference from the correspondence received from the
Commission of the European Communities, however, was to the effect
that these were matters for determination by the Society, as the
competent authority within the State to implement the Directive.



The Court addressed itself to the issue of the role of the Society
as the competent authority within the State, and came to the
conclusion that the Society having been nominated as the competent
body within the State for the issuing of certificates under the
Directives, it was not for the Court to question its actions in
that function, except on the issue of whether or not the Society
was in breach of the equality legislation.

Having given full consideration to the written and oral
submissions of the parties, and to the findings and the
Recommendation of the Equality Officer, the Court is not satisfied
that the Society did discriminate against the claimant. It
appears to the Court that the claimant was not treated in any
manner differently from the manner in which a male applicant would
have been treated. The point was made by the Equality Officer
that a higher proportion of males than of females could comply
with a requirement to work full-time for the purposes of
eligibility for a certificate from the Society. However, while
this assertion may be generally true, and have been established
from various surveys of the working population, it cannot be
concluded therefrom that a requirement to work full-time in every
profession or occupation is discriminatory. It appears to the
Court that, in this case, the Society was entitled to refuse a
certificate to the claimant until it was satisfied that the period
during which she had been engaged in working in the profession was
sufficient to satisfy the requirements of the Directive, whether
that work was on a full-time or a part-time basis.



The Court is satisfied that there was no evidence of
discrimination on the part of the Society against the claimant.
The Society arrived at its decision within the scope of its
authority, and without any act of discrimination which could be
said to have been based on the sex of the claimant.

The appeal of the Society is allowed.

The appeal of the claimant is dismissed.

~


Signed on behalf of the Labour Court


15th January, 1996 Evelyn Owens
F.B./D.T. ____________
Chairman