EMPLOYMENT EQUALITY ACT 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 01/1996
PARTIES
Three Female Workers
{Represented by the T.S.S.A.}
and
Bus Eireann and Coras Iompair Eireann
File No. EE06/95
1. Dispute
1.1 This dispute concerns a claim by three named female Clerical Assistants that Bus Eireann and Coras Iompair Eireann discriminated against them on the grounds of their sex in terms of Section 2(a) and (c) of the Employment Equality Act, 1977 and in breach of Section 3 in regard to the educational requirement that they must meet in order to be allowed access to promotional grades.
2. Background
2.1 The three claimants are employed by Bus Eireann as Clerical Assistants; two of whom are based at Dublin and the other at Cork. In 1987 Coras Iompair Eireann was re-organised into three separate companies. In certain circumstances it is possible for an employee to be employed in a company, within the group of C.I.E. companies, other than the one that s/he had been employed on foot of the re-organisation.
2.2 In accordance with a Union/Management agreement Clerical Assistants are eligible, under certain conditions, to apply for advertised vacancies in the Clerical Officer 3 grade. The eligibility requirement is that a Clerical Assistant must either have 6 years appointed service prior to the 30th November 1981 or, if recruited after that date, 2 years appointed service with at least 5 grade "D" results in the Leaving Certificate examination.
2.3 A dispute arose when Bus Eireann, by letter dated 9th December 1994, formally rejected the Transport Salaried Staffs' Association's request that the Leaving Certificate requirement for progression from Clerical Assistant to Clerical Officer be removed in respect of the claimants.
2.4 In January, 1995, the claimants through their Association referred the dispute to the Labour Court. The Labour Court referred the case to an Equality Officer for investigation and recommendation. In the course of the Equality Officer's investigation he received written submissions from the parties. After receipt of the submissions a joint hearing with the parties was held on the 31st August 1995. Subsequent to the joint hearing further correspondence was received from the parties, including a letter from the Association to the effect that of the five original claimants only Ms. Frances Gerrard, Ms. Dorothy McGill and Ms. Margaret Cooney have a direct claim in this case. The last correspondence received was in December 1995.
3 The Claimants' Case
3.1 The Association submits that the three female claimants, who are employed by Bus Eireann as Clerical Assistants, were discriminated against by the respondents on grounds of their sex within the meaning of Section 2(a) and 2(c) of the Act and in contravention of Section 3 of the Act in regard to the requirement that they must possess at least five D results in the Leaving Certificate in order to be allowed access to the Clerical Officer grade.
3.2 Section 2(a) deals with direct discrimination and it states that discrimination shall be taken to occur:-
"where by reason of his sex a person is treated less favourably than a person of the other sex."
Section 2(c) of the Act deals with indirect discrimination and it states that discrimination shall be taken to occur:
"where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment or membership of a body referred to in Section 5, which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher."
Section 3(1) states that an employer:-
"shall not discriminate against an employee ...... in relation to ...... promotion ......."
Section 3(3) states as follows:-
"without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee in relation to access to employment if-
(a) in any arrangement he makes for the purpose of deciding to whom he should offer employment, or
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons where the circumstances in which both such persons or classes would be employed are not materially different, he contravenes subsection (1)
Section 3(6) states as follows:
"without prejudice to the generality of subsection (1), a person shall to be taken tocontravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion."
3.3 The claimants' representative states that the Clerical grading structure in Bus Eireann and Coras Iompair Eireann is as follows:
- Clerical Assistant Grade 2
- Clerical Assistant Grade 1
- Clerical Officer Grade 3
- Clerical Officer Grade 2
- Clerical Officer Grade 1
- Senior Clerical Officer Grade 2
- Senior Clerical Officer Grade 1
He further states that the manner in which Clerical Assistants in Bus Eireann are allowed access to the promotional grades (i.e Clerical Officer Grade 3) is by individual application following internal advertisement by C.I.E. of any vacancy which may occur.
3.4 The Association explains that applications from Clerical Assistants are only considered provided that they:-
- Entered the service prior to 30th November, 1981, and have six years appointed service prior to that date, or
- Entered the service after 30th November, 1981, have at least 2 years appointed service in the Clerical Assistant grade, and have the minimum educational standard as is required for entry to the Clerical Officer grade by open competition, i.e. Leaving Certificate with at least 5 grade D results. "
3.5 In relation to the issue of direct discrimination the Association submits that the educational requirement of at least five D results in the Leaving Certificate for consideration to promotion to the Clerical Officer grade is not strictly essential in as much in the past C.I.E. has graded male employees, who do not hold the Leaving Certificate, in the Clerical Officer 3 grade as Stationmasters. It further submits that members of this group have the right to seek promotion to higher graded Stationmaster positions and could advance to Executive grades.
3.6 In furtherance of its arguments on direct discrimination the Association points out that as a consequence of the Labour Court Recommendation No: 14044 (Appendix 1) the former Engineering Clerk grade, which was exclusively male and was not part of the clerical structure, was assimilated into the Clerical Officer 3 grade. It asserts that those within this group, some of whom do not hold the Leaving Certificate, have the right to progress up the Clerical Officer grade, which is a line of promotion being denied to the claimants. It adds that the respondents have created a precedent and should now concede the point in relation to the small number of female Clerical staff affected by this issue.
3.7 The Association contends that the eligibility educational requirement adversely impinge disproportionately against females since almost all, if not all, of the people affected by this restriction are women. It claims that the traditional sex segregation in the past has ensured that the Clerical Assistant grade is predominately female.
The claimants' representative advises that he is not in a position to provide actual figures to back up the Association's claim that the educational qualification requirement adversely impacts disproportionately against females, because it does not have access to these details. He feels that the respondents would be in a position to furnish the relevant information.
4. The Respondents' case
4.1 Bus Eireann contends, as the claimants' employer, that there has been no discrimination exercised against them, either of a direct nature or of a indirect nature. It points out that the fact that it has more female than male clerical staff is irrelevant.
4.2 In relation to the Association's allegation of direct discrimination Bus Eireann points out that it currently has 66 employed in the grade of Clerical Assistant, 11 of whom are male and 55 are female. Bus Eireann contends that as all Clerical Assistants, regardless of their sex, must meet the conditions of the 1981 agreement in order to be eligible to progress to the Clerical Officer 3 grade there is no discrimination.
4.3 The respondents explain because of problems in relation to filling promotional Clerical Officers vacancies due to the lack of formal educational standards, it was agreed in 1981 with the Unions including the T.S.S.A., to restore the previous standard of the Leaving Certificate for all future Clerical Officers, irrespective of whether they were recruited by open competition or selected through internal promotional procedures. The arrangement, which still applies, came into effect on the 30th November 1981.
4.4 On the issue of the assimilation of the Engineering Clerks Bus Eireann argues that this was a once off measure designed to integrate the clerical work in its garages into the mainstream clerical function. It further argues that the fact that those concerned were males reflects the route of entry that formerly existed into the Engineering Clerks grade.
4.5 Bus Eireann advises that a total of seventeen were assimilated, ten of whom hold the Leaving Certificate.
It further advises that the seven who do not hold the Leaving Certificate all entered the Company's service before the 30th November 1981.
4.6 In regard to the claimants' representative comments on the lack of possession of the Leaving Certificate by some Stationmasters Bus Eireann considers that it is not relevant in so far as Bus Eireann is concerned as it does not employ Stationmasters. Coras Iompair Eireann advises that "while there was a provision for the grades of Stationmaster to be filled without open competition and without a requirement for Leaving Certificate educational standard, any person who entered by that route were debarred from being employed in general clerical positions and could apply for Stationmaster jobs only."
4.7 Bus Eireann maintains that the educational qualifications of Clerical Assistants is not information that the Company necessarily has available. It points out that it is only "when Clerical Officer 3 positions are being filled through internal promotional procedures Clerical Assistant applicants who entered the Company's service after 30th November, 1981 are required to produce their Leaving Certificates". It further points out that an applicant whether male or female, who does not have the Leaving Certificate with at least five grade "D's" is ineligible to be considered for a Clerical Officer 3 position.
5 Conclusion of the Equality Officer
5.1 The Association's case of unlawful discrimination in essence is that the educational requirement of five "D" results in the Leaving Certificate is not strictly necessary, in terms of being an absolute prerequisite to carry out the functions of the Clerical Officer duties, a requirement that has been waived in certain instances involving male employees in the past, and that the imposition of the requirement impinges adversely and disproportionately against females.
5.2 The Association contends that there was unlawful discrimination of a direct nature and of an indirect nature exercised by the respondents against the claimants. The first issue I propose to address is whether or not the evidence available to me establishes that there was discrimination of a direct nature contrary to the terms of the Act.
5.3 In order to hold that there was discrimination of a direct nature, within the meaning of Section 2(a) of the Act, it is necessary here to establish that the claimants were treated less favourably than their male colleagues in the grade of Clerical Assistant. I note that Bus Eireann states that it employs 66 Clerical Assistants, 55 of whom are female and the remaining 11 are male. I further note that these details are not disputed by the Association. I am satisfied that the requirement, contained in the 1981 agreement, to possess at least five D results in the Leaving Certificate, in order to be eligible to progress to the Clerical Officer 3 grade applies equally to female and male Clerical Assistants. I am therefore satisfied that the claimants' case is not one which can properly be founded on an allegation of direct discrimination.
5.4 Section 2(c) of the Act deals with indirect discrimination and it states that discrimination shall be taken to occur:
"where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment or membership of a body referred to in Section 5, which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher."
5.5 The purpose of Section 2(c) of the Act is to render unlawful in the context covered by the Act, those requirements which while not overtly sex based, have a substantially disproportionate adverse impact on one sex, as claimed in this case, or on a different marital status but of the same sex and are not essential requirements. It is not in dispute that the claimants, who are all in the Clerical Assistant grade, in order to be eligible to progress to the Clerical Officer 3 grade, must possess " the minimum educational standard as is required for entry to the Clerical Officer grade by open competition, i.e. Leaving Certificate with at least 5 grade D results."
5.6 Mr. Justice Barron in the High Court, in the case of the North Western Health Board -Vs- Catherine Martyn, found that for discrimination within Section 2(c) to be established it must be established as a matter of fact that the number of those of one sex who can comply with a requirement is substantially higher than the number of those of the other sex who can comply or that the number of those of a particular marital status who can comply is substantially higher than the number of those of a different marital status but of the same sex who can comply. In the same case Justice Barron found that a condition to offend the provisions of Section 2(c) does not have to refer specifically to sex (or marital status). He found that "it is sufficient that it is such that as the result of an attribute of a person's sex ....... such persons are substantially more affected than persons of the other sex"
5.7 In order for an Equality Officer to establish as a matter of fact that the number of one particular sex who can comply with the requirement, within the relevant pool of workers, is substantially higher than the other sex s/he is obliged to interpret the relevant statistics.
5.8 In the present case it appears to me that the relevant pool, for comparison purposes, is all those in the Clerical Assistant grade. It is not in dispute that Clerical Assistants must meet, in order to be eligible to progress to the Clerical Officer 3 grade, a requirement of at least five D results in the Leaving Certificate. I note that the Association advises that it does not have access to details of the educational qualifications of Clerical Assistants and that Bus Eireann maintains that the educational qualifications of Clerical Assistants is not information that the Company
necessarily has available. In the circumstances it is not possible in this case to make a finding as to whether or not a substantially higher number of male Clerical Assistants than female Clerical Assistants can comply with the requirement.
5.9 Having regard to Justice Barron's finding in the High Court in the Martyn case, it is my opinion that even if there was evidence available here which established as a matter of fact that a substantially higher proportion of males can meet the educational requirement it would not necessarily follow that this would constitute discrimination in terms of Section 2 (c) of the Act, unless the fact that females were substantially more affected by the requirement than males resulted from an attribute of their sex.
5.10 I have given careful consideration as to whether or not the possession of a minimum of five D results in the Leaving Certificate is a consequence of an attribute of one's sex and I am unable to establish any attribute of one's sex which would result in a lower proportion of females than males being able to comply with such a requirement. Accordingly, irrespective of whether or not a higher proportion of males than females hold at least five D results in the Leaving Certificate, the imposition of a requirement to hold at least five D results in the Leaving Certificate does not, in my view, constitute discrimination in terms of Section 2(c) of the Act.
5.11 I find support for the views I have expressed on the issue of indirect discrimination in the case of The Revenue Commissioners and Ms. Frances Kelly (EE 09/1987). In that case the Union argued that it was not an essential requirement for Ms. Kelly to hold a driving licence to be capable of undertaking mobile patrol duties. The Equality Officer, in her rejection of a claim of indirect discrimination, stated that as she was unable to establish any attribute of sex which would result in a lower proportion of females than males being able to comply with a requirement to hold a full driving licence that "it is not necessary to establish, as matter of fact, the proportion of persons of each sex which can comply with the requirement."
5.12 I note that the Association, in support of its claim of unlawful discrimination, points out that some Stationmasters, who are in the Clerical Officer 3 grade, and some of the 17 male Engineering Clerks who were assimilated into the Clerical Officer 3 grade do not possess five D results in the Leaving Certificate. I am satisfied, regardless of whether or not these posts that are classified as Clerical Officer 3 grade may or may not be similar or allied to the Clerical Assistant grade, the fact remains that males and females within the claimants' grade of Clerical Assistant must comply for the purpose of promotion to the Clerical Officer 3 grade with the same requirement. Accordingly, as already stated, I am unable to hold that the respondents exercised unlawful discrimination of a direct nature against the claimants.
5.13 In order for the Clerical Officer grade 3 posts highlighted by the Association to have any significance to its case of indirect discrimination these posts would have to be included in the relevant pool of workers for comparison purposes. As stated at paragraph 5.8, the relevant pool of workers, in my opinion, would have been confined to those in the grade of Clerical Assistant.Consequently, the posts highlighted by the Association have no real relevance on the issue of indirect discrimination.
5.14 In reaching my conclusions in this case I have taken into account all the submissions both oral and written made by the parties to me. Having regard to the views that I have expressed in the preceding paragraphs I am satisfied that there was no unlawful discrimination, either direct in nature or indirect in nature, against the claimants. Accordingly, I find that neither of the respondents discriminated against the claimants in contravention of Section 2 (a) or Section 2 (c) of the Employment Equality Act, 1977.
6 Recommendation
6.1 In view of my conclusion in the preceding paragraphs, I find that Bus Eireann and/or Coras Iompair Eireann did not discriminate against Ms. F. Gerrard, Ms. D. McGill or Ms. M. Cooney contrary to the provisions of the Employment Equality Act, 1977.
------------------------
Jim Clerkin,
Equality Officer,
22nd January, 1996.