EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 13/1996
PARTIES
Fifteen named female employees
{Represented by S.I.P.T.U.}
and
Ericsson Systems Expertise Limited.
{Represented by I.B.E.C.}
1 Dispute
1.1 This dispute concerns a claim by fifteen named female
employees that Ericsson Systems Expertise Limited
discriminated against them on the grounds of their sex
in terms of Section 2 of the Employment Equality Act,
1977 and in breach of Section 3 in the manner in which a
newly created promotional outlet was filled.
2 Background
2.1 Following the transfer in 1989 of the ownership of the
Production Division of LM Ericsson Ltd the decision was
made to the amalgamate its Design Division with Ericsson
Expertise Ltd to form Ericsson Systems Expertise Ltd.
At that time it was also decided that the financial,
personnel and engineering and support services of LM
Ericsson Ltd would transfer to Dublin. It was agreed
that there would be no forced transfers to Dublin, those
who wished to remain in Athlone would be accommodated in
Ericsson Systems Expertise Ltd.
File No. EE 32/1994
2.2 At the end of August, 1994 a male employee was
transferred from LM Ericsson Ltd to a newly created post
in Ericsson Systems Expertise Ltd. The claimants
believe that the respondent by its failure to advertise
the post denied them access to one of a very small
number of promotional outlets, or an outlet that would
afford greater job satisfaction or better career
prospects. The claimants consider that Company's
conduct towards them amounted to unlawful
discrimination, because of their sex, under the terms of
the Employment Equality Act, 1977.
2.3 On the 30th November 1994 the claimants through their
Union 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
and subsequent to that hearing further submissions were
received from the parties. A final hearing took place
on the 21st. June 1996.
3
3 Summary of the Claimants' Case
3.1 The Union submits that the claimants were discriminated
against by Ericsson Systems Expertise Limited (EEI) on
grounds of their sex within the meaning of Section 2 of
the Act and in contravention of Section 3 of the Act in
the manner in which a newly created promotional E Grade
post of Project Administrator, in the S.H. Department,
was filled. A list of the names of the claimants and
their grade is at Appendix 1.
3.2 When it was decided to establish the S.H. Project, the
Union states, that a number of staff were appointed
including a Manager and Software Design staff. The
Union further states that the Manager's job was
advertised and filled by a male, however, the first the
Unions members knew about the filling of the
Administrator's job was when a committee member was
informed by the Personnel Department that the Company
intended to put a male from LM Ericsson Ltd (LMI) into
the vacant position.
3.3 The Company, the Union contends, in not advertising the
vacancy acted contrary to the Union/Management
agreement. On a number of occasions in recent years,
4
the Union states, there has been disagreement about the
non-advertising of vacancies and assurances were given
by Management that in future all vacancies would be
advertised. This particular vacancy, the Union
stresses, was not advertised even though the S.H.
Department was in existence for some months prior to the
administration job being filled.
3.4 The failure to advertise the post of Administrator, the
Union submits, denied a predominantly female workforce
i.e the A to H grades, access to one of a very small
number of promotional outlets or an outlet that would
afford greater job satisfaction or better career
prospects. The Union advises that four of the claimants
are in the D Grade and the remaining eleven are in E
Grade positions, five of E Grade claimants are Project
Administrators. The Union goes on to state:
"The rather routine nature of the work of some
staff would cause them to apply for an alternative
position at the same grade, but performing a
different mix of duties - a mix of duties that
might open up potential for greater job
satisfaction and/or better career prospects.
.......
5
Some of the existing Project Administrators or
other Grade E staff would have seen Department S.H.
as providing an opportunity that they would have
welcomed in what is represented as a new
opportunity for experience and job enrichment.
The claimants on the Grade D would see this post as
a very rare opening for promotion and experience to
a different mix of work and held the potential for
greater job opportunity."
3.5 The claimants' representative wrote to the Company
complaining about the failure to advertise the position
on the 30th August, 1994 and again on the 22nd
September, 1994, the respondent replied on the 4th
October, 1994, see appendices 2 to 4. At a formal
conference held in October 1994, the Union asserts that
the following was confirmed:
"(a) that a job had to be found for the male in L.M.I.
and they thought it appropriate to slot him across to
the Grade E Admin post.
(b) that the prospect of an administrator being
appointed to Department S.H. had been raised by E.E.I.
6
(Ericsson Systems Expertise Ltd) staff some 2/3 months
earlier, and that it was confirmed that it would require
a Project Administrator and Secretary.
(c) that the male held a Grade F, having been upgraded
some weeks prior to his appointment to the Admin. role.
(d) that the male had not been made redundant from
L.M.I. prior to his transfer to E.E.I."
3.6 The Union claims that the Company's attitude to Ms.
Teresa Dolan is in contrast with its attitude to the
male, who was given a suitable role without any
competition and to the detriment of the claimants who
had an interest in the Administrator role. The Union
states that Ms Dolan, at the behest of the LMI,
reluctantly moved to Dublin and it was the Company's
stance that she could not get special treatment.
4 Summary of the Respondent's case
4.1 In general the respondents management would agree that
jobs, particularly those with promotional opportunities
should be advertised, but they would also claim that in
certain circumstances they should and must have the
right not to advertise. When such circumstances arise,
7
as the respondent believes arose in this case, they do
not in any way constitute discriminatory behaviour on
the Company's part.
4.2 The Company accepts that its communications with the
Union could have given more notice of the transfer of Mr
O'Connor. It explains that the S.H. project was given
to the Company on a pilot basis and that the complement
of staff was gradually built up on the project. It adds
that the Company was aware of Mr O'Connor's availability
and his transfer was agreed between the Senior Managers
of LMI and EEI involved with the support of Personnel.
4.3 The Company submits that there are circumstances in
which the Company believes the advertising of vacancies
is not in all cases appropriate, these are detailed in
Appendix 5, summarised as follows:
(1) redeployment were an existing job no longer exists
(2) where there is an obvious candidate for the position
(3) attempt to facilitate an employee who wishes to
transfer because of personal/domestic
8
circumstances
(4) where opportunities for job rotation within
departments are mutually acceptable
4.4 The current Company/Union agreement for this staff
category, the Company asserts, outlines the philosophy
to recruitment and promotion. The Company points in
particular to Section 8, clauses 8:1 and 8:3 of the
agreement:
Clause 8:1 states that, the Company has the sole
right to recruit new employees to meet its needs.
Clause 8:3 states that, promotions will be at the
discretion of Management. It is the Company's
policy to promote from within where possible.
Where qualified candidates are available all
vacancies will be advertised internally and filled
as soon as possible. The Company undertakes to
pursue fair and equitable promotional policies and
procedures.
4.5 In relation to the implementing the agreement and policy
9
the Company states that:
"we do not wish to engage in exercises or charades
of advertising for advertising sake. If we were to
do this our employees could and would point this
out to us, as the Company having already made up
its mind beforehand, wasted both Management and
Employees time in engaging in a selection process
which was not necessary in the first place. This
course of action e.g. not advertising must not be
the norm but only occur in exceptional
circumstance."
4.6 The Company submits that there have been no forced
transfers of those affected by transfer of certain
operations of LMI (LM Ericsson) from Athlone to Dublin,
those who willing to transfer to Dublin were facilitated
and those who were not in a position to transfer to
Dublin for whatever reason were also facilitated. The
Company maintains that the in the rare cases were
"advertisements" have not been used there have been good
and genuine reasons for doing so and this process
operates regardless of sex of the individuals involved.
The Company gives as examples cases in which five
females and two males were involved, see Appendix 6.
10
4.7 The Company accepts that the non advertising of
vacancies has been discussed with both Shop Stewards and
with the Union Official. The Company describes the
Union's reference to a "displaced" female member as a
"red herring". It maintains that the female member who
went to Dublin did so on a voluntary basis to allow her
to make a decision on the suitability of that location
to her. When she notified the Company that she wished
to return to Athlone she was accommodated through a
secondment agreement with the training Department. The
Company adds that during her secondment she applied for
suitable vacancies but was not successful until her
transfer to into Personnel.
5 Conclusions of the Equality Officer
5.1 The claimants' case in essence is that the transfer of a
male employee, a Mr. G O'Connor, into a newly created
promotional position, without advertising the vacancy,
amounted to unlawful discrimination against the
claimants.
5.2 The Company contends that in certain circumstances were
11
there are good and genuine reasons, as the case here, it
has the right not to advertise positions and that the
exercise of that right does not constitute
discriminatory behaviour on its part.
5.3 Having considered the totality of the evidence in this
case, the first issue I propose to address is whether or
not the evidence available suggests that the Company in
the past acted in such a manner, in relation to the non
advertising of posts in the grades concerned, as to
indicate a background of discrimination. After I have
considered that issue I will then address the central
question in this case of whether or not the non
advertising of the Project Administration position in
the S.H.Department constitutes a prima facie case of
discrimination. If I find that the evidence available
infers that there has been discrimination I will then
consider whether it constitute unlawful discrimination,
either direct in nature or indirect in nature, in the
context of the Act of 1977.
5.4 I note that the Union cites a case wherein it alleges
that the Company's treatment of a female (Ms. Dolan) is
in contrast to the treatment afforded to Mr. O'Connor.
12
There is a conflict between the Union and the
respondent, in particular Mr. Murphy Human Resources
Manager LMI, as to whether or not Ms. Dolan voluntarily
moved or was forced to move to Dublin but it is not
disputed that she unlike Mr. O'Connor competed for
suitable positions in EEI. While this conflict exists I
note that the Union does not dispute that the reason she
was originally only seconded, shortly after her six
months in Dublin, to EEI was because of the strict
controls on staffing imposed by the Trim '92 programme.
I further note that while she was unsuccessful in
applications for various posts she was transferred to a
position which, I was informed by the Company, would
otherwise have been advertised.
5.5 The Company, I note maintains that most vacancies are
advertised but argues "that in certain circumstances
they should and must have the right not to advertise."
The respondent furnished examples of cases, five
involving females and two involving males, where
advertisements were not used, Appendix 6 refers. When I
raised this list with the claimants' representative he
observed in relation to cases (1) and (2) the females
involved wished to be moved; he pointed that the six
13
month job rotation, mentioned at (4), is part of staff
development and is in accordance with an agreement; (5)
he stated referred to Ms. Dolan; he accepted that the
female employee concerned (6) moved to EEI because of
interpersonal difficulties with her Supervisor. I note
that the Union made no comment on the cases involving
the two males.
5.6 Having given careful consideration to the case cited by
the Union and those cases cited by the Company in
support of their respective cases, in isolation of the
case giving rise to this dispute, I am satisfied that
the Company made its decisions for various reasons to
meet different situations. It is my opinion that
evidence available does not indicate in the past that
Company operated, in relation to the non advertising of
vacant positions, in a discriminatory manner.
5.7 The central issue here is whether or not the non
advertising of the position which Mr. O'Connor filled
amounted to unlawful discrimination. As already stated
I consider in the past there was no discrimination
attached to the Company's filling of positions not
advertised, however, the events leading up to Mr
14
O'Connor's transfer, in my opinion give rise to question
in the context of the Act of 1977. I note in
particular the following information received from the
Company:
the Cad job which Mr O'Connor had held since 1991
in LMI ended in May '94
he then transferred to DT activity within Plant
Engineering area of LMI
as that position was an F role he was upgraded -
June '94
the paper work had not gone through in respect of
this upgrading before his transfer to EEI
Mr. O'Connor's transfer was arranged between the
line Managers concerned in LMI and EEI
Personnel was unaware of the transfer and that he
had been upgraded until a couple of days before its
operative date
15
Personnel concede that it is somewhat unusual that
a transfer is arranged between line Managers
the Project Administration position is a Grade E
position
I have given careful consideration to the information I
received in relation to Mr. O'Connor's transfer and
having regard to information obtained, in particular
those details which I have highlighted above, it is my
opinion that the evidence available infers that there is
a prima facie case of discrimination.
5.8 In order to hold that there was discrimination of a
direct nature, it is necessary here to establish that
the claimants were treated by the respondent less
favourably than Mr. O'Connor because of their sex. I
note that it is not in dispute that the A to H Grades
were made up, at the relevant time, as follows:
GRADE MALE FEMALE
A 0 2
B 1 0
C 0 7
D 2 6
16
E 3 18
F 0 8
G 1 0
H 0 2
Totals 7 43
5.9 I note that the Union argues that the existence of males
in the A to H Grade does not invalidate the claim of
discrimination, however, the reality is that the
consequences of the Company's actions in appointing Mr.
O'Connor to the post without it being advertised equally
affected the males and females in these grades as they
all would have been eligibility to apply for the
position of Project Administrator in the S. H.
Department. Accordingly, I am satisfied that the
claimants' case is not one which can properly be founded
on an allegation of direct discrimination.
5.10 Indirect discrimination takes place where requirements
or conditions, which are not overtly sex based, have a
substantially disproportionate adverse impact on one sex
and are not objectively justified requirements or
conditions. It may be useful to state that indirect
discrimination involves a comparison between the
17
treatment of groups as distinct from direct
discrimination where the comparison is on an individual
basis.
5.11 The claimants make no allegation that the males as a
group or that certain males within the A to H Grades,
were treated in a different manner than the females in
those grades. I note that the Union made no comment on
the cases cited by the Company, where it considered that
it had the right not advertise, involving two males.
There is no evidence available to me to infer that the
Company set requirements or conditions which had an
adverse impact on a particular one sex. I therefore
cannot hold, on the evidence available to me, that the
Company exercised indirect discrimination against the
claimants contrary to the terms of the Act.
5.12 In reaching my conclusions in this case I have taken
into account all the submissions both oral and written.
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,
18
I find that the claimants have no entitlement, under the
Act of 1977.
6 Recommendation
6.1 In view of my conclusion in the preceding paragraphs, I
find that Ericsson Systems Expertise Limited did not
discriminate against the claimants contrary to the
provisions of the Employment Equality Act, 1977.
------------------------
Jim Clerkin,
Equality Officer,
5th July, 1996.
19