FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : BAILEY GIBSON LIMITED THE IRISH PRINT UNION (REPRESENTED BY M O'LEARY & CO/ IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS. BREDA NATHAN (REPRESENTED BY O'MARA & COMPANY SOLICITORS) DIVISION : Chairman: Mr McGrath Employer Member: Mr Keogh Worker Member: Mr Walsh |
1. Hearing arising from the Supreme Court ruling regarding Labour Court Determination No. DEE191 concerning a claim by Ms. B. Nathan that she was discriminated against on the basis of her sex, contrary to Sections 2 and 3 of the Employment Equality Act, 1977 (hereinafter referred to as 'the Act').
BACKGROUND:
2. Ms. B. Nathan (hereinafter referred to as 'the worker') has been employed by Bailey Gibson Limited (hereinafter referred to as 'the Company') for approximately twenty years, and for about ten of these has been an assistant to the operator on the carton folder/gluer machine. In January, 1988 the man operating this machine retired and the worker applied for the position. The Company has an agreement with the Irish Print Union (hereinafter referred to as 'the I.P.U.') that an operator of a carton folder/gluer machine must be a member of the I.P.U. The worker concerned was not a member of the Union. On 29th April, 1988 the Company wrote to the Union requesting it to consider the training of the worker concerned for the post. On 13th May, 1988 the Union wrote to the Company stating that the normal practice must apply, i.e. that the vacancy must be advertised and the Union would have to be satisfied that there were no suitable I.P.U. applicants available before it would consider the Company's request.
On 12th May, 1988 the Company advertised the vacancy and subsequently interviewed a number of candidates, all of whom were male and members of the I.P.U. However, both the first and second preferences rejected the Company's job offer. On 28th June, 1988 the Company wrote to the Union stating that it would again like to propose training the worker for the position. The Union requested the Company to interview unemployed I.P.U. members with a view to retraining one of these for the position. Seven male unemployed I.P.U. members were interviewed and on 1st September, 1988 the vacancy of carton folder/gluer operator was filled by one of them. The worker was of the opinion that both the Company and the Union had discriminated against her. On 28th February, 1989 the Employment Equality Agency, on behalf of the worker, referred her complaint to the Labour Court under Section 19 of the Act. The Court referred the case to an Equality Officer for investigation and recommendation. The Equality Officer's Recommendation (EE1/1990) issued on 6th February, 1990. She found that the Company had indirectly discriminated against the worker in terms of section 2(c) of the Act, 1977, and recommended that the Company pay the worker £700 in respect of distress and injury to feelings. Both parties appealed the recommendation to the Labour Court.
In its appeal, the Company argued that no proper reference had been made under section 2(c) of the Act, and furthermore that the dispute (if any) was between the I.P.U. and the worker, the Company having done everything within its power to obtain an I.P.U. card for the worker. The Company also objected to the statistical evidence used by the Equality Officer, and argued that the rules about employing an I.P.U. member applied to both male and female workers. The Company finally objected to the redress given by the Equality Officer, claiming that there was no provision in the Act for the granting of compensation for injury to feelings.
The worker, in her appeal, was essentially dissatisfied with the Recommendation of monetary compensation, and claimed that the proper remedy for the discrimination found by the Equality Officer was to appoint her to the position she had sought in the Company, or that she be compensated for the loss of earnings which resulted from the failure to appoint her.
Before proceeding with the appeals, the Court decided that since the I.P.U. was directly involved in the case, it would be preferable if it were represented at the appeals, although the Equality Officer had made no finding in this particular case against the Union. The I.P.U. indicated its wish to be represented before the Court at the hearing of the appeals. The Union argued that the requirement that the holder of the job be an I.P.U. member was an essential requirement because it was based on a collective agreement in a very structured industry. But it also argued that the requirement did not in any event operate to discriminate against the worker. The distinction is between members and non-members in relation to employment opportunities, not the sex of those members or non-members. The Union also objected to the comparison pool chosen by the Equality Officer.
The Court heard the appeals and the I.P.U. submission on 8th November, 1990. The Court issued the following Determination on the 8th April, 1991:-
- "Having considered the oral and the written submissions made by the
parties and the Recommendation of the Equality Officer, the Court holds
that there was a reference by the worker under Sections 2 and 3 of the
Employment Equality Act, which was enough to include a claim under
Section 2(c) of the Act. However, the Court finds that there was not indirect
discrimination against the worker in the terms of Section 2(c) or in
contravention of Section 3 of the Act.
The Court bases its determination on the following grounds:
1. In the Irish printing industry, craft workers were organised in specific unions, including the Irish Print Union, while non-craft employees were in general organised on a gender basis - with male non-craft employees organised by the I.T.G.W.U., and female non-craft employees organised by the Irish Women Workers Branch of the F.W.U.I. Membership of the I.P.U. was not based on gender. The I.P.U. grants membership to non-craft workers in particular circumstances, and when it does so, membership is granted irrespective of the sex of the employee. However, its first objective is to keep its existing members in employment, be they male or female.- 2. In pursuance of that objective, the I.P.U. had an agreement with the Company that certain procedures be observed in relation to recruitment. The Equality Officer was satisfied that the policy of recruitment resulted in the same difficulties for applicants, whether the candidate for employment was male or female - the Company could only recruit independently with a guarantee of a membership card for the proposed employee if the agreed procedures had first been implemented to the satisfaction of the I.P.U.
3. The fact of the matter is that there are many more male members of the I.P.U. than there are female members. This is because, historically, the craft area of the printing industry attracted more men, and it is only in recent years that women have entered this employment area. Therefore, if the Company could only recruit someone with a Union card, inevitably the pool of people who could comply with the requirement to have a Union card was going to contain more men than women.
- 2. In pursuance of that objective, the I.P.U. had an agreement with the Company that certain procedures be observed in relation to recruitment. The Equality Officer was satisfied that the policy of recruitment resulted in the same difficulties for applicants, whether the candidate for employment was male or female - the Company could only recruit independently with a guarantee of a membership card for the proposed employee if the agreed procedures had first been implemented to the satisfaction of the I.P.U.
- 4. The Equality Officer has pointed out in her Recommendation that currently in excess of 80% of I.P.U. membership is male. (In this context the Court notes the I.P.U. at the hearing of the appeal indicated that 82% of its membership is male and 18% is female). The Equality Officer was satisfied that it was therefore reasonable to conclude that the reason females were substantially more affected by the requirement to have a card than males was related to an attribute of their sex. The Court does not agree with the logic of this argument. We take the view that the worker first had to show that there was a causal link between the requirement to have a Union card and her sex. Only then would it become relevant whether the proportion of men able to comply with the requirement was substantially higher. But what was this 'attribute' of her sex? In North Western Health Board V. Martyn (High Court 1984, Supreme Court 1987) an age requirement was the relevant attribute. But this Court finds that there are no conditions for membership of the I.P.U. or for apprenticeship in the industry which are more onerous on women than on men. It is a fact that more men than women have I.P.U. cards, but this is simply because historically males occupied the craft positions in the Irish printing industry. The requirement for certain employees to hold an I.P.U. card was agreed between the Union and the Company. But that requirement which was craft based and which was imposed on the worker by the Company bore no relationship to the sex of the worker. It was imposed in circumstances in which, had the agreed procedures not resulted in the recruitment of an I.P.U. member (male or female), it was a matter of indifference to the Union whether a male or a female was recruited for the job - the person would automatically have been given Union membership, and the training necessary to carry out the work concerned (in other words, craft status would have been conferred without the need for a formal apprenticeship being entered into).
5. We find, in effect, that the disproportionate impact of the requirement on women is not causally linked with sex, but is historic. It was not because she was a woman that the worker could not become a member of the Union; it was because she was a non-craft worker in a non-craft Union, and because there were existing I.P.U. members available for employment. In Revenue Commissioners v. Kelly (EE 9/1987), the requirement imposed on applicants for a job was that they hold a full driving licence. In that case the Equality Officer was unable to establish any attribute of their sex which would result in a lower proportion of females than males being able to comply with the requirement. In this case, the requirement was to hold a Union card. But unless the Union was discriminating between men and women in those to whom they gave cards, and only gave them to men, or imposed conditions which made it more difficult for women to obtain them, the worker could not claim that the requirement to have a card discriminated against her. Historical circumstances which have resulted in more men than women in a craft industry do not lead to the conclusion that the small number of women in the industry now is an attribute of their sex.
6. In the light of its findings at paragraphs 4 and 5 above that the requirement imposed on the worker was not causally related to the sex of the worker, the other matters raised by the appeals and by the I.P.U. submission are irrelevant."
- 4. The Equality Officer has pointed out in her Recommendation that currently in excess of 80% of I.P.U. membership is male. (In this context the Court notes the I.P.U. at the hearing of the appeal indicated that 82% of its membership is male and 18% is female). The Equality Officer was satisfied that it was therefore reasonable to conclude that the reason females were substantially more affected by the requirement to have a card than males was related to an attribute of their sex. The Court does not agree with the logic of this argument. We take the view that the worker first had to show that there was a causal link between the requirement to have a Union card and her sex. Only then would it become relevant whether the proportion of men able to comply with the requirement was substantially higher. But what was this 'attribute' of her sex? In North Western Health Board V. Martyn (High Court 1984, Supreme Court 1987) an age requirement was the relevant attribute. But this Court finds that there are no conditions for membership of the I.P.U. or for apprenticeship in the industry which are more onerous on women than on men. It is a fact that more men than women have I.P.U. cards, but this is simply because historically males occupied the craft positions in the Irish printing industry. The requirement for certain employees to hold an I.P.U. card was agreed between the Union and the Company. But that requirement which was craft based and which was imposed on the worker by the Company bore no relationship to the sex of the worker. It was imposed in circumstances in which, had the agreed procedures not resulted in the recruitment of an I.P.U. member (male or female), it was a matter of indifference to the Union whether a male or a female was recruited for the job - the person would automatically have been given Union membership, and the training necessary to carry out the work concerned (in other words, craft status would have been conferred without the need for a formal apprenticeship being entered into).
1. Section 3(1) of the Act prohibits both direct and indirect discrimination.
2. Section 3(2) of the Act places a clear obligation on the employer not to have rules or instructions which would discriminate either directly or indirectly against an employee.
3. A requirement, relating to employment or membership of a body 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, may amount to indirect discrimination even when a person is obliged to comply therewith for reasons other than a person's sex or marital status.
4. The Labour Court and the learned trial Judge had erred in law in holding that there must be a causal connection between the requirement and the sex or marital status of the employee.
5. If it was shown that the practice complained of bore significantly more heavily on members of the complainant's sex than on members of the other sex, then the complainant had established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff's sex.
6. The Appeal was allowed and the matter was referred back to the Labour Court for consideration by it in the light of the provisions of Section 3 of the Act.
A Labour Court hearing was held on the 11th February, 1997.
Both parties made written submissions (details to the Court) and expanded orally on these submissions at the hearing. The following is the Court's Determination:
DETERMINATION:
In this case, the Supreme Court has directed the Labour Court to reconsider the allegations of discrimination in the light of the Directive and of the provisions of Section 3 of the Act.
The Directive, in Article 2, describes the principle of ‘equal treatment’ as meaning that ‘there shall be no discrimination whatsoever on grounds of sex....’. Article 3 provides that the application of the principle means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy’. The application of the principle with regard to working conditions means, according to Article 5, ‘that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.’
The Supreme Court decision held that if it could be shown that the practice of which the worker complains bears significantly more heavily on women than on men, then she will have established a prima facie case of discrimination. Thereafter, the onus would shift to the employer, who, to avoid a finding of discrimination against it would have to show that the practice was based on objectively verifiable factors which had no relation to the worker’s sex.
The obligation on an employer by Section 3(2) of the Act as identified by the Supreme Court is ‘not to have rules or instructions which would discriminate either directly or indirectly against an employee.’
The ‘rules or instructions’ or the practice of which complaint is made, is the requirement by the Company that the worker be a member of the I.P.U. before she would be eligible for appointment to the post of operator of the carton folder/gluer machine.
The worker alleges that the requirement bears significantly more heavily on women, because the membership of the I.P.U. is predominantly male.
Having carefully considered the facts of this case, the Court finds that the practice in question was the recruitment by the Company of only I.P.U. card-holding members to certain jobs within the Company, including the job for which the worker had applied, pursuant to an industrial relations agreement with the I.P.U. The requirement was to be a member of the I.P.U. in order to be eligible for the job of operator of the carton folder/gluer machine.
In relation to the particular vacancy, the Company gave evidence to the Equality Officer (which was not contradicted then or since) that at the time of the worker’s application, and had it not been for the impugned practice, it would have sought applications from among its existing employees to fill the position. The requirement, therefore, affected all of its workforce who were not I.P.U. members. Only 21 of the Company’s employees were, at the time, eligible to apply for the position, because the Company was constrained by its agreement with the I.P.U. to employ only I.P.U. members for that job. If the Union constraint had not been there, the Company would have been free to recruit from among the balance of its workforce, including the worker.
In fact it did not seek any applications initially at all, because the worker made an unsolicited request for the position and was the only applicant.
The Company submitted figures to the Equality Officer of its existing employees at the time the vacancy arose. They totalled 89, of whom 61 were men and 28 were women. Only 21 of the male employees were members of the I.P.U. who would have been able to satisfy the requirement to be a card-holding member of the I.P.U. The practice of only recruiting I.P.U. members to certain positions within the Company, and to that position in particular, therefore affected at the time 28 women and 40 men, all of whom were employed by the Company, but none of whom had I.P.U. cards. As the Company pointed out in its appeal to the Court, if an applicant for the position had been a male general worker (that is, a non-I.P.U. member), the same impugned requirement would have applied and the same result as the result which affected the worker would have arisen.
The Court finds that the ‘pool’ which the requirement or practice affected was, as the Equality Officer had found, the existing employees within the Company. But whereas the Equality Officer had concluded that the impugned requirement affected more women because 0% held an I.P.U. card, the Court finds that statistically it affected more men than women. What the Court is examining is the 'practice’ which the Company as the employer was operating, and the question, therefore, is ‘Who did the practice affect?’. Given the undisputed figures for the workforce, and their respective sexes, and the undisputed fact that normal recruitment at the time was from within the existing workforce, 45% of those who were affected by the impugned practice were male and 31.5% of those affected were female. Those who could comply comprised 23.6% of the workforce.
What Section 3 imposes on an employer is ‘not to have rules or instructions which would discriminate’. The practice of requiring a worker to be an I.P.U. member did discriminate against the women employees, including the worker in this case, but not in such numbers as to amount to discrimination within the meaning of Section 3, since it was male employees who were more significantly affected.
It is difficult to envisage the impugned practice in relation to the selection criteria in 1988 in the Company for the job, the worker having applied for it without it having been offered to any of the workforce. However, its effect can be understood from the subsequent events. In 1989, when the impugned practice was no longer applied, the same job was actually secured by a male non-I.P.U. employee who had been with the Company in 1988 along with the worker when the job had first become available. That employee had been equally disadvantaged by the situation which pertained in 1988 when all non-I.P.U. members in the Company’s employment were negatively affected by the requirement or practice. The majority of those non-I.P.U. employees affected were male.
The Court concludes from the statistics that the practice operated by the Company of which the worker complains did not in fact bear significantly more heavily on members of her sex. Rather, it bore more heavily on the members of the opposite sex. Furthermore, the Court finds that there is no evidence whatsoever that the obtaining of an I.P.U. card was made more difficult by the Company for the women employees than it was for the male employees.
Viewing the situation in the light of the provisions of the Directive, the Court finds that there was no sex-based criteria operated by the Company which resulted in the non-selection of the worker for the desired position.
The Court finds that the worker has not shown a prima facie case of discrimination, either direct or indirect, by the Company against the members of her sex in the Company’s employment. The practice in operation and the requirement imposed for the recruitment to the particular job at the particular time actually prevented the Company from seeking applications from a greater number of male employees than of female employees. The onus of proof, therefore, does not shift to the employer to justify the practice.
The Court is satisfied that the gender balance in the composition of the membership of the I.P.U. itself is irrelevant for the purposes of this case, since this was not a matter within the employer’s sphere of responsibility. The Company was responsible for accepting the constraints of a ‘closed shop’ arrangement, and for the effect that practice had on its employees. But the practice did not, in fact, bear more heavily on the women in its employment than it did on the non-I.P.U. male employees, and did not therefore constitute discrimination within the meaning of Section 3.
Having reconsidered the case in the light of the Supreme Court decision and the submissions of the parties, the Court holds that there was not discrimination within the meaning of Section 3 of the Act, and allows the appeal by the Company.
Signed on behalf of the Labour Court
Tom McGrath
14th August, 1997______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.