FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : POWER SUPERMARKETS LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MANDATE DIVISION : Chairman: Ms Owens Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal against Equality Officer's Recommendation EE23/96.
BACKGROUND:
2. In November/December, 1994, the Company selected four male employees to work a temporary night shift to carry out merchandising duties. The shift carried a premium rate of pay and was for approximately ten nights up to the 23rd December, 1994. Following a meeting with the Union on the 2nd December, 1994, the Company agreed to open up night shift work to all interested staff members, both male and female. The Company claims that only two female employees applied for the night shift, one of whom was refused because she was required for supervisory and checkout duties during opening hours. The other employee worked the night shift hours which suited her personal circumstances. The Union claims that the Company discriminated against female employees when it initially selected and offered work to four male staff members from a total of eight male and five female merchandising staff members. It also claims that the Company did not advertise the availability of night shift work to all employees after the meeting of the 2nd December, 1994.
The Union referred a claim on behalf of fifteen named female employees to the Labour Court under the Employment Equality Act, 1977. The Court referred the case to an Equality Officer for investigation. His recommendation, which issued on the 21st November, 1996, found that the Company discriminated against the claimants in terms of Section 2(a) and contrary to Section 3 of the Employment Equality Act, 1977. The Equality Officer recommended that the Company inform sales assistants in good time that they are invited to apply to be considered for the temporary night crew whenever the need for a temporary night crew arises. He further recommended that fourteen of the fifteen claimants be paid the sum of £100 by way of compensation in respect of the distress and injury to feelings suffered as a result of the discrimination. The Equality Officer made no recommendation of an award to the fifteenth claimant on the grounds that it appeared that she had accepted a sum of money in full and final settlement of all claims against the Company upon the termination of her employment in May, 1995.
On the 11th December, 1996, the Labour Court received a notice of appeal of the Equality Officer's recommendation from the Company on the following grounds:-
(1) The Equality Officer erred in law and in fact in concluding that
Power Supermarkets discriminated against the claimants in
terms of Section 2(a) and contrary to Section 3 of the Employment
Equality Act, 1977.
(2) Any other grounds which arise during the course of the investigation.
On the 23rd December, 1996, the Union appealed the recommendation on the basis that the Equality Officer erred in law and in fact in finding that one of the claimants should not be compensated for the discrimination suffered. On the 3rd January, 1997, the Union also requested that the Equality Officer's recommendation be amended to include the name of a further claimant as it had previously requested the Equality Officer on the 27th May, 1996, and the Labour Court on the 30th May, 1996.
The Labour Court heard the appeals on the 29th May, 1997. Both parties made written submissions to the Court and expanded orally on their submissions at the hearing.
DETERMINATION:
The Court, in considering the appeals of the parties, has taken into consideration the written submissions, the Equality Officer’s conclusions, and the oral evidence which was given at the hearing.
The Court is satisfied that the Company’s allegation that the claim by the Union is frivolous and vexatious and initiated by a trade union official in pursuit of a personal agenda is without foundation. No tangible evidence was offered to substantiate this claim.
Considering the substantive element of the appeal the Court finds itself in agreement with the Equality Officer when he concluded that since women had been included in the night shift in previous years and had therefore satisfied the criteria there could have been no valid obstacle to the transfer of female assistants to the crew selected by the store manager in the first instance. His conclusion that management had confined the selection criteria to males only and had thereby discriminated against the claimants is correct in the view of the Court. The fact that some males were not included does not alter this view.
The Court does not consider that the actions of the management following the meeting of December 2nd, 1994, negative the earlier discrimination.
The Court, accordingly, rejects the appeal by the Company and upholds the Equality Officer's finding that Power Supermarkets Limited trading as Quinnsworth, Roselawn Shopping Centre, Castleknock, Dublin 15, discriminated against the claimants in terms of Section 2(a) and contrary to Section 3 of the Employment Equality Act, 1977. It awards compensation of £100 to each of the claimants.
The Union had also appealed this recommendation on the basis “that the Equality Officer erred in law and in fact in finding that one of the claimants, Ms. Martina Kirwan, should not be compensated for the discrimination suffered”.
The recommendation of the Equality officer stated:-
“6.1... I further recommend that each of the claimants, except Ms. Martina Kirwan, be paid the sum of £100 by way of compensation in respect of the distress and injury to feelings suffered as a result of the discrimination. I have made no recommendation of an award to Ms. Kirwan because it appears from a document signed by her that on the termination of her employment circa May, 1995, she accepted a sum of money in full and final settlement of all claims against the Company”.
The Union asserts that Ms. Kirwan did not accept a sum of money “in full and final settlement of all claims against the Company”. It claims that Ms. Kirwan accepted a sum of money “in full and final settlement of all claims regarding the termination of my employment with Power Supermarkets Limited”. A copy of the relevant document was submitted to the Court. The Company submitted that, notwithstanding the wording, the document ended the employment and any claim that Ms. Kirwan may have had against the Company.
The Court is satisfied that the wording on the document dealing with Ms. Kirwan’s termination was specific to that termination. As the case under the Employment Equality Act, 1977, was entered 16 months prior to Ms. Kirwan leaving the Company, it could not be taken to be included under the terms of that document without specific reference to it.
The Court, therefore, upholds the appeal of the Union and finds that Ms. Kirwan should be included in the list of claimants to receive £100 by way of compensation in respect of the discriminatory action.
Signed on behalf of the Labour Court
Evelyn Owens
10th July, 1997______________________
D.G./D.T.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.