FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM (APPELLANTS) THE SECRETARY, DEPARTMENT OF JUSTICE, EQUALITY & LAW REFORM (REPRESENTED BY THE CHIEF STATE SOLICITOR ) - AND - MS THERESE HAND (COMPLAINANT) (REPRESENTED BY ANTHONY KERR B.L.) (INSTRUCTED BY O'MARA, GERAGHTY MCCOURT, SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. (1) Appeal by the employer against the Equality Officer's Recommendation EE12/97 and (2) Appeal by the worker for a Determination that Recommendation EE12/97 has not been implemented. It is alleged that the claimant was discriminated against in terms of Section 3 of the Employment Equality Act, 1977 and contrary to Section 2(c) of the Act.
BACKGROUND:
2. The background to this case is set out in the Equality Officer's Recommendation (details with the Court). The Equality Officer in her Recommendation, which was issued on the 14th of May, 1997, found that the worker was discriminated against contrary to the terms of the Employment Equality Act, 1977.
The Minister for Justice, Equality and Law Reform and the Secretary of the Department of Justice, Equality and Law Reform appealed the Recommendation to the Labour Court on the 24th June, 1997.
The Appellants contested the findings of the Equality Officer on a large number of issues of fact and of law, all of which are set out in the notice of appeal. Inter alia, the Appellants argued that they had a defence in Section 13 of the Act which does not require an employer to employ a person who will not undertake the duties attached to the position, and that the position was a full-time position. They also took issue with the statistics presented on behalf of the claimant. They denied that there was any 'requirement' on the claimant to work full-time, or that it was a condition of employment or a practice within the employment that she do so. They claimed that they had established that the claimant's position was unsuitable for job-sharing and that the Equality Officer had relied on hearsay evidence and imposed an excessively strict standard in relation to the Appellants' decision on the matter. They further disputed a number of findings of fact made by the Equality Officer or the interpretation she had put on some of the facts. They challenged her jurisdiction in relation to some of her findings.
The claimant appealed for a Determination that EE12/97 be implemented.
The Court heard the appeal on the 10th December, 1997 and the 29th of January, 1998. Both parties expanded orally on their submissions at the hearing.
DETERMINATION:
This is an appeal by the Secretary and the Minister for Justice Equality and Law Reform (hereinafter referred to as ‘the Department’) against a Recommendation of an Equality Officer that they indirectly discriminated against the claimant when they did not facilitate her request for a job-sharing position. The claimant has cross-appealed for implementation of the said Recommendation.
The first matter which the Court has addressed is the question of the time limit for the making of a complaint under Section 19 of the Employment Equality Act 1977 (‘the Act’). The claimant lodged her complaint with the Labour Court on 24th October 1995, and gave the date of the alleged discrimination against her as 25th April 1995. The Department claimed that the real first occurrence of the alleged discrimination was 15th February 1995 (when the claimant was told she could not be facilitated) or the 23rd February 1995 (when the claimant was due to return to work). The Equality Officer had refused to deal with that aspect of the case, and it formed part of the basis for the appeal by the Department against her Recommendation.
The Court is satisfied, having considered the arguments made, that there was reasonable cause for making a reference outside of the six months time limit provided in Section 19(5) of the Act. There were on-going discussions between the claimant and the Department about her return to work, and she had some expectation that her request for job-sharing could be accommodated eventually, given the Department's commitment to continue to explore the possibility in the future. In the circumstances the time limit question is decided in the claimant's favour.
In relation to the claim of discrimination, the claimant alleges that discrimination on the part of the Department occurred because it imposed on her a requirement to work full-time. She says that since she could not comply with such a requirement, and since most of the people adversely affected by such a requirement are women, then it was indirectly discriminatory.
The Equality Officer found in her favour that there was such a requirement and that it did discriminate.
The Court does not agree with this conclusion. The position held by the claimant was a full-time position. It was the claimant who sought to impose a condition on her return to work that she be offered work at the level of Assistant Principal in a job-sharing capacity. The Department tried to enable her to participate in the Job-sharing Scheme, but through a combination of factors, they were unable to do so.
The Job-sharing arrangement introduced in the Civil Service was created to benefit those employees who wished to work part-time for domestic or other personal reasons. The terms were agreed with the Unions at the time, and introduced an entitlement for any Civil Servant to apply for a position as a job-sharer. It did not create an automatic entitlement to such a post. Such entitlement was agreed to be subject to Management's decision as to the availability and suitability of any post at the level of the applicant.
In this case, the claimant indicated her wish to return to work as a job-sharer following her period of maternity leave and career break. On her departure, the Personnel Officer had indicated that he felt that her own position could suit job-sharing. He has since stated that the work of the Department changed significantly in content and workload during the claimant's leave period, and he no longer considered her position suited to job-sharing at the time she became available to return to work.
The claimant's relatively senior job level would be expected to limit the number of possible job-sharing posts. Other posts at the claimant's job level were considered informally for suitability prior to her return date, but management judged these on balance not to be suited for job-sharing at that time. Such a decision was the prerogative of the management charged with the efficient running of the Department, as per the job-sharing agreement. The fact that others, including the claimant, considered otherwise, does not change this situation, unless management were found to have made such decisions without genuine belief in their basis, or for perverse reasons. A subsequent trawl through available posts, made at the behest of the Department of Finance in a further step to help the claimant, concluded with the same result. Such decision was totally independent of the sex of the claimant, and was made reasonably, in the view of the Court.
The Court has considered the facts of this case in the light of the decision of the Supreme Court in the case of Nathan v. Bailey Gibson (Supreme Court, February 1996), and does not accept that the requirement to work full-time in this case amounted to discrimination within the meaning of Section 2(c) of the Act. The Department has shown to the satisfaction of the Court that the position of Assistant Principal in the Department was essentially a full-time one in this case and at the relevant point in time. As was found in Clymo v. London Borough of Wandsworth (1989 IRLR 241EAT), this Court finds that it is for the employer, acting reasonably, to decide what is required for the purpose of running the organisation for which it is responsible.
Also bearing in mind the case of Nathan v. Bailey Gibson, the Court is further satisfied that the claimant did not suffer discrimination within the meaning of Section 3 of the Act by being denied access to employment, or by having conditions of employment imposed on her which were discriminatory. The only obligation which the Department sought to impose was that the position of Assistant Principal is a full-time position, unless there are suitable and available job-share positions within the service at that level.
In relation to the application of the Scheme itself, the Court cannot find that the Job-sharing Scheme was applied in a discriminatory or unfair manner to the claimant. The claimant was clearly seen by management as a valued member of staff who should be accommodated with a job-sharing position if possible. Given all the facts, which are stated at length in the Recommendation of the Equality Officer and in the submissions and exhibits of the claimant and of the Department, the Court is satisfied that considerable efforts were made by the Department to find a suitable vacancy for the claimant. The only fault which the Court can find with the Department is that it decided in December, 1995 not to give her a job-sharing post that became available in January 1996. But the failure to offer this job to the claimant did not amount to discrimination against her; at most it could be described as a failure by the Department to seize the opportunity for the claimant. In fact, the Court accepts that the Department made an incorrect assumption that a position in the Employment Equality Agency would be available for job-share, and that the claimant could be slotted into the position. Unfortunately, this did not happen, and the earlier opportunity had been let slip.
The Court holds that the claimant did not suffer discrimination within the meaning of the Employment Equality Act, 1977. The Court finds, however, that the Department was guilty of carelessness in the manner in which it dealt with the claimant during the period from December, 1995, when the suitable job-share position was identified, to June, 1996, when the claimant refused an offer of a job-sharing position. The Court, therefore, under Section 22 (b) of the Act, recommends that the claimant not be disadvantaged in any way or at any financial loss for that period of time.
The appeal by the Department is upheld.
The appeal by the claimant is refused.
Signed on behalf of the Labour Court
Finbarr Flood
20th August, 1998______________________
L.W./U.S.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.