FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : TELECOM EIREANN (REPRESENTED BY ANTHONY KERR B.L., INSTRUCTED BY ARTHUR COX AND COMPANY SOLICITORS) - AND - 58 NAMED FEMALE TELEPHONISTS (REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY) DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Appeal by the 58 female named part-time night Telephonists against Equality Officer's Recommendation No. EE5/97 concerning an allegation that Telecom Eireann discriminated against them on the basis of sex and/or marital status within the meaning of Section 2(c) of the Employment Equality Act, 1977 and in contravention of Section 3 of the Act by implementing a rota system which excludes them from weekend attendance.
BACKGROUND:
2. The 58 claimants are employed as part-time Night Telephonists in five provincial telephone exchanges. These exchanges provide operator-assisted call services mainly to callers dialling "10" and the emergency "999" service. In February 1992, the Company decided to change the attendance rota system following consultation with the relevant trade unions. Compensation was paid to staff financially affected by the new system, including the claimants. The new rota system included a reduction in the number of Saturday and Sunday duties. The new arrangements also confined week-end attendance to full-time Day Telephonists and full-time Night Telephonists, and provided that "part-time Night Telephonist staff would not be required for weekend work."
The female Night Telephonists, all of whom had week-end attendance prior to the new arrangements, claimed that they were treated less favourably than full-time (predominantly male) Night Telephonists on the grounds of their sex in relation to access to week-end work. The Company rejected the claim.
In July, 1992 the claimants, through the Employment Equality Agency, referred the dispute to the Labour Court. The Labour Court referred the case to an Equality Officer for investigation and recommendation. The Equality Officer in his recommendation which was issued on the 20th of March, 1997 found that the Company had not discriminated against the claimants. On the 29th of April, 1997 the claimants appealed the Equality Officer's recommendation to the Labour Court on the following grounds:-
1. the Equality Officer erred in law and in fact in finding that Telecom Eireann did not discriminate against the named appellants contrary to Section 3 of the 1977 Act;
2. the Equality Officer erred in law and in fact in not awarding an appropriate remedy to the appellants for the discrimination experienced by them and the consequent distress to them;
3. on all grounds submitted during the Equality Officer's investigation and such grounds as may arise during the course of the appeal.
The Labour Court heard the appeal on the 30th of September, 1997. Both parties made written submissions (details supplied to the Court) and expanded orally on their submissions at the hearing.
DETERMINATION:
The Court is satisfied that the Equality Officer was correct in his conclusions in this case.
The Employment Equality Agency, on behalf of the appellants, has argued that the appellants suffered discrimination because they are part-time workers and have been deprived of access to the week-end rota. Since the appellants are a predominantly female group working as night telephonists, it is argued that prima facie they suffered discrimination on grounds of sex. The onus therefore, it is claimed, has shifted to the employer to establish that the decision to make the week-end rota only open to full-time workers is justified on factors unrelated to sex.
The specific discrimination alleged is that the part-time workers, being mostly female, suffered from being deprived of access to the week-end work rota for telephonists.
The workers who have access to the week-end rota are all full-time workers.
The appellants have sought to establish discrimination against them by showing that
a) the week-end rota is open only to full-time telephonists;
b) the week-end rota is not open to part-time night telephonists;
c) of the full-time night telephonists, 88% are male and only 12% are female;
d) of the part-time night telephonists, 95% are female and only 5% are male.
While the Court accepts all those statistics as accurate, they are not the full picture for the purposes of deciding this case. The rota in dispute is the week-end rota. To this rota, all full-time workers have access. All full-time workers include both day-time and night-time telephonists. The ‘pool’ therefore with which the appellants should draw comparison between treatment is that of all the full-time workers, and not just the night-time workers. This pool consists of a total of 930, of which the majority are in fact women. There are 488 female full-time day telephonists, and 49 female night-telephonists (total 537), as against 17 male full-time day telephonists and 376 male full-time night telephonists (total 393).
While it is true that most part-time night telephonists are female, the majority of the group which is ‘advantaged’ by having access to the week-end roster is also female. The 'disadvantaged' group is 81 females, and only 4 males, but the 'advantaged' group is 930, of which less than half are male.
The Court notes the argument made by the appellants that the day-time telephonists should not have been included in the ‘pool’ used for comparison purposes, on the grounds that the circumstances in which the day-time and the night-time workers are employed are ‘materially different’. The Court rejects this submission. The issue at stake is access to week-end work, and therefore it is reasonable and proper to consider all those telephonists who, because they are full-time, have access to such week-end work, and not only to consider those who although full-time, only do night work. Labour Court Determination 7/92 which is quoted by the appellants to justify their argument was based on the fact that the restriction was access to the night-time roster, whereas in this case, the restriction is access to the week-end roster, to which both day-time and night-time telephonists now have access, as long as they are full-time workers.
The requirement to be a full-time worker to have access to the week-end rota does affect a greater number of women than it affects men. But those who can comply with the requirement are mostly women. Therefore the impact on women is not disproportionate, and the question of discrimination as prohibited under section 2 of the Act does not arise.
However, the fact that the ‘disadvantaged’ group consists of mostly women who are working part-time does raise the presumption of indirect discrimination under Section 3 of the Act, in the light of the judgement in the case of Nathan v Bailey Gibson. The Supreme Court has held that ‘discrimination’ under section 3 includes both direct and indirect discrimination, and that discrimination could occur if a complainant showed that a practice bore significantly more heavily on members of the complainant’s sex than of the members of the other sex.
In this case the restriction on access to the week-end roster affects mostly women, and only a few male part-time night telephonists. The onus of proof that the practice is not discriminatory therefore shifts to the employer to show that it is based on objectively verifiable factors which are unrelated to sex.
The company argues that it sought to contain costs and protect employment by decreasing unnecessary and expensive attendances at the week-end. The new rotas were designed to bring staff attendances in line with the reduced overall level of calls and in line with the daily and weekly call variations.
The Court has considered the arguments put forward by the company, and finds that the employer has established to its satisfaction that the changes in the week-end rota are objectively justified on grounds which have no relation to the sex of the workers who are affected by the changes.
The Court, therefore, upholds the Recommendation of the Equality Officer and holds that the appellants did not suffer discrimination. The appeal is dismissed.
Signed on behalf of the Labour Court
Finbarr Flood
10th February, 1998______________________
T.O'D./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.