FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : TESCO IRELAND (RESPONDENT) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (CLAIMANT) (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal by the Union against Equality Officer's Recommendation EE7/99 concerning an allegation that Tesco Ireland discriminated against the worker, contrary to the provisions of Section 3 of the Employment Equality Act, 1977 in terms of Section 2 of the Act.
BACKGROUND:
2. This claim arose from the refusal of the respondent to allow the claimant to discontinue late night working so as to facilitate her child minding commitments. The Union contends that this refusal constituted discrimination within the meaning of Section 2(a) 2(b) and 2(c) of the Employment Equality Act 1977 (the Act) in contravention of Section 3 of the Act.
The dispute was referred to an Equality Officer who recommended that the claimant did not suffer discrimination as alleged. It is against that recommendation that the Union appealed to the Court.
The material facts of the case are recited in the Recommendation of the Equality Officer.
The Union appealed the recommendation to the Labour Court on the 28th of May, 1999 on the following grounds:-
(a)Paragraph 5.2
The findings by the Equality Officer that " the claim of discrimination on grounds of the claimant's gender is not supported by the evidence available to me".
(b)Paragraph 5.3 and 5.4
The findings of the Equality Officer that "there is no evidence to support the claim that the worker was discriminated against on grounds of her marital status when the company refused her request to finish work at 6.00pm on Thursdays" and;
(c)Paragraph 6.1
The findings of the Equality Officer that "Tesco Ireland did not discriminate against the worker".
The Court heard the appeal on the 13th of March, 2001. Both parties expanded orally on their submissions at the hearing.
DETERMINATION:
The claimant is a sales assistant who is employed part-time, on check-out duties, at the respondent's supermarket. In summary, the Union contends that, as a lone parent, the claimant had difficulty in combining her parental and work responsibilities. She sought her employer's agreement to finish work at 6pm rather than at 9pm on Thursday nights so as to accommodate her child minding arrangements. The employer did not facilitate her in that request on the basis that the requirements of the business necessitated her attendance up to 9pm. A work colleague of the claimant offered to substitute for the late night in question but the respondent claimed that this person was not suitable for check-out duties.
The Union claimed that the discrimination alleged was both direct and indirect and on grounds of gender and marital status.
Direct Discrimination.
In support of its claim that the claimant was directly discriminated against, the Union referred the Court to the Recommendations on Child Care issued by the Council of the European Communities [O.J. No. L123/16thMay 1992]. In particular, the Union referred the Court to Article 3 of these Recommendations which, in effect, provides that the environment, structure and organisation of work should be responsive to the needs of workers with children. The Union relied on this Recommendation in submitting to the Court that the refusal of the respondent to facilitate the claimant's child caring responsibilities constituted an act of direct discrimination.
The Judgement of the European Court of Justice inGrimaldi v Fonds Des Maladies Proffessionelles [1989] ECR 4407, makes it clear that recommendations made pursuant to Article 249 of the EC Treaty can not have direct effect so as to override the provisions of national law. The ECJ did, however, go on to point out that national Courts are bound to take those recommendations into consideration in order to decide disputes submitted to them, in particular where they are capable of casting light on the interpretation of other provisions of national or Community law.
As the Court understands it, the effect of this Judgement is that whilst recommendations may be used as an aid to interpretation of national or Community legislation, they cannot establish independent rights which can be relied upon by individuals before national courts. In the present case, what is contended for by the Union goes beyond a mere interpretation of the 1977 Act. If accepted, it would necessitate a reading of the Act as if it had been amended to provide a new ground of discrimination based on the EC Child Care Recommendations. In the Court's view such an approach, in the case of recommendations, would not be permissible by any established principle of national or Community law.
The Court also noted that in the case ofJuliaSchnorbus v Land Hessen C-79/99, (Unreported, Judgement delivered 7thDecember 2000)the ECJ pointed out that direct discrimination only arises where the difference in treatment complained of is based on criterion which is explicitly that of sex or is necessarily linked to a characteristic indissociable from sex. While responsibility for child care may, in practice, fall to a disproportionate degree on women, it cannot be said that it is a characteristic indissociable from a woman's gender.
For these reasons the Court cannot accept that claimant's complaint is capable of being classified as one of direct discrimination.
Indirect Discrimination.
In support of its claim of indirect discrimination the Union relied on Section 2(c) of the Act. It was submitted that the requirement on the claimant to work a late night constituted indirect discrimination on grounds of sex since such a requirement bears more heavily on women with child care responsibilities than on men with similar responsibilities. It is further contended that the requirement cannot be objectively justified on grounds unrelated to sex.
Section 2(c) of the Act prohibits a requirement relating to employment, which is not an essential requirement for such employment, and in respect of which the proportion of persons of one sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher.
This provision of the Act is only operative where it is first established that the impugned requirement is not essential for the employment concerned. What is at issue in the present case is a requirement that sales assistants employed by the respondent be available to work during the hours in which its stores are trading. In the Court's view this is self-evidently an essential requirement of the employment concerned.
This, however, does not mean that an individual employee cannot seek to agree arrangements with their employer whereby they can be rostered in a way which meets their domestic or personal needs.
Following the decision of the Supreme Court inNathan v Bailey Gibson [1998] 2 IR 162,it is settled law that in cases of indirect discrimination it is not necessary to prove a causal connection between the practice complained of and the sex of the complainant. It is, however, necessary to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the opposite sex.
All sales assistants employed by the respondent, the vast majority of whom are women, are required to work late nights. It follows that women as a group can and do meet that requirement. In relation to the claimant, it is clear that she did work the three hours at issue over a prolonged period. There was no evidence as to the degree to which this interfered with her parental responsibility. Nor was there was any evidence adduced to indicate that the requirement on her to work up to 9pm on Thursday acted as an obstacle to her continued employment with the respondent. The case can, therefore, be distinguished from those referred to by the Union in which the impugned provision had the effect of preventing women from equal participation in employment, or in qualifying for more advantageous conditions of employment.
In its submission to the Court the Union pointed out that it was, and still is, the policy of the respondent to facilitate some female employees with shorter working hours so as to accommodate their child care needs. The claimant's complaint is that, unlike other women, her request for shorter hours was not acceded to. Whilst that may amount to unfairness in an industrial relations sense, it cannot avail the claimant in advancing her complaint of discrimination on grounds of gender.
Accordingly, the claimant's complaint of indirect discrimination on grounds of her sex cannot succeed.
The Union further contended that the refusal of the respondent to allow the claimant to reduce her attendance hours could not be objectively justified as another sales assistant had volunteered to cover the late night in her place. The question of objective justification, on grounds unrelated to gender, would only arise if it were first found that the refusal at issue constituted indirect discrimination. Since the Court is satisfied that no indirect discrimination occurred in this case it is unnecessary to decide if the employer acted reasonably, in meeting the needs of the business, in not accepting the substitution offered.
Comparison with a Male Full-Time Employee.
The Union further argued that the claimant was discriminated against in being treated differently, in relation to her working hours, than a full-time male employee. The Court was told that a named male employee was offered a payment of £1,000 to discontinue late night duty, whereas the claimant was refused a similar facility without any request for payment.
The respondent told the Court that the male employee, in common with a number of other employees of both sexes, had a contractual right to work overtime at premium rates. The company sought to buy out this contractual entitlement. The same terms were offered to both male and female employees who qualified for premium rates.
It is clear to the Court that the reason why the company wished the male employee to discontinue late night working was because, in his case, the hours in question attracted premium rates. In the case of the claimant the respondent had no contractual liability to pay such rates. The circumstances of the claimant and those employees who were offered this buy-out were distinguishable on grounds unrelated to their gender. This difference in treatment does not, therefore, provide a basis on which a claim of unlawful discrimination can be sustained.
Discrimination on Grounds of Marital Status.
In its submission to the Court the Union claimed that where married women requested a change in their working arrangements the company facilitated them, whereas single women were not similarly facilitated. In support of this contention the Union cited six examples of where married women were facilitated in reducing their working hours. The respondent disputed the factual basis of the Union's claim in respect of the individual examples relied upon. They pointed out that requests from employees for an alteration in their working hours are considered on their own merits and having regard to the needs of the business and that the marital status of the employee is irrelevant to the decision reached.
The Court does not accept that the evidence presented by the Union goes far enough to imply a pattern or policy on the part of the respondent of preferring requests for reduced working hours from married women over similar requests made by single women. Accordingly, the Court must hold that there is no evidence on which it could hold that the decision to refuse the claimant's request for reduced working hours was related to her marital status.
ORDER
For the reasons set out above the Court is satisfied that the respondent did not discriminate against the claimant within the meaning of Section 2 of the Act. The recommendation of the Equality Officer is affirmed and the appeal herein is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
27th March, 2001______________________
LW/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.