FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : NUI GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - KATHLEEN BURKE (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Equality Officer's Recommendation DEC E 2001/12.
BACKGROUND:
2. The worker was employed as a full time Assistant Librarian by the University in Galway. In February, 1998, she requested that she be allowed to work on a job-sharing arrangement in order to accommodate child minding arrangements. This request was refused by the college in June, 1998. The worker who is a married parent, claimed that this constituted discrimination against her under section 2(a) (b) and (c) and contrary to Section 3 of the Employment Equality Act 1977.
The claimant claimed she was directly discriminated against on the grounds of sex and
marital status and indirectly discriminated against on the grounds of sex. This claim
was rejected by an Equality Officer (DEC-E-2001-No 012). The worker appealed her decision to the Labour Court under the Employment Equality Act 1977. The Court heard the appeal on the 10th of May, 2002, in Galway.
DETERMINATION:
This is an appeal by the employee against a decision of an Equality Officer's DEC-E-2001/0012. It is alleged that the appellant, who is a married parent, was discriminated against in terms of Section 2(a), (b) and (c) of the Employment Equality Act, 1977, and in contravention of Section 3 of the Act when the University failed to facilitate her request to job-share in her post as Assistant Librarian in the Information Section of the University Library. The Equality Officer, in his decision dated 1st of March, 2001, found that the worker was not discriminated against contrary to the terms of the Employment Equality Act, 1977.
The Facts:
- The employee was employed as an Assistant Librarian at the National University of Ireland, Galway for twenty years.
- Her position at the date of the claim was as Assistant Librarian in the Library and Information Services of the Faculty of Arts and Celtic Studies. The University regards this as a professional grade.
- In February, 1998, she requested that she be allowed to work on a job sharing arrangement from September, 1998, in order to accommodate child-minding arrangements.
- On the 6th of March, 1998, the University responded indicating that her request was receiving consideration. On the 18th of May, the University responded to further correspondence from the claimant and referred to the claimant’s request for job sharing in the area of subject specification as was in operation in the UCD Library. The University stated that this system would not work in NUIG. The difference between the two University libraries was due to the fact that as well as the job sharing persons in the area of subject specification in the UCD Library there was also a full time person in that area. The University indicated that her request for job sharing was still receiving consideration.
- Having conducted research into the feasibility of splitting the post, the University indicated that it was not possible to support her application to job share the post she currently held. The University wrote to the complainant on the 3rd of June, 1998, outlining this position and referred to the intention at the time of her recruitment to establish a professional and specialist post to support the Faculty of Arts. The University made the point that similar criteria were being applied to another Assistant Librarian who had also requested a job sharing arrangement and that every effort was being made to offer that person an option elsewhere in the Library, but that given the number of such job sharing options, it would not be possible to support a second simultaneous job share arrangement. The complainant was put on notice that in the event of the other person not availing of an option offered then the University would return to her and make that offer to her – but in an area outside of Information support.
- By return of post the complainant wrote to the University requesting a career break implying that she had no option but to go that route.
- Again by return of post the University wrote back to the complainant reiterating the possibility of a job share arrangement in another area of the library where she had previously worked, and this depended on the outcome of the other
- On the 15th of June, 1998, in replying to the request, the University informed the complainant that circumstances had changed and the option would not be available until February/March 1999, but that her continuing interest in job sharing would be given every consideration.
- She availed of a one-year career break commencing from October, 1998.
- On the 20th of June, 1999, the complainant informed the University that she would not be in a position to work full time on her return on the 1st of October, 1999, and requested either a job sharing or a job splitting arrangement, as applied in another section of the Library with the Science/Engineering Information post. By reply of May 28th, the University indicated that this was a half time post and not a job shared post and was occupied by a person who had previously sought a job sharing post. It was explained that approval had been secured for an extra half time post in the areas of Science and Engineering. The University informed the complainant that a recent new request for job sharing had been made in an information related area and asked the complainant if she was interested. When, following two meetings to discuss the option, it became clear that the post was not a job share, but more of a post split, the complainant indicated that it did not suit her and declined the offer as it would involve working two afternoons a week as well as mornings.
- The complainant returned to full time work until a job sharing arrangement became available in April, 2000, when she decided instead to seek an altered working time arrangement, as her children were finishing school later. This was approved by the University .
- In October, 2001, the Library were successful in obtaining approval for the creation of an extra half time Assistant Librarian Post in the Arts and Celtic Studies Faculty. The complainant was asked if she wished to reconsider her interest in part time working and details were finally agreed on the 16th of January, 2002, when the complainant accepted an offer to work in this half time post.
The appellants case
The appellant claims that she has been discriminated against under section 2(a) (b) and (c) of the Employment Equality Act, 1977, on the grounds of her sex and marital status. She is a married parent. The University has employed her for twenty years.
She contends that the University did not make enough effort to facilitate her requests to change from a full time working arrangement to a job sharing arrangement – so as to accommodate her family commitments. In particular, she maintains that the University made no efforts to approach any of the Assistant Librarians to ascertain whether they might be interested in a job sharing arrangement, which could have the effect of facilitating the appellant in turn. The appellant contests the respondent’s contention that the appellant’s post was not suited to a job sharing arrangement and that the post could not be split.
In response to the University’s contention that there are four Library staff engaged in job-sharing arrangements, the appellant states that these are non-professional grades and that at the grade of Assistant Librarian, there are none on job sharing arrangements.
In support of her contention, she referred to a previous arrangement, in similar circumstances, whereby the University had allowed a position in the Science and Engineering Information to be job shared. This post was at the same level as hers.
The appellant submits that the necessity to work full time as a condition of employment adversely affects substantially more women than men. Therefore, the imposition of this requirement is directly discriminatory and cannot be justified by objective factors.
In support of its contention, the appellant citesNathan v Bailey Gibson[1998] 2 IR 162 and Enderby v Frenchay Health Authority {1993} IRLR 591, Lockwood v Crawley Warren Group (June 28th 2000; English EAT transcript) and Abbey Textiles Limited v Brugess (March 31st 1998; English EAT transcript). The appellant also cites the case of O’Flynn v Adjudication Officer [1996] 3 CMLR 124. This case, which was taken in the context of indirect discrimination on the grounds of nationality, is authority for the proposition that a tribunal can find a prima facie case established if the impugned provisions are intrinsically likely to affect one group over the other, and it is not necessary to find that the provision does in practice affect a significantly higher proportion of the disadvantaged persons.
The appellant also cites Weir v St. Patrick’s Hospital February 26th 2001, DEC – E2001/011 and Chief Constable of Avon v Chew (May 8th, 2001; English EAT transcript) where a refusal to consider a job sharing arrangement was held to be in breach of the Employment Equality Act, 1977.
She also cites the Recommendation on Child Care issued by the Council of the European Communities [OJ no L123/ May 16th 1992], which calls upon employers to make the structures at work more responsive to the needs of workers with children.
The respondent’s case
While the University did not have a specific policy on job sharing covering all staff, however, a formal agreement on job sharing did exist with SIPTU since 1996, covering technical staff. The University has operated job-sharing arrangements informally across all categories and members of staff, including library staff for many years. Requests have been considered on objective and practical grounds and have not in any way been related to either the sex or marital status of the applicants.
The respondent stated that the job of a Library Assistant is a senior professional position and as such they are required to work in any section or department of the Library and that they may be transferred between those Departments.
The University stated that every effort was made to facilitate the appellant in her request for job sharing. However, because the post she held was not suitable to share, her specific request to job share her current post was not granted. Offers of other arrangements were made to the appellant which were either not accepted or were subsequently withdrawn due to circumstances outside of the respondent’s control.
On the 3rd of June, 1998, the appellant was informed of a possible job sharing arrangement in an area outside of the Information Support Unit – in the Cataloguing
Area, an area the appellant had worked in previously. This option did not work out as the other potential job sharer took maternity leave instead and so this offer was deferred until Spring of 1999. In the meantime, the appellant availed of a career break.
The respondent stated that in the period when the appellant was on her career break from the 1st of October, 1998, to the 30th of September, 1999, the University also endeavoured to facilitate her in a job sharing post which would be a combination of Information Support to the Commerce Faculty and Information Support to External Users, with the appellant having responsibility for the former. However, this arrangement did not suit her, as it required her to work two afternoons a week.
The respondent replied to the appellants allegation that more preferential arrangements had been given in similar circumstances in the area of Science and Engineering Information by stating that this arrangement differed from the appellants case in a number of respects – it was not a job sharing post, but rather an additional half time post to support growth in the areas of Science and Engineering. There is also a full time post in that area.
The respondent rebuts the argument that it had placed a condition on the applicant to work full time and that this is contrary to Section 2 of the 1977 Act. It states that she was recruited and accepted the contractual requirement to work full time.
The University stated that within the Library there are four Library Assistants engaged in job-sharing arrangements and all are married females and that the Library has a number of half time posts, some at Library Assistant level.
The Law
The Court must consider whether the custom and practice in relation to applications for job sharing in the University as it applied to non technical grades and the manner in which the request of the appellant was handled by the University was free of discrimination in terms of Section 2(a), (b) and (c) or Section 3 of the 1977 Act.
The Court has also been asked to consider whether a requirement to work full time places a more onerous burden on women than on men, and where not an essential requirement of employment, amounts to direct discrimination contrary to Section 3 of the 1977 Act. The Court cannot conclude that such a requirement is directly discriminatory. Such a requirement is gender neutral.
A requirement which is gender neutral on the face of it may, however, give rise to discrimination where it has the effect in practice of disadvantaging significantly more members of one gender than the other. In such cases, it is settled law that an inference of discrimination can be drawn and it is for the respondent to justify the impugned act or requirement by factors, which are objectively justifiable on grounds unrelated to gender.
In considering claims of indirect discrimination, the High Court in the case of Conlon v. University of Limerick [1992] 2 ILRM; [1999] ELR 155 held:
…..there are two matters upon which the Court has to be satisfied if it finds discrimination, namely. Firstly whether one sex has been adversely affected as opposed to the other, and secondly, whether the matter complained of is based on objectively verifiable factors, which have no relation to the plaintiff’s sex. If either of these matters is determined against the plaintiff, there must be a finding that there was no discrimination. I do not think it matters in which order a court considers these factors.Following this authority, the Court, before making any finding of discrimination, may consider whether the policy and the treatment of the appellant's claim was objectively justifiable.
Respondents contentions
At the time of her application, the University had no formal policy or agreement on Job Sharing that covered all staff, other than the agreed policy with technical staff represented by SIPTU. It was not until 2001 that a policy was formally introduced for administrative, technical and buildings staff.
The Court accepts that the absence of a policy for non-technical grades did not prohibit such grades from availing of job sharing arrangements. Evidence shows that the University introduced job-sharing arrangements across all categories and members of staff along the lines of the SIPTU agreed scheme.
The University stated that all requests for job sharing were considered on objective and practical grounds and the final decision was always made with the approval of the Heads of Department in the first instance, and thereafter, at the discretion and approval of the University Authorities. The Court is of the view that these procedures are in line with Job Sharing Schemes in general.
The respondent informed the Court that the reasons for the requirement to have a full time person in the post of Library and Information Services of the Faculty of Arts and Celtic Studies, the position occupied by the appellant, were:
- There was a requirement for a point of contact on a full time basis; to conduct research; to make the users of the library aware of the resources regarding Arts and Celtic Studies; to assist in special training for graduate project work in this field and to provide specialised teaching to groups. It is the University’s contention that to provide a high standard and continuity of service for its users it was essential to have a full time person in this post.
- The Faculty of Arts and Celtic Studies included this Library post in their budget. The respondent indicated that this area had been developed over the period of the previous nine years.
- It was stated that if there was a full time post in position then there would be no difficulty in having an additional half time post to supplement it, but to split the job in a job sharing arrangement would not work out.
- To strengthen this point, the respondent advanced evidence of research into other Universities who were of the view that this post was not suitable for job sharing and such post in these Universities were not job shared.
Therefore, in accordance with the University’s policy for technical grades and its custom and practice for other grades, it decided on objective grounds not to approve the Assistant Librarian grade in Arts and Celtic Studies to be job shared. The respondent was of the view that their stance on this point was reinforced by the procurement of an additional half time post in this area in 1999/2000.
In relation to the present case, while the appellant was considered favourably for job sharing, such an arrangement did not transpire due to the unsuitability of her post for job sharing and the non availability of a suitable alternative job sharing post.
Conclusions
The Court is satisfied that job sharing was available at Assistant Librarian level as was evidenced by the offer to job share in the Cataloguing Area. The respondent stated that the same level of continuity of service was not required in this area and was, therefore, more amenable to a job sharing arrangement.
The Court is satisfied that there were objective and verifiable factors why the appellant was not facilitated with a job sharing arrangement in the post she held as Assistant Librarian in Library and Information Services of the Faculty of Arts and Celtic Studies given the level of professional service required in the post.
The appellant was clearly seen as a valuable long serving member of staff who should be accommodated with a job sharing arrangement, if possible. The Court is satisfied that considerable efforts were made by the University to accommodate her in her request.
The Court is satisfied that the University did not discriminate against her on the grounds of sex and/or marital status by not allowing her to job share her own post.
Having found that the University's Policy and treatment of the plaintiff was objectively justifiable, there is no need for the Court to consider whether such treatment constituted discrimination. The Court, however, in ease of the parties will also make its findings on this ground.
This Court would be reluctant to accept the appellants proposition in this case that a requirement to work full-time constituted discrimination without statistical evidence to that effect. No such evidence was advanced by the appellant. The Court could not hold that a requirement to work full-time, on the evidence advanced in this case, constituted discrimination. In appropriate circumstances, a requirement to work full time may be indirectly discriminatory. However, each case must be considered on its merits. In this case, in the Court's view, the appellant's claim was not that she was required to work full-time but that the University did not have a proper policy in place to deal with applications for job-sharing. The Court accepts the proposition, following the authority of Weir –v- St Patrick’s Hospital that a refusal to consider a job-sharing arrangement where there is no objectively justifiable reason not to do so may be a breach of the Act. In this case, the Court, having carefully examined all the evidence, is satisfied that no inference of discrimination against persons, on the grounds of sex or marital status, including the appellant, arises from the respondents approval policy for applications for job-sharing arrangements.
Determination
The Court finds that the appellant was not discriminated against under Section 2(a), (b) and (c) or of Section 3 of the 1977 Act.
The Recommendation of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th August, 2002______________________
HMCD/MBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.