FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : NBK DESIGNS LTD. (REPRESENTED BY THOMAS MONTGOMERY & SON SOLICITORS) - AND - MARIE INOUE (REPRESENTED BY COOLOCK COMMUNITY LAW CENTRE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Alleged unfair dismissal under S77 of the Employment Equality Act 1998.
BACKGROUND:
2. NBK Designs Limited (the respondent) carries on the business of providing architectural, interior design, and project management services. Ms. Marie Inoue (the complainant) was employed by the respondent as a part-time secretary/personal assistant between October 2000 and March 2001, when she was dismissed.
- The complainant is a lone parent with a school going child. She worked between 9:30am and 2:30pm on Monday to Friday. Another part-time employee carried out the same duties as those of the complainant in the afternoons commencing at 2pm. During the course of 2001 the respondent decided to amalgamate the two part-time positions into a single full time post. The complainant was asked to take on this full time job. She was unable to accept this offer by virtue of her child minding responsibilities. The complainant was then given four weeks notice of dismissal. A Labour Court hearing took place on 15th October 2002.
Issue in Dispute:
It is the complainant’s case that she was dismissed in circumstances amounting to discrimination contrary to section 8 of the Employment Equality Act, 1998 (the Act). Specifically, the complainant contends that the requirement to work full-time is a condition of employment which disadvantages significantly more women than men and significantly more people of her marital and family status than people of a different marital and family status. This, it is claimed, amounts to indirect discrimination on the gender, family status and marital status grounds.
- The respondent contends that it is a matter for the complainant to produce evidence to show that the decision complained of bears significantly more heavily on either women or people of her martial and family status. The respondent further contend that even if a prima facia case of discrimination is made out (which is denied) the decision to amalgamate the two part-time jobs was appropriate and necessary and can be justified by objective factors unrelated to the complainants sex, marital or family status.
- The Facts:
- The material facts as admitted or as found by the Court are as follows:
- The respondent carries on business from office premises in Dublin. At the time material to this case the respondent had seven employees. There were three principals in the business, two of whom were Architects and Directors of the Company. The third principal is Company Secretary.
The complainant was recruited in October 2000 as a secretary / personal assistant and her duties involved assisting the directors of the Company. This involved general secretarial duties including arranging meetings, typing, and answering incoming telephone calls. The complainant normally finished work at 2:30pm. Another part-time employee commenced work at 2pm. The complainant would use this overlapping half hour to discuss the work that was outstanding with her colleague, which she would then hand over to her.
It appears that an important part of the complainant’s duties involved taking telephone messages for members of staff whose jobs regularly required them to be out of the office. It is the complainant’s recollection, which the Court accepts, that she would take approximately ten telephone messages in a typical day. These messages would be routine and would be little more than noting the identity of the caller, the purpose of the call and passing on a request to the appropriate person to return the call.
The respondent never had cause to complain about the way in which the complainant discharged her duties. For her part, the complainant was extremely happy in the employment and found her job fulfilling and rewarding. Over the period in which the complainant was employed the respondents business grew significantly and this required the principals of the business to take on an increasing amount of project management and site supervisory work. In early 2001 the principals of the business came to the view that splitting the secretarial / personal assistant role between two people was unsatisfactory. They felt it would be better for the business if one person had this function throughout the day.
- In the course of evidence the Court was told of what could best be described as inconveniences experienced by the principals of the respondent arising from the job sharing arrangement. These matters were not discussed with the complainant nor were any proposals put forward which could have overcome whatever difficulties existed.
- In February 2001 a firm decision was taken to abolish the two part-time posts and create one full-time post. At the time this decision was taken the respondents were aware that the complainant could not take on full-time employment. The complainant was nonetheless asked to work full-time. When she declined she was given notice of dismissal.
The Law:
In a line of authorities starting with Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607 the ECJ has held that indirect discrimination arises where a requirement in relation to employment bears significantly more heavily on persons of one gender relative to that of persons of the other gender. This principle of European Law was adopted in this jurisdiction by the Supreme Court in Nathan v Bailey Gibson [1998] IR 162. In his judgement, with which the other members of the Court agreed, Hamilton CJ held as follows: -
- “[A] requirement relating to employment or membership of a body which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher may amount to indirect discrimination even when a person is obliged to comply therewith for reasons other than a persons sex or marital status”.
The position thus enunciated is now given statutory expression in the Employment Equality Act, 1998. Section 22(1) of that Act, as amended by Regulation 4(b) of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2000) provides as follows: -
- “22.—(1) Where a provision (whether in the nature of a requirement, practice or otherwise) which relates to any of the matters specified in paragraphs (a) to (e) of section 8(1) or to membership of a regulatory body—
(a) applies to both A and B,
(b) is such that the proportion of persons who are disadvantaged by the provision is substantially higher in the case of those of the same sex as A than in the case of those of the same sex as B, and
(c) is not appropriate and necessary and cannot be justified by objective factors unrelated to A's sex,
- “22.—(1) Where a provision (whether in the nature of a requirement, practice or otherwise) which relates to any of the matters specified in paragraphs (a) to (e) of section 8(1) or to membership of a regulatory body—
- then for the purpose of this Act, A’s employer or, as the case may be, the regulatory body shall be regarded as discriminating against A on the gender ground contrary to section 8 or, as the case may be, section 13”
Subsection (4) of section 22 provides as follows:
- “(4) The reference in subsection (1)(b) to persons who are disadvantaged by a provision includes not only those who are so disadvantaged because of their sex but also those who are so disadvantaged by reference to their marital status or family status.”
The effect of this provision is to bring within the ambit of discrimination on the gender ground situations where, as in the present case, the disadvantage alleged arises not from a person’s gender per se, but from the combination of their gender, family status and/or their marital status.
The term “family status” is defined at section 2(1) of the act as meaning responsibility:-
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) (not relevant)
Issues for Decision:
- There are two questions which arise for determination in this case. There is firstly the question of whether the requirement to work full time is one which can be complied with by a significantly higher proportion of men than women and / or those of a different marital or family status to that of the complainant. If the answer to that question is in the affirmative the requirement is prima facie discriminatory. Secondly, if the answer to the first question is in the affirmative the Court must consider if the requirement is appropriate and necessary and can be justified by objective factors unrelated to the complainant’s sex.
- Indirect Discrimination:
- The respondent submitted that there is an onus on the complainant to prove on evidence that the circumstances contemplated by section 22(1)(b) of the Act exist in relation to the impugned provision. Counsel on behalf of the complainant submitted that the unequal effect of a requirement to work full time is so obvious that it should not require formal proof. Counsel also referred to the wealth of authorities in the jurisprudence of the ECJ, which are based on an acceptance of the proposition that significantly more women than men are engaged in part-time employment. Thus, Counsel submitted, the abolition of a part-time post in favour of a full time post would impact to a significantly disproportionate degree on women relative to men. It was also submitted that it is self evident that a requirement to work full-time bears more heavily on women with child minding responsibilities, and in particular on those who are lone parents. Counsel nonetheless undertook to furnish the Court with appropriate extracts from the Labour Force Survey, which would illustrate the points made.
- The question of whether an expert tribunal (such as the Court) can reach conclusions by relying on the knowledge and experience of its members, without any evidence being adduced on the point, does not appear to have been previously considered by this Court. However that question has been considered in the UK and Northern Ireland.
- In Price v Civil Service Commission [1977] IRLR 291, which is a judgement of the Employment Appeals Tribunal, the following passage appears in the head note:
- “In determining whether the proportion of women who can comply with the condition as to age limits is considerably smaller than the proportion of men who can do so, within Section 1(1)(b)(i), it is proper to take into account the current usual behaviour of women, as observed in practice, putting on one side behaviour and responses that are unusual or extreme”.
- Later, in Perera v Civil Service Commission [1982] IRLR 147 Brown-Wilkinson J, giving the judgment of the Employment Appeals Tribunal in England, stated as follows:
- “However, there remains the root problem that, by any normal statistical standards, the only statistical evidence laid before the Industrial Tribunal is in fact inadequate. It is based on a very small sample from a very small number of non-typical offices. Is it therefore right to hold that the complainant has proved his case? We have this very difficult point. On the one hand, the burden is on the complainant to prove his case and, viewed in isolation, the statistics produced do not prove it. On the other hand it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the United States has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of Section 1(1)(b) are satisfied”.
The passage just quoted is adopted by the Employment Appeals Tribunal in Clymo v Wainsword London Borough Council [1989] IRLR 241.
In Briggs v North Eastern Education and Library Board [1990] IRLR 181 the Court of Appeal in Northern Ireland considered this question in an appeal against the findings of an Industrial Tribunal. In that case the parties had agreed that the Tribunal should rely on its own knowledge and experience. On that account the Court of Appeal found it unnecessary to express a concluded opinion on whether a tribunal, in the absence of agreement of the parties, can be guided by their own experience. Sir Brian Hutton LCJ stated that position thus:
- “[I]It is unnecessary for us to express a concluded opinion on whether a Tribunal, in the absence of agreement by the parties, can make a decision in relation to Article 3(1)(b)(iii) by relying on their own knowledge and experience without any evidence being adduced before them on that point. But we are in agreement with the approach taken in the English cases that Tribunals are not debarred from taking account of their own knowledge and experience and that it is most undesirable that, in all cases of alleged indirect discrimination, elaborate statistical evidence should be required before the case can be found proved.”
The procedures of this Court are intended to facilitate parties whether they appear represented by Solicitor or Counsel, Industrial Relations Practitioners or unrepresented, alike. It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience.
Whilst there are many cases in which the unequal affect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case.
In the instant case the complainant has submitted extracts from the Labour Force Survey which show the participation rates in full-time and part-time employment, broken down by gender and family status.
The statistics submitted were forwarded to the respondents for comment. In response they submitted that this survey does not support the case made by the complainant since the results indicate that there are almost as many women working full-time as there are working part-time. They further contend that a similar situation pertains in relation to women who have young children and women who do not.
The Court does not accept that these aspects of the survey can avail the respondent. The comparison for the purpose of Section 22 of the Act is not between one category of women and another. It is between women and men.
The statistics show that a significant majority of part-time workers are women. That is particularly so when the statistics relating to participation in the labour force by parents of young children and those who are single or separated are examined. From these statistics it may be inferred that the abolition of part-time jobs will impact disproportionately on women and in particular on women who are lone parents. This merely provides confirmation of what the Court understands the position to be, based on the knowledge and experience of its members.
- On the facts disclosed it is clear that the complainant was unable to work full-time, not because she is a woman per se, but because she is the mother of a school going child and the primary carer of that child. It is still the reality in modern society that mothers are more likely to fulfil that role than are fathers. More relevant to the instant case is the fact that where parents are separated or single, it is the mother who is much more likely to have custody of children. Consequently, as a general proposition, women who have children and are single, separated or divorced find it more difficult to work full-time than fathers who are single, separated or divorced or men who are not parents.
- The complainant claims to have been discriminated against on the gender, family status and marital status grounds. The Court has been invited to find that discrimination occurred on each of those grounds. However, having reached the conclusion that the impugned provision disadvantaged the complainant by reference to her sex, family status and marital status combined, the effect of section 22(4) is to bring the discrimination within the scope of the gender ground only.
The Court is reinforced in that view by the provision at section 31(5) of the Act. This provides, in effect, that where a provision is such as to be regarded as discriminating against an individual on the marital status or family status grounds and also as discriminating against that individual on the gender ground, a finding of discrimination can only be made on the gender ground.
The Court therefore finds that the provision introduced by the respondent, which would have required the complainant to work full time, amounts, primia facie, to indirect discrimination by the combined effect of subsections (1)(b) and (4) of Section 22 of the Act. However, a finding of discrimination only arises if the provision cannot be objectively justified in terms of paragraph (c) of subsection (1), as amended. The onus of establishing objective justification rests on the respondent.
- Objective Justification:
- (a) correspond to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and
- (c) are necessary to that end.
In applying this test, the following emerges on the facts:
- Does the requirement to work full time correspond to a real need on the part of the respondent?
The respondents claim that there was a need to improve efficiency in the administrative function performed by the two part time employees. The witnesses who gave evidence on their behalf could not give any concrete example of significant inefficiencies in the previous arrangement. Evidence was given that having a full-time secretary had proved more satisfactory but this evidence was non-specific and general in nature.
- Does the requirement to work full time correspond to a real need on the part of the respondent?
- In Nathan v Bailey Gibson Hamilton CJ pointed out that the test applies where the impugned requirement is not an essential requirement of the employment. In Conlon v University of Limerick and the Minister for Enterprise and Employment [1999] ELR 155 McCracken J made it clear that it is insufficient to conclude that a requirement is reasonable and that the accepted test is that it be essential.
- On the evidence before it the court is far from convinced that the exigencies of the respondents business made it essential that the complainant work full-time.
- Were the means chosen appropriate?
This aspect of the test requires that the means chosen be proportionate to the objective which they are intended to achieved. Whilst the respondent may have gained some improvement in efficiency by amalgamating the two part time jobs, the inevitable consequence of so doing was to render it impossible for the complainant to remain in employment. In the Courts view the value of the benefit which accrued to the employer, when balanced against the discriminatory effect of the method by which it was achieved, could not satisfy the requirement of proportionality.
- Were the means chosen appropriate?
- Was the method appropriate to achieve the end in view?
The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect, by which the objective in view could have been achieved. It is clear from the evidence that the respondents gave no consideration to alternative ways of improving efficiency at the office, although a number of options readily suggest themselves. The respondent could have discussed whatever difficulties there were with the complainant and her colleague and invited their suggestions as to a solution. A system of prioritising messages could have been devised. Where messages were of particular importance or complexity the caller could have been directed to the relevant person’s mobile telephone number.
- Was the method appropriate to achieve the end in view?
- The Court is satisfied that the respondents gave no consideration to any other option by which their dissatisfaction with the job-sharing arrangement could have been addressed. It cannot therefore be said that there were no alternative less discriminatory means by which the respondent’s objective of improving efficiency could have been achieved.
- Accordingly, the Court is satisfied the impugned requirement is not necessary and appropriate and cannot be justified by objective factors unrelated to the complainant’s sex.
DETERMINATION:
The Court is satisfied that the complainant herein was indirectly discriminated against on the gender ground, and by reference to her family status and marital status, within the meaning of section 22(1) and contrary to section 8 of the Act.
- The Court determines that the appropriate remedy is an award of compensation. The complainant obtained alternative employment shortly after her dismissal and her financial loss was of the order of €1,400. The complainant did, however suffer inconvenience and distress in consequence of the dismissal and in bringing these proceedings. The Court is further conscious of the need to provided redress which is effective, proportionate and dissuasive. Taking all the circumstances of the case into account the award which the Court considers reasonable is measured at €10,000. The complainant is awarded compensation in that amount. -
- The Court determines that the appropriate remedy is an award of compensation. The complainant obtained alternative employment shortly after her dismissal and her financial loss was of the order of €1,400. The complainant did, however suffer inconvenience and distress in consequence of the dismissal and in bringing these proceedings. The Court is further conscious of the need to provided redress which is effective, proportionate and dissuasive. Taking all the circumstances of the case into account the award which the Court considers reasonable is measured at €10,000. The complainant is awarded compensation in that amount. -
Signed on behalf of the Labour Court
Kevin Duffy
25th, November, 2002______________________
HMCD/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.