44 Named Male and Female Complainants (Represented by MANDATE) AND Superquinn (Represented by I.B.E.C.)
1. DISPUTE
1.1 The dispute concerns a claim by 20 named male and 24 named female claimants that Superquinn discriminated against them on grounds of their marital status within the meaning of Section 2(b) and in the case of the female claimants, on grounds of their gender also, within the meaning of Section 2(a) and in contravention of Section 3 of the Employment Equality Act, 1977 in relation to the handling of sick pay
2. BACKGROUND
2.1 MANDATE states that the claimants became aware on 18th January, 1999 of an allegedly discriminatory practice on the part of the Superquinn where married staff taking sick leave are treated less favourably than single staff in similar circumstances in the manner in which Superquinn estimates and then deducts anticipated social welfare benefit (known as disability benefit) from salaries. MANDATE alleges that the practice constitutes discrimination on the grounds of marital status within the meaning of Section 2(b) and in contravention of Section 3 of the Employment Equality Act, 1977. MANDATE also argues that insofar as the female claimants are concerned, the practice also constitutes discrimination on the grounds of gender within the meaning of Section 2(a) of the Act.
2.2 The claimants, through their union MANDATE, referred a complaint to the Labour Court on 6th July, 1999 under Section 19 of the 1977 Act. The Labour Court referred the complaint to an Equality Officer for investigation and recommendation on 15th July, 1999. A submission in the matter was received from MANDATE on 10th November, 2000 and from IBEC on 19th December, 2001. A joint hearing of the complaint was heard on 5th September, 2002. MANDATE's original complaint listed 55 claimants however at the hearing MANDATE stated that as 11 of the male claimants were not members of the union their names were being withdrawn from the complaint.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The claimants are employed by Superquinn at its supermarket at Sutton Cross, Dublin. It is Company policy when a member of staff takes sick leave to make a deduction from his or her salary in respect of social welfare benefit which is paid directly to the member of staff by the Department of Social, Community and Family Affairs (DSCFA) while they are off work. There is a gap of a week or more while the social welfare claim is processed. A married employee whose spouse is unemployed is entitled to a higher level of social welfare benefit and the Company, in order to ensure that the member of staff is not overpaid, assumes that the employee's spouse is unemployed pending receipt of a notification from the Department of Social, Community and Family Affairs as to the exact benefit entitlement. As a consequence, a married employee whose spouse is not unemployed is over-deducted by the Company and must await a refund from the Company. MANDATE argues that they are therefore out of pocket for the amount of the over-deduction until a refund can be obtained and that this constitutes discrimination on the grounds of marital status. Furthermore, MANDATE argues that a female married employee is more likely to have an unemployed spouse in receipt of social welfare payments than a married male employee and that married females are therefore treated less favourably than married males.
3.2 MANDATE rejects the IBEC suggestion that the claim constituted a 'class action' and states that all the claimants were specifically named. One claimant, Ms Moffatt attended the hearing. Her husband is not in receipt of social welfare unemployment benefit and she described how when she was sick in the year 2000 she was receiving £86.70 in social welfare benefit while Superquinn were deducting £143.10 from her salary. She had to wait until she was well enough to physically go to the Superquinn cash office in order to collect a refund of the over deduction.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 Superquinn rejects the allegation that it discriminates against the claimants on grounds of their marital status or gender. IBEC outlined the position regarding the sick pay scheme operated by Superquinn as follows :
"The Company sick pay scheme makes no payment for the first three days absence. An individual is then entitled to full pay less social welfare received for the next eight weeks. If an individual is married then the Company assumes that the spouse is not working. This rule applies to both males and females. The following week the Company receives a letter from the DSCFA informing the Company what the individual received from the DSCFA. The Company then pays the worker any amount which has been over-deducted by it. Thus all employees, irrespective of their gender or marital status, do not lose any money when calculating their sick pay entitlement. On any occasion in which the DSCFA does not send the letter to the Company then the worker has to simply provide a photocopy of their social welfare cheque as proof of the amount they have received from the DSCFA. This system is operated for reasons of efficiency. If the Company simply paid the worker their normal weekly wage and required the worker to return their social welfare cheque then it would have to chase workers for these cheques. The system also ensures that no employee is better off financially when claiming sick pay than they would be at work.".
IBEC states that the inconvenience caused to married employees whose spouses are not unemployed and in receipt of social welfare benefit is minimal. A Superquinn representative who was at the hearing and who works in the salaries section stated that she could not understand the circumstances relating to the handling of Ms Moffat's case which she thought were unusual. She said that any over deduction is normally refunded within a number of days.
4.2 IBEC argued that 'sick pay' is remuneration within the meaning of the Anti-Discrimination (Pay) Act, 1974 and referred to the European Court of Justice in Rinner-Kuhn v FWW Spezial Gebaudereinigung Gmbh & Co KG 1: "the continued payment of wages to a worker in the event of illness falls within the definition of pay within the meaning of Article 119".
IBEC states the Section 3(1) of the 1977 Act specifically excludes complaints concerning remuneration and that the present complaints cannot properly be referred under the 1977 Act.
4.3 IBEC also describes the current complaint as a 'class action' stating that it is not possible for a trade union to refer a claim on behalf of any member unless the member listed on the claim form was aware of the claim on the date of referral and gave the trade union express instruction to refer the claim on his/her behalf. IBEC states that the Company is aware that some of the named claimants did not know of the decision to refer this case at the time of the referral.
4.4 IBEC states that the MANDATE submission makes no reference to the date of the first occurrence of the alleged act of discrimination and as each claim is an individual claim this date will vary from claimant to claimant. IBEC points out that discrimination on grounds of marital status as defined by the 1977 Act can only occur between people of the same sex and also argues that MANDATE cannot make a complaint of gender discrimination between married males and married females. IBEC reiterates that a claim in relation to the calculation of sick pay is one of remuneration and is specifically excluded from investigation under the 1977 Act.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not Superquinn discriminated against the claimants on the basis of their marital status or gender (female claimants only) in terms of Sections 2(a) and 2(b) of the Employment Equality Act, 1977 and contrary to the provisions of Section 3 of that Act. In making my recommendation in this case I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Sections 2(a) and (b) state that discrimination shall be taken to occur
(a) where by reason of his sex a person is treated less favourably than a person of the other sex.
(b) where because of his marital status a person is treated less favourably than another person of the same sex.
5.2 As the complaint was pending at the commencement of the Employment Equality Act, 1998 and the repeal of the 1977 Act on 18th October, 1999, the transitional provisions set out in section 106 of the 1998 Act (as inserted by section 47 of the Equal Status Act, 2000) apply. Section 106 (5) of the 1998 Act as amended states :
(5) A claim for redress under a repealed enactment which is pending on the commencement date shall, if the conduct to which it relates also occurs after that date, be treated as if it were a claim for redress to which this section applies, and accordingly subsections (3) and (4) shall apply in relation to it. Section 106 (3) of the 1998 Act as amended states :
(3) A claim for redress to which this section applies shall --
(a) as regards the substance of the claim --
(i) if or in so far as the claim relates to conduct before the commencement date, be dealt with as if the enactment concerned had not been repealed, and
(ii) in so far as it may relate to conduct after that date, be dealt with under this Act, and (b) in all other respects, be dealt with as if it were a claim under section 77.
5.3 I will deal firstly with the IBEC argument that the complaint lacks specificity regarding the date of the first alleged instance of discrimination and that it is impossible to verify compliance with the six month time limit for referral of complaints under the 1977 Act. I note that the Supreme Court in Aer Lingus -V- the Labour Court2 found "The Equality Officer has no function to deal with any matter concerning the question of the time bar and therefore any finding he makes is strictly without prejudice to what the Labour Court may decide about the latter point."
I am mindful also of the fact that the alleged continuing discrimination in this case now falls to be dealt with under the 1998 Act. The time limit requirements of the 1998 Act are expressed in very different terms to those of the 1977 Act i.e. a complaint must be lodged no later than six months from the date of the most recent occurrence (Section 77(5)). By IBEC's own statement, the practice complained of is ongoing and Superquinn has no plans to change its procedures. An aggrieved party could at any point therefore submit a fresh complaint under the 1998 Act in relation to the issue already before me. I am satisfied having regard to all of the above that I should allow the complaint to stand on the time limit issue.
5.4 I will now address the matter of the identity of the alleged victims of discrimination in this case and whether or not the complaint could be described as a 'class action' as argued by IBEC. The Equality Officer in 70 Named Female Employees v Superquinn3 addressed the issue of 'class action' and the relevance of Mr. Justice Kinlen in the case of Verbatim -v- Duffy and Others4 on this issue. I note that MANDATE has listed 44 individuals whom it contends were discriminated against and on that basis I am prepared to accept that the referral does not constitute a class action but is a grouped complaint on behalf of 44 named individuals.
5.5 IBEC argued that the complaint concerned remuneration and could not properly be investigated under the 1977 Act. I am satisfied that the issue does not concern the monetary remuneration eventually paid to the claimants but the manner in which they are treated and the delay which they allege they must endure before they are refunded any over deductions. The question as to whether or not the complainants are engaged on like work with other employees does not arise and is irrelevant to the complaint. I consider therefore that the complaint is properly referred under the 1977 Act.
5.6 I will now address the grounds on which the complaints have been referred, dealing firstly with the gender ground. MANDATE suggests that a female employee is more likely to have an unemployed spouse than a male employee. I cannot make any sense of this argument. According to the union case, an employee whose spouse is unemployed and in receipt of benefit does not experience any over deduction or subsequent inconvenience. The over deduction arises when the spouse is working (or in social welfare terms is not a 'qualified dependent' ). The gender ground complaint would appear to have been added as an after-thought to the substantive complaint on the marital status ground and does nothing to enhance the union case. When questioned at the hearing regarding the source of his information on the employment status of employees' spouses, the union official stated that "he knew from asking around". I consider that the complaint on the gender ground is unfounded.
5.7 With regard to the complaints on the marital status ground, the 1977 Act expressly defines discrimination on the marital status ground as meaning discrimination between two persons of the same sex but different marital status. Having regard to the fact that the claimants and any single persons whom MANDATE would argue are treated more favourably could be male or female, I conclude that the complaints on the marital status ground must fail insofar as any alleged discrimination prior to the commencement of the 1998 Act is concerned. The 1998 Act removes the limitation with regard to persons of the same sex where complaints on grounds of marital status are concerned. Having regard to my comments at 5.3 above with regard to the ongoing nature of the alleged discrimination, I consider that it is appropriate for me to examine this aspect of the complaint under the provisions of the 1998 Act.
5.8 Despite having taken over fifteen months to furnish a submission in support of its complaint, MANDATE's submission provided no documentary evidence connecting any of the named complainants with the alleged discriminatory practice. The union stated at the hearing that it first became aware of the discriminatory practice on 18th January, 1999 when informed by Superquinn that it assumed an employee's spouse was unemployed when making a deduction from salary in respect of social welfare benefit. One female claimant was in attendance at the hearing and she gave evidence of an over-deduction which she experienced when she was ill in the year 2000. When asked at the hearing what evidence was he offering in relation to the other claimants the union official stated that he was sure that the other claimants had all been sick at some stage and that he could make further enquiries. I consider that the union had an inordinate amount of time to prepare evidence in this case and I will be basing my conclusions on the evidence made available to me up to and including the hearing.
5.9 I note that there is in fact no dispute between the parties that the practice complained of does indeed take place and is part of Superquinn's policy in relation to sick pay. I am of the opinion that the practice complained of does place married employees in a more disadvantageous position than single employees in that (a) they have to ensure that they have not been over deducted and (b) if they have been over deducted to ensure that they receive a refund of the over deduction. The Company approach appears arbitrary and heavy handed in this respect. The point was not raised by the union but a single person could have a qualified dependant and would perhaps be entitled to a higher rate of disability benefit in the event of illness. However it was clear that the Company does not extend the presumption of a qualified dependant to single employees in the manner that it does for married employees. I am satisfied that the practice complained of constitutes discrimination on the marital status ground contrary to the provisions of Section 8 of the 1998 Act.
5.10 The union in this case has presented evidence in relation to one particular complainant and relies on generalised assumptions about the others. Having regard to the nature of the discriminatory practice and the limited impact that it may have on any individual, I do not intend to make any award for compensation but order that the Company discontinue the discriminatory practice.
6. DECISION
6.1 Insofar as the complaint is dealt with under the Employment Equality Act, 1977 I find that Superquinn did not discriminate against the complainants on the basis of their gender or marital status contrary to the provisions of that Act.
6.2 Insofar as the complaint is dealt with under the Employment Equality Act, 1998 Act I find that Superquinn
- did discriminate against the claimants on the ground of their marital status
- did not discriminate against the female claimants on the ground of their gender contrary to the provisions of that Act in the manner in which it operates its sick pay arrangements.
6.3 I hereby order that Superquinn, within three months of the date of this decision, discontinue the practice of assuming that married employees have a dependant spouse or other qualified dependant when estimating deductions from sick pay in respect of social welfare benefit.
Raymund Walsh
Equality Officer
5 February, 2003
1 Rinner-Kuhn v FWW Spezial Gebaudereinigung Gmbh & Co KG (1989 IRLR 493)
2 Aer Lingus -V- the Labour Court, Supreme Court 1990
3 70 Named Female Employees v Superquinn, Equality Tribunal DEC-E2001-028 Paragraph 6.3
4 Verbatim -v- Duffy and Others, unreported High Court 18th May, 1994