FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : ADELAIDE & MEATH HOSPITALS (REPRESENTED BY HEALTH SERVICE EMPLOYERS AGENCY,) - AND - SHEILA WILSON (REPRESENTED BY EQUALITY AUTHORITY) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal against the decision of the office of the director of Equality Investigations Dec-E2002-025.
BACKGROUND:
2. A Labour Court hearing took place on the 18th of February, 2003 under the provisions of Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
Introduction;
Ms Sheila Wilson (the complainant) claims to have been discriminated against, contrary to the Employment Equality Act, 1998, (the Act), by the Adelaide and Meath Hospitals (the respondent) in not being appointed to the post of porter at the Hospital on various occasions between 1998 and 19th June, 2000, when she was appointed to that position.
The complaint was investigated by an Equality Officer, who found that the complainant had been indirectly discriminated against in respect of one competition held in February, 2000. The Equality Officer made various orders including a direction that the complainant’s date of appointment be brought forward to 8th May, 2000, (the date from which the successful male candidates were appointed). He further directed that the complainant’s appointment be made permanent from the same date. The complainant was also awarded compensation in the amount of €1,000.
The respondent appealed against so much of the Equality Officer’s decision as found that they had discriminated against the complainant in the competition held in February, 2000. The complainant appealed against so much of the decision as found that the respondent had not indirectly discriminated against the complainant in the filling of porter vacancies in 1999 and in finding that the complainant had not suffered direct discrimination in February 2000. They also appealed against the adequacy of the monetary award made by the Equality Officer.
Preliminary Issues.
The respondent raised a preliminary issue relating to the circumstances in which the complaints herein came before the Equality Officer. Firstly, they say that some of the incidents alleged to constitute discrimination occurred before the coming into effect of the Act. Secondly, they say that some of the incidents occurred more than six months before the date on which the complaint was referred to the Office of the Director of Equality Investigations. They contended that the complaint was out of time.
With regard to the first point, where complaints are made, some of which relate to a period before the coming into effect of the Act and some after the effective date, the manner of processing such complaints is governed by Section 106 of the Act, as inserted by the Equal Status Act, 2000. In effect, this section provided that such complaints, which predate the Act, should be processed in accordance with the provisions of the Act but the substantive law applicable should be as if the Employment Equality Act, 1977, had not been repealed. There is nothing to suggest that the Equality Officer departed from this statutory provision.
With regard to the second point, in view of the determination of the Court, this point is now moot.
The Material Facts.
The background to this dispute is fully and accurately recited in the decision of the Equality Officer. In so far as is relevant to the present appeal, the facts as admitted or as found by the Court are as follows:
1. In negotiations with the trade unions representing staff, in relation to the transfer of staff to a new hospital, the respondent agreed a protocol which provided, inter alia, for the maintenance of established working conditions and practices as they applied in the original hospitals.
2. The complainant was employed as a linen clerk with the Meath Hospital. As part of a restructuring of the health services in Dublin, that Hospital was amalgamated with other hospitals and relocated in Tallaght. This relocation occurred in mid 1998.
3. The post which the complainant held with the Meath Hospital was to be abolished in the new hospital. She was offered and accepted a position as ward attendant. All porter positions at the new hospital were offered to existing porters at the Meath, all of whom were male.
4. In June, 1998, the respondent placed an advertisement in a local newspaper inviting applications for appointment as temporary porters. Interviews for these posts were held on 9/10 of June. The complainant did not see the advertisement. She later became aware of the vacancies and made an application in August, 1998. The competition was then closed. The respondent told the complainant that her details would be kept on file.
5. The complainant applied for other porter vacancies in 1998 and in February, 1999. These posts were either not filled or the complainant was not regarded as eligible.
6. In 1999, a number of permanent porter posts were filled at the hospital. The complainant was not aware that the posts were being filled and she did not apply. The posts were filled by appointing temporary porters, all of whom were male.
7. In February, 2000, the respondent advertised eight permanent porter posts. The competition was also intended to create a panel from which future temporary posts would be filled. The complainant was one of 13 candidates. Eight male candidates were appointed each of whom was then serving as a temporary porter.
8. The eight successful candidates were preferred because they then held temporary posts.
9. It is custom and practice within the Hospital to give persons holding temporary positions priority in the subsequent filling of those posts on a permanent basis.
The respondent's appeal is confined to the decision of the Equality Officer in respect of the competition referred to at 7 above. The complainant’s appeal is confined to the decision of the Equality Officer in respect of filling of posts referred to at 6 above and the decision in relation to the competition referred to at 7 above.
Conclusions of the Court.
The Court has considered all of the submissions of the parties and has also considered the comprehensive report and decisions of the Equality Officer.
In respect of the filling of posts in 1999, the complainant contends that she was discriminated against in not being afforded an opportunity to apply for the vacancies. The Court is satisfied that the reality of what occurred in 1999 was that posts which were designated as temporary were being upgraded to permanent. In accordance with the custom and practice and the agreement between the respondent and the Union, the holders of those posts had their status
changed from temporary to permanent. There was no competition in any meaningful sense.
Moreover, for whatever reason the complainant did not apply for these posts and cannot claim to have been discriminated against in not being offered one. She cannot speculate, for the purpose of grounding a claim for discrimination, as to what might have occurred if she had applied.
The position was different in relation to the competition held in February, 2000. The complainant applied for the post of permanent porter, together with twelve other candidates. She was interviewed for the posts, as were all of the other candidates. The posts were offered to the eight male candidates who were then serving as temporary porters. It was accepted by the respondent that these candidates were selected because they held temporary posts.
There can be no doubt that the successful candidates received better treatment in the competition than the complainant. Positions were reserved for those candidates while the complainant was expected to compete with the other four candidates for a place on the panel. At no stage was the complainant told that the reality of the competition was for placement on a panel only and that the permanent posts advertised would be filled by automatic selection.
Whilst the complainant was undoubtedly subjected to different treatment, the Court cannot agree that this amounted to direct discrimination on the gender ground. The difference in treatment was because those preferred held temporary posts and the complainant did not. Thus the difference in treatment was not because of her sex or a reason which is not dissociable from her sex.
The Court does, however, agree with the Equality Officer that the conduct of the competition amounted to indirect discrimination in that the criterion for appointment to a permanent post was one which men could more easily fulfil than women.
Objective Justification.
There remains the question of whether the selection process is capable of justification within the terms of section 19(4) of the Act, as amended by Regulation 4(a) of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001). The wording of this section, as amended, must be interpreted as contemplating the three tiered test for objective justification set out by the ECJin Bilka – Kaufhauf,GmbH v Karin Weber von Hartz [1986] ECR 1607This test requires that the Court be satisfied that the impugned measures:-
(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.
The respondents contended that the holders of temporary posts had a legitimate expectation of obtaining permanent posts as they become available. In the instant case, those appointed had 18 months' service in a temporary capacity and had acquired rights under the Unfair Dismissals Acts 1977-1993. They further contended that serious industrial relations difficulties would ensue if these employees were passed over for appointment.
The Court has no hesitation in accepting that the holders of temporary posts had acquired rights which the respondent had to safeguard. However, the complainant had at least an equal right not to be discriminated against and a right to equality of opportunity. Faced with these
competing rights it was not open to the respondent to choose arbitrarily between them.
The difficulties which emerged in the filling of these posts were probably inevitable given the gender imbalance in the temporary porter grade and the established custom and practice in filling permanent posts. It was a difficulty which the respondent should have anticipated. They did not consider any options by which the competing rights of all the parties could have been reconciled. At a minimum they could have discussed the matter with the Union of which the complainant and the others affected were members. They could have examined the possibility of obtaining sanction to bring forward the filling of other temporary porter posts which were subsequently filled.
In the circumstances, the respondent has not satisfied the Court that the decision to only appoint those holding temporary posts was objectively justified within the meaning of section 19(4) of the Act.
With regard to the question of redress, the Court is satisfied that the decision of the Equality Officer is fair and reasonable and should not be disturbed.
Order:
The decision of the Equality Officer is upheld and the appeal and cross appeal are disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
11th March, 2003______________________
GB/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.