Cole(Represented by the PSEU) -v- The Department of Justice, Equality and Law Reform
1. CLAIM
1.1 The case concerns a claim by Ms. Colette Cole that the Department of Justice, Equality and Law Reform discriminated against her on the gender, marital status, family status and age grounds in terms of section 6(2)(a), (b), (c) and (f) of the Employment Equality Act, 1998 in relation to her conditions of employment.
2. BACKGROUND
2.1 The complainant served as an Executive Officer in the Civil Service from 1971 to 1976 when she resigned in order to look after her family. She submits that she was discriminated against on the gender, marital status and family status grounds because a male officer, a single person with no children and a person without family status would not have been prevented from continuing in employment because of the lack of special unpaid leave. The complainant submits that the respondent discriminated against her on the ground of age as younger officers in the respondent Department have been considered for senior suitable promotion and for appointment to higher scales under the senior suitable element. The complainant in this case also alleges that the respondent continues to discriminate against her as it refuses to consider her previous service for seniority purposes in the Department. The respondent submits that the issue appears not to be discrimination on the nine grounds covered by the Employment Equality Act, 1998 but the fact that at the particular time, there was a lack of work balance initiatives. It also submits that the seniority rules in the Department are applied without regard to gender, marital status, family status or age and it rejects the complainant's claim of discrimination.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 23 April 2003. On 10 February 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 25 March 2004 and from the respondent on 17 May 2004. A joint hearing of the claim was held on 8 September 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant is a Higher Executive Officer (acting) on the staff of the respondent Department. She served as an Executive Officer from 1971 to 1976 when she resigned in order to look after her family. She was told by the then Personnel Officer that this was the only option open to her and that leave of absence without pay was not possible.
3.2 In September 2001, the complainant was recruited from a Civil Service Commission unestablished competition which was confined to former civil servants and was appointed to the respondent Department. Following successful completion of the required contract year, Ms. Cole was formally appointed as an Executive Officer in September 2002. On 24 September 2002, the complainant sought to establish her position regarding seniority, recognition of prior service for incremental purposes, promotion and pension entitlements. The respondent indicated by letter dated 24 October 2002 that her prior service would reckon for pension purposes and eligibility for promotion but not for seniority in the grade.
3.3 The complainant claims that she was discriminated against on the grounds of gender, marital status, family status and age. In summary, she submits that a male officer with no children - whether married or single - could not have been in the same position as her because he had no children. The male officer would not have been unable to continue in employment due to special leave not being available. A married male officer with children would not have been in the same position as the complainant as the burden of childcare falls mainly on women.
3.4 The complainant submits, more specifically, that the respondent discriminated against her on the grounds of gender because a male officer whether a parent or not would not have been prevented from continuing in employment because of the lack of special unpaid leave.
3.5 The complainant submits that the respondent discriminated against her on the grounds of marital status. A single person with no children would have been able to continue in employment without having to concern themselves with childcare needs. The complainant, a married woman with a child was not in that position and was therefore disadvantaged by comparison.
3.6 The complainant submits that the respondent discriminated against her on the grounds of family status. The complainant was the parent of a young child at the time of resignation and due to the non-availability of unpaid leave or flexi-leave was not in a position to continue in employment. The complainant indicated at the time that she did not wish to resign or leave her employment but was advised by the Personnel Officer that she had no option. Other staff that did not have the same family responsibilities, either single or married but with no children were in a position to continue in their employment.
3.7 Ms. Cole contends that the failure of the respondent to recognise her previous service for seniority purposes meant that:
- she was not considered eligible for consideration for promotion to Higher Executive Officer on a senior/suitable basis from September 2002;
- she could not be considered for assignment to the Executive Officer Higher scale on a seniority basis;
- she would not be considered for a transfer, as in the case of transfers to Brussels as they are decided on the basis of the most senior suitable applicant.
3.8 The complainant submits that the respondent discriminated against her on the ground of age. Younger officers in the respondent Department have been considered for senior suitable promotion and for appointment to higher scales under the senior suitable element.
3.9 The complainant submits that the respondent continues to discriminate against her as it confirmed by e-mail on 2 July 2003 that her prior service from 1971-1977 does not count for the purposes of reckoning for higher scales. The Personnel Officer when asked whether the complainant would qualify for a higher scale if prior service was taken into account indicated that the answer was probably yes, subject to assessment.
3.10 The complainant's representative considers that it has shown that the respondent has discriminated and continues to discriminate against the complainant by refusing to reckon her prior service for seniority proposes. The Equality Officer is asked to find that the respondent discriminated against and continues to discriminate against the complainant on the grounds of gender, marital status, family status and age in terms of section 6 of the Employment equality Act, 1998 contrary to section 8 of the Act.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent considers that the complainant's claim centres upon the failure of it to recognise her previous service for seniority purposes. She claims that she has been discriminated against back in 1977 on having to leave the service and more recently in 2002/2003 since her return to work in the Department.
4.2 The complainant served as an Executive officer from 29/01/1971 to 10/01/1977 when she voluntarily resigned. The complainant re-entered the service as an Executive Officer on 24/09/01 and was assigned to the Department of Justice, Equality and Law Reform. After a one year probation period which the complainant completed satisfactorily, she was subsequently confirmed in her appointment on 29/09/02 and served in her capacity as an Executive Officer until 12/01/03. Following an internal competition, the complainant was assigned to Higher Executive Officer duties on
4.3 The respondent strongly denies that the complainant was discriminated against on the grounds of gender, marital status, family status and age contrary to the provisions of the Employment Equality Act, 1998. The respondent is an equal opportunities employer and its general policy in relation to conditions of service is determined centrally by the Department of Finance. The respondent Department implements Department of Finance policy as necessary.
4.4 The respondent submits that in the complainant's submission, she claims that she was discriminated against on a number of grounds and was disadvantaged as a result of having to resign to provide childcare for her child/children. For the purposes of the Employment Equality Act, 1998, discrimination occurs where one person is more favourably treated than another is, has been or would be treated. The complainant has not put forward any evidence nor is there a comparator identified whom it could be claimed was treated more favourably.
4.5 The respondent submits that the complainant's decision to resign voluntarily was a personal decision. Another option to her was to remain in employment and avail of alternative childcare arrangements. It is not possible for the respondent at this stage to comment on what the Personnel Officer might have told the complainant regarding her options as there is nothing noted on her Personnel file.
4.6 The Department submits that the terms and conditions of employment which applied to the complainant at that time applied generally throughout the Civil Service to both male and female employees. The complainant's resignation occurred a few years after the marriage bar was lifted. The complainant's argument relates in particular to those historical terms and conditions of employment and to the lack of special facilities/leave arrangements available to a parent of a young child/children at that time or indeed to persons with relatives in need of care.
4.7 The issue appears not to be discrimination on gender grounds or any of the nine grounds covered by the Employment Equality Act, 1998 but the fact that at the time there was generally a lack of work balance initiatives which have now come to be accepted as the norm. The Department questions whether the provisions of the 1998 Act can be applied retrospectively as the Act only came into operation in 1999.
4.8 The complainant provides no evidence of discrimination on age grounds. The Department denies her claim in any event on the basis of an analysis of the age profile of the senior suitable appointees. There are currently 225 officers in substantive HEO/AO positions in the Department. A significant number of HEO's/AO's (approximately 50%) are in the 40-49 age bracket, 34% are in the 30-39 age group and 11% are in the 50-59 range.
4.9 In terms of the senior/suitable appointees from the HEO competition which the complainant applied for, there were four appointments made on that basis prior to the complainant's assignment from the internal panel. All appointees had more service than the complainant if her previous service was to reckon and one was older than the complainant and three were younger.
4.10 At HEO level, two out of three posts are filled from the internal panel set up after competition. The service requirement in 2002 for assignment/promotion to HEO was 3 years service in an established capacity as an Executive Officer or 5 years total service of which at least two years was in the grade of Executive Officer. In this case, the complainant's service counted as qualifying service for eligibility for promotion but not for seniority. That is consistent with competitions held by the Civil Service Commission and is in line with the Department of Finance letter of 18 May 2001 setting out certain changes to promotion and service requirements and probation. A further letter dated 12 March 2003 states "an officer on re-appointment to the same grade by open competition will retain reckonability of previous service as qualifying service for eligibility for promotion. In order to be eligible for promotion, probation arising from the new open competition will need to be satisfactorily completed." Competitive interviews were held and a panel set up on foot of office notice 26/2002 while a number of senior/suitable assignments were also made.
4.11 In relation to policy on seniority, the Department of Finance advises that determining seniority is a matter for each Department. The position across a number of Departments including the respondent Department is that continuous service and service prior to and after a temporary break in service (for example a career break) is counted for seniority purposes. Previous service in any Department which was terminated by resignation is not added to current service for seniority purposes. There is however an exception in that previous service is considered for purposes other than seniority. Following industrial relations negotiations, it has been agreed that previous service will reckon for the purposes of annual leave. There are ongoing discussions with regard to it reckoning for incremental credit. Previous service counts for pension purposes provided an officer has not received a refund of contributions. The fact that previous service does not reckon for seniority does not constitute discrimination as this is the policy which applies generally to all staff without reference to gender, age or family status.
4.12 Seniority in general commences on the date an officer takes up duty with a Department. If an officer transfers from one Department to another, his or her seniority stems from the date of transfer except in cases where head to head transfers are arranged or with redeployment. It is coincidental that the complainant was assigned to the same Department as she had previously served in during the 1970's.
4.13 The complainant claims that she was not considered for promotion on the basis of senior/suitable from September 2002. Promotions (or assignments) to HEO are made in a manner agreed with the Unions and on the basis of seniority/suitability or appointments from internal panels or interdepartmental panels following an agreed sequence. From September 2002 to January 2003, there were no appointments to Higher Executive Officer duties on any basis and no names were considered in the period in question. In order to be considered for assignment/promotion to the grade of HEO, officers must apply on foot of an office notice. Office notice 26/2002 issued on 31 October 2002 inviting applications for consideration on a senior suitable basis and for interview. Interviews were held in late November 2002 and a panel was drawn up. The complainant was placed at number 11 on the panel. There were 10 Officers assigned to Higher Executive Officer ahead of her, four of whom were from the senior/suitable stream, the most junior of whom had over 8 years service as an Executive officer. The complainant's total service at the time including former service amounted to 7 years and 3 months. A number of officers from Finance Division in Killarney declined assignments to the Dublin area. The question of an assignment for the complainant from the senior suitable stream never arose as she was in the meantime assigned from the panel which was drawn up from the competition.
4.14 Assignments/Promotions on the basis of seniority/suitability are made by the Principal Officer Management Team who would not have knowledge of the age of an applicant except in cases where an Officer has provided that information on his or her CV.
4.15 The complainant contends that the failure to recognise her previous service for seniority purposes meant she could not be considered for assignment to the Executive Officer higher scale on a seniority basis. Assignment to the higher scales is based on an agreement reached at General Council in 1995 with the PSEU, the terms of which are set out in Circular 24/95. To be eligible for consideration, inter alia, the Head of the Department must be satisfied that the officer has performed the duties assigned to him/her in a satisfactory manner. The Circular requires that the performance of the officer concerned in the grade be assessed over a two year period.
4.16 In this Department, as set out in the Circular, a local agreement exists with the PSEU detailing the basis and criteria on which assignments are made. The agreement came into effect on 1 October 1995 and provides for revised salary scales and provisions relating to flexible working arrangements and other measures of change.
4.17 In relation to the complainant's contention that she was discriminated against in relation to transfers to Brussels, applications are invited on foot of office notices and consideration is given to a number of factors and takes account of particular experience. The respondent has no transfer request for the complainant on record in any case.
4.18 The respondent denies the complainant's claim of discrimination on all grounds. The respondent has applied the current policy on seniority to this case as it would to all employees in a similar situation regardless of gender, marital status, family status or age. Any changes in general policy in relation to the treatment of former service for seniority is a matter for discussion between the Department, the Department of Finance and all staff interests.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender, marital status, family status and age grounds in relation to her conditions of employment by being unable to continue in employment in 1976 due to the unavailability of family friendly initiatives and by not recognising her previous service for seniority on her return to employment. I will therefore consider whether the respondent directly discriminated against the complainant on these grounds in terms of section 6(2)(a), (b), (c) and (f) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated." Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
(c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
Caselaw on establishing a prima facie case of direct discrimination
5.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the various grounds. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 More recently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."2
Resignation in 1976
5.5 The complainant submits that she was discriminated against on the gender ground because a male officer would not have been prevented from continuing in employment because of the lack of special unpaid leave. She claims that she was discriminated against on the marital status ground because a single person with no children would have been able to continue in employment. She also claims that she was discriminated against on the family status ground as she was as the parent of a young child unable to continue in employment due to the non-availability of unpaid leave or flexi leave. She submits that other staff that did not have the same family responsibilities, either single or married but with no children, were in a position to continue in their employment. The time in respect of which discrimination is claimed by the complainant is 1976. The Employment Equality Act, 1977 which allowed a claim of discrimination to be made on the sex and marital status grounds, for the main part, only came into operation on 1 July 1977 (save for certain provisions dealing with the functions of the Employment Equality Agency). It is not open to the complainant at this stage to refer a claim of discrimination on the gender and marital status grounds in respect of a time period when there was in fact no equality legislation in existence. Similarly, a claim of discrimination on the family status ground may only be made under the Employment Equality Act, 1998 in respect of incidents occurring after 18 October 1999. Again the complainant's claim on this ground relates to a time in 1976 which cannot therefore be the subject of a claim under the 1998 Act and to do otherwise would amount to the retrospective application of the legislation.
Refusal to recognise previous service for seniority
5.6 The complainant in this case also alleges that the respondent discriminated against her on the age ground as it refused to consider her previous service for seniority purposes in the Department. In particular, she claims that:
- she was not considered eligible for consideration for promotion to Higher Executive Officer on a senior/suitable basis from September 2002;
- she could not be considered for assignment to the Executive Officer Higher scale on a seniority basis;
- she would not be considered for a transfer, as in the case of transfers to Brussels as they are decided on the basis of the most senior suitable applicant.
5.7 The matter of previous service not reckoning for seniority was dealt with by the Supreme Court in the case of Aer Lingus Teoranta -v- The Labour Court and others3.
The case concerned a claim by a group of married women (who married prior to August 1970) that they were treated differently to another group of married women (who married after August 1970) with respect to their seniority in that they were not given credit for previous service. Walsh J. considered that there was "no complaint whatsoever that the question of the marital status directly entered into the matter in any way since their re-employment" and the relevance of their marital status in the matter was "the fact that it was the cause of their retirement from the company before 1970." Walsh J. considered that the question of seniority was affected by the date of marriage and in particular by the date of the acquisition of the status of marriage which was different from the status itself. He went on to hold that differences resulting from dates of marriage did not amount to discrimination because of marital status and stated that "Failure to recognise previous service may be thought to be inequitable but it does not amount to illegal discrimination." He considered that there was no discrimination because of marital status and that it could not be shown that marital status was an activating cause in the determination of seniority. He held that the complainants had not shown that they were treated less favourably because they were married. He further held that the complaints related to the "operation of the seniority rule in its ordinary way."
5.8 In this case, the complainant submits that the consequence of not recognising her previous service for seniority was that younger officers were considered for senior suitable promotion and for appointment to higher scales under the senior suitable element. Additionally, she would not be considered for assignment to Brussels. In order to satisfy the burden of proof in relation to a claim of direct discrimination, the complainant would have to establish facts from which it could be presumed that she was treated less favourably on the age ground in relation to the respondent's nonrecognition of her previous service for seniority thereby affecting her promotion to Higher Executive Officer on seniority, assignment to Executive Officer Higher Scale or transfers to Brussels. The complainant has not shown that age was a factor or "an activating cause" in the respondent's refusal to recognise her previous service forseniority and I do not accept her contention (even if she were correct in her contention) that the indirect effect of the respondent's actions meant that younger persons were promoted or assigned to higher scales thereby constituting age discrimination. She has not established such facts as give rise to a presumption of discrimination on the age ground in relation to the operation of the seniority rules and has therefore failed to establish a prima facie case of discrimination.
Continuing discrimination
5.9 The complainant in this case also alleges that the respondent continues to discriminate against her on the gender, marital status, family status and age grounds as it refuses to reckon her previous service for seniority purposes in the Department. The respondent submits that seniority in general commences on the date that an officer takes up duty with a Department. It submits that if an officer transfers from one Department to another, his or her seniority stems from the date of transfer except in cases where Head to Head transfers are arranged or with redeployment. The respondent submits that it applied its current policy on seniority to this case as it would with all employees in a similar situation regardless of gender, martial status, family status or age. In accordance with section 6(1) of the Employment Equality Act, 1998, I must consider whether the complainant is being treated less favourably in the application of the seniority rules than:
- someone of a different gender, (i.e, a male),
- someone of a different marital status, (i.e. someone who was single, separated, divorced or widowed),
- someone who does not have family status , (ie., someone who is not a parent or a resident primary carer),
- someone of a different age.
5.10 In the case in issue, the respondent submitted that seniority in general commences on the date an officer takes up duty with a Department and that it is coincidental that the complainant was assigned to the same Department that she served in during the 1970's. Evidence has not been adduced by the complainant to indicate that gender, marital status, family status or age is taken into account in determining her seniority. Indeed, it does not appear that these factors are taken into account in the operation of the seniority rules to any person on commencement of employment in the Department. Any person who previously left the Civil Service and who subsequently came back into the Civil Service in the respondent Department would be treated the same with regard to the operation of the seniority rules regardless of gender, marital status, family status or age. The complainant may consider that the operation of the seniority rules is unfair to her as it does not take account of her previous service in the Department. However, unfairness of itself is not necessarily discrimination within the meaning of the Employment Equality Act, 1998 and any claim of discrimination must be determined in accordance with the provisions of the Act and relevant caselaw. In the circumstances, I find that she had failed to establish a prima facie case of ongoing direct discrimination on the grounds of gender, marital status, family status and age in relation to the operation of the seniority rules to her. Her claim cannot therefore succeed.
6. DECISION
6.1 On the basis of the foregoing, I find that the complainant's claim in respect of discrimination in 1976 cannot be the subject of a claim under the Employment Equality Act, 1998 Act.
6.2 I find that the complainant has failed to establish a prima facie case of direct discrimination on the gender, marital status, family status and age grounds in terms of section 6(2)(a), (b), (c) and (f) of the Employment Equality Act, 1998 in relation to her conditions of employment by the non-recognition of her previous service for seniority purposes.
__________________
Mary Rogerson
Equality Officer
15 November 2004
1 DEE011 15 February 2001
2 Flexo Computer Stationery v. Kevin Coulter EED0313 9 October 2003
3 [1990] ILRM 485