FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - 12 FEMALE EMPLOYEES (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Recommendation DEC-E2001-035
BACKGROUND:
2. The Union alleged that twelve named female claimants, who were employed as sales assistants in the Celbridge store, were directly discriminated against by the respondent when they were told to carry out toilet cleaning duties on the 27th October 1998, as male workers were not instructed to perform these duties.
The Union lodged a complaint under the Employment Equality Act, 1977 with the Labour Court, which referred the claim to an Equality Officer for investigation and a Recommendation. A hearing by an Equality Officer took place on 2nd November 2001.
The Equality Officer found on 16th November 2001, that the Union had referred an invalid claim, as there were no named claimant(s) against whom the respondent was alleged to have discriminated on 27th October 1998.
On the 12th December 2001, the Union appealed the Equality Officers Recommendation on the following basis: -
- 1. The Equality Officer erred in law and in fact in paragraph 5.4 when she concluded that the claim submitted by Mandate was an invalid claim, that the Union had failed to associate a claimant or claimants as having been discriminated against by Tesco Ireland on the alleged date of the discrimination and that the Union had been sloppy in its referral of the claim.
2. The Equality Officer erred in law and in fact in paragraph 6.1 when she again concluded that the claim submitted by Mandate was an invalid claim.
- A Labour Court hearing took place on 19th April, 2005.
Appellant’s Arguments:
3. 1. It is admitted by the respondent that, until the Union brought the matter to its attention only female sales assistants were asked to clean toilets. This was clearly discriminatory.
- 2. As a specific date on which the discriminatory act occurred is necessary under the Act, the Union entered the first date known to it i.e. 27th October 1998.
- 3. While technical questions as to exactly which claimant undertook the duties on the day in question are not relevant and not a requirement of the legislation, the Union is now in a position to name Lisa Quigley, Geraldine Christie and Emma Gallagher as the three claimants who did so, as they cleaned the toilets every day at that time.
- 4. The Union reserved the right at the time to make a claim under the Act if the matter was not resolved to its satisfaction. While the Company made payments to some of the staff involved for their work in cleaning toilets (i.e. the differential between a cleaner's rate and a sales assistant’s rate) it did not compensate them for the discrimination. Therefore, the Company’s letter of the 18th December, 1998, assuming settlement was not, as the Company claimed, the end of the matter. Some claimants had been paid, but the Union did not accept that this represented settlement, which was borne out by the fact that the Union never replied to this letter.
5. Given all the above, especially as 3 claimants have now been named who cleaned the toilets on the date in question, the Equality Officer’s conclusion that the claim was invalid is wrong in fact and in law.
Respondent’s Arguments:
4. 1. This claim was brought before the Equality Officer as a Class Action, which is not permitted under the legislation (Verbatim Ltd v Duffy & Others, Unreported High Court, 1994).
2. The Union, until now, has provided no evidence of who, individually, cleaned the toilets on the day in question. For the Union to now produce three names, nearly 7 years after the event, is not credible.
- 3. It is the strong view of the respondent that this matter was resolved locally, that all parties were satisfied and that the Company letter of 18th December 1998 reflects this position accurately. The very fact that the Union never replied to the letter adds weight to this argument. If the Union disagreed it would surely have written back immediately to the Company.
4. As the Union raised the whole matter with the Company as an ongoing problem in October 1998, it therefore follows that 27th October 1998 cannot have been the first date of the alleged discrimination and that the Union cannot actually tell when the first date was. The claim is therefore invalid on this ground also.
DETERMINATION:
- While the question of whether a discriminatory act took place remains uninvestigated, it is the view of the Court that: -
(a) the Union was, at the time of the Equality Officer’s investigation, unable to name a claimant or claimants.
(b) the fact that claimants are now named, over 3 years after the EO's investigation, defies credibility.(c) The date of the 27th October, 1998, is self-evidently not the first date of the alleged discriminatory act. Under Section 19(5) of the Act, a reference under this Act shall be lodged not later than 6 months from the date of the first occurrence of the act alleged to constitute the discrimination, save only where a reasonable cause can be shown. No such cause was advanced by the appellant before the Equality Officer.
The Court, therefore, dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
8th August, 2005______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.