Hunt and Doherty
(Represented by Frank Watters, on behalf of the Prison Officers' Association)
-v-
Irish Prison Service
(Represented by Cathy Maguire BL, on the instructions of the Chief State Solicitor, with the State Solicitor for Limerick City in attendance at the hearing)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Mary Hunt and Ms Frances Doherty, employed as prison officers in Limerick Prison, that they were discriminated against by the Irish Prison Service on the ground of gender contrary to the provisions of the Employment Equality Acts 1998 - 2004 when they were subjected to less favourable work practices than their male colleagues. Ms Hunt also claimed harassment.
1.2 On behalf of Ms Hunt and Ms Doherty, the Prison Officers' Association (POA) referred claims under the Employment Equality Act 1998 to the Director of Equality Investigations on 13 and 16 October 2003, respectively. In accordance with her powers under section 75 of that Act, the Director then delegated the claims on 23 June 2004 to Anne-Marie Lynch, 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. Submissions were sought from the parties and a joint hearing was held on 21 October 2005. Subsequent correspondence with the parties concluded on 22 December 2005.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 Ms Hunt commenced employment with the Irish Prison Service in 1980 and has been assigned to Limerick Prison since that time. Ms Doherty has been based in the prison since 1990. Both complainants allege that a general environment exists within Limerick Prison which discriminates on the ground of gender. This environment is claimed to exist in relation to such matters as compulsory detailing (assignment) of female staff, rotation of posts within the prison, escorting prisoners and applying for annual leave. In addition, Ms Hunt claims discrimination in relation to a job-sharing application and Ms Doherty claims discrimination with regard to an application for transfer.
2.2 The complainants say that the assignment of staff to additional duties, beyond their rostered hours, is done on the basis of overtime. This is operated by means of what is termed a "rollover box", whereby an officer whose name appears at the top of the list is assigned to the relevant duty, and his or her name goes to the bottom of the list. However, Limerick Prison is one of only two in the country to cater for women prisoners and there are consequently additional aspects to the operation of the rollover. There is a second rollover box, applicable to female officers only. When the detailing of a female officer is necessary, to escort a female prisoner to court or to hospital for example, this female officer box is used. A female officer whose name emerges from the female officer box does not change her position in the general box and may subsequently face assignment from the general box, and vice versa. The complainants claim that this practice exposes female officers to a higher degree of compulsory detailing than applies to male officers.
2.3 The complainants say that the allocation of staff to work in various areas of the prison is based on a panel system. Each year, officers are invited to submit preferences for allocation to posts in areas such as the tuck shop, fabric shop, school, laundry and so on. The complainants contend that, despite expressing preferences for such assignments, they are primarily assigned to work in the female wing, whereas a male officer who expressed such preferences would almost invariably be assigned to such duties on a continuous or frequent basis. The complainants claim that the minimum requirement is for two female officers to work in the female wing, but that there are often between four and six female officers so assigned. The complainants allege that the effect of this is that the variety and type of work available to a female officer is severely restricted when compared to that available to a male officer.
2.4 The complainants assert that their problems in relation to escort duty stem largely from the operation of the rollover system. They claim that escort duty is allocated to male officers as overtime, except where there is a shortage of staff. They say that this means male officers have an element of choice. On the other hand, they say that female officers are given no choice but to accompany female prisoners to court or hospital on their rostered days, if there is no female officer available on a rest day. Ms Doherty also claimed discrimination in relation to the payment of the "in charge of escort allowance" payable to the most senior officer on the escort party. She said that a female officer who was handcuffed to the prisoner, as was required when the prisoner was female, would not get the allowance even if she were the most senior officer. Ms Doherty claimed this had been the practice since 1990, although she said it appeared to have changed since late 2003.
2.5 The complainants allege that, if they apply for annual leave, the detail officer will refuse the leave if there is a shortage of female officers rostered for that day as well as if there is a shortage of officers generally. They claim that the larger pool of male officers means that a male colleague has a better chance of having annual leave approved. Ms Hunt said she had personal knowledge of a situation where a male officer was able to secure annual leave for an important family occasion but his wife, a female officer in the prison, was refused.
2.6 Regarding their individual complaints, Ms Hunt says that she had applied for job sharing in late September or early October 2003. Having heard nothing, she contacted the Irish Prison Service in January 2004, and says she was told that a replacement female officer would have to be assigned to the prison before she could start job sharing. She says she was further told that the next available female officer for transfer to the prison was number 10 on the list and that it would be some time before she could job share. Ms Hunt says that she was offered job sharing some months later but declined.
2.7 Ms Doherty says she applied for transfer to the Midlands Prisons in October 2003, having concluded that the discriminatory practices in Limerick Prison would continue. She says she was told by the Governor that he could not agree to her transfer until a replacement female officer had been assigned to the prison, and she claims that if she were a male officer she would have been granted her transfer immediately. Ms Doherty says she went on certified sick leave as a result of this incident. She says she returned to work on 18 November, when she had a conversation with the Governor who said he had not prevented her transfer. Ms Doherty says she withdrew her application to transfer on that day because she found the whole episode so upsetting. She claims she had built herself up for the transfer, having worked in Limerick for 14 years, and withdrew the application as she wanted the transfer when she was ready as opposed to it being decided by management at some later date.
2.8 The complainants say it is inevitable that their complaints would require consideration of the application of section 27 of the Acts. Section 27 provides
(1) With regard to employment in the Garda Síochána or the prison service, nothing in this Act-
(a) applies to the assignment of a man or, as the case may require, a woman to a particular post where this is essential-
(i) in the interests of privacy or decency,
(ii) in order to guard, escort or control violent individuals or quell riots or violent disturbances...
2.9 As the section provides for exceptions from the general anti-discriminatory provisions of the Acts, the complainants argue that it must be strictly construed, citing the Equality Officer decisions in Travers and Maunsell v Ball Alley (DEC-S2003-109/110) and Gillen v Department of Health and Children (DEC-E2003-035) in support of this contention. The complainants say it is not, therefore, appropriate to utilise all or any part of section 27 to justify a general discriminatory act which would otherwise be considered in breach of the Acts. They say that such exceptions as are provided for in section 27 should be read in the context of a requirement arising in a particular factual situation rather than validating a general working practice.
2.10 The complainants say, additionally, that the two exceptions contained in section 27 (1) (a) (i) and (ii) are separate and distinct. They say that the use in section 27 (1) (a) (i) of the phrase privacy or decency clearly relates to the appropriate assignment of an officer having regard to characteristics and activities arising from the gender of a prisoner. They point out that in section 27 (1) (a) (ii) the reference is not simply to "guard of escort", but to in order to guard, escort or control violent individuals or quell riot or violent disturbances (added emphasis). The complainants say that both exceptions require the making of a judgement that it is essential to assign a man or a woman to a particular post, not simply the making of an assumption that a female prisoner being escorted to a court hearing, for example, must or should be escorted by a female officer.
2.11 The complainants note that the respondent cited the European Court of Justice (ECJ) decision in Kreil v Bundesrepublik Deutschland (Case C-285/98) in support of its position. The complainants say that this is one of a series of judgements in which the ECJ has given a preliminary ruling as to the scope and effect of Article 2 (1), (2) and (3) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. The complainants say that, in considering the derogation provided for by Article 2 of the Directive, the ECJ has been consistent in its interpretation of the proper scope and effect of any national statutory or administrative measure which seeks to rely on the derogation from the principle of equal treatment for men and women in the overall employment context. The complainants refer in particular to ECJ decisions Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84) and Sirdar v The Army Board and Secretary of State for Defence (Case C-273/97) in this regard.
2.12 The complainants say that the relevant decisions of the ECJ examine national statutory or administrative measures, which seek to rely on Article 2 of the Directive, by reference to: the principle of proportionality and the context in which the activities are to be performed; whether the measures taken achieve their purpose and whether they are appropriate and necessary to achieve that aim; and the fact that such derogations must be strictly interpreted. The complainants argue that any consideration of the application of section 27 must be in the context of these ECJ decisions, and claim that the section is clearly drafted in terms which strictly limit the use of what would otherwise be discriminatory practices. They say the section cannot be used, as was suggested in the respondent's submissions, as a basis to justify and therefore be a defence to all cases where a prima facie case of discrimination has been established.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies all allegations of discriminatory treatment of the complainants. It says that it is satisfied that at no time were the complainants treated less favourably than male prison officers on the ground of gender or otherwise. It says that, to the extent that the Equality Officer finds that any discriminatory treatment occurred, it is satisfied that such treatment comes properly within the scope of section 27 of the Acts, dealt with in more detail at 3.x below.
3.2 The respondent says that the prison houses approximately 275 male prisoners. It usually houses about 15 female prisoners, with a possible maximum of 20. The staff comprises 196 male officers and 23 female officers, six of whom are job-sharing.
3.4 The respondent says that the description of compulsory detailing given by the complainants is inaccurate. It says there is a general rollover box which is used to assign all officers in turn to compulsory overtime, when necessary. It says the second, female officer, box described by the complainants is used only to detail rostered female staff for duties specifically requiring a female officer, such as escort duty. The respondent says it is obliged and entitled to ensure that all female prisoners leaving the prison are escorted by a female officer.
3.5 The respondent says further that it is essential, in the interests of privacy and decency, that an adequate female officer presence is maintained within the female wing of the prison so that the needs of the prisoners can be catered for in relation to such matters as showering, searching or any situation where a prisoner may be in a state of undress. The respondent says that agreement was reached locally with the POA in 1997 that a minimum of two female officers should be assigned to the female wing, to reduce compulsory detailing and facilitate leave applications. The respondent says this agreement did not intend or imply that only two female officers should be assigned.
3.6 The respondent says that it is policy to rotate officers annually to the various posts in the prison. The only officers who remain static are those in allowance-carrying posts. For all other posts, applications are invited at the beginning of each year. The respondent says that every effort is made to facilitate any preference expressed by the officers and there is no discrimination on the ground of gender in allocating the posts. It says, however, that at all times it must take into account the necessity to have at least two female officers in the female wing and the requirement to have female officers available for escort duty. The respondent says the rostering system and rotation of posts are nationally agreed between the POA and the Minister for Justice.
3.7 The respondent denies Ms Doherty's claim that the "in charge of escort allowance" was not paid to a female officer who was handcuffed to a prisoner, even if she was the most senior officer on the escort party. It says that, if a female prisoner is being escorted, a female officer must be handcuffed to the prisoner. If the most senior officer is male, he will receive the allowance as he is deemed to be in charge of the escort even though the female officer is handcuffed. If the most senior officer is female, she will receive the allowance.
3.8 Regarding annual leave, the respondent notes that the complainants appear to be complaining that their applications for leave are considered in the light of the number of female officers available to work at the time. The respondent describes this as entirely in accordance with its requirement to have a minimum number of female officers available. It said that all officers are invited to apply for set two-week periods of leave in spring, summer and winter. A set number of officers are allocated to different weeks in each leave period. When a particular week is over-subscribed, unsuccessful officers are asked to indicate a second preference. The respondent says casual or single-day applications are granted on a first-come-first-served basis, subject to rostering requirements.
3.9 In relation to the complainants' individual issues, the respondent says that it was explained to Ms Hunt at the time of her application that there would have to be an officer available for the other half of her post before she could job share. The respondent said this was entirely in accordance with the operation of the job-sharing scheme across the civil service, and applies to male and female officers. The respondent notes that Ms Hunt declined job sharing when it was subsequently offered to her. In the circumstances, it says it was unclear how she alleges she was less favourably treated on the ground of gender. Insofar as Ms Hunt could satisfy the Tribunal that it was more difficult for a female officer to avail of job sharing, which was denied, the respondent says it would rely on section 27 to justify this.
3.10 With reference to Ms Doherty's transfer application, the respondent says that such transfers are quite routine and generally done on a seniority basis. However, it says that to facilitate such a transfer for a female officer it must ensure that it has an adequate supply of female officers to provide necessary services for female prisoners. The respondent denies the allegation that the Governor prevented the transfer, and submits in evidence his covering letter to Human Resources wherein he said he recommended the transfer subject to "...receiving a female replacement. I am stipulating that it must be a female officer in view of my commitment to privacy and decency in respect of female prisoners, both in the prison and on court escorts."
3.11 The respondent repeats that at no time have the complainants been treated less favourably than their male colleagues other than insofar as necessary and in accordance with section 27 of the Acts. It says that section 27 (1) permits discrimination in certain specified situations and is consistent with the jurisprudence of the European Court of Justice in applying the similar derogation from the principle of equal treatment as set out in Article 2 (2) of the Equal Treatment Directive 207/76, which allows member states to treat men and women differently with regard to occupations in respect of which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.
3.12 The respondent says the European Court of Justice (ECJ) has upheld the legitimacy of derogations form the principle of equal treatment in the prison service. In this regard, it refers to the case of Commission of the European Communities v French Republic (Case 318/86), which involved a challenge to the French practice of separate recruitment of men and women into certain grades of the prison service. The French government argued that the need to dissuade potential troublemakers and the physical dangers of the job justified recruiting only a limited proportion of women. The ECJ accepted that separate recruitment of custodial prison warders could be justified with regard to the need to have certain duties performed by men or women.
3.13 The respondent says that, while it is satisfied that the complainants have not been subjected to less favourable treatment on the ground of gender, it is also satisfied that a significant element of the services they provide necessitate an exception from the general principle of equal treatment between men and women. The respondent says it does not seek to rely on these exceptions lightly, but only to do so where this is essential in the manner laid down in section 27 (1).
3.14 Finally, the respondent refers to the ECJ decision in Kreil v Bundesrepublik Deutschland (Case C-285/98). This case involved a challenge to a German law which provided that women who enlisted as volunteers in the Armed Forces were permitted access only to medical and military-music services, and were barred from military posts involving the use of arms. The ECJ acknowledged that sex may be a determining factor for certain activities, and that member states may restrict such activities and the relevant professional training to men or to women, as appropriate.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainants alleged that the respondent discriminated against them on the ground of gender contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including gender. Section 8 provides that
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 As acknowledged by both parties, the application of section 27 of the Acts would appear to be fundamental to consideration of these claims. The complainants assert, correctly, that any deviation from the principle of equal treatment must be strictly construed. As the ECJ said in Kreil, "...as a derogation from an individual right laid down in the Directive, that provision must be interpreted strictly...".
4.4 It should be noted that the relevant ECJ decisions cited by both parties dealt with situations where women were barred from service in certain areas, and the ECJ acknowledged that sex may be a determining factor for posts such as those of head prison warders (Commission v France), for certain policing activities in disturbed situations (Johnston) or for service in special combat units (Sirdar). None of the decisions dealt with a claim that selecting women for certain duties, in preference to men, constituted discrimination on the ground of gender. However, the ECJ's statements on the scope of derogations from the principle of equal treatment may be applied to these complaints.
4.5 In Kreil, the ECJ said "In determining the scope of any derogation from a fundamental right...the principle of proportionality, one of the general principles of Community law, must also be observed...That principle requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security which determine the context in which the activities in question are to be performed."
4.6 It will be seen that the ECJ was considering a derogation in the context of public security requirements. The respondent in these complaints, however, did not cite public security (as provided for in section 27 (1) (a) (ii) of the Acts) in support of its position. Rather, it claimed privacy and decency (as provided for in section 27 (1) (a) (i)) as the reason why it was necessary to assign female officers to escort duty and to serve in the female wing of the prison.
4.7 The general conduct impugned by the complainants, such as alleged restrictions on access to annual leave, rotation of posts and compulsory detailing, all stem from the respondent's argument that privacy and decency required the assignment of female officers to escort duty and to serve in the female wing.
4.8 The complainants did not dispute that just one female officer is assigned to each escort party involving a female prisoner, but asserted that the respondent should not operate on the basis of an assumption that a female prisoner should be escorted by a female officer. I am unable to accept the complainants' argument in this regard. It seems to me to be clear that it would be inappropriate to force a female prisoner to be handcuffed to a male officer in circumstances where she may be undergoing a medical examination in hospital or may need to visit a toilet during a court appearance. I am satisfied that the assignment of a female officer to escort of a female prisoner is essential in the interests of privacy and decency.
4.9 The same argument applies to the assignment of officers to the female wing. The agreed minimum number of female officers is two (from a wing complement of six at the time of the referral of the complaints). On any particular day, the Detail Office must ensure that enough officers (approximately 75) are available to run the prison effectively. Having taken into account scheduled events such as court escorts and approved annual and other leave, provision must then be made for emergency hospital escorts and unscheduled leave such as sudden sick leave. It seems clear that the respondent must be given some flexibility to cover all of these contingencies. In the circumstances, I consider that to insist that no more than two female officers be assigned to the female wing at any one time may impinge upon the respondent's responsibility to the privacy and decency of female prisoners.
4.10 Regarding Ms Hunt's job-sharing application, I note that she refused job sharing when it was offered to her some months later. The essence of the complaint appears to be that it should have been offered immediately. I am satisfied that an application to job share by any officer would have been subject to the requirement that a job-sharing partner was available. This requirement does not constitute discrimination on the ground of gender.
4.11 Ms Doherty's application to transfer was not refused by the Governor, as she claimed. As detailed in 3.10 above, he supported the application on the basis that she be replaced by a female officer. I find that this requirement was in accordance with the provisions of section 27.
4.12 At the hearing of the complaints, the POA was asked about Ms Doherty's assertion that the "in charge of escort allowance" would not be paid to a female officer handcuffed to a female prisoner, even if she was the senior officer on the escort party. The Association indicated that it had never heard of this practice and had never received a complaint during the time frame it allegedly took place. In the circumstances, I can find no evidence to support the allegation.
4.13 In the interest of completeness, I should note that the complainants each detailed specific instances of alleged discrimination, not summarised here. These included occasions when exchange of duty was refused, when overtime was compelled and when an application to be excused escort duty was refused. I am satisfied they do not support the complainants' claim of discrimination on the ground of gender. Finally, no evidence was adduced by Ms Hunt to support the allegation of harassment.
5. DECISION
5.1 Based on the foregoing, I find that the Irish Prison Service did not discriminate against Ms Mary Hunt and Ms Frances Doherty on the ground of gender contrary to the provisions of the Employment Equality Acts 1998 - 2004.
5.2 I further find that Ms Hunt was not harassed by the respondent contrary to the provisions of the Acts.
_____________________
Anne-Marie Lynch
Equality Officer
19 May 2006