Mc Namee
(Represented by the PSEU)
-v-
Donegal County Council
and
The Department of Environment and Local Government
1. CLAIM
1.1 The case concerns a claim by Ms. Ann Mc Namee that Donegal County Council and the Department of Environment and Local Government discriminated against her on the gender and age grounds in terms of section 6(2)(a) and (f) of the Employment Equality Acts 1998 in relation to her conditions of employment.
2. BACKGROUND
2.1 The complainant claims that she should have been awarded incremental credit by the first and second named respondents for her previous public sector experience but was denied that recognition. She submits that she was discriminated against on the grounds of gender and age. The first named respondent submits that it is not open to the complainant to refer a complainant of discrimination on the age ground in respect of a period when there was in fact no such equality legislation in place. It also submits that whilst the issue of gender caused the complainant's resignation from the service in 1972, it has not directly affected the matter since her re-employment.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 11 March 2004. On 9 March 2006, 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 2 June 2006 and from the first and second named respondents on 18 July 2006. A joint hearing of the claim was held on 22 November 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant worked as a Clerical Officer with the first named respondent from 1963 to 1970 and was subsequently promoted as Town Clerk from 1970 to 1972. She was required to resign from the service on marriage in August 1972. On an intermittent basis from 1982 to 1992, the complainant worked with the North Western Health Board in a temporary capacity as a Community Welfare Officer. The first named respondent advertised for Clerical Officers in July 1992 and the complainant was successful and was appointed to that panel. She commenced work as a Clerical Officer in October 1992.
3.2 The complainant claims that she should have been awarded incremental credit for her previous public sector experience by the first and second named respondent. It is her contention that the denial of recognition was based on discrimination on the grounds of gender and age. She also contends that the refusal amounts to direct and indirect discrimination. On 21 November 2002, the complainant applied for incremental credit to the HR Manager of Donegal County Council. He responded that he would make inquiries on her behalf. On 18 September 2003, the complainant was informed that there were no regulations to allow for further incremental progression.
3.3 The complainant submits that she was obliged to retire as a result of the marriage bar which was directly related to her gender. The practice in place which precluded recognition for any previous experience directly impacted upon and discriminated against women like the complainant who had chosen to return to the workforce after having taken time out to rear their families. The complainant alleges that such less favourable treatment constitutes direct discrimination and is a breach of the equality legislation.
3.4 The complainant submits that the issue of incremental credit involves less advantageous treatment of women than men and in so far as women may have entered the labour market more recently than men and more frequently suffer an interruption of their career. She submits that this has been consistently accepted by the European Court of Justice in cases such as Hill and Stapleton. She submits that an examination of the profile of candidates for the Clerical Officer post the complainant applied for in 1992 will reveal that the vast majority consisted of school leavers or young graduates, with a small minority of applications emanating from the complainant and people in her position. The practice of failing to acknowledge previous experience directly impacted upon the complainant and this was relevant to her age as the vast majority of people adversely affected by the non-recognition of previous experience would also have been in an older age group to the vast majority of other candidates. She submits that the unwillingness of the employer and the Department of Environment at that time to recognise previous service for incremental purposes was indirectly discriminatory on age and gender grounds.
3.5 The complainant as well as women in similar circumstances in Local Government who re-entered the workforce were indirectly discriminated against also on the gender ground as their colleague technical grades in the Engineering Sector, who were predominantly male, had the benefit of incremental credit for previous service back to 1979. The complainant refers to Circular Letter EL1/81 in this regard. She submits that there are significantly more male workers in the entry engineering grades proportionate to the number of female candidates in the entry grade to Clerical Officer.
3.6 The complainant submits that the failure to concede her claim and offer a positive response to her representation on 18 September 2003 constitutes the final element in an internal appeal process which the complainant exercised before referring her claim to the Equality Tribunal. It can also be argued that by continuing to deny her recognition for the service in dispute, the most recent act of discrimination is from a current date. The complainant refers to two Circulars (EL3/95 and EL14/96) which specifically preclude the granting of incremental credit to persons in the complainant's category who would be predominantly female and older workers. The Circulars in question preclude the granting of incremental credit to those appointed prior to January 1994 and therefore preclude the granting of incremental credit to the complainant by virtue of her appointment in 1992. The complainant submits that the Circulars amount to discrimination on the grounds of age as the vast majority of those who were able to avail of recognition for previous service were predominantly of school leaving or graduate entry age.
3.7 The complainant submits that the first and second named respondents erred in failing to take account of equality legislation in rejecting her appeal in September 2003. The conditions imposed in the particular Circulars had a disproportionate adverse impact on the complainant and she submits that she was directly and indirectly discriminated against on the grounds of gender and age. She submits that the second named respondent should have regard to the provisions with respect to technical grades that are predominantly male in Local Government which provide incremental credit for previous service. The non extension of these provisions to workers such as the complainant who constitute a significant proportion of administrative staff is indirectly discriminatory on the gender ground.
4. SUMMARY OF THE FIRST NAMED RESPONDENT'S SUBMISSION (Donegal County Council)
4.1 The complainant alleges that the first named respondent discriminated against her on the grounds of gender and age contrary to the provisions of the Employment Equality Acts 1998 and 2004 in relation to its failure to award her incremental credit for previous public sector experience. It is alleged that the discrimination took place on 18 September 2003 when Mr. W, the HR Manager wrote to the complainant advising her that following receipt of correspondence from the Department of the Environment, Heritage and Local Government, no regulations existed allowing further incremental credit for her.
4.2 The first named respondent submits that it is for the complainant to establish a prima facie case of discrimination. In relation to the time issue, the first named respondent does not accept that the most recent act of discrimination is from a current date and submits that the acts referred to in the complaint took place on 17 December 1992 when the complainant was re-employed by the first named respondent as recognition of previous service in general was made on the date an officer took up duty. As such it can be argued that she may be suffering the continuing effects of past discrimination as opposed to continuing instances of discriminatory conduct. Furthermore, the first named respondent alleges that it is not open to the complainant at this stage to refer a complaint for alleged discrimination on the age ground in respect of a time when there was in fact no equality legislation in place. Therefore, the Equality Officer has no jurisdiction to decide the case.
4.3 Without prejudice to the time limit issue, the first named respondent submits that the complainant has not shown that gender was a factor in its refusal to recognise her previous service. Whilst the issue of gender caused the complainant's retirement from the service in 1972, it has not directly affected the matter since her re-employment. When she was re-employed in December 1992, the terms and conditions relating to recognition of previous service in place at the time applied equally to male and female employees. Any person who previously left local authority employment was treated the same with regard to the operation of the previous service rules regardless of gender. Therefore, no sex discrimination has occurred. In relation to the complainant's reference to Circular Letter EL1/81, the Circular specifically refers to additional increments for post graduate experience and as such relates to qualifications rather than length of service.
4.4 The complainant has not shown that age was a factor in the first name respondent's refusal to recognise her previous service for incremental credit. The complainant was re-employed in December 1992 and the Employment Equality Act, 1998 did not come into operation until 18 October 1999. Therefore, at the time that the alleged act of discrimination occurred, there was no equality legislation on the age ground in existence. Notwithstanding this, the terms and conditions relating to recognition of previous service applied equally to employees of all ages. Any person who left local authority employment at the time and who subsequently returned would be treated the same with regard to the operation of previous service rules regardless of age. The complainant has not furnished any evidence to support her claim of indirect age discrimination and therefore has not established a prima facie case of discrimination.
4.5 The first named respondent has applied the provisions of the second named respondent's Circulars equally to all employees and neither gender nor age are taken into account in the operation of the previous service rules to any person on commencement of employment with the first named respondent. The first named respondent submits that the complainant has failed to establish a prima facie case of ongoing discrimination and requests that the Equality Officer reject her claims.
5. SUMMARY OF THE SECOND NAMED RESPONDENT'S SUBMISSION (The Department of Environment and Local Government)
5.1 The second named respondent firstly submits that it is not the complainant's employer. Notwithstanding that submission, the respondent claims that the complainant has failed to establish a prima facie case of discrimination. All public bodies, including the first and second named respondents are equal opportunities employers. The Department submits that the acts referred to in the complaint took place on 17 December 1992 when the complainant was re-employed by the first named respondent. As such it can be argued that she may be suffering the continuing effects of a past discrimination as opposed to continuing instances of discriminatory conduct. The Equality Officer therefore has no jurisdiction to decide the case.
5.2 The complainant has not shown that gender was a factor in the refusal to recognise her previous service. She has provided no evidence of sex discrimination in that she has not named a comparator and has not demonstrated that she was treated less favourably than a male employee. The complainant has not provided any evidence to support her claim of indirect discrimination and has not therefore established a prima facie case of discrimination.
5.3 The complainant has not shown that age was a factor in the refusal to recognise her previous service for incremental credit. The terms and conditions relating to recognition of previous service in place at that time applied equally to employees of all ages. Therefore, no direct age discrimination, even if legislated for at that time occurred.
5.4 The second named respondent refutes the complainant's allegations that she has been discriminated against on the grounds of gender and age. The second named respondent has applied the provisions of the Department Circulars equally to all employees and neither gender nor age are taken into account in the operation of the previous service rules to any person on the commencement of employment with the second named respondent.
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 In this case, the complainant alleges that the respondent directly and indirectly discriminated against her on the gender and age grounds in relation to her conditions of employment by not recognising her previous service for incremental purposes 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) and (f) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts. I will also consider the issue of indirect discrimination. 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
6.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
"...... discrimination shall be taken to occur where-
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as 'the discriminatory grounds')
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"),
(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
6.3 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 Mitchell 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.
6.4 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."
Refusal to recognise previous service for incremental purposes
6.5 The complainant in this case alleges that the respondent discriminated against her on the gender and age grounds as she should have been awarded incremental credit for her previous public sector experience by the respondents when she returned to employment with the first named respondent in 1992. She submits that the obligation to resign was directly related to her gender and constituted direct discrimination on the gender ground. She submits that an analysis of the candidates for the position in 1992 when she rejoined the service of the first named respondent will reveal that the vast majority consisted of school leavers or young graduates with a small minority of applications emanating from people who had previously left the service. She submits that the practice of failing to recognise previous service was very relevant to her age as the vast majority of people adversely affected would have been in an older age group.
6.6 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 others . 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. stated "It is undoubtedly true that at the time the complainants were obliged to retire from their employment with Aer Lingus because of getting married, there was discrimination both because of marital status and discrimination based on sex as the marriage bar did not exist for male employees. This discrimination occurred when it was not illegal and occurred many years before the coming into force of the statute. ...... The discrimination which they now suffer is one resulting from the fact that their seniority counts as from the day they re-entered the permanent employment of Aer Lingus. There is no complaint whatsoever that the question of the marital status directly entered into the matter in any way since their re-employment. The relevance of their marital status in the matter is the fact that it was the cause of their retirement from the company before 1970. The question then arises as to whether this circumstance can amount in law to indirect discrimination."
6.7 Walsh J. went on to hold that the compulsory retirement of the applicants was a discriminatory act relating to marital status but it was not illegal and the 1977 Act did not have retrospective effect. He considered that the original discrimination was exhausted and spent when it took effect and was not in any way revived by the subsequent employment of the complainants in a temporary capacity for the relevant subsequent periods. He considered that the complainants were entitled to be protected against any discriminatory treatment related to their sex or marital status after they re-entered the service of Aer Lingus in 1980. He considered that the claim was an "effort to give the Act a retrospective character by asserting that every consequence of the seniority situation must be deemed to be an act of discrimination when the seniority situation itself cannot be established to be an illegal discrimination because it is traceable to a situation which was not illegal and was a discrimination which was exhausted many years before the enactment of the 1977 Act."
6.8 The Labour Court in the case of the Department of Justice, Equality and Law Reform v. Cole considered the position of a complainant who served between 1971 and 1976 and resigned due to family responsibilities. The complainant was re-employed following a competition in 2001 and she subsequently contended that in failing to reckon her previous service for the purposes of seniority, she was discriminated against on the grounds of gender, marital status, family status and age. The Labour Court referred to Aer Lingus Teo v. the Labour Court and stated in relation to discrimination on the gender, marital status and family status grounds:
In the present case the complainant is in exactly the same position in relation to seniority as any other person who took up employment on the date on which she re-entered the Civil Service, regardless of gender, family or marital status or age. The prior service which she now claims was lost not when she returned to the Civil Service but when she resigned in 1977. The decision in Aer Lingus v The Labour Court is clear authority for the proposition that an earlier act of discrimination which was not unlawful cannot be revived so as to ground a claim of discrimination based on its subsequent consequences.
6.9 In relation to discrimination on the age ground, the Court stated:
On the facts found by the Court, or admitted, there is no basis upon which any causal connection can be established between the complainant's age and the matters of which she now complains.
The Court determined:
The complainant's resignation was the activating cause of the disadvantage of which she now complains. Since the circumstances giving rise to that resignation was incapable of constituting unlawful discrimination, her claim cannot succeed.
6.10 The complainant in the case in issue now was forced to resign on marriage in 1972. As stated by the Supreme Court in the Aer Lingus case, whilst this was a discriminatory act in relation to marital status and gender, it was not unlawful as it occurred many years before the coming into force of the Employment Equality Acts. Similarly, in this case, the original discrimination was exhausted and spent when it took effect in 1972 and was not revived by the subsequent employment of the complainant in 1992. The complainant in this case is in the same position in relation to incremental credit as all those who entered the service in a permanent basis in 1992 and there is no suggestion of any discrimination because of gender since that date. I note that the complainant states in a letter to the respondent dated 21 November 2002 in relation to the Circulars providing for incremental credit the "the conditions do not counter the effect of past disadvantage when as a woman I was required to resign on marriage in 1972." In relation to her claim on the age ground and notwithstanding that it was not unlawful to discriminate on the age ground prior to the introduction of the Employment Equality Act, 1998 on 18 October 1999, there is no basis upon which any causal connection can be established between the complainant's age and the matters of which she now complains.
Indirect discrimination
6.11 The complainant also submits that the refusal to recognise previous service was indirectly discriminatory on the age and gender grounds. She submits, in particular, that women who entered the workforce were indirectly discriminated against on the gender ground as colleague technical grades in the engineering sector who were predominantly male had the benefit of incremental credit for previous service back to 1979 and she refers to Circular EL1/81. I note that Circular EL1/81 refers to a practice of granting incremental credit for post graduate experience to those in the Assistant Engineer grade and not a practice of allowing incremental credit for previous service. She also claims that she is further discriminated against with respect to age, by virtue of Circular EL 3/95, which specifically disadvantaged the complainant vis a vis her temporary colleagues who would have been disproportionately younger than the complainant. That Circular also provided that persons who had been previously employed in a temporary capacity in the local authority service may on permanent appointment have his or her temporary service reckoned with effect from a date not earlier than 1 January 1994. The complainant has not provided any evidence in support of her claim of indirect discrimination and I find that the complainant has failed to establish a prima facie case of indirect discrimination on the age and gender grounds.
Circulars granting incremental credit from a particular date in certain situations
6.12 The complainant also refers to Circulars EL3/95 and EL14/96 as discriminating on the gender and age grounds. Circular EL3/95 provides for (i) the granting of increments to temporary staff with full time continuous service in the same or an analogous grade with effect from 1 January 1994 and (ii) the granting of incremental credit with effect from 1 January 1994 to people who previously served in a permanent capacity or temporary capacity in the same or an analogous grade. Circular EL 14/96 provides that it is a clarifying Circular arising from the large number of queries in relation to Circular EL3/95. It proceeds to set out certain amendments to the terms of Circular Letter EL 3/95. It clarifies that permanent appointees with previous permanent service may only have that service reckoned if that officer was appointed on or after 1 January 1994. Circular EL 9/01 subsequently provided that with effect from 16 March 2000, full incremental credit may be granted on permanent appointment in respect of all previous relevant experience. It is the case therefore that had the complainant been appointed after 1 January 1994 in the same or an analogous grade, she would have received incremental credit for previous permanent service. Walsh J. pointed out in the Aer Lingus case that "Failure to recognise previous service may be thought to be inequitable but it does not amount to illegal discrimination." Similarly in this case whilst the respondent's refusal to grant incremental credit only to those appointed after 1 January 1994 in the same or an analogous grade may be considered to be unfair, it is not discrimination on any of the prohibited grounds under the Employment Equality Acts 1998 -2007.
7. DECISION
7.1 On the basis of the foregoing, I find that the complainant's claim in respect of discrimination in 1972 cannot be the subject of a claim under the Employment Equality Act, 1998 Act.
7.2 I find that the complainant has failed to establish a prima facie case of direct and indirect discrimination on the gender and age grounds in terms of section 6(2)(a) and (f) of the Employment Equality Act, 1998 in relation to her conditions of employment by the non-recognition of her previous service.
__________________
Mary Rogerson
Equality Officer
11 December 2007
1 DEE011 15 February 2001
2 Flexo Computer Stationery v. Kevin Coulter EED0313 9 October 2003
3 [1990] ILRM 485
4 ADE/04/33 Determination No. 058 30 May 2005