FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : LIMERICK CITY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - MARIE CARROLL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998
BACKGROUND:
2. The Worker appealed the Decision of the Director of the Equality Tribunal number DEC-E2007-075, of the 17th December, 2007, to the Labour Court on the 23rd January, 2008.
A Labour Court hearing took place on the 13th June, 2008.
The following is the Court's Determination:
DETERMINATION:
The dispute giving rise to this appeal concerns a claim by Ms Marie Carroll that she was discriminated against by her employer, Limerick City Council, on the gender ground, in contravention of the Employment Equality Acts 1998 and 2004 (the Act). The matter was investigated by an Equality Officer of the Equality Tribunal who found that Ms Carroll had not suffered discrimination as alleged. Ms Carroll appealed to this Court.
For ease of reference in this Determination the parties are referred to using the designation prescribed by s.77(4) of the Act. Hence, Ms Carroll is referred to as the Complainant and Limerick City Council is referred to as the Respondent.
Facts
The material facts of this case are not seriously in dispute. Those facts, as admitted, or where necessary as found by the Court, can be shortly stated as follows: -
The Complainant is employed by the Respondent as a Fire Fighter in its Fire and Rescue Department. She has held that position since December 1999. In October 2004 she became pregnant and informed the Chief Fire officer of the Respondent accordingly. She was removed from fire fighting duties and assigned other duties within the fire station from which she worked.
A risk assessment was undertaken by the Respondent in relation to the Complainant pursuant to Regulation 4 of the now revoked Safety, Health and Welfare at Work (Pregnant Employees Etc.) Regulations, 2000 (S.I. No. 218 / 2000) (hereinafter the regulations). On foot of this risk assessment the Respondent proposed to transfer the Complainant to clerical duties at City Hall. Under this proposal the Complainant was to retain her existing pay, allowances and other conditions attaching to her grade of Fire Fighter.
This proposal was not acceptable to the Complainant. She wished to remain within the fire service. There were no clerical or administrative posts available within that service to which the Complainant could have been assigned. The Complainant put forward proposals whereby she would undertake non-operational duties for the duration of her pregnancy. She was supported by a Station Officer and a Sub-Station Officer who spoke to the Chief Fire Officer on the Complainant’s behalf. They told the Court that there were duties of a non-operational nature to which, in their opinion, the Complainant could have been assigned. The Chief Fire Officer did not agree to assign the Complainant to non-operational duties, because, he said, he did wish to establish a precedent.
Further discussions ensued between the Complainant, her Trade Union and the Respondent in relation to the matter. However, agreement was not reached and the Complainant was required to relocate to the Limerick City Hall and undertake the clerical duties to which she was assigned.
The normal minimum crewing level for the station to which the Complainant was assigned comprised 12 Fire Fighters. When Fire Fighters are not attending to emergencies they carry out non-operational duties relating to such matters as checking and maintaining appliances and equipment. They also undertake, on a rotational basis, duties involving the preparation and cooking of meals. In order to assign these non-operational duties to the Complainant on a full-time basis it would have been necessary to relieve other Fire Fighters from at least some of this work. It was also accepted that if the Complainant had been assigned to non-operational duties it would necessitate bringing an additional Fire Fighter on to the roster so as to maintain the operational crew at 12.
It is accepted by the Complainant that she could not have undertaken the operational duties of a Fire Fighter during her pregnancy. It is equally accepted by the Respondent that there was no health and safety impediment to the Complainant performing non-operational duties.
The Respondent does not have a policy of assigning injured male Fire Fighters to non-operational duties.
Position of the parties
The Complainant contends that she was subjected to detrimental treatment by reason of her pregnancy in being required to relocate out of the fire service. She contends that subjecting a woman to less favourable treatment on grounds of pregnancy amounts to discrimination. The Complainant also relies on Regulation 4(c ) of the Regulation, which, she asserts, required the Respondent to first consider adjusting her working conditions before it resorted to reassigning her to other duties. This, the Complainant asserts, is the clear import of the combined effect of Clauses 4 (c) and (d) of the Regulations.
The Complainant contends that ample opportunities existed to accommodate her in remaining within the fire service during her pregnancy but the Respondent refused to adequately consider providing her with such accommodation. In these circumstances the Complainant contends that the Respondent did not discharge its duty under the Regulations to her as a pregnant employee.
The Respondent contends that it was not possible for the Complainant to continue as a Fire Fighter during her pregnancy. In those circumstances it provided her with alternative employment with the City Council. It pointed out that the Complainant retained her pay and allowances as a Fire Fighter and in fact had a shorter working week. The Respondent further submitted that it did not have a specific job involving non-operational Fire Fighter duties. These duties were allocated amongst the operational Fire Fighters and undertaken during times in which they are not operational. Thus, it was submitted, such duties could only be assigned to the Complainant if taken from her operational colleagues.
In these circumstances the Respondent submitted that it acted reasonably in relation to the Complainant and discharged its obligations under the Regulations. The Respondent also submitted that the Regulations relied upon by the Complainant are not within the jurisdiction of this Court and are not enforceable under the Employment Equality Acts 1998 and 2004.
Conclusions
On the facts of this case the Court must consider if the Respondent discriminated against the Complainant contrary to the s.8 of the Act. In a line of authorities commencing with Case C-321/93Webb v EMO Air Cargo (UK) LtdECR 1-3567 the European Court of Justice held that there can be no question of comparing the situation of a woman who is unable to work because of pregnancy with that of a man who is temporarily incapacitated due to illness or injury. Thus it is no defence for the Respondent to say that the Complainant was treated the same as an injured male Fire Fighter in not being assigned to non-operational duties exclusively. It has also been made clear by the Court of Justice that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender ( see decision in Case C-177/88Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941)
Directive 92/85/EC (the Pregnancy Directive) defines the nature and extent of an employers duty to a worker who is temporally unable to carry out the full duties of her employment because of pregnancy. Article 5 of the Directive provides as follows:-
- 1. Without prejudice to Article 6 of Directive 89/391/EEC, if the results of the assessment referred to in Article 4 (1) reveal a risk to the safety or health or an effect on the pregnancy or breast-feeding of a worker within the meaning of Article 2, the employer shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided.
2. If the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job.
3. If moving her to another job is not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, the worker concerned shall be granted leave in accordance with national legislation and/or national practice for the whole of the period necessary to protect her safety or health.
4. The provisions of this Article shall apply mutatis mutandis to the case where a worker pursuing an activity which is forbidden pursuant to Article 6 becomes pregnant or starts breast-feeding and informs her employer thereof.
As the Respondent correctly pointed out, the Court does not have jurisdiction for the enforcement of either the Regulations or the Pregnancy Directive. Nonetheless, in applying the principle of non-discrimination to the facts of the instant case, the rights of the Complainant and the duty of the Respondent under the whole body of Community law must be taken into account. Article 5 of the Pregnancy Directive, with the transposing domestic legislation, is part of the body of law which defines those rights and duties. Accordingly, while the Court cannot impose any sanction for a breach of the Regulations or the Pregnancy Directive, it must nonetheless take their provisions into account in deciding if the Complainant suffered discrimination under the Act.
In this case it is accepted that the Complainant could no longer carry out the full duties of a Fire Fighter. The first duty of the Respondent was to consider adjusting her working conditions or her working hours. It would appear from a reading of the Directive as a whole that the reference to working conditions at Article 5(1) relates to the physical conditions under which the work is to be performed rather than to the nature of the job itself. Thus, in order to comply with this requirement the Respondent would have had to relieve the Complainant from attending at fires or other emergencies. Given that this is the core function of a Fire Fighter, it could reasonably be said that it was not technically or objectively possible for the Complainant to remain as a Fire Fighter while so restricted. Moreover, paragraph 2 of Article 5 provides that where the adjustment of working conditions cannot reasonably be required on substantiated grounds the employer may consider moving the worker to another job.
The substantiated grounds relied upon in this case are that the core duties of a Fire Fighter involves attending at emergencies and that the Complainant is unable to undertake that role. It is further contended that confining her to non-operational duties would involve relieving others of work which they currently perform and effectively replacing the Complainant on the roster.
The question of what can be reasonably required is a matter to be judged having regard to all the circumstances of the particular case. It would also seem to the Court that consideration of that question involves the application of the principle of proportionality. Here the Court would have to consider the inconvenience or cost to the employer of making adjustments as compared to the inconvenience and cost to the worker of not making adjustments.
In this case, accommodating the Complainant with non-operational work would effectively involve retaining her in what would be a supernumerary post and replacing her on the roster. Conversely, the Respondent was in a position to accommodate the Complainant with alternative work without loss of pay or diminution in her conditions of employment for the duration of her pregnancy. It would seem to the Court that in these circumstances it could not be held that the Respondent was reasonably required to make the adjustments which the Complainant had sought in her working conditions. The situation may be different in a case in which there is no other suitable work available or where the pregnant worker may lose financially.
The Court notes that the Equality Officer made the following recommendation by way of a rider to his Decision: -
- “It is abundantly clear that a considerable communication problem exists within the respondent on this matter. I note the complainant's assertion that there is a requirement on the respondent to adopt and operate a comprehensive policy on pregnant firefighters. Again whilst this might be best practice and I note that such a policy exists in Dublin Fire Service, there is no statutory obligation to have such a policy. Whilst not a binding element of my decision, I would recommend that the respondent take steps, if it has not already done so, to publish a comprehensive document clearly setting out its policy/practice as regards pregnant firefighters (including training) and ensure that this document is communicated to all female firefighters and Managers within the respondent Fire Service. Such a document would provide clarity on the matter at a time when an increased number of women are choosing the Fire Service as a career.”
The Court fully endorses this statement. The Court strongly recommends that the Respondent and the Union representing Fire Fighters should seek to agree a policy of the type referred to by the Equality Officer. That policy, when agreed, should be applied to all future cases in which it is necessary to remove a pregnant Fire Fighter from operational duties. For the avoidance of doubt the proposed policy should specifically recognise the unique and special nature of pregnancy. Accordingly it should not be based on or influenced by the policy or practice in relation to Fire Fighters who are unable to perform operational duties due to temporary injury or pathological illness.
This is a recommendation of the Court which does not form part of its Determination in this case.
Determination
In all the circumstances of this case, and for the reasons referred to above, the Court has come to the conclusion that the Respondent did not contravene the Act in temporarily transferring the Complainant to clerical / administrative duties for the duration of her pregnancy, without loss of pay or conditions of employment. Accordingly the Court affirms the Decision of the Equality Officer and disallows the appeal.
Signed on behalf of the Labour Court
Kevin Duffy
30th June, 2008______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.