EDA096

BACKGROUND:

2. The Complainant commenced employment with the Respondent in September 1990. In March 2000 she applied to the Respondent to be allowed work part-time or to participate in a job-sharing arrangement. The Complainant was not offered this facility until 2005. In the interim the Complainant had adopted a child and had taken adoptive leave and a career break. The Complainant contends that the failure of the Respondent to deal with her application expeditiously and fairly constituted indirect discrimination against her contrary to s. 8 of the Act. The Complainant referred a complaint to the Equality Tribunal alleging discrimination on the gender and marital status grounds. The Complainant was investigated by an Equality Officer who found that the Complainant had been discriminated against. He awarded her compensation in the amount of €30,000 by way of redress. The Respondent appealed to this Court.

The position of the parties

The Complainant
The Complainant told the Court in evidence that she applied for a part-time position or job-sharing role in March 2000, at which time she was preparing to adopt a child overseas. She accepts that the reason for the request, as stated on her application form, was to pursue an educational course. The Complainant contends, however, that her impending adoption was common knowledge at the time. By December 2002 the Complainant had adopted her daughter and went on Adoptive leave. By that time she had not been offered a job-sharing or part-time position. In January 2003 the Complainant received a letter from the Human Resources Department of the Respondent which appeared to offer her a job-sharing post. However, she was subsequently advised that the letter had issued in error and that no such job-sharing post was available to her. In or about August 2003 the Complainant was nearing the end of her adoptive leave and enquired of the Respondent if a job-sharing post would be available on return to work. The Complainant was again told that no suitable positions were available to her. In discussion with management of the Respondent it was suggested to the Complainant that she could avail of a career break. She accepted this option and commenced a one year career break in September 2003. Before the completion of her career break the Complainant again contacted the management of the Respondent and enquired if a part-time of job-sharing position would be available on her return to work. She was not offered such a post and returned to full-time employment in or about September 2004.

The Complainant had further discussions with management personnel of the Respondent in relation to her request for flexible working. Details of these discussions were disclosed in evidence. The Complainant also gave evidence of having been required to transfer on a number of occasions to different locations within the Bank network and to discharge different roles. The Complainant found these changes stressful. In February 2005 the Complainant went on sick leave. Three weeks after the commencement of her sick leave the Complainant received a phone call from the Regional Manager of the Respondent informing her that a job-sharing position had become available if she could return to work. The Complainant was unable to return to work at that time. She remained on sick leave until August 2007 when she resigned her position with the Respondent.

On these facts the Complainant contends that she suffered discrimination. The gist of her case is that the failure of an employer to allow an employee to work part-time or to job-share bears more heavily on women than on men and is thus indirectly discriminatory. It was further submitted that in these circumstances the Respondent had a duty to deal with the Complainant’s application fairly and expeditiously and that its failure to do so constituted discriminatory treatment.

The Respondent
The evidence tendered on behalf of the Respondent was that it provides staff with opportunities for part-time work and job-sharing. The availability of such opportunities is subject to the exigencies of business and, in particular, finding a suitable job-sharing partner for a particular applicant. The Court was told that 98% of job-sharers are women.

The Court was told that in March 2000 the Complainant applied for part-time work by way of job-sharing so as to undertake a course of educational studies. This request was approved by the Respondent subject to the availability of replacement staff. No opportunity arose by which the Complainant could be facilitated and in December 2002 she went on adoptive leave. Following her adoptive leave the Complainant again enquired about the possibility of job-sharing but no opportunities then existed. The Complainant was then offered, and accepted, a career break. On the completion of her career break, in September 2004, the Complainant reiterated her request for a job-sharing position. She was offered a job-sharing post in February 2005, but went on sick leave immediately after that offer was made.

The Respondent contends that the original application made by the Complainant in 2000 became spent when she took adoptive leave and subsequently availed of a career break. It was submitted that the Complainant renewed her request for a job-sharing role in September 2004, or the completion of her career break. She was, in fact, offered a job-sharing position in February 2005, some five months later.

The Respondent told the Court that between 2000 and 2005 18 staff members applied for part-time work or job-sharing in the region in which the Complainant was employed. Five of these applications were granted speedily for health or compassionate reasons. The remaining 13 commenced part-time or job-sharing working between two months and three years and five months after the initial application. All of these applicants were women.

The Respondent denies that it acted unreasonably in dealing with the Complainant’s request. It further submitted that in circumstances in which 98% of participants in the job-sharing scheme operated by the Respondent are women, it could not be held that the scheme is indirectly discriminatory against women.

Conclusions of the Court
In this case the Complainant has grounded her claim on the gender and the family status grounds. As appears from the decision of the Equality Officer she did not adduce any evidence before him in relation to the marital status ground and the case proceeded by reliance on the gender ground only. In this appeal the Complainant again relied only on the gender ground in advancing her claim and adduced no evidence to link the detriment of which she complained to her marital status. It is noteworthy that the Complainant did not found her claim on the family status ground.

In these circumstances the proposition upon which the Complainant bases her claim can be reduced to one of relative simplicity. There is no suggestion of direct discrimination in this case. What is alleged in indirect discrimination. The now standard definition of indirect discrimination is that contained in Article 2(2) of Directive 97/80/EC, which provides as follows; -

• “For the purpose of the principle of equal treatment referred to at Article 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex, unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.”

There is authority for the proposition that in certain circumstances a requirement to work full-time or unsocial hours can place women at a particular disadvantage in relation to employment. InLondon Underground v Edwards[1998] IRLR 364 the Complainant was a single parent with a young child. She worked as a train driver on the London Underground. Her rostering arrangements allowed her to be at home in the mornings and evenings to attend to her son. She generally worked between 8 am and 4 pm or 8.30 am to 4.30 pm, with Saturday as a rest day, although as a result she did not receive shift bonuses for unsocial hours working between 6 pm and 7 am.

In 1991, as part of a cost-saving plan, the employers announced a new flexible shift system, under which duties were to begin at 4.45 am and were to include Sundays. Although it was possible for employees to change shifts so as to avoid early and late work, the trade off was a longer shift for the same money. Mrs Edwards was not prepared to work the new system and when negotiations between management and the unions about special arrangements for single parents proposed by the employers did not reach agreement, she resigned and claimed unlawful sex discrimination.

It was held that that a prima facie case of indirect discrimination had been established because a considerably smaller proportion of female single parents than male single parents could comply with the rostering condition. The tribunal went on to conclude that the condition was not justifiable, given that London Underground had itself contemplated a scheme catering for the needs of single parents. The decision of the Employment tribunal on this point was subsequently upheld on appeal by the Court of Appeal for England and Whales.

InInoue v NBK Designs Ltd.[2003] 14. ELR 98 the Complainant had worked as a job-sharer for some time and this arrangement was discontinued by the Respondent. The Complainant was told that she could either revert to full-time working or be made redundant. The Complainant was a single parent of a school-going child. She contended that she could not fulfil her parental duties if forced to work full time. She brought a claim under the Act in reliance on the gender, marital status and family status grounds. This Court accepted that the requirement to work full-time placed single women who are parents of young children at a particular disadvantage relative to either women without children or men who are parents of young children

The Court could not, however, conclude that a requirement to work full-time places women,per se,at a particular disadvantage relative to men. Such disadvantage may arise by the combined effect of the woman’s gender and her family status and marital status. But no reliance was placed on the family status of the Complainant in grounding her claim and while her marital status was pleaded, no reliance was placed on this ground in the evidence adduced in advancing the claim. Consequently the Court cannot be influenced by an argument that was never advanced or a case that was never pleaded.

Nevertheless these considerations are not determinative in this case. The Respondent did in fact have arrangements in place to facilitate employees who required more flexible work arrangements due to child-care or other commitments. This included a facility to job-share. The evidence was to the effect that 98% of those who participate in the job-sharing scheme are women. It is thus abundantly clear that the provisions criteria or practices by which the Respondent allocates places on the job-sharing scheme do not place women at a particular disadvantage compared to men.

It would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended. It is self evident that such facilities can only be made available within the exigencies of the business. However, in allocating part-time or job-sharing opportunities, an employer must not discriminate on any of the grounds prescribed by the Act.

In this case the evidence disclosed that in the period between March 2000, when the Complainant made her initial request, and February 2005, when the request was granted, 18 staff members were facilitated with either part-time or job-sharing roles. All of these staff members were women. Consequently, if the Complainant was treated less favourably that other staff members (and the Court makes no such finding) it was by comparison to the treatment afforded to other women. This could never give rise to a cause of action for discrimination on the gender ground.

Finally, while it is not strictly necessary to do so, for the sake of completeness the Court considers it desirable to address the questions raised in relation to the reasonableness of the Respondent’s response to the Complainant’s requests for job-sharing. The original request was stated to be for the purpose of undertaking an educational course. The Complainant told the Court that her real reason in applying for job-sharing was in anticipation of adopting a child. The Respondent was however entitled to treat the application at its face value and to afford it such priority as the reason advanced by the Complainant deserved.

When the Complainant completed the adoption of her daughter she received her entitlement to 21 months' adoptive leave. On completion of that leave a suitable job-sharing position was not available but the Respondent offered and the Complainant accepted a one year career break. On completion of the career break the Complainant renewed her request for a job-sharing post. This request was in fact acted upon within five months and the Complainant was offered a position in February 2005. Because she was on sick leave at that time the Complainant did not avail of the opportunity offered.

In the Court’s view, looked at objectively, the Respondent’s response to the Complainant’s request could not be fairly criticised as unreasonable.

DETERMINATION:

For the reasons set out above the Court has come to the conclusion that the Complainant has failed to make out a case of discrimination on either the gender or marital status grounds. Accordingly the Respondent is entitled to succeed in the within appeal.

It is the determination of the Court that the decision of the Equality Tribunal be set aside and substituted with a finding that the Complainant was not discriminated against by the Respondent contrary to the provisions of the Act.

Signed on behalf of the Labour Court



Raymond McGee
20th April, 2009______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.