PTD113

Background

The Claimant is employed by the Respondent as a firefighter in a part-time capacity. He has attained the rank of Sub Station Officer and is based in Dundalk Fire Station. While the Claimant is designated as a Retained Sub-Officer his employment pattern differs materially from that of the generality of retained firfighters in that he is rostered to undertake what is referred to a “duty watch” at the fire station as well as turning out when required to deal with fire incidents and to undertake training. The Court was told that this rostering arrangement for part-time firefighters is unique to the fire stations at Drougheda and Dundalk, both of which are designated as full-time fire stations. The Dundalk station is manned by 16 part-time firefighters and 20 full-time firefighters. The two categories are integrated and interchangeable.

The dispute giving rise to these proceedings relates to the practice within the fire service whereby the first full-time firefighter holding the rank of Sub Officer attending an incident is designated as Officer-in-Charge unless a more senior Officer is in attendance. In the event of a full-time Sub Officer being absent from duty he or she is replaced by a full-time firefighter acting up who assumes the role of Officer-in-Charge. The Claimant contends that when a full-time Station Officer is absent he should assume the role of Officer-in-Charge rather than a full-time firefighter acting up. He claims that the current arrangements within Dundalk fire station whereby a full-time firefighter of lower rank to him is preferred in the designation of an Officer-in-Charge constitutes less favourable treatment in respect to his conditions of employment by reason of his status as a part-time worker. This, he contends, contravenes his entitlement to equal treatment with that of a comparable full-time employee under s.9 of the Act.

The Rights Commissioner found that the Claimant’s complaint was well founded. She directed that the Respondent comply with the Act by affording the Claimant equal treatment with that of a comparable full-time Sub Officer in relation to the designation of an Officer-in-Charge at incidents to which he responds. It is against that decision that the Respondent appealed to this Court.

Position of the parties

The Claimant submitted that in the circumstances of the fire service, which is a ranked structure, the authority to issue orders and instructions is regarded as a condition of employment. While it appears that the Claimant was never issued with a written contract of employment, the Claimant relied upon the terms of a contract issued to another part-time Sub Officer that deals with the question of when the Officer would take charge at incidents. The Claimant contends that the full-time Sub Officers employed by the Respondent are comparable full-time employees within the meaning of s. 7(2) of the Act. He contends that he is treated less favourably than a full-time Sub Officer in that he is not permitted to assume the role of Officer-in Charge in circumstances in which a full-time Sub Officer would assume that role.

The Respondent raised a number of points in its appeal. It contends that the contravention complained of could not have occurred on the dates specified by the Claimant in his claim form. The Respondent contends that on the dates specified there was either no incident requiring an Officer –in- Charge or there was no full-time acting Sub Officer on duty on those dates. The Respondent also raised technical issues in relation to whether the persons named as comparators by the Claimant in submitting his claim were full-time Sub Officers or full-time firefighters acting as Sub Officers. These points were not pursued with any vigour in the appeal. In the Court’s view they could have no material effect on the outcome of the appeal. While these points were considered and found to be without merit they are not discussed in detail in this Determination.

The points taken which the Court regards as relevant and substantial can be summarised as follows:-

•That full-time firefighters are not comparable full-time employees in relation to the Claimant in that the former undertake a significantly wider range of duties than those undertaken by the Claimant,

•That full-time firefightes are not employed on the same type of contract or employment relationship as the Claimant. In advancing this argument the Respondent contends that it is entitled to rely on the provisions of Article 3 of The Framework Agreement annexed to Directive 97/81/EC which defines a comparable full-time worker as: -

• “A full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or similar work/occupation, due regard being given to other considerations which may include seniority and qualifications / skills”

Conclusions of the Court

Having evaluated the submissions of the parties and the evidence adduced in the course of the appeal, the Court has reached the following conclusions: -

Section 9(1) of the Act provides the general right of part-time employees to equal treatment with comparable full-time employees in respect to conditions of employment. In order to make out a claim under the Act a claimant must first identify a comparable full-time employee against whom the claim is grounded. Section 7(2) of the Act defines “a comparable full-time employee” as follows:-

• • (2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—
    • 
      (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

      (b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

      (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

  and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

• (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

  (b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

  (c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

Existence of Like Work

The Respondent contends that full-time Sub Officers carry out a broader range of duties than are performed by retained Sub Officers, details of which were put in evidence. In effect, this evidence shows that full-time Sub Officers, whether they hold that rank substantively or on an acting basis, carry out a range of administrative and ancillary functions in addition to fire fighting and related work. By contrast, retained Sub Officers are almost exclusively engaged in fire fighting and related work. On this basis the Respondent contends that the Claimant and full-time Sub Officers could not be regarded as performing like work for the purposes of the Act.

The facts of this case are strikingly similar to those considered by the House of Lords inMatthews v Kent & Midway Town Fire Authority[2006] IRLR 367. This was a case taken under the UK equivalent of our Act. As in this case it involved a claim for equal treatment in conditions of employment by retained firefighters in reliance on the treatment afforded to their full-time equivalents. The House of Lords held, by a majority, that the claimants were entitled to rely on the full-time firefighters as valid comparators.

The similarities in the factual matrix of that case relative to this case are illustrated by the following passages in the speech of Baroness Hale of Richmond. At par 33 of the report she said: -

• 
  However, the retained firefighters have different working patterns from the whole-timers. The whole-timers work a 'very structured shift system of 42 hours per week with overtime' (paragraph 28). The part-timers commit themselves to regular weekly attendance, of two to three hours, for training and drill. They also commit themselves to being on call for a set number of hours per week, varying from 84 to 156 hours. They are required to be able to attend at the fire-station within 5 minutes of being called out. The tribunal found that the 'part of the retained firefighters' job role which is ... virtually unique in our experience is the ad hoc demand led nature of the role of attending call outs to emergency situations' (paragraph 31), although they thought that the coast guard and life boat services might be comparable. The different working patterns are also reflected in different packages of pay. The whole-timers have a conventional salary with overtime structure. The part-timers have a more complicated arrangement, including three main features: an initial 'retaining fee', payment for their regular routine working, and payments for being called out. The tribunal concluded that 'because of the many differences ... and the many special features of the working patterns as set out above, the applicants are indeed employed under a different type of contract.' (paragraph 142) They also found that there were good reasons for these differences and that it was reasonable for the employer to treat the employees differently on the ground that they had a different type of contract (paragraph 143).

• In practice, the tribunal found that 'at the scene of the fire the actual job function carried out by all attending is effectively the same' (paragraph 7). The retained and whole-time firefighters were indistinguishable from one another. The first most senior firefighter at the scene assumes and remains in control. The main difference was that while the retained firefirefighters spent a high proportion of their time responding to emergencies, the proportion of the working week spent on this by whole-timers was much lower. Accordingly, the whole-timers spent much more of their time on 'non-occurrence duties', community fire safety work, such as home fire risk assessments, advising on installation of home fire detectors, attending local events and giving demonstrations. Although retained firefighters could do this sort of work, in practice they were never, or hardly ever, called upon to do so. They were not qualified to issue fire certificates. Hence the tribunal concluded that 'there are measurable additional job functions which are carried out by the whole-time firefighter ... and on that ground alone we would find that it is a fuller wider job than that of the retained firefighter' (paragraph 152). They also found that because of differing entry standards, probationary standards, probationary training and ongoing training, 'there are material differences in the 'level of qualification and skills'' between retained and whole time firefighters (paragraph 153). Putting together the 'fuller wider role' and the 'higher level of qualification and skills' they concluded that the two were not 'engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience' for the purpose of reg. 2(4)(a)(ii) (paragraph 154).

• In making that assessment, the extent to which the work that they do is exactly the same must be of great importance. If a large component of their work is exactly the same, the question is whether any differences are of such importance as to prevent their work being regarded overall as 'the same or broadly similar'. It is easy to imagine workplaces where both full and part-timers do the same work, but the full-timers have extra activities with which to fill their time. This should not prevent their work being regarded as the same or broadly similar overall. Also of great importance in this assessment is the importance of the same work which they do to the work of the enterprise as a whole. It is easy to imagine workplaces where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks: the fact that they both do some of the same work would not mean that their work was the same or broadly similar. It is equally easy to imagine workplaces where the full-timers and part-timers spend much of their time on the core activity of the enterprise: judging in the courts or complaints-handling in an ombudsman's office spring to mind. The fact that the full-timers do some extra tasks would not prevent their work being the same or broadly similar. In other words, in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.

Application of Article 3 of the Directive

The second point taken by the respondent relates to the construction of s.7(2) and, in particular, whether a provision to the effect that a claimant and his or her comparator must be employed on the same type of contract should be imported into that section. In advancing this argument the respondent relies upon the doctrine of indirect effect of European law whereby a domestic court or tribunal must interpret national law in light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. As pointed out above, Article 3 of the Framework Agreement annexed to the Directive provides for such a condition. The Respondent relies on the decision of the ECJ (as it then was) inWippel v Peek & Coppenburg GmbH & Co[2005] IRLR 211, in support of its contention that the contract under which the claimant is employed is of a different type to that under which the comparators are employed.

With regard to theWippelcase, suffice it to say that this was also relied upon inMatthews v Kent & Midway Town Fire Authoritywhere its relevance was dismissed by the Law Lords. Baroness Hale pointed out, at par 37 of the report, that the proposition contended for inWippelwas so outrageous that it was unsurprising that the Court of Justice ruled as it did. It will be recalled that inWippelthe plaintiff was employed as a sales assistant on what was described as "an as required and if you please" contracts. She could work if and when she pleased and she had no obligation to accept work if and when it was offered. She nonetheless claimed an entitlement to be paid, in all circumstances, the amounts which she would have received had she worked the maximum number of hours provided for under her contracts even though she had no obligation to do any work at all. Given the extraordinary facts of this case it is difficult to conceive of any other set of facts to which the decision might be apposite. The Claimant in this case cannot decide for himself whether to work or not. Also, he is employed on the same contractual basis as the comparator except that he is engaged part-time and the comparators are engaged full time. For these reasons alone this case can be distinguished fromWippel.
Furthermore, the reference in the Directive to the“same type of contract or employment relationship”cannot be interpreted as meaning that a contract of employment for part-time work is of a different type to a similar contract for full-timework. If the Framework Agreement were to be so construed it would defeat the very purpose of the legislation which is to allow for a comparison between those on full-time contracts and those on part-time contracts. Nor can it be interpreted as meaning that full-time and part-time workers are engaged in a different type of employment relationship because the employer chooses to treat them differently. Rather, the reference in the Framework Agreement must relate to the difference between, for example, a contract of service and a contract for services, or a contract of apprenticeship (on this subject see the speech of Lord Hope of Craighead, inMatthews v Kent & Midway Town Fire Authority, at pars7,8 and 9)

More importantly, however, the Court cannot accept that the European law doctrine of direct effect, or the related doctrine of indirect effect, could have any application in this case. Both doctrines can be invoked where a plaintiff seeks to rely on a Directive, before a National Court, which has not been transposed or has been inadequately transposed in national law. The Court is not aware of any authority for the proposition that a Directive can be relied upon by a defendant to defeat a claim based on a more favourable provision of national law.

The seminal case on this point, that of Case 92/78Amministrazione delle Finanze dello Stato v Simmenthal[1978] ECR 629, makes it clear that the obligation to set aside a provision of national law in favour of a provision of European law arises where the laws are in conflict. There is no such conflict in this case. In common with most Directives, the Framework Agreement annexed to Directive 97/81/EC provides, at Clause 6, that member States may maintain or introduce more favourable provisions that those set out in the Agreement. In the context in which the term is used this must mean more favourable to the Claimant. In these circumstances the fact that the Oireachtas did not include in the Act an additional requirement, in line with that found in the Directive, does not mean that the Act and the Directive are in conflict.

There is a yet another point of relevance in considering the Respondent’s submissions. InMcArdle and the State Laboratory(Determination FTD063) this Court extensively considered arguments on the appropriateness of the Claimant’s nominated comparator similar to those advanced by the Respondent in the instant case. That case concerned a claim made by an unestablished civil servant employed on a fixed-term contract for equal treatment with an established permanent civil servant with whom she was engaged in like work. The Respondent contended that the Claimants was confined to selecting a comparator on the same type of contract as that on which she was employed, namely that of an unestablished civil servant. It was contended that in consequence the Claimant’s complaint fell outside the ambit of the Act. In rejecting that line of argument the Court had this to say: -

• It is for the Claimant to choose his or her comparator provided they meet the statutory criteria. The only test is whether the Claimant and the comparator are engaged in like work. The purpose of a comparator under the various statutes dealing with discrimination is to demonstrate if a higher value is placed on the same or similar work as that performed by the Claimant when it is performed by another employee having a different gender, characteristic, or status, as the case may be. Hence the determinative considerations are the nature of the work being performed by the two and that one is in a protected category and the other is not.

• I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State laboratory, who was engaged in like work with the defendant was a “comparable permanent employee” for the purposes of s.6 because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in s.5 for a comparable permanent employee vis-�-vis the defendant as a fixed-term employee. The Act expressly provides that the term “employee” includes an established civil servant.

Conditions of Employment

The Respondent raised a further point of considerable substances in relation to whether the matter in issue in this case (the designation of an Officer-in-Charge at incidents) should be regarded as a condition of employment or an operational matter and so outside the purview of the Act.

Section 3(1) of the Act provides that the term “conditions of employment” includes conditions in respect of remuneration and certain matters related to pensions. However it is clear from the language used in the subsection that this definition is not exhaustive and that other matters beyond pay and pensions can constitute conditions of employment.

It was argued on behalf of the Respondent that what constitutes conditions of employment should be considered by reference to the terms of Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. It was submitted that when so considered the term contended for by the Claimant cannot be regarded as a condition of employment. The Court cannot accept this submission.

Firstly, Article 2 of Directive 91/553/EEC provides that an employer must inform the employee of theessentialaspects of the contract or employment relationship. It then goes on to provide a list of conditions on which information must be provided at a minimum. There is nothing in the Directive (or in the domestic transposing legislation) to indicate that the lawmakers intended to exclude from the ambit of what can be regarded as conditions of employment matters not referred to in this list. However, Article 2.2(c)(ii) of this Directive does oblige an employer to provide an employee with a brief specification or description of their work. In the Court’s view this requirement is sufficiently wide to cover what is in issue in this case.

The range of issues which can properly be classified as conditions of service, or employment, has previously been considered by the Superior Courts. A leading case on this subject is the decision of the Supreme Court inO'Cearbhaill v Bord Telecom �ireannELR 54. Here Blayney J. said the following: -

• Neither of the parties was able to refer the Court to any case in which the question of what constitute conditions of service was considered. Kenny v An Post [1988] IR 285 and O'Rourke v Talbot (Ireland) Ltd [1984] ILRM 587 were cited but neither of these cases really throws any light on the question so the matter must be approached on first principles. It seems to me that conditions of service are conditions which one would expect to find in a contract of employment between an employer and an employee. Any terms which it would be normal to include in such a contract would be entitled to be so described. And in considering what these terms might be, what has to be borne in mind is the nature of a contract of employment — it is a contract between an employer and a single employee. Each employee has an individual contract, so the conditions of service would have to be appropriate to such a contract.

• “Take charge of operations at fires and other incidents attended by him/her in the absence of any Officer of senior rank and subject to the provisions of the Fire Services Act 1981”

Objective Justification

In the alternative the Respondent submitted that any less favourable treatment of the Claimant in respect to the matter complained of is justified on objective grounds within the meaning of s.9(2) of the Act. A number of factors were relied upon in advancing this defence. The matters referred to relate to the availability of the Claimant to act as Officer –in-Charge or are in the nature of general assertions concerning the desirability of full-time personnel rather than part-time personnel being assigned to perform command duties. In so far as matters relating to the availability of the Claimant to perform the role in issue is concerned, this is of no relevance since the Claimant is only seeking to be designated Officer-in –Charge when he is available and able to act in that capacity. In so far as the general assertions are concerned the Court of Justice has made clear inRinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH & Co. KGECR 2743 that mere generalisations cannot be sufficient to make out a defence of objective justification.

In these circumstance the Court cannot see any basis upon which the defence of objective justification advanced by the Respondent could succeed in this case.

Determination

The Court has reached its determination in this case having regard to the facts and circumstances of this particular Claimant and the terms under which he is employed as disclosed in the evidence and submissions made to the Court. The case was not approached on the basis that the issues raised in the case are of general application to the fire service elsewhere or to the employment conditions of reserved firefighters generally. Consequently, both this Determination of the Court and the Decision of the Rights Commissioner should be understood as having no application beyond the Claimant herein and his employer.

For all of the reasons set out herein the Court is satisfied that the conclusions reached by the Rights Commissioner are correct and that her decision ought to be upheld. Accordingly the appeal is disallowed and the decision of the Rights Commissioner is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
19th September 2011______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.