PTD121

FULL RECOMMENDATION

PTW/10/6

DETERMINATIONNO.PTD121

(r-083907-pt-09/SR)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001

PARTIES :

HSE WEST

- AND -

MARIAN MOLLOY
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner’s Decision r-083907-pt-09/SR.

BACKGROUND:

2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on the 7th July, 2010. A Labour Court hearing took place on the 22th March, 2012. The following is the Labour Court's Determination:-

DETERMINATION:

This is an appeal by the HSE against the decision of a Rights Commissioner in a claim by Ms Marian Molloy made under the Protection of Employees (Part-Time Work) Act 2001(the Act). In this Determination the HSE is referred to as the Respondent and Ms Molloy is referred to as the Claimant.

Background

The factual background against which this dispute arose is not in contention and can be summarised as follows: -

The Claimant is a Community Welfare Officer. At the time material to this claim she was employed by the Respondent in Donegal. Since the decision of the Rights Commissioner was issued she has been transferred to the Department of Social Protection by which she is now employed. Ms Molloy is employed on a contract of indefinite duration, which she obtained by operation of the Protection of Employees (Fixed-Term Work) Act 2003. Her contract of employment provides that she will be provided with a minimum of 100 days employment per year. The purpose of the Claimant’s employment is to provide cover for other Community Welfare Officers during periods of temporary absence.

In its submission to the Court the Respondent classified the Claimant’s role as being to act as a locum. The Union objects to this classification and correctly pointed out that the term locum is not used in the Claimant’s contract of employment. However, regardless of what language is used, the Claimant’s role is to provide temporary cover for absent colleagues.

All full-time Community Welfare Officers are assigned to a designated base and travel and subsistence payments are calculated by reference to that base. Unlike her full-time comparators the Claimant does not have a fixed or permanent base. Rather, when she is assigned to cover a temporary absence she assumes the base of the person for whom she is substituting and her travel and subsistence entitlements are calculated by reference to that base. This can vary from time to time depending on the location of the assignment. The Claimant contends that this arrangement amounts to less favourable treatment in terms of her conditions of employment relative to that of her full-time comparators.

The claim was investigated by a Rights Commissioner who found that the impugned arrangement contravened s.9(1) of the Act. He directed that the Respondent assign the town of Buncrana, County Donegal as the Claimant’s dedicated base (where she was assigned at the time of the decision) and that she be paid compensation in the amount of €1,000.

Position of the Parties

Various points were taken by the parties in support of their respective position which need not be recited for the purpose of this Determination The Court sought further submission from the parties and a second hearing was arranged at which the Court sought clarification on the net issues arising in the case. As a result of the clarification received the Court is satisfied that the case turns on the question of whether or not the impugned difference in treatment is objectively justified having regard to the nature of the duties that the Claimant is contracted to perform.

Conclusions of the Court

Section 9 of the Act provides: -
- 9.— (1) Subject to subsection (2) and (4) andsection 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.
  - (2) Without prejudice tosection 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
    
    (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue ofsection 8, to a part-time employee.
    
    (4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.
    
    (5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.
Subsection (2) of this section provides that where there is less favourable treatment within the meaning of subsection (1) of the section it is a full defence for the employer to establish that it is justified on objective grounds.

Section 12(1) of the Act provides, in relation to what constitutes an objective ground, as follows: -
- 12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

This is a restatement of the three tier test for objective justification in indirect gender discrimination cases formulated by the ECJ in Case 170/84Bilka-Kaulhaus GmbH v Karin Weber von Hartz[1986] ECR 1607. Similar provisions are also contained at Section 22(1)(a) of the Employment Equality Acts 1998 and 2011 and at s 7 of the Protection of Employees (Fixed-Term Work) Act 2003. Consequently the jurisprudence arising under those statutes, and the European Directives from which they are derived, is relevant in applying s.12 of the Act now under consideration. The various elements of the test were analysed in detail by this Court inInoue v NBK Designs Ltd[2003] 14 ELR 98.

Of particular relevance in the context of the instant case is the decision of the CJEU (formally the ECJ) in case C-212/04Adeneler and Ors v Ellinikos Organismos Galaktos[2006] IRLR 716. This was a reference to the Court pursuant to Article 234 (now Article 267) of the EU Treaty in which the referring Court sought clarification, inter alia, on the scope to be ascribed to the concept of objective grounds justifying the continued use of fixed-term contracts within the meaning of the Framework Agreement on fixed-term work annexed to Directive 1999/70/EC. At paragraph 69 of its judgment the CJEU made it clear the concept of objective grounds must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the measure impugned.

Applying that reasoning to the instant case it appears to the Court that the nature of the Claimant’s employment is such as to carry an inherent requirement for her to undertake the duties for which she is employment at different locations from time to time depending on where a temporary vacancy arises. In filling such temporary vacancies by making a temporary assignment to the vacant post the Respondent is clearly pursuing a legitimate objective. The Court accepts that the assignment of the Claimant to the same base as that held by the person for whom she is substituting is also an appropriate means of meeting that legitimate objective and that it is appropriate and necessary for that purpose.

In the Court’s view, if the Claimant had to be assigned to a fixed and permanent base it would undermine the mobility and flexibility which is an inherent feature of the role that she is contracted to fulfil. In that regard it is noteworthy that in the course of the two hearing of this appeal no clear or tangible suggestion was put forward as to what location should be designated as the Claimant’s base if she succeeded in her claim. Rather, the Union submitted that a notional base should be established by negotiation and agreement. While such an approach may provide a solution in an industrial relations context it is not a exercise that the Respondent could be directed to undertaken under the Act.

Determination

For all of the reasons set out above the Court has concluded that the Claimant’s complaint under the Act is not well founded. In these circumstances the Court must allow the Respondent’s appeal and the decision of the Rights Commissioner is set aside.

Signed on behalf of the Labour Court

Kevin Duffy
3rd April, 2012______________________
JMcCChairman

NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.