FTD1415

The Rights Commissioner decided that the Complaint was not well founded. She appealed against that decision to this Court. The case came on for hearing on 26 August 2014.

Complainant’s Case

Section 6

Marriage Leave

The Complainant states that a named comparable permanent employee was granted 4 days marriage leave whereas she, a fixed term worker, was granted 3 days leave. She argues that this distinction infringes section 6 of the Act.

The Respondent states that it is the practice of the Civil Service to grant marriage to all affected staff in the first year of their employment on a pro rate temporis basis. It argues that this practice applies equally to both permanent and fixed term workers. It argues that the Complainant was therefore not treated less favourably that a comparable permanent employee in this regard.

Findings of the Court

Section 6 of the Act in relevant part states

6.—(1)Subject tosubsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2)If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstandingsubsection (1),be so treated.

(3)A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4)For the avoidance of doubt, the reference in thissectionto a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

The granting of marriage leave in the Civil Service is governed by General Council Report 1449 which was adopted on 15 December 2004. It provides that civil servants are granted up to 5 days paid leave at time of marriage subject to an overall total, including annual leave and marriage leave, of 26 days in the relevant leave year.

While the Respondent argued that the granting of leave to civil servants in the first year of service is not expressly dealt with in the Report the practice has been to grant all leave, including marriage leave, on a pro rata temporis basis. However in the documentation supplied to the Court by the Respondent the Department states [verbatim] “I have looked the details of all marriage leave approved in the Department [the Respondent] since 1^stJanuary 2006 and can confirm that have no permanent comparable officer to compare [the Complainant} to.

The Court understands this to mean that, between 2006 and the commencement of this complaint under the Act, there was no comparable permanent civil servant in the Respondent Department that was in a similar position to the Complainant. The Court also notes that while the Respondent was prepared to put an official in evidence who would say that the practice in the Department was to grant marriage leave on a pro rata basis to all newly employed civil servants during their first year of service he would not be in a position to identify any affected civil servant. Accordingly the Court decided that such evidence would be of no probative value in this case.

The Court finds that the documentation supplied to it by the Respondent Department supports the Complainant’s case. It makes no mention of a service pre condition to the granting of marriage leave. The General Council Report is clear; marriage leave consists of 5 days leave save only that the combined total of marriage and annual leave is capped at 26 days in the relevant leave year. In this case the Complainant was entitled to 22 days annual leave. She was therefore entitled to 4 days marriage leave. She was granted 3 days leave, leaving her with a residual entitlement to 1 additional day that she was denied.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant the sum of €100 for the infringement of her entitlements under the Act. The Court so determines.

Pay Rate

The Complainant states that she was paid a lesser rate than that paid to a permanent comparable civil servant. However at the outset of this part of the hearing Mr Grogan, Solicitor for the Complainant, acknowledged that the Complainant was paid the rate for the job as set out in the Haddington Road Agreement. He acknowledged that any civil servant employed into a comparable position at that time was paid that rate. He offered no further evidence in support of the complaint.

Determination

The Court determines that the Complaint is not well founded. The decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Brendan Hayes
16th September 2014______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.