EQUALITY OFFICER'S DECISION NO: DEC-E/2015/097
PARTIES
Sue Dunne andGrace Conlon
(Represented by the Prison Officers’ Association)
Vs
Irish Prison Service
(Represented by Cathy Maguire BL,
on the instructions of the Chief State Solicitor)
FILE NOs: EE/2012/062 & 063
Date of issue: 29th September 2015
1. Dispute
1.1 The Complainants are female basic grade Prison Officers employed in a prison which holds male prisoners. The prison operates a night shift quota system whereby a specified minority of the total number of basic grade Prison Officers on night guard duty may be female. Male basic grade Prison Officers are not subject to a quota. The Complainants allege that they are entitled to equal pay with their male counterparts and also that the quota effectively discriminates against them in terms of their conditions of employment on the gender ground. The Complainants essentially consider that the quota system constitutes a breach of the principle of equal pay on the gender ground, as night shift work attracts an additional “night” allowance in the nature of pay, thereby financially disadvantaging those female officers who wish to work nights but are prevented from doing so as a result of the gender quota.
2. Background
2.1 The quota specifies a maximum number of females on night guard duty which ensures that the night shift is staffed predominantly by male prison officers. As prisoners are all locked in their cells during the night, the number of staff on night duty is less than during the day when prison cells are open and prisoners may move around relatively freely, e.g. during meal times, etc.
2.2 As a result of the quota, female prison officers who wish to work ‘nights’ and volunteer for night duty may effectively be “passed over” by male officers ranked below them on the relevant ranking system. The quota system is specific to the prison in question and was introduced by the Chief Officer for security reasons. It is not part of any formal policy for Irish prisons generally, nor is it an element of any agreed collective agreement in relation to the Prison Service.
2.2 The Complainants referred their complaints to the Equality Tribunal on the 25th January 2012. On 3rd July 2014, in accordance with his powers under Section 75 of the Employment Equality Acts, the Director delegated the cases to me, Gary Dixon, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date on which I commenced my investigation.
2.3 Written submissions were received from each party. As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on 9 December 2014. Following the hearing the Respondent entered 2 supplemental submissions and the Complainants entered a replying submission. The Respondent has requested that this decision not recite the facts disclosed either in written submissions or at the hearing, since such disclosure may compromise prison security in the State. The Complainants are sympathetic with this argument but nonetheless request that the decision sets out the facts in sufficient detail in order to explain the rationale for the findings. I have had regard to these arguments and drafted my decision within certain parameters with a view to ensuring that there is no compromise of prison security arrangements. Final correspondence in the matter took place on 28th August 2015.
3. Summary of Complainants’ Cases
3.1 Both Complainants are female basic grade Prison Officers. They both consider that the night duty female quota, which has operated since October 2011 and is still in place, constitutes discrimination within the meaning of Section 6 of the Employment Equality Acts on the gender ground and, particularly, is contrary to Section 8(6) in terms of their conditions of employment.
3.2 Both Complainants also submit that under Section 19 of the Acts they are entitled to equal remuneration with their male colleagues as they perform like work within the meaning of Section 7 of the Acts.
3.3 The Complainants specifically state that the “female quota” does not fall within any derogations from the gender equality provisions as provided for by either Section 27 of the Employment Equality Acts or Article 14 of Directive 2006/54/EC which provides at Article 2 that –
"(2) Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned, or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate."
3.4 The Complainants submit that the rationale for the night duty quota is effectively undermined by the fact that no female quota applies during the day when prison cells are unlocked and prisoners are relatively free to move around within the prison. They further submit that the quota essentially operates arbitrarily on occasions and they cited 4 dates on which the number of female officers on night duty exceeded the specified quota. They also detailed various dates when they were “passed over” for night duty by male colleagues.
3.5 The Complainants submit that all Prison Officers receive the same training regardless of gender and all are liable for assignment to all duties in all persons, regardless of gender. The procedure for “extracting” prisoners from cells where necessary was explained in detail at the hearing, i.e. the number of officers required and the role and function of each officer in carrying out this duty. Like their male colleagues, female prison officers are trained in every aspect of this process and they also receive regular refresher training, as do their male colleagues. The Complainants point out that there is no female quota applied when assembling an “extraction team”.
Legal Context
3.6 The Complainants recognise that Section 27 of the Employment Equality Acts contains exceptions from the principle of equal treatment in certain cases. In particular, Section 27 provides that, with regard to employment in the prison service, a man or woman may be assigned to a particular post where such assignment is essential in the interests of privacy or decency and/or in order to guard, escort or control violent individuals or quell riots or violent disturbances (subsections (1)(a) (i) and (ii) refer). However, as Section 27 provides for exceptions from the general anti-discrimination provisions of the Acts, the Complainants argue that it must be interpreted strictly. Therefore, they consider that is not appropriate to attempt to use section 27 to justify any general discriminatory act which would otherwise be deemed to be discriminatory. Accordingly, the Complainants state that exceptions should be read in the context of a requirement arising in a particular factual situation rather than for the purpose of validating a general working practice, (i.e. the provision must be appropriate, proportionate and transparent).
3.7 The Complainants cite various examples of case law at both national and EU levels to support their position. In particular, the Complainants assert that any deviation from the principle of equal treatment must be strictly construed and they refer to the following extracts from the European Court of Justice (ECJ) ruling in Kriel v Budesrepublik Deutschland (Case C-285/98) -
“….as a derogation from the individual right laid down in the Directive, that provision must be interpreted strictly…”.
The ECJ also stated -
“In determining the scope of any derogation from a fundamental right….the principle of proportionality, one of the general principles of Community law, must also be observed… That principle requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security which determine the context in which the activities in question are to be performed”.
3.8 The Complainants further cite Directive 2006/54/EC of the European Parliament and of the Council (the Gender Recast Directive) in support of their position. While the Directive essentially enshrines the principle of gender equality, it also provides for rights of Member States to exclude from their field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the gender of the worker constitutes a determining factor. However, in relation to the derogation permitted by the Directive, the Complainants submit that the principle of proportionality must be applied in considering the genuine occupational requirement exception. They state that this point has been established in case law via the Kreil case mentioned above and also in Johnston v Chief Constable of the RUC (Case 222/84 [1986] ECR 165) and Sirdar v Army Board and Secretary of State for Defence (Case C-273/97 [1999] ECR I-7403). For example, at paragraph 27 of the decision in Johnston v Chief Constable of the RUC, the Court stated that “…the principle of equal treatment is not subject to any general reservation as regards measures taken on the grounds of the protection of public safety…” (para. 27).
3.9 The Complainants emphasise the well-established requirement that any derogations to principles set down in EU law must be transparent so that such derogations are capable of being effectively supervised by the Commission. In this connection they submit that, at paragraph 28 of the Sirdar judgement, the ECJ posed the question of whether the “…measures taken by national authorities in the exercise of the discretion which they are recognised to enjoy, do in fact have the purpose of guaranteeing public security and whether they are appropriate and necessary to achieve that aim.”
3.10 In summary, the Complainants submit that –
a) There is no consistency in the operation of the female quota.
b) It does not appear to be based on any objective justification.
c) There is no quota for female officers during the day when prison cells are unlocked.
d) There is no consistency between “day” and “night” duties.
e) The female quota does not apply universally in prisons across the State.
f) The practice of applying the quota results directly in female officers losing a night duty allowance (when they are “passed over” by male officers).
g) The quota detrimentally affects the ability of female officers to effect many of the general principles set out in the collective agreement between the Prison Officers’ Association and the Irish Prison Service, such as “to strike a balance between the needs of the Service and the needs of the staff” and “to be as family friendly as possible for a 24 hour 7 day service”.
h) Female staff are unable to predict their working patterns to the detriment of achieving the objectives mentioned at g) above.
i) The Complainants consider it is degrading and humiliating to be refused night duty on the grounds that they are female because the quota has been reached; this has resulted in female officers being reluctant to seek night duty because they are conscious it will simply be refused on the gender ground.
4. Summary of Respondent’s case
Complaint “out of time”
4.1 The Respondent contends that the complaint submitted by Officer Conlon is out of time within the meaning of the legislation. Ms. Conlon’s complaint was received by the Equality Tribunal on 25th January 2012. While Ms. Conlon’s complaint form states that the discrimination is “on-going”, it also identifies 10th February 2011 as a date on which she was “skipped over” for night guard duty. As she specified no other date on which the alleged discrimination allegedly occurred, nor did she apply for an extension of time under Section 77(5)(b) of the Acts, the Respondent considers that Ms. Conlon’s complaint is outside the 6 month period permitted under Section 77(5)(a) within which a complaint must be referred to the Tribunal.
General
4.2 As outlined previously, the Complainants are female Prison Officers employed at a facility which holds male gender prisoners only. The prison operates a quota in relation to the number of female Prison Officers (basic grade) on night duty. The quota specifies a maximum number of females on the night shift to ensure that the night shift is staffed predominantly by male prison officers.
4.3 The Complainants allege that the quota has effectively resulted in discrimination with regard to their conditions of employment on the gender ground as the night shift attracts an allowance in the nature of pay, thereby financially disadvantaging those female officers who wish to work nights but are prevented from doing so due to the quota. The quota system is specific to the prison in question and was introduced by the Chief Prison Officer for security reasons. It is accepted by the Respondent that the quota is not part of any overall policy for Irish prisons nor is it an element of any agreed collective agreement in relation to the prison service generally, e.g. the Proposal for Organisational Change in the Irish Prison Service.
4.4 The Respondent considers that it is entitled to rely upon section 27(1)(a) (i) and (ii) of the Employment Equality Acts in defence of these claims, i.e. that the quota is essential in order to guard, escort and control prisoners and to quell violent disturbances while protecting the privacy and decency of the prisoners. In this context the Respondent submits that another named prison in the State, which holds female prisoners, operates a comparable gender quota system that necessitates the “passing over” of available male staff where necessary.
Legal Context
4.5 The Respondent refers to Directive 76/207/EEC. Articles 2 (1) and (2) thereof state:
"1 For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly by reference in particular to marital or family status.
2 This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor."
4.6 Council Directive 76/207/EEC has been replaced by Council Directive 2006/54/EC (the Recast Directive). Article 2 (2) of Directive 76/207/EEC has been replaced by Article 14 of Directive 2006/54/EC as follows:
"(2) Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned, or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate."
4.7 The Respondent submits that Employment Equality Acts implement Directive 2006/54/EC in Ireland. Section 27(1) of the Acts provides as follows:
"27 (1) With regard to employment in the Garda Síochána or the Prison Service and without prejudice to Section 25, nothing in this Act ̶
(a) applies to the assignment of a man or, as the case may require, a woman to a particular post where this is essential ̶
(i) in the interests of privacy or decency,
(ii) in order to guard, escort or control violent individuals or quell riots or violent disturbances, or
(iii) in order, within the Garda Síochána, to disarm or arrest violent individuals, to control or disperse violent crowds or to effect the rescue of hostages or other persons held unlawfully,"
Equal Treatment and/or Equal Pay
4.8 Both Complainants referred an equal pay claim and an equal treatment complaint arising out of the same facts. The Respondent submits that it is necessary to determine whether this is properly characterised as an equal pay claim or an equal treatment claim as it cannot be both. The law governing equal pay is based on the close connection between the nature of the work done and the amount of the workers’ pay. It is submitted that this claim is not based on that connection. The Complainants are permitted to undertake night work. When they do so, they receive the same rate of pay as males undertaking night work. The Respondent submits that the question is not whether the Complainants should be paid the same rate for day work as males who undertake night work but rather whether the Complainants should be permitted to undertake night work without the imposition of a quota for the number of females who may undertake night work on a given night. Accordingly, the Respondent submits that this is an equal treatment claim and not an equal pay claim.
Alleged Discrimination
4.9 Section 6 of the Employment Equality Acts defines discrimination as occurring where a person is “treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”, includinggender. Section 8(6) of the Acts provides that (without prejudice to the generality of section 8(1)) “an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one . . . (c) the same treatment in relation to overtime, shift work [etc.] . . . as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”
4.10 The Complainants are both females working in a prison holding male prisoners and are subject to a quota system for night work. The Respondent submits that the Complainants seek to compare themselves to males working in the prison who are not subject to a quota system for night work. However, the Respondent argues that these males are not in a comparable situation since they work in a prison holding persons of the same gender as themselves, whereas the Complainants work in a prison holding persons of the opposite gender to themselves. Therefore, the Respondent considers that the Complainants are not comparing “like with like”; they have not established that they have suffered less favourable treatment than males in a comparable situation (as required by section 6) or that they have not been afforded the same treatment in relation to overtime, shift work, etc., where the circumstances in which the Complainants and the males to whom they seek to compare themselves are employed are not materially different (as required by section 8(6)).
4.11 Therefore, the Respondent considers that the Complainants are not treated any less favourably than males in a comparable situation or males who are employed in circumstances which are not materially different, since males (employed by the same employer) who work in a prison holding female prisoners are also subject to a quota system for night work. In light of the above, it is submitted that the Complainants have not established a prima facie case of discrimination.
Section 27
4.12 Without prejudice to the above, the Respondent also relies upon section 27(1)(a)(i) and (ii) of the Acts. The Respondent submits that the complement of night shift basic grade officers must address whatever situations arise during their shift. They may face one or more incidents, e.g. a prisoner who self-harms, a prisoner or prisoners who become violent, a prisoner who requires medical attention in a hospital, a fire which is started deliberately or by accident, etc. The Respondent accepts that while these incidents are rare, they must nonetheless be planned for in staffing the prison at night and, in particular, these incidents may require the use of control and restraint techniques, requiring the exercise of physical force against the male prisoners and entailing situations in which the privacy and decency of the prisoners will be compromised if the control and restraint techniques are employed by females, or if the escort duties are carried out by females. In these circumstances, the Respondent submits that prison management decided that the quota is essential in order to guard, escort and control the prisoners and to quell violent disturbances which may arise while also protecting the privacy and decency of the prisoners.
4.13 It is submitted that the quota system also satisfies the requirement of Article 14 of Council Directive 2006/54/EC insofar as the nature of the particular occupational activities concerned and the context within which they are performed, the gender of the prison officer constitutes a genuine and determining occupational requirement. It is also submitted that the objective is legitimate given that to guard, escort and control prisoners and protect their privacy and decency is a legitimate objective for the Respondent to secure. It is further submitted that the requirement is proportionate given that the Respondent does not prohibit female staff members from holding the post of Prison Officer within the prison nor does it prohibit female staff members from performing night duty. Instead, the Respondent submits that it restricts the measure to the minimum required to guard, escort and control prisoners and also protect their privacy and decency.
4.14 The Respondent relies on the case of Hunt and Doherty v Irish Prison Service (DEC-E2006-021) in which the Equality Officer held that the assignment of a female officer to escort a female prisoner is essential in the interests of privacy and decency. The Equality Officer in that case also held it would be inappropriate to force a female prisoner to be handcuffed to a male officer in circumstances where she may be undergoing a medical examination in hospital or may need to visit a toilet during a court appearance; therefore, the Respondent was entitled to rely upon Section 27 (1)(a)(ii) of the 1998 Act in support of its assignment of female officers to escort duty.
4.15 The Respondent submits that the Equality Officer in Hunt and Doherty v Irish Prison Service also held that the Respondent was entitled, under Section 27 (1)(a)(ii) to require a minimum number of 2 female officers to be assigned to the female wing; in this regard, the Equality Officer took into account scheduled events such as court escorts and approved annual and other leave, and also emergency hospital escorts and unscheduled leave such as sudden sick leave; she further held that it was clear that the Respondent must be given some flexibility to cover all of these contingencies. In the circumstances, the Equality Officer considered that to insist that no more than 2 female officers be assigned to the female wing at any one time may impinge upon the Respondent's responsibility to the privacy and decency of female prisoners.
4.16 The Respondent in the current case also relies on the case law of the European Court of Justice (ECJ) which, it states, has been incorporated into Article 14 of Council Directive 2006/54/EC. In Johnston v Chief Constable of the RUC (C-222/84 [1986] ECR 1651) the Respondent states that the ECJ accepted that the context within which police officers were performing their duties may be such that the gender of police officers constitutes a determining factor for carrying them out, thereby entitling the Member State to restrict such tasks, and the training leading thereto, to men. In that particular case, the context was Northern Ireland, “a situation characterised by serious internal disturbances” where the possibility could not be excluded that “the carrying of fire-arms by policewomen might create additional risks of their being assassinated and might therefore be contrary to the requirements of public safety” (Para. 36).
4.17 In Commission v France (318/86 [1988] ECR 3559) the Respondent submits that the ECJ recognised that gender may be a determining factor for posts such as those of Prison Warder and Head Prison Warder. The Respondent considers it noteworthy that the Commission admitted that the specific nature of the post of “warder” and the conditions under which warders carry out their activities, justified reserving such posts primarily for men in male prisons and primarily for women in female prisons; it was also accepted that different access to the custodial staff corps arising from a system of separate recruitment for men and women did not go beyond the limits laid down in Article 2(2) of Directive 76/207 (Para 12).
4.18 However, the Respondent submits that while the EU Commission contended that an exception should be made in the case of “surveillant chefs” in charge of prisons, since they carry out management functions with involve no regular contact with the prisoners, the ECJ rejected that argument and held that the derogation provided for in Article 2(2) extended to activities corresponding to the highest grade of the corps concerned, even if certain of those activities do not necessarily have to be carried out by persons of one sex; the Court held that there could be reasons for appointing to the post of head warder only persons having actually performed the duties of a warder. The French Government also relied upon the need to provide for opportunities for promotion within the corps of warders and to the fact that the professional experience acquired in the corps was desirable for the performance of the duties of a prison governor. The Commission had not shown that those arguments were not valid (Para 17). Accordingly, the Respondent submits that the ECJ held that the derogation in Article 2(2) covered the highest grade of prison warder notwithstanding that some of the activities of that post did not necessarily have to be carried out by persons of one sex.
4.19 The Respondent submits that in Sirdar v Army Board (C-273/97) the ECJ considered whether the British Defence Forces were entitled to exclude Ms. Sirdar, a chef, from the Royal Marines on the grounds of her gender. The Royal Marines were a small force, intended to be the first line of attack and all members of the corps, including the chefs, were engaged and trained to serve as front-line commandos established for the purpose of ensuring combat effectiveness (i.e. the principle of ‘interoperability’). Women were excluded from the Royal Marines since their employment would not allow for ‘interoperability’.
4.20 The Respondent submits that the UK argued that the ECJ must confine itself to the question of whether the national authorities could reasonably have formed the view that the policy at issue was necessary and appropriate (Para 22 refers). The ECJ acknowledged that, depending on the circumstances, national authorities have a certain degree of discretion when adopting measures which they consider necessary in order to guarantee public security in a Member State (Para 27 refers). It was deemed that the question was therefore whether, in the circumstances of the case, the measures taken by the national authorities in the exercise of the discretion which they are recognised to enjoy, do in fact have the purpose of guaranteeing public security and whether they are appropriate and necessary to achieve that aim. The ECJ considered that in exercising discretion in the case of combat units such as the British Royal Marines, the national authorities were entitled, without abusing the principle of proportionality, to come to the view that the specific conditions for deployment of such units justify their composition remaining exclusively male (Para 31 refers).
4.21 In Kreil v Bundesrepublik Deutschland (C-285/98) the Respondent accepts that the ECJ made it clear that the discretion enjoyed by the national authorities does not extend to a blanket exclusion from the employment of women in the armed forces (with the exception of medical and military-music services) since the derogations provided for in Article 2(2) of Directive 76/207can apply only to specific activities.
4.22 The Respondent argues however, that as in Johnston, the context within which the basic grade officers perform their duty is key; as in Commission v France, it must be acknowledged that the specific nature of the post of prison officer and the conditions under which they carry out their activities justify reserving such posts primarily for men in male prisons and primarily for women in female prisons. By extension, these factors also justify reserving night duties primarily for men in male prisons and primarily for women in female prisons. Applying Sirdar, the Respondent submits that it has discretion to come to the view that the specific conditions pertaining in the prison in question at night justify reserving night duties primarily for men. The Respondent states it has not, as in Kreil, sought to implement a blanket ban but instead implemented a quota requiring a predominantly male complement of officers on night guard duty. It is submitted, therefore, that the Respondents has observed the principle of proportionality in this regard.
Prison Rules
4.23 The Prison Rules are contained in S.I. No. 252 of 2007 and are, therefore, publicly available as set out in a Statutory Instrument. The Respondent relies, in particular, on rules 6, 64 and 77 in support of its position. Rule 6 permits searches, inter alia, where the Governor considers, upon reasonable grounds, that the carrying out of such searches is necessary for the purposes of, inter alia, ensuring that a prisoner is not in possession of a prohibited article, or confiscating a prohibited article, or ensuring safe and secure custody and good government of the prison. Such searches permit the removal of some or all of a prisoner’s clothing but with due regard to decency, privacy and the dignity of the person being searched. Rule 6 also provides that a prisoner shall not at any stage be left in a state of complete undress; that a search shall not be carried out by, or in the presence of, a Prison Officer of the opposite gender to the prisoner. It further provides that a search shall not be carried out in the presence of another prisoner.
4.24 Rule 64 relates to “use of special observation cell” and provides, inter alia, that the Governor may require a prisoner’s clothing, including underwear, to be removed before the prisoner is accommodated in a special observation cell where, if it is considered that items or parts of the prisoner’s clothing, including underwear, may be used by the prisoner to harm himself (or herself, or others), or to cause significant damage to property, such removal of clothing shall be carried out with due regard to decency and the dignity of the prisoner. This Rule also provides that no prisoner shall be left unclothed in a special observation cell, but may be provided with appropriate clothing in the interests of his or her safety. It further provides that the Governor shall visit any prisoner accommodated in a special observation cell not less than once each day.
4.25 The Respondent submits, therefore, that as it is required by law to comply with the Prison Rules, it is also obliged to ensure that a sufficient complement of male staff are on duty at night to apply the procedures as stipulated by Rules 6 and 64.
4.26 Therefore, without prejudice to its contention that the Complainants have not established a prima facie case of discrimination, the Respondent submits that, in light of the foregoing, in particular the statutory requirement to comply with the Prison Rules, it is entitled to rely upon Section 27 1(a)(i) and (ii) with regard to the quota the subject of these claims.
Respondent’s Summary
4.27 In summary, the Respondent submits that the Complainants did not suffer, nor do they continue to suffer, discrimination, i.e. less favourable treatment than another person “in a comparable situation” in relation to the matters complained of. The Respondent states that male basic grade Prison Officers employed at the same prison are not employed “in a comparable situation” because they are employed in a prison holding prisoners of the same gender as themselves, whereas the Complainants are employed in a prison holding prisoners of the opposite gender to themselves.
4.28 By contrast, the Respondent submits that male Prison Officers employed in a named female prison are “in a comparable situation” to the Complainants since they are employed in a prison holding prisoners of the opposite gender to themselves. The Respondent points out that such male Prison Officers are also subject to a quota for night work. It is submitted therefore that there is no discrimination and that the claims should be dismissed.
4.29 Without prejudice to the foregoing, the Respondent considers that it is entitled to rely on Section 27(1)(a) (i) and (ii) of the Employment Equality Acts in defence of these claims as the said quota is essential in order to guard, escort and control prisoners and to quell violent disturbances while protecting the privacy and decency of the prisoners.
5. Conclusions of Equality Officer
Confidentiality
5.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing. However, in the interest of prison security, particularly the essential need to avoid any possible compromise of prison security arrangements in the State, I have not recited many of the facts nor have I detailed much of the evidence submitted during my investigation. Therefore, while I have endeavoured to set out sufficient factual detail so as to explain the rationale for my decision, I have also recognised the fact that prison security is of paramount importance, not least for Prison Officers, including the Complainants.
.
Time Limit for Referral of Complaint
5.2 I note that the Respondent considers that the complaint submitted by Officer Conlon is “out of time” under Section 77(5)(a) of the Acts. Ms. Conlon’s complaint was received by the Tribunal on 25th January 2012. While Ms. Conlon’s complaint identified 10th February 2011 as a date on which she was “skipped over” for night guard duty, I note that she also described the alleged discrimination as “on-going”.
5.3 The Respondent has not denied that the practice of applying a female quota in respect of night guard duty operates at the prison. On the contrary, the Respondent accepts that the operation of the quota is on-going and has sought to defend the quota on various grounds. The Complainants submitted, both in their written and oral submissions, that they frequently do not place their names on the “voluntary list” (to express their availability for night guard duty) as they know that they would be passed over in favour of a male colleague. Therefore, the central point at issue is whether or not the on-going operation of the quota breaches the Employment Equality Acts and, as the alleged discrimination complained of is on-going, I consider that Ms. Conlon’s complaint is within the 6 months period permitted under Section 77(5)(a) of the Acts within which a complaint must be referred to the Tribunal and is therefore, a valid referral within the meaning of the legislation.
Equal Pay and/or Equal Treatment
5.4 The Complainants each referred an equal pay claim and an equal treatment complaint arising from the same set of circumstances. As regards equal pay, Section 19 of the Employment Equality Acts provides for entitlement to the same rate of remuneration for employees who are engaged on like work (by the same or an associated employer). Like Work is defined at Section 7 of the Acts. However, the question of like work is not in dispute. The Complainants, who are female Prison Officers, are already in receipt of the same rate of pay as their male counterparts, i.e. there is no separate female officer pay scale, nor indeed is there any male officer pay scale. Prison Officers’ pay scales, like Garda and other public servants’ pay scales, are published. Further, the Complainants are permitted to undertake night work. When they do such night duty, they receive the same rate of pay as males undertaking night work. In my view, therefore, the issue is not a dispute about equal pay but rather whether the Complainants should be permitted to undertake night guard duty without the imposition of a quota for the number of females who may undertake night work on a given night. I consider, therefore, that the complaints as referred by both Complainants constitute alleged equal treatment complaints and not equal pay claims within the meaning of the Employment Equality Acts.
5.5 What is central to both complaints is a restriction on access to night guard duty which attracts an additional allowance in the nature of pay and is, therefore, a complaint in relation to a condition of employment. Accordingly, I consider that these complaints constitute an allegation of discrimination on grounds of gender in terms of section 6(2)(a) of the Employment Equality Acts contrary to Section 8 of those Acts in respect of the Complainants’ conditions of employment.
Burden of Proof
5.6 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires Complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If they succeed in doing so, then, and only then, is it for the Respondent to prove the contrary.
5.7 In Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) the evidential burden which must be discharged by Complainants before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:
“The claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”
5.8 In evaluating the evidence, therefore, I must first decide whether the Complainants have established a prima facie case pursuant to Section 85A of the Employment Equality Acts. As outlined above, the Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.
5.9 The Complainants are both females working in a prison holding male prisoners. The Respondent argues that the Complainants are comparing themselves to males working in the same prison who are not subject to a quota system for night work. However, the Respondent argues that the Complainants are not comparing “like with like” because these males are not in a comparable situation since they work in a prison holding persons of the same gender as themselves, whereas the Complainants work in a prison holding persons of the opposite gender to themselves. The Respondent submits, therefore, that they have not established that they have suffered less favourable treatment than males in a comparable situation (as required by section 6) or that they have not been afforded the same treatment in relation to overtime, shift work, etc., where the circumstances in which the Complainants and the males to whom they seek to compare themselves are employed are not materially different (as required by section 8(6)).
5.10 Accordingly, the Respondent considers that the Complainants are not treated any less favourably than males in a comparable situation or males who are employed in circumstances which are not materially different, since males (employed by the same employer) who work in a named prison that holds female prisoners are also subject to a comparable (male) quota for night work.
5.11 I consider that the Respondent’s arguments on this issue carry a significant degree of weight. However, the Respondent also accepts that the quota system in question was introduced by the Chief Officer at the prison for what he described as “security reasons” and it is specific to that prison (in that it applies only to females). It is not part of any formal policy for Irish prisons, nor is it an element of any agreed collective agreement in relation to the Prison Service. I also note that it is only applicable at night, i.e. no female quota applies during the day when prison cells are open and prisoners are free to move around. All Prison Officers receive the same training regardless of gender and all are generally liable for assignment or posting to similar prison duties. Further, the procedure whereby prisoners are “extracted” from cells when/where necessary was explained in detail at the hearing. Female Prison Officers are trained in every aspect of this process and they also receive regular refresher training, as do their male colleagues.
5.12 While I consider that there is substance to the Respondent’s position, I believe that the combination of all of the facts outlined at 5.11 above is of “sufficient significance” to establish a prima facie case of discrimination and that the practice of applying the quota, which has directly resulted in female officers losing a night duty allowance (when they are “passed over” by male officers) is, on the face of it, discriminatory. Accordingly I deem that it is for the Respondent to rebut this inference of discrimination.
Alleged Discrimination
5.13 The essential issue for decision by me, therefore, is whether the Respondent discriminated against the Complainants on grounds of their gender in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts. As outlined previously, Section 6(1)(a) of the Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified ……” andSection 8(6) provides that (without prejudice to the generality of section 8(1)) “an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one . . . (c) the same treatment in relation to overtime, shift work [etc.] . . . as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”
Prison Rules
5.14 The Complainants have submitted that the rationale for the female quota was set out in correspondence which they received from the Respondent following the raising of their grievance with the Deputy Governor at the prison. The correspondence in question was presented in evidence. It did not refer, either overtly or by implication, to the Prison Rules. The Complainants submit, therefore, that the Prison Rules were not an issue in establishing the female quota. They consider that the Respondent’s reference to “protecting the privacy and decency” of prisoners is a direct reference to Section 27(a)(i) and was not put forward as a factor in the rationale for introducing the quota. The Complainants further submit that the basis for the quota as communicated to them, and also as outlined in the Respondent’s submission to the Tribunal, included a statement in terms of the need for staffing arrangements at night being adequate to deal with one or more incidents that may arise rather than issues concerning control and restraint techniques and extraction procedures which were cited afterwards - and allegedly with hindsight - by the Respondent.
5.15 I accept, as submitted by the Complainants, that they are fully trained in control, restraint and extraction techniques just like their male counterparts. I also accept that the Prison Rules were not raised as a defence by the Respondent before these complaints came to hearing. However, regardless of whether the Prison Rules were raised by the Respondent as a “retrospective attempt to legitimise a policy”, and whether or not they have been introduced outside of the context for which they were devised (as is alleged), the fact remains that these rules are prescribed in legislation - S.I. No. 252 of 2007 - and the Respondent is thereby obliged by law to apply them as so prescribed. Therefore, even if I accept that the Prison Rules have been raised as an afterthought by the Respondent, I believe that they are not only relevant, but fundamental in considering these complaints.
Section 27 of the Employment Equality Acts
5.16 The Respondent, in referring to Section 27(1)(a)(i) and (ii) of the Acts, submits that the complement of night shift basic grade officers must address whatever situations arise during their shift. For example, they may face one or more incidents such as a prisoner who self-harms, a prisoner or prisoners who become(s) violent, a prisoner who requires medical attention in a hospital, a fire which may have been started (deliberately or by accident), etc.
5.17 The Respondent accepts that these incidents are rare but argues that, nonetheless they must be planned for in staffing the prison at night. In particular, the application of the rules may require the use of control and restraint techniques which, as well as requiring the exercise of physical force against the male prisoners, may also involve situations in which the privacy and decency of prisoners would be compromised if such control and restraint techniques were employed by females, or if the escort duties were carried out by females. In these circumstances, the Respondent submits that prison management decided that the quota was essential in order to guard, escort and control the prisoners and to quell any violent disturbances which may arise while also protecting the privacy and decency of the prisoners. The Respondent’s detailed arguments in this regard are set out under paragraphs 4.12 to 4.26 previous.
5.18 I consider that the findings in a previous case referred to the Equality Tribunal relating to the Irish Prison Service - Hunt and Doherty v Irish Prison Service (DEC-E2006-021) – are relevant. While the facts in that case differ from the current case, the Equality Officer found that the assignment of a female officer to escort a female prisoner was essential in the interests of privacy and decency. The Equality Officer also found that it would be inappropriate to require a female prisoner to be handcuffed to a male officer in circumstances where she may be undergoing a medical examination or may need to visit a toilet (e.g. during a court appearance) and, in the circumstances, the Respondent was entitled to rely upon Section 27 in support of its assignment of female officers to escort duty. Notably, in my view, the Equality Officer also considered that the Respondent was entitled to require a minimum number of female officers to be assigned to the female wing of the prison in question in order to fulfil its responsibilities in relation to the privacy and decency of female prisoners.
5.19 At European level, I am also guided by the case of Commission v France (318/86 [1988] ECR 3559) where the ECJ accepted gender as a determining factor for posts such as Prison Warder and Head Prison Warder. (Further details in relation to the facts in Commission v France are set out at paragraphs 4.17 and 4.18 previous).
5.20 The Prison Rules are contained in S.I. No. 252 of 2007. The rules are, therefore, already publicly available in a Statutory Instrument. The Respondent relies, in particular, on rules 6, 64 and 77 in support of its position. Rule 6 permits searches, inter alia, where the Governor considers, upon reasonable grounds, that the carrying out of such searches is necessary for the purposes of, inter alia, ensuring that a prisoner is not in possession of a prohibited article, or confiscating a prohibited article, or ensuring safe and secure custody and good government of the prison. Such searches permit the removal of some or all of a prisoner’s clothing, but with due regard to decency, privacy and the dignity of the person being searched. Rule 6 also provides that a prisoner shall not at any stage be left in a state of complete undress; that a search shall not be carried out by, or in the presence of, a Prison Officer of the opposite gender to the prisoner. It further provides that a search shall not be carried out in the presence of another prisoner.
5.21 Rule 64 relates to “use of special observation cell” and provides, inter alia, that the Governor may require a prisoner’s clothing, including underwear, to be removed before the prisoner is accommodated in a special observation cell where, if it is considered that items or parts of the prisoner’s clothing, including underwear, may be used by the prisoner to harm himself (or herself, or others) or to cause significant damage to property, such removal of clothing shall be carried out with due regard to decency and the dignity of the prisoner.
5.22 The Respondent is required by law to both apply and comply with the Prison Rules. It is also obliged to ensure that sufficient male staff are on duty at night to apply the procedures as stipulated at rules 6 and 64. A number of witnesses for the Respondent attended the hearing and presented evidence in regard to compliance with these rules.
5.23 As there is a statutory requirement on the Respondent to comply with the Prison Rules, I consider that it is entitled to rely upon Section 27 1(a)(i) and (ii) of the Employment Equality Acts with regard to the quota which is the subject of these claims. Rules 6 and 64 essentially require that male Prison Officers are on duty at all times at the prison because female officers are prohibited (by Statutory Instrument No. 252 of 2007) from undertaking certain activities under the rules, e.g. the “searches” prescribed at rule 6. It is a fact that if the complement of Prison Officers on duty on any given night (or at any given time) was exclusively female, then neither Prison Rule 6 nor 64 could be complied with.
5.24 It follows, therefore, that there is a legal requirement on the Respondent to have some form of a gender quota in place to ensure that there are sufficient male officers on duty at all times to apply and comply with certain specified functions under the Prison Rules.
5.25 As I have found that the Respondent is entitled to maintain a gender quota (in order to ensure that there is a sufficient number of male officers on duty at all times), the outstanding issue for consideration is whether the male/female ratio in the quota is discriminatory. I do not propose to examine the quota with regard to the concept of indirect discrimination. Indirect discrimination on the gender ground would involve a practice, policy or rule that is applied to everyone in the same way, but has the effect of impacting less favourably on one gender than on the other. In the current case the quota constitutes a restriction that is applied directly to women and, therefore, if it is to be discriminatory, then it would be directly discriminatory.
5.26 The overall complement of officers eligible for night guard duty is approximately 5:1 (male/female). The application of the quota results in about a 3:1 male/female ratio of officers on night guard duty. On the face of it, it may appear that the ratio is biased in favour of male officers. However, I must take account of the fact that the Respondent is not only entitled, but is required to fulfil its responsibilities in relation to the privacy and decency of prisoners at a prison holding exclusively male prisoners. Also, the rationale behind the quota was discussed in considerable detail at the hearing and, having heard the evidence, I accept that the measure is proportionate. In doing so I appreciate that, generally, any derogation from a principle set down in EU law should be transparent so that it can be “effectively supervised” and that my findings on the issue of proportionality may appear to be less than transparent. However, at paragraph 5.1 previous I outlined the need for a significant degree of confidentiality in drafting this decision, bearing in mind the needs of prison management to guarantee, as far as possible, the safety of all concerned (staff and prisoners) as well as prison security.
5.27 I also accept that a situation arising requiring the privacy and decency of prisoners to be respected is unlikely to occur at night when prisoners are locked in their cells. The Complainants state that they have never witnessed an extraction at night. The Respondent also accepts that such an extraction would be a rare occurrence at night. However, the prison is required to be prepared for all such eventualities and it is a function of management at the prison to decide on what is essential in order to implement and comply with the Prison Rules under S.I. No. 252 of 2007. I do not consider it appropriate for an Equality Officer to attempt to interfere in any legally prescribed operational practice at a prison, nor would it be in order for me to comment on, for example, the appropriate constitution of an “extraction team” where searching a prisoner is deemed necessary at night under Prison Rule 6. To attempt to do so would, in my view, be beyond the competence of an Equality Officer.
5.28 In light of the foregoing and in line with the ECJ ruling in Commission v France, I consider that the specific nature of the post of warder, in particular the conditions in which warders carry out their duties, justifies the exclusion of women from posts in male prisons and men from posts in female prisons. By extension, I consider that these factors also justify reserving night duties primarily for men in male prisons and primarily for women in female prisons. Accordingly, I accept that the applicable measure (i.e. the quota) is, on balance, proportionate so as to secure the privacy and decency of prisoners as required by Section 27(1)(a)(i) of the Employment Equality Acts and is also in compliance with Prison Rules 6 and 64, bearing in mind that the Respondent must ensure that the complement of officers on night guard duty is capable of addressing whatever situations arise during their shift.
5.29 In reaching my conclusions I recognise the fact that there is no quota required at most other prisons in the State nor is there any quota in operation at the prison in question during the day when there is a much higher risk that extraction and/or searching techniques may be required as, during the day, especially at meal times, prisoners are permitted to move around more freely as cells are unlocked. However, as the overall staffing complement of Prison Officers is predominantly male, the issue does not generally arise, e.g. when a larger number of day guard officers are on duty at the prison (unlike the night guard shift which allows for a reduced staffing complement because all prisoners are locked in their cells).
Decision of Equality Officer
6.1 I have completed my investigation of these complaints and, in accordance with Section 79(6) of the Employment Equality Acts, I hereby make the following decision:
6.2 I find that -
(a) each of the Complainants’ claims in respect of equal pay under Section 19 of the Employment Equality Acts fail, as they are already in receipt of the same rate of remuneration as their male counterparts within the meaning of those Acts; and
(b) the Respondent did not discriminate against either of the Complainants on the grounds of their gender in terms of Section 6 of the Employment Equality Acts and contrary to Section 8 of those Acts.
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Gary Dixon
Equality Officer
29th September, 2015