ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00029679

Parties:

	Complainant	Respondent
Parties	Elizabeth Barry	Aer Lingus

Representatives

Ms Leanora Frawley BL, instructed by Maryse Jennings, KOD Lyons Solicitors

Mr Tom Mallon BL instructed by Hannah O’Farrell, Arthur Cox Solicitors.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00040189-001	30/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00040656-001	28/10/2020

Date of Adjudication Hearing: 11/05/2022

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The complainant is a long serving employee of Aer Lingus.

The Complainant initially made three complaints to the Workplace Relations Commission on 30th September 2020.

Complaint 1 – submitted to the WRC at 20.15 – this was a single complaint submitted under s.6 of the Payment of Wages Act,1991.

Complaint 2 – submitted to the WRC at 20.45 – this was a single complaint submitted under s.6 of the Payment of Wages Act, 1991.

Complaint 3 – submitted to the WRC at 22.15 – this was a single complaint submitted under s.7 of the Terms of Employment (Information) At, 1994.

These three complaints were amalgamated and were allocated to file number ADJ – 00029679 (specific complaints CA – 00040189 – 001; CA – 00040190 – 001 and CA – 00040192 – 001.

A fourth complaint was received from the Complainant on 28th October 2020 at 15.55.

Complaint 4 is a complaint submitted under s.77 of the Employment Equality, 1998.

This complaint was issued with complaint number CA – 00040656 -001. This complaint was added to file ADJ – 00029679.

By email dated 24th October 2020 the Complainant has withdrawn the complaints referenced CA – 00040190 – 001 and complaint CA – 00040192 – 001.

Summary of Complainant’s Case:

Introduction

The Complainant is a permanent, fulltime employee of the Company. She is currently availing of an option offered by the Company to take a period of In-Week Special Leave 50% (IWSL). She has recently renewed this option until 2024. She began her employment in 1991 as an office clerk. She is now a Cabin Service Manager. The Complainant’s current contract of employment was executed by her on 6th February 1995, and she has been given written notifications of promotions since then. She brings this complaint under s.77 of the Employment Equality Act 1998 (as amended).

Background

The current Aer Lingus Uniform Standards for In Flight Services was published on 11th October 2021. A new uniform was issued to cabin crew on 10th February 2020. The uniform is compulsory and an important part of the Aer Lingus brand. The uniform for male cabin crew is different as would be expected in its purported representation of societal norms, to female cabin crew.

The issue lies in the far reduced practicality and comfort of the female uniform compared to the male uniform and the sexualisation of the female uniform that is inappropriate and degrading in a professional environment. In being compelled to wear a uniform that is far less practical and comfortable and that portrays an outdated and sexualised image of women, the Complainant is degraded in her professional duties. The Complainant’s conditions of employment are less favourable than male cabin crew because she is female. This is without reasonable or proportionate excuse. The less practical appearance and functions of the women’s uniform are unnecessarily uncomfortable, impractical and places them in a subordinate position to their male counterparts who then appear more capable and professional than female cabin crew.

More specifically:

The woman’s jacket has three quarter length sleeves. This exposes their wrists and skin on their arms. As the jacket sleeves are short, the women must wear short sleeved shirts. The jackets are also not designed to allow the wearer to wear the issued cardigan underneath. This means that in colder weather, female cabin crew do not have appropriate clothing to wear that will keep them warm. The men can wear a long-sleeved shirt, a cardigan (or jumper) and a long-sleeved jacket. Although female cabin crew are permitted to wear their cardigan under their jacket if it is cold, they are reluctant to do so because it is cumbersome and unsightly as the sleeves of the cardigan protrude from the jacket sleeves.

Female cabin crew must wear high heels when in uniform and outside the aircraft (unless they have a medical exemption letter which they must carry with them at all times). There is a strong association between high heels and female sexuality. Aer Lingus recognises that wearing high heels is not as comfortable or practical as wearing flat shoes by the fact that they recognise some women may not be physically able to wear high heels and also by requiring female cabin crew to remove them once aboard the aircraft and exchange them for flat shoes. The flat shoes supplied to female cabin crew are also quite flimsy and provide no support for the wearer’s foot. Male cabin crew wear flat, lace-up shoes which are fit for purpose. Further, because of having to wear these types of shoes, female cabin crew have to wear tights or pop socks (see below).

Female cabin crew must wear tights or nylon pop socks and are not permitted to wear other types of socks (like cotton socks) which do not provide any warmth when it is cold (and so their feet are cold) and are made of a synthetic material which they must wear sometimes for many hours and is unhygienic. Male cabin crew wear socks which are warmer and more hygienic when it is warmer or over long periods of time (if they are cotton for example) than nylon tights or pop socks.

The shirt (blouse) worn by female cabin crew is designed with three holes (petal shaped) above the left breast area. This exposes skin just above the left breast. It is humiliating and demeaning for Aer Lingus to enforce an appearance code that reinforces sexist and sexual stereotypes of lack of seriousness and ineffectuality in a workplace that is equally physically demanding of men and women.

Female cabin crew are issued with a handbag whilst male cabin crew are issued with a satchel. The satchel is practical and fit for purpose. This is why it was issued so that male cabin crew could carry personal items that they need to be at hand. The handbag issued to female cabin crew is decorative and impractical. It is much smaller than the satchel and only closes in the centre. The partitions on either side do not close at all. It again reinforces an outdated stereotype of feminine appearance and sacrifices practicality for that image. It is not fit for purpose.

There has been some recognition by Aer Lingus that the appearance standards required of female cabin crew are no longer acceptable. In a press release in or around 7th March 2019, Aer Lingus stated that it no longer required female cabin crew to wear make-up. This was reported in The Times (UK) as “Aer Lingus staff are being liberated from “trolly dolly” beauty standards after the airline ditched a rule obliging its female crew to wear make-up at work”. At the same time, with the appearance of a new uniform, it was announced that female cabin crew were allowed to wear trousers whilst before they had to be specifically requested. Aer Lingus still perpetuates the “trolly dolly” image of its female cabin crew with the current uniform and accessories.

The Complainant had a meeting with GM, her then team manager on 30th October 2019 to discuss various matters including the new uniform but nothing of assistance arose from the meeting.

Relevant Statutory Provision and Legal Principles

The Complainant contends that Aer Lingus discriminates against her on the grounds of gender in relation to her conditions of employment in terms of the uniform that she is obliged to wear as a female member of cabin crew as opposed to the uniform worn by male members of cabin crew.

Discrimination in accordance with the Act is set out in section 6 and states:

6. (1) for the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where

(a) 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) (in this Act referred to as the “discriminatory grounds”) which –

(1) exists

(2) existed but no longer exists

(3) may exist in the future

(4) is imputed to the person concerned

(b) a person who is associated with another person –

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) constitute discrimination

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are –

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”) ..

Section 8 (1) (b) of the Act states that an employer shall not discriminate against an employee or prospective employee in relation to conditions of employment.

Section 85A of the Act sets out the burden of proof that applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. Where such a prima facie case has been established then the onus shifts to the Respondent to rebut the inference of discrimination raised. The respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.

It is accepted that there can of course be differences in the uniforms that male and female cabin crew must wear and that these reflect societal norms in gender stereotyping to an extent. However, where the differences in uniform result in a significant loss of practicality and/or comfort and/or enforced outdated gender stereotypes that result in the sexualisation of female cabin crew and/or making female cabin crew appear subordinate and/or less robust and/or professional in the execution of their duties than male cabin crew, this means that female cabin crew are treated less favourably than male cabin crew without reasonable justification.

This is also in breach of the Complainant’s rights under the European Convention of Human Rights, particularly the Complainant’s freedom of expression (under Article 10 of the ECHR) and in terms of obliging female cabin crew to conform to outdated stereotyping (Article 14 of the ECHR).

The Complainant’s conditions of employment are less favourable than male cabin crew on the basis of her gender. This is without reasonable or proportionate excuse.

Conclusion

It is the Complainant’s respectful submission that she has demonstrated a prima facie case of discrimination on the grounds of gender.

The Complainant seeks an order compelling her equal treatment in the provision of an equally practical uniform and accessories.

Summary of Respondent’s Case:

Introduction:

The Complainant is a permanent employee of Aer Lingus Limited (“Aer Lingus”). She commenced her employment with Aer Lingus in February 1991 and took up the position of cabin crew member in February 1995. The Complainant is currently Cabin Service Manager and works part time (5 days per fortnight, or 18.84 hours per week).

In a Complaint Form submitted on 30 September 2020, bearing complaint reference number CA-00040189 The Complainant complains that her salary was reduced without consent, giving rise to a claim under section 6 of the Payment of Wages Act, 1991 (“PWA”). The date of the reduction is stated to be 30 March 2020. This will be referenced throughout as the “Payment of Wages Claim”.

In a Complaint Form submitted on 28 October 2020, bearing complaint reference number CA-00040656 the Complainant alleges that she has been discriminated against with respect to her conditions of employment, on grounds of gender, contrary to the Employment Equality Acts 1998 - 2015. The most recent date of discrimination is stated as being 23 October 2020. On the basis of the information provided in her updated submission dated 25 March 2022, it appears that the Complainant claims that female cabin crew are treated less favourably than male cabin crew in terms of how the cabin crew uniform applies to both. This will be referenced throughout as the “Employment Equality Claim”.

On 7 January 2021, the Complainant’s representatives wrote to the WRC raising various “legacy” matters in respect of the claim. The Complainant’s position in respect of the complaint has since been reformulated and is set out in updated submissions dated 25 March 2022. We are operating on the basis that the latter submissions are those intended to be relied upon the Complainant.

The Payment of Wages Claim must fail, as the existence of a global pandemic with unprecedented and very significant adverse effects on air travel leads to an implied term entitling an airline to reduce hours of work consistent with its very limited demand and lack of work for its staff. This implied term facilitated the temporary reduction in hours to maintain direct employment and to reduce the need for lay-offs and involuntary redundancies. It is noted that, the Complainant’s pay was consistently more in percentage terms than the level of work performed by her over the relevant roster period. For example, during the period 1 April 2020 to 30 June 2020, she attended two training days but was not otherwise required to work by her employer due to an absence of flying, during which time however, she was maintained on a 50% working hours pattern and in fact received more pay than this in percentage terms.

Aer Lingus, in implementing pay reductions across the business, has at all times tried to maintain direct employment where possible and to avoid large numbers of unpaid lay-offs and/or involuntary severance.

The claim under the Employment Equality Acts is statute barred. The Complainant’s WRC Complaint Form was submitted more than 6 months after the date of the alleged infraction. The claim form was submitted on 28 October 2020. The current (and new) uniform was formally launched in January 2020, following a two year design and trial process, focus groups with internal stakeholders and consultation with FORSA and individual one to one fitting which took place from June to September 2019. This uniform has been worn by all Aer Lingus cabin crew including the Complainant since 10 February 2020, more than eight months before the Complainant submitted the WRC claim.

Without prejudice to the foregoing, there is absolutely no basis on which it can be contended that Ms Barry has been discriminated against on grounds of gender.

BACKGROUND

The primary representative trade union for cabin crew for collective bargaining purposes is FORSA – a small number of cabin crew are separately represented by SIPTU. FORSA’s engagement with Aer Lingus (through collective bargaining) has led to a number of collective agreements. The Complainant is a member of the Forsa cabin crew committee in Aer Lingus although not represented by the trade union in this claim.

As a direct response to Covid-19 the Company was forced to implement temporary hours and salary changes in March 2020 not only to Ms Barry or cabin crew generally, but across the board, impacting everyone in Aer Lingus at every grade and level in the organisation. These changes were anticipated to be short-term and temporary in nature for an initial 8 week period until 31 May 2020 to allow the Company to review how the Covid19 situation might evolve and in the hope of restoring a meaningful level of flying in late summer 2020.

As the pandemic crisis evolved, these changes were deemed necessary and continued to apply save for certain staff in business / safety critical and training roles who were required to be rostered to work more than 50% hours. Those employees in this exceptional cohort were paid for their hours worked during this time.

It must be noted that Ms Barry is one of two Aer Lingus employees out of a total headcount of more than 4000 who has challenged the temporary changes to her hours and pay in a third-party hearing.

Impact of Covid-19

The Covid19 pandemic has had an unprecedented global impact on air travel and on the aviation industry generally. The impact of the pandemic and the resulting travel restrictions imposed in Ireland and in other countries reduced Aer Lingus’ flying activity in 2020 by greater than 90% year-on-year when compared with 2019. The Company has experienced, and continues to experience, the most difficult and challenging two plus years in the history of Aer Lingus. For much of the period since March 2020, the Company’s operations have been at or below 20% of normal levels.

The Irish Government banned all non-essential international travel in response to the Covid19 pandemic, like many other states worldwide. This had the net effect of effectively grounding the vast majority of flights into / out of Ireland. A significant amount of the flying activity that did take place in 2020 and to July 2021 when restrictions on international travel were lifted, was cargo-led and/or was for the express purpose of the collection of PPE for the Irish Government. It is important to note that of those flights that took place during this time, the passenger loads have been extremely low sometimes in low single figures.

Unfortunately, the continued lack of certainty caused by Covid-19, coupled with the ongoing national restrictions and public health measures both in Ireland and in other countries negatively impacted all forward bookings and projected travel activity in both 2020 and for the first half of 2021. This in turn led to a very significant deterioration in revenues as the anticipated levels of forward bookings did not materialise during this time.

Aer Lingus has reported operating losses of €361m in 2020 and a further operating loss of €347m for the year to the end of December 2021. The Company have incurred significant borrowings in response to these financial challenges. The recent example of the Omicron variant resulted in reinstatement of travel restrictions in Ireland and key Aer Lingus markets which again had a material impact on customer confidence to travel and combined with the historic winter seasonality issues means that Q1 2022 has been challenging for the Company.

It has been Aer Lingus’ policy during this unprecedented period since March 2020 to avoid implementing redundancies and extended layoffs where possible with a view to maintaining employees on the payroll (albeit with reduced working hours and reduced pay).

CLAIM UNDER S.6 OF THE PAYMENT OF WAGES ACT 1992 (“PWA”)

In order to consider the claim that Aer Lingus has reduced her pay without consent giving rise to a claim under s.6 of the PWA, it is necessary to set out in some detail the background to the pay reductions which took place at Aer Lingus.The net effect of this severe reduction in flying activity since March 2020 necessitated a review of Aer Lingus’ resourcing requirements. For the vast majority of Aer Lingus employees in operational roles (such as pilots, cabin crew, guest services and ground operations staff) the requirement for their services has been greatly diminished. As flying activity was reduced by greater than 90% there has been little or no work for many in these operational roles.

In Dublin, whilst operational staff were notionally rostered and paid at 50% of their underlying contract initially at the end of March until mid-June 2020, the reality has been that the work requirement was significantly less than this as can be seen from the Complainant’s own rosters from the relevant period from 26 March to 5 November 2020 where she has had very little flying – a total of 8 flying duty days with some training days in addition. With effect from 21 June 2020, operational employees had their short-time arrangements further reduced on a temporary basis to 30% of their underlying contract.

For all those on operational rosters, Aer Lingus assigned mandatory and recurrent training (where such training was available and feasible), Aer Lingus have allocated reserve/standby duties and Aer Lingus have allocated accrued annual leave days. It must however be noted that in rostering the reserve/standby duties it was anticipated that in the vast majority of cases the employees would be unlikely to be called into work for a duty as there was simply no flying taking place.

Communicating Reduction in Hours and Pay to the Complainant.

There have been a considerable number of internal communications to all employees throughout the Covid19 crisis on an almost weekly basis since March 2020 with a view to keeping all Aer Lingus’ staff updated. On 16 and 19 March 2020, company-wide announcements were issued to all staff advising of the impact of Covid 19 and the required measures to be taken across all staff groups to include temporary reductions in hours and pay.

On 6 April 2020, Aer Lingus wrote to the Complainant (and all other employees across the Company), to confirm to her what had been announced on 19 March and specifically how it would relate to her individual work pattern. The letter confirmed that Aer Lingus were unable to maintain her contractual hours and deemed it necessary to temporarily place her on short time by reducing her normal working hours by 50% for the month of April 2020 (from Monday 30 March to Sun 26 April 2020 inclusive). On the same day, the Complainant emailed Mr Brian Bowden (Chief People Officer) querying the interaction between the pay change and social welfare and noting as follows:

“Understandably on 19th March, Aer Lingus communicated to us that our pay was being reduced by 50%. We all felt this was fair and manageable in the short term”.

Ms Sharon Morris (Employee Relations Manager) replied to this email on 6 April 2020 answering the Complainant’s query. On 7 April 2020 the Complainant emailed Ms Morris taking issue with the communication of the pay changes and noting:

I have written already below that staff bought into these temporary measures as we felt it was fair, that we were being communicated with honestly and transparently and that the pain of it was inevitable and we wanted to do our part. However, I believe the pain of not having the correct information and having the rules change without fully understanding, will be a much greater pain for us to bear. URGENT, URGENT communication from the Executive Team is needed to restore the goodwill of our colleagues in this matter.

Ms Morris replied to this email on 7 April 2020, explaining the changes to pay further. On 9 April 2020, the Complainant emailed Ms Morris again focusing on the communication of the changes:

“Without labouring things and as tone can be misconstrued in an email, my aim was to communicate the mood of crew… that a large proportion of this work force do not sit at a desk and do not read company notices hence being creative in company communications is something to think about. There are even tougher times ahead and having everyone pulling together is what I want…. A simple example, a video explaining in simple terms the reasons behind the decisions made on pay…. Being careful about how things are worded is important for those operational staff not used to business language and the like.”

Ms Morris replied on 9 April 2020, thanking the Complainant for her feedback which she said would be brought to the wider HR and Communications team.

In April 2020, the Complainant was informed that the temporary reduction in normal working hours by 50% and corresponding reduction in pay would continue for the month of May. On 3 June 2020, Aer Lingus again wrote to the Complainant informing her that it was necessary to temporarily further reduce the short-time working arrangement by reducing her normal working hours to 30% of her contractual hours from 21 June 2020 until 29 August 2020 inclusive. On 24 August 2020, Aer Lingus wrote to Ms Barry informing her that the temporary short-time work arrangement of 30% of underlying hours and pay would continue.

On 17 September 2020 the Complainant wrote to Ms Carmel Walsh (Director of HR Operations), Sean Doyle (CEO) and Mr Bowden stating that her salary had been:

reduced three times without coming to [her] for agreement, 1st time from 100% to 50% on 1 April. 2nd time from 50% to 30% on 26 June. 3rd time on 1 Sept when Aer Lingus stopped paying the top up … is this legal?

Ms Morris replied on 22 September 2020 as follows:

The company placed employees on temporary short-time working arrangements, whereby your underlying contractual working hours were reduced to 50% from the 29th March and the subsequently to 30% from 21st June as a direct result of the current business conditions, the ongoing operational uncertainty arising from the Covid19 pandemic and the effect of related travel restrictions. This decision to temporarily place employees on short time arose in the context of an operating schedule which has been in the order of an average 5% to 20% of operating schedule for the corresponding period in 2019 during the period. In light of the continuing impact of Covid 19 on our business and general uncertainty regarding international travel, we are unable to maintain your contracted hours of employment at this time. This is a short-term measure deemed necessary to be able to continue your direct employment with Aer Lingus in circumstances where we are unable to maintain your contractual hours and as alternative to unpaid lay-off and/or the termination of your employment.

The 3rd reduction to which you refer, was not in fact a reduction, rather it was a change in the operation of the subsidy schemes from the TWSS to the EWSS. From the 1st September, employees get paid for what they actually work as distinct from being paid a subsidy payment and a top up (where applicable). This was a change to the subsidy scheme and not a change implemented by Aer Lingus. We have provided detailed communications about the changes to the subsidy schemes and what the changes means for employees, the information in relation to same is available on the intranet.

The reduction in working hours that you have referred to as detailed above have been applied to all operational employees. You have been subject to reduction to working hours in the same manner as all of your Aer Lingus colleagues in your role / grade. As you have already been advised, this temporary short-time reduced hours work arrangement will be kept under ongoing review and may be subject to further change based on business need and ongoing work requirements which will be notified to you.

On 30 September 2020, the Complainant emailed Ms Doyle, Mr Bowden and Mr Walsh as follows:

I note that the majority of Pilots are on 50% salary. Indeed, a Pilot on a similar part-time pattern is on 50% of his full-time salary whilst I am on 15%.

Is this legal?

Ms Morris replied on 30 September 2020 as follows:

“As you are aware, given that the collective agreement reached with ICTU was not accepted by our employees… You have referenced the working hours of pilots. Pilots working hours are based on a collective agreement, which was agreed with and accepted by pilots.”

On 6 October 2020 Ms Barry was informed that her hours of work would be increased to 50% of her normal working hours with effect from 27 September 2020.

In passing and noting that it postdates the date of the complaint form, with effect from 8 November 2020, cabin crew were informed that their pay would be temporarily increased to 60% from 8 November to 31 January 2020 in response to the increases to the Employment Wage Subsidy Scheme. Employees were informed that they would be rostered to work a pattern of 60% and are expected to be available to work as required by Aer Lingus to 60% of their normal working hours during this time. For completeness, it should be noted that Ms. Barry’s rostered hours and pay have increased in line with operational requirements in 2021 to 100% with effect from 6 December 2021.

The Complainant’s roster demonstrates that she worked 16 days in an 8 month period from 30 March 2020 to 5 November 2020 (to include training and special duty days), far below the % hours and pay that were maintained for her during the relevant times.

Action Taken by Aer Lingus

In responding to this unprecedented Covid-19 crisis and reduced business activity of up to 95% the aim of Aer Lingus at all times has been to try and maintain direct employment where possible and to avoid large numbers of unpaid lay-offs and/or involuntary severance whilst responding to the significant shortfall in anticipated revenues and the resulting cost challenges to the business.

As a consequence, Aer Lingus has utilised a range of workforce measures to try and achieve this aim of maintaining direct employment whilst having no work for the vast majority of Aer Lingus staff for an extended period of time in circumstances where the Covid19 situation has remained fluid and uncertain with no line of sight on when a full restoration of flying might take place.

Aer Lingus in seeking to maintain direct employment where possible sought to balance between:

(a) seeking to retain as many staff as possible for when Aer Lingus emerged from this emergency period;

(b) safeguarding the financial position of the business;

(c) resourcing both the proposed remaining operational schedule but also the additional activities that arise in responding to the crisis; and

(d) providing staff with certainty on a level of pay and working hours

The following specific measures have been taken since March 2020:

a) Cessation of all recruitment.

b) Expiry of FTC and specified purpose contracts

c) Non commencement of new hires – withdrawal of offers of employment

d) Suspension of training contracts

e) Unpaid leave

f) Temporary lay-offs / Winter lay-offs

g) Part-time arrangements

h) Utilisation of Wage subsidies

i) Extended Career Breaks for cabin crew.

j) Voluntary Severance Programmes in Support, Cabin Crew (Inflight Services) and Line Maintenance;

k) Closure of the Shannon cabin crew base

l) Postponed the recall of seasonal cabin crew for the summer 2021 season

m) Allocation of mandatory and company training

n) Engagement with cabin crew trade union representative on structural change proposals.

Temporary nature of changes

All of the initiatives taken by Aer Lingus to place employees on short time working arrangements and/or other reduced working hours have been and continue to be temporary in nature. The nature of this pandemic and crisis have extended far beyond what was originally contemplated by the vast majority of employers in mid-March 2020. Aer Lingus has kept every initiative and reduced working arrangement under continuing review and where possible, every effort has been made to increase working hours/pay arrangements as soon as has been feasible and where operationally required. This is demonstrated by the pay increases that were notified to the Complainant in November 2020 and December 2021.

Aer Lingus has had continuing engagement with internal stakeholders, having issued regular internal communications both company-wide and in local areas. The Company has engaged with trade union representatives and their national leadership in individual unions and ICTU since the start of the Covid19 crisis in early March 2020. Aer Lingus have engaged directly with staff by way of email and letters relating to their working hours and their pay and have sought advice from the Revenue Commissioners and the Department of Social Protection in relation to the various wage subsidy schemes and social welfare supports available during this time.

The Legal Position of Short-Time and Claims under the PWA

Under the s.11 of the Redundancy Payments Acts 1967-2014, short time occurs where an employee's hours of work or pay are reduced to less than 50% of normal weekly working hours or normal weekly pay. In such cases, the employer must (i) reasonably believe that the situation will not be permanent and (ii) must give employees notice to this effect. The legislation does not stipulate a minimum period of notice. Exceptional circumstances, such as the COVID-19 pandemic, clearly justify a short notice period. The employer's reasonable belief regarding the temporary nature of the period of lay-off or short-time will be construed in accordance with the circumstances prevailing when the decision is made.

An employer has an implied right to reduce pay in accordance with an established custom and practice of laying-off employees without pay (in circumstances of economic downturn or other periods of financial hardship, for instance). It is hard to envisage any set of circumstances which had an adverse effect on the airline business than those brought about by Covid-19. The collapse in air travel brought about by the existence of the pandemic and multi government interventions both in respect of those leaving countries and those arriving in countries must lead to a reasonable interpretation that the contract of employment can either be temporarily suspended or reduced. The implied term does not just arrive in custom and practice because there is of course no custom in which one can draw for a comparable set of factors.

This implied right has been confirmed in decisions relating to similar claims brought under the PWA. The decisions outlined below demonstrate that even where no contractual right to impose lay-off exists and there is no evidence of custom and practice in the employment concerned, the employer may still be permitted to lay off employees without pay. In an Employee Vs Employer PW674/2012,the adjudication officer noted:

At common law there is no general right to lay- off without pay. However, it has always been accepted that there are some limited circumstances wherein there will be such a right. This right has been implied in the past in cases such as Browning and Others V Crumlin Valley Collieries (1926) 1 KB 698. In that case the Court found that there was an implied term that a mine owner could lay off miners without pay while repairs are effected through no fault of the mine owners. Furthermore, it is a well-established practice in this jurisdiction that lay-off without pay is operable where an employer can demonstrate it has been the custom and practise of the trade and/or workplace and that the custom must be reasonable, certain and notorious.

A claim taken under s.3 of the PWA is a claim for an “unlawful deduction”. The facts outlined above demonstrate that no unlawful deduction has been made, rather the Complainant’s salary has temporarily been reduced lawfully. Furthermore, at all times, the Complainant has received at a minimum the pay properly payable to her in the context of/relative to the hours she was required to work per the working arrangements in place at any material time. In fact the appendices demonstrate that the Complainant received pay in excess of the rostered work pattern throughout the relevant period.

If Aer Lingus did not take the steps taken, there is a strong likelihood that it would have been forced to make a large number of its cabin crew employees compulsorily redundant and/or to effect widespread involuntary lay-offs of its cabin crew based on the low flying levels. It has been Aer Lingus’ policy to avoid implementing redundancies and layoffs with a view to maintaining everyone on the payroll (albeit for reduced working hours and reduced pay) thus ensuring that the airline was best placed to have the required resources ready to increase the operational flying levels as soon as this was possible.

The Complainant effectively acquiesced to the changes in her emails to Aer Lingus in which she stated “understandably on 19th March, Aer Lingus communicated to us that our pay was being reduced by 50%. We all felt this was fair and manageable in the short term” and “we felt it was fair”.

Furthermore, the Complainant’s cabin crew contract of employment provides for “Compulsory Unpaid Leave”, a clause which allows Aer Lingus to put her on unpaid leave for six months during the first 5 years of employment. While this Clause has expired, it demonstrates that she was on notice from the time her employment with Aer Lingus of possible changes to her salary and working hours. A similar clause can be seen in her original 1991 contract of employment.

EMPLOYMENT EQUALITY CLAIM - TIME BARRED

It is submitted that the Employment Equality claim which appears to relate wholly to the “uniform and accessories” of cabin crew, is time barred.

Section 41 of the Workplace Relations Act 2015 deals with the applicable time limit for the categories of complaints which the Complainant has brought.

Section 41(6) provides that a complaint must be brought within six months beginning on the date of the contravention to which the complaint relates.

Section 41(8) provides that this time limit can be extended in certain circumstances, but in no circumstances may it be extended by more than a further six months. Therefore, the maximum allowable period for a complaint to be brought from contravention is 12 months (assuming that the Complainant were able to demonstrate “reasonable cause” for an extension from the six month time period, which Aer Lingus disputes). In any event, the burden of proof lies with the Complainant to establish “reasonable cause".

The WRC Complaint Form was submitted more than 6 months after the date of the alleged infraction. The claim form was submitted on 28 October 2020. The current (and new) uniform was launched in January 2020, following a two year design and trial process, consultation with FORSA and individual one to one fittings which took place from June to September 2019. This uniform has been worn by cabin crew including the Complainant since 10 February 2020, more than eight months before the Complainant submitted the WRC claim.

THE COMPLAINANT HAS NOT MET THE “REASONABLE CAUSE” THRESHOLD REQUIRED OF HER:

It is the Aer Lingus’s position that the Complainant has failed to demonstrate “reasonable cause” for her failure to submit her complaint within the statutorily prescribed timeframe such as to justify the extension of time for lodgement of her claims under the 2015 Act.

In the Complaint Form for claim under the Employment Equality Acts, the Complainant states:

Any delay in filing these complaints is due to the complexity of the issues at hand. I have spent months trying to understand what has been done and the outcome of my investigations are above.”

Aer Lingus respectfully submits that the reason advanced does not amount to "reasonable cause" which would have prevented him from submitting his complaints in time. The following principles have been established by the WRC and Labour Court in relation to the “reasonable cause” threshold which the Complainant must satisfy (noting that prior to the 2015 Act the "reasonable cause" threshold applied to other employment rights legislation including the Employment Equality Acts.

PRINCIPLE: THE BURDEN OF PROOF RESTS WITH THE COMPLAINANT

The Labour Court has consistently held that the burden of proof in relation to proving “reasonable cause” rests on the complainant. In Department of

Finance v IMPACT ([2005] 16 ELR 6, the Labour Court held, that in considering if “reasonable cause” exists, it is for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. Similarly, in A Bank v A Worker (EDA104) the Labour Court held that in order to accede to an application to extend time beyond the six month time limit prescribed by the legislation, the “irreducible minimum requirement” is that a claimant must demonstrate that there were reasons which both explained the delay and afforded an excuse for it.

PRINCIPLE: WHETHER A “REASONABLY DILIGENT PERSON” WOULD HAVE DELAYED IN PURSUING THE CLAIM IN THE CIRCUMSTANCES

In considering an application under section 77(5)(b) of the Employment Equality Acts 1977-2015 in Abbott Vascular v Baggott (EET121) the Labour Court questioned whether a “reasonably diligent person, having the same state of knowledge of the material facts as the complainant, would have delayed in pursuing a claim under the Act for the reasons advanced by the complainant”.

It is submitted that no “reasonably diligent person” in the Complainant’s position would have so delayed in lodging her complaint. It is Aer Lingus’s position that there was no excuse for such a delay.

PRINCIPLE: EXTENSIONS OF TIME SHOULD NOT BE GRANTED IN CIRCUMSTANCES WHERE A CLAIMANT IS NOT PREVENTED FROM MAKING A CLAIM IN TIME, BUT RATHER CHOOSES NOT TO DO SO

In Sword Risk Services Limited –v- Seamus O’Dwyer (DWT1410) the Labour Court was concerned with the interpretation of the equivalent “reasonable cause” threshold which a claimant must satisfy to be granted a time extension under the Organisation of Working Time Act 1997. The Court confirmed that such extensions of time for making a claim should not be granted in circumstances where a claimant is not actually prevented from making his/her claim in a timely manner, but rather chooses not to do so.

It is clear that the Complainant was not prevented from bringing the claim earlier, as she filed the Payment of Wages claim separately on 30 September 2020 and raised the question of her pay in the context of pilots’ pay on the same day in an email to Ms Morris as outlined above.

EMPLOYMENT EQUALITY CLAIM

The Employment Equality Acts prohibit discrimination on the basis of any of the nine discriminatory grounds. Part III governs non-discrimination on the ground of gender.

In order to establish her case, the onus is on Ms Barry to establish a prima facie case of treatment contrary to the Employment Equality Acts on the ground of gender.

No Discrimination

Without prejudice to the foregoing, Aer Lingus denies that it has discriminated against the Complainant on the ground of gender or at all.

In considering this Claim, the WRC must consider whether:

(a) The Complainant has established a presumption that Aer Lingus has treated her less favourably than an appropriate comparator; and

Response to the Employment Equality Claim

The matters raised by the Complainant in relation to the uniform have not been raised internally whatsoever, whether as an individual grievance or collective complaint by the Complainant or her union colleagues since the launch of the uniform in February 2020. As a union representative herself, it is respectfully suggested that the Complainant is well placed to raise any issues of concern applicable to her role as cabin crew through the appropriate fora for engagement with management.

The Aer Lingus cabin crew and ground operations uniform was designed by Louise Kennedy, well known and globally established Irish fashion designer. This uniform is worn by thousands of Aer Lingus colleagues across the operational bases and by the crew who operate the Aer Lingus Regional flights. As part of the updated uniform design, Louise Kennedy was asked to modernise and refresh all garment designs while retaining a distinctive look for Aer Lingus. Aer Lingus sought a stronger link between the male and female uniform, as a result of which the female range now includes a trouser and dress option. To help inform the design process Aer Lingus commissioned an extensive research project in 2018 with the four key stakeholder groups – staff, guests, Aer Lingus and Louise Kennedy. As part of this research extensive focus groups took were conducted with cabin crew members of all grades and ground operations staff across the Company in May 2018 who wished to attend the focus group meetings. These sessions were open to all who wished to attend. The stakeholder groups were asked to identify issues and concerns with the uniform and to suggest improvements. Ms Kennedy did her own research by talking to Aer Lingus staff when she was flying with Aer Lingus, as she was determined to address areas of concern around comfort and quality (particularly for items such as overcoats and shoes).

The current uniform was formally launched (and worn) from 10 February 2020 and is worn by employees (both male and female) in customer facing roles to include cabin crew and in ground operations (customer services roles to include check in, boarding etc).

Aer Lingus appointed a designated project manager to oversee the new uniform project. There was extensive consultation with members of cabin crew and ground operations in this process.

In late 2018, volunteers from these departments were sought and selected to test prototypes of the new uniform design in a real working environment.

It was determined to be important for the project team to understand how the fabrics and various garments performed in the live environment, considering variables such as cabin temperature, how bodies react in the garments at altitude, manoeuvring equipment in the galley, etc. Specifically, the project team required feedback on how comfortable and flexible the fabrics were, how the sizing profile works for the trial participants and any problems or negatives with the garments.

As part of this process, in May 2019 a selection of employees from cabin crew and ground operations of both genders participated in a sequence of confidential “wearer trials” over a four week period across long-haul and short-haul duties across 26 sectors (where they operated supernumerary to the operating crew) to obtain feedback on comfort/ease of wear/flexibility in the work environment. Participants in the trials were invited to complete questionnaires on certain aspects of the uniform and the features being tested and were encouraged to provide their feedback. They were required to move around the aircraft environment and to engage in some work activities on board to simulate a normal working duty in the uniform items.

Presentations took place to show Forsa the new uniform in 2019. Once the design process was finalised, every eligible staff member was invited to attend a one-to-one personalised fitting with an expert fitter offsite to arrange the order of their new uniform items. These fittings commenced in June 2019 and continued until September 2019.

Each staff member had the choice of several different options within each uniform type allowing the uniform to be personalised to the individual. In all, 25 garments have been designed giving crew and ground staff a greater variety of styles from which to choose.

The new uniform was formally launched in January 2020 to all Aer Lingus employees and the uniform was worn by Aer Lingus from 10 February 2020. Notably, the uniform standards document provides a trousers option for female cabin crew and recognises that the cardigan can be worn under jacket in cold weather therefore addressing the issues raised by the Complainant in relation to sleeve length.

CONCLUSION

The claim under s.6 of the PWA must fail, as what is at issue is a pay reduction (rather than an “unlawful deduction”, which was lawfully implemented on the basis of established custom and practice. Furthermore, at all times the Complainant received at a minimum all pay properly payable to her in the context of the reduced working hour arrangement which applied to her and her grade at any material time.

The Employment Equality Claim is statute barred as it relates to the uniform worn by the Complainant since 10 February 2020. In any event it is submitted that an equality case could not be based on what are no more than design features in a uniform. Noting in particular the extensive consultation with staff, the fact that an individual might dislike an element of the sign does not render it discriminatory.

Without prejudice to the foregoing, the Complainant was not discriminated against whatsoever, on the basis of her gender or otherwise.

Findings and Conclusions: