FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: AER LINGUS (REPRESENTED BY TOM MALLON B.L., INSTRUCTED BY ARTHUR COX SOLICITORS) - AND - MS ELIZABETH BARRY (REPRESENTED BY LEANORA FRAWLEY B.L., INSTRUCTED BY KOD LYONS SOLICITORS) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S).ADJ-00029679 CA-00040656-001
DETERMINATION: The Adjudication Officer held that the complaint was not well founded. This complaint is linked to PWD2318. Background. The Complainant submits that she is being discriminated against on the ground of gender in respect of the following elements of the uniform she is required to wear, 1) the woman’s jacket, 2) the requirement to wear high or medium heeled shoes outside of the aircraft 3) the requirement to wear pop socks,4) the design of the female blouse 5) that female staff are provided with handbags and male staff are provide with satchels which are much more practical. The Respondent disputes that the uniform or any element of it is discriminatory. The complaint was lodged with the WRC on the 28thOctober 2020. Therefore, the cognisable period for the purpose of the Act is 29thApril 2020 to 28thOctober 2020. It was accepted by the parties that the Complainant was working and wearing the uniform during this period of time. Preliminary issue At the commencement of the hearing the Court noted that the WRC complaint form provided to the Court did not contain a complaint in respect of the uniform issues which were the basis of the complaint before the Court and sought to establish when that complaint came into being. The Court noted that the complaint addressed by the Adjudication Officer was in respect of the uniform issues only, and the decision of the Adjudication Officer was in respect of the uniform issues only. The Court advised the parties that it would hear the substantive case and allow the parties time to make written submissions on the preliminary issue. The Court subsequently received submissions on that issue from both parties. Ms Frawley BL on behalf of the Complainant submitted that following the submission of the complaint form on 23th October 2020 the Complainants representative forwarded a summary of her complaint on 7 January 2021 to the WRC, which included references to issues relating to the uniform. On the 9thMarch 2022 a booklet was sent to the WRC containing reference to the uniform, and on 25thMarch 2022 written submissions were sent to the WRC and expressly confirmed that the issues had now narrowed to uniform only . This was all done in advance of the Adjudication Officer hearing the case on the 11thMay 2022. The Respondent would have received copies of all the above documents. The Adjudication Officer Decision was only in respect of the uniform issues. Ms Frawley submitted that as held by Mc Kechnie J inCounty Louth Vocational Educational Committee v Equality Tribunal and Brannigan (Notice party)IESC 40 there was nothing “sacrosanct” about the form and other forms of written communications could be availed off to notify the WRC of a complaint. In the case to hand the complaint was reformatted following a case management hearing on the 11thMarch 2022. Amended submissions relating only to the uniform issues was submitted to the Adjudication Officer on the 25thMarch 2022, well in advance of the hearing on the 11thMay 2022. No issue was raised by the Respondent at the first instance hearing in relation to any unfairness or unlawfulness arising from the reformatting of the complaint. Ms Frawley BL went on to address the jurisdiction of the Court as set out in legislation, to hear an appeal of a decision of an Adjudication Officer. It was her submission that in respect of the case before the Court, the decision is in respect of the uniform issues and therefore properly before the Court. Mr Mallon BL on behalf of the Respondent submitted that within the time frame set out by the Complainant in their additional submission, there was correspondence from the Respondent that they had not addressed. It was his submission that the letter of 7thJanuary 2021, focussed on additional clients with similar complaints. While that letter at point 16 and 17 addressed elements of the uniform issues, it did not address all the elements relating to the uniform that are being raised before the Court. On the 15thJanuary 2022 and the 25thJanuary 2022 the Respondents wrote to the Complainants representative seeking clarity, as they had not received any additional complaint forms. This correspondence was never replied to. On the 11thMarch 2022 a remote hearing took place and the Adjudication Officer noted that he had the previous afternoon received a submission containing 190 pages, and raised concerns about proceeding, on the basis that he had not had the opportunity to read that submission. The hearing time was used for case management in the course of which the Complainant agreed to refine her submission and resubmit same by 25thMarch 2022. The submission sent to the Adjudication Officer on the 25thMarch 2022 was the refined submission and was limited to the issues the Complainant has in respect of the uniform. Mr Mallon BL submitted that it is accepted that at the hearing on the 11thMay 2022 the only issues addressed concerned the uniform matters and procedural issues regarding time limits. Mr Mallon BL also referencedCounty Louth Vocational Educational Committee v Equality Tribunal and Branniganand noted that while the form may not be “sacrosanct” Mc Kechnie J. also held that the complaint investigated by the Adjudication Officer and subsequently the Labour Court must actually be before the adjudicative body in question for consideration. The Court considered the submissions of both parties on this preliminary issue and the relevant case law opened to it. The Court notes that it is not in dispute between the parties that a case management hearing took place on the 11thMarch 2022 at which point the Complainant was asked to refine her submission and given a time line to submit it, which she complied with. It is accepted that prior to the case management that there was confusion around the nature of the complaint, and that the fact that there were issues with the uniform were only mentioned in passing. However, one of the aims of a case management hearing can be to clarify precisely what the complaint is. In this case the complaint was crystalised in the submission of 25thMarch 2022 and confined to discrimination on gender grounds relating to aspects of the cabin crew uniform. This happened six weeks before the actual hearing of the case by an Adjudication officer. On that basis the Court determines that the complaint in respect of aspects of the uniform was properly before the Adjudication Officer and on appeal is now properly before the Labour Court. Summary of Complainants submission and evidence. Ms Frawley BL for the Complainant submitted that a new uniform was issued to cabin crew on 10thFebruary 2020. The Uniform is compulsory and an important part of the Aer Lingus brand. All cabin crew received new uniforms, however, the uniform classed as the female uniform is less practical and comfortable than the male equivalent and portrays an outdated image of woman. The comparator in this case is a male cabin crew member. The following are the elements of the uniform that the Complainant submits amounts to discrimination. 1) the woman’s jacket has three quarter length sleeves which exposes the wrist and skin on the arms. On a practical level this means a short sleeve blouse must be worn and in cold weather it is not practical to wear a cardigan underneath. The male jacket has normal length sleeves and easily facilitates the wearing of a cardigan underneath. 2) female cabin crew must hear medium or high heel shoes (either two or three inches) when in uniform and outside the aircraft unless they have an up-to-date medical exemption letter which they must carry at all times. Female cabin crew are provided with flat shoes for wearing on board the aircraft. No similar requirement applies to male cabin crew staff. 3) when wearing trousers female cabin crew must wear either pop socks or tights again this does not apply to male cabin crew. 4) the blouse worn by female cabin crew is designed with two holes (petal shaped) above the left breast area and exposes skin. There is no equivalent exposure on the male cabin crew shirt. 5) Female cabin crew are issued with a handbag whilst male cabin crew are issued with a satchel which is much more practical. The Complainant contends that the Respondent 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. Ms Barry in her evidence to the Court stated that she is obliged to carry certain documents with her which do not fit into the handbag which means she has to carry an additional bag. The documents which are required for her to carry out her duties easily fit into the satchel. She is also obliged to carry over night clothes on every flight. The Respondent does provide a kit bag, but it means she has to carry the handbag and the kit bag while male colleagues can fit everything including their overnight clothes into the satchel. Ms Barry stated that she did not request a satchel during the cognisable period, as it was very much recognised that if you’re a female, the uniform you get is the female uniform which includes a handbag. In terms of the shoes, it was her evidence that all female staff receive a pair of flat shoes for wearing on board the aircraft and then have to choose either a medium or high heel shoe which must be worn when in uniform outside of the aircraft. It is not permissible to wear the flat shoes outside of the aircraft. It was the Complainants evidence that she had opted for the high heel. She did not know the purpose of having to wear higher heeled shoes when you left the aircraft. She was aware that there are regulations in relation to the height of heels that can be worn by staff aboard the aircraft and that was why the female cabin crew were supplied with a flat pair of shoes. The Complainant stated that she was aware that you needed a medical certificate to state you couldn’t wear high/medium heels and you had to have the medical certificate with you at all times. The position has changed somewhat as in January 2023 the company posted a notice to state that high heels were not to be worn in the carpark. The Complainant raised an issue in relation to pop socks. It was her evidence that female staff had to wear either tights or pop socks if they opted to wear trousers, while male crew were allowed to wear cotton sock. It was her evidence that she did not believe that the pop socks were safe as in her experience they were slippy. The Complainant stated that because the Jacket has three quarter length sleeves it is not practical, as when you wear a cardigan under it, the sleeves stick out. The male jacket has full length sleeves, so this issue does not arise. It is her understanding that you cannot wear the male jacket with the female uniform. The blouse has a petal design which exposes flesh which she is uncomfortable with. She raised this issue with her manager in January 2019 after the first fitting and she put forward a solution. The manager said he would take it away but never came back to her about it. The Complainant stated that she could not recall if she had followed up on that issue with her manager. Under cross examination led by Mr Mallon BL the Complainant accepted that she never asked if she could wear the male jacket and did not know if other people had made that request. The Complainant confirmed that she had selected the high heel and that she had never looked to switch to the medium heel. It was her evidence that all female staff are provided with the flat shoe for wearing on board the craft but cannot wear them outside the aircraft. It was put to the Complaint that while women are issued with pop socks men are not issued with any socks, the only requirement is that they are dark in colour. The Complainant stated that she was not aware of that. The Complainant accepted that the uniform is common to cabin crew and ground a staff of about 3,000 people in total, and that there were other elements of the uniform that were different between the male and female uniforms. She accepted that the woman’s coat has a hood, but the male coat does not and that there is a forum for dealing with issues relating to the uniform. She also accepted that that the neck scarf is worn to the right the same side as the petal design and that when the cardigan is worn the petal design is covered. Ms Frawley BL submitted that it is accepted that there can be differences in the uniform that male and female cabin crew must wear and that these reflect societal norms in gender stereotyping to an extent. However, in this case the differences impact on the comfort and practicality of the uniform and re-enforces gender stereotypes without any reasonable justification. The aforementioned parts of the uniform are not fit for purpose, they are designed to conform with a stereotyped image of female cabin crew that has little or no relationship with they work they are employed to do. Summary of Respondents submission Mr Mallon BL on behalf of the Respondent submitted that while Ms Barry may not like aspects of the uniform that dislike, cannot be elevated to a discrimination claim. The Respondent denies that it discriminated against Ms Barry on the ground of gender or at all. Ms Myles Manager of operations for Dublin, Cork and Manchester in her evidence to the Court stated that in terms of the new uniform there was a project team who ran a trial of the new uniform and received feedback. There were no issues about practicality or the height of the shoes which were comparable to the shoes worm with the previous uniform. There are regulation around the height of shoes for staff aboard the aircraft both the men and woman’s shoes are 2.5 cm heels which complies with the regulations. The length of the sleeve on the female jacket was never raised as an issue. The Complainant requested a satchel and was provided with one when she requested same, prior to that nobody had asked for a satchel. However, at one stage they ran out of handbags and provided satchels to female staff. They have received requests from staff who wish to wear the other gender uniform and that can be facilitated once they wear the complete uniform. It is not possible to wear part of the male uniform and part of the female uniform as they are not designed to be interchangeable. Under cross examination from Ms Frawley BL, Ms Myles confirmed that it was mandatory at the time for female staff to wear either medium or high heels when leaving the aircraft and prior to boarding the aircraft and then to change into flats on board the aircraft. Ms Myles was unable to give any explanation for why female staff were required to do this and stated that she did not know the purpose or reason for it. She accepted that it was not a functional requirement but believed it to be the industry norm. Ms Myles confirmed that following a review done through Covid, flat shoes outside of the aircraft, are now an option for female staff. In respect of the blouse the cut-out petals are just a design but if the cardigan is worn it covers the design. The male shirt has a design but does not have two cut out pieces like the female blouse. In terms of the jacket the sleeve of the jacket is a flaw in the design, in that it does not readily accommodate the cardigan, but that doesn’t take from the functionality or comfort of the jacket. Mr Mallon BL submitted that the uniform reflected general societal norms. This complaint was about the design of the uniform and dislikes. Mr Mallon opened a number of cases to the Court in support of the Respondent’s contention that the Complainant was not discriminated against within the meaning of section 6 (2) of the Act. The Complainant had failed to establish any discriminatory actions within her complaint and therefore it must fail. Applicable Law Section 6 of the Act states,
In the main the facts in this case are not in dispute between the parties. The Complainant identified five elements in respect of the uniform that she believed constituted discrimination. In the case ofWilliam Peter O’ Byrne v Dunnes Stores [2004] ELR 96 opened to the Court by Mr Mallon BL, the Labour Court stated,
In the instant cases both sexes are required to wear a uniform. The female uniform contains options in respect of a dress, trousers or a skirt. While the Complainant identified five different elements of the uniform, she had issue with, the Court taking on board the fact that it is not required to look at the uniform item by item finds that there are three distinct issues before it. The first issue relates to the provision of a handbag as opposed to a satchel to female cabin crew. In its discussions the Court noted that the mere provision of a handbag as part of a uniform cannot in and off itself be considered discriminatory. In this case the Complainant confirmed that when she requested a satchel, she was provided with one. On that basis the Court determines she was not discriminated against in respect of being provided with a handbag as opposed to a satchel. The second issue relates to the blouse, the jacket and the pop socks which are all uniform items that reflect societal norms. The issues raised by the Complainant about these elements of the uniform are about individual preferences. The Court determines that when taken as part of the uniform as a whole, do not bear unreasonably more heavily on females than their male counterparts and therefore do not constitute discrimination on the gender ground. The final item to be considered is the shoes. The Respondent and /or its witness could offer no basis for requiring female members of staff to wear high/ medium heels prior to boarding and when departing the aircraft. It was accepted that there was no functional basis for this requirement. It was also accepted that if a female wished to wear flat shoes outside the confines of the aircraft, she was required to provide an up-to-date medical certificate and to carry same with her at all times. No such requirement applied to her male counterparts. In circumstances where no justification or functional basis could be adduced for this requirement, the Court determines that this requirement does unreasonably bear more heavily on female staff and is therefore discriminatory. Determination The Court determines that the requirement of the dress code that female staff wear medium or high heeled shoes when not onboard the aircraft constituted unfavourable treatment on the grounds of gender. The Court orders that if it has not already happened that this practise should cease and orders that compensation of €6,000 be paid to the Complainant. The appeal is upheld. The decision of the Adjudication Officer is set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |