DEE976

FULL RECOMMENDATION AEE/96/17 DETERMINATIONNO.DEE976 SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : GALLAHER (DUBLIN) LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Owens Employer Member: Mr Brennan Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal against Equality Officer's Recommendation EE21/96.


BACKGROUND:

2. The case concerns an appeal by 3 female members of the Union. The Company operates an annual bonus scheme directly related to profits and paid as a percentage of annual salary. The latest payment is in the order of 20%. There are certain conditions attached to qualifying for the bonus, one of which is attendance i.e. the first 3 weeks of any long term absence is excluded from the calculation in the case of illness and maternity leave. It is the application of the 3 week exclusion period for maternity leave which has given rise to the case, as the 3 workers believe that they are being discriminated against as women because maternity leave cannot apply to their male colleagues.

The full background to the case can be found in EP8/96. The Equality officer's recommendation is as follows:-


"I find that this claim relates to remuneration and it is, therefore ,excluded from the application of the Employment Equality Act, 1977, by virtue of Section 3(1) of that Act."


The Union appealed the recommendation on 27th of November, 1996 in accordance with Section 21 of the Employment Equality Act, 1977. A Labour Court hearing took place on 12th June, 1997.


The Union believes that the case could fall within the ambit of Sections 2(a), 2(c), 3(2) and 3(4) of the 1977 Employment Equality Act, which deal with a person being treated less favourably because of their sex or because of conditions of employment. Maternity leave is exclusively female and, therefore, any penalty in relation to same that is used to influence the reckonable period for any benefit is discriminating.

The Company's case is that the Employment Equality Act, 1977, does not cover disputes in relation to remuneration. Section 3(1), of the Act states that an employer cannot discriminate against an employee in relation to condition of employment "other than remuneration....". The Company contends that the bonus in question is remuneration.





DETERMINATION:

In Determination No. DEP974 the Court has found that the subject-matter of this appeal concerns 'remuneration', and therefore falls to be dealt with under the Anti-Discrimination (Pay) Act, 1974.

The Court, accordingly rejects the appeal that it be considered under the 1977 Employment Equality Act.




Signed on behalf of the Labour Court



Evelyn Owens
29th July, 1997______________________
C O'N/U.S.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.