SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
SOUTH EASTERN HEALTH BOARD
- AND -
MS ANNE HALLINAN
1. Appeal by the Board against Equality Officer's Recommendation No. EE20/1994.
2. The appeal concerns Ms. Anne Hallinan, a Grade II Clerk Typist in the Births, Deaths and Marriages unit of the County Clinic, Clonmel, who alleged that the Board, in upgrading her post from Grade II to Grade III, but by refusing to designate her to same, discriminated against her on grounds of sex, contrary to Section 3 of the Employment Equality Act, 1977, in terms of Section 2 of that Act.
In 1986, Ms. Hallinan sought to have her post regraded and, subsequently, the post was deemed to warrant Grade III status. In November, 1992, Ms. Hallinan wrote to the Health Board requesting designation to the post but, in its response, dated the 9th of December, 1992, the Board refused her request. Ms. Hallinan alleged that the Health Board designates post holders to upgraded posts at Grades IV,V,VI and VII - posts which are predominantly held by men - but not at Grades II and III, posts which are predominantly held by women. On the 3rd of April, 1993, Ms. Hallinan referred the case to the Labour Court under the Employment Equality Act, 1977, and the Labour Court then referred the case to an Equality Officer, for investigation.
The Equality Officer, in his Recommendation, which was issued on the 21st of December, 1994, recommended that Ms. Hallinan be appointed to a Grade III position with effect from the 9th of December, 1992, and that any appropriate shortfall in salary be paid retrospectively to that date. The Equality Officer further recommended that Ms. Hallinan be paid a sum of £500 in the way of compensation. On the 30th of January, 1995, the Board appealed the Equality Officer's Recommendation.
The Court heard the appeal, in Kilkenny, on the 12th of July, 1995. Both parties to the dispute made written submissions to the Court which were expanded upon orally during the course of the hearing.
This is an appeal by the South Eastern Health Board ('the Board') against a Recommendation (No. EE20/1994) of an Equality Officer which recommended (inter alia) that Ms. Anne Hallinan ('the complainant') be appointed to a GradeIII position with effect from 9th December 1992.
In its appeal, the Board alleged
(a) that the reference of the claim had been made outside of the time limit prescribed in Section 19(5) of the Employment Equality Act 1977 ('the Act') in that it arose from a request made by the complainant in 1986 to have her post regraded, and the subsequent regrading of the post;
(b) that the Equality Officer erred in concluding that the lesser number of women occupying certain upgraded posts which were filled by designation was related to their sex or marital status;
(c) that the Equality Officer erred in deciding that the Board's criteria for designation to certain upgraded posts were not 'essential'.
The Court heard the appeal on 12th July 1995 and has taken into account all the submissions which were made to it on behalf of the parties, both during and subsequent to the said hearing.
The Court determines as follows:
(a) the Court is satisfied that while the regrading of the disputed post occurred in 1986, there were continuing efforts thereafter to resolve the question of the complainant's occupancy of the post. The complainant sent a request to the Board for designation to the upgraded post in November 1992, and was sent a letter refusing same dated 9th December 1992. The Court is satisfied that this latter date is the relevant date for Section 19 of the Act. The reference of the dispute to the Labour Court was made on 3rd April 1993, which was within the time limit of six months set down in Section 19(5).
(b) The Equality Officer at paragraph 6.12 had concluded that the Board had imposed a requirement for the designation of staff to upgraded posts, and that this requirement was to be "a member of a grade other than grades II, III or V", or alternatively, to be "a member of grades I, IV, or VI". The Court is satisfied that this conclusion on the part of the Equality Officer was incorrect. It finds that there was no requirement that certain posts be filled by designation, and that in fact designation would only occur when there was no benefit to the Board in holding a competition for the post in question.
The Court finds that the Board would designate to posts in such circumstances as those in which redeployment of staff was not a realistic option, for example in respect of specialist or senior administrative posts, where no other post existed in that employee's town to which the employee could be redeployed. Sometimes an industrial relations agreement will provide that the first filling of a post following regrading will be by designation. However, in this case there was no need for the Board to depart from normal procedures, and there was an open competition for the post from which a panel of candidates was formed. The complainant had failed to be appointed to the panel. She claims, in effect, that she was discriminated against because there was an open competition, and that rather than proceed to an appointment in this way, the Board should have designated her to the upgraded post. The Board, so the claim goes, should have designated her to the post, and by failing to do so, it discriminated against the preponderance of women in certain grades, given that designation had tended to occur more frequently in the case of men.
While designation to upgraded posts may have occurred in relation to more male than female workers of the Board, the Court is satisfied that such occurrence was not related to any requirement which was dependant on or related to the sex or marital status of the worker, but finds that it was related to the employment needs of the organisation at any given time, and was the exception rather than the rule. There are more women at grades II and III in the Board's employment, and the Court accepts the point made by the Board that there are invariably more female applicants for the secretarial grades (grade II in particular) than there are male, and that this is most likely due to the fact that education and training for the skills required in these grades are directed mostly at women. It does not follow that because there is a preponderance of women at a certain grade, then the failure to use designation as an avenue to promotion for them when a job arises above that grade discriminates against one of them. The claimant would have to show that there was indeed a discriminatory requirement and that such requirement affected her adversely because of her sex or could not be justified by objective factors unrelated to discrimination. In this case there were no circumstances which could justify a departure from normal recruitment procedures and the Court is satisfied that the normal procedures were free from discrimination based on sex. The Court is further satisfied that there is no evidence to suggest that designation to posts occurs other that in circumstances which are objectively justifiable.
(c) Since the Court is satisfied that there was no requirement on the complainant which had an adverse effect on her because of an attribute of her sex, the question of whether or not any such requirement was "essential" is irrelevant for the purposes of this appeal.
The Court holds that there was not discrimination against the complainant for the reasons set out above, and upholds the appeal of the Board in this case.
Signed on behalf of the Labour Court
15th July, 1996______________________
Enquiries concerning this Determination should be addressed to MICHAEL KEEGAN, Court Secretary.