SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
CENTRAL STATISTICS OFFICE
DEPARTMENT OF FINANCE
- AND -
(REPRESENTED BY CIVIL AND PUBLIC SERVICE UNION)
Chairman: Mr McGrath
Employer Member: Mr McHenry
Worker Member: Mr Rorke
1. Appeal by the Union against Equality Officer's Recommendation No. EE24/1996 concerning an allegation that the Department of Finance and the Central Statistics Office discriminated against the worker, contrary to the provisions of Section 3 of the Employment Equality Act, 1977 in terms of Section 2 of that Act.
2. The background to this case is set out in the Equality Officer's Recommendation (details with the Court). The Equality Officer in his recommendation, which was issued on the 29th November, 1996, found that the Central Statistics Office and the Department of Finance did not discriminate against the worker contrary to the provisions of the Employment Equality Act, 1977.
The Union appealed the recommendation to the Labour Court on the 8th January, 1997 on the following grounds:-
(1) The Equality Officer erred in law and in fact under Section 2(a) and 2(c) of the Employment Equality Act, 1977.
(2) The Equality Officer erred in law and in fact under Section 3(1) and 3(6) of the Employment Equality Act, 1977.
(3) The Equality Officer erred in law and in fact under the EU Equal Treatment Directive.
(4) The Equality Officer has erred in law and in fact by not applying relevant European Case Law developed by the European Court of Justice to the facts and circumstances of the case.
(5) The Equality Officer in Section 7.3 of his recommendation has erred in law and in fact under Sections 2(a) 2(c) 3(1) 3(6) of the Employment Equality Act 1977 and the EU Equal Treatment Directive by his conclusion that ;
"if discrimination exists, then it is as a result of the claimant's less favourable treatment than those women who did not avail of the additional leave facility".
(6) The Equality Officer in Section 7.4 of his recommendation has erred in law and in fact under Sections 2(a) 2(c) 3(1) 3(6) of the Employment Equality Act 1977 and the EU Equal Treatment Directive by his conclusion that ;
"a provision which discriminates in favour of women i.e. the facility to avail of additional maternity leave - also discriminates against them and, that therefore the Union is effectively maintaining that the provision in question should discriminate in favour of women on more favourable terms than it does".
(7) The Equality Officer in Section 7.5 of his recommendation has erred in law and in fact under Sections 2(a) 2(c) 3(1) and 3(6) of the Employment Equality Act 1977 and the EU Equal Treatment Directive by his conclusion that from a consideration of European Case Law that ;
"the legislative principles established by the Dekker and Hertz cases is not applicable to the case in hand".
(8) The Equality Officer in Section 7.6 of his recommendation has erred in law and in fact under Sections 2(a) 2(c) 3(1) and 3(6) of the Employment Equality Act 1977 and the EU Equal Treatment Directive by his conclusion that ;
"The question which arises in whether an employer is required to treat a woman's absence on additional optional maternity leave as though she had not been absent".
(9) The Equality Officer erred in law and in fact under the 1977 Employment Equality Act, the EU Equal Treatment Directive and the case law of the European Council of Justice, by not finding that excluding service (unpaid) arising from maternity constitutes both direct and indirect discrimination.
The Court heard the appeal on the 17th July, 1997. Both parties expanded orally on their submissions at the hearing.
This is an appeal from the Recommendation (No. EE24/1996) of an Equality Officer which found that the claimant had not suffered discrimination when her four weeks' of additional maternity leave were not reckoned as service.
The appeal was heard by the Labour Court ('the Court') on 17th July 1997.
The claimant is a civil servant employed in the Central Statistics Office. She took maternity leave from 4th May 1992 to 11th August 1992 and during that time her leave was counted as full service.
However, the claimant then availed of an additional four weeks' unpaid leave (from 12th August 1992 to 8th September 1992). This period was not counted as service. When the claimant was not offered promotion because she was not the most senior eligible and suitable officer on the date when a Staff Officer position was being filled, she claimed that she had suffered discrimination, in that her four weeks' additional leave had not been counted as service.
The Civil and Public Service Union ('the Union') made the case on behalf of the claimant that she had suffered both direct and indirect discrimination. It was alleged that she had suffered direct discrimination because she had been treated unfavourably on account of her pregnancy, and indirect discrimination because in order to have retained her seniority she would have had to remain at work rather than take pregnancy-related additional leave.
The four weeks' additional leave which did not count as service was optional leave. The claimant was not obliged to take it, but was enabled to do so. Such optional leave is classified by the employer ('the State') as 'special leave without pay' and does not count as service. The Maternity Protection of Employees Acts 1981 and 1991 makes a clear distinction between maternity leave and the optional leave which may be taken following maternity leave. The former must be taken, the latter may be taken. The Court can find no reason to conclude that any discrimination arises from the fact that such leave is not counted as service. Indeed, the Court is satisfied that the provision for additional special leave falls into the category of 'special treatment' in Section 16 of the Employment Equality Act 1977 which enables employers to discriminate in favour of women in connection with pregnancy or childbirth. Such provision follows Article 1.3 of the Equal Treatment Directive No. 76/207 which allows discrimination in favour of women where the provisions are for their protection, particularly as regards pregnancy and maternity.
The claimant was not treated 'less favourably' by the employer than a person of the other sex; on the contrary by virtue of the provisions of the Maternity Protection of Employees Acts she enjoyed a statutory right to additional leave. Neither was the claimant "obliged" to remain at work in order to retain her seniority; the only leave which was not counted for the purposes of seniority was the optional leave which the claimant chose to take, having been duly given the information to enable her to realise that it would not be counted for the purposes of service.
In the light of its conclusions, the Court rejects the appeal by the Union, and holds that the claimant did not suffer discrimination.
Signed on behalf of the Labour Court
12th December, 1997______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.