SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
THE DEPARTMENT OF FINANCE
THE REVENUE COMMISSIONERS
THE DEPARTMENT OF AGRICULTURE, FOOD AND FORESTRY
(REPRESENTED BY THE OFFICE OF THE CHIEF STATE SOLICITOR)
- AND -
MS. KAREN ORMOND / MS. BRIGID MACKIN
(REPRESENTED BY THE CIVIL AND PUBLIC SERVICE UNION)
Chairman: Mr McGrath
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation No. EE07/1997.
2. The dispute concerns a claim made by the Union that the Departments of Finance, Agriculture Food and Forestry and the Revenue Commissioners discriminated against the two workers, both job-sharers, by not paying them full pay for the duration of their maternity leave.
The employer side rejected the claim stating that they had paid the claimants and recognised their service as though they had been working during the period of maternity leave. The dispute was the subject of investigation by an Equality Officer, in April, 1995 and in February, 1997. The Equality Officer, found that the employer side did not discriminate against the claimants in relation to their respective maternity leaves.
The Union appealed against the Equality Officer's Recommendation, on the 29th of May, 1997, on the following grounds:-
"1. The Equality Officer has erred in law and in fact under Section 2(A) of the Employment Equality Act 1977.
2. The Equality Officer has erred in law and in fact under Section 2(C) of the Employment Equality Act 1977.
3. The Equality Officer has erred in law and in fact under Section 3(1) of the Employment Equality Act 1977.
4. The Equality Officer has erred in law and in fact under Section 3(6) of the Employment Equality Act 1977.
5. The Equality Officer has erred in law and in fact by not applying relevant European case law to the facts and circumstances of the case.
6. The Equality Officer has erred in law and in fact under the European Union Equal Treatment Directive 76/207 articles 2(1), 2(3), 3(1) and 5(1).
7. The Equality Officer has erred in law and in fact under Articles 8(1), 8(2), articles 11(2), 11(3), and 11(4) of the European Council Directive 92/85.
8. The Equality Officer erred in fact and in law in Section 5.9 of her recommendation by concluding that
"They were in receipt of 14 consecutive weeks maternity leave, their rate of pay was maintained and they were credited with their service for this period also".
9. The Equality Officer has erred in law and in fact in Section 5.10 of her recommendation by concluding
- "I consider that this claim is for double the normal remuneration (in relation to both pay and service) for the duration of their maternity leave".
11. The Equality Officer has erred in law and in fact by not considering the reference to Section 56(2) of the Employment Equality Act 1977 as stated in Section 5.13 of her recommendation".
The Court heard the appeal on the 16th of September, 1997.
This case originated as a dispute as to whether or not the Department of Finance, the Department of Agriculture and Food (formerly Agriculture, Food and Forestry) and the Revenue Commissioner ('the Respondents') had discriminated against Ms. Karen Ormond and Ms. Brigid Mackin ('the claimants'). The dispute was referred to the Labour Court under Section 19 of the Employment Equality Act 1977 ('the Act').
The claimants, who are job-sharers, alleged discrimination because the Respondents did not pay them the rate of pay of a full-time worker during their maternity leave. The case was investigated by an Equality Officer whose Recommendation (EE07/97) was issued on 22nd April 1997. Her finding was that the Respondents had not discriminated against the claimants.
From that finding the claimants appealed to the Labour Court.
The Civil and Public Service Union ('the CPSU') has argued on behalf of the claimants
(a) That the claimants' 14 week period of maternity leave must be counted as full-time reckonable service and be paid at the full rate of pay;
(b) That the maintenance of the employment relationship in accordance with the provisions of Section 22(1) of the Maternity Protection Act 1994 requires that the claimants be treated as full-time employees during the period of maternity leave as they are, in reality, full-time workers who are job-sharing for domestic and family reasons;
(c) That women comprise 98% of job-sharers because of gender-based social/cultural responsibilities;
(d) That the issue of the remuneration of the claimants should have been dealt with by the Equality Officer, since Section 56(2) of the 1977 Act provides that it is to be construed together with the Anti-Discrimination (Pay) Act 1974 ('the 1974 Act') as one Act.
The CPSU's case relies on the provisions of Council Directive 76/207/EEC on equal treatment which allows for special provision to be made for the protection of women, particularly in relation to pregnancy and maternity. Section 16 of the 1977 Act, implementing the Directive, allows an employer to arrange for special treatment for women in connection with pregnancy and childbirth.
Maternity leave is provided for in the Maternity Protection Act 1994. In fact, the claimants both had their maternity leave before the coming into operation of that Act, and their situation was covered by the provisions of the Maternity Protection of Employees Acts 1981 and 1991.
A pregnant employee is entitled to leave of not less than 14 consecutive weeks. Applying the provisions of the relevant Acts, Civil Service Circular 27/81 provided that maternity leave would consist of 14 consecutive weeks and that 'during maternity leave a woman will be entitled to full pay.....'. It further provided that the leave would 'count as service in all respects...'.
The CPSU also sought to rely on Civil Service Circular 35/95, applicable following the enactment of the Maternity Protection Act, 1994, and which provided that 'Maternity leave will consist of 14 consecutive weeks ... (and is) fully reckonable for service, seniority and annual leave entitlements'.
In respect of the claimants, the relevant Circular was interpreted by the Respondents to mean that all service, benefits and remuneration would be calculated on a pro-rata basis. This, the CPSU claims, is discrimination.
Inter alia, the CPSU relies on the recent judgement of the European Court of Justice in Gerster -v- Freistaat Bayern (C1/95) of 2 October, 1997 ('the Gerster decision').
The Court is satisfied that, in respect of the claimants,
(a) they were granted the statutory entitlement of 14 weeks' maternity leave;
(b) they were paid during the leave at the rate they would have been paid if they had not been on maternity leave;
(c) their maternity leave counted as service as if they had been working during that period;
(d) the relevant legislation for the purposes of this case is the Maternity Protection of Employees Acts 1981-1991, and the relevant Civil Service Circular is No. 27/81;
(e) the Gerster decision is not precedent for a finding of discrimination in this case.
Council directive 76/207/EEC enables States to make provisions for the protection of women, and Section 16 of the 1977 Act enables an employer to arrange for or provide special treatment in connection with pregnancy and childbirth. Such special provisions are legislated by the Maternity Protection of Employees Acts of 1981 and 1991 and, subsequently, by the Maternity Protection Act, 1994, which enable a pregnant worker to take 14 weeks' leave and to preserve her rights during those weeks. The employee is to be 'deemed to be in the employment of her employer', and to be treated as if not absent.
Logic dictates that an employee who is a job-sharer remains deemed in employment as a job-sharer. There is no basis for interpreting 'deemed to be in the employment' as if the job-sharer had changed her current employment situation to full-time employment. She does not change her shared employment simply by virtue of being on maternity leave. Her service, seniority and annual leave entitlements all remain as they were when she was at work, namely on a job-sharing basis. The Court can find no basis for concluding that the maternity leave period must be counted as full-time reckonable service and paid for at the full rate.
In fact there is no statutory obligation on an employer to remunerate an employee during the period of maternity leave, and no requirement in the Directive that any such obligation be imposed on an employer.
Furthermore, there is no basis for alleging that the employment relationship as described in the Maternity Protection Acts was altered when the claimants took up their maternity leave entitlements. The workers were job-sharers before they went on leave, and they were deemed in employment as job-sharers while on leave. To read the Acts as if their absence should have been treated as absence from full-time employment is to import a meaning into the Acts which the Court finds is not there.
The Equality Officer had refused to consider the case under the 1974 Act on the basis that the complaint had been made under the 1977 Act and the question of remuneration was excluded from consideration under that Act. The CPSU argues that since the two acts are to be construed together, the question of remuneration could not be excluded.
The Court accepts that the two Acts are to be construed together as one Act. However, within the two Acts there are separate procedures for the consideration of disputes. Disputes relating to equal pay are referred directly to an Equality Officer in accordance with procedures determined by the Equality Service. Disputes about discrimination are referred in the first instance to the Labour Court in accordance with its procedures, and from there are referred to an Equality Officer for investigation. This dispute was referred under the 1977 Act and was not referred under the 1974 Act. It has, therefore, throughout the investigation of the dispute been treated as a dispute about discrimination from which consideration of remuneration is excluded by virtue of the provisions of Section 3(1) of the 1977 Act. There was nothing to prevent the claimants from making two applications in respect of the same dispute, but they did not do so, and it would act as a serious injustice if the Respondents were to be subsequently opened to a dispute about which they had not notice and which was not processed in accordance with the provisions of the 1974 Act and the procedures of the Equality Service.
It may well be that on foot of their claim under the 1977 Act, the end result would have been a determination by the Court that there was discrimination. In that event, it would have been open to the Court to make an award in their favour for compensation. Such compensation could have attempted to put the claimants in the financial position in which they would have been if the supposed discrimination had not occurred.
However, the Court is not making any such Determination, and so the issue of compensation is academic. The Court is satisfied that the employer in each case properly applied the provisions of the Civil Service Circulars, and that such Circulars did not contravene the provisions protective of pregnant workers contained in the legislation.
The Gerster decision was issued after the hearing of this case, but the Court has had the benefit of its conclusions and has considered same in the light of the facts of the present case. Having done so, the Court is satisfied that there is nothing in the Gerster decision that would cause it to alter this Determination.
In the Gerster case, there was a difference in the treatment of part-time and full-time employees, so that the resulting system did not apply an overall criterion of strict proportionality. Since the system (viewed in the overall context) worked to the disadvantage of far more women than men, there was a prima facie case of discrimination which required to be justified by the employer.
In the present case, however, there is no prima facie case which requires justification. The claimants were treated while on maternity leave as if they were still working, for all purposes, including service, and there is no suggestion that their entitlements were not exactly in proportion to full-time work.
For all the above reasons, the Court rejects the claimants' appeal and finds that there was no discrimination.
Signed on behalf of the Labour Court
31st of October, 1997______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.