SECTION 27, EMPLOYMENT EQUALITY ACT, 1977
(REPRESENTED BY ARTHUR COX)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Flood
Employer Member: Mr Brennan
Worker Member: Mr Rorke
1. Alleged constructive dismissal under Section 26(1)/Section 27 of the Employment Equality Act, 1977 ('The Act').
2. Aer Lingus employs approximately 800 cabin crew staff. In 1992 agreement was reached between the parties on part-time work options for cabin crew employees. The agreement provides for a minimum of 5% of permanent cabin crew staff to be facilitated to avail of this option. Part-time work options are granted for a period of 12 months and the allocation of part-time positions is based on seniority.
In the Spring/Summer of 1996 four female members of the Aer Lingus cabin crew resigned from their employment. The Union claims that the workers were forced to resign because of the Company's refusal to grant their request to work part-time and that its actions constitute discrimination and constructive dismissal on the grounds of sex and marital status, contrary to Section 3(4) of the Act.
On the 6th of September, 1996 the Union submitted a complaint to the Labour Court under Section 26(1) and Section 27 of the Employment Equality Act, 1977. The Court investigated the complaint on the 10th of June, 1997. Both parties made written submissions to the Court which were expanded upon orally at the hearing.
3. 1. The worker resigned from her employment because she was unable to secure part-time working or long-term special leave. She made every effort to organise her family responsibilities to suit her job i.e.
- hiring of child minders
- working unsocial (through the night) shifts
- taking annual leave (two days per week)
2. The employer made no effort to facilitate the worker's request for part-time work or career breaks. Management's attitude was that a woman's place, and mothers' in particular, was in the home. Its policy or lack of policy forced the worker to resign from her job.
3. The Court is requested to find that unlawful indirect discrimination occurred within the meaning of the Employment Equality Act, 1977 and to award the complainant the following as a remedy to settle this dispute:
(1) Full re-instatement with the right to opt for in-week-special-leave.
(2) Full recognition of service years lost due to constructive dismissal, including seniority, pension, increments, service for calculating redundancy.
(3) Compensation for loss of earnings.
(4) Compensation for loss of privileges, i.e. flight concessions, telephone allowances.
(5) Restoration of pension rights.
(6) Compensation for stress and anxiety.
4. 1. The Company is required to have available to it sufficient numbers of fully trained, competent and experienced staff for its schedule. This requirement is necessary not only to meet the standards of customer care and service which the airline has set itself but also to comply with strict safety requirements. In those circumstances it is not feasible for the airline to grant unlimited open access to part-time work. It is to be noted that part-time work, of the type granted to cabin crew, is not generally available throughout the airline.
2. The airline is willing to consider improvements to its policy on flexible working arrangements, however it is imperative that any such arrangements will protect the long term viability of the company and that any arrangement which might facilitate increased part-time working must give to the company the flexibility to manage its resources in a cost effective way. The company was in the past willing to consider an increase in the availability of flexible working arrangements, however in order to meet its economic, customer service and safety requirements there must be a reasonable upper limit on that availability and in return reasonable alternative crewing arrangements must be available. The company in the past offered to increase the number of flexible positions available provided that there was an acceptable increase in the number of temporary positions which it could fill.
3. The company has at all times been more than willing to seek to reach agreement recognising that improvements in its policy on flexible working arrangements would have benefits for staff. However, the company at all times must be realistic in its proposals so that it can be assured that it will be in a position to continue to provide the level of service which its schedule demands. It is simply not possible from an economic perspective or on other grounds for the company to permit unlimited part-time working among cabin crew. That is in effect what the Claimant in this case demands.
4. The Claimant alleges that the company should treat her more favourably because of her marital status. The only argument that she makes, is to the effect that she finds it difficult to work full-time having regard to her family commitments. If she was to succeed in this argument it would require positive discrimination in favour of people with their family commitments. Such discrimination is unlawful.
5. The company's refusal to grant additional part-time work is based on objective, economic, commercial and safety grounds. Insofar as the company would wish to increase the numbers of staff who would be entitled to opt for this scheme it can only do so if there is an agreement with the staff (through their trade union) to permit the appropriate flexibility which would allow an improvement. That flexibility has been consistently refused and rejected by the staff.
6. It is respectfully submitted by the Company that the resignation of the Claimant was not by reason of any discrimination, direct or indirect on the part of the Company and in the circumstances the Court is asked to reject this claim.
This case concerns the refusal of the company to grant the claimant her request for a transfer to part-time work. The claimant resigned from her employment because of her inability to work full-time in the light of her family and child-minding commitments. She alleges that she has been constructively dismissed by the company.
The case was brought under both Section 26 and 27 of the 1977 Act, but no evidence was put forward relevant to a Section 26 case. The court has therefore dealt with the case as a claim under Section 27.
Section 27 provides that where there is a dispute about whether or not there has been a contravention of Section 3(4) of the Act in relation to the dismissal of a person, it may be referred to the Court for investigation.
Section 3(4) states
".....a person shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if he does not afford to a person or class of persons the same terms of employment .... the same working conditions and the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals .... and disciplinary measures as he offers or affords to another person or class of persons where the circumstances in which both such persons or classes are or would be employed are not materially different".
The claimant was not in fact dismissed, but, rather, she resigned. The essence of the dispute is therefore whether there was discrimination in the circumstances under which she left her employment, in other words, whether there was a constructive dismissal as a result of discrimination.
It is common case that the Part-Time Scheme in operation, and which is the basis for the dispute, enabled a guaranteed minimum of 5% of cabin crew to avail of part-time options at any one time. Up to 10% of permanent cabin crew in any route group could avail of the Scheme, depending on availability of places, on the basis of seniority.
The Union argues that the denial by the company of part-time work to the claimant is a practice which discriminates because it bears significantly more heavily on one sex than on the other. The Union claims that it bears more heavily on women and on married women. It says that the onus of proof has shifted to the employer to justify the practice on economic grounds which bear no relationship to the sex of the worker. As proof of its contention, the Union says that the available statistical evidence shows that women comprise the greater number of part-time workers in the Irish economy, and that this is generally 'accepted' to be on account of family responsibilities. The Union argues that the company failed to show a positive attitude and allow the claimant avail of the part-time working scheme, and as a result the claimant suffered indirect discrimination.
The only statistical evidence put forward by the Union related to the sex of the cabin crew employees, of which 780 permanent employees are female and 42 are male. It also referred to a survey of 1995 to show that more women than men are engaged in part-time work, and of these, more are married than are single. The Union also demonstrated that of 77 cabin crew who left the employment of Aer Lingus in the year 1995-96, 22 demonstrably did so because they were unable to avail of part-time working.
For its part, the company says that it had tried to be flexible, and was willing to increase the availability of part-time work, but that necessary alternative measures could not be agreed with the union. If such measures had been agreed, the claimant might have qualified to benefit from them. The company argues that it is not possible from an economic and safety perspective to have unlimited flexible part-time working available.
The company further says no direct discrimination occurred because the Scheme in place was open to all, irrespective of the sex or marital status of the workers who applied for it. The company also says that no indirect discrimination occurred, since the requirement on the balance of the work-force which does not have access to the part-time arrangements to work full-time is an essential requirement. The company points out that the claim is really that married women with children are disadvantaged because unlimited part-time work is not available, in effect that the claimant is seeking more favourable treatment because of her marital status. Notwithstanding these arguments, the company says that its refusal to give the claimant part-time work is objectively justified on economic, commercial and safety grounds.
Since the conclusion of the Court hearing, the parties succeeded in negotiating increased part-time work options. The Union argues that if those arrangements had been in place while the claimant was still in the Company's employment, she would not have found it necessary to resign.
The task for this Court under the Employment Equality Act 1977 is to examine the facts of this case and to satisfy itself as to whether the company discriminated against the claimant by failing to provide the same conditions in relation to part-time work as it afforded to men or to single persons in the same type of employment, as a result of which failure, the claimant had no option but to resign.
On the question of direct discrimination, the Court notes that the part-time working scheme in operation in the company was and still is open to all in the employment of the company as cabin crew members, male or female, married or single. There is no evidence to suggest, therefore, that the Scheme was directly discriminatory.
On the question of indirect discrimination, the Court notes that the Scheme was only guaranteed to 5% of the permanent cabin crew staff at any one time. The claimant could not avail of the Scheme because there was already a full take-up when she applied for it.
The Court is satisfied that the 'requirement' which would have enabled the claimant to work part-time was to come within the agreed 5% of the workers to whom the Scheme was available. The question is whether the imposition of a 5% restriction was essential or not. If it was essential, then no question of discrimination could arise by imposing it. If it was not essential, then the question of whether it affected more women than men, or more married persons than unmarried persons would arise for debate.
The Court notes that the 5% figure was an agreed percentage, fixed in negotiations between the company and the Union on manning levels, and on the experience and the numbers of staff required to provide a proper service within adequate safety levels and within the reasonable commercial objectives of the company.
On the evidence presented, the Court is satisfied that the 5% restriction for part-time work was 'essential', given the configuration of the relief arrangements agreed at the time. The Court notes that the new arrangements which were negotiated since the hearing of this case, while increasing the available part-time work, were agreed in return for working arrangements and other concessions which in turn permitted the company to retain its operational and economic viability.
Since the Court finds that the restriction of the Scheme to 5% of the cabin crew was justified as 'essential', it could not be a discriminatory requirement.
While there is no onus on an employer to provide part-time work for its employees, in Aer Lingus part-time working has been agreed in conditions which have accommodated that part of the work-force which consists largely of women, while enabling the company to comply with safety and service requirements. More flexible part-time working arrangements became available after the claimant had already resigned, but that is no fault of the company which could only concede those arrangements when there was agreement on operational arrangements and crewing for the balance of working hours.
In the light of the above, the Court finds that there was no discrimination in relation to the resignation of the claimant, and rejects the claim as not well-founded.
Signed on behalf of the Labour Court
8th April, 1998______________________
Enquiries concerning this Order should be addressed to Fran Brennan, Court Secretary.