SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
- AND -
MS. FRANCES O'CONNOR
(REPRESENTED BY THE CIVIL AND PUBLIC SERVICE UNION)
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation No. EE08/1997.
2. The dispute concerns a claim made by the Union that An Post discriminated against Ms. Frances O'Connor, ( 'the claimant' ) a job-sharer, when it did not pay her at full pay while on maternity leave. The claim was rejected by An Post. The dispute was the subject of investigation by an Equality Officer who found that An Post did not discriminate against the claimant in relation to her maternity leave.
The Union appealed against the Equality Officer's Recommendation, on the 29th of May, 1997, on the grounds that, in failing to find that the period of 14 weeks' maternity leave must count as reckonable service and must be paid at the full rate,
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 law and in fact in Section 5.3 of her recommendation by concluding that
"I consider that this claim is for double the normal remuneration (in relation to both pay and service) for the duration of the maternity leave";
9. The Equality Officer has erred in law and in fact in Section 5.11 of her recommendation by concluding that
"I do not consider that the claimant was indirectly discriminated against";
10. The Equality Officer has erred in law and in fact in Section 5.12 of her recommendation by concluding that
"I do not consider that the claimant was unfavourably treated in relation to full time staff when she availed of 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 as stated in Section 5.13 of her recommendation.
The Court heard the appeal on the 21st of October, 1997.
The claimant appeals against the Recommendation of the Equality officer that An Post did not discriminate against her in relation to her maternity leave.
The arguments of the Civil and Public Service Union (‘the CPSU’) can be summarised as follows:
- (a) The claim concerns the maintenance of the employment relationship. The claimant should have been treated in terms of pay and service during her absence on maternity leave as if she had not been absent from a full-time job.
(b) In accordance with the principles of law applicable in the case of Gerster v. Freistaat Bayern (C1/95) (‘the Gerster case’), the claimant should have been credited for service as if she had worked full hours.
(c) The claimant was disadvantaged by reason on her pregnancy and consequently suffered discrimination.
(d) The Equality Officer should have dealt with the question of remuneration.
The Court has considered all of the arguments and has come to the following conclusions:
(a) While the State is empowered under Council directive 76/207/EEC to make special provision for women in connection with pregnancy and childbirth, Irish legislation has not provided that a woman on maternity leave must be treated as if in a different employment relationship with her employer for that period. If the worker who goes on maternity leave is a job-sharer, she remains ‘deemed to be in the employment’ as a job-sharer, and not as a worker on full hours. Her service entitlements remain intact, but by reference to her job-sharing position; they do not double for the period of maternity leave.
(b) Having considered the manner in which the claimant was treated for the purposes of service in the light of the Gerster decision of the European Court of Justice, the Court does not agree that the employer has breached its principles. The employer applied a criterion of strict proportionality in crediting the claimant's service for the period of her maternity leave. After her leave, she returned to her job-sharing position, and did not seek to do otherwise. The length of her service has not been in issue in any other respect than her claim that it should be doubled for the period while she was on leave. The Union alleges that the service credit was ‘removed’ from the claimant, but the reality is that she received credit for the service she would have given if she had been at work for the relevant period, and has not shown that she suffered any disadvantage whatsoever.
(c) The Court can find nothing to justify the claim that the claimant was discriminated against by reason of her pregnancy. The employer not only complied with national legislation by preserving her job and crediting her with the appropriate period of service, but it also paid her during her period of leave at the rate she would have been paid had she been at work. Her pregnancy and maternity did not result in any disadvantage to her.
(d) Finally, on the question that the case should have been considered also under the 1974 Act by the Equality Officer, the Court notes that the Equality Officer found that the claim related to remuneration. However, having found that the claimant had not suffered discrimination in relation to her maternity leave, she felt it unnecessary to consider the remuneration question. The Court agrees with the approach of the Equality Officer. The Union claims that the claimant should have been paid during her maternity leave as if she had been employed as a worker on full hours. Since the Court has found that the claimant was not entitled to have her employment status as a job-sharer altered during her maternity leave, the question of whether she should have been paid as if she had been a worker on full hours does not arise.
The Court rejects the appeal of the Union and finds that there was not discrimination against the claimant.
Signed on behalf of the Labour Court
6th of February, 1998______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.