SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
OFFICE OF THE REVENUE COMMISSIONERS
DEPARTMENT OF FINANCE
- AND -
MS PHILOMENA FLOOD
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
1. Appeal by the Employment Equality Agency against Equality Officer's Recommendation No. EE15/1995 concerning an allegation that the Office of the Revenue Commissioners and the Department of Finance discriminated against Ms. Philomena Flood on the grounds of her sex and marital status in terms of Section 2(c) of the Employment Equality Act, 1977 and in contravention of Section 3 of the Act.
2. 1. Ms. Flood commenced employment in the offices of the Revenue Commissioners in January, 1978. In May, 1981 she was promoted to the Executive Officer Grade. She served in a full-time capacity until 15th October, 1984 when she commenced job sharing duties with another officer. Ms. Flood worked on a week-on, week-off basis Monday to Friday and subsequently changed to a split-week pattern i.e. Thursday to Wednesday. On the 8th April, 1991 she resumed full-time work.
2. Ms. Flood claims that the employer, in regarding her period of service as a job-sharer to be the equivalent of only half of her service had she been in full-time employment during that period, discriminated against her contrary to the terms of the Employment Equality Act, 1977.
3. The respondents do not accept that the claimant's conditions of employment were discriminatory in terms of Section 2(c) of the 1977 Act. They claim that Ms. Flood as a job-sharer enjoyed, on a pro-rata basis, the benefits of an established civil
servant in terms of attendance, pay, annual leave, privilege days, bank holidays, sick leave, and superannuation.
4. In October, 1991, Ms. Flood, through the Employment Equality Agency referred the dispute to the Labour Court. The Labour Court referred the case to an Equality Officer for investigation and recommendation. In the course of the Equality Officer's investigation the Department of Finance requested to be added as a named respondent to the case.
5. The Equality Officer investigated the dispute at hearings held in July, 1994 and November, 1995. The Equality Officer's Recommendation which was issued on the 8th December, 1995 found that the Office of the Revenue Commissioners and/or the Department of Finance did not discriminate against Ms. Flood contrary to the provisions of the Employment Equality Act, 1977.
6. On the 17th January, 1996 the Employment Equality Agency appealed the Equality Officer's Recommendation to the Labour Court on the following grounds:-
(a) The Equality Officer erred in law and in fact in finding that the Revenue Commissioners and the Department of Finance did not discriminate against Ms. Flood contrary to Section 3 of the Employment Equality Act, 1977.
(b) The Equality Officer erred in law and in fact in not finding that there was sufficient statistical evidence to support the claimant's case and, in particular, the recommendation does not consider the arguments made based on theNimz v Freie und Hansestadt Hamburgjudgement of the European Court of Justice (IRLR 1991 222).
(c) The Equality Officer erred in law and in fact in not
awarding an appropriate remedy to Ms. Flood for the discrimination experienced by her and the consequent distress to her.
(d) On all grounds submitted during the Equality Officer's investigation and such grounds as may arise during the course of the appeal.
7. The Court heard the appeal on the 10th October, 1996. Both parties made written submissions (details supplied to the Court).
In this case the claimant alleged that she had suffered discrimination by virtue of the fact that her service during her period at work in a job-sharing capacity was only credited for promotional purposes as service at the rate of half-time working.
The claimant job-shared for the period 15th October 1984 to 8th April 1991.
The claimant’s case was that in order to have been given full service credit, she would have had to be working full time. She claimed that this was a ‘requirement’ with which a disproportionate number of women working for the Revenue Commissioners were unable to comply, since almost all of the part-time workers were women. She further claimed that the ‘requirement’ impacted more on married women than on single women.
The Equality Officer had rejected the claim on the basis that the statistics which had been produced did not show that a substantially greater number of women than of men were affected by the ‘requirement’ to work full-time, and that, given the absence of statistical information in relation to the marital status of those affected by the 'requirement’, it would be unsafe to find in favour of the claimant.
The decision of the European Court in the Gerster case (Gerster v. Freistaat Bayern, C1/95, 1997 IRLR 699) was handed down on 2nd October 1997, two years after the Recommendation of the Equality Officer in this case, and has changed the jurisprudence on which he based his conclusions. As a result of that decision, and following a directive from the Minister for Finance, the practice of which the claimant complains has ceased. From 1st December 1997, service in a job-sharing capacity in the public service will be credited as full-time service for the purposes of promotional competitions in the Civil Service.
The Revenue Commissioners have no reason, therefore, in the light of the Gerster decision, to seek to establish to the satisfaction of this court that length of service is related to the acquisition of knowledge and experience. The claimant will now be given full service credit for her time at work in a job-sharing capacity for the purposes of any promotional posts for which she applies.
In relation to the past, the Court is satisfied that the claimant was not able to point to any actual detriment which she had suffered as a result of not being credited while job-sharing with full-time service. The detriment claimed was the very fact that service as a job sharer was treated as half of the service of a full-timer.
It was the employer’spracticeof crediting half service to job-sharing employment that was the root of this dispute. All that was alleged on behalf of the claimant was that she ‘lost seniority vis-�-vis full-time colleagues’. In a later submission it was claimed that 'her expectation of promotional advancement was severely undermined’. But in fact the claimant could not point to any promotion which she was denied, or any material consequence to her of being less senior on the promotional scale than her full-time colleagues. The claimant could show no instance in which she was passed over for promotion or refused access to a position on the basis of her lack of seniority. Colleagues who were promoted to Higher Executive Officer before her were so promoted on the basis of interdepartmental competitions and departmental competitions for which she was also eligible to compete. In relation to promotions in the Information Systems Division, she would not have been considered for a post in that Division in any event, as only staff internal to that Division were promoted.
The Court notes that in relation to any future promotional opportunities, the claimant will have the benefit of the changes made following the Gerster decision.
The Court is satisfied, therefore, that the claimant suffered no loss as a result of the former alleged discriminatory practice of the Revenue Commissioners. It allows the appeal and makes no other determination.
Signed on behalf of the Labour Court
23rd June, 1998______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.