SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
EASTERN HEALTH BOARD
(REPRESENTED BY THE HEALTH SERVICE EMPLOYERS AGENCY)
- AND -
(REPRESENTED BY THE IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation EE10/98.
2. The worker concerned was employed by the Eastern Health Board since August, 1986. In May, 1997 he applied to the Board for adoptive leave but was refused on the grounds that it was available to female staff only. In his application he cited the O'Grady -v- Telecom Eireann case.
The Union referred a claim on his behalf to the Labour Court under the Employment Equality Act, 1977. The Court referred the case to an Equality Officer for investigation. Her recommendation, which issued on the 30th of June, 1998, found that the Eastern Health Board discriminated against the claimant contrary to the provisions of the Employment Equality Act, 1977. The Equality Officer recommended that the Board grant the claimant ten weeks paid adoptive leave.
On the 11th of August, 1998, the Labour Court received a notice of appeal of the Equality Officer's recommendation from the Eastern Health Board on the following grounds:-
(i) The Equality Officer erred in law and in fact in deciding the case merely on the basis of the decisions of the High and Supreme Courts in the case of O'Grady -v- Telecom Eireann, she failed to take account of the fact that the Adoptive Leave Act, 1995 (and Section 4(4) thereof) which was enacted subsequent to Mr. O'Grady's application for adoptive leave was in operation at the time of the claimant's application. The Adoptive Leave Act, 1995 regularises any inconsistencies which existed in respect of adoptive leave under the Employment Equality Act, 1977.
(ii) Any other issues which may arise during the course of the hearing.
The Labour Court heard the appeal on the 24th of February, 1999. Both parties made written and oral submissions to the Court.
The following is the Court's Determination.
In 1984 the Eastern Health Board ("the employer") introduced a scheme for the granting of special leave to its employees who became adoptive mothers. The scheme was introduced in response to a directive from the Department of Health set out in a circular letter of 15th February, 1984 ("the voluntary scheme"). The scheme made no provision for the granting of special leave to adoptive fathers.
A statutory entitlement to Adoptive Leave for women and in limited circumstances for men, was subsequently provided by the Adoptive Leave Act, 1995 ("the 1995 Act"). In April, 1998 the employer amended the terms of the voluntary scheme so as to reflect the terms of the 1995 Act.
In 1997 the claimant and his wife became adoptive parents. By letter dated the 15th of May, 1997 the claimant applied to the employer for special leave under the voluntary scheme. The application was refused on the basis that the claimant did not qualify for adoptive leave under the 1995 Act.
On behalf of the claimant, the Court was referred to the decision of the Supreme Court in the case of Board Telecom Eireann and Brendan Patrick O'Grady, in which judgement was delivered on the 4th of February, 1998. In that case the Supreme Court upheld a decision of this Court in finding that an adoptive leave scheme, identical in all material respects to that operated by the employer, was discriminatory within the meaning of Section 2 of the Employment Equality Act, 1977.
The employer sought to distinguish the present case from the O'Grady case on the basis that at the time the claimant herein applied for special leave, the 1995 Act was in force. They contend that in those circumstances the only entitlements which the claimant had were those prescribed by the 1995 Act.
The Court cannot accept that the employer's submission is correct.
It is clear that the claimant sought special leave under the employer's voluntary scheme, as then constituted and not under the 1995 Act. On the authority of the decision of the Supreme Court in the O'Grady case the employer's refusal to grant the claimant special leave under this scheme because of his sex was a clear act of discrimination contrary to Section 3 of the Employment Equality Act, 1977, in terms of Section 2 of the Act.
The appeal by the employer is dismissed and the Recommendation of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
4th March, 1999______________________
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.