SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
REVENUE COMMISSIONERS (RESPONDENT)
- AND -
MS MAUREEN TRAVERS (CLAIMANT)
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal on behalf of Ms. Maureen Travers against Equality Officer's Recommendation No. EE/2/2000.
2. The background to this case is set out in the Equality Officer's Recommendation (details with the Court). The Equality Officer, in his Recommendation, which issued on the 2nd February, 2000, found that the claimant was not discriminated against contrary to the terms of the Act.
The Union appealed the Recommendation to the Labour Court on the 13th March, 2000 on the following grounds:-
(a)The Equality Officer erred in fact and in law by failing to give consideration to the fact that the appellant was subjected to a selection process which was not applied to the male who was subsequently promoted.
(b)The Equality Officer erred in fact and in law in concluding that the beneficiary of the decision made not to promote the appellant was a female.
(c)The Equality Officer erred in law in considering material which was not relevant to the alleged act of discrimination.
(d)The Equality Officer erred in fact and in law in his conclusions concerning the selection process.
(e) The Equality Officer erred in law in failing to examine the promotion systems applied to the appellant vis-�-vis the promotion system as applied to the male who was subsequently promoted and therefore he did not give full consideration to the appellant's claim that the system of promotion as applied to her was not open, transparent or consistent.
The Court heard the appeal on the 24th August, 2000. Both parties expanded orally on their submissions at the hearing.
This is a claim by a female Inspector of Taxes ("the claimant") that her employer, the Office of the Revenue Commissioners (“the respondent”), discriminated against her in relation to promotion. It is claimed that such discrimination was on grounds of her sex within the meaning of Section 2(a) of the Employment Equality Act 1977 and was in contravention of Section 3 (2) of that Act. In July, 1998 the claimant through her Union, IMPACT, referred the dispute to an Equality Officer for investigation and recommendation in accordance with subsection 2 of that Section.
The Equality Officer recommended that the respondent did not discriminate against the claimant. It is against that recommendation that the claimant appealed to the Court.
In essence, the case made on behalf of the claimant is that she was treated differently to a male colleague, on grounds of her sex, in accessing her suitability for promotion to the grade of Inspector of Taxes Higher Grade by being required to attend before a Review Board.
Promotions to this grade are made on a system of seniority subject to suitability. Under this system, promotions to the higher grade are made on seniority from a panel of Inspectors who are deemed to be suitable for promotion. Suitability for inclusion on this panel is assessed by way of a national review of suitability from which recommendations are made to the Chief Inspector of Taxes, who in turn makes recommendations to the Board of the Revenue Commissioners.
Where an officer is not considered suitable by the national review process, they can be afforded an opportunity for further review by a Review Board. In such cases, the report of the Review Board is then considered by the Chief Inspector of Taxes in making his/her final recommendations. This process applies equally to all candidates for promotion.
In this case, the claimant was required to attend before the Review Board in order to be placed on the panel for promotion whereas a male candidate was not. The respondent contends that this difference in treatment was because the male candidate was already classified as suitable for promotion and the question of a review did not arise. If this contention is correct, the difference in treatment complained of, was unrelated to the claimant's sex and, prima facie, is not discrimination within the meaning of Section 2 of the Act.
A requirement which is gender neutral on its face may, however, give rise to discrimination where it has the effect in practice of disadvantaging significantly more members of one gender than the other. In such cases, it is settled law that an inference of discrimination can be drawn and it is for the respondent to justify the impugned act or requirement by factors, which are objectively justifiable on grounds, unrelated to gender.
In relation to the present case, while the claimant had received a favourable assessment as to her suitability for promotion from her local manager, she remained, at the material time, classified as unsuitable for promotion within the formal system operated by the respondent. The Court is satisfied, as a matter of fact, that the reason the claimant asked to participate in the Review Board process was because she remained formally classified as unsuitable for promotion. The purpose of the review by the Board was to allow the claimant an opportunity to have her unfavourable classification reviewed. As the male candidate was already classified as suitable for promotion, no such reason or purpose existed as to why he should be asked to attend before the Review Board.
Having so concluded, it follows that the requirement for the claimant to participate in the Review Board process did not constitute an act of direct discrimination.
The Court must, however, consider if the system of assessment operated by the respondent for the purposes of placement on the panel for promotion, including the Review Board system, gives rise to an inference of indirect discrimination. As already observed this can arise where the system has the effect in practice of disadvantaging members of one gender relative to the other. Such an inference can only be raised from facts disclosed in evidence.
The evidence before the Court shows that the disputed promotion was one of six made by the respondent on 26th November 1998. Of that number, two were male and four were female. Statistics provided to the Court on the gender composition of Inspectors of Taxes whose suitability for promotion was reviewed, for the years 1994, 1996 and 1997 indicate that a significantly higher percentage of men than women were not confirmed as suitable. These statistics also indicate that there was no appreciable difference in the gender composition of those offered the facility for further review by the Review Board.
Based on this factual evidence, the Court is satisfied that no inference of indirect discrimination against women, including the claimant, arises from the operation of the system of assessment of suitability for promotion operated by the respondent.
Having regard to its findings and conclusions the Court is satisfied that the claimant was not treated less favourably than a person of the other sex in relation to the filling of the post of the Inspector of Taxes Higher Grade. The Recommendation of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
4th September, 2000______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.