FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DEPARTMENT OF JUSTICE, EQUALITY & LAW REFORM - AND - COLE (REPRESENTED BY PUBLIC SERVICE EXECUTIVE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998 - DEC-E2004-066
BACKGROUND:
2. A Labour Court Hearing took place on 20th May 2005. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the Public Service Executive Union on behalf of Ms Colette Cole against the decision of the Equality Tribunal which dismissed her claim for redress under the Employment Equality Act 1998 and 2004 (the Act) against the Department of Justice Equality and Law Reform.
The parties are referred to using the descriptions used at section 77(4) of the Act. Hence Ms Cole is referred to as the complainant and the employer is referred to as the respondent.
Background
The complainant served as an Executive Officer in the then Department of Justice (the predecessor of the respondent) from 1971 until 1976 when she resigned. At the time of her resignation the complainant was married with a young child. She contends that her resignation was made necessary because the respondent refused to allow her to take unpaid leave in order to look after her child.
In 2001 the complainant participated in a competition confined to former Civil Servants for appointment to Executive Officer posts in the Civil Service. She was successful and was assigned to the respondent Department. On being re-appointed the complainant was informed by the respondent that her prior service would be reckonable for the purposes of pensions and eligibility for promotion.. However, it would not be reckonable for the purpose of seniority. This service was later credited for the purpose of incremental credit on her pay scale. In practical terms this meant that the complainant’s aggregate broken service would have less value than equivalent unbroken service of an Officer who had not previously resigned. This, it was contended, would impact adversely on the complainant’s prospects of promotion and on her eligibility to compete for access to higher scales within her grade.
The complainant contends that in failing to reckon her service for he aforementioned reasons the respondent indirectly discriminated against her on ground of her gender, marital status, family status and age.
The Equality Tribunal held against the complainant who appealed to this Court.
Facts.
The material facts as admitted or as found by the Court are as follows:
In 1976 the complainant was the mother of a young child. She was unable to combine her work and family responsibilities. Finding it necessary to take time off work to care for her child the complainant discussed her position with the Personnel Officer of the respondent. She hoped to obtain some accommodation by way of unpaid leave or a flexible working pattern. The Personnel Officer told the complainant that such arrangements were not available and that she would have no option but to resign
On being re-appointed in 2001 the complainant sought credit for her prior service. In accordance with an agreement concluded with the staff trade unions she has since been given credit for her prior service for the purpose of eligibility for promotion, pension, annual leave and more recently for increments. However the respondent would not regard prior service as reckonable for the purpose of seniority within the complainant’s grade. In consequence the complainant was placed at a point on the seniority scale significantly lower than that which she would have attained had her full aggregate service been reckonable.
Having regard to the service profile of those who attained the promotional position which became available since the complainant resumed employment, even if she had been credited with her prior accrued service she would not have attained promotion to date. Moreover, having regard to the basis upon which officers were allocated to the higher scales, the disregarding of the complainant’s prior service was not decisive in denying her access to one of these positions. Nevertheless the Court accepts that the placement of the complainant on a lower point on the seniority scale constitutes less favourable treatment relative to those placed on higher points. If this were attributable to one of the prescribed grounds under the act it would be unlawful.
The complainant also contended that Officers who are younger than her have been credited with greater seniority. It is however conceded that seniority is based exclusively on continuous service and not on age.
Conclusions of the Court
Discrimination on Gender, Marital Status and Family Status Grounds
The facts giving rise to this complaint are directly referable to the complainant’s resignation from the Civil Service in 1977. That resignation was entirely attributable to the absence of any reasonable facilities by which the complainant could combine her work and family responsibilities. The Court accepts that it is unlikely that a woman or a man without children or a man with or without children would have found it necessary to resign in such circumstances.
The complainant contends that the original omission of the respondent in not providing adequate facilities by which she could fulfil her family responsibilities was discriminatory and that the present disregard of her prior service is a continuing manifestation of that discrimination. As was pointed out by this Court inInoue v NBK Designs Ltd[2003] 14 E.L.R. 98, it is still the reality that mothers are more likely to fulfil the primary parenting role of young children than are fathers. It is beyond argument that this was even more so in 1977. Consequently the absences at that time of facilities by which work and family responsibilities could be combined undoubtedly impacted more heavily on mothers than on fathers
However, even if the complainant was discriminated against in 1977 (and the Court makes no finding as to whether or not the circumstances of her resignation amounted to discrimination as that term is now defined in law) such discrimination was not unlawful because it occurred before the Employment Equality Act 1977 commenced. The subsequent enactment of the Act of 1977, or the enactment of the Act of 1998 could not render unlawful an act or omission which was not so at the date of its commission.
In that respect the facts of this case appear to be congruent with those considered by the Supreme Court inAer Lingus v The Labour Court[1990] ILRM 585. That case concerned complaints by cabin crew employed by Aer Lingus who were forced to retire on marriage on various dates prior to August 1970. They were subsequently re-employed and sought credit for their prior service for seniority purposes. When this was denied to them they issued proceedings under the Employment Equality Act 1977 claiming redress for unlawful discrimination on the grounds of marital status and gender. In finding that the acts complained of in that case were incapable of amounting to unlawful discrimination, Walsh J. stated as follows:
- “The compulsory retirement of the applicants was a discriminatory act relating to marital status but it was not illegal. The Act of 1977 does not have retrospective effect. In my opinion the original discrimination was exhausted and spent when it took effect and was not in any way revived by the subsequent employment of the complainants in a temporary capacity for the relevant subsequent periods. Therefore, when the complainants re-entered the service of Aer Lingus in 1980 they were entitled to be protected against any discriminatory acts relating to their sex or to their marital status occurring after the date or built into the contract itself. I do not accept that the provisions contravened s. 10 of the Act and in any event the complaint that it was discriminatory within the meaning of ss. 2 or 3 of the Act of 1977 has been finally determined by the ruling of the Labour Court under s. 19 of the Act and the decision of this Court already referred to. All subsequent disabilities which the complainants feel they have suffered by reason of their seniority flow from their 1980 contract for permanent employment which they accepted in 1980 acknowledging their seniority to be nil. So far as seniority is concerned they are exactly in the same position as all other women entering the service on a permanent basis in 1980. There has been no suggestion of any discrimination because of marital status since that date. It has been sought to suggest that there had been indirect discrimination on the grounds that the seniority issue was already predetermined by the events which took place prior to 1970.”
In the present case the complainant is in exactly the same position in relation to seniority as any other person who took up employment on the date on which she re-entered the Civil Service, regardless of gender, family or marital status or age. The prior service which she now claims was lost not when she returned to the Civil service but when she resigned in 1977. The decision inAer Lingus v The Labour Courtis a clear authority for the proposition that an earlier act of discrimination which was not unlawful cannot be revived so as to ground a claim of discrimination based on its subsequent consequences.
Complaint of Discrimination on the Age Ground
On the facts found by the Court, or admitted, there is no basis upon which any causal connection can be established between the complainant’s age and the matters of which she now complains.
Determination
The complaint’s resignation was the activating cause of the disadvantage of which she now complains. Since the circumstances giving rise to that resignations were incapable of constituting unlawful discrimination, her claim cannot succeed. Accordingly the appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
30th May, 2005______________________
AH/MB.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.