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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Thompson v. Tesco Ireland Ltd. [2002] IEHC 63 (7 June 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/63.html Cite as: [2002] IEHC 63

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THE HIGH COURT

RECORD NO 2001/235SP

BETWEEN:

JANICE THOMPSON

PLAINTIFF/APPLICANT

AND

TESCO IRELAND LIMITED AND MINISTER FOR ENTERPRISE

TRADE AND EMPLOYMENT

DEFENDANT/RESPONDENT

JUDGMENT of Mr. Justice Vivian Lavan delivered the 7th day of June, 2002.

1.      The current proceedings amount to an appeal against a determination of the Labour Court. In its decision, the Labour Court rejected the appellant’s complaint of unlawful sex discrimination in the workplace contrary to the prevailing statutory provisions.

2.      The appellant is a sales assistant in the employment of the first named respondent. In July, 1996, she had applied to have her working hours amended to accommodate child minding arrangements. This request had been refused by the branch management. The appellant, a lone parent, claims that similar requests were favourably received from men and married women.

3.      The appellant, through her trade union, referred a claim to the Labour Court claiming discrimination against her contrary to ss. 2 and 3, Employment Equality Act, 1977. The Labour Court referred the claim to an Equality Officer for hearing. On 20th May, 1999, the Equality Officer in a Recommendation dismissed the said complaint. The Equality Officer’s Recommendation was appealed to the Labour Court by the appellant herein. By a determination dated the 27th March, 2001, the Labour Court disallowed the appeal and upheld the Equality Officer’s Recommendation. The appellant now seeks to bring an appeal against such determination on foot of s. 21 (4), Employment Equality Act, 1977.

4.      Section 21 (4) provides that:

“A party to a dispute determined by the [Labour] Court ... may appeal to the High Court on a point of law”.

The relevant provisions of the Employment Equality Act, 1977, are as follows:

Section 2

“For the purposes of this Act, discrimination shall be taken to occur in any of the following cases -

(a) where by reason of his sex a person is treated less favourably than a person of the other sex,

(b) where because of his marital status a person is treated less favourably than another person of the same sex,

(c) where because of his sex or marital status a person is obliged to comply with a requirement relating to employment ... which is not an essential requirement for such employment ... and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher, ...

Section 3 of the same Act provides that:

“(1) A person who is an employer or who obtains under a contract with another person the services of employees of that person shall not discriminate against an employee or a prospective employee or an employee of that other person in relation to access to employment, conditions of employment (other than remuneration or any condition relating to an occupational pension scheme), training or experience for or in relation to employment, promotion or re-grading in employment or classification of posts in employment.

(2) An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with Section 2 (c) ...

(4) Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if he does not offer or afford to a person or class of persons the same terms of employment (other than remuneration or any term relating to an occupational pension scheme), the same working conditions and the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals (other than a dismissal referred to in section 25) and disciplinary measures as he offers or affords to another person or class of persons where the circumstances in which both such persons or classes are or would be employed are not materially different ...”.

5.      The principal claim of the appellant in the present case is that the Labour Court in reaching its decision did not apply the relevant legal principles to the facts presented before it, and that it erred in particular in misapplying the law relating to indirect discrimination. The appellant relies in particular on the Supreme Court decision in Nathan v. Bailey Gibson [1998] 2 I.R. 162. This decision alludes to the EEC Directive, in light of which the Employment Equality Act, 1977 was adopted. At pp. 177-178 of his judgment, Hamilton C.J. held as follows:

“A requirement relating to employment ... in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex to comply is substantially higher may amount to indirect discrimination even when a person is obliged to comply therewith for reasons other than a person’s sex or marital status.

6.      Section 2 (c) only applies where the obligation is imposed on a person because of his sex or marital status. When the obligation was imposed for reasons other than a person’s sex or marital status, the issue falls to be considered in the light of the provisions of the directive and s. 3 of the Act of 1977.

7.      Consequently, I am satisfied that the Labour Court and the learned trial judge erred in law in holding that there must be a casual connection between the requirement and the sex or marital status of the employee.

8.      In such a case, the worker is not required, in the first instance, to prove a casual connection between the practice complained of and the sex of the complainant. It is sufficient for him to show that the practice complained of bears significantly more heavily on member’s of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the complainant’s sex.

9.      I would allow the appeal and refer the matter back to the Labour Court for consideration by them in the light of the provisions, not of s. 2 (c) of the Act but of s. 3 of the Act of 1977”.

10.      There are, therefore, two questions for the Labour Court to consider when determining such applications. Firstly, has the complainant established a prima facie case of discrimination by drawing the Court’s attention to a practice that “bears significantly more heavily on members of the complainant’s sex than on members of the other sex?” If the answer to this is in the affirmative, can the employer prove that the practice complained of is based on “objectively verifiable factors which have no relation to the complainant’s sex?”

11.      In its determination of the 27th March, 2001, the Labour Court made the following finding:

“What is an issue in the present case is a requirement that sales assistants employed by the respondent be available to work during the hours in which its stores are trading. In the Court’s view this is self-evidently as an essential requirement of the employment concerned ...

12.      Following the decision of the Supreme Court in Nathan v. Bailey Gibson [1998] 2 I.R. it is settled law that in cases if indirect discrimination it is not necessary to prove a causal connection between the practice complained of and the sex of the complainant. It is, however, necessary to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the opposite sex.

13.      On the issue of sex discrimination, the appellant, in her submission before the Equality Officer and Labour Court cited the example of a male employee who it was alleged was offered money by the respondent to accept a reduction in his evening work hours. The Labour Court accepted the respondent’s contention that there were valid commercial reasons for offering this incentive to buy-out the individual’s contractual entitlement to higher remuneration for same. In particular, the Equality Officer found that as the appellant had voluntarily changed from being a full-time worker (entitled to the higher remuneration) to being a flexi-worker, the claim of discrimination on these grounds was not supported by the evidence before him. It is perhaps worth noting that if the Labour Court had not established any “objectively verifiable grounds” for the difference in treatment between this individual and the applicant, the respondent would have in fact been guilty of direct sex discrimination rather than merely indirect discrimination as is alleged.

14.      It was submitted on behalf of the appellant that the Labour Court erred in law in not applying the correct comparitor in this case. In her submissions the appellant stated that “[t]he Court erred in law in the manner in which it compared the appellant to a full-time male employee without considering his marital status or the effect of child care commitments on such men”. The main question here is whether the appellant established a prima facie case of indirect discrimination. Did she draw the Court’s attention to a practice that bears “significantly more heavily” on members of the complainant’s sex than on members of the other sex? The appellant adduced no evidence as to how the practice of working late bears significantly more heavily on single mothers availing of child minding facilities than on single men availing of same. Therefore, she failed to establish a prima facie case of discrimination in this regard.

15.      On the issue of marital status the appellant cited the examples of a number of married women whose requests for reduced working hours had allegedly been acceded to by the respondent. The Labour Court made the following finding

“The Court does not accept that the evidence presented by the [appellant] goes far enough to imply a pattern or policy on the part of the respondent of preferring requests for reduced working hours from married women over similar requests made by single women. Accordingly, the Court must hold that there is no evidence on which it could hold that the decision to refuse the claimant’s request for reduced working hours was related to her marital status”.

16.      The circumstances in which the High Court will overturn a decision of a specialist tribunal, such as the Labour Court, has been considered in a number of cases. In Henry Denny & Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 IR 34 at p. 37, Hamilton C.J. stated that:

“ ... I believe it would be desirable to take this opportunity of expressing the view that the Courts should be slow to interfere with the decision of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsuitable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the Courts to review their decisions by way of appeal or judicial review.”

17.      This point is further elucidated in the judgment of Murphy J. in Faulkner v- Minister for Industry and Commerce (Unreported, High Court, Murphy J., 25th June, 1993). At page 8 of his judgment, which also concerned an appeal under Section 21 of the Employment Equality Act, 1977, Murphy J. states that:

“It is well settled law that, where a quasi judicial function is delegated to an expert administrative tribunal, the decision of such a tribunal cannot be challenged on the grounds of irrationality if there is any relevant material to support it. Authority for this proposition is to be found in the judgment of the Chief Justice in O’Keeffe v. An Bórd Pleanála [1992] I.L.R.M. 237 at 262 in the following terms:-

“I am satisfied that in order for an applicant for judicial review to satisfy a Court that the decision making authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant evidence which would support its decision.”

Conclusion

18.      Combatting discrimination in the workplace is an onerous undertaking. While levels of direct discrimination are on the decline, indirect discrimination persists in many areas. An area that is particularly difficult to regulate is that of part-time/flexi-time employment as the employer has a greater margin of appreciation when regulating such matters as working hours. The flexibility afforded by such work can also, of course, benefit the employee as mutually beneficial arrangements can be more easily made and amended. While the general legislative trend is to afford part-time workers greater protection, it is also important to recognise that employers must have the freedom to run their enterprise as they see fit, once then comply with the law.

19.      In the instant case, the Labour Court acknowledged that while the fact that the appellant’s request for shorter working hours was not acceded to may amount to unfairness in an industrial relations sense, it could not avail her complaint of discrimination. The employer was entitled, owing to sound non-discriminatory business reasons, to refuse such requests, and was found to have done so on a non-discriminatory basis.

20.      This Court in considering whether to allow the appeal against the decision of the Labour Court must consider whether that body based its decision on an identifiable error of law or on an unsustainable finding of fact. Did the Labour Court have relevant material before it on which to ground its determination? All findings of fact were sustainable based on the relevant material before the Labour Court. The determination also contained no identifiable error of law. I would dismiss the appeal.