Aer Lingus Teo v Labour Court

• Jurisdiction: Ireland
• Judge: [NEM DISS],WALSH J.
• Judgment Date: 20 March 1990
• Neutral Citation: 1990 WJSC-SC 1
• Docket Number: (141/88)
• Court: Supreme Court
• Date: 20 March 1990

AER LINGUS TEO v. LABOUR COURT

BETWEEN/

AER LINGUS TEORANTA

Applicant

Appellant

v.

THE LABOUR COURT, EVELYN OWENS, CORMAC P. McHENRY ANDSEAN O'MURCHU

Respondents

1990 WJSC-SC 1

(141/88)

THE SUPREME COURT

JUDICIAL REVIEW

Synopsis:

EMPLOYMENT

Discrimination

Marriage - Retirement - Women - Airline - Former scheme required female cabin crew to retire on marriage - Scheme abandoned upon enactment of Act of 1977 - Re-employment of some former cabin crew who had retired under the scheme upon marriage - Conditions and terms of re-employed women worse than those applicable to female cabin crew who had not married or who had married after abandonment of scheme - Judicial review - Statute - Interpretation - Prospective effect of enactment - Unfair, but not unlawful, discriminations exercised by the applicants before the enactment of the Act of 1977 - The Act of 1977 does not have retrospective effect - The disadvantages to which the claimants were subject were not the result of any unlawful discrimination exercised, on the grounds of the claimants" sex or marital status, by the applicants after the date of the enactment of the Act of 1977 - The court prohibited the respondents from proceeding further with the investigation of the claimants" dispute - Employment Equality Act, 1977, ss. 2, 10 - (141/88 - Supreme Court - 20/3/90)

|Aer Lingus Teo. v. The Labour Court|

JUDICIAL REVIEW

Relief

Labour Court - Proceedings - Reference - Lodgement - Determination of issues - Relief should not be sought before determination of issues by Labour Court - (141/88 - Supreme Court - 20/3/90)

|Aer Lingus Teo v. The Labour Court|

LABOUR COURT

Procedure

Reference - Lodgement - Time limit - Issue - Determination - Issue to be determined by court when considering recommendation of equality officer - Judicial review - Relief should not be sought before determination of issues by Labour Court - (141/88 - Supreme Court - 20/3/90)

|Aer Lingus Teo. v. The Labour Court|

STATUTORY INTERPRETATION

Enactment

Effect - Presumption - Prospectiveness - Employment - Unlawful discrimination - Unfair discrimination exercised before date of enactment - Absence of unlawful discrimination after enactment - (141/88 - Supreme Court - 20/3/90)

|Aer Lingus Teo v. The Labour Court|

Citations:

AER LINGUS, STATE V THE LABOUR COURT 1987 ILRM 373

EMPLOYMENT EQUALITY ACT 1977 S2(b)

EMPLOYMENT EQUALITY ACT 1977 S3

EMPLOYMENT EQUALITY ACT 1977 S2(a)

EMPLOYMENT EQUALITY ACT 1977 S19(5)

EEC DIR 76/207

EMPLOYMENT EQUALITY ACT 1977 S10

EMPLOYMENT EQUALITY ACT 1977 S2

EMPLOYMENT EQUALITY ACT 1977 S19

EASTERN HEALTH BOARD V SEVENTY-NINE PSYCHIATRIC NURSES EE 15/1984 DEE 5/1984

1 JUDGMENT delivered on the 20th day of March 1990by WALSH J. [NEM DISS]

2 This matter comes before the Court by way of appeal from the order and judgment of Miss Justice Carroll given on the 26th day of February1988.

3 The application had been one for judicial review by way of certiorari and prohibition in respect of two interim decisions of the Labour Court dated the 8th June 1987 and the 30th June 1987 in a claim by twenty four hostesses employed by Aer Lingus and hereaftercalled "the complainants". The background to the case is dealt with in some detail in the judgment of this Court in the case of The State (Aer Lingus) v. The Labour Court 1987 ILRM.

4 The complainants had been employed by Aer Lingus as hostesses prior to August 1970. In accordance with the usual terms of employment in the Public Service their contracts contained a condition that they must retire upon marriage. This Public Service marriage bar was abolished in1973.

5 As each of the complainants had married prior to August 1970 their contract of employment with Aer Lingus ceased and each one received by virtue of the provisions of the contract a marriage gratuity which was in the form of a lump sum payment. They thereupon ceased to be employees of Aer Lingus by virtue of the terms of the initial contract. Subsequently Aer Lingus employed them at various times on a temporary basis during summer peak seasons. The marriage bar did not affect temporary employment and the complainants were paid on an incrementalbasis. In August 1970 Aer Lingus recruited air hostesses on the basis of seven year contracts and the hostesses so recruited were not subject to the marriage bar which only applied to permanent positions. None of the complainants was recruited on that basis. Nineteen other hostesses who had been recruited before 1970 but who had married after August 1970 and who had been obliged to retire by virtue of the marriage bar were re-employed by Aer Lingus on seven year contracts in 1973. These particular hostesses were given recognition and credit for their service dating back to the date of first entering into the employment of Aer Lingus as an hostess including any period they spent as a temporary hostess after their marriage. Subsequently other hostesses who had married after August 1970 were also reinstated on the basis of a seven year contract. The complainants continued to be employed as married temporary air hostesses but were not offered the seven year contract. In 1977 Aer Lingus accepted into full permanent employment all air hostesses who had been employed on the seven year contracts and agreedto grant them full recognition of their past service. The complainants were not included in this arrangement and continued to do temporary seasonal work.

6 In 1980, by means of a collective agreement negotiated between the complainants union namely, the Federated Workers Union of Ireland and Aer Lingus, it was agreed that the complainants would be admitted to permanent employment provided they satisfied certain specified criteria. Part of the agreement was that "all other aspects of privileged travel rules, sick leave provisions, departmental seniority, etc. will operate on the basis of the actual date of recommencement of employment". In the result the complainants were admitted to permanent employment on the 19th May 1980 and were placed at the bottom of the seniority listing.

7 On the 3rd August 1982 each of the complainants served notice on Aer Lingus complaining that she was the victim of discrimination contrary to sect. 2(b) and sect. 3 of the Employment Equality Act, 1977, in that the company was guilty of such discrimination by failing to take into account the pre-marriage permanent service andthe post-marriage temporary service prior to their re-employment for use in deciding seniority ranking affecting all aspects of the position including the choice of route, paid holidays, leave allotment, pensionsetc.

8 The question of whether the complainants were out of time or not was the subject of a hearing by the Labour Court on the 27th June 1983 and the decision of that body notified on the 10th August 1983 was that they were out of time as they had not lodged their claims within six months of the occurrence of the alleged discrimination. However, the Labour Court did hold as admissible matters referred to in a letter sent on behalf of the complainants on the 1st October 1982 complaining of particular instances of alleged discrimination in May 1982, July 1982 and September 1982. The alleged acts of discrimination in 1982 were all to the effect that they had not been given the privileges or rights which they would have been...