Conlan v University of Limerick

• Jurisdiction: Ireland
• Judgment Date: 04 February 1999
• Date: 04 February 1999
• Docket Number: 1997 No. 533SP
• Court: High Court

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977

BETWEEN

PATRICIA CONLAN

PLAINTIFF/APPELLANT

AND

UNIVERSITY OF LIMERICK

DEFENDANT/RESPONDENT

AND

MINISTER FOR ENTERPRISE TRADE AND EMPLOYMENT

NOTICE PARTY

1997 No. 533SP

THE HIGH COURT

Abstract:

Labour law - Sexual Discrimination - Requirement that applicants for a post of Professor of Law have several years of experience at senior level - Whether such a requirement constituted indirect sexual discrimination since fewer women held posts at senior level - On which party did the onus of proof lie - Employment Equality Act, 1977 sections 2 and 3 - Treaty of Rome , Article 189(3)

In order to find that the plaintiff was subject to sexual discrimination, the court must be satisfied firstly, that one sex has been adversely affected by requirements more than the other and secondly, that the requirements are not essential and are not necessitated by objectively justifiable factors which have no relation to the plaintiff's sex. The order in which the court considers these issue is not important. The onus of proof is on the defendant to establish that discrimination did not occur. The High Court so held in upholding the decision of the Labour Court that the Plaintiff had not been subject to indirect sexual discrimination.

1 JUDGMENT of Mr Justice McCracken delivered the 4th day of February. 1999.

2 This is an appeal on a point of law from a determination by the Labour Court which issued on 21st October, 1997 pursuant to a claim by the Plaintiff that the Defendant had discriminated against her on grounds of sex in filling the post of Professor of Law.

3 The Plaintiff is a lecturer in law in the University of Limerick and in January, 1995 the Defendant advertised inviting applications for the position of Professor of Law. The terms of the advertisement are of considerable importance, and the relevant portion of it reads:

4 'Applications are invited from suitably qualified candidates holding a higher law degree, preferably at doctorate level. The successful candidate will have several years experience at a senior academic level and be a leading published researcher in a specialist field of law."

5 The Applicant applied for the position, and on 5th May, 1995 was notified that she had not been short-listed for interview as there were other candidates whose qualifications and experience more closely matched the immediate requirements of the Defendant. The Plaintiffs basic complaint is that, in requiring that an applicant should have several years experience at a senior academic level, the Defendant was indirectly discriminating against the Plaintiff on grounds of sex, in that this requirement meant that there would be very few females qualified for the post because there were very few females at a senior academic level. The matter was referred by the Labour Court to an Equality Officer who, on the 16th September, 1996, issued a recommendation that the Defendant had not discriminated against the Plaintiff. The Plaintiff appealed from this recommendation to the Labour Court. and the appeal was heard on the 16th April, 1997. On 21st October, 1997 the Labour Court issued its determination that there was no discrimination against the Plaintiff. This appeal is brought on the grounds that the Labour Court applied wrong principles of law in making its determination, and misinterpreted sections 2 and 3 of the Employment Equality Act, 1977.

6 The relevant sections of the Act are as follows:

7 "3(1) A person who is an employer or who obtains under a contract with another person the services of employees of that other 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 ... training or experience for or in relation to employment, promotion or regrading in employment or classification of posts in employment

8 3(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).

9 3(6) Without prejudice to the generality of subsection (A) a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion."

10 Subsection 2 of the Act purports to define discrimination by setting four examples. The only one relevant to the present circumstances is at Section 2(c), and reads as follows:

11 "Where because of his sex or marital status a person is obliged to comply with a requirement relating to employment or membership of a body referred to in Section 5, which is not an essential requirement for such employment or membership 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."

12 Although it is not expressly stated to be so, it is accepted that the Employment Equality Act. 1977 was enacted to comply with Directive no. 76/207/EEC and Article 189(3) of the Treaty of Rome. I do not think it is necessary to set out the provisions of the Directive in this judgment, but it clearly sets out the principle that there is to be no discrimination on the grounds of sex either directly or indirectly.

13 The application of the principles of the Directive to the Act were considered by the Supreme Court in Nathan -v- Bailey Gibson & Ors (1996) ELR 114. That case established the following principles:

14 1. Section 2 of the Act only refers to direct discrimination, and the examples given in it are examples of direct discrimination rather than indirect discrimination.

15 2. Section 3 of the Act applies to both direct and indirect discrimination.

16 3. The interpretation of Section 3 of the Act is not limited in any way by the provisions of Section 2, because the interpretation of Section 3 must be approached in the light of the Directive.

17 4. Initially, it is for the worker to show that the practice complained of bears more heavily on one sex than on the other. Once this is

18 established, it is then for the employer to show that, notwithstanding this fact, the practice complained of is in fact based on factors which are unconnected with the sex of the worker. In this regard. the onus of proof is clearly on the employer.

19 Hamilton C.J. said at page 128:

20 "In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. ft is sufficient for him or her to show that the practice complained of bears significantly more heavily on members 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 Plaintiffs sex.

21 Miss Finlay S.C. has referred me to a number of decisions of the European Court which emphasise that the national Court, or in the present case, the Labour Court, must make an objective finding in...