North Western Health Board v Martyn

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,HEDERMAN J.,McCarthy J.
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-SC 2078
• Court: Supreme Court
• Docket Number: [1982 No. 1007 Sp]
• Date: 01 January 1988

1987 WJSC-SC 2078

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

76/85

NORTH WESTERN HEALTH BOARD v. MARTYN

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT 1977AND IN THE MATTER OF LABOUR COURT DETERMINATION No. DEE1/1982

BETWEEN

NORTH WESTERN HEALTH BOARD

Respondent/Appellant

and

CATHERINE MARTYN

Appellant/Applicant

Citations:

EMPLOYMENT EQUALITY ACT 1977 S2(C)

HEALTH ACT 1970 S14

EMPLOYMENT EQUALITY ACT 1977 S2(d)

EMPLOYMENT EQUALITY ACT 1977 S19

NORTH WESTERN HEALTH BOARD V MARTYN 1985 ILRM 226, 1988 ILRM 519, 1987 IR 565

Synopsis:

TRIBUNAL

Function

Facts - Ascertainment - Employment - Discrimination - Labour Court - Review of findings of equality officer - Absence of evidence of facts on which findings were based and on which decision of Labour Court was made - ~See~ Employment, discrimination - (76/85 - Supreme Court - 21/12/87) [1988] ILRM 519 [1987] IR 578

|North Western Health Board v. Martyn|

LABOUR COURT

Procedure

Facts - Ascertainment - Equality officer - Findings - Review - The court should furnish unequivocal findings of fact referable to the evidence which supports those findings - ~See~ Employment, discrimination - (76/85 - Supreme Court - 21/12/87) [1988] ILRM 519 [1987] IR 578

|North Western Health Board v. Martyn|

EVIDENCE

Estoppel

Proceedings - Facts - Assumptions - Acquiesence - Assumptions of fact made by an equality officer were not challenged or disproved by an employer either on review by the Labour Court or on appeal to the High Court - The employer was not entitled to dispute the existence of the facts so assumed as the basis of the proceedings hitherto - ~See~ Employment, discrimination - (76/85 - Supreme Court - 21/12/87) [1988] ILRM 519 [1987] IR 578

|North Western Health Board v. Martyn|

EMPLOYMENT

Discrimination

Qualification - Age limit - Married woman - Clerical post - Labour Court - Facts not established - Section 2(c) of the Act of 1977 states that, for the purposes of that Act, discrimination shall be taken to occur (inter alia) 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 - The respondent had been employed by Sligo County Council for 12 years as a full-time permanent clerical officer but in December, 1967, she had to resign upon her marriage, in accordance with regulations then prevailing - In 1980 the respondent applied to the appellant Board for employment as a Grade IV clerk but the Board refused to so employ the respondent on the ground that she was over 27 years old and that one of the qualifications for such employment was that the applicant should be under that age when appointed to the post - The respondent claimed that the Board's refusal constituted discrimination within the meaning of s.2(c) of the Act, and that claim was investigated by an equality officer - That officer found that the Board's refusal constituted such discrimination but that there were no grounds for awarding compensation to the respondent - The Board appealed to the Labour Court and that court affirmed the finding of discrimination and awarded the respondent #3,000 compensation - The Board appealed to the High Court pursuant to s.21, sub-s.4, of the Act - At the hearing of that appeal the judge was unable to identify any evidence establishing the factual basis of the conclusions of the Labour Court, and by his judgment (14/12/84) he held that there was no proof of discrimination within the meaning of s.2(c) of the Act and that, accordingly, there were no grounds for awarding compensation to the respondent - The respondent appealed against the order of the High Court - Held that the Court was unable to identify any evidence to prove or disprove the existence of discrimination within the meaning of s.2(c) of the Act of 1977 - Held, nevertheless, that the Court must accept the factual assumptions made by the equality officer since the Board had failed to challenge those assumptions in the Labour Court and in the High Court, and had declined the offer of the trial judge to remit the matter to the Labour Court for the purpose of establishing the relevant facts - Held that the decision of the trial judge that the respondent was not entitled to compensation should be affirmed - Held that the respondent's appeal would be allowed to such limited extent - ~Semble~: tribunals should furnish unequivocal findings of fact referable to the evidence which supports those findings - Employment Equality Act, 1977, ss.2, 21, 22 - (76/85 - Supreme Court - 21/12/87) [1988] ILRM 519 [1987] IR 578

|North Western Health Board v. Martyn|

1 JUDGMENT delivered on the 21st day of December 1987by FINLAY C.J.

2 I have had the opportunity of reading the judgment which is about to be delivered by McCarthy J. and I agree both with his conclusion that this appeal should be allowed and with the reasons for which he has reached that conclusion. I would only like to add the following comments. The allowing of this appeal and the setting aside of the Order made in theHigh Court leaves undisturbed the conclusion reached by the Labour Court that the age limit provided for in the competition for appointment to the grade IV clerk in the Health Board constituted indirect discrimination within the meaning of Section 2(c) of the Act of 1977. It is, I think, necessary therefore to emphasise that that conclusion is upheld by reason only of the fact that it formed an assumption of fact made by the Equality Officer and apparently not contested by the Health Board. The decision of the Labour Court should not, therefore, be taken as a precedent upon which a conclusion could safely be based that relatively low age limits can or do constitute indirect discrimination within the meaning of the subsection to which I have referred.

3 The other matter which I feel I should express a view on is that it seems to me that this case underlines very strongly the necessity for an alteration in the procedures of both the Equality Officer and the Labour Court so as to provide unequivocal findingsof fact made referable to the evidence upon which they have been founded so as to permit in the event of an appeal to the High Court of the proper determination of that appeal.

4 I appreciate that it is the essence of the procedures laid down by the Act of 1977 that they commence at least in a relatively informal form and that in particular the function of the Equality Officer to whom the Court may refer a complaint is partly conciliatary and only partly that of an Arbitrator. Notwithstanding these considerations, however, it seems to me desirable that an Equality Officer should in his or her report set out the facts as found and, in short terms, the evidence upon which they have been found. If a party appealing the ruling or recommendations of an Equality Officer to the Labour Court seeks to put in issue any of the facts so found they should unequivocally do so in their Notice of Appeal and, in turn, the Labour Court upon the conclusion of its hearing should in anunambiguous fashion state the facts which it has found and the evidence upon which it has found them. Such a procedure would, in my view, obviate the difficulties which arose in this case.

5 JUDGMENT delivered the 21st day of December 1987by HEDERMAN J.

6 I agree with the conclusion reached in the judgment of the Chief Justice and the judgment to be delivered by McCarthy J.

7 In the instant case the judgment must be limited to theparticular circumstances of this case. It is, in my view highly unsatisfactory that all the relevant questions of fact should be treated in the manner in which they were dealt with, namely assertions without any proof. While the 1977 Act allows a free hand to the Equality Officer and to the Labour Court, regarding the taking of evidence or statistics upon which they are required to act when weighing up numerical proportions of the public for the purpose of statutory comparison, such latitude is bound inevitably to involve wide variations of views between one Equality Officer and another as to which patterns of social and working life are sufficiently well known to be safely taken for granted (and if the issues arise later can be judicially assumed without proof): and which they should insist upon having proved strictly and by statistical evidence if necessary. This case in my view clearly falls into the latter category.

8 However for the purpose of this appeal, both before the Equality Officer and the Labour Court the parties proceeded on the basis that the assertions by theappellant were not being challenged.

9 The burden of proving the facts necessary to establish discrimination lies upon the person alleging it.

10 As I have already indicated, both parties appear to have been content to have the matter dealt with before the Labour Court on what virtually amounts to an admission of the relevant facts which would constitute indirect...