Telecom Éireann v O'Grady

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 19 April 1996
• Neutral Citation: 1996 WJSC-HC 2494
• Docket Number: No. 658 Sp/1994
• Court: High Court
• Date: 19 April 1996

1996 WJSC-HC 2494

THE HIGH COURT

No. 658 Sp/1994

TELECOM EIREANN v. O'GRADY

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977

BETWEEN

TELECOM EIREANN

APPELLANT

AND

BRENDAN PATRICK O'GRADY

RESPONDENT

Citations:

EMPLOYMENT EQUALITY ACT 1977 S3

EMPLOYMENT EQUALITY ACT 1977 S2

EMPLOYMENT EQUALITY ACT 1977 S2(a)

EMPLOYMENT EQUALITY ACT 1977 S3(1)

EMPLOYMENT EQUALITY ACT 1977 S3(4)

EMPLOYMENT EQUALITY ACT 1977 S25

EMPLOYMENT EQUALITY ACT 1977 S16

AER RIANTA V IDATU LABOUR COURT DEE 3/1990 (?)

EEC DIR 207/76 ART 2(3)

TREATY OF ROME 1957 ART 189

MAR LEASING V LA COMMERCIL INTERNATIONALE ALIMENTACION 1990 1 ECR 4156

TREATY OF ROME 1957 ART 5

HOFMANN V BARMER ERSATZKASSE 1984 ECR 3047

COMMISSION V ITALY 1983 ECR 3273

ITALIAN NATIONAL LAW (NO 903/1977)

EEC DIR 207/76 ART 2

TELECOM EIREANN V O'GRADY LABOUR COURT DEE 5/1994

Synopsis:

ADOPTION

Employee

Leave - Entitlement - Exclusion - Discrimination - Justification - Female employees entitled to adoptive leave - Male employee not so entitled - Unlawful discrimination on ground of sex - (1994/658 Sp - Murphy J. - 19/4/96) - [1996] 2 ILRM 374

|Telecom Eireann v. O'Grady|

EMPLOYMENT

Discrimination

Adoption - Leave - Entitlement - Wife qualified for adoptive leave - Husband not so qualified - Community law authorized discrimination for protection of women in regard to pregnancy and maternity - Domestic legislation authorised discrimination for protection of women in regard to pregnancy or childbirth - Exclusion of husband being unlawful discrimination on ground of sex - Employment Equality Act, 1977 (No. 16), ss. 2, 3, 16 - Council Directive 76/207/EEC, art. 2 - (1994/658 Sp - Murphy J. - 19/4/96) - [1996] 2 ILRM 374

|Telecom Eireann v. O'Grady|

WORDS AND PHRASES

"Pregnancy or childbirth"

Employment - Conditions - Equality - Requirement - Married couple - Adoption - Adoptive leave - Female employees entitled to such leave - Male employees not so entitled - Unlawful discrimination on ground of sex - (1994/658 Sp - Murphy J. - 19/4/96)

|Telecom Eireann v. O'Grady|

1 Judgment of Mr. Justice Francis D. Murphy delivered on the 19th day of April 1996

2 The Respondent, Mr. Brendan O'Grady is, and has been for some time, employed as a night telephonist in the International Exchange of the Appellant, Telecom Eireann. He and his wife travelled to Romania in May 1991 where they adopted a child. Sometime following their return home, Mr. O'Grady applied for "adoptive leave". His application was refused on the basis that such leave, which is provided for the Appellant's staff pursuant to a public service circular, No. 20/83 dated the 19th September, 1983, is available for women employees only. The text of that circular, which now forms part of a voluntary scheme, provides as follows:-

"Circular 20/83: Special Leave for Adoptive Mothers"

3 A Dhuine Uasail,

4 I am directed by the Minister for the public service to say that following discussions at general council the following arrangements should apply to women civil servants adopting a child after 19 Meanfomhair 1983.

5 a 2 (a) Adoptive leave will be available to all women civil servants except those employees:

6 • - on a permanent basis for less than 18 hours each week or

7 • - under a contract of employment, or otherwise, for a fixed term of either less than 25 weeks or which there are less than 25 weeks to run.

8 (b) Adoptive leave will consist of 10 consecutive weeks leave with pay. At the officer's request, the leave would be extended by up to four weeks leave without pay.

9 (c) Adoptive leave will commence as soon as the child is placed with the officer for adoption.

10 (d) A woman who intends to take adoptive leave should give adequate notice of her intention to take such leave.

11 (e) Paid adoptive leave will count as service in all respects.

12 Departments are asked to ensure that all matters relating to adoptive leave are, as in the case of maternity leave, treated in strict confidence."

13 It is sufficient to note that the scheme available to employees of Telecom Eireann pursuant to that circular is confined exclusively to women. It may also be noted — though it is not of crucial importance — that the draftsman of the circular recognised the clear distinction between "adoptive leave" and "maternity leave" whilst appreciating that both were sensitive matters which should be treated in confidence.

14 The question then was whether the scheme aforesaid discriminated against Mr. O'Grady on the grounds of his sex contrary to Section 3 of the Employment Equality Act, 1977and in particular, Section 2 thereof. That issue was referred to the Labour Court who in turn referred the matter to an Equality Officer for investigation and recommendation. In his report dated 19th June, 1993 the Equality Officer, Mr. Gary Dixon, concluded that Telecom Eireann had not discriminated against Mr. O'Grady contrary to the provisions of the 1977 Act. In his report, Mr. Dixon quoted the material sections of the 1977 Act as follows:-

15 a 2 (a) For the purposes of this Act, discrimination shall be taken to occur in any of the following cases:

16 (a) Where by reason of his sex a person is treated less favourably than a person of the other sex.

17 2 3(1) "An employer" shall not discriminate against an employee — in relation to — conditions of employment.

18 3 3(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 in relation 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 whether the circumstances in which both such persons or classes are or would be employed are not materially different."

19 Mr. O'Grady's submission that his employer discriminated against him within the meaning and for the purposes of Section 2(a) aforesaid is prima facie well founded. Women employees may obtain adoptive leave. Men similarly employed were not entitled to any comparable right. The essential issue of law before the Equality Officer; the Labour Court on appeal from him and this Court is whether Section 16 of the 1977 Act as properly interpreted would allow this apparent discrimination. That Section provides as follows:-

"16. Nothing in this Act shall make it unlawful for an employer to arrange for or provide special treatment to women in connection with pregnancy or childbirth".

20 It was Mr. O'Grady's...