Telecom Éireann v O'Grady

JurisdictionIreland
Judgment Date04 February 1998
Neutral Citation1998 WJSC-SC 12660
Date04 February 1998
Docket Number[S.C. No. 138 of 1996]
CourtSupreme Court

1998 WJSC-SC 12660

THE SUPREME COURT

Hamilton C.J

Keane J.

Barron J.

138/1996
TELECOM EIREANN v. O'GRADY
IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977

BETWEEN:

TELECOM ÉIREANN
Appellant

and

BRENDAN PATRICK O'GRADY
Respondent

Citations:

EMPLOYMENT EQUALITY ACT 1977 S16

EEC DIR 76/207 ART 2.3

COMMISSION V ITALY 1983 ECR 3273

NESTOR V MURPHY 1979 IR 326

FAMILY HOME PROTECTION ACT 1976 S3(1)

MARLEASING SA V LA COMERCIAL INTERNACTIONAL DE ALIMENTACION 1990 1 ECR 4145

EMPLOYMENT EQUALITY ACT 1977 S3

EMPLOYMENT EQUALITY ACT 1977 S21(4)

LABOUR COURT NO EE 5/94

EMPLOYMENT EQUALITY ACT 1977 S19(2)

LABOUR COURT NO EE 14/1993

LABOUR COURT NO DEE 594

EMPLOYMENT EQUALITY ACT 1977 S16(2)

EEC DIR 76/207 ART 1

EEC DIR 76/207 ART 2

EMPLOYMENT EQUALITY ACT 1977 S3(1)

EMPLOYMENT EQUALITY ACT 1977 S2

MEAGHER V MIN FOR AGRICULTURE 1994 ILRM 1

VON COLSON & KAMANN V LAND NORDRHEIN WESTFALEN 1994 ECR 1891

HOFFMAN V BARMER ERSATZ KASSE 1984 ECR 3047

MATERNITY PROTECTION OF EMPLOYEES ACT 1981

TZU TSAI CHENG V GOV OF PENTONVILLE PRISON 1973 AC 931

Synopsis

Employment

Equality; sex discrimination; adoptive leave; maternity leave; interpretation of EC directives; differentiation between adoptive and maternity leave; adoptive leave scheme created by employer for women only; employer refused male employee adoptive leave; whether male adoptive parent treated less favourably than female adoptive parent; whether legislation gives effect to principle of equality in Directive; derogation from Directive permissible with regard to "pregnancy or childbirth"; whether this derogation extends to "adoption"; approach to be taken to interpretation of Directives; s.16 Employment Equality Act, 1977; Directive 76/207/EEC Held: Male adoptive parent discriminated against (Supreme Court: Hamilton C.J., Keane J., Barron J.04/02/1998)- [1998] 3 IR 432

Telecom Eireann v. O'Grady

1

Judgment of the Chief Justice delivered on the 4th day of February, 1998[GARRON

2

This is an appeal brought by Telecom Éireann (hereinafter referred to as the Appellant), against the judgment delivered by Mr. Justice Murphy on the19th day of April 1996 and the order made in pursuance there of on the same date dismissing the Appellant's appeal to the High Court on a point of lawagainst a determination made by the Labour Court on the 3rd day of August 1994, whereby it was determined that the Appellants had discriminated against Brendan O'Grady (the Respondent herein), in contravention of Section 3 of the Employment Equality Act, 1977by treating him less favourably than a woman would have been treated in similar circumstances.

3

The matter had come before the High Court by way of special summons in which the Appellants claimed an order pursuant to Section 21(4) of the Employment Equality Act, 1977(hereinafter referred to as the Act), allowing the Appellant's claim on a point of law in respect of the said determination of the Labour Court No.EE 5/94 and dated the 2nd day of August 1994.

4

The grounds of appeal, as set out in the special Endorsement of Claim on the said summons, were that the Labour Court erred and misdirected itself in law in holding that the Appellant discriminated against the Respondent by refusing him adoptive leave contrary to the provisions of the Employment Equality Act, 1977and in not holding that the affording of more favourable treatment to a female adoptive parent or, alternatively, the affording of less favourable treatment to a male adoptive parent is permitted by Section 16 of the Employment Equality Act, 1977.

5

The facts relevant to the determination of this issue are not in dispute and are set forth in the affidavit of Joseph Culbert, an Assistant Principal employed by the Appellant, and the exhibits therein referred to, namely, a letter dated the 8th day of November, 1991 from the Appellant's Personnel Administration Division to the Respondent, the recommendation number EE 14/1993 dated the 29th day of June 1993 of the Employment Equality Officer and the determination No. DEE 5/1994 dated the 2nd day of August, 1994 of the Labour Court and in the judgment of the learned trial judge.

6

Such facts may be summarised as follows:-

7

1. The Respondent, Brendan O'Grady is, and was at all times material hereto, employed as a night telephonist in the international exchange of the Respondent;

8

2. The Respondent and his wife travelled to Romania in May, 1991 where they adopted a child.

9

3. Following his return from Romania, the Respondent took additional"cost of substitution" leave in order to spend as much time as possible with his newly adopted child, a son, for bondingpurposes;

10

4. The Respondent returned to work on the 14th day of July,1991;

11

5. The Respondent was unaware of the existence of an adoptive leave scheme, until October, 1991at which time he applied for same;

12

6. By letter dated the 8th day of November, 1991 his application was refused on the basis that adoptive leave was available to female staff only. The said letter was in the following terms:-

13

"Thank you for your recent letter. The position at present is that adoptive leave is available to female staff only in accordance with the terms of DPS Circular 20/83 which you refer to in yourletter.

14

Adoptive leave is considered to be a natural extension of the maternity leave scheme and was introduced to overcome the anomaly between leave applying to natural mothers and adoptive mothers. This common treatment of natural and adoptive mothers does not extend to the treatment of natural or adoptive fathers.

15

This does not in any way undermine the Company's stated commitment to Equal Opportunities and the Company's record in this regard speaks for itself.

16

I genuinely appreciate the difficulties you are experiencing but the position as outlined in Circular 20/83 stands. With regard to the question of annual leave this is a matter for local management and I suggest you take it up with them.

17

I regret my reply can not be more favourable."

18

7. Circular 20/83 referred to in the aforesaid letter provides asfollows:-

"Circular 20/83: Special leave for adoptive mothers
19

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 19meán Fómhair 1983.

20

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

21

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

22

• - under a contract of employment, or otherwise, for a fixed term of either less than 26 weeks or of which there are less than 26 weeks to run.

23

(b) Adoptive leave will consist of 10 consecutive weeks leave with pay. At the officer's request, the leave will be extended by up to 4 weeks leave without pay.

24

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

25

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

26

(e) Paid adoptive leave will count as service in all respects. Departments are asked to ensure that all matters relating to adoptive leave are, as in the case of maternity leave, treated in strictconfidence."

27

8. The respondent's claim to be entitled to adoptive leave and that the refusal thereof was discriminatory was referred by the Employment Equality Agency to the Labour Court on the 7th day of April 1992, in accordance with the provisions of Section 19 of the Act.

28

9. The Labour Court referred the dispute to an equality officer for investigation and recommendation in accordance with the provisions of Section 19(2) of the Act;

29

10. The dispute was investigated by the equality officer, who found and recommended that "Telecom Éireann did not discriminate against Mr. Brendan O'Grady contrary to the provisions of the Employment Equality Act, 1977"(Recommendation No EE 14/1993).

30

11. The Respondent (represented by the Employment Equality Agency) appealed to the Labour Court against the said recommendation of the Equality Officer.

31

12. By its determination dated the 2nd day of August 1994 (No.DEE 594), the Labour Court held that:-

"the employer in this case, Telecom Éireann, did discriminate against the Appellant in contravention of the Employment Equality Act, 1977by treating him less favourably than a woman would have been treated in similar circumstances.rdquo;"

32

It is against this determination by the Labour Court that the Appellant has appealed, on a point of law, pursuant to the provisions of Section 21(4) of the Act.

33

The issue which was the subject of the recommendation by the Equality Officer and the determination of the Labour Court was whether the scheme as outlined in circular 20/83 as operated against the Respondent amounted to discrimination against him on the grounds of his sex contrary to Section 3 of the Act and in particular sub-section (2) thereof or whether Section 16 of the Act, which provided that:-

"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."

34

permitted the operation and implementation of such scheme without thereby contravening the provisions of the Act.

35

The Act is the principal act dealing with employment equality in the State and was enacted to give effect, inter alia, to the provisions of Council Directive 76/207/EEC of 9th February 1976 (hereinafter referred to as the Directive). As stated by the learned trial judge it was "the mechanism by which Ireland chose to perform itsobjects" under the said Directive.

36

Before dealing with the judgment of the learned trial judge it is desirable at this stage to set forth the relevant provisions of the Directive and of the Act.

37

The Directive is expressed to be a directive...

To continue reading

Request your trial
2 cases
  • Environmental Protection Agency v Neiphin Trading Ltd & Others
    • Ireland
    • High Court
    • 3 March 2011
    ...LTD) v MIN FOR AGRICULTURE 1996 ICLY 398 1996/5/1371 NATHAN v BAILEY GIBSON LTD & ORS 1998 2 IR 162 1996/7/2004 TELECOM EIREANN v O'GRADY 1998 3 IR 432 1998/32/12660 BHOSPHORUS HAVA YOLLARI TURIZM VE TICARET ANONIM SIRKETI v MIN FOR TRANSPORT & ORS 1994 2 ILRM 551 1994/8/2131 MAHER v BORD P......
  • Murphy v Cobh Town Council and Another
    • Ireland
    • High Court
    • 26 October 2006
    ...MONAGHAN UDC v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64 HOWARD v COMMISSIONER FOR PUBLIC WORKS 1993 ILRM 665 TELECOM EIREANN v O'GRADY 1998 3 IR 432 GRAVES v AN BORD PLEANALA 1997 2 IR 205 LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S4(5) LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S17(1)(b)......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT