Vavasour and Another v Butler

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 13 May 1993
• Neutral Citation: 1993 WJSC-HC 2770
• Date: 13 May 1993
• Court: High Court
• Docket Number: No. 524Sp/1991

1993 WJSC-HC 2770

THE HIGH COURT

No. 524Sp/1991

VAVASOUR & ANOR v. BUTLER

BETWEEN:

DOREEN VAVASOUR AND ANOTHER

Appellants

and

BRENDAN BUTLER AND OTHERS

Respondents

Citations:

EMPLOYMENT EQUALITY ACT 1977 S19

EMPLOYMENT EQUALITY ACT 1977 S21

EMPLOYMENT EQUALITY ACT 1977 S2(c)

EMPLOYMENT EQUALITY ACT 1977 S2

EMPLOYMENT EQUALITY ACT 1977 S3

NORTH WESTERN HEALTH BOARD V MARTYN 1987 IR 565

EMPLOYMENT EQUALITY ACT 1977 S7

EMPLOYMENT EQUALITY ACT 1977 S9

EMPLOYMENT EQUALITY ACT 1977 S2(b)

Words & Phrases:

CEF

Subject Headings:

EMPLOYMENT: applicant

EVIDENCE: admissibility

Mr. Justice Costello

1 The "Social Employment Scheme" was introduced by the Minister for Labour in February 1985 to assist the long-term unemployed. Conditions for participation in the scheme initially were that a person had to be unemployed for more than one year and in receipt of unemployment assistance and to be aged 25 or more. In April 1986 the scheme was amended so that conditions for participation in it were that a person had (a) to be over 25 and in receipt of unemployment assistance or (b) over 25 and unemployed and in receipt of unemployment benefit for at least twelve months. The scheme was designed to provide those eligible for participation in it with work for an average of 2.5 days per week for up to one year on projects intended to be of benefit to the community. The projects could be organised by public sector organisations and voluntary bodies and included such activities as the improving of local facilities, cultural activities, and community and social work. At the time these proceedings started it was operated by An Foras Aiseanna Saothair ("FAS") (one of the respondents herein). FAS paid a specific sum per week to participating organisations for each person who worked on the project and the sponsor paid this sum weekly to each of the participants.

2 In 1987 the Bonnybrook Unemployment Action Group (one of the respondents to this appeal and hereinafter "the Action Group") had received authorisation to recruit under the scheme 20 members of staff. In November of that year Mrs. Vavasour, one of the appellants herein, applied to the Group for employment under the Scheme. Her application was refused. She was a married lady who had reared her family and had first completed a course in Maynooth College in community studies during which she had worked with the Group. The Group wished to employ her but it could not, explaining to her that as she was not in receipt of either unemployment assistance or unemployment benefit she was not eligible for employment under the scheme. She then sought the assistance of the Employment Equality Agency (the second appellant herein) and the Agency wrote to the Labour Court on the 23 December 1987 referring the dispute to the Court under Section 19 of the Employment Equality Act,1977, claiming that Mrs. Vavasour had been discriminated against in respect of access to employment contrary to the Act's provisions arising from the fact that unemployment assistance was not payable to her because her husband's earnings were taken into account in assessing her eligibility. The Labour Court referred the dispute to an Equality Officer for investigation. The recommendation of the Equality Officer is dated the 1st December 1989. She concluded that there had been no unlawful discrimination against Mrs. Vavasour. Mrs. Vavasour and the Agency appealed this Recommendation to the Labour Court on the 10 January 1990 under Section 21 of the 1977 Act. The Labour Court issued its determination of the appeal on the 20 May 1991. It upheld the recommendation of the Equality Officer and concluded that the Social Employment Scheme did not constitute discrimination under Section 2(c) of the Act. By special Summons of the 17 June, Mrs. Vavasour and the Agency have appealed to this court as permitted by said section.

3 The relevant section of the 1977 Act which defines discrimination for the purposes of the Act is Section 2. This contains four sub-paragraphs. The appellants claimed that discrimination contrary to sub-paragraph (c) took place. This sub-paragraph provides that for the purposes of the Act discrimination shall be taken to have occurred

"when 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".

4 Mrs. Vavasour's case was that the Social Employment Scheme discriminated against her as a married woman. The discrimination prohibited by Section 2(c) arose because (i) the "requirement" that she be in receipt of unemployment assistance was not an "essential requirement" within the meaning of the section and (ii) a substantially higher proportion of men than of women and a substantially higher proportion of single women than of married women could comply with this requirement.

5 It is claimed that the Bonnybrook Unemployment Action Group breached Section 3 of the 1977 Act, that FAS and the Minister for Labour infringed Sections 7 and 9 of the Act (which prohibit discrimination by employment agencies and prohibits the procurement of discrimination outlawed by the Act) and these three parties have been joined as respondents in these proceedings.

6 An appeal to this court can only be brought on a point of law. The appellants raise four points. Firstly, it is said that the Labour Court in making its determination applied the wrong burden of proof. It is claimed that, as a matter of law, the factual basis of a complaint of prohibited discrimination need only be established on the balance of probabilities and that the Labour Court required the complainants to establish their case beyond a reasonable doubt. Secondly, it is said that the Labour Court failed to apply the correct criteria to the facts of the case in order to ascertain whether a prohibited discrimination had taken place. Thirdly, it is claimed that the Labour Court erred in law in holding that the eligibility requirement relating to receipt of unemployment assistance as an "essential requirement" of her proposed employment. And fourthly, it was urged that even if there was no discrimination under Section 2(c) that discrimination under Section 2(b) had been established.

7 A consideration of these claims will, I think, be assisted if I begin by summarising the parts of the recommendations of the Equality Officer which are relevant to them, as these were considered and expressly...