Vavasour v Northside Centre for the Unemployed Ltd

• Jurisdiction: Ireland
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Docket Number: [1991 No. 524 Sp]
• Court: High Court

Vavasour v. Northside Centre for the Unemployed Ltd.

Doreen Vavasour and The Employment Equality Agency

Appellants

and

Northside Centre for the Unemployed Ltd., An Foras Áiseanna áiseanna Saothair and The Minister for Labour

Respondents

[1991 No. 524 Sp]

High Court

Labour law - Employment equality - Access to social employment scheme - Discrimination - Whether social employment scheme contained discriminatory requirement - Requirement to be in receipt of unemployment assistance or unemployment benefit for at least twelve months - Labour Court determination - Appeal to High Court on points of law - Employment Equality Act, 1977 (No. 16), s.2 (c).

Practice - Labour Court determination - Whether questions posed, findings and conclusions of the Labour Court correct - Appeal to High Court on point of law - Whether court has jurisdiction to entertain ground of appeal not argued before the Labour Court.

Statute - Interpretation - Social employment scheme - Requirement for employment - Whether 'essential' requirement -Employment Equality Act, 1977 (No. 16), s. 2 (c).

Section 2 of the Employment Equality Act, 1977, provides inter alia:—

"For the purposes of this Act, discrimination shall be taken to occur in any of the following cases —

• (c) where because of his sex or marital status a person is obliged to comply with a requirement . . . 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 first appellant applied to the Bonnybrook Unemployment Action Group (now the Northside Centre for Unemployment Ltd.) for employment under the social employment scheme. That scheme was introduced by the Minister for Labour to assist the long-term unemployed. The scheme was operated by An Fonai Áiseanna áiseanna Saothair (FÁS fás) and provided employment in projects for the benefit of the community. The first appellant was refused employment under the scheme as she had not been in receipt of either unemployment assistance or unemployment benefit. The second appellant referred the case to the Labour Court pursuant to the Employment Equality Act, 1977, claiming that the first appellant had been discriminated against in respect of access to employment contrary to that Act.

The claim against the action group was that they had breached s. 3 of the Act of 1977 which prohibits discrimination by employers. The claim against FÁS fás and the Minister for Labour was that they had infringed s. 7, which prohibits discrimination by employment agencies, and s. 9, which prohibits the procuring or attempting to procure discrimination outlawed by the Act. The appellants claimed that discrimination contrary to s. 2 (c) of the Act of 1977 had taken place and that the 'requirement' that the first appellant be in receipt of unemployment assistance or unemployment benefit was not an 'essential' requirement within the meaning of that section. They also claimed that 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.

The Labour Court referred the dispute to an equality officer for investigation. The equality officer held that in order to decide whether or not discrimination within the meaning of s. 2 (c) had occurred certain questions had to be answered. The first question was 'what is the requirement with which the first appellant was obliged to comply?' The second was 'whether the requirement is such that either a higher proportion of males than of females can comply with it or a higher proportion of single females than married females can comply with it?' If the answer to the second question was in the affirmative then the next question was 'is the fact a result of an attribute of their sex or marital status?' The fourth question asked by the equality officer was 'is the requirement essential for such employment?' The equality officer's recommendation concluded that there had been no unlawful discrimination against the first appellant. This recommendation was appealed to the Labour Court which upheld the decision and conclusions of the equality officer.

The appellants then appealed to the High Court pursuant to the Act of 1977 on a number of points of law. The appeal raised four points. The first was that the Labour Court in making its decision had applied the wrong burden of proof in requiring the appellants to establish their case beyond a reasonable doubt. The second was that the Labour Court had failed to apply the correct criteria to the facts of the case in order to ascertain whether a prohibited discrimination had taken place. The third point was that the Labour Court had erred in holding that the eligibility requirement relating to receipt of unemployment assistance 'as an essential requirement' of her proposed employment and, fourthly, the appellants claimed that...