A Telecom Eireann scheme providing adoptive leave for mothers only is "clearly discriminatory" against men, the Supreme Court has ruled. The court was dismissing an appeal by Telecom against a High Court judgment in favour of a male worker who was refused adoptive leave.
Telecom's adoptive leave for mothers was instituted in 1983 to comply with a Ministerial circular advising that adoptive leave should be available to all women civil servants.
Yesterday, the Supreme Court found that the provisions of the Employment Equality Act, interpreted under the wording and purpose of the 1976 EEC Directive on Equal Treatment, do not permit more favourable treatment for a woman adoptive parent.
The Chief Justice, Mr Justice Hamilton, said the directive permits derogation in certain circumstances from the principle of equal treatment in working conditions.
In exercising that discretion, the Oireachtas, by Section 16 of the Employment Equality Act (EEA), had exempted arrangements by an employer for special treatment for women in connection with pregnancy or childbirth. The Oireachtas could have made special provision for women on adoption but did not do so.
He said the provisions of Section 16 of the EEA do not apply to Telecom Eireann's scheme for adoptive leave for mothers and held the scheme was "clearly discriminatory" against men.
Mr Justice Keane said it has been found by the Labour Court and the High Court that employers who undertake such a scheme of adoptive leave find themselves legally obliged to afford adoptive fathers leave when they were not obliged, in the case of biological mothers, to afford biological fathers the same facility.
He asked why the Oireachtas, in exempting maternity leave from the terms of the Employment Equality Act, differentiated between maternity leave and adoptive leave.
In the present case, the legislature had clearly expressed its intention and it was not open to the court to depart from that.
He noted that impending legislation would make it clear that the exemption was applicable to adoptive as well as maternity leave. But that was no assistance to Telecom at present.
The court had dismissed the appeal by Telecom Eireann in favour of Mr Brendan Patrick O'Grady, of Willow Park Road, Glasnevin, Dublin, a night telephonist in Telecom's international exchange.
Mr O'Grady and his wife travelled to Romania in May 1991, where they adopted a child. On his return, Mr O'Grady took additional "cost of substitution" leave to spend as much time as possible with his adopted son. He returned to work on July 14th, 1991.
He was unaware of the existence of an adoptive leave scheme until October 1991, when he applied for it.
His application was refused in a letter of November 8th, 1991, which said adoptive leave was available only to women. The circular dealing with adoptive leave outlines that such leave is for 10 consecutive weeks with pay.
In August 1994, the Labour Court held that Telecom had, in refusing adoptive leave, discriminated against Mr O'Grady, in contravention of the Employment Equality Act, by treating him less favourably than a woman in similar circumstances.
The High Court upheld the Labour Court decision and Telecom appealed to the Supreme Court.
In his judgment yesterday, the Chief Justice said the EEA was the principal Act dealing with employment equality in the State and was enacted to give effect to the provisions of a 1976 EEC Directive on the implementation of equal treatment for men and women in employment, vocational training and promotion and working conditions.
The High Court had accepted that national legislation must be construed in accordance with the purpose of the directive.
He said it was clear the provisions of Telecom's adoptive leave circular treat adoptive mothers more favourably than adoptive fathers.
While the purpose of the directive was to secure equal treatment for men and women in working conditions, it allowed derogation from that principle and was particularly without prejudice to provisions concerning the protection of women, particularly in pregnancy and maternity.
He said the directive reserved the right of member-states to retain, or introduce provisions, which were intended to protect women in connection with pregnancy and maternity. The Oireachtas exempted from the provisions of the EEA such arrangements by an employer which provided special treatment to women in pregnancy or childbirth.
It was open to the Oireachtas to make special provision for women in connection with pregnancy, maternity and adoption but the Oireachtas chose not to do so and limited the exemptions to arrangements on pregnancy and childbirth.
The Chief Justice said the provisions of the EEA were explicit and there was no exemption for special arrangements for adoption. The Telecom adoptive leave scheme was not a statutory scheme and not one to which the EEA applied.
Dismissing the appeal, he said an adoptive child has not been born to a woman who benefits under the adoptive leave scheme and the pregnancy and childbirth exceptions to the prohibition against discrimination in the EEA were, therefore, not applicable.
Mr Justice Barron said he agreed with the other members of the court.
