A HIGH Court judge decided yesterday it was unlawful for Telecom Eireann to give "adoptive leave" to women employees only. Mr Brendan Patrick O'Grady, a night telephonist, and his wife went to Romania in May 1991 and adopted a child. He was refused adoptive leave.
The refusal was on the basis that such leave, provided for Telecom staff as a result of a 1983 public service circular, was available for women employees only.
Mr O'Grady claimed he was being treated less favourably than a woman.
Adoptive leave consists of 10 consecutive weeks' leave with pay. On request, a four week extension without pay can be given.
Mr Justice Murphy, in his judgment, said the essential issue of law was whether Section 16 of the 1977 Employment Equality Act would allow this discrimination in favour of women.
Mr O'Grady contended that the words "pregnancy and childbirth" applied to the biological relationship between a mother and child and were not wide enough to capture the non biological relationships between a mother and child whom she had adopted.
The Labour Court had decided in favour of Mr O'Grady's interpretation. Telecom appealed to the High Court.
Mr Justice Murphy said the background to the 1977 Act was an EC council directive of 1976 which said there would be no discrimination on grounds of sex.
He said the Irish parliament - unlike Italy - in enacting the 1977 Act chose to permit an employer to arrange for or provide special treatment to women in connection with "pregnancy or childbirth" only.
The Irish parliament could have expressed this exemption by reference to the words "pregnancy or maternity", the words sanctioned in the EC council directive. It chose not to do so.
Mr Justice Murphy said he could find no justification for interpreting the word "childbirth" as if it were the word "maternity" or otherwise interpreted to include adoption. Accordingly, the discrimination was not permitted by the statutory exemption.