The complainant, who was legally represented, lodged three complaints with the Equality Tribunal. He accepted that he had been convicted in the District Court for driving without a valid and correct driving licence. He argued that since this only came to light after he lodged his complaints, even though it was clearly known to him before that, the Tribunal should proceed to investigate his complaints. It appears that “he deliberately deceived his employer by presenting it with a forged driving licence in respect of his appointment as a driver of large waste disposal lorr[ies]”. The respondent argued that the complainant had by his actions frustrated his contract of employment and rendered it invalid.
The Equality Officer noted that there was a saving provision in the Unfair Dismissal’s legislation allowing complainant’s to pursue complaints even where there has been agreement to contravene the income tax or social welfare legislation. He noted that there was no such provision in the Employment Equality Acts.
He considered Hogan J.’s judgement in the Hussein case and Laffoy J’s consideration in the Red Sail Frozen Foods case. He stated that the contract in this case was not illegal from the outset and went on, “It is clear from the dictum of Laffoy J above that knowledge of the illegality and degree of active participation on the part of an employee are factors which this Tribunal must consider.”
In the instant case the employee was not only an active participant in the illegality but the sole perpetrator of it. However, the Equality Officer made a comment that “questions might be asked as regards the level of checks and balances” the respondent operated.
The Equality Officer found that the nature of the complainant’s illegal behaviour went to the core of the employment relationship, not least in respect of insurance cover in the event of an accident, and as such the contract was unenforceable. On that basis all his claims failed including the claims in respect of equal pay and victimisation.
Full decision:
Why is this case important?
Where employees are required to hold a licence or other evidence of a skill or ability, is this checked properly in your organisation for insurance and other purposes?
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