The Equality Tribunal has published one upheld case decided in June 2012 and three upheld decisions decided in July 2012.

The only successful June Decision involves selection for redundancy during the course of the ‘protected period’ of a pregnant worker.

The first July case is also a ‘protected period’ Decision, in this case involving selection for redundancy. In both cases, the action against the complainant created a presumption of discrimination which the respondents were unable to rebut.

The second and third July cases concern age discrimination. The first involves a discriminatory refusal to allow a worker, approaching potential retirement, to go on training courses and also a subsequent discriminatory dismissal through mandatory retirement. The final case involves selection for redundancy. Both are cautionary tales on how not to deal with retirement issues.


EMPLOYMENT EQUALITY DECISIONS UPHELD IN WHOLE OR IN PART:


1. DEC-E2012-087 Elaine Ryan v K&A Accountants and Financial Advisors

Issues: Discriminatory Dismissal - Gender - Pregnancy - Selection for redundancy- - Prima Facie Case
Award:

Here, the complainant was working on accounts in the respondent company. During the course of her probationary period, which was also during her protected period, she was selected for redundancy, after the company introduced time management systems to “highlight areas of vulnerability in the respondent processes. ...A cost benefit analysis was carried out and the complainant's section was identified as the most vulnerable section”. It also was found that she had refused to take a pay cut, unlike other colleagues.

However these exercises failed to rebut the presumption which had arisen in light of the complainant being in a protected period. This applied as much in a probationary period as at any other time in employment.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-087-Full-Case-Report.html


2. DEC-E2012-092 Lana Gavrilova v Kristaps Slakters t/a Hot Scissors Hair Studio

Issues: Dismissal - less favourable treatment - gender, conditions of employment, pregnancy and discriminatory dismissal
Award: 7,000

The complainant was pregnant when she commenced employment with the respondent as a homeworking beautician. There were conflicts of evidence on whether the complainant fulfilled appointments, was genuinely on sick leave during the protected period, particularly in relation to an allegation that she was seeing clients when supposed to be sick leave, and whether there were altercations with members of her family visiting the workplace.

The complainant had received a number of warnings but the respondent had delayed a final written warning until after the baby was born and this was accompanied by a letter of dismissal.

As in other protected period cases, the Tribunal emphasised that it is only in exceptional circumstances that dismissal during the protected period will not amount to direct gender discrimination. Having broadly accepted the complainant’s version of events, the Tribunal decided that the burden of proof had shifted to the respondent. Given that they had failed to give the complainant an opportunity to improve before dismissing her, the Tribunal concluded that this was a discriminatory dismissal and awarded the complainant €7,000.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-092-Full-Case-Report.html


3. DEC-E2012-093: O'Neill v Fairview Motors Ltd

Issues: Age – discriminatory conditions of employment -discriminatory dismissal - retirement - objective justification- purposive interpretation
Award: €30,000

This is an interesting case on age discrimination in both conditions of employment, in this case, access to training programmes, and through a subsequent mandatory retirement. The complainant, a car mechanic, was approaching the age of 65, which he reached in July 2007. His employer approached him in May 2007, indicating that he would be retiring on his 65th birthday. The complainant disputed this and it was agreed that he should work for at least another year, in order to meet the requirements of a pension scheme in the industry. In the meantime, he was no longer put forward for training programmes, which were considered essential to update skills as a car mechanic, while younger colleagues continued to attend them.

Despite continuing to dispute his mandatory retirement, the complainant was dismissed on his 66th birthday. On the issue of access to training, the Tribunal considered that the complainant had been treated less favourably than younger colleagues and that the employer had failed to rebut the inference of discrimination and therefore that part of the claim succeeded. It can be said that there are connections between the two sets of issues in this case. If the employer had a well-established retirement policy, it is not certain that the outcome would have been the same.

On the issue of dismissal, the Tribunal concluded that, in the absence of a written contract of employment, or a written policy, there was no settled policy in the company on mandatory retirement, nor was there a custom and practice in the industry, particularly since many car mechanics did not reach their retirement age, having previously entered self-employment.

The Tribunal, initially, had to deal with section 34(4) of the Act which provides that, “it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees”. The Tribunal applied the principle, from EU law, of what it described as “purposive interpretation” of the Act, sometimes described as the ‘indirect effect’ of a Directive, in this case, the Framework Employment Equality Directive 2000. It concluded that the Act must be interpreted to require the respondent to justify its reliance on the mandatory retirement age, in accordance with Article 6 of the Directive.

Of course, unlike other equality grounds, direct age discrimination can be justified, basically on the same test as for indirect discrimination, namely, is there a ‘legitimate aim’ and that the setting of a retirement age is an ‘appropriate and necessary’ means of achieving that aim. In the absence of a settled policy in the company, the Tribunal, on the facts of this case, rejected health and safety, competence and job rotation issues as legitimate aims on the part of the company.

In consequence, the complainant was awarded €30,000.

In one of the unsuccessful June Decisions, DEC-E2012-086, Paul Doyle v ESB International Limited, the Tribunal also found a way of reconciling section 34(4) with the justification requirements of the Directive. However, in this case, the Tribunal was “satisfied on the full facts of this case [despite no written policy on mandatory retirement] that the respondent has a well established practice of compulsorily retiring its employees to a pension when they reach the age of 65.”

In brief, the respondent satisfied the Tribunal that it had in place a range of policies which justified a retirement age of 65. The practical implications of these Decisions are that employers, including small and medium-sized employers, must work out their retirement policies before initiating mandatory retirement and not after the event.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-093-Full-Case-Report.html


4. Decision DEC-E2012-096: Mercury Engineering Ltd

Issues: Discriminatory Dismissal, Age, Discriminatory selection for redundancy
Award: €22,000

This case is another age discrimination case, this time on selection for redundancy. Although there were widespread redundancies in the company, the complainant was selected, after 21 years’ service as an electrician, despite being significantly more experienced that others selected. Although not formally part of the Tribunal’s Decision or award of compensation, it cannot have helped the respondent’s case that the complainant was dismissed at 40 minutes’ notice, even if this was company policy “to prevent sabotage”.

However, there were serious deficiencies in the company’s selection procedures. First, the complainant received a brief letter merely outlining his right of appeal. However the letter kept on file “consisted of 10 paragraphs explaining the company's procedure for making people redundant”. The Tribunal categorised this as “dishonesty”. Furthermore, there was “no documentation, whatsoever, of this decision making process by either his line manager or the Human Resources Section as to who was to be made redundant.” The respondent admitted that the complainant would have scored very highly on the selection criteria which ought to have been applied.

The Tribunal applied the English Court of Appeal decision in Nagarajan v London Regional Transport [1999] IRLR 572 (EWCA) to the effect that “the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a ‘significant influence’”. The Tribunal concluded that a prima facie case of direct age discrimination had been made out, that the presumption had not been rebutted by the respondent and awarded the complainant €22,000.

Once again, the employer who applies considered and well-documented policies and procedures is more likely to persuade the Tribunal that age discrimination has not occurred.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-096-Full-Case-Report.html