Bernadette Treanor writes:

Employment Equality Decisions issued in September 2013 Reviewed

These decisions of the Equality Tribunal were reviewed by Bernadette Treanor, Managing Consultant, Beo Solutions, and former Equality Officer at the Equality Tribunal.

The Equality Tribunal published seven decisions that were upheld or partly upheld in September.

The first below addresses an interesting situation where a person being retired because of his age coincided with a transfer of undertakings and the Decision considers who is the correct employer.

The second case considered below relates to a Prison Officer who alleged he was discriminated against in a selection process. The case usefully addresses the selection process in detail and raises a number of issues around incidents occurring after the submission of the complaint

The third case is an equal pay claim where the respondent did not engage with the Tribunal.

The next case addresses equal pay in addition to discriminatory treatment and victimisation. The argument relating to personal negotiations supporting differences in pay is considered (as ‘grounds other than’) as are incidents that occurred after the submission of the complaint.

This case considers whether a dismissal took place during the protected period for pregnant workers.

The sixth case below relates to harassment on the Traveller Community ground. Interestingly, because the incident was found to have occurred the Equality Officer found that the respondent had manifestly failed to prevent the harassment.

Harassment on the race ground based on his Moldovian nationality was upheld in this case on the basis that the complainant was referred to as a foreigner. Constructive discriminatory dismissal was also upheld.

1. DEC-E2013-084

Issues: Age, Retirement, TUPE, Which employer is liable, Objective Justification

The complainant was informed on 19 October 2009 that he would be dismissed by reason of retirement on his 65th birthday, 3 January 2010. The complainant was told not to report for work after 23 December 2009. The employer undertaking was transferred to the respondent at midnight on 23 December 2009. The complainant lodged complaints against both organisations as employers. The complaint against the first employer, Vicuna Ltd, was dismissed by the Equality Officer as misconceived when he found that the employer for the purposes of his retirement was the second named employer Applus Car Testing Service Ltd. The respondent argued that as the complainant did not report for work after the transfer took place and as he had never been paid by it liability for this issue rested with the first employer. However, the Equality Officer found that the date of dismissal was, in fact, the complainant’s birthday on 3 January 2010.

He also did not accept that the discriminatory act took place when the complainant was notified of the impending retirement as this decision could have been rescinded until the date it took effect on 3 January 2010. Having identified whom he considered the correct respondent the Equality Officer found that the complainant had established a prima facie case of discrimination as his dismissal was solely due to his retirement which in turn was directly connected with his age. The Equality Officer found that evidence supported the complainant’s contention that he was not aware retirement at 65 was mandatory.

The Equality Officer found the argument raised by the respondent, that it would be perverse for a person to be in receipt of a pension while still drawing a salary, was considerably weakened by the fact that the complainant in this case had chosen not to join the scheme on taking up his employment and listed a number of Irish and CJEU cases relating to this topic. The Equality Officer used Donnellan v Minister for Justice, Equality and Law Reform and Others as authority for him to interpret section 34(4) as requiring objective justification.

The respondent introduced 3 justifications. One, relating to the need to recruit and promote young people was found not to avail the respondent as a private employer and indeed the Equality Officer considered whether an express policy to recruit only younger staff was entirely legal. In respect of the other two justifications the Equality Officer found that the respondent had failed to produce supporting evidence and therefore the complainant was entitled to succeed in the claim.

The complainant was awarded €20,000 for the distress suffered.


Why is this case of interest?

- This Decision shows how the Tribunal will consider retirements that occur around the time of a transfer of undertakings particularly in respect of liability.

- The Decision includes a clear consideration of a number of objective justifications raised by the respondent that were not accepted.

- In the recent case of Hospira v Roper and Others, EDA1315, albeit in reference to section 34(3), the Labour Court could not accept the principle that age discrimination had to be objectively justified and found that the Oireachtas had provided the objective justification in enacting the legislation.

Find the Decision here: http://www.workplacerelations.ie/en/Cases/2013/August/DEC-E2013-084- Full_Case_Report.html


2. DEC-E2013-090, A Prison Officer v Irish Prison Service

Issues: Age, disability, victimisation, selection process, events after submission of claim,

This complaint relates to a prison officer who alleged discrimination on the grounds of race and disability in respect of a selection process in which he was unsuccessful. Following the lodgement of his complaint with the Tribunal he alleged he was victimised because of that complaint.

The respondent argued that neither the disability nor the victimisation claims were properly before the Equality Officer.

In respect of the disability aspect the respondent argued that the complainant has a BSc and was at the time studying for a law degree and given his level of knowledge there could be no explanation for his failure to identify disability on the original complaint form. The Equality Officer was satisfied that the nature of the complaint (of discrimination) was merely expanded upon in the submission in compliance with the Louth VEC Judgement. Notwithstanding that she granted an extension of time for referring the disability complaint under Section 77 of the Acts. In respect of the victimisation claim the Equality Officer accepted the reference to victimisation in the complainant’s submission as a new complaint and found that the matter was validly before her.

The Decision contains a useful consideration of the selection process, particularly on the age ground, and upheld the allegations of discrimination on the age ground in respect of that process.

The complainant’s allegations of discrimination in the selection process on the disability ground were also upheld. The Equality Officer found the complainant’s version of events more compelling given inconsistencies in the respondent evidence.

In terms of victimisation, the Equality Officer not only upheld the allegations but went on to consider and uphold an incident that occurred after the submission was made grounding the complaints of victimisation and just three days before the first day of hearing. Notably, the Labour Court decision in Cork VEC and Hurley does not appear to have been raised by the respondent. While difficulties for complainants in respect of repeatedly lodging complaints in respect of more recent incidents are noted, as are the administrative difficulties for the employment infrastructure in tracking a multitude of complaints in respect of continuing incidents involving the same parties, it remains to be seen how this issue of events postdating the complaint will be settled in future case law.

The Equality Officer ordered redress of €33,000 for discriminatory treatment (on the age and disability grounds) and €47,000 for victimisation.


Why is this case of interest?

- It contains an Equality Officer’s considerations of a selection process.

- Matters post-dating the complaint, and the submission, were considered and findings made in respect of them which would appear, on the face of it, to be at odds with the Hurley Labour Court Decision.

Find the Decision here:

http://www.workplacerelations.ie/en/Cases/2013/August/DEC-E2013-090- Full_Case_Report.html


DEC-E2013-091, Pawlukowska v Villaverde Ltd.

Issues: Equal pay, gender, uncontested

The complainant lodged a claim for equal pay with a male comparator in the same employment. The respondent did not engage with the Tribunal at any stage and the Equality Officer considered the case on the basis of the evidence provided by the complainant. The difference in pay, according to the complainant was initially 70 cent per hour changing to 20 cent per hour.

The Equality Officer accepted that the complainant was engaged in ‘like work’ in respect of the male comparator and that the complainant had established a prima facie case of discriminatory treatment on the gender ground. In such situations it is for the respondent to demonstrate if grounds, other than the discriminatory grounds – in this case gender, exist for the difference in pay and render the rates of pay lawful. As the respondent did not respond to the complaint no such ground was considered and the Equality Officer found there were no grounds other than gender for the pay disparity.

The complainant was awarded equal remuneration with the named comparator from 27 September 2008 until 27 September 2011, the latter being the date of referral of the claim. This award was considered income for the purposes of the Income Tax Acts.


Why is this case of interest?

- It indicates how a clam for equal pay will be considered where the only information available is that of the complainant.

Find the Decision here:

http://www.workplacerelations.ie/en/Cases/2013/August/DEC-E2013-091- Full_Case_Report.html

DEC-E2013-094, A Worker and a Hotel

Issues: Equal Pay, equal treatment, gender, victimisation, like work accepted, grounds other than

The complainant was employed as a leisure centre supervisor. The comparator was employed after her as health club attendant. About two years later the complainant discovered that the comparator was receiving a higher rate of pay and she raised the matter with her employer who attempted to remedy the situation. The comparator was promoted to supervisor shortly after this and then fourteen months later he was appointed as Leisure Centre Assistant Manager without competition. The complainant did not have an opportunity to compete for the appointment. After his appointment, the complainant lodged the instant claim with the Tribunal. She asserts that the comparator was informed of this and that he felt threatened by this resulting in adverse treatment of her in the form of undermining her efforts at work. The centre manager also approached the complainant to see if she was going to pursue the complainant lodged with the Tribunal. The complainant asserts that these constituted victimisation in terms of the Acts. The respondent asserted that staff at the centre became aware of the complainant’s claim following a Judicial Review in respect of the admissibility of the instant case.

The Equality Officer considered, in the first place, whether the allegations of victimisation could be considered since the alleged victimisatory incidents occurred after the lodgement of the complaint. He was satisfied that the nature of the victimisation claims were set out in the written submission and a subsequent letter and accepted them as new complaints. No mention appears to have been made in respect of the Labour Court decision in Cork VEC v Hurley, EDA1124. The Equality Officer found that he had jurisdiction and proceeded to consider the substantive allegations including victimisation.

Like work was accepted by the respondent who argued that the grounds for the difference in pay were in fact the comparator’s ability to negotiate and command a higher rate of pay. In fact, the Equality Officer found that the respondent did not operate individually negotiated rates of pay and he was not satisfied that the complainant was afforded an opportunity to negotiate her rate of pay. He found that the respondent had failed to present the cogent evidence required in such circumstances. Indeed, he was of the view that the respondent, in attempting to remedy the differences in pay, realised that the difference in pay could not be justified by objective factors unrelated to the complainant’s gender and consequently the respondent could not avail of the defence in section 19(5) of the Acts.

Quoting section 8(8) of the Acts the Equality Officer found that the respondents refusal or failure to afford the complainant the opportunity to compete for the position, on balance, discriminated against the complainant on the gender ground. In particular, the Equality Officer did not accept that the complainant’s attendance pattern (a three day week) could have precluded the respondent from at least consulting with her in this regard.

In considering the victimisation alleged by the complainant the Equality Officer found the respondent’s evidence more compelling and did not uphold the allegations. The complainant was awarded equal pay for the relevant periods and €10,000 for the discriminatory treatment in respect of promotion.


Why is this case of interest?

- The consideration of market forces enabling an employee or potential employee to negotiate favourable pay rates was a justification put forward in respect of the difference in pay. This has been considered by the Tribunal before, notably in DEC-E2004-020, Glen v Ulster Bank where that argument was successful. In the instant case however, it appears it was the fact that the complainant was not in a position to negotiate her pay rate that was considered determinative.

- A new basis of complaint, victimisation, was considered even though all of the alleged incidents occurred after the original complaint had been lodged. Neither party referred to the Labour Court Cork VEC v Hurley Decision.

Find the Decision here:

http://www.workplacerelations.ie/en/Cases/2013/August/DEC-E2013-094- Full_Case_Report.html


DEC-E2013-096, Poplawska v Moore Cleaning Services

Issues: Gender, disability, dismissal during protected period,

The complainant began her employment with the respondent in January 2009. By July that year she was pregnant and on extended sick leave running directly into her period of maternity leave. There was a dispute as to when, and indeed, whether the respondent had been informed of her pregnancy. The respondent ultimately issued her with her P45 indicating that she had ceased her employment on 19 July 2009.

The Equality Officer found that the complainant had informed the respondent of her pregnancy at the appropriate time and was unconvinced by the assertions of the respondent that she had terminated her employment by not attending work. The complainant’s allegations of discrimination on the gender ground were upheld and she was awarded €10,000. The allegations on the disability ground were found to be unsubstantiated and were not upheld.


Why is this case of interest?

- This case is another example of the cogent evidence an employer will be expected to present in such circumstances. It has long been the case that mere assertions have been insufficient to establish a case to the benefit of a complainant. This case indicates that mere assertions are also insufficient for a respondent to rebut a prima facie claim of discrimination.

Find the Decision here:

http://www.workplacerelations.ie/en/Cases/2013/August/Dec-E2013-096- Full_Case_Review.html

DEC-E2013-099, Whitehouse v C&M Construction Ltd.

Issues: Harassment, membership of the Traveller community,

The complainant is a member of the Traveller community who was employed as a labourer on various sites by the respondent. It is agreed that when some scrap metal was stolen, a supervisor called the complainant and left a message asking him to “tell your cousins not to come back to the site again”.

The Equality Officer considered the respondent’s Personal Harassment Policy and found it complied with SI 208 of 2012. She also found that the respondent’s Health and Safety Officer responded appropriately when the matter came to her attention. However, the Equality Officer found that the respondent “manifestly did not prevent the incident occurring”. She also noted that the person who had left the message was a supervisor and, in addition, that there was an element of premeditation on his part. In particular, she noted that he would have had time to reconsider while he was dialing and waiting to leave the message.

In relation to other allegations of name calling the Equality Officer preferred the evidence of the respondent and these were not upheld.

The Equality found that the respondent could not avail of the defence in section 14A(2). In considering the totality of the evidence before her the Equality Officer awarded the complainant €500.


Why is this case of interest?

- In this case the respondent’s policies were found to be entirely in compliance with SI 208 of 2012, (which came into force after the complaint was submitted) and although the respondent’s actions on becoming aware of the issues was considered to have attempted to reverse the effects of the harassment in accordance with 14(2)(b) the respondent manifestly did not prevent the incident in accordance with 14(2)(a). It could be argued, in fact, that the respondent had taken reasonably practicable steps to prevent such incidents from occurring. However, the redress awarded is low.

Find the Decision here:

http://www.workplacerelations.ie/en/Cases/2013/August/DEC-E2013-099- Full_Case_Report.html


DEC-E2013-101, Mihalas v Noxtad Ltd, T/A Carlton Abbey Hotel

Issues: Race, dismissal, harassment on the race ground

The complainant, a Moldovian national, complained of harassment and alleged constructive dismissal on the race ground. The respondent was in liquidation and the liquidator indicated in advance to the Tribunal that they would not attend the hearing.

The complainant alleged that he was the subject of harassment from a Mr. B and that management were aware of this both from their own observations and from his complaints.

The Equality Officer accepted that the comments the complainant asserted were made to him had in fact been made and that they could constitute harassment of him on the race ground based on his nationality. The comment described that might be connected to his nationality related to his being a foreigner.

The complainant asserted that he was the subject of what might be described as an assault with the same or similar comments being made. The Equality Officer found the complainant to be a credible witness and his allegations were accepted as fact without any supporting evidence.

The Equality Officer found that the complainant was harassed on the race ground and constructively dismissed on the race ground as the reference to him being a foreigner was accepted as a reference to the fact that the complainant was of a different nationality. She was satisfied that given the actions of the manager it was reasonable for him to resign and claim constructive dismissal.

The complainant was awarded €20,000 as compensation not being remuneration.


Why is this case of interest?

- The Equality Officer found the complainant’s assertions to be entirely credible and capable of establishing a prima facie case of discrimination on the race ground. As the respondent was in liquidation no rebuttal was presented.

Find the Decision here:

http://www.workplacerelations.ie/en/Cases/2013/August/DEC-E2013-101- Full_Case_Report.html