Bernadette Treanor writes:

Employment Equality Decisions issued in July 2014 Reviewed

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

1. The first review below looks at two recent Decisions on individual claims taken by a group of complainants against the ESB and the Trustees of the ESB Defined Benefit Pension Scheme.  The Decisions found that the ESB was not the correct respondent, that the claims were out of time even though lodged within one month of the alleged unfavourable treatment and that the treatment did not relate to a rule of the scheme.

2. The second review looks at a claim by a Polish national that she was dismissed while on sick leave recovering from a back operation by her Slovakian employers.

3. The third review looks at the Decision of the Tribunal in respect of the referral to the CJEU in respect of a surrogacy-related case.

1. DEC-P2014-001 McNamara and seven others v ESB, and DEC-P2014-002, McNamara and seven others v Trustees of the ESB Defined Benefit Scheme

Issues: Pensions Acts 1990-2012, Equal Pension Treatment, age, frivolous, vexatious and misconceived, correct respondent, rules of pension scheme

The complainants, eight in all, lodged complaints against two respondents in respect of the same complaint which was that the application of the pension levy on them and the consequential effect on their pension benefits amounted to discrimination of them on the age ground.  Both respondents raised preliminary issues and requested that they be addressed in the first instance and the Equality Officer decided to do that.

The first ESB argued that it was a stranger to the complaints, and in the alternative, that the claims were time-barred and that the claims did not relate to a rule of the scheme.  The second respondent, the Trustees of the Scheme argued that the complaints were time-barred and that they did not relate to a rule of the Scheme.

The Equality Officer considered the meaning of frivolous, vexations and misconceived as detailed in section 77A of the Employment Equality Acts as applied to the Pensions Acts and looked at Farley v Ireland and others, 1997 IESC 60 and concluded that in order to dismiss a complaint pursuant to that provision he must be satisfied that the “complainants have no reasonable chance of succeeding in their claims”.

In terms of the complaints being time-barred, the complainants lodged their claims a month after the decision to reduce their benefits.  However, the time limit provided at section 81E of the Pensions Acts stated that the claims must be lodged within “six months from the date of termination of the relevant employment” which can be extended to 12 months for reasonable cause.   The Equality Officer found that the complainants sought to have time limits imposed as prescribed by section 75 of the Employment Equality Acts applied in the instant case without any authority supporting it.  He further found that the time limits under the Pensions Acts were clear and unambiguous and must be applied.  On that basis the claims were out of time as the complainants had all ceased employment in excess of twelve months before the date the claims were referred to the Tribunal.

The Equality Officer went on to consider the other arguments presented by the respondents for the sake of completeness and accepted both, that the ESB was not the correct respondent and that the imposition of the reduction of the complainants’ benefits was not on foot of a rule of the Scheme but was instead on foot of a statutory obligation imposed on the trustees of the Scheme.  On the basis of all arguments the Equality Officer found that the complaints were frivolous, vexatious and misconceived and dismissed all eight claims against both respondents.

Why are these cases of interest?

Issues: Family status, disability, dismissal

The complainant was employed for less than a year although the duration appears to be in dispute. She had an operation on her back and informed her employer that she was unable to return to work before Christmas 2011.  The respondent presented evidence listing discontent with the complainant’s performance in terms of attendance and annual leave.  There also appears to have been some confusion in the employer’s evidence as to whether or not the complainant informed them she wanted to resign.  The complainant’s husband gave evidence that he went to the respondent premises for a haircut while the complainant was on sick leave and noticed a new person working there.  He was told the complainant had left her position and had been replaced.  He replied that she had not and refused to take her P45 but this was posted to the complainant subsequently.  The Equality Officer accepted that the complainant suffered from a disability in terms of the Acts.  He found the evidence of the respondent and his partner to be unreliable and concluded that they recruited a permanent replacement for the complainant even though they knew she was on sick leave.  On that basis the Equality Officer found that the complainant’s dismissal was directly related to her disability and therefore discriminatory.

While the Equality Officer accepted that the flexibility of the replacement was a factor in his recruitment, he did not consider it a motivation in the complainant’s dismissal and her complaint of dismissal on the family status ground was not upheld.

The complainant was awarded €12,000 as compensation for her discriminatory dismissal on the disability ground.

Why is this case of interest?

- The treatment of the complainant was discriminatory on the disability ground and unrelated to any issue of reasonable accommodation.  Many forget that the two issues can each stand-alone.

- It is a very obvious case of the assessment of credibility of a witness directly feeding into conclusions.

To read the full case law decision:

http://www.workplacerelations.ie/en/Cases/2014/July/DEC-E2014-049.html

3. DEC-E2014-050, Ms. Z v Government Department, Board of Management of a Community School

Issues: Gender, disability, surrogacy, reference pursuant to Article 267, CJEU Decision C-363/12 (Ruling date 18 March 2014)

This case was one of two that drew considerable attention when referred to, and ruled upon by, the CJEU.  In this case, there was no dispute that the complainant suffered from a disability and the complainant gave evidence that her employer was supportive of her throughout the process of the surrogacy including her needs for leave.  However, when she sought to take maternity leave or adoptive leave she was refused as she had neither given birth to her daughter nor adopted her.

The Equality Officer, on reading the initial papers, considered that a referral to the CJEU may be appropriate.  He held an initial hearing, requesting further submissions, and subsequently referred the matter to the CJEU.  Following receipt of the CJEU Ruling he held a hearing for closing arguments with regard to the Judgment and subsequently issued this Decision.

The CJEU ruled that both the Equal Treatment Directive, 2006/54/EC and the Framework Directive, 2000/78/EC must be interpreted as meaning that

- a refusal to provide paid leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex and

- a refusal to provide paid leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability

The Equality Officer decided he was compelled to find that no unlawful discrimination took place in terms of the complainant’s treatment and her claim was unsuccessful.

To read the full case decision:

http://www.workplacerelations.ie/en/Cases/2014/July/DEC-E2014-050.html