
Bernadette Treanor writes:
Employment Equality Decisions issued in August 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 first case relates to claims in respect of conditions of employment and equal pay with only the latter upheld.
The second case finds an employer liable who did not provide training to a pregnant employee
The third case relates to a claim upheld because the complainant did not get his contract in his own language while Polish colleagues got theirs in English and Polish.
Case 4 relates to sexual harassment and attracted an award of two years pay plus interest in a situation where the employer conducted an investigation into the allegations.
Cases 5 to 8 all relate to disability and the provision or otherwise of reasonable accommodation. The message is clear from the tribunal, a failure to consider it, to consult on it and to reflect on whether your organisation would be expected to provide it will result in a finding against the employer.
DEC-E2013-063, Ziolkowska and Gallagher T/A Avenue Barbers and Gallagher T/A Hair & Beauty
Issues: Race, gender, equal pay, respondent accepting then denying being employer
The complainant originally lodged a complaint against the first named respondent until a P45 was received from the second named respondent against whom she lodged a second complaint. The first named respondent accepted that it was the employer but subsequently resiled from this. The second named respondent accepted that it was the employer but it too resiled from this. The Equality Officer ultimately held the first named respondent was the employer at all times. Throughout this Decision the respondents’ approach was such that the Equality Officer stated that their approach displayed the “lack of diligence and regard …. applied to employment related issues in their respective businesses.”
The complainant claimed equal pay with three different comparators on the race and gender grounds and anybody who has been involved in equal pay claims will know how onerous this can be. The Equality Officer took the pragmatic approach of initially addressing a comparator who was perceived to be earning the higher amount. The respondent accepted that she performed like work with this comparator and argued that grounds other than the discriminatory ground existed for the difference in pay. However, he failed to produce any evidence supporting this position. Once the Equality Officer found that the complainant was entitled to equal pay with this comparator it was not necessary to examine the equal pay claims in respect of those comparators earning the same or less.
The complainant made a number of other allegations in respect of discrimination in respect of harassment and in respect of her conditions of employment all of which were examined but not upheld on either the race or gender grounds.
The complainant was awarded equal pay for the period from 22 February 2009 to 24 February 2010.
Why is this case of interest?
- This case demonstrates how an employer can undermine its own credibility
DEC-E2013-065, Richardson v Pure Escape Limited (in voluntary liquidation)
Issues: gender, pregnancy, training
This complaint was originally lodged on the family status ground. The Equality Officer stated that claims relating to pregnancy are relevant to the gender ground.
The complainant was employed on a six month probationary contract for 20 hours per week with an hourly rate and the facility to earn commission on the sale of products and treatments. The complainant asserted that shortly after she started working she informed her employer that she was pregnant with twins. According to the Decision the parties dispute the start and end dates of her probationary period. The complainant asserts she started on 10 March 2010 while the respondent asserted that she started on 15 February 2010. Her probationary period was extended by three months. The respondent stated that this was a result of her poor sales performance. The complainant asserts that she requested training on Guinot facial products before Christmas and although she was told there was nothing before then another employee who started after the complainant did the training. The complainant undertook training that required a 70% to pass and she failed this twice. She and another colleague received a verbal written warning.
The Equality Officer accepted that complaints relating to pregnancy are appropriate to the gender ground rather than family status. He noted that there had been an EAT hearing and determination on a claim of unfair dismissal of the complainant. When this was raised with the complainant she withdrew her claim of discriminatory dismissal.
The respondent, now in voluntary liquidation, previously sent in a written submission and this was considered by the Equality Officer. He also accepted the complainant’s assertion that the only reason she was not given the Guinot training was because she was pregnant and this was uncontroverted by the respondent’s written submission. On that basis he found that this amounts to discriminatory treatment in relation to training. He concluded that the ending of a probationary period and the making of someone permanent does not amount to promotion and found that the complainant had not established a prima facie case of discrimination in respect of promotion.
In respect of the equal pay claim made by the complainant, that by not being trained on Guinot facial products the complainant was unable to earn commission from them. However, the comparator had sold 135 treatments (15 Guinot) while the complainant sold 57. When this was put to the complainant she could not disagree with the figures and the Equality Officer found that the complainant was unable to establish facts to support her claim of discrimination in respect of equal pay.
The complainant was awarded €4,000 for the discrimination in respect of training.
Why is this case of interest?
- Putting training off because an employee is pregnant maybe prima facie discrimination. Obviously consideration should be given if the employee requests the delay.
DEC-E2013-069, Zagurskas and Elephant Haulage Ltd. (in liquidation)
Issues: race (nationality), equal pay, contract in English
This is yet another case where the respondents are in liquidation but in this case no previous written submission was to hand. The complainant alleged that he was paid less than 6 named comparators and that he was dismissed when others with less service were retained.
The complainant had no knowledge whatsoever of his comparators’ remuneration and the Equality Officer found this was fatal to the complainant’s complaint in respect of equal pay and said it was simply impossible for him to determine whether a valid complaint existed. Essentially this means that the complainant failed to establish a prima facie case in respect of equal pay.
However, the complainant’s evidence was accepted in respect of his only having received a contract in English while his Polish colleagues received a contract in English and Polish. The Equality Office was satisfied that this constituted discrimination of the complainant on the race ground (nationality). He was awarded €500.
Why is this case of interest?
- If you provide contracts in various languages ensure that it is available in the necessary language for each employee to avoid a less favourable comparison between the different nationalities.
DEC-E2013-070, Ms. A and A Retail Chain
Issues: Sexual Harassment, employer defense, constructive discriminatory dismissal, same facts proving different claims
This decision awards the full amount possible to the complainant, two years salary with the addition of interest. It should be noted that some of the evidence is presented for the first time in the Equality Officer’s conclusions.
The complainant began working with the respondent at age 17 and she asserted that two supervisors began making inappropriate comments of a sexual nature to her from shortly after she was employed. Comments were also made to her mother who was also an employee. The Decision documents the alleged comments and an incident that took place during a night out. The complainant complained after the night out and while initially denying any liability the respondent eventually undertook an investigation. The complaints were upheld in respect of the night out and the accused supervisor was subject to disciplinary action in respect of the upheld complaints. The Equality Officer stated that the respondent’s actions in respect of the investigation cannot be faulted and that it was approached with professionalism and integrity. The Equality Officer was critical of the employer’s failure to inform the complainant of the action taken against the accused supervisor and stated that she “did not really receive any substantive reassurances for her personal safety which is ultimately what the defense in S.14(2) is about: employers have to find an effective way to stop such illegal conduct, in a manner that is commensurate with the options at their disposal. He goes on to say that the accused person could easily have been moved to another store.
On the basis of that the Equality Officer found that despite its extensive investigation it did not take reasonably practicable steps in the meaning of s. 14(2)(a) to prevent the complainant’s harassment from recurring. The Act states that what is required is that the employer is to have something in place to prevent the harassment from occurring and the use of this provision in respect of potential recurrences is interesting. In practical terms, however, it would have seemed appropriate to prevent the parties from interacting by moving the accused when the allegations were upheld if only to prevent any potential for victimisation.
The Equality Officer also found that the complainant had clearly indicated to the employer of her difficulties in working with the harasser and gave it ample opportunity to address her concerns in a manner that would have put her in a position to return to work but failed to do so. He was satisfied that the complainant was constructively dismissed but because the same facts (the retention of the accused person in the same store) established the case of sexual harassment they could not also be used in respect of constructive discriminatory dismissal.
The complainant was awarded two years salary, €29756 with interest in accordance with the Acts.
Why is this case of interest?
- Ensure that a really good investigative procedure is not negatively impacted by any subsequent decisions.
DEC-E2013-77, Mr. Fergal Reilly v United Parcels Service CSTC Ireland Ltd.
Issues: Disability, reasonable accommodation, constructive discriminatory dismissal, consideration of cost of reasonable accommodation
The complainant worked with UPS since 1999 and was promoted to lead driver in 2002. The respondent indicated that over time the time allowed for administrative duties as part of this role was compressed into 45 minutes. In 2009 the complainant was certified as unfit for work until on 27 April 2010 he was certified as fit for work on light duties from 11 May 2010. The respondent received a letter from its own occupational health specialist dated 4 May 2010 indicating that the complainant was capable of all non-manual handling activities. The complainant turned up for work on 11 May 2010 much to the surprise of the Operations Manager. An impromptu meeting was held between the Operations Manager, the complainant and Mr. A. The complainant was informed that there was no work for him that day and he was sent home. The respondent concluded that there was no suitable role for him and he would have to be fully fit in order to return to work. One month later the complainant tendered his resignation on 10 June 2010 because the respondent had failed to provide him with hours.
The Equality Officer found that the respondent did not fully inform itself as to the complainant’s capabilities both in respect of his manual handling capacity in terms of weight permitted and how long the state of affairs would last. He stated that “the respondent therefore fell short in the obligations identified by the Labour Court in its jurisprudence, to get full information in a staff member’s disability and to be proactive in its approach.”
Of course, as always, it is noted that we are not privy to all of the information presented to the Equality Officer and it may be that the information contained in the OH letter was not clear. Indeed it was the Operations Manager who indicated that he was unclear as to its meaning. However, based on the information contained in the Decision, all manual handling was excluded on the basis that he was certified as capable of all “non-manual handling activities associated with his job”. The respondent’s Operations Manager, stated at the hearing that “he looked at all available roles, and since they all involved manual handling it was clear to him that there was no work for the complainant in the organisation until he was 100% fit”. This would appear to be within the range of reasonable responses to the medical information.
The Equality Officer looked at both issues, the extent of manual handling to be avoided and the duration of the incapability, before addressing the costs of any reasonable accommodation in terms of the employer’s ability to pay, before concluding that the complainant was entitled to succeed in his complaint of the denial of reasonable accommodation on the part of the respondent.
The Equality Officer goes on to look at the complainant’s allegations of constructive discriminatory dismissal and applies the ‘reasonableness’ test. He accepted that the complainant was forced to resign because he was not allowed to return to work and was not being paid by the respondent, although he was in receipt of payments from the Department of Social Protection as his only income. This was accepted as constructive discriminatory dismissal.
This suggests that where a person is certified fit to resume work on light or limited duties and an employer is not in a position to provide them with work on light or limited duties then the person can claim constructive discriminatory dismissal even where s/he is in receipt of the statutory payments made in the normal course of sick leave. This would appear to be a significant new approach. The Equality Officer found that as the discriminatory dismissal flowed from the same set of facts as the failure to provide reasonable accommodation only one award of compensation was appropriate.
The complainant was awarded 18 months salary, €63,000, which the Equality Officer stated took account of the size and financial capabilities of the respondent.
In Decision DEC-E2013-083 (previously reviewed) the Equality Officer did not question or look behind the agreed medical information. In this case, the Equality Officer suggests that the weight that the complainant could have handled should be questioned where the agreed medical advice states that all non-manual handling activities would be acceptable.
Why is this case of interest?
- It finds that where an employer cannot provide work on limited duties an employee in receipt of the Department of Social Protection payments may claim constructive discriminatory dismissal.
- The award has taken account of the employer’s ability to pay as distinct from, or in addition to, redress for the effects of the discrimination.
DEC-E2013-078, O’Flynn and Pat McDonnell Paint Sales Limited
Issues: Disability, reasonable accommodation,
This is yet another case where the Humphries v Westwood Fitness Club is central to considerations. The complainant was employed with the respondent since 1997, originally as a driver and later as a sales assistant. The complainant had to go on sick leave in September 2008 suffering from varicose veins and had three operations after which his surgeon was reluctant to operate again. On 20 April 2009 his GP stated that the complainant’s condition “would be exacerbated by prolonged periods of standing” and that he was unfit to return to work.
The employer sent the complainant to their occupational health specialist who also found that he was not fit to stand and that this would continue for a prolonged period indefinitely.
A meeting was held on 2 October 2009 the content of which is disputed. The respondent claimed that they conducted an exhaustive analysis of the options for the complainant to work in a seated capacity. The Equality Officer stated that he could reach only tentative conclusions as to what was actually said but he concluded that for neither side was exploring reasonable accommodation a priority. Ultimately, he decided that the discussion on 2 October 2009 did not satisfy the respondent’s obligation to consult with the complainant and on that basis the respondent cannot rely on the defence provided in section 16 of the Acts.
The complainant was awarded €20,000.
Why is this case of interest?
Be proactive in assessing the situation. The requirements are well settled since the Labour Court Decision Humphreys v Westwood Fitness Club EED037 and are included in this decision.
- Satisfy yourself as to the capability of the employee.
Identify if and what special treatment is required.
Finally, ensure that the employee is permitted a full opportunity to participate in these considerations.
DEC-E2013-080, An Employee and a Transport Company
Issues: Disability, sick leave, reasonable accommodation
This case centres on the sick absences of the complainant while he was employed for 8 months with the respondent. During that time he was absent for 23 days for a variety of issues. His final certificate referred to stress and depression. The Equality Officer found that the complainant was suffering from a disability as set out in the Acts.
Ten of the absence days were in respect of the disability, depression. The Equality Officer proceeded to consider if it was reasonable for the respondent to terminate the complainant’s employment based on the remaining 13 days absence and found that it was not. As the respondent was aware of the complainant’s disability and because he was dismissed seven days after the respondent was made aware of the disability, and because the disability was a major contributor to the complainant’s absences (10 of 23 days) the Equality Officer found that the complainant was discriminatorily dismissed. As the dismissal took place with 7 days of knowledge of the disability the Equality Officer stated that it was clear that reasonable accommodation was never considered and found that the employer had failed to provide reasonable accommodation.
The complainant was awarded €22,000.
Why is this case of interest?
- As with the other disability related cases a failure to consider and consult in respect of reasonable accommodation will be detrimental to an employer’s case
DEC-E2013-083, A Medical Secretary v HSE West
Issues: Disability, direct discrimination on the disability ground, reasonable accommodation, failure to provide reasonable accommodation, medical assessments, ongoing discrimination
This case is really interesting on both a human level and a technical level. It is a relatively long decision reflecting the history involved.
The complaint was taken by a medical secretary employed since April 2001, who was diagnosed in 2004 with quite serious medical conditions of diverticular disease and a debilitating bowel condition. She worked in an office shared with one other person who knew and understood her condition. This office was adjacent to toilets. In September 2006 she and her colleague were told that they would have to move to another location and share with two others. The new location was not quite so close to toilets. The complainant explained that her condition is difficult to manage and she sometimes experiences acute attacks which could cause embarrassment in a shared environment. Although her colleague was moved the complainant was permitted to stay (following the submission of information relating to her disability to her manager), which was an accommodation in its own right, until her manager went on term time in June 2007 around which time the complainant was told she would have to move. She received a letter while on leave instructing her to attend to the new location on her return thereby removing the accommodation she had had until that point.
The complainant’s evidence details the various events occurring following this including the actions taken by her trade union to support her. The key issues are that the complainant’s GP assessed her as requiring an office to work in alone adjacent to a toilet. This was supported by the respondent’s own occupational health doctor who also said if the accommodation was not available it may not be possible for the complainant to return to work as hers was a chronic medical condition.
It is worth noting the complainant had been capable of performing her work (there is no mention of any difficulties with her work) when she was in her original room and the needs of her condition were satisfied. Therefore, when provided with the appropriate accommodation she was fully competent and capable of performing her role.
The respondent’s position was that the room the complainant had previously worked in was required for research and study. If the hospital could not provide this then it might lose its teaching status and it indicated the dire consequences to another hospital in such circumstances.
However, perhaps the most important point made by the respondent is described in the Decision as follows:
“The respondent does not accept that the new office accommodation was unsuitable for the complainant’s needs.”
This entirely ignores the medical advice given to it in relation to the complainant working alone. The respondent goes on to say that some indignity and embarrassment was inevitable for the complainant and that she appeared to have pinned her ability to work “to an unrealistic expectation that a single office close to a toilet could save her embarrassment of the indignities associated with her condition”. Even when the respondent was in receipt of the agreed medical assessments it continued to hold this view and this is very important.
Its important because the respondent was either ignoring the medical advice it was given as to the complainant’s need to work alone or was attempting to look behind it. The complainant had been working in a shared office. The medical advice was now that she required an office alone. An Equality Officer is extremely unlikely to look behind agreed medical findings and, frankly, a HR manager is not generally qualified to do so. Ultimately, the Equality Officer could not accept, in a large hospital in addition to the Nurse’s Home with 90 offices, that it was not possible to find, or customise, a single room adjacent to toilets to suit the complainant’s needs. This failure to provide reasonable accommodation was found to be ongoing.
A finding that the treatment complained of is ongoing is unusual. Events complained of may be individual events, a chain of related events or can be ongoing. In general, establishing that discrimination or other prohibited conduct is ongoing is a very difficult hurdle to clear. It was accepted in this case that the circumstances were ongoing and therefore all bets are off in terms of ring-fencing the case on a temporal basis. In other words, timelimits are not relevant.
In addition, the complainant alleged direct discrimination on the disability ground (which is quite distinct from any failure to provide reasonable accommodation) when the respondent did not appoint her to her original post following a promotion process. The Equality Officer found that she was not appointed to her original post, in other words promoted in situ, because she had been moved due to her disability. As others had been promoted in those circumstances the Equality Officer concluded that the complainant had been treated less favourably than those other colleagues who did not have a disability.
Finally, it is also worth noting that the Equality Officer was critical of the lack of engagement from the respondent with the complainant’s difficulties, particularly on the part of HR.
The complainant was awarded €70,000, almost two years salary, and the respondent was ordered to return the complainant to her medical secretary role.
Why is this case of interest?
- When considering reasonable accommodation ensure that you take note of the medical advice received especially when it is agreed. Where it is not agreed, then a third, independent, opinion may be necessary.
- Be proactive in assessing the situation. The requirements are well settled since the Labour Court Decision Humphreys v Westwood Fitness Club EED037 and are included in this decision.
- Satisfy yourself as to the capability of the employee.
- Identify if and what special treatment is required.
- Finally, ensure that the employee is permitted a full opportunity to participate in these considerations.
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