Bernadette Treanor writes:

Employment Equality Decisions Reviewed 11 July 2013

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 is interesting because the assertions of the complainants in respect of their conditions of employment were accepted as facts by the Equality Officer.  The equal pay award of over €9 per hour for a period of 18  months to two years for one complainant is also of interest.

The second case is the result of a claim being referred back from the Labour Court who decided that where ‘grounds other than’ arguments are not upheld the employer has no right of appeal of the preliminary decision.  This decision finds that like work existed and awards equal pay including a period before the comparator began working for the employer.

The third case will be of interest to any employers offering fixed term contracts to workers reaching the age of retirement because in this case the contract was found not to be fixed term and the complainant was found at all times to have been on a permanent contract.

The complainants in the fourth case were in employment for 2.5 and 1.5 weeks only which is a reminder that equality issues apply immediately.  The decision specifies the duty on employers to provide a workplace that is safe for gay and lesbian employees to be open about their sexuality.

The fifth case considers the equivalence of an employees role on return from maternity leave with the role she held prior to her leave and finds it wanting.

The last upheld decision relates to a dismissal while pregnant and considers what it is an employer has to show in respect of such a dismissal.

Finally, the last claim considered was not upheld.  It is interesting because it  addresses the thorny issue of what appraisal mark to award an employee who is absent on maternity leave for the purposes of a redundancy selection process.  It also demonstrates the circumstances in which an Equality Officer will accept a new ground for the complaint that was not included in the original complaint form.

DEC-E2013-037, Pilups, Vasiljevs & Gorsa v Kielys Distribution Ltd (in Liquidation)

Issues: Discrimination on the race ground in terms of conditions of employment, equal pay claims on the race ground, assertions accepted as facts

This case relates to claims of discrimination and for equal pay made by three employees of Latvian nationality.  The claim relating to the third complainant was dispensed with as the complainant did not show up for the hearing.  The remaining two complainants attended to pursue their claims and presented evidence in relation to less favourable treatment on the race ground in comparison with Irish employees.  What is interesting in this case is that it shows how a claim will be upheld where the Equality Officer finds the complainant’s evidence compelling even in the apparent absence of documentary or other supporting evidence.  Once the complainant establishes such a prima facie case, then in circumstances where the respondent’s responding evidence is unavailable for whatever reason, the claims will be upheld.  In this case the respondent was in liquidation and the liquidator provided pay information to the Tribunal before the case was assigned to an Equality Officer.

The complainants, who were employed as drivers, asserted that their Irish colleagues only worked day shifts and were never asked to work Saturdays.  In addition they, the Irish colleagues, had better trucks called electric pallet trucks which were easier to load and unload.  One complainant stated that “on occasion, his back muscles were so strained from the physical effort of loading and unloading his more old-fashioned truck, that he had to stay away from work for a few days rest.  He would not be paid for those days, so essentially lost income as a result of his less favourable conditions of employment.”  These assertions were accepted by the Equality officer in their entirety who was satisfied that “both complainants are entitled to succeed in their complaints of discrimination in their conditions of employment.”

The Equality Officer then looked at the claims for equal pay and used the information previously provided by the Liquidator to assist in that. Based on the information received from the Liquidator the Irish employee had significantly higher pay than the other three, including the second complainant, who were non-Irish nationals.  The Equality Officer found, based on the assertions of the complainants, that they were engaged in like work with the comparators and that there was no satisfactory explanation for the difference in pay in respect of the second complainant.  On that basis the Equality Officer decided that it was “so obviously connected to the workers’ nationality” and equal pay was awarded on that basis to the second complainant.  The first complainant started his employment around the same time as three Irish drivers one of which started on the same day and on the same rate of pay.  That was found to be fatal to his claim for equal pay.

Both complainants were awarded €7500 for the discrimination in respect of their conditions of employment, slightly more than three months pay.  The complainant awarded equal pay had been earning €10.50 per hour and was awarded €19.73 per hour for the period from 6 July 2009 to the end of his employment which, presumably was sometime during the six months prior to the lodgement of the claim.  He was therefore awarded equal pay amounting to €9.23 per hour for between 18 months and two years although it should be noted that the respondent is in liquidation.

Why is this case of interest?

- In this case the Equality Officer accepted the assertion that the first and second complainants were engaged in like work because the Liquidator (in the absence of the employer) did not dispute it.

- The evidence of the complainants was accepted in respect of their conditions of employment.  The complainants must have been very convincing witnesses to elevate their assertions to a factual basis from which an inference of discrimination can be drawn.  This topic is handled in the Labour Court’s decision Melbury Developments v Arturs Valpetters, EDA0917


DEC-E2013-041, Brierton v Calor Teo.

Issues: Equal pay, gender, preliminary decisions, like work, comparison period for like work, appeal of preliminary decisions

The second successful complaint is interesting particularly in respect of the history of the handling of the claim.  This claim for equal pay on the gender ground was originally lodged in June 2006 (Shown as October but presumed to be June based on redress) and assigned to the Equality Officer in October 2008.  Her Decision in respect of her preliminary investigation into whether there were grounds other than gender for the difference in pay was issued in March 2010.  This was appealed by the employer to the Labour Court who, in EDA1121, declined to consider the matter until the matter of like work was assessed.  Essentially, the Labour Court found that where ‘grounds other than’ are not found in a preliminary investigation, that is where a respondent is unsuccessful in maintaining ‘grounds other than’, the respondent has no right of appeal of that decision on the preliminary matter and the Tribunal should proceed to address the entirety of the claim before a respondent can appeal the decision.

This Tribunal Decision is the conclusion of the claim at first instance in respect of ‘like work’ and it is upheld for the complainant.  The Equality Officer found like work under both sections 7(1)(a) and 7(1)(c) of the Acts.  She was awarded equal pay on respect of the period 22 June 2003 to 21 June 2006.

Interestingly, the Equality Officer, having looked at the issues raised in the CJEU Enderby Decision in respect of experience, as well as pay rates established by market forces, found that there was another factor contributing to the differential.  She found that the respondent’s actions after receiving third party recommendations for pay were discriminatory in that they awarded the complainant less than the lower amount recommended while they awarded the comparator an amount above the median of the pay scale recommended for him.  As the comparator was male and as this extra difference was outside of experience and market forces considered by the third party it was considered discriminatory.

The equality Officer stated “the Employment Equality Acts are quite blunt when it comes to awarding redress regarding equal pay.  If like work is found, equal pay must be awarded i.e levelled up.  It does not allow for equal pay in respect of the inpugned part of the difference.”

The complainant was employed quite some time before the comparator and so any discrimination could only arise after the comparator began in the employment.  However, complainant’s are entitled to awards of 3 years equal pay and in this case, the equal pay was awarded for three years back from the date of lodgement of the claim.  This includes, at the start of the 3-year period, a period before the comparator actually began working with the respondent but during which the complainant performed the same work he was subsequently paid more for.  The complainant was entitled to equal pay for like work even where the work was not performed contemporaneously with the comparator.

Why is this case of interest?

- When considering what is the appropriate pay rate for a new entrant, do you consider how this might compare to pay rates of existing employees?  Do you consider the process used to arrive at the appropriate rate and whether that process is the same as used previously?

- Another important point of interest arising from the history of this claim is that respondent’s do not have a right of appeal of preliminary decisions in respect of equal pay claims where ‘grounds other than’ is not upheld.

DEC-E2013-042 McPhillips v ISS Facility Services

Issues: Age, retirement, whether or not a Fixed Term Contract existed, evidence of compulsory retirement age

In this case the complainant’s employer had changes following a TUPE and his newer employer indicated to him that he would be required to retire at the age of 65 but he was offered a fixed-term (FT) contract for another year.  The equality Officer noted that the derogation in section 6(3)(c) “is confined solely to a fixed term contract being offered to a person over the compulsory retirement age for that employment”.  There are two aspects to this.  The contract must be a FT one and there must be a compulsory retirement age for the employment.  She decided, in the first place, that the contract offered for the complainant’s the final year was not a FT contract.  “I consider that the complainant for the full period of his employment with the respondent was empluyed on a continuous successive permanent contract”.  She found that the complainant’s employment did not terminate due to the expiry of a fixed term contract.

The Equality Officer then addressed the matter of whether the retirement age was compulsory in the employment.  The respondent was unable to present any evidence that it operated a compulsory retirement age and was likewise unable to indicate that the complainant’s previous employer had operated a compulsory retirement age.  She was satisfied that no actual retirement age had been fixed for the complainant.

The respondent chose not to present any arguments in respect of objective justification as “it would weaken its argument that the natural expiry of a fixed term contract is the only issue before the Equality Officer and that retirement age was not at issue in this case.”

The complainant was awarded €22,000 which roughly equated to a year’s salary.

Why is this case of interest

- Can you show that any fixed term contracts granted to employees will be considered as such if reviewed as part of a claim?

- If you want to assert that you have a fixed retirement date do your records and policies support this?

- Where it is felt, as in this case, that the matter before the Tribunal is a specific one consider whether to present arguments in respect of objective justification in the alternative.


DEC-E2013-045, Mezei & Magyar v Eddie Rocket’s Blackpool Cork

Issues: Sexual Harassment and Harassment on the gender and sexual orientation grounds, duty on an employer to provide safe workplace for lesbian and gay workers, short period of employment

This case relates to claims submitted by two Hungarian ladies on the gender, marital status, sexual orientation and race grounds.  They also alleged discrimination by association, harassment and victimisation and the first named complainant also made a claim in respect of disability.

One of the complainants was employed for two and a half weeks and the other for one and a half weeks.  The complainants asserted that they experienced difficulties when the staff found out that they were a couple and in a relationship together.  They assert, inter alia, they were questioned about their sexual relationship.

As the complainant’s were actually employed the Equality Officer found that the claims in respect of access to employment were misconceived.  As they were employed for a matter of a few weeks access to promotion and regrading did not arise.  In terms of not getting the same tips as others the Equality Officer found that this was more likely because they were newly recruited trainees rather than because of any of the grounds suggested.

The Equality did not accept that the second complainant was dismissed because of her race.  As the person allegedly replacing her was female and also Hungarian it could not have been because of the second complainant’s race or gender.  In terms of the first complainant’s constructive dismissal the Equality Officer found that if she had been allowed to work in the same branch as the second complainant she would not have resigned and therefore she had not established a prima facie case of constructive dismissal.

However, the Equality Officer found that both complainants had established prima facie cases of harassment on the gender and sexual orientation grounds.  He also found that the employer had not established that it had take steps as were reasonably practicable to prevent the harassment and therefore could not avail of the statutory defence.  The Equality Officer went on “Given the sexual nature of the obscenities directed at the two complainants I find that both of them were victims of sexual harassment as well.”

It is worthy of note that the Equality Officer also stated “It is a duty on employers under the Acts to provide a workplace in which it is safe for lesbians and gay men to be open about their sexuality.”

The equality Officer found that there was no evidence of victimisation, that the claim of discrimination by association was misconceived and that the claim of the first complainant on the disability ground failed as she had not informed the respondent in sufficient detail of her medical condition.

In summary, all of the claims made by the complainants failed with the exception of the claims of sexual harassment and harassment on the gender and sexual orientation grounds.  The complainant’s were awarded €7,500 each as compensation not in the nature of pay.

Why is this case of interest?

- Do you have policies and procedures in place to prevent harassment?  Employers must have them in place if they wish to argue that they had procedures/policies in place to prevent such behaviour before it happened.

- It is also a reminder that equality applies immediately in an employment relationship and even before, in terms of access to employment.  In this case the employees were in the employment for only 1.5 and 2.5 weeks.

- Finally it specifies the duty imposed by the Acts on employers in which it is safe for lesbian and gay men to be open about their sexuality.  This is a useful reminder to assess whether your policies and procedures are sufficient in that regard.


DEC-E2013-046, Campbell v Bank of Ireland Private Banking

Issues: Equivalent role on return from maternity leave, assessment of roles before and after,

This case relates to a claim in respect of discrimination on the gender and disability grounds.  The complainant asserted that she returned from maternity leave to a very different role. The respondent argued that the situation pertaining on the complainant’s return to work was vastly different following the collapse of Lehmann Brothers.

The complainant raised many incidents in her complaint.  The Equality Officer was not satisfied that the earlier incidents were linked to the complainant’s return to work after maternity leave, i.e. there was no so-called ‘chain of events’ and confined his investigation to matters arising within six months of the submission of the complaint.

He found that the complainant’s old position existed and was being filled by another employee.  He went on to consider whether the two posts were equivalent.  He found that her new role was a supporting role and that it “dilutes the level of responsibility accorded to the complainant and the manner in which she was managed appears to be less favourable to how others were treated in the circumstances of the ongoing banking crises extant at that time”.  He found that the employer had failed to establish that the complainant’s new role was equivalent to her role prior to her maternity leave.  He also found that her claim in respect of disability could not succeed.

The complainant was awarded €30,000 equating to six months salary.

Why is this case of interest ?

- Given the pressures currently applying to business, do you assess the roles assigned to women returning from maternity leave to ensure equivalence with their role before they took the leave?

- Even where the changes affecting employers are as extreme as those applying in the banking sector, Equality Officers will consider how the complainant was treated in comparison to how others were treated in the circumstances extant at the time.

DEC-E2013-049, Tormey v Rondane Marketing T/A Lifetimes Citywide News

Issues: Dismissal during pregnancy, protected period, exceptional circumstances unconnected with pregnancy

The previous case related to actions following the return of the employee following maternity leave.  This case relates to the dismissal of an employee while pregnant but before her maternity leave.  The complainant was employed with the respondent from May 2010 to December 2010.  She informed them she was pregnant in mid-November.  After that, she asserts the respondent was ‘cool’.  She was subsequently on sick leave for two weeks and on her return she found she was doing more filing, half of the client calls previously undertaken, and while on her reception duties two ladies arrived stating they were there for interview and looking for the respondent.  When she called following her dismissal, a lady answered whose voice she did not recognise.

The Equality Officer looked at the line of CJEU authorities and found that “where a pregnant employee is dismissed the employer must bear the burden of proving that the dismissal was based on exceptional circumstances unrelated to the pregnancy or maternity.”  He found that the complainant informed her employer of her pregnancy, that around four weeks later she was dismissed thereby shifting the burden of proof.  As the respondent did not engage with the Tribunal and in light of the consequential lack of indication of exceptional circumstances, the complainant’s case was entitled to succeed.

Interestingly, the complainant’s original complaint was taken on the family status ground and not gender which was raised at the hearing.  The Equality Officer found that the nature of the complaint had not changed as her pregnancy had always been at the centre of her complaint and that no prejudice arose for the respondent.

The complainant was awarded €20,000 compensation not in the nature of pay.

Why is this case of interest?

- Do you consider what exceptional circumstances, unrelated to the employee’s condition, are applying in situations where you are dismissing a pregnant employee (or an employee on maternity leave), bearing in mind that the entire period of pregnancy and maternity leave is a ‘protected period’?

- A complainant using the incorrect ground at the outset may not invalidate the complaint.

DEC-E2013-040, Eshilama v Northern Trust Management Services Ireland Ltd.

Issues: Discrimination & dismissal – each on 4 grounds, new ground added, pregnancy & maternity, benchmark process, redundancy selection process, inconsistent evidence, PIP

This is a relatively long decision reflecting the many issues raised by the complainant as discriminatory.  The complainant, a Nigerian, was employed by the respondent between September 2006 and December 2009.  During that period she availed of two periods of statutory maternity leave totaling in excess of one year.  The complainant asserted that:

- she was told she would be promoted but subsequently was not,

- that her security access was reduced,

- that the appraisal mark assigned to her,

- that being placed on a PIP,

- being refused access to training

- her selection for redundancy

- her appeal of her redundancy

- the requirement for a compromise agreement to receie an ex gratia payment

- being ignored by her second line manager

all constituted discrimination/discriminatory dismissal of her on one or more of the four grounds she proffered.  These grounds were gender, marital status, family status and race.  None of the complainant’s allegations were upheld and the Decision moves through these various issues thoroughly.  In this report it is proposed, rather than report the factual matters considered, to address the various technical issues that are of interest.

The complainant originally lodged her claim in respect of three grounds, omitting gender.  The Equality Officer states that the caselaw indicates that “it is permissable to amend a complaint provided the general nature of the complaint remains and there is no prejudice to the respondent”.  In this case it was originally considered that pregnancy and maternity are covered by the family status ground.  (This is, in fact, the case in respect of the Equal Status Acts 2000 – 2011.)However the submission was clear that the complainant’s periods of maternity leave were fundamental to the claim.  The Equality Officer concluded that the nature of the claim had not changed and that there was no prejudice to the respondent and permitted the inclusion of the gender ground.

The complainant did not complete her Performance Appraisal Process in 2008 and she was given a default rating of 3 representing satisfactory performance which was used in the redundancy selection process in 2009.  The complainant took issue with this rating but presented no evidence in support of her assertion that her performance warranted a higher rating.  The Equality Officer stated “I am satisfied that the respondent was seeking to place the complainant in a comparable situation to those who received an actual rating by awarding her the default rating of “3”.  Whilst this approach may not be ideal I accept that there was not other realistic option available to it at that time.  Had it left this criterion blank because the complainant had not completed the appraisal process for 2008 due to her absence on maternity leave, it is likely the complainant would have an arguable case that she was less favourable treated because of her absence on that basis.”

The inconsistency of the complainant’s direct evidence (in respect of when Ms. G was told the complainant was pregnant) was sufficient to outweigh its probative worth in comparison with the written evidence of a person not in attendance at the hearing.  The complainant sought to resile from previous evidence on a second occasion in respect of the minutes of meetings held relating to the redundancy selection process.

Why is this case of interest?

When dealing with a claim,

- Do you consider all of the grounds that may be relevant in light of the facts?  The complaint forms are not statutory forms and cannot be relied on in isolation.

- Do you prepare a timeline? This is a really useful tool.  Knowing the date a person became aware of the relevant information, in comparison to other events is often crucial in how the matter will be decided.

- If handling a redundancy selection process, do you ensure that any employees who have been on maternity leave, or otherwise absent, are not negatively impacted by the application of the chosen criteria?  This requires a consideration of the employee’s position after the application of the criteria to assess whether or not there was an adverse impact.