Bernadette Treanor writes:

Employment Equality Decisions Reviewed 28 May 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, despite not being upheld, is really interesting because it resoundingly finds that where an employee has knowingly and actively behaved illegally in the performance of his/her contract of employment, and is solely or predominately responsible for the illegal acts, the contract will be unenforceable with regard to the Employment Equality Acts, meaning that an equality complaint can fail on that basis.

The second case is yet another pregnancy dismissal claim upheld entirely in line with previous case law.

The third case, Dunican and Spain v Offaly Civil Defence, is a timely reminder to those organisations who (1) use volunteers and (2) intend to enforce a retirement age.  While the award is low (€1200 to each complainant), it represented just under two years’ remuneration and there are still lessons that can be learned from this case.

The redress ordered against Marks and Spencer in the fourth case may well be quite startling for employers in so far as the complainant, who had been dismissed in 2010, was awarded re-engagement from the date of dismissal with remuneration from 6 weeks later, meaning that the employer is required to pay almost three years’ pay, in addition to the award of €14,000 for the effects of the discrimination.  Furthermore, the order in respect of training is likely to create considerable expense.

DEC-E2013-022 – Samaitas v Nurendale Ltd. T/A Panda Waste

Issues: Unenforceable contract, illegal performance of employment contract, active participation in the illegality.

The complainant, who was legally represented, lodged three complaints with the Equality Tribunal.  He accepted that he had been convicted in the District Court for driving without a valid and correct driving licence.  He argued that since this only came to light after he lodged his complaints, even though it was clearly known to him before that, the Tribunal should proceed to investigate his complaints.  It appears that “he deliberately deceived his employer by presenting it with a forged driving licence in respect of his appointment as a driver of large waste disposal lorr[ies]”.  The respondent argued that the complainant had by his actions frustrated his contract of employment and rendered it invalid.

The Equality Officer noted that there was a saving provision in the Unfair Dismissal’s legislation allowing complainant’s to pursue complaints even where there has been agreement to contravene the income tax or social welfare legislation.  He noted that there was no such provision in the Employment Equality Acts.

He considered Hogan J.’s judgement in the Hussein case and Laffoy J’s consideration in the Red Sail Frozen Foods case.  He stated that the contract in this case was not illegal from the outset and went on, “It is clear from the dictum of Laffoy J above that knowledge of the illegality and degree of active participation on the part of an employee are factors which this Tribunal must consider.”

In the instant case the employee was not only an active participant in the illegality but the sole perpetrator of it.  However, the Equality Officer made a comment that “questions might be asked as regards the level of checks and balances” the respondent operated.

The Equality Officer found that the nature of the complainant’s illegal behaviour went to the core of the employment relationship, not least in respect of insurance cover in the event of an accident, and as such the contract was unenforceable.  On that basis all his claims failed including the claims in respect of equal pay and victimisation.

Full decision:

http://www.equalitytribunal.ie/Database-of-Decisions/2013/Employment-Equality-Decisions/DEC-E2013-022-Full-Case-Report.html

Why is this case important?

- Where employees are required to hold a licence or other evidence of a skill or ability, is this checked properly in your organisation for insurance and other purposes?

DEC-E2013-023 – Somerville v Gell Retail Ltd

Issues: Pregnancy dismissal, Prima Facie case on grounds of pregnancy, no respondent submission

This is yet another pregnancy related dismissal claim upheld, indicating how high the barrier is set to show that a dismissal while pregnant is not related to the pregnancy.

In this Decision the Equality Officer refers to previous case law from the CJEU (Webb v Emo Air cargo, Brown v Rentokill, and Dekker) and quoted the Labour Court EDA 095: “only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.  It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground.  Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that the discriminatory dismissal did not take place.”

The Equality Officer found that the employer was aware the complainant was pregnant at the time of her dismissal and held on the basis of the Labour Court position above, (See para 5.5.7) that a prima facie case has been raised.

However, considerable further consideration is given to the circumstances of the case with the Equality Officer concluding that the dismissal was indeed related to the pregnancy.  There was no submission from the respondent who was in liquidation and on that basis the claim was successful and the complainant awarded €19,500.

The story of the complaint is as follows. The complainant, who had previously been considered a high performer told her temporary supervisor that she was pregnant at five weeks because of concerns with lifting heavy weights during a stock take.  The complainant and supervisor undertook the stock take with the assistance of the manager with the heavy items.

The following day the complainant was given a first written warning because she missed out part of the store in the stock take.  The complainant accepted that she had done this but was concerned that the warning referred to previous issues which she had no knowledge of and on that basis she refused to sign the warning.

She was then off for a week on sick leave and when she returned she was called to a two hour meeting where she was told the warning was being recorded whether she signed it or not.  She was asked whether the sick was likely to recur, how many sick days she intended to take, and whether she wanted to return full time or part time after her maternity leave although it is unclear if this occurred at the meeting.

Three weeks after informing her supervisor of her pregnancy and receiving the written warning the complainant was asked to travel to another store to meet with the general manager who was considering her dismissal for using her mobile phone and the internet.  She was dismissed at that meeting.

The respondent, in liquidation, did not attend the hearing although a previous supervisor did attend and attested to the complainant’s high performance and the consideration of her for promotion in addition to the general policy on the use of mobile phones and internet during work, the issues for which it appears the complainant was dismissed.

Full Decision:

http://www.equalitytribunal.ie/Database-of-Decisions/2013/Employment-Equality-Decisions/DEC-E2013-023-Full-Case-Report.html

Why is this case important?

- Do your managers know to pass on to HR information about an employee’s pregnancy immediately they are informed?

- Are they aware that where a pregnant employee is dismissed and the employee can show that the employer knew of the pregnancy, the burden of proof automatically shifts to the employer to show that the dismissal is unrelated to the employee’s pregnancy?

- This expands to all less favourable treatment based on section 6(2A) of the Acts.

DEC-E2013-027 – Dunican & Spain v Offaly Civil Defence

Issues: Age ground, volunteer workers, employee status, discriminatory dismissal

In this case both volunteer complainants were found to be employees.  Based on the facts that (a) the complainants were paid an amount for the time they were instructing in addition to expenses and (b) tax and USC were deducted, the Equality Officer was satisfied that a contractual relationship existed between the parties. The Equality Officer reviewed the relevant provisions of the Employment Equality Acts, and the Henry Denny case [1998 1 IR 34] and found that in the circumstances of the case the two complainants had a contract of employment for the purposes of the Acts.  On that basis he found that he had jurisdiction to investigate the complaints.

Once they were found to be employees the Equality Officer addressed the matter of their enforced retirement.  There was no dispute that age was the reason their employment was ended.  The Equality Officer was critical of the Office Notice that stated that no member of the organisation could be enrolled if over 65, with a maximum increase to the age of 70.

One of the complainant’s had no knowledge of the Office Notice which, it appears, was never reviewed meaning it was neither reviewed following the enactment of the equality legislation nor in light of recent well known case law.

The Equality Officer stated: “The respondent, even in response to direct questions, did not provide any objective justification for retiring the complainants, either in terms of the requirements of their role as instructors, or on policy grounds”.

He continued to address recent decisions, the concept of objective justification and stated that where a justification test related to the demands of the role it cannot be directed at the circumstances of an individual complainant.  Finally he found that the respondent never formally identified nor adduced any evidence on the matter of objective justification and in its absence he was satisfied that the complainants’ retirement amounted to discriminatory dismissal on the ground of age.

He awarded the complainants €1200 each, which reflected slightly less than two years’ service.

Full decision:

http://www.equalitytribunal.ie/Database-of-Decisions/2013/Employment-Equality-Decisions/DEC-E2013-027-Full-Case-Report.html

Why is this case important?

- How is the work of volunteers handled in your organisation?  Are they paid in any way?  If paid a flat fee for expenses that are unvouched, could any excess be considered remuneration?

- Consider the processes relevant to volunteers in light of the definition of ‘employee’ and ‘contract of employment ‘in section 2 of the Acts and section 2(3)(d).

- Do you have a plan in place which records your considerations of objective justification where necessary?

- Are your managers aware of the potential exposures in respect of forced retirements?

- Is your objective justification at individual, organisational or governmental level and which is appropriate in each case? (It remains to be seen how the very recent Labour Court decision in Hospira will impact on these issues.)

DEC-E2013-032 Donaldson v Marks & Spencer (Ireland) Ltd

Issues: Disability, reasonable accommodation, discriminatory dismissal, re-engagement, redress

The complainant suffered from Benign Intracranial Hypertension which was accepted as a disability for the purposes of the Employment Equality Acts.  The complainant informed her supervisor of her condition about 6 months after her employment began.  Subsequently she was beset by complications requiring further surgery and time off work.

When she had been absent for 10 months her employer contacted her and a meeting was arranged for May 17 2010.  In the meantime the complainant developed a new gynaecological condition requiring surgery that was scheduled to take place on 1 June 2010.  The meeting took place and during that meeting the complainant discussed her pre-existing condition and her more recent condition.  The respondent wrote to the complainant requesting her to provide a return to work date by 8 June 2010 which should be no later than 14 June 2010.  She responded stating that she could not return to work by 14 June and that her doctor had advised that she could return in a short period.

The Equality Officer found that the complainant’s initial condition was a disability for the purposes of the Acts.  The respondent accepted that the complainant had indeed mentioned her condition during the meeting but that it was not realised that this was a disability.  The Equality Officer found that the respondent was on notice of the complainant’s condition at least from the date of the meeting.  She also found that the complainant’s inability to return to work was due to her disability and that the decision to dismiss was influenced by the complainant’s absence and her inability to return to work.

The complainant was awarded re-engagement from the date of dismissal with remuneration from 6 weeks later, meaning that the employer is required to pay almost three years pay, in addition to the award of €14,000 for the effects of the discrimination.  Consider too the order in respect of training which is likely to create considerable expense.

One thing that is not apparent from the Decision is why the second condition, the gynaecological condition, is not addressed.  Of course, information may have been produced that is not included in the decision but I would suggest that this second condition may have constituted a new disability, albeit correctable by surgery.

I would also suggest that a very simple reasonable accommodation that might have been afforded the complainant was some extra time to recover from the operation on 1 June 2010 relating to this second condition.  And finally, it is unclear whether it was the first condition, found to be a disability, that was actually preventing the complainant from returning to work or whether it was the more recent surgery relating to the second condition.  Frankly, however, the end result for the employer would likely be the same.

Full decision:

http://www.equalitytribunal.ie/Database-of-Decisions/2013/Employment-Equality-Decisions/DEC-E2013-032-Full-Case-Report.html

Why is this case important?

- Do your managers know to pass on to HR any information they are given in respect of an illness or condition that an employee informs them off?

- Does whoever makes dismissal decisions understand the concepts of, and provisions relating to, reasonable accommodation in addition to direct discrimination on the disability ground?

- Where new illness information is presented in the midst of an absence review process how is that handled?