Bernadette Treanor writes:

Employment Equality Decisions issued in March 2014 Reviewed

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

The Equality Tribunal issued only one employment equality Decision in March 2014 that was upheld.  The substantive issues considered were a failure to make a redundancy payment and a claim for equal pay on the race ground.  The respondent was in liquidation.

The second and third cases considered are Determinations of the Labour Court on cases appealed from the Tribunal. The Tribunal Decisions can be found here http://bit.ly/S4YCgc (a public service employer and a worker) http://bit.ly/1forhau (Pat McDonnell v Dennis O’Flynn). For different reasons, the amounts of redress awarded by the Tribunal were reduced.  In EDA1410 the Court also finds that a failure to provide reasonable accommodation may stop the clock in terms of deadlines for lodging complaints as long as the situation persists.

DEC-E2014-014

Issues: Race, Age, Conditions of Employment, Redundancy Payment, Equal Pay

Prior to the hearing the respondent informed the Tribunal that it had gone into liquidation and that it would not attend the hearing. The complainant withdrew all complaints at the hearing with the exception of conditions of employment and equal pay on the race ground.  He argued that he had not received his redundancy payment when he left the respondent’s employment.  The Equality Officer concluded that the complainant had not presented any evidence that he had been treated less favourably in this regard than other employees of a different race or nationality and the complainant was unable to establish a prima facie case of discrimination.  That aspect of the complaint was not upheld.

The complainant asserted that he worked as part of a three-man team digging trenches and manholes for laying cables and preparing the site for telephone boxes.  The three-man team was made up of the complainant, another polish worker and a third man, of Irish nationality, identified as comparator A who was nominally in charge.  The complainant submitted a job description at the hearing setting out the relevant duties.  Following the hearing the Equality Officer requested information from the Liquidator in respect of the complainant’s and comparator A’s rate of pay. The Liquidator’s response included a statement from a Director of the respondent.  The information was passed to the complainant’s representative who disputed it.  Ultimately, after considering the usual procedures for testing evidence, the Equality Officer accepted the evidence of the complainant and was satisfied that he and comparator A carried out work of a similar nature in accordance with section 7(1)(b) of the Employment Equality Acts.

The complainant’s allegations of discrimination in respect of the redundancy payment were not upheld but the complainant was awarded equal pay for a period of three years from March 2008 until February 2011.

Why is this case of interest?

Issues: Disability, reasonable accommodation, access to promotion

This case was handled in the Equality Tribunal Decision DEC-E2013-083.  In short, the complainant was a medical secretary suffering from diverticular disease and a debilitating bowel condition.  She had an office adjacent to toilet facilities but was moved.  She was awarded €70,000 by the Equality Tribunal.

On appeal, the Labour Court considered the issues and upheld the failure to provide reasonable accommodation for the period 2007 to 2010 after which the employer was found to have considered the issue and “in many respects their response was a model of how an employer should respond in the type of situation with which they were presented”.  Accommodations were offered but the complainant rejected them all.   The Court found that she had no justifiable grounds for doing so.

In terms of her upgrading in situ, the complainant had argued that all others were upgraded into their own jobs while she was upgraded in a new post in primary care.  As an agreement was reached on or about that time whereby the complainant would transfer to the primary care unit the complainant was upgraded in the role she then occupied.  Therefore, she was not treated differently to others. This aspect of her claim was not upheld.

The Court went on to consider how much of the €70,000 was awarded by the Tribunal for that aspect of her claim and decided that an award of €65,000 was the appropriate award in this case.

Why is this case of interest?

- The Court first considered the timeliness of the complaint.  It concluded that a failure to provide reasonable accommodation “amounted to the keeping in force of a discriminatory regime, rule, practice or principle”.  In other words, a failure to provide reasonable accommodation could stall the application of the normal deadlines for submitting a complaint.

- The respondent had also continued to review the decision it had taken on where to locate the complainant and this too, based on Cast v Croyden College [1998] IRLR318 could prevent the time from running against the complainant.

Read the full case review here:

http://www.workplacerelations.ie/en/Cases/2014/March/EDA1410.html

EDA1412, Pat McDonnell Paint Sales Ltd v Denis O’Flynn

Issues: Disability, reasonable accommodation

This claim was upheld in the Tribunal and the complainant was awarded €20,000.  He suffered from varicose veins and after several operations his surgeon was reluctant to operate again.  The complainant was considered unfit for work as a sales assistant which required long periods of standing.

When the parties met on 2 October 2009 to address the matter what actually was discussed is unclear but it appears that the complainant sought a severance package and the respondent formed the view that the complainant’s first choice was a severance package rather than a reasonable accommodation.  The respondent considered the situation and considered alternatives for the complainant before deciding, at Board level, that he be dismissed.

The Court found that the respondent had partially discharged its obligation in terms of reasonable accommodation in line with Humphries v Westwood Fitness in that it had not engaged with the complainant when considering his medical condition and whether reasonable accommodation could be made to enable him to work.  However, the Court also found that in seeking a severance package the complainant has contributed in large measure to the confusion regarding his preferred options.  The Court considered that the appropriate redress was €10,000 which is half what was originally awarded by the Tribunal.

Why this case is of interest

- The respondent halved the award against it by taking the appeal

- The behaviour of the complainant was taken into account when considering what the appropriate award might be.

Read the full case here: http://www.workplacerelations.ie/en/Cases/2014/April/EDA1412.html