Bernadette Treanor writes:

Two cases were upheld this month and both have interesting technical aspects.  They are detailed below in addition to two cases not upheld (considered in brief) which also have interesting issues to review.

1. The first case upheld, DEC-E2015-015, addresses depression, and a ‘resignation’ made while the employee was unwell being considered ‘special circumstances’.  It also addresses reasonable accommodation and appears to go further than has previously been required as it finds that the respondent failed to provide reasonable accommodation while the complainant was still certified unfit for work.

2. The second case, DEC-E2015-016, relates to an alleged discriminatory dismissal on grounds of pregnancy and is upheld even though the complainant had a fixed term contract that expired.

3. Decisions DEC-E2015-010 are DEC-E2015-012 are considered briefly.  The first contains a look at comparators for equal pay and the relevant Supreme Court Aherne Decision ultimately finding that the complainant may have identified the incorrect comparators for her equal pay claim.  The second looks at access to employment on the age ground and finds that a request for ID is not discriminatory.


1.  DEC-E2015-015, A Complainant v A Restaurant

Issues: Disability, discriminatory dismissal, reasonable accommodation, correct respondent

The complainant lodged complaints against both the limited company restaurant and the individual trading as the restaurant.  The Equality Officer found that the limited company was the correct respondent.

The complainant suffered from depression, found to be a disability, diagnosed in her teens.  She worked in the restaurant since 20 October 2009 and suffered a bout of depression resulting in her missing work from 19 November 2011.  The respondent alleged that the complainant called on 24 November saying she was finished with the restaurant and submitted that this was a resignation.  In December 2011 the complainant met with her employer apologising to the respondent and informing it that she had ‘lost’ 8 to 9 days during the period.  She alleges the respondent told her not to worry about work and to look after herself.

When the complainant went to the respondent premises on 20 January 2012 she was told she was finished working there.  On 23 January she received her P45 dated 19 January 2012 which contained a termination date of 20 November 2011 (the second day of the sick absence).

In this case there were no follow-up written confirmations sent, neither a written resignation from the complainant nor a written confirmation from the respondent.  The Equality Officer found the respondent’s response “hard to believe”.

The Equality Officer then considers the case law relating to “special circumstances” where an actual resignation may not constitute a resignation such as during a heated exchange or where an employee was unwell.  She finds that “the complainant’s alleged resignation of 24th of November 2011, which was made while she was suffering from depression, falls into the “special circumstances”, that a prudent employer would have requested the resignation in writing or at least ensured the employee understood what they were doing, and that the dismissal was discriminatory on the disability ground.  Implicit in this is that acting on the ‘special circumstances resignation’ actually amounted to a dismissal.

The Equality Officer then considers reasonable accommodation stating that an employer is required to “make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability”.  She states “The respondent in this case when faced with situation where an employee was absent from work due to her disability, did not make enquiries to ascertain the extent of the employee’s condition and failed to look at any measures which might facilitate the complainant in returning to work”.   It appears that the decision taken ‘to the detriment’ of the complainant was her dismissal which has already been dealt with by the Equality Officer earlier in the Decision.  No new information arises and therefore it appears that the same set of facts has been used to arrive at two different conclusions, that of discriminatory dismissal and a failure to provide reasonable accommodation both of which are upheld at section 7.1 of the Decision.  This is addressed by the Labour Court in EDA122, A School and A Worker, which states “It seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts.”

A question arises as to whether a proper assessment of accommodations can be considered while an employee remains unfit for work particularly as necessary accommodations may change as recovery progresses.  In this case the complainant was certified as unfit for work and the respondent does not appear to have questioned this.   The question arises whether or not the obligation to consider reasonable accommodation existed at that point.

 
Why is this case of interest?

2.  DEC-2015-016, Agnieszka Sobczyk v Sami Swoi Limited

Issues: Pregnancy, gender, dismissal, fixed term contract

The complainant was employed by with the respondent since June 2012.  A preliminary issue to be dealt with was whether the equality case was included in a settlement agreement previously reached between the parties in respect of several other employment claims filed by the complainant.  The agreement specifically referred to the withdrawal of the unfair dismissal claim in order to proceed with a claim of dismissal before the Equality Tribunal and that the balance of the claims have been compromised.  The Equality Officer found that she could deal with the dismissal of the complainant but also found that she could address the allegations in respect of her conditions of employment.  In that regard the Equality Officer upheld the claim in respect of the reduction, for one week, of the complainant’s hours and in respect of an attempted disciplinary matter.

In October 2012 the complainant informed her employer she was pregnant.  The following December she became unwell and was on certified sick leave until 31 December 2012.  On 1 January 2013 she attempted to contact her employer as the period of her sick leave was at an end.  On 2 January 2012 her manager contacted her and informed her that her contract was over and would not be renewed.  On taking up the position the complainant initially had a 3-month contract.

Subsequently she was given a contract with the same start date and with 31 December 2012 as the end date. The complainant stated “that she had not been concerned to see an end-date of 31st of December 2012 on the contract when she signed it as she just assumed that it was a full time contract”.  She also presented evidence that the position was advertised on 10 January 201[3].  The Equality Officer was satisfied that the complainant established a prima facie case of discrimination on grounds of gender in relation to her dismissal and despite the end date on the complainant’s contract the Equality Officer found in her favour and awarded her €10,000 in total.  Of course, it is notable in this case that the respondent did not attend the hearing.

It appears that the complainant was aware of the end date of her contract and this had been advised to her prior to her informing the respondent that she was pregnant.  There is no absolute entitlement not to be dismissed while pregnant and in this case there appears to be a reason for the ending of her employment that was unconnected with her pregnancy and notified to her in advance.

In Melgar v Ayuntamiento de los Barrios, C438/99 the ECJ (as it then was) ruled that the prohibition against dismissal of a female employee during the “protected period”, in terms of Article 10 of the Pregnant Worker’s Directive[6] applied to employees engaged on fixed-term contracts. However, the Court went on to hold “It is clear that the non-renewal of a fixed-term contract, when it comes to the end of its stipulated term, cannot be regarded as a dismissal … contrary to Article 10 of Directive 92/85.”  This had been adopted by the Equality Tribunal previously in, for example, DEC-E2013-138. 

Why is this case of interest?

• The Equality Officer treated this as a dismissal throughout and upheld it as such even though the complainant’s contract, which she had signed, had come to an end.

Read the full case here: http://bit.ly/1bJX1pV

3.  A brief review of two Decisions not upheld.

 
DEC-E2015-010, Kathleen O’Dwyer v HSE West

Issues: Gender, equal pay, like work, incorrect comparators

The Equality Officer considered a preliminary issue of whether or not the complaint in respect of conditions of employment was in time.  Unusually, it was the respondent’s objection to have the matter investigated by a Right’s Commissioner which is used to bring the claim in time.  It would appear to be the first time the Tribunal has used an action which a respondent is entitled to take as a discriminatory act to bring a claim in time.  In addition it is stated that it was the latest occurrence of an alleged discriminatory act and does not go on to assess whether it was, in fact, discriminatory in line with the Hurley decision.  This becomes moot when the allegations in respect of her conditions of employment are not upheld.

The same time limits do not apply to equal pay cases and the complainant, for her equal pay claim, compared herself to two male colleagues and claimed that she was engaged in like work in comparison with them.  The Equality Officer’s assessment of who might constitute appropriate comparators will be of use to anyone attempting to identify the appropriate comparators for an equal pay case.  In this case she finds that the complainant identified the incorrect comparators.  The Decision also addresses ‘like work’ under the various headings mentioned in the Acts and finds that the complainant was not engaged in like work with the chosen comparators.

 
Why this case is of interest:

• It has a useful consideration of who might constitute appropriate comparators for equal pay.
• The claim relating to conditions of employment was brought in time by the respondent objecting to claims being heard by the Right’s Commissioner’s Service.

DEC-E2015-012, Geraldine Butler-Duffy v Boots Ireland Ltd.

Issues: Age, Access to employment, Identification

 he complainant applied and was interviewed for employment with the respondent.  She was asked for evidence of ID and she provided her Driver’s License which had her date of birth on it.  The Equality Officer did not find the asking for proof of identification to be discriminatory.  In addition, she did not find the question relating to how to recommend sunscreen for mature skin to be ageist.  Overall the Equality Officer did not find the process was tainted by discrimination and therefore the complainant did not establish a prima facie case.

The respondent presented statistics of the age brackets of those in its employment although this is not considered in the Equality Officer’s conclusions.  Given that the information related to those already employed while the case relates to access to employment, arguably those statistics do not compare people in similar circumstances and would not have been of assistance.

• Requesting evidence of identification, even where it shows a date of birth, is not discriminatory.

 Read the full case here: http://bit.ly/1GzjmTW