Bernadette Treanor writes:

Employment Equality Decisions published in September 2014 Reviewed

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

1. DEC-E2014-055 – This first case results in an award of €63,000 for victimisation and discrimination in circumstances where the respondent did not engage with the Tribunal although the employment appears to have been continuing at the time of the hearing.

2. DEC-E2014-056 – The second case relates to a female security officer who alleged discrimination and victimisation and was awarded €7500

3. DEC-E2014-057 – The third case finds that a refusal to allow an employee to e-work is discriminatory on the age ground and the employer is ordered to facilitate eworking for the employee.  The Equality Officer states that where an application for such working arrangements mentions a motive related to a status protected by the Acts it is sufficient to raise an inference of discriminatory treatment.

4. DEC-E2014-058 – This case deals with a driver whose allegation of a failure to provide reasonable accommodation when the employer did not permit him to return to lighter office-based work, for other than short periods, was upheld.  Is this a requirement to create a different post?

5. DEC-E2014-059 – Although it is not upheld this is perhaps the most interesting case where the employer is complimented for its efforts to provide and protect reasonable accommodation to the complainant in a time of budget cuts, reduced headcount and industrial relations issues.

6. DEC-E2014-061 – The final case also relates to reasonable accommodation and the finding is that there was a failure to provide the accommodation in a situation where the complainant was in fact performing the impugned task without complaint as she was afraid of her manager.

1. DEC-E2014-055, Wach v Travelodge Management Ltd. T/A Travelodge Waterford

Issues: Gender, race, return from maternity leave, victimisation

The respondent in this case does not appear to have engaged with the Tribunal at any stage.  The complainant, a Polish national, began working on reception in September 2008, where she continues to work, and three years later went on maternity leave.  She asserted that on her return from maternity leave she was not given the same hours as she had received prior to that absence.  She raised the matter with HR and it appears that her manager reacted badly to this.  He told her that she was only guaranteed 24 hours per week in her contract.  She replied that this was a minimum and in any event she had worked full time hours for three years prior to her maternity leave.  The manager also told her that her English was not good enough to permit her to work during the day even though she had worked daytime shifts three days per week during the period she had worked full-time hours.  Her manager also said, she asserts, that she would need more time with her baby.

The complainant then raised a grievance with her employer which specifically mentioned her belief that she felt discriminated against, and she asserts that her manager, on becoming aware of her grievance, threatened her with looking through the CCTV footage for possible wrongdoings to use against her.  Some days after her appeal against the outcome of her grievance she was called to a disciplinary meeting in the course of which her manager accused her of selling alcohol to non-residents.  He was unable to adduce evidence to support the allegations and in his conclusions the Equality Officer states that the complainant was able to show that it was, in fact, a resident who had been sold the alcohol and the disciplinary proceedings were dropped.

It is noteworthy that the Equality Officer found the complainant to be a credible witness and on that basis accepted her direct evidence in respect of all allegations and found that she had discharged the initial probative burden required of her.  He held that she had returned from maternity leave on less favourable working conditions and took as significant the fact that her maternity leave cover person was left in place after her return.  Consequently he found that the complainant was entitled to succeed on the gender ground.

The Equality Officer also found that the complainant’s English (as assessed during the hearing) was fluent.  As the complainant was not assigned day shifts because of her English, now found to be fluent, the Equality Officer upheld her allegations of discrimination on the race ground.

When addressing the so-called disciplinary process the Equality Officer found that the complainant’s grievance to her employer constituted a protected action within the meaning of section 74(2)(a) of the Acts and that the manager’s actions constituted adverse treatment within the meaning of 74(2).  Consequently, the complainant’s allegation of victimisation was also upheld.

The complainant was awarded €21,000, one year’s salary, in compensation for the discrimination found to have occurred.  She was also awarded €42,000 in compensation for the victimisation bringing the total to €63,000.

This large award, full two year’s salary, for victimisation reflects the Tribunal’s standard approach when victimisation is upheld because victimisation is seen as an interference into a complainant’s statutory entitlement to make a complaint in the first place.

Why is this case of interest?

Issues: Gender discrimination, access to employment, victimisation, protected act,

The female complainant was employed by the respondent as a security officer under a fixed term contract and subsequently a fixed purpose contract from March 2010 until 23 May 2011 as was a male colleague with further male colleague being recruited in October 2010.  The fixed purpose contracts were completed when the article the additional security was required for, the Cross of Cong, was no longer held at the museum.  The respondent provided security services to the client museum.

During her tenure the complainant raised a number of issues in respect of her gender.  Two months after she started she complained to the client that she had not been given keys because of her gender.  It subsequently became clear that her other part-time male colleague also did not have keys and this allegation was not upheld.  She asserted that “one day in March” 2011 she was offered a transfer by her manager to another site because of her gender as the other role included the cleaning of toilets.  It subsequently became clear that the other role was also offered to the other fixed term male employees.  This allegation was likewise not upheld.

She alleged victimisation when the rosters were changed on 15 March 2011 requiring her to work only night shifts from then on.  She alleged this was a reaction to her assertion that the alternate role was only offered to her because of her gender.  The matter is slightly complicated at this point because on 14 March 2011, some unknown time after the discussion with her manager about a transfer, the complainant also discussed her situation with a senior member of the respondent’s client’s staff (the museum manager) which greatly exercised her manager when he became aware of it the following day.  On that day, the day he became aware of the complainant’s discussion with the client, the manager changed the rosters.  The complainant alleged this changing of the rosters amounted to victimisation of her.  Her protected act was found to be her mention of the transfer being because of her gender to her manager sometime earlier in March and her conversation with the client, the museum manager on 14 March 2011.

The respondent stated that the rosters were changed back to their original structure once a date was known as to when the Cross would be leaving the museum.  The Equality Officer accepted that the change affected the complainant more adversely than her colleagues and she accepted that the treatment was in response to the complainant’s complaint to either or both her manager and the client.  No evidence is mentioned in the Decision that would support the complainant informing the client as to her gender related concerns with regard to the transfer.  That conversation appears to have been related to whether or not the client was satisfied with her work.

The Equality Officer quoted sections 74(2) (a), (f) and (g) relating to victimisation.  Subsection (a) can only relate to her conversation with her manager that took place “one day in March” with no apparent nexus to the changing of the roster.  The Equality Officer found that the manager’s action in offering the complainant the transfer was not discriminatory.  Indeed, an alternative view would be that it was in fact favourable treatment rather than unfavourable treatment, given that she was offered additional work, and therefore not something that is unlawful under the Act.

There is, however, a clear and immediate nexus between the complainant discussing her employment with the client and the manager changing the rosters.  The complainant went to the client with her difficulties and in some circumstances it is understandable that an employer would be aggrieved by this.

The complainant’s assertion that her dismissal was discriminatory was not upheld as the termination of her employment was "in accordance with the terms of her contract of employment and unrelated to her gender”.

The discrimination upheld in this Decision relates to the respondent’s failure to re-employ the complainant when further contracts were available.  This is a complaint relating to access to employment.  The Equality Officer was satisfied that the complainant had been informed that she would be taken back when there was work available and that the complainant had more experience than Mr. K.  She stated that the “inconsistency in the evidence of the respondent …forces me to look elsewhere for a reason as to why Mr. K was re hired and the complainant was not” and she found that it was due to the complainant’s gender and upheld this allegation.

The Equality Officer awarded the complainant €17,000 being “mindful of the remuneration which the complainant was in receipt of at the relevant time, and the length of time she was employed by the respondent”.  However, these matters related only to the victimisation allegation that was upheld.  In respect of the discrimination for not being re-employed, the complainant was not in receipt of remuneration from the respondent at the relevant time.

Why this case is of interest:

- It indicates the need for proper records about, e.g. performance, for employees on fixed term or fixed purpose contracts and when deciding to re-employ the person when further work arises.  This would be relevant for seasonal workers also.

Read the full case review:

http://www.workplacerelations.ie/en/Cases/2014/August/DEC-E2014-056.html

3. DEC-E2014-057, Lavelle v Border, Midland and Western Regional Assembly

Issues: Age, approval for e-working

The complainant has 36 years of pensionable service and is responsible for the respondent’s HR.  He applied for e-working as he considered it might have assisted him in making the transition to retirement in addition to reducing commuting time and improving work-life balance.  He was refused.  His appeal of this initial decision was likewise refused.  The respondent stated in response to his application “e-working was not intended to be a prelude to or transition to retirement and that planning for retirement was not compatible with the spirit of working remotely.”  The complainant asserted that another female colleague of a similar age (over 50) was refused permission for e-working while two younger colleagues (less than 40) were granted permission.  He also asserted that the younger colleagues who had been granted e-working had not presented reasons for their applications.

The respondent also argued that the complainant’s work and responsibilities did not lend themselves to working remotely and on the basis that his reason for seeking e-working “to make a smooth transition to retirement” was an inappropriate rationale for the respondent to facilitate e-working.

Interestingly, and likely with general applicability, the Equality Officer stated that “insofar as a motive for wishing to e-work is disclosed by a worker which is related to a status protected y the Acts, the rejection of the validity of such a motive by an employer is sufficient to raise an inference of discriminatory treatment within the meaning of S.85A of the Acts”. Note that this may still be rebutted by an employer.

The Equality Officer found that as the complainant’s motive for his application was clearly related to his age and was expressly rejected by the respondent.  On that basis in combination with the fact of younger applicants being successful in their e-working applications, he was satisfied that the complainant had established a prima facie case of discrimination on the age ground.

The Equality Officer did not accept the respondent’s main defence during the hearing, that the complainant’s role was not compatible with e-working particularly as he was immediately offered to apply for the Shorter Working Year Scheme resulting in potentially significant absences from the office.  In addition the complainant had already taken up to eight weeks leave in one block without detriment to the organisation.  The Equality Officer stated that if the complainant was as indispensable to the day-to-day operations of the respondent as suggested then “such a long absence ought to have caused havoc”!  He also noted that an option the respondent might have considered was a pilot of several months with the complainant, and perhaps one day instead of the two per week applied for.

The Equality Officer found that the respondent had failed to rebut the prima facie case of discrimination and the complainant was entitled to succeed.  The complainant was awarded €2000 in compensation and the employer was ordered to “Facilitate the complainant to e-work for a minimum of one day per week, for a period of one year” with review arrangements after the year.

Why is this case of interest?

- It sets down a general finding that where a refusal for e-working is found to be based on motives related to one of the discriminatory grounds it will establish a prima facie case.  Could this be extended for other requests for other working pattern arrangements generally?

- The employer was ordered to facilitate the complainant to e-work having previously refused it.

- What training have your managers had in relation to deciding such matters where one or more of the discriminatory grounds are raised?

Read the full case review:

http://www.workplacerelations.ie/en/Cases/2014/August/DEC-E2014-057.html

4. DEC-E2014-058, O’Rourke v Brennan Convenience Foods Ltd. T/A Food Partners (in liquidation)

Issues: Disability, reasonable accommodation, discriminatory dismissal

The respondent in this case did not engage with the Tribunal and therefore, in common with DEC-E2014-055 above the Equality Officer had no submission or evidence from the respondent to take account of.

The complainant was employed as a delivery driver by the respondent who employed 10 office staff and 15 drivers.  While working on 30 May 2011 the complainant suffered an accident and was absent for 8 weeks.  On advice, he sought a return to work to lighter, office-based duties.  He was afforded two hours of this on return before being asked to pack fridges resulting in pain.  The complainant was accommodated with office work for about 4 weeks and then asked to resume his old delivery route.  He was promised an assistant but none materialised.  This circular situation of returning to office duties, then being asked to do deliveries followed by time off continued until he returned on 13 September and was dismissed without warning.  The dismissal was purportedly a redundancy but the complainant adduced evidence that his position was immediately advertised.

The complainant also asserted that the respondent had intimated to him that he could revert to a self-employed status if he wished and had subsequently denied it had been said by the time the complainant was dismissed.

As with the earlier case, the Equality Officer found the complainant to be credible and accepted his evidence.  He found that the respondent’s denial of its offer to the complainant to change his employment status would not have occurred had the complainant retained his health and found that this constituted less favourable treatment on grounds of disability.

He also upheld the complainant’s allegations relating to failure to provide reasonable accommodation.  He was satisfied that with 10 office staff the respondent could probably have accommodated the complainant had the respondent “made any deliberate effort to meet its legal obligations toward the complainant”, even though the evidence presented appears to suggest that the employer did at least attempt to accommodate the complainant.

The Equality Officer found in favour of the complainant in respect of his dismissal which was because of his disability.

As the respondent was found to have directly discriminated against the complainant on the disability ground, to have failed to reasonably accommodate the complainant, and to have dismissed the complainant because of his disability, the Equality Officer awarded the complainant €25,000 as compensation for the distress suffered.

Why this case is of interest:

- The Equality Officer appears to require the respondent to provide the complainant with a role entirely different to the role he was employed for, rather than require him to be provided with the accommodations needed to undertake his own role.

Read the full case review:

http://www.workplacerelations.ie/en/Cases/2014/August/DEC-E2014-058.html

5. DEC-E2014-059, Ms. B v HSE

Issues: Disability, reasonable accommodation

The complainant worked as a Call Handling Co-ordinator in the Out-of-Hours GP service and was diagnosed with a retinal detachment in April 2010.  She ultimately lost the sight in her eye.  She returned to work on 28 June 2010.  She sought a move to day shift working.  She asserted her reason for seeking the change was because of her concerns about night driving due to her disability but the respondent asserts she sought the change because she had a bad working relationship with her colleagues on the roster.  The respondent asserted that despite it not being a request for appropriate measures within the meaning of the Acts she was accommodated in the short term.

Following a visit to the Occupational Health professional the complainant was certified fit for work on the advice that she avoid “night work for 6 months to allow accommodation of eye condition”.  The respondent asserts it adhered to this strictly.  The Equality Officer found that 6 weeks after the complainant requested the appropriate measures be discontinued she was accommodated on the more lucrative Out-of-hours roster.

The complainant asserted that she was not permitted to take 5-minute screen breaks.  The respondent asserted that it would not expect people in a supervisory role to seek permission for a break from a screen.  The Equality Officer stated in this regard “this fits into the category of Section 16(4)(c), i.e. the employee has to take some responsibility for her own wellbeing”.

The complainant went on to make a number of assertions about a disciplinary warning not being removed from her file appropriately; about the attempted delivery of letters to her in a branded jeep by the respondent being a bullying tactic.  The respondent accepted that the jeep was used to attempt delivery but that this was normal practice and well known to the complainant.  The respondent also stated that the complainant was found lying in a sleeping bag during a red-eye shift which it asserts is gross misconduct but is adamant that the warning was removed from her file.  (The respondent pointed out that having the sleeping bag with her suggests premeditation.)

The Equality Officer dealt with the substantive matters very succinctly.  She preferred the respondent’s evidence in relation to the complainant seeking day-time shifts.  Documentary evidence was produced to show that the OH recommendations were strictly adhered to even when it caused industrial relations issues with other staff.

The Equality Officer goes on the say “In fact, the HSE is to be complimented on its efforts to provide and protect reasonable accommodation to the complainant in a time of budget cuts, reduced headcount and industrial relations issues”.  The case was distinguished from the cases cited by the complainant because the complainant has not been dismissed.  The Equality Officer found that the complainant has failed to establish a prima facie case of discrimination on the disability ground.

Why this case is of interest:

- This case will be of interest to employers in determining how to handle situations where reasonable accommodation arises particularly where the accommodation is declined by the employee at any stage in favour of more lucrative attendance patterns

Read the full case review:

http://www.workplacerelations.ie/en/Cases/2014/August/DEC-E2014-059.html

6. DEC-E2014-061, Johnston v St. Patrick’s Guild

Issues: Disability, reasonable accommodation

The complainant was employed in an administrative role working one full day and three half days per week.  After working on a project for some time in 2010, in between her normal duties, she developed injuries to her arms in that “she lost proper movement in her right arm ….Then she had pain in her left arm”.  For various reasons the project was abandoned.  The complainant asserts that she was still expected to close heavy shutters and in March 2011 she submitted a medical cert stating “She is restricted in doing physical work” and she informed her employer that she would have to temporarily stop closing the shutters.  Some weeks later the complainant was asked to file 20 sheets of correspondence into 20 separate files following which she had to go back on anti-inflammatories.  On being told of the complainant’s difficulties the complainant asserts that her manager, Sr. A, reacted badly.

The complainant’s injury, ongoing tennis elbow, was accepted as falling within the definition of “partial absence of a person’s bodily … functions and therefore  a disability in accordance with the Acts”.

The respondent argued that the earlier incidents were out of time.  However, the Equality Officer viewed them, not as isolated and unconnected events, but as related to her arm injury and connected to her contention that the respondent had failed to provide her with reasonable accommodation.

The pivotal piece of evidence would appear to be that the complainant was again asked to carry out the opening of the shutters on Wednesdays sometime after she had produced her doctor’s certificate and pointed out that she was incapable of doing physical work.  This information is not included in either the complainant’s nor the respondent’s case but is introduced as new in the Equality Officer’s conclusions.  It is pivotal because it is this information that is used to indicate that the failure to provide reasonable accommodation was ongoing at least until the complaint was made.

It appears that the complainant was provided with reasonable accommodation in terms of matters in March 2011.  To be clear, she was not required to open and close the shutters after she presented her doctor’s certificate and explained her situation.   The difficulty arises with a subsequent request that she undertake the opening and closing of the shutters on Wednesdays sometime afterwards.  It is not clear when this was re-introduced but as always, I would mention that the Equality Officer may have had information presented that is not included in the Decision.  Therefore, the relevance of this break in time is unclear.  Certainly, the employer did not seek to satisfy itself independently of her capabilities through an occupational health professional but was this a requirement when the accommodation was immediately provided?

However, one question arises.  The complainant asserted that this re-introduction of a requirement to open the shutters amounted to a failure to provide reasonable accommodation and that she did not complain as she was afraid of what her manager would say.  We do not know when this occurred.  However, the need for reasonable accommodation only arises where an employee requires some support in order to undertake the tasks pertinent to their role.  In this case the complainant undertook this task until she submitted her claim.  If the complainant undertook the task with no difficulty apparent to the employer and no further medical evidence was presented to the employer that she remained unable to do it (and of course it was always open to the complainant to seek support from her doctor), it would appear that she was undertaking the task.  The question arises then, whether or not she required reasonable accommodation to continue.  While we do not have sufficient information to conclude these matters one way or the other, bear in mind that this matter is crucial as it is this that beings the entire claim in time.  However, it would have been prudent for the employer to satisfy itself as to the complainant’s capabilities in March 2011 by seeking expert occupational health advice rather than subsequently testing those capabilities by setting tasks such as closing the shutters.

The Equality Officer did not uphold the complainant’s allegation of victimisation but awarded her €7,500 in compensation for the failure to provide reasonable accommodation.

Why this case is of interest?

- Employers should seek professional advice as to an employee’s capabilities rather than testing them themselves.

Read the full case review:

http://www.workplacerelations.ie/en/Cases/2014/August/DEC-E2014-061.html