Bernadette Treanor writes:

Employment Equality Decisions issued in December 2013 Reviewed

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 relates to the disability ground and the main points to take from it are that care should be taken in interpreting medical information and that the Westwood Fitness case remains the measure to use.

The second case is also a disability and the main point of interest is the combination of what could be regarded as symptoms including work related stress have been accepted as a condition amounting to a disability.

The male complainant’s allegations of discrimination on the civil status ground were upheld.  The decision contains a useful description of how the Equality Officer assessed the contradictory oral evidence and would be useful in terms of any investigation.

This case relates to a discriminatory dismissal while pregnant allegedly at the end of a probationary period.

Cases 5, 6 and 7 relate to complaints against the Irish Prison Service where females were unsuccessful in a selection process regardless of their seniority or suitability and the Equality Officer found a ‘disposition to discriminate’ effectively at corporate level.  It also provides clarity around how the Tribunal will approach events that occur more than 6 months before submission of claims.

In this Decision a Spanish national was successful in terms of discriminatory treatment and equal pay claims.

DEC-E2013-142, Mr. O, v An Industrial Waste Management Company

Issues: Disability, discriminatory dismissal, failure to provide reasonable accommodation, neck injury, disproportionate burden

The complainant in this case worked as a Service Operator for the respondent on a client site.  He was assigned to chemical waste disposal and lifted 10L and 25L drums to shoulder height for decanting.  While lifting one of the latter he suffered a neck injury in August 2009 and was dismissed in March 2010.

As with many disability cases the Labour Court Decision Humphreys v Westwood Fitness Club EED037 was referred to.  In this case the complainant was of the view that the employer had assumed, on foot of the medical reports, that he could not do any manual handling.  The Equality officer agreed.  She went on to say that “The respondent was hasty in dismissing [the complainant’s] suggestions for appropriate measures.  In addition she indicated that the respondent had offered the complainant another role on a different site 70 miles away saying “This suggestion does not qualify as reasonable accommodation”.  The respondent “simply did not explore options thoroughly enough before terminating his employment to avail of the defence in Section 16(3).

The Equality Officer found that the respondent was not proactive in exploring appropriate measures.  She also found that the suggestions made by the complainant would not have placed a disproportionate financial burden on the respondent, “being a multi-national enterprise with significant resources”.

The complainant was awarded €38,000 which is equivalent to a year’s salary.

Why is this case of interest?

Issues: Disability, Discriminatory dismissal, definition of employee, Anorexia Nervosa

The complainant worked for 4 years in the shop, first as a sales assistant and then as an assistant manager.  The shop was owned by two individuals who appear to have had a breakdown in their relationship resulting in the complainant being asked by one to spy on the other and she was caught in the crossfire. She went on sick leave due to work-related stress on 2 March 2011.

The respondent appears to have behaved oddly in respect of accepting her sick cert and in issuing the complainant with contract of employment and employment handbook on 10 March 2011.  The complainant was dismissed by letter on 23 March 2011.

The respondent argued that work related stress was not a disability within the meaning of the Acts.  However, the Equality Officer stated that “disability must be looked at ‘in the round’.  It cannot be a game of bingo where a complainant’s doctor labels a condition on the medical certificate in a certain way and the disability provisions automatically apply and s(he) calls it something else and the disability provisions do not apply”.

The Equality Officer was satisfied that the complainant had informed one of owners Mr. Z that she was not sleeping and was suffering panic attacks, thereby putting the employer on notice of those problems.  The Equality Officer stated that that information combined with the medical certificates would have prompted a prudent employer to seek a second opinion.  The Equality Officer appears to have accepted that Anorexia Nervosa was a ‘sequelae’ of the complainant’s condition.

However, there is no indication that the respondent was aware of the complainant’s Anorexia Nervosa on 23 March 2011 when she was dismissed.  What it was aware of is that she was not sleeping, suffered panic attacks (both of which could arguably be considered symptoms of stress) and was suffering from work-related stress.  The Equality Officer has accepted the complainant’s condition as a disability within the meaning of section 2(e) of the Acts.  She further accepted that the treatment of the complainant amounted to discrimination and that there was a nexus between her disability and her dismissal.

Why is this case of interest?

- Up to now, work-related stress has not been considered a disability for the purposes of the Acts.  Without clarity as to whether the anorexia nervosa was included ‘in the round’ in the complainant’s condition, it is unclear whether the decision accepts work-related stress, combined with panic attacks and not sleeping as constituting a disability in terms of the Acts.

- Are employers no required to look behind medical certificates to assess if the disability provisions apply?

- Looking at both of these first two decisions arguably the message is that medical information should be interpreted carefully and with an eye to the disability provisions regardless of the words used.

Read the Full Case Decision Here:

http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-149.html

Decision DEC-E2013-151, Julian Andoo v Pagewell Concession (ILAC) Ltd.

Issues: Discriminatory treatment, discriminatory dismissal, family status, civil status

The complaint was submitted on the family status ground but as the complainant and respondent argued the case on the civil status ground the Equality Officer addressed the complaint on both grounds.

The complainant and his wife were both employed by the respondent but in different locations.  The complainant’s wife, before going on maternity leave asked if her husband could move to her store for family convenience and the respondent agreed.  It was agreed that a comment was made to the complainant by a manager in respect of a policy that married couples could not work together.  The Equality Officer found that the policy in fact stated that related persons may not work together but this is decided on a case by case basis.

The decision very usefully details what the Equality Officer considered when addressing contradictory oral evidence and made a number of findings of fact.

Ultimately he found that discriminatory dismissal had not occurred in respect of either ground but upheld the complaint of discriminatory treatment on the civil status ground on foot of the comment.  The complainant was awarded €500 as the Equality Officer was of the view that he was not left at a material disadvantage by the discriminatory treatment.

Why is this case of interest?

- The Equality Officer’s mention of contradictory oral evidence was in paragraph 5.4

“When considering the oral evidence of each of the witnesses (especially when contradictory). I am particularly mindful of the credibility or otherwise of the individuals in terms of their demeanour while testifying; their level of recollection of various incidents/facts; the existence or non-existence of bias, interest or other motive; the consistency of their evidence – within their own accounts and when the accounts are compared with one another; and the plausibility of their accounts.  I have also taken into account the issues raised by cross-examination by the various representatives.”

Read the Full Case Decision Here:

http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-151.html

DEC-E2013-154, Patrycja Hinca v H&R Ainscough Ltd.

Issues: Gender, working conditions, discriminatory dismissal

The complainant was employed on 14 May 2010 as a shop assistant and she asserted that her hours were cut after she informed her employer in October 2010 that she was pregnant, just before going on leave.  She went on sick leave in December 2010 and was dismissed.

The respondent had ceased trading by the time the hearing took place but the Equality Officer had its written submission.  That submission asserted that the complainant had been disruptive in the workplace, that other colleagues complained about her and that she was dismissed as she was still on probation as the respondent did not believe she could be rehabilitated to work in her role.  She was, it was asserted, openly hostile, aggressive, and insubordinate.  The respondent also asserted she had failed to attend mandatory training while the complainant asserted she had a ante-natal appointment on the relevant date.  It was also asserted that she went on sick leave on 12 December 2010 but attended the doctor on 20 December 2010 and this was accepted by the Equality Officer.  The Equality Officer was also of the view that the complainant could have rescheduled her appointment in order to attend the training.

The Equality Office was satisfied that the complainant’s hours were reduced commencing in November 2010.  Even taking account of the mitigating factors the Equality Officer upheld the complaint in respect of less favourable treatment and dismissal on the gender ground and awarded the complainant €12,000 which amounts to about 9 months salary.

Another approach might have been to consider whether the complainant’s failure to attend the mandatory training and failure to attend a doctor to secure a medical certificate for the first week were supportive of the respondent’s position and could be seen as displaying a disregard to the requirements of her employment.  Of course, all of the information available to the Equality Officer may not be included in the Decision.  It should also be remembered that although the respondent did not attend the hearing, a solicitor did on its behalf and therefore one would expect that the complainant was subject to cross examination.  The Equality Officer, however, found that the complainant had demonstrated prima facie evidence of discriminatory dismissal on the gender ground.

Why is this case of interest

- This is a useful reminder that a dismissal during the protected period will always require a robust defence with cogent evidence.

Read the Full Case Decision Here:

http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-154.html

DEC-E2013-155, Anne Delaney v Irish Prison Service

DEC-E2013-156, Monica O’Sullivan Byrne v Irish Prison Service

DEC-E2013-157, Julie Madden v Irish Prison Service

Issues: Gender, discriminatory selection process, time-limits, events more than 6 months before complaint, ongoing/continuing discrimination

These three Decisions relate to a common selection process, the allowance-carrying post in the Detail Office, in which all three complainants were unsuccessful.

The Decision relating to Anne Delaney differs as she also complained about earlier incidents.  The Equality Officer adopted the Labour Court’s approach, in County Cork VEC v Ann Hurley, EDA1124, that the incident that was in time, that is within six months prior to the submission of the complaint, must be found to be discriminatory before older incidents can be addressed.  The most recent incident was the selection process common to all three cases.

Ms. O’Sullivan Byrne and Ms. Madden had seniority over the successful male candidates but had less experience in the role to which the selection process related than the male candidates.  Ms. Delaney had more experience in the role than the male candidates but had less seniority.  Experience in the role was entitled ‘suitability’.  The Equality Officer found that the selection criteria applied normally to such competitions were seniority subject to suitability but that ‘seniority and suitability’ was what was actually applied in this case.  Had the normal criteria applied then Ms. O’Sullivan Byrne and Ms. Madden should have been successful ahead of the successful male candidates.  The complete failure to have a clear, transparent and recorded method of measuring suitability led the Equality Officer to draw inferences in that regard.  In addition, the half-page applications were missing and unavailable to the investigation.

Ultimately, the Equality Officer found that the most senior applicants, who were female, and the most suitable applicant, who was female, were all unsuccessful, regardless of the supremacy of seniority over suitability or vice versa.

Ms. O’Sullivan Byrne’s claim was upheld and as she was no longer working in the same location a back-dated appointment was considered inappropriate.  She was awarded €25,000.

Ms. Madden continues to work in the same location and in order to place her in a position as if the discrimination had not occurred she was appointed to the position, backdated to 21 September 2010, with all consequential employment rights and entitlements including remuneration and recognition of service.  She was also awarded €20,000 redress in addition.

As Ms. Delaney had established that the incident within time was discriminatory, that is the selection process described above, the Equality Officer examined the earlier incidents she complained of.  The incidents are all of a serious nature on the gender ground and all are upheld.  One relates to another selection process for a post in the Operational Screening Group.  The candidate placed first on the panel was male, second place was awarded to a female, the female complainant was placed third and fourth place went to a male colleague.  When the post was offered to the first place he refused it.  It was then offered to the person in fourth place, a male.  The respondent argued that there was a necessity to replace the male vacancy on the roster with another male as it was necessary to have one female on either side of the roster due to a national agreement with the POA.  When asked if this was a maximum or minimum the respondent said it was a minimum.  On questioning, it became clear that there was no occupational reason for this male/female balance.  Indeed, it appears by always filling positions with the same gender as the previous incumbent then the effect of the respondent’s approach was to treat that number of females as a maximum as it could never increase.  The Equality Officer noted reasons why an increased number of females would be desirable and found that a prima facie case of discrimination on the gender ground had been established which the respondent had failed to rebut.

One other situation related to two females being asked not to take up a position as there were already too many females in situ.  The Equality Officer found that this would not have been said to a male employee and could only have been said to a female employee.

The Equality Officer found all of the incidents to be linked and manifestations of the same “disposition to discriminate”.  She ordered that Ms. Delaney be appointed to the position of Acting ACO and placed on the permanent roster for the position; such appointment should be backdated to take effect from 5 August 2010 with all consequential rights and entitlements including remuneration and service.  In addition Ms. Delaney was awarded redress of €40,000.

Why these cases are of interest

- Proper records for selection processes are vital including predetermined selection criteria.

- It is important to remember that the earlier incidents complained of by Ms. Delaney were only considered because the most recent incident was found to be discriminatory.  She had most ‘suitability’ in that she had most experience in the role.  However, it is unclear if this would have been sufficient to trump the levels of seniority of the two successful male candidates had it been translated into points awarded.  This aspect of her claim was upheld because of the nature of the process applied and were that to fail then all of the other incidents would be out.

- Recently, we have heard much about the relatively new concept of corporate bullying and while the awards in these three cases are relatively substantial it appears somehow unsatisfactory in the face of a ‘disposition to discriminate’.

- Incidents that occurred more than six months before the complaint is submitted will likely be handled in accordance with the Cork VEC v Hurley decision mentioned above.

Read the Full Case Decisions Here:

http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-155.html

http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-156.html

http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-156.html

DEC-E2013-159, Maria Carmen Poveda Valera v Menclo t/a The Swing Room

Issues: Race, conditions of employment, like work, equal pay

The complainant was a Spanish national employed as a waitress in the respondent’s coffee shop.  The respondent did not respond to the complainant’s submission nor attend the hearing and therefore the Equality Officer had only the complainant’s evidence to consider.

A number of incidents were detailed by the complainant where she was allegedly singled out for less favourable treatment.  These assertions were supported by two other waitresses, one in a written submission and one who attended the hearing.  The Equality Officer upheld the complaint of less favourable treatment on the race ground.

Ultimately the complainant was dismissed from her employment and when she approached the respondent some days later she was told that all the staff had been replaced by cheaper staff.  The complainant’s dismissal was pursued through the EAT.

The complainant also sought equal pay with that of her Irish comparators.  Payslips for the Irish comparators were produced to the Equality Officer.  The Equality Office was satisfied, on the uncontested evidence of the complainant, that the complainant had established ‘like work’ and in such situations it is for the respondent to demonstrate that the difference in pay is on grounds other than the discriminatory grounds.  As the respondent did not engage with the Tribunal there was no such evidence and equal pay was awarded.

The complainant was awarded €8,500 for the treatment aspect of the complaint upheld, about 6 months pay, in addition to remuneration equal to the comparator with the highest pay.

Why this case is of interest

- The process undertaken in an equal pay case can be difficult to follow in some cases.  The absence of a rebuttal from the respondent in terms of whether or not it was ‘like work’ in addition to whether or not there were grounds other than the discriminatory grounds that could explain the difference in pay renders the process clear and unambiguous in this case.

Read the Full Case Decision Here:

http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-159.html