Bernadette Treanor writes:

Employment Equality Decisions issued in December 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. In DEC-E2014-081 the respondent delayed responding to the complainant’s degenerative eye problems and this delay was found to amount to a failure to provide reasonable accommodation even though its subsequent action was reasonable.

2. DEC-E2014-086 finds that the delay in bringing the complainant back to work following maternity leave was discriminatory even though the complainant never complied with the statutory requirement to inform the employer in writing. It is worth considering this in conjunction with case 4 below where in this case the breach was on the complainant’s part while in the case below it was on the respondent’s part, yet the respondent was held liable in both cases.

3. DEC-E2014-091 describes how the complainant, a cleaning operative, was transferred to a new employer under the transfer of undertakings arrangements while on maternity leave and was not facilitated with a return to work by the new employer. The complainant included allegations of dismissal unlike case 5 below.

4. DEC-E2014-094 relates to yet another cleaning company who undertook an informal risk assessment of the pregnant complainant’s work environment. The employer’s failure to conduct a formal assessment was considered discriminatory.

5. DEC-E2014-095 relates to another transfer of undertakings where the complainant was required to re-apply for his own job and was unsuccessful. The complaint made related to access to employment rather than dismissal as with case 3 above.

6. DEC-E2014-097 relates to a promotional interview process and is essentially a roadmap in how not to do it. A younger, less qualified male was appointed and the Equality Officer found that inappropriate questions were asked at the interview, including the hugely reported “What about the homos?”.


1. DEC-E2014-081, Clews v DSG Retail

Issues: Disability, reasonable accommodation

The complainant was employed as a salesman in a large computer retail store. He suffered from retinal pigmentosis (gradual degeneration of the retina) which the Equality Officer found was clearly a disability in terms of the Acts. The respondent gave an uncontested description of the complainant’s role which inherently requires they be extremely proactive in identifying potential clients that enter the store to achieve mandatory sales targets. The complainant stated that ultimately he was unable to move around the store without bumping into members of the public and the Equality Officer stated “It’s clear that there were significant health and safety issues”.

The Equality Officer considered the provisions of section 16 of the Acts and the Humphries v Westwood Fitness Labour Court Determination. He established that the respondent took a decision in May 2010 that the complainant was not fully capable of undertaking the duties of his role having regard to the conditions under which the duties are performed. There was no evidence of the employer involving the complainant in this decision.

The Equality Officer accepted that the complainant was offered other roles in different locations in February 2011 and while this was reasonable and demonstrative of significant effort on the part of the employer he also accepted the unsuitability of these roles for the complainant due to the commute. Crucially, the Equality Officer states “it is clear that, eventually, the respondent did give serious consideration to other roles that the complainant could take in the organisation, but what needs to be explained here is the long delay. … The respondent was in possession of independent professional advice of the complainant’s capacity in May 2010. There is no evidence that the respondent seriously considered this advice until February 2011."

The Equality Officer found that the delay was unacceptable and constituted a failure to provide reasonable accommodation and awarded the complainant €14,000.


Why is this case of interest?

- HR managers should act on medical information received as soon as practicable. The issues in this case was a failure to act on information between May 2010 and February 2011 which caused distress to the complainant even though when action was ultimately taken it was considered reasonable.

To view the full case decision:

http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014- 081.html


2. DEC-E2014-086, Bojanowska v Cullen Cleaning

Issues: Gender, return to work after maternity leave, new contract, victimisation

The complainant’s maternity leave was die to expire on 1 January 2011. She informed her supervisor of her intention to return but never complied with the statutory requirement to inform her employer in writing. The respondent acknowledged that the complainant’s return to work was facilitated in February 2011 following a phone call from an advocate of the complainant indicating the complainant’s intention to take legal action if her return to work was not facilitated. The Equality Officer found that this delay in facilitating the complainant’s return to work, even in the absence of the statutorily required notification, was discriminatory on the gender ground.

In looking at the loss of earnings for the gap between maternity leave and return to work the Equality Officer found that compensation was not paid but made no finding in respect of this. Rather, it was indicated it would be considered when awarding redress.

The complainant indicated that she could no longer work mornings and this was facilitated by a move to another location and the working of evenings only. The Equality Officer found that the consequential reduction of the complainant’s working hours was not discriminatory.

The manager of the new location was instructed to issue a new contract to all new staff and he issued one to the complainant who alleged that this amounted to a dismissal and reengagement of her even though it appears that the new terms were not applied to her. The Equality Officer did not agree and found that the manager’s action was not discriminatory.

The complainant had also alleged discrimination on the grounds of race and family status but these were not supported with any evidence and were not upheld. Her allegations of victimisation due to the dismissal of her son were likewise not upheld. The Equality Officer, after consideration of the key victimisation case Barret v Department of Defence EDA1017, found that the complainant’s threat of legal action amounted to a protect act but that the dismissal of her son did not amount to adverse treatment of the complainant herself. In addition, there was no link between his dismissal and the complainant’s protected Act.

The complainant was awarded €4,000.


Why is this case of interest?

- This case suggests that a technical breach of statutory requirements may still be held against an employer and it remains to be seen whether this is accepted generally.

- It appears that a technical breach by a complainant can result in an employer being liable just as in case DEC-E2014-094 below a technical breach by the employer is also held against the employer.

To view the full case decision:

http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014- 086.html


3. Dec-E2014-091, Kus v Atlantic Cleaning

Issues: Gender, pregnancy, dismissal, Transfer of Undertakings

The complainant was initially employed by ISS who lost the contract to provide cleaning services to Athenry Golf Club. It wrote to the complainant who undertook the cleaning for ISS while she was on pregnancy related sick leave telling her that her employment was transferring to Atlantic Cleaning, the respondent. She signed the ISS document and wrote to the respondent telling it she was pregnant and when she expected to go on maternity leave. Subsequently she wrote to the respondent about her return date. Only at this point did the respondent contact her to tell her there was no job for her and that no transfer of undertaking had taken place.

The respondent asserted that no transfer took place and that he had intended his daughter to undertake the cleaning role.

The Equality Officer was satisfied that a transfer had taken place based on the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 in conjunction with the European Court of Justice decision Redmond Stichting v Bartol. She concluded that ISS had complied with its obligations in the circumstances, that the complainant had done everything correctly, and was satisfied that the complainant was an employee of the respondent “whether it was convenient for the respondent or not”. It is this, the Equality Officer being satisfied that a transfer has taken place, which fixes liability against the respondent.

After considering ECJ caselaw the Equality Officer considered the Labour Court Determination EDA095 Intrium Justitia v Kerrie McGarvey that found “only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally 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 respondent knew his responsibilities, the complainant was never permitted to return to work which was effectively a dismissal and thereby established a prima facie case of discrimination in relation to her conditions of employment leading to dismissal which the respondent was unable to rebut.

The respondent’s treatment of the complainant is described as callous and the redress awarded was €10,000.


Why is this case of interest?

- Employers should note that inaction will not suffice in situations such as these. Having fixed liability for employment with the respondent the Equality Officer then found that the inaction of the employer was effectively a dismissal.

- This is a useful and clear re-iteration of the issues arising when considering dismissal of a pregnant employee. Of course, in this case the complainant was no longer pregnant when she was not permitted to return to work and it was the failure to provide her with her entitlements following her pregnancy that gave rise to her effective dismissal.

To view the full case decision:

http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014- 091.html


4. DEC-E2014-094, Kajina v Grosvenor Cleaning Services

Issues: Gender, family status, race, pregnancy risk assessment

The complainant was employed as a cleaning operative and she complained of discrimination on the three grounds listed in addition to victimisation. The Equality officer did not uphold the allegations relating to victimisation, or family status for lack of evidence. The allegations relating to the race ground were in connection with the complainant’s level of English but the Equality Officer accepted the respondent’s assertion that her English was sufficient to understand her terms of employment etc.

The Equality officer found that the complainant’s supervisor’s assessment of the complainant’s work situation was a common sense approach but did not compensate for the employer’s failure to conduct a formal risk assessment for the complainant. The employer’s failure to comply with a statutory obligation to carry out a risk assessment meant the complainant was disadvantaged because she was pregnant. The complainant was awarded €1,400 reflecting the technical nature of the lapse by the respondent.


Why this case is of interest

- It is a useful reminder to employers that a risk assessment is a statutory requirement once on notice of an employee’s pregnancy

- In comparison with DEC-E2014-086 it appears that regardless of who breaches the Maternity Protection Act requirements it is the employer who will be held responsible.

To view the full case decision: http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014- 094.html

5. DEC-E2014-095, Maciukas v G4S Security Solutions

Issues: Race, nationality, Transfer of Undertakings, access to employment

The complainant was a Lithuanian national who was employed for seven years as a security guard when the respondent won the contract for the provision of security at the complainant’s workplace. The staff were required to apply for their jobs and the complainant in addition to his brother were unsuccessful while the remainder were reemployed. He asserted that a transfer had taken place and that he should not have been required to apply for his own job. He presented the Redmond Stichting v Bartol case in support of this. The Equality Officer also considered the Süzen v Zehnacker Gebäudereingung GmbH case that considers numbers and skills of the workforce transferring.

The respondent asserted that the client had indicated that the complainant and his brother not be retained although no supporting evidence or witness was presented to support this assertion.

The Equality Officer agreed with the complainant that a transfer had occurred based on the numbers of workers and skills that transferred. As those retained were six Irish nationals and one Romanian she was satisfied the complainant had established a prima facie case of discrimination on the race (nationality) ground which the respondent had not rebutted. The claim taken by the complainant was one of access to employment and the Equality Officer awarded the complainant €6,500.


Why is this case of interest?

- It is worth noting that this claim was in respect of access to employment in comparison with Dec-E2014-091 above which also related to transfer of undertakings but the claim taken included dismissal.

To view the full case decision:

http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014- 095.html


DEC-E2014-097, A Teacher v a National School

Issues: Age, sexual orientation, religion, promotion interview, discriminatory questions

The complainant was employed as deputy principal of a primary school who applied for the post of principal. The interviews were repeated due to procedural flaws. The Equality Officer was not content with the explanations of two of the interview board members who had destroyed their notes of the interviews after the complaint had been submitted. He also opins that the board members may have aligned their responses in advance of the hearing thereby limiting their credibility. Later in the Decision he notes that one member of the board’s lack of memory was in marked contrast to her precise recollection of other matters.

The Equality Officer did not accept the explanation that the less qualified successful male and the greater qualified female complainant were given the same mark as they both had the basic training required. He found it “militates against common sense that all that is needed to assess candidates for a senior responsible management position is their basic academic qualification”. On that basis the complainant established a prima facie case of discrimination on the age ground which the respondent failed to rebut.

The Equality Officer was satisfied that some questions (focusing on the Forum for Pluralism and Patronage and the INTO’s submission to it) were asked to ascertain the complainant’s personal religious outlook but that no evidence had been adduced to indication a problem with the complainant maintaining the ethos of the school had arisen during her eight year tenure as deputy principal. On that basis the complainant was entitled to succeed in her complaint on the religion ground.

The complainant alleged that the same board member asked her “What about the homos?” immediately after those related to religion. The complainant’s representative pointed out that the majority of the media coverage on the INTO’s submission related to the situation of LGBT primary school teachers. The respondent asserted that as the board members did not know the complainant’s sexual orientation discrimination on that ground could not have arisen. The Equality Officer decided the question had been asked, that it was unlawful on the sexual orientation ground, and that the complaint should success on that basis.

The complainant was awarded €54,000.


Why is this case of interest?

- This is yet another case (there was a significant number of claims relating to selection processes last year) where we are reminded that appropriate interview procedures are required

- Have all of your interviewers been trained in appropriate interview question techniques and do they understand equality requirements?

- Do your procedures in respect of interview preparation, selection criteria and note taking reflect current best practice?

- Where a less qualified person is selected, and one of the grounds apply, this will establish a prima facie case for an employee which the employer will have to rebut.

To view the full case decision:

http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014- 097.html