Bernadette Treanor writes:

Employment Equality Decisions issued in December 2014 Reviewed

1. The first case, DEC-E2014-072 relates to allegations of a failure to provide reasonable accommodation for a warehouse operative after sick leave which were upheld and his dismissal which was ultimately found to have no connection with the disability ground. The reduction of his hours because he had not achieved his targets was found to be discriminatory even though others who had not achieved their targets had their hours reduced. The Equality Officer found that as the others were not on reduced targets due to a disability their circumstances were not the same.

2. The second case, DEC-E2014-074, is a very rare (perhaps the first) application of the provisions relating to a “provider of agency work” where the company who provided the agency work, who was not the employer, was held responsible for discrimination

3. This Decision, DEC-E2014-076, handles age and compulsory retirement. It finds that the employer has not objectively justified the retirement age and that the reduction in the complainant’s hours prior to his retirement was discriminatory.

4. This Decision, DEC-E2014-078, is the much publicised Sheehy Skeffington successful claim that the relevant NUIG promotion was weighted against women. The Equality Officer upheld allegations of direct and indirect discrimination. The complainant was awarded €70,000. The respondent was also ordered to promote the complainant and pay her the necessary adjustment for the post from 1 July 2009. It was also ordered to report to the IHREC within one year.


1. DEC-E2014-072 Miaskiewicz v Tesco Ireland Ltd.

Issues: Disability, Race, discriminatory treatment, discriminatory dismissal, victimisatory dismissal, reasonable accommodation

This is a lengthy decision due largely to the quantity of evidence presented to the Tribunal. The complainant worked as a warehouse operative and following an injury to his back he went on sick leave on 2 October 2010 until certified fit for work on 4 April 2011 although he should avoid heavy lifting. The respondent, who did not have light duties and stated this was a standard feature of the work, concluded he was unfit for work.

There followed some correspondence with the respondent offering the complainant a menu of accommodations including reduced working week, reduced working day, reduced targets, rotation of job skill or a phased return to work. There was an assertion that the complainant discussed this with his doctor but ultimately he stated that he had not done so. He did write back to the employer restating his preference for some tasks which formed part of his normal duties but also identified some he had not previously done or been trained in.

Ultimately the complainant’s doctor stated the complainant “is suffering from lower back pain. He is fit to return to work, but needs special training to do his job. The complainant lodged this certificate with a covering letter from himself explaining what the training was required for, that being the tasks he had not previously done.

The complainant attended the respondent’s occupation health professional who concluded the complainant was fit to return to work on a phased basis with reduced targets but requiring him to carry out the full range of tasks as before. This was one of the accommodations originally offered by the respondent. The respondent also required a certificate from the complainant’s doctor indicating he was fit to resume. This was provided, stating he required training in manual handling. He returned to work and was provided with the training.

Following his return the complainant did not achieve the reduced targets and at development meeting with his manager he did not indicate any difficulty with the situation.

The complainant also asserted that the picking lists coming to him through the electronic system has somehow been altered by managers to deliberately assign him heavy tasks. The Equality Officer found that this was an unsubstantiated assertion on the part of the complainant and it was not upheld.

Subsequently, when orders were down the respondent sought to reduce hours and in accordance with its processes it sought to chose those who had not achieved their targets and those individuals, six including the complainant, were “flexed down”. The manager summoned the complainant to his office to inform him but met him in the corridor and told him there. The manager appears to have considered this to satisfy the need to inform the complainant while the complainant believed he was entitled to have a meeting with a support person who he sought to secure. The manager asked the complainant to return to work and he asserts he asked him three times. The complainant accepts he was so asked but that it was only once. Ultimately he was dismissed following a disciplinary process for serious misconduct in refusing a reasonable instruction of a manager. The Equality Officer found that the process applied to the dismissal appeared appropriate.

The complainant sought to argue that the dismissal was because of his disability and in the alternative that it was victimisatory in nature. The Equality Officer, having found that the dismissal was due to the complainant’s failure to comply with a reasonable request and was not related in any way to his disability it was neither a discriminatory nor a victimisatory dismissal.

However, the Equality Officer found that the employer had failed to explore the suggestions of the complainant in respect of the tasks he asserted he was capable of carrying out in respect of his return to work from sick leave and therefore could not avail of the defence.

In addition, he found the arbitrary setting of the reduced targets at 65% when the normal was 85% without reference to the complainant’s situation was not an adequate consideration of the available options. This is important because essentially the targets set are tainted and any action taken on foot of them not being achieved is likewise tainted.

This is exactly the position taken by the Equality Officer who found that the complainant being flexed down in like manner to others who had not achieved their targets was discriminatory. He quotes the ubiquitous rule that “discrimination occurs “when the same rules are applied to different circumstances or different rules are applied to similar circumstances””. Essentially, while on the face of it the complainant was the same as the others in that he had not achieved his target, he was perhaps the only one who was on reduced targets because of a disability.

The Equality Officer upheld the allegations relating to, reasonable accommodation, the setting of arbitrary targets and the flexing down of the complainant who was awarded €9,000 as redress.


Why is this case of interest?

- Employers should take care to consider when a person is apparently being treated the same as others whether the circumstances are, in fact, the same or similar

- The disciplinary process soundly implemented on foot of a real issue was sufficient to rebut allegations of discriminatory and victimisatory dismissal

- The Decision contains the useful reminder that assertions are insufficient. Evidence is required to raise assertions to the status of facts


2. DEC-E2014-074

Issues: Gender, pregnancy, dismissal, employer, provider of agency work

The complainant was an agency worker, paid by the agency Noel Recruitment, who was placed with Rottapharm, the provider of agency work and she lodged complaints against both.

She informed both the agency and the provider of agency work that she was pregnant in January 2011. She subsequently was requested to work a shift pattern involving nights in response to which she provided a medical certificate advising she should not undertake night work. In April the agency was told by Rottapharm that she was no longer required due to a downturn in work and its decision to move from using agency workers.

It was Noel Recruitment’s evidence that the complainant worked both day and night shifts in rotation prior to her pregnancy. Rottapharm accepted that the complainant was moved around subsequent to her telling it she was pregnant but asserts that this was in an attempt to accommodate her.

The Equality Officer looked at section 8(1) which provides “..an employer shall ot discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.” He found that the “combined effect of these provisions is that both the first named respondent (Noel Recruitment) and the second named respondent (Rottapharm) can each be an impleaded party under the Act”. The Equality Officer went on to find that although Noel Recruitment was technically the employer in this case he was satisfied it did not have any role or part in the central issue of the case and the claim against it was not upheld.

The complainant asserted that Rottapharm had retained other agency workers with less experience and at the hearing it asserted that the complainant was not the first to be let go. The Equality Officer found however that no evidence, such as a schedule of names was produced to support this assertion while the complainant produced a list of twelve workers retained after her.

The Equality Officer stated “the evidence before me, however, does not show any objective rationale for the Complainant’s selection for redundancy prior to other less experienced agency workers.” He went on to find that even if the complainant’s inability to work night shifts was a reasonable defence for her selection, which he did not accept, the downturn in business required changes in shift patterns rendering her situation less relevant. It should be noted that the Equality Officer accepted that the complainant would have been laid off eventually but in the absence of transparent objectivity and clear and fair procedures he was satisfied that her tenure at Rottapharm was ended prematurely due to her pregnancy.

As no evidence was presented to support the complainant’s allegations on the family status ground they were unsuccessful. The complainant was awarded redress of €20,000 for a finding of discrimination contrary to section 8(2) ( in comparison to other agency workers) and a separate finding contrary to section 6(2A) because of her pregnancy. It appears the same facts relate to both.


Why is this case of interest?

- This is a rare use of the provisions relating to the provider of agency work (defined in section 2(5) of the Acts) who is not necessarily the employer.

- In this case there were comparators available, other agency workers, to which the complainant could be compared in accordance with 8(2), those comparators being the other less senior agency workers who were retained after the complainant.

- Employers should note section 6(2A) which provides explicitly for discrimination relating to pregnancy or maternity leave.


3. DEC-E2014-076, Lett v Earagail Eisc Teoranta

Issues: Age, compulsory retirement, objective justification, reduction in hours

The complainant had, along with his brothers controlled the respondent company until 12 April 2007 when it was taken over by Navid Ltd. The new owners assert that the complainant became an employee immediately prior to the changeover it being agreed that he should be offered a two year fixed term contract. This contract ultimately became a contract of indefinite duration. The Equality Officer found that the complainant was an employee from 30 March 2007 which was just prior to Navid’s ownership on 12 April 2007. Also prior to the change in ownership a new company handbook was introduced by the company and was agreed by the board although there appears to have been limited knowledge of it and of its retirement age of 65. The complainant denied awareness of it.

The respondent pointed to another worker who was required to leave at 66 but the Equality Officer accepted this was unrelated to the worker’s age. She ultimately accepted that the complainant was required to retire due to his age and that he had established a prima facie case of discrimination on the age ground which the respondent now had to rebut. The Equality Officer considered section 34(4) and the requirement to objectively justify such treatment on the basis of the Equal Treatment Directive. The Equality Officer noted that some of the justifications raised by the respondent have b een accepted in other situations but found that they were not relevant to this case. For example, one of the justifications was to ensure an age-balanced workforce and sharing job opportunities but as the position has never been filled the Equality Officer could not accept this was relevant to the instant case. As the respondent was unable to objectively justify its actions this aspect of the complainant’s claim was upheld.

The Equality Officer then addressed the claim that the complainant’s role was reduced to three days per week even though he continued to work 5 days per week and was on call 24 hours per day, 7 days per week. The respondent stated the latter was a gross exaggeration but did not produce any evidence to support its claim of restructuring or that the complainant’s job could be done on a three day week basis. In addition, the post was advertised as a full time post after the complainant’s employment was terminated. The Equality Officer found that this established a prima facie case of discrimination on the age ground which the respondent failed to rebut. This aspect of the complaint was also upheld.

The Equality found implausible the complainant’s assertion, given his business experience, that he continued to work a forty-hour week while only being paid for a three day week.

The complainant was awarded €24,000 as redress.

Why this case is of interest:

- This Decision continues the Tribunal’s position of requiring objective justification for compulsory retirement.

- It highlights the need for records to be kept when decisions are being made in respect of employees who have been informed of their impending retirement. In this case the complainant was offered a three day week until his retirement this being the first time the complainant was aware of the alleged retirement age.


4. DEC-E2014-078, Sheehy Skeffington v National University of Ireland, Galway

Issues: gender, promotion, direct and indirect discrimination, statistics

The complainant had attempted promotion to senior lecturer four times. She was not shortlisted for the first two attempts. She was shortlisted for the second two but was unsuccessful at interview stage. She asserted that the application process was weighted against women.

The complainant presented evidence of her credentials, qualifications and experience. She also presented a witness, Dr. B who was the subject expert on her interview panel, who stated that some interviewers arrived for the interview only a minute before it began and there was no discussion as to the complainant’s application or what questions would be asked. He also indicated that he had requested the marking scheme and guidelines by email prior to the interview but had received no reply. He stated that this interview fell short of best practice and while not a friend of the complainant he felt an injustice had been done.

The complainant had submitted evidence of evaluation of teaching to the interview panel. However one male candidate received more marks than her even though he also did not have the recognized evaluation and had less than half the teaching undergraduate hours than the complainant. The feedback she received was “No formal evaluation of teaching” in spite of her submission. When the complainant appealed this the Registrar agreed this was not correct but her mark was not altered.

There was only one female on the interview panel and the complainant asserted that she was entirely passive throughout.

The complainant submitted statistics of male/female grade distribution in the respondent. She asserted that four candidates were actually ineligible as they had not reached the maximum of the lecturer scale. She further asserted three successful male candidate had significantly less than the student minimum contact hours. She presented a report which had looked at these matters in the University previously.

The respondent rejected the assertions in their entirety stating that the process was clear and transparent. The sole female interviewer stated that she was not a designated questioner for that interview. The respondent accepted that one candidate did not have the required service but she was incorrect about the other three. It did not accept that the appeal was a tick the box process.

The Equality Officer referred to O’Higgins v UCD in which the Labour Court gave a useful précis of what is to be considered in such cases. She was satisfied that the complainant had established that the process, while appearing fair with definitive criteria on paper, fell short of best practice for several reasons including no training of interviewers, no pre-meeting and notes kept by the rapporteur only. Failing to answer Dr. B was, the Equality Officer found, both discourteous as well as highlighting the ramshackle approach to the process. She did not accept that the process was gender neutral. She stated out that the panel was not gender balanced and highlighted the difference between gender balance and gender representation. Having reviewed the applications (redacted) the Equality Officer found that the complainant was correct in her assertion that three successful male candidates had significantly less than the minimum contact hours.

Having considered the various assertions of the complainant the Equality Officer then focuses on statistics which she found was the most significant frailty in the respondent’s rebuttal. Men were in the minority in the College Lecturer gradw but this was almost inverted in the Senior Lecturer grade. She stated “It is clear from the above table that male applicants have a one in two chance of being promoted to Senior Lecturer while women who apply have a less than one in three chance of the same promotion. For these reasons I am satisfied that the complainant has established a prima facie case of direct discrimination and the respondent has failed to rebut it.”

The Equality Officer then considered whether indirect discrimination had occurred and found one apparently neutral provision that puts women at a particular disadvantage. The application form asked applicants to nominate when they were on maternity leave or other unpaid leave so that it could be discounted. Male applicants left this blank. Female applicants included adoptive leave, parental leave, maternity leave, job sharing and for the complainant care of her mother in 1990s. The Equality Officer accepted that the purpose of the question had a legitimate aim but in reality its effect was discriminatory. She stated “I cannot escape the conclusion that the majority of female applicants drawing attention to their caring responsibilities outside the workplace disadvantaged them against the male applicants. Therefore, the means chosed was neither appropriate nor necessary and so cannot be objectively justified. Therefore I find that the respondent had indirectly discriminated on the ground of gender in relation to this issue.”

One final observation is that Dr. B who was the external subject-expert interviewer noted that no discussion took place prior to the interview. However the female interviewer stated she was not a designated questioner for that interview indicating that some discussion had taken place in Dr. B’s absence further supporting the lack of transparency. I note that NUIG has accepted the Decision and will not be appealing it.

The Equality Officer awarded the complainant €70,000. However, significant cost would be attached to the additional order that the complainant be appointed as senior lecturer from 1 July 2009 including full payment of the necessary salary adjustment and other benefits from that date. Finally she ordered the respondent to conduct a review of its policies with a progress report being sent to the Irish Human Rights and Equality Commission within one year.


Why this case is of interest

- The practices described in the Decision are nothing short of startling. However, difficulties for the imposition of practices by HR professionals in such institutions where promotion practices are controlled by academics in accordance with Department of Education circulars are not new.

- It reinforces caselaw to date that transparent processes are required in promotion situations, proper preparation and records. It shows that statistics can be used as a factor in demonstrating that discrimination exists between grades of employees.