
Bernadette Treanor writes:
Employment Equality Decisions published in February 2014 Reviewed
These decisions of the Equality Tribunal and Labour Court were reviewed by Bernadette Treanor, Managing Consultant, Beo Solutions, and former Equality Officer at the Equality Tribunal.
The first case relates to complaints from 34 complainants handled in one Decision. It contains some useful guidance on how notional comparators should be handled.
The second case, also not upheld, relates to agency workers but since it was lodged with the Tribunal before the new legislation on agency workers came into force it is handled in accordance with the pre-existing arrangements.
The third case below relates to an equal pay case where no work inspections were necessary.
The fourth case considered below is the Labour Court case where a phobia and the conditions arising were considered to be a disability.
DEC-E2014-001, 34 complainants v We Clean Ltd., (in liquidation)
Issues: Race ground, equal treatment, REA rates not paid
The first Decision of 2014 was issued by the Director, Mr. Niall McCutcheon, and relates to 34 complainants, 30 of whom turned up for the hearing. While a number of issues including gender were included in the original complaints the Decision ultimately dealt with only three substantive issues were addressed, failure to pay the REA rates, failure to provide written contracts of employmentand an assertion relating to inducements of additional hours in return for renting accommodation from a Director of the respondent.
The representative for the complainants argued that the Tribunal should infer, because all of the employees were non nationals, that the employer’s intention was to exploit non-Irish nationals and argued that a notional Irish comparator would not have been treated in this way. The Director mentioned two Labour Court cases Melbury Developments v Arturs Valpetters and Businkas v Eupat when considering the case. Very usefully, he also detailed Toker Developments v Edgars Grods in which the Labour Court gave some guidance on the use of notional comparators and the need for some evidential basis for the assertion being made. The Director was not satisfied that there was any less favourable treatment, that is that a notional Irish comparator would have been treated more favourably, and that the complainants had failed to establish a prima facie case of discrimination as alleged. Therefore, the complaints were not upheld.
Why is this case of interest?
- The use of the Labour Court case Toker Developments v Edgars Grods shows how the guidance in respect of notional comparators applies in practice
- A complainant must still establish a prima facie case of discrimination even where there is no appearance or defence presented by a respondent
- Also of interest is that the Director, who found that a notional Irish comparator would not have been treated differently in respect of pay, stated that as this was equal pay, it could only be dealt with under section 29 of the Acts. This is entirely in line with section 2(4) of the Acts which states that the term “conditions of employment”, dealt with in section 8, does not include remuneration.
- It is a reminder of the need for a real comparator for equal pay claims rather than a notional one.
- There is no provision for class actions under the Employment Equality Acts
Read the full case here:
http://www.labourcourt.ie/en/Cases/2014/January/DEC-E2014-001.html
DEC-E2014-002, Wszotek v Moduslink
Issues: Race ground, agency worker, access to employment, conditions of employment, harassment
This claim related to an agency worker but was taken before the effective date of the EU Directive on Temporary Agency Work 2008/104/EC, 5 December 2011, and the Protection of Employees (Temporary Agency Work) Act 2012 which came into force on 16 May 2012.
The claim was not upheld and was handled by the Equality Officer in accordance with the arrangements in the Employment Equality Acts in force at the relevant time. At that time agency workers could only compare themselves to another agency worker and the employer was considered to be the entity that paid the worker.
The Equality Officer found that the complainant’s assertions could not be elevated to the status of evidence and he failed to establish a prima facie case. In relation to the harassment allegations it was found that the employer was entitled to rely on the defence in section 14A because the complainant had not reported the alleged incidents.
Read the full case review here:
http://www.labourcourt.ie/en/Cases/2014/January/DEC-E2014-002.html
DEC-E2014-003
Issues: Race ground, like work, equal pay, promotion
The complainant asserted that he had more experience and performed more significant duties for the respondent than the Irish comparator who began working for the respondent one month before it was placed in receivership. The complainant worked as a waiter/bartender, as did the comparator, although he, the complainant, also had additional responsibilities. The complainant was paid €10 per hour. He asserted that the comparator was paid €13 or €14 per hour but the Equality Officer accepted that the comparator was paid €12 per hour. The complainant also asserted that he was de facto an assistant manager.
The Equality Officer accepted that there was no promotional vacancy available and found that a claim of discrimination in this regard was unsubstantiated.
The Equality Officer accepted that ‘like work’ existed in that the work performed was of a similar nature and found that reasons other that race for the difference in pay had not been presented. Equal pay was awarded amounting to €4960.00.
Why is this case of interest?
- There appears to have no element of a work inspection and the Equality Officer had to reach a conclusion on like work with the best evidence available.
- It is interesting to see how an equal pay claim will be approached when the employer is no longer available.
Read the full case review here:
http://www.labourcourt.ie/en/Cases/2014/January/DEC-E2014-003.html
EDA143, Sea and Shore Safety Services Ltd. And Amanda Byrne
Issues: Appeal of Equality Tribunal Decision, disability, reasonable accommodation, harassment, victimisation, discriminatory dismissal, phobia as a disability
This appeal was brought by the complainant Ms. Byrne in respect of a Tribunal decision which had not upheld her claims of discrimination. Although the Tribunal Decision appears to have been anonymised, from the content it appears to be DEC-E2013-033.
The complainant suffered from a phobia of rodents and her workplace suffered an infestation of rodents following ground development work on an an adjacent site. Both the Tribunal and the Labour Court accepted that the complainant suffered from a disability. While the Tribunal Decision provides more of the medical information submitted it remains unclear whether it is appropriate to consider phobias generally to be disability or whether the nature of the impact of the phobia on the complainant in this case is what renders it a disability. On that basis it is unclear whether the decision has general application or is based on the facts of this case only.
The Labour Court found that the respondent had failed to provide reasonable accommodation because it had failed to assess the accommodation sought by the complainant, had come to no conclusion as to whether the accommodation sought was reasonable and because she was not informed and remained unaware of the resolution of the problem (by poison).
On the basis of one interaction with a raised voice and a reference to the complainant’s ‘little friends’ the claim of harassment was upheld.
The Court’s treatment of victimisation is more complex. It accepted that the letter issued to the complainant on 25 August 2010, giving her two weeks notice that her pay while still on sick leave would end, had a real purpose. However, it found that it could not be read in isolation. The Court notes that the complainant’s solicitor wrote to the respondent on 2 September 2010 and that the decision to remove her pay while still on sick leave was implemented on 13 September 2010. It states “Accordingly the Court finds that the manner in which that decision was given effect to was influenced by the letter the complainant’s solicitor’s wrote to the company on 2 September as it failed to follow through on its commitments set out in the letter of 25th August…”
The Equality Officer found that the respondent was on notice of the complainant’s disability from 29 July 2010 and if that was indeed the case then the decision in August 2010 respect of payment for sick leave would seem questionable. However, the Equality Officer also mentioned an entitlement to statutory sick pay and neither this nor the terms of her employment contract appear to have been considered by the Labour Court in terms of her entitlements in light of the company’s loss making situation.
The Court went on “On the balance of probabilities the Court finds that the company decided to dismiss the complainant as a means of dealing with the Employment Equality issues she was raising.”
While of course it is interesting to consider the decisions of both the Tribunal and the court relating to the same situation it should be remembered that the Labour Court hearing of the case is a de novo hearing.
The complaints were upheld by the Court and the complainant was awarded €20,000, setting aside the Equality Officer Decision.
Why this case is of interest
- The acceptance of a phobia at Labour Court level as a disability
Read the full case review here:
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