Bernadette Treanor writes:

Employment Equality Decisions issued in January 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.

The first case relates to a pregnancy dismissal with victimisation.

The second case is exemplary of what happens when an employer does not have harassment policies in place.

The third case shows that where financial difficulties are the basis of the defence an employer must be able to show the nexus between those difficulties and the action taken against the employee

This relates to an employee of 30 years and the employer’s failure to provide reasonable accommodation, a sign language interpreter for a Safe Pass Course, on one occasion

The complainant in the final case complained of racial abuse from a customer to the Gardaí and not her employer.  Her claims of harassment on the race ground and constructive dicriminatory dismissal were upheld.

DEC-E2013-163, Jolenta Drabik v Edward Zandi t/a Moonlite Cleaning Services Ltd.

Issues: Gender, pregnancy, reduced terms and conditions, constructive discriminatory dismissal, victimisation

The complainant began working with the respondent as a cleaner in 2006.  She considered him a mentor and after encouragement she completed a Diploma in Supervisory Management in GMIT and was made supervisor in her employment in 2007.  In October 2010 she told him she was pregnant and was shocked at his response, telling her, among other things, that she would only work a three day week.  She alleged this was at the respondent’s insistence and the respondent alleged it was at her request.  After 27 December she was not rostered at all.  Similarly there was contradictory evidence as to how she was ultimately placed on health and safety leave.

A preliminary issue was raised in that the respondent’s personal name was quoted on the complaint form and the @Resonance case was quoted (EED0311) but the Equality Officer was guided by High Court in O’Higgins v UCD & Labour Court [2013 No. 21 MCA]  and held that the respondent was on notice of the claim and it was properly before her.

In the first place, the Equality Officer found the documentary evidence incontrovertible that the complainant’s terms and conditions of employment were reduced from full time to part time and from permanent to fixed term,  after she informed him of her pregnancy.  She did not accept “the respondent’s contention that the reduced hours were at the complainant’s initiate or that there was any mutuality in the arrangement”.

In respect of the allegation of victimisation, the Equality Officer stated “Calling a meeting of employees to inform them that Ms. Drabik had initiated legal proceedings was not prudent by Mr. Zandi.  I accept the complainant’s evidene that at this meeting other employees were encouraged to make a complaint of bullying against M. Drabik.  This is victimisation. It is to the credit of the other employees that they did not.”

The complainant was awarded €22,000 for discrimination in relation to conditions of employment leading to dismissal and €11,000 for victimisation.

Why is this case of interest?

- The award was made from a total potential award of 4 years pay as victimisation is entitled to its own award of up to two years salary. Victimisation claims are always treated seriously by the Tribunal as victimisation, if upheld, is seen as penalisation of an employee for exercising their statutory rights.  (See also DEC-E2013-193 below)

- Recent equality caselaw has followed that of the EAT in respect of constructive dismissal in that complainants are expected to have exhausted all internal procedures.  No consideration of this is included in this  Decision so it is unclear whether the employer had the relevant policies.

DEC-E2013-167, Attila Marton Ajtai v McDonnell Brothers Agricultural Ltd.

Issues: Race, Roma, discriminatory treatment, harassment, victimisation

The complainant is a Hungarian national of the Roma community.  In 2010 he alleged that two colleagues made racial slurs against him, including comments relating to ‘white power’ and making the Nazi salute.  He received slaps to his neck while eating his lunch and on three occasions in one week he tasted soap in his sandwiches.  The complainant made a number of verbal complaints.  He also reported the matter to the Gardaí.  He alleges that his manager shouted at him for going to the Gardaí and Citizens Information Centre.  The respondent asserts that the complaints were investigated and that it formally interviewed the two alleged offenders who both denied the allegations.

The Equality Officer was satisfied that the complainant was subjected to racial slurs and degrading and humiliating treatment by the two co-workers.  She found that the complainant was required to put his complaint formally in writing while the respondent took a very informal approach to the matter, no formal notes were kept, no outcome of the enquiries no sanctions given etc.  She was also satisfied that the respondent had “no policy or procedure in the workplace to deal with an allegation of harassment”.  She preferred the evidence of the complainant finding his evidence clear and convincing.

A number of questions arise including what aspect of the race ground is in play. Is it nationality because he is Hungarian, or was it because of his Roma origins, perhaps ethnicity or ethnic origins?  In addition, no link has been made between whatever aspect of race is in play and the white supremacy comments and salute.  Frankly, most people regardless of their race, nationality or ethnic origin could be intimidated by such behaviour being directed at them.  As always, it is noted that not all of the information that was before the Equality Officer was necessarily included in the decision.

Due to the response of the employer to what the Equality Officer describes as abuse of a serious nature she held that it was reasonable that the complainant sought the assistance of third parties.  Ultimately the respondent was not entitled to rely on the defence provided in the Acts as it had no policy or procedure in place in addition to the failure to take definitive action to deal with the complaint.

The complainant also alleged victimisation and the Equality Officer accepted that although the complainant was treated differently in the workplace it did not amount to victimisation.

The complainant was awarded €20,000 in respect of the harassment.

Why this case is of interest

- Employers who have no policies and procedures in place to deal with harassment cannot hope to defend any such claims before the Tribunal.

- While the complainant asserted that his different treatment after making  his complaints amounted to victimisation which was not upheld, had it been asserted that the different treatment was as provided for in section 14A(1)(b), what would an employer have to do to defend it in terms of 14A(2)(b)?

DEC-E2013-181, Furlong v The Timber Frame Company Ltd.

Issues: Disability, Lay-off, discriminatory dismissal

The complainant was employed as a general operative with the respondent.  He and his colleagues were periodically laid off from work and on each occasion the complainant was taken back at the same time as his colleagues.  This did not happen on the last occasion of lay-off.  The complainant broke his toe on 23 March 2011 after being informed on 21 March 2011 of the latest impending lay off and was expected to be unavailable for work for 4 to six weeks.  On 13 April 2011 the complainant received a text along with his colleagues about returning to work.  The complainant was subsequently told the text was not meant for him and that he was not required.  He did not resume duty and received his P45 some weeks later.  The employer had no previous issues with the complainant’s performance or behaviour.  No medical advice was sought.

The Equality Officer found that a broken toe was a disability in terms of the Acts and on the basis of the evidence found that the complainant had established a prima facie case that he was dismissed in circumstances amounting to discrimination on the disability ground.

Given the frequency of the lay-offs the Equality Officer accepted that the respondent was generally facing financial difficulties but found that it was unable to produce any credible evidence that it could not sustain the complainant returning to work with his colleagues because of this.  In addition no evidence was presented to indicate that an objective evaluation of the complainant as compared to other employees as a candidate to be left on lay-off at the relevant time was undertaken.

The complainant was awarded €5000 taking account of further lay-offs and the respondent’s cessation of trade in late 2011.

Why this case of interest

- Where an employer is arguing financial difficulties there must be an indication as to how this relates to the circumstances of the complainant particularly rather than financial difficulties generally.

DEC-E2013-186, Alan Gallagher v McCosker & Sons

Issues: Disability, discriminatory dismissal, failure to provide reasonable accommodation

The complainant worked with the respondent for 30 years as a painter.  He was profoundly deaf.  Following the introduction of a new Health and Safety Statement an issue arose around the complainant’s SafePass.  A refresher course was organised by another employer and the complainant, along with colleagues, was to attend.  The complainant was led to believe that a sign language interpreter would be available to assist him as at previous courses.  The Advocacy Manager of the Irish Deaf Society stated that the complainant’s ability to understand the Safe Pass Course would have been limited without the benefit of a sign language interpreter.

However, due to what was found to be “unwarranted interference and meddling” by a representative of the interpreter providers no sign language interpreter was ultimately on hand on the day.  (In paragraph 5.19 the Equality Officer details the impact of this interference.)  The complainant did not stay at the training.  The respondent communicated with the complainant by text one of which said he (the employer) was sorry the complainant was leaving his employment.

The complainant had omitted to indicate on his complaint form that he wished to pursue a claim of discriminatory dismissal and the Equality Officer after consideration found that the dismissal aspect of the claim was validly before her.

Fás had agreed to pay for one interpreter and the fact that one was not available on the day appears to have been the result of interactions between the interpretation provider (the meddling mentioned above) and the employer who organised the training.  The complainant’s employer does not appear to have been directly responsible for it.

The Equality Officer found that offering the same opportunities and facilities to the complainant as was offered to the other employees who did not have a disability constitutes discriminatory treatment.  The respondent asserted that he did not intend to dismiss the complainant and while that may have been the case the Equality Officer was satisfied that the wording of the messages sent a strong message that if the complainant did not attend the course he was dismissed and found the complainant had established a prima facie case of dismissal on the disability ground which the respondent had failed to rebut.

The complainant’s claims were upheld and he was awarded €12,000 from a possible €45,000, approximately 6 months wages after 30 years employment.

Why this case is of interest

- Applying different treatment to people who are in the same (or similar) circumstances or applying the same treatment to people who are in different circumstances can give rise to a prima facie case of discrimination

- Sadly, the situation in this case seems to have been entirely avoidable particularly given that Fás had agreed to foot the expense of one interpreter.  However, what is of note is that the responsibility lies with the respondent to provide the accommodations that are necessary and appropriate.

DEC-E2013-193, Kristina Kukstaite v Shedan Ltd.

Issues: Race, dismissal, harassment, sexual harassment, victimisation, ‘trivial influence’,

The complainant was a Lithuanian national and was employed with the respondent from January 2009 until June 2010.  She alleges that a customer racially abused her on two occasions.   She did not report it to management as she felt she would lose her job.  After the second occasion the complainant complained to the Gardaí who contacted the customer and the respondent.  Following a meeting with the complainant the following morning the respondent transferred her to another of the respondent’s premises, a Supermacs.  After a short time the complainant was moved from the till in the second premises following an alleged complaint from a customer and was placed cooking burgers.  She was not rotated from that as all other staff were.  About 8 days later the complainant gave a week’s notice and finished working the following week.

The Equality Officer found that something untoward must have happened between the complainant and the customer to prompt the complainant to go to the Gardaí.  She found that the complainant had raised an inference of discrimination in relation to harassment and that a prima facie case had been established.  No further consideration is given to harassment nor to a rebuttal from the respondent in particular.  Therefore it is unclear whether the respondent had any policies in place.

The Equality Officer considered the Labour Court case Monaghan County Council v Roy Mackarel, EDA1213, and was satisfied that the complaint of discriminatory treatment (i.e. the allegations of racial abuse) had more than a trivial influence on the respondent’s decision to move the complainant.  She was satisfied that the complainant would not have been transferred but for the complaint.  She found that the complainant had established a prima facie case of victimisation which the respondent had failed to rebut.

The complainant resigned and claimed constructive discriminatory dismissal.  The Equality Officer considered two cases, An Employee and a Worker EED053 in which the Labour Court defined constructive dismissal and Berber v Dunnes Stores [2009] IESC 10 in respect of mutuality of obligation.  She found that the complainant was entitled to resign, that she had established a prima facie case of constructive discriminatory dismissal which the respondent failed to rebut.

The complainant was awarded €14,000 for discrimination and dismissal (approximately 6 months pay after employment of 18 months) and €20,000 for victimisation.

Why this case is of interest

- While the Decision contains no mention of the respondent having policies in place, (and we saw in DEC-E2013-167 above that without policies relating to harassment there is no defence) however even if policies were in place it is clear that there were no procedures in place.  One wonders how different it might have been had the complainant’s allegations been considered appropriately and the transfer defined as a protective or holding action until the matter could be addressed properly.

- The second alleged complaint at the till in Supermacs does not appear to have had any procedures applied other than the immediate transfer of the complainant to the grill.

- Recent equality caselaw has followed that of the EAT in respect of constructive dismissal in that complainants are expected to have exhausted all internal procedures.  The complainant in this case was relatively passive in that she did not make a complaint in the first place but without knowledge as to whether there were policies in place that she could actually exhaust this is only conjecture.

- The redress awarded was from a potential total of four years pay.  Victimisation claims are entitled to their own award and treated separately from treatment claims.  They are always treated seriously by the Tribunal as victimisation, if upheld, may be seen as obstructing an employee in exercising their statutory rights