Bernadette Treanor writes:

Employment Equality Decisions published in March 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 is from the Equality Tribunal and relates to the harassment of an employee in the form of inappropriate comments while she was pregnant.

The second case, again from the Tribunal, deals with the complaints of an ambulance service worker where a second complaint was lodged after the first hearing took place.

The third is from the Labour Court which found that as nothing had happened in the six months prior to the referral of the complaint, other than the dismissal which was estopped, the Equality Officer’s Decision was upheld

DEC-E2014-007 – Mullen v BCon Communications Ltd. (In Liquidation)

Issues: Discriminatory treatment, harassment, gender ground, family status ground, constructive discriminatory dismissal

The complainant made a number of allegations of discriminatory treatment and harassment relating to her pregnancy, maternity leave with her third child and her existing children.  She alleged that the respondent made a number of comments to her and about her to others after being informed of her pregnancy such as “Jesus Lisa, you don’t hang around” and when she informed clients that she was pregnant he said “Yes and to be honest lads I am not too happy about this.  She was meant to stop after her first two and now I have been informed that she is having a third”.

Only the final alleged incident occurred within six months before the referral of the complaint to the Tribunal.  The Equality Officer, while cognisant of the Labour Court in Hurley v Cork VEC EDA1123, decided to take evidence in respect of all of the alleged incidents at the hearing enabling him to reach a conclusion on those incidents over six months before the referral should the final incident be found to be discriminatory without reconvening the hearing.

The complainant asserted that she was not permitted to return to the role she held prior to taking maternity leave and when she refused to accept what she considered a lesser role the respondent accepted this as a resignation.  The respondent maintained at all times to the complainant that her role no longer existed.  However the complainant presented a screen shot of the respondent’s website some three months after her dismissal naming her replacement in the role the complainant had previously held.  The Equality Officer decided he would address the matter as an alleged constructive discriminatory dismissal.  He found that the respondent had behaved in such a way that the complainant was entitled to consider herself dismissed and that she had established a prima facie case that she was dismissed in circumstances amounting to discrimination on the gender and family grounds.

Having established that the incident within the six months was discriminatory the Equality Officer turned his attention to the earlier incidents.  In respect of the comment about not hanging around, the Equality Officer found that the comment demonstrated profound insensitivity but he was not satisfied that it constituted harassment on either of the grounds presented.  However, the other comment was found to have had the effect of creating an offensive, humiliating and degrading environment for her in respect of both grounds cited and her allegations of harassment on both the grounds were upheld.

One other allegation was upheld in respect of a comment made to the person ultimately selected to replace the complainant while on her maternity leave during the selection interview.  During the interview, attended by the complainant, the replacement asked about duration of the appointment and the respondent allegedly replied “well I’m not sure if Lisa will be coming back to work especially now she will have three children to look after”.

Interestingly the removal of the complainant’s car, phone and salary while on maternity leave were not upheld as discriminatory, the facts of the case being distinguished from O’Brien v Persian Properties t/a O’Callaghan Hotels, DEC-E2012-010.

The complainant was awarded €80,000, taking account of Von Colson v Land Nordrhein-Westfalen, Case C-14/83, in respect of sanctions being effective, proportionate and dissuasive.

Why this case is of interest

- The respondent had gone into liquidation and no defence or appearance was made by the respondent or liquidator and therefore no rebuttal was presented.  The Equality Officer accepted the complainant’s evidence in its entirety and found that she had established a prima facie case in respect of some of the allegations.

- The Decision follows the process laid down by the Labour Court in respect of incidents occurring over six months before the referral of the complaint.

Read the full case here:

http://www.labourcourt.ie/en/Cases/2014/February/DEC-E2014-007.html

Issues: Discrimination, harassment, disability, victimisation

At the first hearing of this case the complainant’s representative wished to introduce incidents that had occurred after the submission of the complaint.  Following the hearing another complaint was lodged in respect of those later incidents and this was delegated to the same Equality Officer.  The second complaint related to two issues, the suspension of the complainant by the respondent following an incident on 26 October 2010 until August 2011 and to the complainant’s assertion that the respondent had applied the disciplinary policy to him.  He asserted that he only became aware that no disciplinary action was pending against him at the first hearing of the complaints before the Tribunal and therefore this constituted ongoing discrimination until the date of the hearing.  The Equality Officer found that any discriminatory treatment of the complainant in respect of the first issue, the suspension, ceased when he returned to work.  As this was more than 12 months prior to the submission of this second complaint it was out of time.  In relation to the second issue, the assertion that the disciplinary policy had been applied to the complainant, the Equality Officer was very critical of the respondent and its procedures, or lack thereof, but found that while these may have been inadequate in terms of best practice, he did not find that it was a continuous act or a chain of connected acts that could amount to discrimination of the complainant until the lodgment of the second complaint.  The Equality Officer found that this second complaint was out of time and that he had no jurisdiction to deal with it further.

Looking at the first complaint, the Equality Officer found that the actions of the employer in referring the complainant to its Occupational Health Department were reasonable in the circumstances where they held genuine concerns as to the complainant’s medical fitness to carry out his contracted duties.  However, in considering the complainant’s removal from the overtime roster, the Equality Officer noted that when such concerns had existed previously the complainant had not been removed from the roster but rather his overtime had been limited.  The Equality Officer found that removing the complainant from the overtime roster altogether would not have been applied in the same manner to another employee in the same role who had no disability or a different disability.

The complainant was awarded €2,800 by way of loss of earnings (liable to PAYE/PRSI) and to €12,000 by way of compensation.

Why is this case of interest?

- It contains a useful consideration of the identification of when discrimination could have occurred when considering the timeliness of a complaint.

Read the full case here:

http://www.labourcourt.ie/en/Equality_Tribunal_Import/Database-of-Decisions/Temp_Files/DEC-E2014-009.pdf


Labour Court Determination EDA146, Apparel Supply Solutions Ltd., (formerly Teamkit Ltd.)

Issues:  S83 Appeal of Equality Tribunal Decision, discriminatory treatment, discriminatory dismissal, race ground

The complainant had appealed the Decision of the Equality Tribunal that had not upheld her complaints of discriminatory treatment by her employer.  Her claim in respect of dismissal had been heard and decided by the EAT and she was awarded €7,500.  The Labour Court found that by operation of section 101(4)(c) she was estopped from seeking redress under both Acts and consequently the Court had no jurisdiction to hear that part of her claim.

The Court considered section 77(5) and indicated that the effect of that provision is that redress can be sought only in respect of occurrences during the six months prior to the date of receipt of the complaint by the Equality Tribunal unless a continuum of events is what is at issue.  The Tribunal had received the complaint on 4 August 2010.  The Court states that “other than her dismissal there were no alleged acts during the period 5 February 2010 and the date of her dismissal 10 May 2010.  This follows the Hurley v Cork VEC EDA1123 Determination.

As there were no impugned incidents, other than the dismissal which was estopped as above, during the six months prior to her lodging her claim the Court could not uphold her claim.  However, the Court also considered the allegations made by the complainant and stated that as no evidence was produced to substantiate the complainant’s assertions or suppositions she had failed to establish a prima facie case of discrimination.  The Court concurred with the findings and Decision of the Equality Officer and the complainant’s appeal failed.

Why is this case of interest

- It is a reminder that an incident that occurred within the six months prior to the lodgment of the complaint must be found discriminatory before older incidents will be addressed to establish they are connected.

- It is also a reminder that the fact that a complainant falls within the definition of one or more of the grounds is insufficient to establish a prima facie case of discrimination.   Even where, in addition, adverse treatment is established there must be some link or nexus between the ground and the treatment.

Read the full case here:

http://www.labourcourt.ie/en/Cases/2014/February/EDA146.html