Bernadette Treanor writes:

Employment Equality Decisions issued in April 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 describes a litany of mistreatment of an employee at the hands of an employer non-compliant with “vast swathes of employment law”.  However, the nexus between any unfavourable treatment and the grounds is unclear.

The second case, parties unnamed, centres around the complainant’s application for parental leave.  Although there were 12 female and 13 male parental leave applicants the Equality Officer found for the male complainant on the gender ground.  Issues arise in respect of a discriminatory incident occurring in the six months before the lodgment of the complaint in accordance with the Hurley v Cork VEC case.

The third case will be a useful read for employers trying to understand how their situation may be assessed in terms of reasonable accommodation requirements.  It also contains a straightforward consideration of ‘disproportionate burden’ where the employer’s revenue was £2315 million sterling in Ireland for the last reporting period and a disabled toilet was costed at under €23,000

DEC-E2014-017, Mirela Mentel v Top Heights Ltd. T/A Foys Bar & Lounge

Issues: race, gender, harassment, victimisation, equal pay, res judicata

The complainant is a Polish national who described a litany of mistreatment at the hands of the employer including staff deliberately walking on floors she had just cleaned, telling her to carry heavy items up several floors then telling her to take them back, staff hiding her cleaning materials, being accused of stealing, being required to purchase items for her employer and not being paid for them etc.  She asserted that soon after she complained about her payslips her hours were cut to 8 hours per week.  When she asked about her payslips the owner allegedly responded “for all the good they would be to you, you might as well wipe your arse with them”. She alleged that these incidents amounted to harassment of her on the gender and race grounds.  The Equality Officer was satisfied that the respondent would not have made such a remark to an Irish male employee.

It appears that the respondent was given every opportunity but failed to attend the Hearing although its representative was in attendance.  The Decision includes a quotation from the EAT’s decision relating to the complainant’s constructive dismissal claim which includes “It is clear that the respondent did not comply with the vast swathes of legislation designed to regularise the employment relationship.  In addition to the matters complained of by the claimant, the employer apparently had two sets of payslips for the claimant and this matter was completely unexplained by the respondent.”  There is no consideration in the equality Decision as to whether the situation described in the EAT quotation applied to any other employees.  Certainly, if the respondent did not comply with employment requirements generally then arguably that could be the respondent’s general disposition regardless of who asks and the alleged treatment of her could arguably have nothing to do with any of the grounds.

It is unclear how the respondent’s comment, implicitly accepted by the Equality Officer as occurring, is connected with the complainant’s gender or race.   In the alternative, it could be interpreted as a general disposition relating to employment law compliance on the part of the employer.

The respondent’s representative argued that res judicata applied as the complainant was attempting to use the same facts to seek redress under various pieces of legislation but the Equality Officer found that the relevant matters did not constitute a breach of the Employment Equality Acts.  It is unclear whether this means they were considered or stopped.

The Equality Officer found the complainant a cogent witness and found that when the complainant complained about not getting her payslips, as a non-national unaware of her rights, the respondent reduced her hours.  The Equality Officer was satisfied that the complainant demonstrated that she was subjected to harassment in the course of her employment which was related to her gender and race resulting in a very demeaning and hostile environment for her.

While there can be no doubt that an environment, as described, would certainly be interpreted as demeaning and hostile it is unclear how the incidents were connected with the complainant’s gender or race.  Some might argue that such a situation relates more to bullying and inappropriate behaviour generally.  Nothing in the Decision appears to create the necessary nexus to link unfavourable treatment to the relevant grounds although, as always, I note that it is not always possible for an Equality Officer to detail all of the evidence presented.

The complainant asserted that following her case before the Rights Commissioners she was presented with cheques and asked to sign a document in full and final settlement.  The complainant asserted that this amounted to victimisation of her.  However, on examining the document the Equality Officer found that it related to the Right’s Commissioner issue only and was satisfied that the complainant did not suffer any adverse treatment as a result of her equality complaint.  The allegations of victimisation were not upheld.  In terms of equal pay, the complainant had not named an actual comparator and on that basis that aspect of the claim also failed.

Why is this case of interest?

Issues: Gender, Family Status, Disability, Conditions of Employment, Harassment, Victimisation, Reasonable Accommodation, compliance with deadlines

The complainant was employed by the respondent since 1992.  Mr. A was appointed his line manager in 2006 and in 2008 unfair treatment of him by Mr. A allegedly began.  The complainant lodged two complaints with the Tribunal on 29 July 2011 and on 8 May 2012.  The complainant was on sick leave from 12 January 2011 until 7 November 2011.

When looking at harassment the Equality Officer found that the last possible date an act of harassment by Mr. A could have occurred was 12 January 2011, the date the complainant went on sick leave, and on that basis the Equality Officer found that the claim in so far as it related to harassment was out of time.  It is presumed that this latest date relates to the complaint lodged in July 2011.

The complainant returned from sick leave on 7 November 2011, having lodged his first complaint while on leave. When he returned he did two things. He made what appears to be a new application for parental leave in respect of a new child and he appealed the decision of his bullying complaint against Mr. A which had not been upheld.

The complainant asserted that in 2010 he had to do five days work in three days and the Equality Officer was critical of the failure of the employer to make appropriate arrangements to cover the complainant’s work while he was on parental leave.  Following a comment from Mr. A that the complainant would have to give up his parental leave because the sales team complained about not getting orders completed on Thursday or Friday when the complainant was off.  He felt under pressure to give up one day of his parental leave. The respondent stated that the complainant agreed when asked to give up one day per week.

A total of 12 females and 13 males had applied for and been granted parental leave and the majority of those seeking broken parental leave patterns were male.  The complainant contended that females took their parental leave without any issues arising.  In respect of the parental leave applicants as a whole the Equality Officer stated “No evidence was given by the respondent that anyone else had been requested to change or curtail their parental leave arrangements”.   Therefore, no other male or female was asked to change their pattern.

The Equality Officer concluded that the employer did not make appropriate arrangements for the complainant’s parental leave, that this would not have occurred to a female taking parental leave and found this to be discriminatory treatment on grounds of gender in relation to conditions of employment.  The complainant was awarded €7,000 for this.  It is interesting that a hypothetical comparator was used when actual female comparators existed.

The employer’s failure to make appropriate arrangements to cover the complainant’s work could certainly be viewed as creating a very difficult environment for the complainant.  As always, it may be that evidence was presented that is not included in the Decision. However, the 12 other male employees who availed of parental leave raise the question that if they were treated in the same manner as the women, then how can the complainant’s situation have arisen because he is a man?

The complainant asserts that the incident where he changed his parental leave pattern took place in July or August of 2010.  He lodged his first complaint on 29 July 2011.  Therefore, by any test the incident was out of time, possibly by over a year if it occurred in July 2010 as suggested.  The Equality Officer appears to use the Louth VEC v Equality Tribunal (2009 IEHC 370) case to bring the incident in time, saying that he considered it to be the “furnishing of further and better particulars”.

The upshot of this is that an out-of-time incident has been found to be discriminatory even though nothing was found to be discriminatory in the six months immediately prior to the claim made in July 2011 as might be required by the Hurley v Cork VEC case, EDA1124.

The Equality Officer went on to consider disability and found that as the respondent was not aware of the disability at the relevant time it could not be required to provide reasonable accommodation.  In relation to the claim of victimisation the Equality Officer found that the alleged adverse treatment relating to the repayment of a loan had no connection to his complaint to the Tribunal.  Where the complainant was asked by the employer if he would withdraw his claim given that he had a new position the Equality Officer found that the complainant had only provided evidence that the question had been asked and not that he had suffered any adverse treatment.

Why is this case of interest?

- Although other non-harassment incidents occurring after the last alleged incident of harassment were complained of (though not upheld) the Equality Officer found the harassment allegations to be out of time.  This suggests that each type of alleged unlawful treatment will have the deadline applied to it individually.

- The claim was upheld on the gender ground even though there were 12 other men who, as far as is known, were not treated the same way as the complainant.

- The Equality Officer did not apply the reasoning contained in the Hurley decision by ascertaining if something in the six months prior to the lodgement of the first claim was discriminatory before going back to look at the earlier incident found to be discriminatory.

DEC-EE2014-030, Ms. H v A Multi-National Retailer

Issues: Disability, Failure to provide Reasonable Accommodation, Disproportionate burden

The complainant was employed with the respondent since 1975 but spent the last 30 years at the Customer Service desk where she had the use of a chair.  She suffered from Osteoarthritis and in 2005 had two knee replacements.  The other disability she was found to have was a colectomy.  The complainant broke her leg and was absent from work in 2009.  She was certified as fit to return to work in July 2011, two years later.  Her doctor made three recommendations:

- That she return to work on a phased based,

- That she sit for periods of time and

- That she have access to a disabled toilet.

The Equality Officer accepted that both conditions were disabilities and that the employer was on notice of them.  She considered section 16(1) and 16(3) in addition to the Westwood Fitness case - the seminal case on reasonable accommodation, EED037.  She noted that the H&S report, conducted on the Equality Officer’s instigation, had the very telling phrase in its final sentence “Therefore in line with business reasons noted above I can confirm that a chair should not be placed behind the desk” and she stated that business reasons should not be confused with health and safety reasons.  It is unclear on what basis the Equality Officer ‘instigated’ the H&S report.

The employer had offered the complainant a checkout position but the complainant asserted this would be seen as a demotion.  The Equality Officer did not find the checkout suggestion to be reasonable as it would require the complainant to lift heavy items she was restricted from lifting, such as boxes of washing powder etc.

Finally, disproportionate burden was considered.  The respondent was required to submit the costings for the installation of a disabled toilet and this amounted to under €23,000.  The employer is one of the largest retailers in the world and its revenue in Ireland for the last reporting period was £2,315 million, (sterling).  She found that the employer had the financial resources to install the necessary sanitary facilities and was not satisfied it would have place a disproportionate burden on the employer.

She was dismissive of the grievance and appeal processes as appearing to be tick-box exercises and similarly the employer’s occupational health report as it was relevant to only one aspect of the complainant’s difficulties. The Equality Officer found that there was no pro-active exploration of other appropriate measures to accommodate the complainant.

The complainant was awarded €30,000 in respect of the employer’s failure to provide reasonable accommodation and, additionally, the employer was ordered to conduct a review of its employment policies and procedures with particular reference to how employees with disabilities are treated.

Why is this case of interest?

- Employers will find useful the Equality Officer’s analysis of the actual situation vis-a-vis the requirements.

- It serves as a very straightforward example of how ‘disproportionate burden’ is considered.