Bernadette Treanor writes:

Employment Equality Decisions published in October 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.

1. The first case, DEC-E2014-064 is one of the rare cases that uses misrepresentation (s77(6)) on the part of the employer to extend time.  It relates to a Chinese national who worked weekends whose pay rate was unilaterally cut by 33% while the remainder of staff were given a formal proposal for 10% cut for consideration.  She was also let go while a male Irish worker was retained.

2. The second case, DEC-E2014-066, relates to a worker in a quarry who was successfully treated for a brain tumour.  His employer provided an accommodation only as long as the Department of Social Protection support was available and once the company doctor confirmed the complainant could only do 20 hours per week he was dismissed.

DEC-E2014-064, Ying Ying Sun Summer v McGraths Pub t/a Dawn Taverns Limited

Issues: Race, nationality, gender, s77(6) misrepresentation, equal treatment with pay cuts, dismissal

The complainant, a Chinese national, was a part-time employee with the respondent since February 2002 until January 2011. She worked mostly weekends. Mr. M was similarly employed sometime after the complainant.  In June 2010 the complainant’s pay rate was cut from €15 per hour to €10 per hour.  Her hours were also cut.  After 27 December 2010 she received no hours at all although Mr. M continued in his employment.

The respondent neither made a submission to the Tribunal nor attended the hearing.

The Equality Officer first addressed the timeliness of the complaint as it had been submitted on 4 July 2011 while the complainant’s last day at work was 27 December 2010, suggesting it was 8 days out of time.  The Equality Officer indicated two issues that were relevant.  First, the complainant would have been entitled to four weeks notice period suggesting that the end of the employment would have been 27 January 2011.  Second, the respondent allegedly continued to tell the complainant that hours would be allocated to her as they became available although this did not happen and ultimately she was told there was no more work for her.  The Equality Officer considered the matter in accordance with s77(6) which provides for the extension of the time to make a complaint if the delay is due to a misrepresentation by the respondent. Having considered the totality of these matters the Equality Officer concluded the complaint had been submitted in time.

The Equality Officer referred to the EAT decision, in a parallel case relating to the complainant’s employment, which indicated that it had been withdrawn and on that basis the complainant was not precluded from proceeding with her equality claim in accordance with s101(4).

It appears that the complainant may have submitted an equal pay claim but her complaint actually related to the reduction in her pay rate in comparison to others.  Her pay rate was cut by 33% in June 2010. She produced a letter from the respondent’s representative to the union dated 11 February 2011 proposing a pay cut of 10% for all staff.  The complainant was the only non-Irish member of staff and the only female member of staff at the time.  Mr. M continued to get work after the complainant’s hours had stopped.

The Equality Officer found that the complainant had established a prima facie case which the respondent had not rebutted and upheld both discriminatory treatment and discriminatory dismissal on the gender and race grounds.

The complainant was awarded €10,000 as compensation which was not subject to PAYE/PRSI.

Why is this case of interest?

Employers who consider their part time staff to be ‘casual’ must understand that the employment law provisions may relate to them as much as those people they consider ‘employees’.  In this case the complainant’s different treatment was :

- A pay cut of 33% while the remainder of staff received a proposal of 10% pay cut,

- Her pay cut was unilaterally imposed while the remainder of staff received a formal proposal

- Her pay cut occurred 8 months earlier than that relating to the remainder of staff

- She was not offered any further work while a male employee with less service was retained.

- This is one of the rare cases where a ‘misrepresentation’ on the part of the employer grounded an extension of time in accordance with s77(6).

To read the full case:

http://www.workplacerelations.ie/en/Cases/2014/September/DEC-E2014-064.html

DEC-E2014-066, A Worker and a Company

Issues: Disability, reasonable accommodation, brain tumour, discriminatory dismissal

At the outset of his investigation the Equality Officer first addressed the issue of who the correct respondent was.  The original employer had been taken over in November 2011 under a TUPE arrangement.   The former HR manager of the original employer who had transferred under the TUPE arrangement was present at the initial hearing and the reconvened hearing.  The TUPE occurred in November 2011.  The complainant was dismissed on 5 August 2011 and the Equality Officer was satisfied that the named respondent, was the employer at the relevant times.

The complainant was employed by the respondent, a quarry business, from 2004 until he underwent surgery for a brain tumour in November 2009.  His doctor advised he would be fit to return to work for 20 hours per week in October 2010.  The respondent initially accommodated this until December 2010 when the complainant was told that if he could not work fulltime he would lose his job.  According to the HR manager the employer was willing to accommodate the complainant’s rehabilitation as long as the Department of Social Protection’s scheme applied.  He stated that an agreement was then reached that the complainant would stay out of work until capable of working 39 hours.  He did not comment on the complainant’s suggested alternative options such as sharing the role with his son although he asserted that the machine the complainant had been operating was required at full-time capacity.  The respondent had the complainant medically assessed and when that assessment agreed with the complainant’s own doctor, that he could only work 20 hours per week, the complainant was dismissed.

The Equality Officer was satisfied that a brain tumour, even if successfully treated, was a disability in accordance with the Acts.  He found that the respondent provided the complainant with some degree of accommodation initially but never seriously considered his situation in light of its obligations to provide reasonable accommodation.  He also said that the obligations exist independently of whatever financial assistance was provided by the Department of Social Protection.  The Equality Officer found that the respondent failed to provide reasonable accommodation to the complainant.

The HR manager confirmed that on receipt of the respondent’s medical report the complainant was issued with his P45.

The complainant appealed his dismissal and it was heard by the HR manager who had issued the letter of dismissal.  The Equality Officer found that there was no evidence that the complainant’s dismissal was ever reconsidered and was satisfied that the complainant was discriminatorily dismissed on the ground of his disability.

The Equality Officer awarded the complainant €40,000 compensation, not subject to tax or prsi, which he said was the maximum award possible.

Why is this case of interest

Employer’s duty to provide reasonable accommodation applies irrespective of any schemes that may be available from Department of Social Protection.

Be proactive in assessing the situation.  The requirements are well settled since the Labour Court Decision Humphreys v Westwood Fitness Club EED037  and the subsequent Circuit Court judgement

- Satisfy yourself as to the capability of the employee.

- Identify if and what special treatment is required.

- Finally, ensure that the employee is permitted a full opportunity to participate in these considerations and that any alternative options they propose are considered.

To read the full case:

http://www.workplacerelations.ie/en/Cases/2014/September/DEC-E2014-066.html

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