Bernadette Treanor writes:

Employment Equality Decisions published in July 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.

1. The first case, DEC-E2014-041, relates to a selection process and the Department of Education and Science Circular requiring unemployed qualifying teachers to be selected before retired qualifying teachers.

2. The second case, DEC-E2014-045, may be the first significant case upheld on the religion ground.  It deals with an employee’s right to manifest religious beliefs which in this case took the form of the complainant expressing his faith to co-workers and others during the working day.  The Decision addresses the complaint in respect of both direct and indirect discrimination.

3. The third case relates to a Labour Court Determination, EDA1427, also addressing a selection process in respect of inter alia indirect discrimination on the race ground based on a requirement for proficiency in English which is prima facie discriminatory.

1. DEC-E2014-041, Brian Buggle v City of Dublin VEC

Issues: Age, selection criteria, ban on retirees

The complainant was employed as a teacher by the respondent for a period until his retirement in 2011 following which he sought and was granted listing on the respondent’s “teacher contract” list.  He applied for a position in August 2011 but he was informed that he was not shortlisted for interview.  He asserted that this was because of his age as the person who was appointed had just qualified and had no work experience.

The respondent submitted that it was required to apply the Department of Education and Science Circular which stated that those appointed should be registered teachers and

“that unemployed teachers are offered employment in preference to those who have retired. It is applicable to all appointments made on or after 1 September 2011.”

The Circular goes on to state that where a suitably qualified registered teacher is not available then the school may employ an appropriately qualified retired registered teacher.

The complainant pointed out that the person selected was not a registered teacher.  The respondent stated that he, the person selected, was entitled to a year to secure his teacher registration.

The Equality Officer considered the recent European cases Palacios de la Villa v Cortefiel Services SA (Case C411/11) creating opportunities in the labour market for jobseekers and in Fuchs v Lord Hessen (C-160/10) and Hornfeldt v Meddeland (C-141/11).  The Equality Officer was ultimately satisfied that the Department’s Circular “complies with the concept of objective justification and is in harmony with Council Directive 2000/78/EC particularly in relation to the ECJ decision in Palacios de la Villa v Cortefiel Services SA in the context of creating opportunities in the labour market for jobseekers”.

That did not end the matter however as the Equality Officer found that the complainant was discriminated against in the manner in which the respondent implemented the provisions of the Departmental Circular.  Neither of those shortlisted were registered teachers at the time of application.  While the Circular provides for appointing a teacher who is not registered it is only where a registered teacher is not available.  The Equality Officer found that those shortlisted did not satisfy the requirements of the post advertised and that the complainant was discriminated against at the first hurdle.  By not shortlisting the complainant the respondent had implemented “a ban on retirees”.  On that basis the complainant established a prima facie case which the respondent had failed to rebut.

The complainant was awarded €8,000 which was just over 60% of the maximum award in the circumstances.

Why is this case of interest?

Issues: Religion, Evangelical Christian, direct discrimination, indirect discrimination, objective justification

The complainant, a civil engineer, is an Evangelical Christian who asserts that one of the tenets of his religion requires him to speak to people about Jesus and share the Gospel with them.  Following informal complaints from co-workers the complainant was asked to desist from doing so.  There followed a number of events where the complainant was observed engaging in the expression of his faith by a variety of employees of the respondent, none of which he denied.  After each the respondent engaged in disciplinary processes ultimately dismissing the complainant for continuously failing to comply with the directions of senior members of the Council staff and for continuing to preach and promote his religious beliefs to members of the public during normal working hours.

In his own evidence the complainant mentions his compulsion to speak about his religion.  The respondent asserted that he presented this compulsion to them during the various investigations saying “it was a compulsion he could not explain”, “that he had a compulsion to share his faith and it was like someone with a passion for a football team”, and that “his religions beliefs were very strong and he felt compelled to talk about Jesus and he found it difficult to stop”.  The respondent’s evidence, in respect of one of the investigations described at 3:15 of the Decision, is that while the complainant’s actions amounted to gross misconduct where the sanction could be dismissal, instead he was placed on suspension and required to attend counselling to control the compulsion.

The complainant, through his representative, presented the provisions of the respondent’s Employee Handbook, the fact that there was no policy providing for the actions it took, the Constitutional provisions contained in Article 44.2.1, the Framework Directive, relevant articles, the UN Convention on Human Rights at articles 9 and 14 along with Article 6 of the Treaty of the European Union, the ECHR case Larissis & others v Greece EHRR329 in addition to Eweida & Others v United Kingdom.  The Equality Officer was also referred to a passage in Bolger, Bruton & Kimber, Employment Equality Law, which stated inter alia “The European Court of Human Rights has emphasised that nor every discussion about religion between individuals could justify the taking of action and justification would arise from evidence of harassment or undue pressure”.

The respondent presented cases from the UK EAT Chondal v Liverpool City Council [2009] EAT 0298-08-1102 and Ladele v London Borough of Islington [2009] EWCA Civ 1357.

The Equality Officer first made a finding that a manifestation of religion was covered by the religion ground in the Employment Equality Acts.  Her finding on direct discrimination was that the complainant was treated less favourably than other employees due to the number of staff clearly apprised of his beliefs who were watching him and reporting him to management.  She stated that she was satisfied the complainant established a prima facie case of discriminatory treatment in relation to his conditions of employment and dismissal which the respondent had failed to rebut.

Following some consideration of the religious composition of the workforce in Ireland generally, and applying that to the respondent, the Equality Officer was satisfied that the ban on the complainant from sharing his faith impacted disproportionately on persons of his faith than on others of different religious faiths or with no faith, thereby establishing a prima facie case of indirect discrimination.

Addressing objective justification the Equality Officer stated that all of the aims presented by the respondent were legitimate but there was no evidence that the complainant had in fact brought the respondent into disrepute and she was not satisfied that the means chosen to achieve the aims were appropriate or necessary.  Following consideration of the caselaw presented she was not satisfied that the sanction of dismissal was appropriate and therefore the respondent has not established objective justification for the dismissal.

The allegations of direct discrimination and indirect discrimination were upheld and the complainant was awarded €70,000 for the effects of the discrimination, approximately 1.5 year’s salary.

In this case the Equality Officer accepted that the right to manifest one’s religious beliefs at work is protected as in the Eweida case.  However, what was at issue in that case was the passive manifestation of religion by wearing of a cross while getting on with work.  In this case what is at issue is the active discussion of faith, with people who have been sought out, during working hours which goes beyond Eweida in my view.  While engaging in such discussions the complainant cannot be entirely focused on his work.  In addition, perhaps a more detailed consideration of the complainant’s compulsion might have been worthwhile.  The Equality Officer accepted this self-proclaimed compulsion as a passion for his religion while she stated “the respondent treated this passion and desire to manifest his religious beliefs as an ‘addiction’.

Finally, this Decision stated that in the absence of any evidence of complaints about the complainant objective justification cannot be upheld and this is the gist of the quotation included above.  The Equality Officer stated in this regard:

The question then was it objectively justifiable to maintain a ban on the complainant speaking about his religion when there was no evidence that it had any impact on him carrying out his duties for the Council or that what he was doing was either offensive, inappropriate or it constituted harassment.”

Why is this case of interest?

- This is perhaps the first substantial complaint upheld on the religion ground.

- The Decision asserts that objective justification for action on the part of the employer cannot be upheld in the absence of any evidence of complaints.

- It suggests that a complaint of offensive or inappropriate behaviour or behaviour amounting to harassment on the religion ground is required before action can legally be taken by an employer thereby, arguably, challenging an employer’s normal entitlement to manage behaviour in the workplace.

Read the full case here: http://www.workplacerelations.ie/en/Cases/2014/June/DEC-E2014-045.html

EDA1427, An Employer and a Worker

Issues: Race, age, family status, marital status, access to employment, access to vocational training, indirect discrimination, objective justification

This Determination considers an appeal of an Equality Tribunal Decision.  At the Labour Court hearing of the appeal the complainant raised some issues concerning the Tribunal procedures particularly in relation to not having adequate time to consider documents presented by the respondent at the hearing.  The Court stated “The role of this Court is to determine an appeal by way of a de novo hearing of the case; it has no jurisdiction to entertain complaints concerning the way in which the Equality Tribunal fulfills its statutory mandate”.  The Court went on to state that the complainant had had adequate time to consider the documents in preparation for the appeal and proceeded to “deal with the case on its merits by way of a full hearing on all questions of fact and law”.

The respondent is an agency that supplies cabin crew to various airlines in Europe.  It held a selection process for candidates to participate at their own expense in a training programme by the respondent. Normally when a candidate completes the training successfully they will be subcontracted to an airline but are employed by the respondent.

The complainant alleged that when she was assessed she was told that her English was “approved” in both written and oral exams.  She also asserted that she was asked for her age and date of birth and that when asked why she finished her previous stewardess job she replied “because I got married” and she asserts that the interview ended at that point.

The respondent argued that as the complainant was not interviewed for a job her complaint did not fall within the terms of section 8(1) of the Acts and that the Court had no jurisdiction in the matter.  In addition the respondent asserted that the assessment of the complainant at interview was “nice lady, however had a very strong accent, I found it quite hard to understand her.  Has previous experience.”  In case the Court found that a prima facie case of discrimination was raised as a result of the necessity to be proficient in English the respondent stated that this could be objectively justified having regard to the safety requirements in the aviation industry and presented the Court’s decision in Noonan Services v a worker EDA1126.

Having considered the evidence the Court stated “The Court is satisfied that if it [the interview] was not directed at employment it was most undoubtedly directed at vocational training” and went on to find that the training was vocational training in line with section 12(2) of the Acts.  However, this raised the issue of the complaint lodged by the complainant having to change from “access to employment” to “access to vocational training”.  The Court considered County Louth VEC v The Equality Tribunal and Brannigan and Clare County Council v Director of Equality Investigations concluding that statutory tribunals, such as itself, should not apply a more stringent approach to the amendment of originating forms than the ordinary courts in the amendment of pleadings.  The Court was satisfied that the claim could be amended to reflect this.

In respect of indirect discrimination the Court stated:

In Noonan the Court held that it is clear that a requirement to have competency in English is likely to place persons whose native language is other than English at a disadvantage relative to persons whose native language is English.  Hence, prima facie, a requirement of competency in English is indirectly discriminatory unless it is objectively justified.  It is well settled that a potentially indirectly discriminatory measure is objectively justified if it is in pursuance of a legitimate objective and the means chosen are appropriate and necessary to that end.

The Court decided that the requirements set down at international level for the safety and well-being of passengers on board aircraft constituted a legitimate aim and that the requirement was appropriate and necessary in order to achieve that aim.  The Court concluded the claim on the grounds of nationality was not well founded.  The complainant’s claims on the remaining three grounds were also considered not well founded and the appeal was disallowed.

Why this case is of interest

- Proficiency in English and other requirements during selection such as a level of fitness are likely to be considered indirectly discriminatory and must be objectively justified.  HR managers should consider this at the point when the selection criteria are decided upon.

- The Court changed the claim from access to employment to access to vocational training which appears on the face of it to be a fundamentally different claim

Read the full case here: http://www.workplacerelations.ie/en/Cases/2014/June/EDA1427.html