Bernadette Treanor writes:

Employment Equality Decisions issued in May 2014 and published in June 2014 Reviewed

These decisions of the Equality Tribunal and the Labour Court were reviewed by Bernadette Treanor, Managing Consultant, Beo Solutions, and former Equality Officer at the Equality Tribunal.

1. The first case upheld below deals with compulsory retirement by virtue of reaching the age of 65.  The Equality Officer found that the respondent had not objectively justified the retirement age.

2. The second case was not upheld but is useful to anyone conducting investigations in that it finds that the issue of an investigation report is unlikely to be construed as adverse treatment of a complainant just because they disagree with it.  The Decision also examines what ‘protected act’ the complainant had performed in order to avail of the protection available via the victimisation provisions.  As there was none, the claim could not succeed.

3. This Decision relates to a lecturer in NUI Galway who was awarded €81,000 and the restoration of her title of Lecturer was ordered.  Interestingly, the Equality Officer found that a term in the complainant’s contract of employment was discriminatory and this flowed through more than one contract and amounted to ongoing discrimination.

4. Finally, this review of a Labour Court Determination takes a quick look at the operation of section 77A of the Employment Equality Acts, dismissal of claims as frivolous, vexatious, misconceived or relating to a trivial matter.  This appeal under that section affirms a dismissal by the Equality Tribunal.

1. DEC-E2014-031, O’Mahony v Southwest Doctors on Call Ltd., (trading as SouthDoc)

Issues: Age, compulsory retirement, objective justification

The complainant was employed by the respondent, who deliberately selected older people, in the role of Driver/Attendant.  This role included driving doctors and occasionally assisting in lifting.  The complainant asserted that he asked at interview if he would retire at 65 and he was told he would not.  His contract made no mention of retirement ages.  It is agreed that until 2008 employees could work beyond 65.  Following a process engaged in with SIPTU the employer reissued the complainant with a contract which now included a retirement age of 65.  The complainant did not sign the new contract but interestingly neither did he object to it in any way.

The complainant makes much of not having been told during induction or his early years with the respondent of the requirement to retire at 65.  However, this was not a requirement at that time.

The respondent agreed that the complainant was compulsorily dismissed by virtue of reaching the age of 65.  The respondent argued objective justification citing Seldon v Clarkson Wright and Jakes, [2012] UKSC 16 to show that an employer may have mixed motives for a compulsory retirement age.  Saunders v CHCIreland (Tribunal Decision DEC-E2011-142) was also cited from a H&S perspective.

The first issue addressed by the Equality Officer was whether the complainant had a legitimate expectation (at least up to 2008) to work after his 65th birthday and she found that he had and that the issuing of a different contract of employment now containing a retirement age of 65 “was an attempt by the respondent to unilaterally alter Mr O’Mahony’s terms and conditions of employment and he was prudent not to consent to it.”

The Equality Officer concluded that the complainant had established a prima facie case of discrimination and proceeded to consider objective justification based on listed caselaw.  The Seldon case was distinguished as the respondent in this case was not concerned with succession planning or the retention of younger people.  Fuchs and Kohler v Land Hessen was considered where cost considerations cannot in themselves constitute a legitimate aim.  In respect of the H&S argument the respondent failed to present evidence to demonstrate that a cut-off age of 65 was appropriate and necessary to achieve the H&S aim when employees had worked happily beyond 65 prior to 2008.

In what appears to be an obiter comment the Equality Officer suggests that a fixed term contract or annual health checks may have less assailable although both of those options require objective justification also.

The complainant was awarded what he would have received as a redundancy payment, €12,000.  The complainant asserted that five other colleagues have made similar claims.

Why is this case of interest?

Issues: Victimisation, Protected Act, Issue of investigation report not adverse treatment

This case was not upheld by the Equality Officer but it may be of some interest to those involved in workplace investigations.  The complainant made a number of allegations spanning some time prior to the lodgement of her complaint.  The Equality Officer decided to address the complaints in accordance with Hurley v Cork VEC by assessing whether any of the alleged incidents that took place within the six months before the claim was made were discriminatory. The complainant presented the issuing of the report on her internal complaint pursuant to the Dignity at Work Policy as the only alleged unlawful treatment of her.  However, the complainant was unable to indicate what protected act, in accordance with section 74(2), she had performed.  On that basis the Equality Officer found her complaint could not succeed.

However, in an obiter comment he went on to say that he agreed with the respondent’s argument “that issuing the conclusions of an investigation process conducted in accordance with its Dignity at Work Policy cannot amount to adverse treatment of the complainant … merely because she disagrees with those conclusions, particularly in circumstances where she accepts that the investigation process was conducted in an appropriate manner consistent with the Policy and the investigators acted with probity and respect.”

Why is this case of interest?

- It underpins the requirement for a complainant to have performed a protected act before a claim of victimisation is successful.

- The issue of an investigation report would be unlikely to be considered victimisation.

Read the full case: http://bit.ly/1plKL3P


3. DEC-E2014-039, Dempsey v NUI Galway

Issues: Gender, Family Status, Disability, contract of employment, conditions of employment, time limits

This is a lengthy decision with a relatively complex timeline relating to the employment of the complainant by the respondent on a number of rolling contracts from 1994 including one in the role of lecturer.  Once categorized as a lecturer one has entitlements to attend Faculty meetings and to vote.  The complainant had these entitlements for a period but they were subsequently removed by virtue of subsequent contracts changing her status.  When she was made permanent by virtue of the number of fixed term contracts and the operation of law she asserts that her role was the reduced to the position of teacher/university teacher.

There is lengthy consideration of the timeliness of the complaint and the Equality Officer ultimately found that the terms of the complainant’s contracts were discriminatory and any conditions of employment which flowed from it contributed to the ongoing discrimination of the complainant.  As the complainant’s role was ‘teacher’ and not lecturer’ at the time of her complaint the Equality Officer found that the complaint was within time and that she had jurisdiction to hear it.

The complainant asserted that she was required to work while on maternity leave which the Equality Officer upheld as discriminatory on the gender ground.  The Equality Officer also accepted that the complainant had a disability and that while the complainant was on sick leave the continuation of her contract was under threat due to her sick leave absence.  She was satisfied the complainant had no option but to sign the new contract and she found that a person without a disability would not have been similarly treated.

The Equality Officer noted the “very significant gender imbalance between male and female lecturers in the Engineering Department”.  She also noted that no other lecturer had their contract changed in similar circumstances.  It is the combination of these two points that ground the claim on the gender ground. She found that the complainant raised an inference of discrimination on the gender and disability grounds in relation to the terms of the contract. The Equality Officer found that the complainant “had to confront and challenge an evolving interpretation of the contract by her superiors over a period of time and this diminished her professional status within the Department”.  It appears that the Equality Officer found that, although the complainant’s contracts changed, the discriminatory terms in the contracts continued each time she was given a new contract but not restored to her previous lecturer status.  The fact that the post was never advertised was also an issue as advertising the position as permanent is a route to being made permanent as a lecturer.

When on 5 December 2008 the complainant was invited to a faculty meeting but could not vote because her conditions of employment had been changed by the teacher contract the Equality Officer was satisfied that this constituted less favourable treatment flowing from the discriminatory contract.

The complainant appealed a decision not to allow her to progress ‘above the bar’ which was successful.  The Equality Officer stated “The complainant was entitled to appeal the Decision and it is significant that two of the most senior people in the Department [whose decision was being appealed] could not accept the appeal outcome. I find it difficult to disassociate these objections from the treatment of the complainant within the Department.” and she upheld the complaints of discrimination on the gender and disability grounds in respect of conditions of employment.

The complainant asserted that on commencement she was not placed on the same point on the incremental scale as a male employee in 2003 although ultimately the Equality Officer did not uphold this aspect of the claim.  Likewise her claim in respect of the family status ground, in respect of pension losses and income continuance were not upheld.

The complainant was awarded a year’s salary (€81,000) from a maximum possible award of two years salary.

Why is this case of interest?

- The finding that a discriminatory term may flow from contract to contract where the complainant was not restored to her previous position.

- It is worth considering whether the decision to issue a contract as teacher rather than lecturer constitutes ongoing discrimination as found (which finding brings the complaint in time) or whether it was a single one-off act with ongoing consequences.  Or indeed whether each new contract was a discreet incident of discrimination.  However, arguably the fact that the term of a contract is discriminatory then discrimination continues for the life of the contract.

Read full case: http://bit.ly/1lXTmri

4. EDA1423, An Employer and a Worker

Issues: Section 77A dismissal as frivolous, vexatious or misconceived, appeal to Labour Court

This case is included here as Section 77A dismissals do not come to attention frequently.  It is likely that this claim was dismissed by the Equality Tribunal in accordance with section 77A rather than being assigned to an Equality Officer, investigated and decided in the normal way.  That being the case the complaint would have been processed by the Tribunal quicker than those cases awaiting assignment.

In this case the Labour Court tells us that the Equality Officer dismissed the complaint as misconceived.  The complainant had reached agreement in respect of her claims, including her equality claim, while with the Rights Commissioner.  When the respondent was late making the payment that had been agreed the complainant proceeded with her claim to the Tribunal.  The complainant, in accordance with section 77(2)(a), appealed the Tribunal’s dismissal to the Labour Court (having the power to affirm or quash the dismissal) who gave the parties an opportunity to be heard.  Ultimately, the Labour Court found that the Equality Officer correctly decided the matter under the Act and his Decision was affirmed.

Why this case is of interest

- It displays the operation of section 77A.  Had the dismissal not been affirmed but quashed it would have reverted to the Equality Tribunal for hearing in the usual way.

Read the full case: http://bit.ly/1lfJZgA