Bernadette Treanor writes:

Employment Equality Decisions issued in Sept/Oct 2013 Reviewed

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

Two of the Decisions from the Equality Tribunal reviewed below relate to the disability ground, one in respect of reasonable accommodation and constructive dismissal and the other in respect of long-term absence and dismissal.  The former indicates that moving a person to resolve interpersonal issues cannot override the need for reasonable accommodation and is the second case this year, resulting in a large award, where the the HSE was found to have ignored medical advice.  The Equality Officer was very critical of the input of staff from the Employee Relations unit in this case.

The second disability Decision provides a useful look at how to best address long term sick absences and ultimate dismissal.  The employer was found to have breached the requirements on a technical basis only and the award reflected this at €1000.

The other two Decisions relate to claims on the gender ground, one where the offer of employment was allegedly withdrawn when the employer was informed of the applicant’s pregnancy, the other in respect of a competitive selection process where a male candidate, less qualified than the female complainant, was successful.

The latter Decision contains an in-depth look at best practice for interviews.  Interestingly, even though the complainant was employed at the time of the discrimination, she was on a fixed-term contract which expired before she referred her complaint so she could only avail of the maximum award of €13,000 rather than 2 years salary.

The final decision addressed below, a Recommendation issued by the Labour Court EDA1326, relates to a Decision of the Tribunal issued relatively recently, DEC-E2013-055.  The claim was dispensed with by the Labour Court on the basis of a preliminary matter as to whether or not the claimant could pursue a claim under the equality legislation where the same matter had already been addressed under the maternity protection legislation.

DEC-E2013-111  A Nurse -v- Health Service Executive

Issues: Disability, reasonable accommodation/appropriate measures, interpersonal disputes, ignoring medical advice,

The complainant in this case was diagnosed with breast cancer for the second time in 2002.  She developed lymphoedema affecting both her arms following surgical intervention which remained as a consequence.  She continued in her role in Unit A until she was informed she was being moved in September 2009.  The complainant believed that she was being moved because she had made a verbal complaint of bullying against the Assistant Director of Nursing.  The Equality Officer considered that during the intervening years the complainant was “provided with appropriate measures and that moving her from that accommodation was an ill-considered and an ill-thought out solution to an interpersonal staffing issue which existed there between her and the Assistant Director of Nursing”.  The Equality Officer also found it “highly significant that the complainant was moved out of a post which suited her needs in relation to her disability despite having medical evidence from their own Occupational Health Consultant to the contrary”.

Taking account of the now seminal case Humphries v Westwood Fitness Club, EED037, the Equality Officer stated: “There was no joined up thinking between the Occupational Health Division and the Employee Relations Division and in fact the opinions of the respondent’s own Occupational Health Consultant and the complainant’s Oncologist were disregarded”.  This was found to constitute a prima facie case of discrimination on the disability ground which was not rebutted by the respondent.

The Equality Officer found the testimony of the Employee Relations Manager contemptuous, disdainful and very defensive including his response: “I don’t want to know anything about a person’s medical condition, its not my business it is for occupational health to decide”.    The Equality Officer went on to uphold discriminatory constructive dismissal.  The complainant was awarded €85,000 equating to approximately 2 years’ salary.

Why is this case of interest?

Issues: Access to employment, pregnancy, withdrawal of offer of employment

On 6 January 2011 the complainant applied for a post of graphic designer to cover maternity leave and on 9 January 2011 when she was offered the post she informed the employer that she was pregnant.  The offer of employment was revoked allegedly because of the complainant’s unavailability.  The post was re-offered to the complainant although the complainant asserts that the terms had altered.

The Equality Officer accepted the complainant’s evidence that the offer of employment was withdrawn after the complainant informed the employer that she was pregnant.  He also concluded that the written offer was varied from the original offer because the employer was aware she was pregnant.

The complainant was awarded €6,000 for the discriminatory treatment suffered on the gender ground.

Why is this case of interest?

- Where an offer of employment is withdrawn, clear records of the contemporaneous reasoning and considerations will be of assistance.

DEC-E2013-.122, Ms. S v A Food Preparation Company

Issues: Disability, reasonable accommodation/appropriate measures, dismissal

The complainant worked as a supervisor in an area where vegetables were prepared in chlorine-containing baths before packaging.  She developed a bitter taste in her mouth and stomach aches in early 2008 and went on sick leave until February 2010.  Following further medical visits and a number of meetings at work (including one following which the complainant allegedly suffered a breakdown) the complainant was dismissed.

The Equality Officer was not satisfied that the respondent was put on notice as to the complainant’s breakdown and was satisfied that it did not contribute to the respondent’s decision to dismiss the complainant.  The respondent accepted that she was dismissed and that it was because of her disability.  The Equality Officer accepted that the complainant had a disability falling within the definition in the Acts and that she had established a prima facie case of discrimination.

The Equality Officer noted that the complainant was afforded appropriate measures in accordance with medical advice and when the advice changed the respondent changed its practices.  He could not conclude, therefore, that the respondent had failed to provide appropriate measures to the complainant.  The complainant asserted that the respondent’s suggestion of demotion and lower pay amounted to discrimination.  However, in circumstances where the complainant refused the demotion and reduction in pay and the respondent did not reduce her wages, the Equality Officer did not consider that amounted to less favourable treatment.  He looked favourably on the employer’s attempts to secure up-to-date medical information and referred to Humphries v A Health and Fitness Club, EED037.  The Equality Officer stated that having told the complainant that she should revert to them after a medical visit the employer forged ahead with her dismissal rather than waiting to ascertain what the then current situation was.  On the basis of this the Equality Officer found that the dismissal was “technically tainted by discrimination on the disability ground” and awarded her €1,000.

Why is this case of interest?

- The Equality Officer clearly indicates in paragraph 5.15 that an employee seeking to rely on the existence of a disability must provide the employer with the information in his or her possession.

- The Decision shows how an employer may appropriately deal with long term absence and consider dismissal without tripping up on the requirement to provide reasonable accommodation or being required to create a role different to that which the employee was employed to undertake.

DEC-E2013-133, Clare O’Dowd v Sligo Young Enterprises Limited T/A Sligo Community Training Centre

Issues: Gender, family status, selection process, transparent procedures, lesser qualified candidate being successful

The complainant worked as General Manager of Sligo Community Training Centre and following the birth of her second child, coinciding with the hospitalisation of her first child a number of times, she requested a return to work in the less demanding role of tutor.  She was informed that she should resign as General Manager and she would be given a fixed term post as tutor.  While working as a tutor the General Manager post was advertised and the male colleague, who had filled the post in an acting-up capacity during her periods of maternity leave, was successful.

The complainant applied for the role and was asked why she resigned to which she replied describing her child’s health problems.

The Equality Officer was “not provided with any information about the successful applicant’s management duties or how long he held these posts or evidence to support the contention he was managing large budgets”.  She was satisfied that the complainant’s management and experience was in no way inferior and in many respects superior to that of the successful male candidate.  The Equality Officer was satisfied that the complainant’s qualifications were more relevant than the successful candidate’s.  After a thorough review of the selection process she found that it fell short on transparency, objectivity, fairness and good practice and in the circumstances the complainant had raised an inference of discrimination which the respondent had failed to rebut.

As the complainant and the successful candidate have the same family status the complaint on that ground was unsuccessful.

The complainant was awarded €13,000, the maximum possible in a case of access to employment.

Why is this case of interest?

- It provides a useful review of what a selection process should involve.

- The complainant, although in the employment on a fixed term contract at the time of the discrimination, was awarded redress on the basis of access to employment only; that is, as a non-employee.  This is based on section 82(4) which states that the maximum that may be awarded normally requires that the complainant be in receipt of remuneration on the date of referral of the complaint to the Tribunal, or the date of dismissal.  The ending of a fixed-term contract where the term of the contract has run out is not normally considered a dismissal.

- The selection of a lesser qualified candidate was also addressed in an earlier Decision this year, DEC-E2013-054 where the complainant was awarded approximately a year’s salary.  As pointed out in the review of that earlier Decision, also on the gender ground, this logic will apply regardless of the ground.

EDA1326, Jahan Company T/A Irema Ireland and Anne Power

Issues: Pursuit of identical claims under the Maternity Protection Acts 1994-2001 and the Employment Equality Acts 1998-2008, res judicata estoppel

Representative for the respondent objected to the case proceeding on the basis that the claim was res judicata, an identical case having been heard before a Rights Commissioner.  The Equality Officer found that there was nothing in the Employment Equality Acts to prevent a claim being pursued under both it and the Maternity Protection Acts.

The Court considered the case before each forum and found that they were clearly grounded on the same facts.  The doctrine of res judicata normally prohibits a party from seeking to litigate the same issue twice.  In other words, the cause of action in the earlier action must be the same as that raised in the second action for the res judicata or cause of action estoppel to apply.  The Court quoted Paul A. McDermott (Butterworth 1999, at p57) in this regard and considered Gilroy v McLoughlin [1989] ILRM 133, Dublin Corporation v Building and Allied Trades Union [1996] 2ILRM547 and Cunningham v Intel Ireland Ltd [2013 IEHC 207.

The Court stated that the only question arising in this case is whether the complainant was returned to the job that she held before the commencement of her maternity leave and that that issue had already been the subject of proceedings before the Rights Commissioner where the complainant was successful and received redress in the form of compensation.  The complainant “cannot use the present proceedings to obtain an additional or better remedy for what is undoubtedly the same wrong for which she already has been compensated”.

The Court, even though it did not believe that additional points were being taken in the proceedings before it, also addressed the matter of abuse of process by fragmenting litigation stating that where a point of law or fact should have been raised in the first case and was not, it cannot be raised in the second case.  I assume that this refers to the two claims before the different fora in accordance with different legislation, i.e. the  Rights Commissioner and the claim before the Equality Tribunal / Labour Court.  It would not appear appropriate to interpret this as distinguishing between the hearings at the Tribunal and the subsequent appeal at the Labour Court as those are de novo hearings and new issues and evidence are often presented at that stage.

The Court found that any cause of action that the complainant may have had in these proceedings were merged in and extinguished by the Decision under the Maternity Protection Act 1994.

Why is this case of interest:

- Section 101 of the Employment Equality Acts deals with alternative avenues of redress but does not preclude separate claims under the Maternity Protections Acts.  This decision shows, however, that where the causes of action are found to be the same then the cause of action estoppel will apply.

- However, where the causes of action can be distinguished then the rationale in this decision may not apply.

- A further consideration, not addressed in the Recommendation, is whether the res judicata estoppel applies in its full rigour where the rights being considered arise from two different EU Directives.