Bernadette Treanor writes:

Employment Equality Decisions Upheld in Whole or in Part

The first 5 cases upheld by the Equality tribunal this year are set out below.  The amounts awarded are not high although one, relating to the first case considered, equates to 76 weeks’ salary.  The first two cases relate to different aspects of treatment during the maternity period.

The first one relates to a discriminatory dismissal and includes an interesting extension of what allegations may be considered by the Equality Officer.

The second considers whether the role to which the complainant returned after the period of maternity leave was an equivalent role but considers this under two headings, discrimination and victimisation.

The third case also mentions maternity issues but was upheld only in relation to discrimination on the race ground in respect of disciplinary matters.

The fourth and fifth cases reviewed both relate to Polish workers.  Neither case was defended by the respondent.

DEC-E2013-004 Dovile Geidrikaite v Falls Hotel

Issues: Whether a dismissal occurred, Dismissal while pregnant, late introduction of victimisation allegations,

This case relates to the detriment suffered by the complainant after she informed her supervisor that she was pregnant.  The complainant worked as a receptionist in the hotel and later in the spa area from May 2009.  In April 2010 she informed her supervisor that she was pregnant.  Her supervisor told her that at 7 weeks pregnant it was a bit early to inform the General Manager.  However, two days later the complainant was informed that no hours were available to her and she did not work in the employment again.  Twenty hours were given to a part-time worker in July/August that year which would have been offered to the complainant had she not “proceeded down another route”.  The respondent argued that the hotel was very quiet at that time and that the hours of other workers were also affected.

The Equality Officer found that while the hours of other workers were indeed reduced, the complainant was the only person who lost the entirety of her hours and this difference in treatment was not explained by the respondent and she was effectively dismissed.  The Equality Officer noted that two other employees had their employment terminated around this time but found that this was as a result of voluntary redundancy arrangements.

The Equality Officer went on to address victimisation of the complainant.  This was not raised by the complainant at the outset of her complaint and the Equality Officer referred to a High Court Judicial Review judgement Siobhan Long v The Labour Court, Mairead Blackhall and Powers Supermarkets Ltd T/A Quinnsworth, 1990 No 58 JR 25 May 1990.  In that case the Equality Officer was found to have erred by failing to address the concept of indirect discrimination in a situation where direct discrimination was found not to have occurred.  In the instant case the Equality Officer states that this, “establishes the right of an Equality Officer to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant’s representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand”.

In the instant the Equality Officer, having regard to CJEU jurisprudence on dismissal during the “protected period” of pregnancy and maternity leave ultimately found that the dismissal was discriminatory in nature rather than victimisatory and did not consider the matter further.  There is no reference to whether or not consideration was given to the allocation of reception hours to another worker because the complainant had raised her complaint being victimisatory but of course not all of the information presented to the Equality Officer is available to us.

In respect of the use of the Powers Supermarket case to include a consideration of victimisation not previously raised, this is a remarkable broadening of the effect of that case from the consideration of alleged discrimination on a particular ground being addressed under both the headings of direct and indirect discrimination to consideration of any impugned behaviour under the Acts.  Does this mean therefore that a complainant can extend the claim against a respondent prior to or at the hearing should the circumstances support that?

Perhaps before this is accepted we should consider some of the case law from the Labour Court where:

- the nature of the new allegation was considered so different as not to have been comprised by the original complaint. This was addressed in EDA1123 as follows:

The County Louth VEC case is authority for the proposition that it is permissible to amend a claim, not specified in Form EEI, where such an application is made, as long as the general nature of the complaint remains the same and in circumstances where the Respondent is not prejudiced by the change. In this case the Court is satisfied that the complaint of alleged sexual harassment does not come within the same “general nature of the complaint” of discrimination on the race ground but comes instead within the classification of a separate "stand-alone” complaint for which the Complainant sought separate redress. Accordingly, the Court does not have the jurisdiction to hear the complaint as it was submitted out of time.

- Where events occurring after the submission of a complaint are considered not to have been comprised in the original complaint as addressed in EDA1124 as follows:

In relation to the occurrences upon which the Complainant seeks to rely which occurred after her claim was presented to the Equality Tribunal on 11th June 2008, the positions is substantially different. The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, is clear authority for the proposition that a claim under the Act may be amended so as to rely on additional acts or omissions which occurred before the claim was initiated provided that the nature of the claim remains the same. In this case the Complainant is seeking to rely on incidents which occurred after her claim was presented for the purpose of obtaining redress. The decision in Robertson v Bexley Community Centre indicates that this is not permissible.

The complainant’s allegations on the race and family status grounds were not upheld but she was awarded €18,000 (roughly 76 weeks’ salary) for discriminatory treatment on the gender ground.

DEC-E2013-007 Jennifer Phelan v Carlie Healy T/A Teddy House Creche

Issues: Maternity leave, equivalent post-maternity role, constructive dismissal not upheld, victimisation, constructive dismissal, entitlement to terminate the contract test, reasonableness test

This case also relates to the detriment suffered after the complainant told her employer of her pregnancy.  She argued that while her announcement of her pregnancy was initially welcomed the relationship between her and her employer quickly deteriorated outlining a number of incidents in support of this.  The Equality Officer found, in respect of this deteriorating relationship, that the complainant had established facts from which an inference of discrimination could be drawn. The respondent described other issues that were going on for her at that time.  However the apparent link between the deteriorating relationship and the discriminatory ground appears to be the proximity in time to the pregnancy.

The Equality Officer also found that the refusal to allow the complainant return one week early from sick leave in circumstances where a temporary staff member had been engaged by the respondent for the entire period was not discriminatory.  She found that the treatment of the complainant’s grievances by the respondent did not amount to discrimination.

The complainant was trained in Montessori but was placed in the toddler room on her return on 5 July 2010 allegedly because she was required to hold a FETAC level 5 by September 2012 and because the lady, Ms. B, who had replaced her while on maternity leave, was considered more qualified and more experienced than the complainant.  Ms. B who held FETAC level 5 in childcare was employed fulltime in the Montessori class even though there were vacancies in the toddler area and in the Montessori part of another crèche run by the respondent.  The Equality Officer stated “The position in the toddler room for which she had no training involved dealing with much younger children and she was no longer using her skill as a Montessori teacher.  I am not satisfied that the complainant was offered an equivalent post in terms of her qualifications, experience and status within the crèche.  I am satisfied that the complainant has raised a prima facie case of discriminatory treatment in relation to the position she was offered on her return to work.”

The Equality Officer also considered this same issue, the failure to return the complainant to Montessori teaching on her return from maternity leave, under the heading of victimisation.  Based on the timings the Equality Officer was, “…satisfied that the referral of the case by the complainant influenced the decision not to allow her back as a Montessori teacher following her return from maternity leave and to move her to the toddler room.  I find that the complainant has established that she was subject to adverse treatment in accordance with Section 74.”

Something to note in relation this use of the same facts in respect of more than one head of liability under the Acts was addressed by the Labour Court as follows:

“It seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative. “

Interestingly, the constructive dismissal was not upheld because the Equality Officer found that the complainant had not actually resigned when the complaint was made and in fact continued to submit sick certs, a situation which failed the entitlement to terminate the contract test.  The complainant failed to show that anything discriminatory had occurred when the she ceased to submit the sick certs and therefore “no further incidents of discriminatory treatment occurred which would have justified her decision to resign at that time”.  This latter issue meant that the complainant’s assertions failed the reasonableness test.

The complainant was awarded €5000 for the discriminatory treatment found and €7000 for the victimisation found.

DEC-E2013-009 Sola Fajembola v BT Ireland

Issues: Disciplinary process, maternity leave, calculation of sick leave absence,

The complainant in this case was subject to two disciplinary processes although only one was raised as part of her complaint.  She complained that the precautionary suspension applied to her was discriminatory but the Equality Officer found that the respondent had been operating within its disciplinary policy.  The complainant also complained that the application of one of those disciplinary processes to her was discriminatory in nature as others could also have been involved in the alleged forgery but they, who differed in race, were not investigated.  This aspect of her claim was upheld as the Equality Officer found that in the absence of an explanation as to why the complainant was the only person investigated, added to the fact that she was the only African person in the department, meant she, the Equality Officer, must consider that race was a contributing factor.

The remaining allegations made by the complainant were not upheld including

- allegations of discrimination in relation to disciplinary issues around the misuse of the BT landline,

- allegations of an attempt to dismiss the complainant by the inclusion of her suspension period in the calculation of absences when in fact the complainant had submitted sick certs for the period,

- alleged discriminatory exclusion from pay rises while on maternity leave; and finally

- continued contacts from the respondent to the complainant about return to work or the implementation of PHI while the complainant was pregnant.

The complainant was awarded €13000 taking account of the precautionary suspension of the complainant and her removal from the place of work.

DEC-E2013013 Piotr Salbut v Unitec Investigations Ltd

Issues: Notional comparator, prima facie case, discrimination on the race ground, mere assertions

The complainant, a Polish national, worked as a security guard.  He argued that he was required to work longer hours and more weekends than his Irish colleagues.  He also asserted that his manager used inappropriate language but as his manager spoke like that generally the Equality Officer did not find an inference of discrimination in this.

When the complainant’s mother died he was entitled to 5 days’ paid compassionate leave.  When he returned he was initially placed on the roster but two hours later was suspended ostensibly because his PSA licence was out of date and because he should not have taken the time to go to Poland.  He immediately resolved the licence issue and could produce documents indicting that he had complied with the normal requirements relating to compassionate leave prior to his travel.

The Equality Officer found that there was insufficient evidence to support the assertions that he worked longer hours and more weekend hours than his Irish counterparts and she found that in that regard he had not established a prima facie case of discrimination.

NOTE: See below why the allegations of foul language were not upheld as discriminatory in this case but were in the final case described below.

However, the Equality Officer found that the complainant had presented convincing evidence that he had ensured that the trip to attend his mother’s funeral was fully approved before he left for Poland and that he had submitted the correct documentation on his return.  She also found his evidence in relation to his suspension compelling.  She stated “I note that a non-Irish national is in a particularly difficult situation in the case of a family emergency in their home country.  Notwithstanding the urgency of the situation the complainant still managed to observe all the correct formalities with respect to his employment.”  The equality Officer found it highly unlikely that an Irish employee would have been similarly treated and using that notional comparator she found that the complainant had established a prima facie case which the respondent, who was in liquidation, did not rebut.

The complainant was awarded €5000 for discrimination on the race ground in respect of his compassionate leave and his suspension.

DEC-E2013- 014 Zbigniew Debny v Gateway Transport Ld.

Issues: Harassment on the race ground, language creating an intimidatory and hostile environment, prima facie case,

This complaint relates to a Polish national claiming that he was less favourably treated in relation to his terms and conditions of employment because he had difficulty in getting his wages and sometimes had to demand what he was owed.  It is a relatively standard claim in that regard with an added aspect of harassment on the race ground which is the only aspect of the claim upheld.  The complainant asserted that when he demanded his wages he was told to “f*** off back to Poland”.

The complainant’s representative argued that a foreign national is in particularly vulnerable position in this respect although no evidence was presented that would indicate that the Irish employees were not likewise treated.  The Equality Officer found that the complainant was not discriminated against in respect of his working hours or contract of employment, that he did not make an equal pay claim and that he did not name comparators.  As the employer did not attend the hearing the Equality Officer found that the uncontested direct evidence of the complainant supported the allegations of harassment on the race ground and that “the specific language used in this context, created an intimidating and hostile atmosphere for the complainant, which was specifically connected with his race.”

The allegations relating to inappropriate language in this case differ from the previous case for two reasons.  One is that in this case it was asserted the language was directed specifically at the complainant and the second is that the link could be made to the complainant’s nationality based on the content of the comments.

The complainant was awarded €5000 for this aspect of his claim.