Co-author: Deirdre Crowley & Denise Moran

Although the 2020 Irish employment landscape was dominated by Covid-19, equality was also an ever-present theme.  The virus itself made certain individuals, including the elderly and those with underlying medical conditions, more vulnerable.  The tragic death of George Floyd triggered global mass protests against systemic racism and racial inequalities.  Two years after the #MeToo movement erupted, 2020 saw the continued exposure of workplace sexual harassment. Diversity and Inclusion continues to be a board-level agenda item.

Employers are generally very familiar with their obligations under the Employment Equality Acts 1998 – 2015 but 2021 has seen a number of high-profile cases arising under the Equal Status Acts 2000 - 2015 (the “Acts”).  Deirdre Crowley and Denise Moran of Matheson discuss three recent key cases where the organisations were each held to be vicariously liable for the acts of their employees.  They also provide practical guidance for employers to mitigate the risk of any such claims and to assist in robustly defending any such action that arises.

What is the law in this area?

Broadly speaking, the Acts prohibit discrimination in the provision of goods and services on the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller community and in respect of being in receipt of housing assistance (in the context of the provision of accommodation).

The burden of proof rests on complainants when bringing claims under the Acts. Where facts are established from which it may be presumed that prohibited conduct or a contravention of the Acts has occurred, it is for the respondent to prove the contrary.

Arguably, the most important provision for organisations is section 42 which provides that: ‘Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.’

Section 42 also provides a defence where ‘the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing during his or her employment acts of that description.’

What happened in the case of Suchavadee Foley v Atercin Liffey Unlimited T/A Starbucks Tallaght?

Rather than inscribing the Complainant’s name on a coffee cup, the Starbucks employee drew the Complainant’s smile and eyes. The Adjudication Officer (“AO”) found that “the drawing depicts what was referred to as “slanty” eyes” and noted that as the Complainant had Thai-Irish heritage, it was clear that the visual depiction related to her race. The Respondent referred to the defence of “reasonably practicable steps to prevent the act of harassment” by referring to its harassment policy and training. It also submitted that the training was “comprehensive enough to protect the employer from liability”. However, the AO did not find that the Respondent had taken the necessary steps to prevent the act of harassment. Although the AO accepted that the employee didn’t intend to harass the Complainant, it found the Respondent vicariously liable for the acts of its employee and made an award of €12,000 in compensation.

What happened in the case of A Member of the Public v A Public Transport Company?

Here, between April 2017 and June 2018, there were several incidents where a bus driver for the Respondent (“Mr X”) referred to the Complainant using homophobic slurs, refused the Complainant entry to the bus, refused to drive the bus while the Complainant was on board and did not stop for the Complainant at the bus stop.  The Complainant lodged several complaints to the Respondent on foot of these incidents. Mr X made a formal complaint about the Complainant’s behaviour to the Gardaí and was absent from work for a period of approximately three months as a result of stress caused by the interactions with the Complainant. The Respondent denied that homophobic terms were used but accepted that the behaviour of Mr X was confrontational at times and he had made several misjudgements.  The Respondent submitted that it had provided diversity training to all drivers and it determined that Mr X did not require “refresher training”. It also submitted that it had been recognised and won awards for its Integration and Diversity practices.

The WRC found that the Complainant had given a cogent account of his interactions with Mr X which were supported by contemporaneous written complaints. The AO found the Respondent liable for Mr X’s actions “as these acts were committed by its employee during the ordinary course of his employment”.  The WRC noted that the Respondent attempted to resolve the conflict but “it was too little, too late” and “if the Respondent had taken remedial action earlier, perhaps in arranging mediation between the two antagonists, it may have led to better outcomes for both the Complainant and the driver.”  The WRC awarded the Complainant €7,500.

What happened in the case of A Prospective Customer v A Hotel/ Wedding Venue?

It is worth noting at the outset that the Respondent did not attend the hearing.  Here, the Complainant claimed that she was discriminated against on the grounds of her membership of the Traveller community where the Respondent had prevented her from booking her wedding reception at the hotel by refusing to provide her with available dates. The Complainant emailed the hotel in July 2019 in relation to her wedding reception and received a response from the wedding coordinator (“Ms A”) to attend a wedding showcase the next day. Following the event, the Complainant sent an email asking for possible available dates but received no response to her email or any subsequent follow up emails.  The Complainant contended she was identifiable as a member of the Traveller community at the wedding showcase and that her last name was common in the Traveller community.

The AO stated that there was a clear disengagement following Ms A being made aware of the Complainant’s surname, and there was no other plausible or logical explanation for this disengagement other than the fact that the Complainant was a member of the Traveller community. The AO held there was a clear case of prima facie discrimination, and due to the absence of any evidence from the Respondent to rebut that presumption, she was awarded €15,000.

What are the key takeaways for employers?

Employers are advised to take the following actions to minimise the risk of a claim and where such proceedings are issued under the Acts, that they are best placed to robustly defend them:

• consider existing workplace policies to ensure they are fit for purpose
• provide customer/public facing employees with anti-harassment/dignity at work policies which are tailored, comprehensive and up to date
• ensure employees receive effective diversity and inclusion training, including to address issues such as unconscious bias, cross-cultural communications and microaggressions
• ensure that training is specifically tailored to each place of employment, particularly for employees in customer facing roles and to reflect the remote working environment
• foster an open and inclusive culture: this can be done via workshops, training and employee engagement, and remind employees that they play an integral part in building that culture
• be proactive in addressing any discriminatory complaints and offer remedial services and mediation, if appropriate