Yesterday the Director of the Equality Tribunal published 16 decisions under the Employment Equality Acts, just 6 of which were successful in whole or in part. Large awards included some €60 000 to 5 Latvian claimants, who claimed equal pay, failure to provide terms and conditions and discriminatory dismissal. It could have been worse for the employer - 5 other claimants failed to turn up and had their cases dismissed. The final successful case led to €16 000 awarded to each of 6 complainants for victimisation, notwithstanding that all of their other discrimination claimed failed.

The first successful case is an interesting one in relation to discriminatory height restrictions for bus drivers, which was successful even though the complainant produced no statistical evidence to show any discriminatory effect.

All of the cases issued yesterday are summarised below, beginning with the successful ones.

EMPLOYMENT EQUALITY DECISIONS UPHELD OR PART-UPHELD:

1. DEC-E2010 -150. An Employee -v- An Employer.

Grounds/Issue: Discriminatory Treatment, Gender, Disability, Race.
Award: €6,000 for Discriminatory Treatment

The complainant submitted that she was discriminated against by the respondent when she applied for a job as a Bus Driver. The complainant submitted that she passed the theory test, passed the practical driving test and was called to interview. From the interview, the complainant was referred for a medical examination. At the medical, she was informed that the respondent had a minimum height restriction and that she did not satisfy that height limit. The complainant submitted that a height restriction affects a greater proportion of women than men. Furthermore, the complainant submitted that the respondent employs persons of a similar height to her who are male, white and Irish.

The respondent accepted most of what the complainant said but submitted that the complainant submitted no evidence to substantiate her allegation that the company employs persons of equal height to her who are male, white and Irish. The respondent also submitted that the minimum recommended height for a professional Bus Driver is 165cm and that the complainant, at 157cm, falls well short of this minimum requirement. The respondent further submitted that this medical recommendation is based on the relationship of the ergonomics of a back injury and the assessment of the driver's cab.

The respondent accepted the disproportionate argument in relation to the impact on women applicants. The Equality Officer referred to the Labour Court decision in the case of NBK Designs Ltd. and Marie Inoue (ED/02/34) found that it was not necessary to produce statistical evidence to support its contention and stated, inter alia, that:
"The procedures of this Court are intended to facilitate parties whether they appear represented by Solicitor or Counsel, Industrial Relations Practitioners or unrepresented, alike. It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience."

The EO came to the conclusion that a prima facie case had been made out without the need for statistical evidence and awarded €6 000. He also recommended that that the respondent clearly establish what height range amounts to a genuine and determining occupational requirement for the post of Bus Driver, and that they take steps to inform applicants for the position of that information at the earliest possible opportunity in the recruitment process.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2417


2. DEC-E2010- 151. An Employee -v- An Employer

Grounds/Issue: Race, Conditions of Employment, Harassment.
Award: €3,000 for conditions of Employment.

The respondent made no submissions in advance of the hearing and did not attend the hearing. The complainant still had to make out his case.

The complainant was a Lithuanian national who worked for the respondent construction firm for only 5 weeks but was paid for only two weeks' work, despite repeated assurances that he would be paid. He was successful in his claim of unfair constructive dismissal (on the race ground) because the Equality Officer accepted that an Irish employee would not have been treated in the same way and was awarded €3000.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2418


3. DEC-E2010-154. 10 Employees -v- An Employer

Grounds / Issues: Race, Gender, Discriminatory Dismissal, Harassment, Equal Pay.
Award: €5,000 Each for Conditions of Employment and awards of €17,000, €6,000 , €3,000, €6,000, €3,000 to 5 employees for Disciminatory Dismissal .Equal Pay Awarded to 2 employees.

The complainants were 4 Latvian painters and a teleporter driver. They submitted that they worked extremely long hours from 7:00 a.m. until 6:00 p.m. Accommodation was supplied as part of their conditions of employment but they stated that they were required to work an extra day to pay for their accommodation. This meant that they invariably worked a six-day week and occasionally a seven-day week. The complainants maintained that the accommodation provided was very cramped and that there were nine people sharing a two-bedroom house.

Regarding their dismissal, the complainants submitted that they were informed on a Monday by their supervisor (who was Polish) that their employment would be ending on the Friday and to make arrangements to move out of their lodgings by then. Because of the short notice, the complainants maintained that they had to sleep in cars for a few nights. As they were leaving, they submitted that a bus of Polish people arrived to move into where they were previously living. The complainants submitted that the Polish people were given their jobs (and accommodation) because they were willing to work for even less remuneration than the complainants were.

The equal pay claim was based on two women painters and two male painters. The difference in weekly pay was €150 per week.

The respondent did not engage with the investigation.

The EO accepted that Irish employees would not have been treated the same and awarded €5,000 each in compensation for the distress caused by discriminatory conditions of employment and to pay differing sums totalling €35k in compensation for the distress caused by discriminatory dismissal. The amounts are based on the length of time each was employed by the respondent.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2421

4. DEC-E2010-156. An Employee -v- An Employer.

Grounds / Issues: Race, Conditions of Employment, Harassment, Dismissal.
Award: €2,500 each for Discriminatory Treatment.

The complainants were a Lithuanian and a Latvian national. They submitted that they did not receive contracts of employment, health and safety documentation or training, and were required to work excessive hours. They further contended that they were not paid in accordance with the Registered Employment Agreement for the Construction Industry, and that they were not joined into the CWPS Pension Scheme.

No submission was received from the respondent.

The EO concluded that the fact that the respondent terminated his entire non-Irish workforce on site despite the fact that work was still ongoing, and the retention of his Irish workers, raises an inference that the complainants and their non-Irish fellow workers were dismissed on the ground of their nationality, and that this has not been rebutted. Accordingly, the complainants were entitled to succeed in their complaint of discriminatory dismissal and were awarded €2500 each, the amount lower than might have been because they were able to secure alternative employment within a matter of days.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2423


5. DEC-E2010-159. An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Discriminatory Dismissal, Harassment, Race, Conditions of employment. Award: €2,500 for Harassment.

The respondent failed to attend the hearing. The complainant is Lithuanian. Most of the complaints fell but the Equality Officer found the complainant's oral evidence to be compelling and accepted, without any contradictory evidence, that the complainant worked in an environment where it was acceptable to 'joke' about a foreign national's ability to speak a second language.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2426


6. DEC-E2010-160. 6 Employees -v- An Employer

Grounds/Issues: Discriminatory Treatment, Conditions of Employment, Discriminatory Dismissal, Harassment, Victimisation, Race.
Award: €16,000 each for victimisation.

The complainants in this case all failed in their claims of discriminatory treatment except in one regard - they claimed they had been victimised for threatening to take race claims. The form of victimisation was, in the eyes of the Equality Officer, a malicious referral to An Garda Siochana in relation to property allegedly taken by the complainants. As a result of this complaint, the complainants submitted that they were arrested and charged with a criminal offence. The complainants also submitted that the respondent has also threatened the complainants with other legal proceedings.

The respondent company did not attend the hearing. They did, via their solicitor respond to other matters. However, the victimisation claim was not rebutted and each of the complainants was awarded €16k.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2427


EMPLOYMENT EQUALITY DECISIONS NOT UPHELD


1. DEC-E2010- 146. An Employee -v- An Employer

Grounds/Issue: Race, Discriminatory Treatment, Conditions of Employment, Dismissal

Here the complainant was employed by the respondent as a General Labourer from April, 2006 until February, 2008. He alleged that during his period of employment he was (i) treated less favourably as regards his conditions of employment on grounds of race (Latvian nationality) and (ii) was constructively dismissed by the respondent on the same basis (Latvian nationality), contrary to the Employment Equality Acts.

The Equality Officer concluded that the complainant had failed to raise a prima facie case on either of the two actions and found in favour of the employer.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2413


2. DEC-E2010- 147. An Employee -v- An Employer

Grounds/Issue: Race, Conditions of Employment, Harassment, Discriminatory Dismissal, Constructive Dismissal

This case concerned a complaint by the complainant, Mr. Laurentiu Eugen Iacob, that he was subjected to discrimination by the respondent, The Central Hotel, on the grounds of his race contrary to section 6(2)(h) and section 8 of the Employment Equality Acts, 1998 to 2008 in terms of his conditions of employment and discriminatory dismissal. The complainant also claims that he was subjected to harassment contrary to section 14A of the Acts.

Although all complaints failed paragraph 5.10 is interesting which explains that the complainant sought to present evidence of an audio recording (which he had recorded on a personal dictaphone) of a conversation between Mr. A and himself which he claimed had taken place a number of weeks prior to the termination of his employment in March, 2007. The complainant claimed among other things that during this recorded conversation Mr. A was aggressive in his manner and used sexually derogatory language referring to him as a "p....k". The respondent objected to this audio recording being admitted into evidence on the basis that it had been made without the knowledge or consent of Mr. A. The respondent submitted that the recording of this conversation amounted to a breach of Mr. A's right to privacy under both the Constitution and The European Convention on Human Rights and that it was also in breach of the Data Protection Act, 1988. The Equality Officer ruled that the evidence was admissible.

The Equality Officer Enda Murphy ruled as follows :

"6 (i) the complainant has failed to establish a prima facie case of discrimination on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts in relation to his conditions of employment.
(ii) the complainant has failed to establish a prima facie case of harassment on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 14A of those Acts.
(iii) the complainant has failed to establish a prima facie case of discriminatory dismissal on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 77 of those Acts.
Accordingly, I find in favour of the respondent in this case."

FULL REPORT:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2414


3. DEC-E2010-148. An Employee -v- An Employer

Ground/Issue: Less Favourable Treatment, Race, Conditions of Employment.

This dispute concerned a claim by the complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), and6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8.

The complainant is a Lithuanian national and was employed by the respondent to work on building sites from March 2007 until 30th of September 2007. The complainant's case was that the respondent discriminated against him in relation to his conditions of employment in that he failed to provide him with a pay slip, failed to pay his taxes and failed to give him a P 45 on the cessation of his employment. The complainant said that he worked on 2 sites one in Delgany and one in Dublin city centre. On the first site there were 4 Irish employees and 1 other Lithuanian employee and on the second site there were 3 Irish employees a Latvian and 2 Lithuanians. The complainant said that he was paid by cash and he never got a payslip. He believes that the other non-Irish employees did not get payslips either. He could not say if the Irish employees got one. He submitted that no taxes were paid by the employer on his behalf and as a result he was not issued with a P45 and he could not claim any benefits as there is no record of his employment.

The Equality Officer ruled that in the absence of any evidence that the complainant had been treated differently to Irish nationals the complaints must fail.

FULL REPORT:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2415


4. DEC-E2010-149. An Employee -v- An Employer

Grounds/ Issue: Discriminatory Treatment, Promotion/Re-grading, Age.

This dispute concerned a claims by Ms. Geraldine Horgan and Ms. Helen Comiskey that they were subjected to discriminatory treatment in relation to a promotion competition to a deputy principal post contrary to the Employment Equality Acts by Meath County Vocational Education Committee on the grounds of their age. The complainants, it was submitted, were discriminated against by the respondent by the application of an unfair and biased selection process in relation to the post of Deputy Principal. It was submitted that the complainants were both more qualified teachers with a proven track record of competence to meet the needs of the position.

After due consideration of the facts the Equality Officer Tara Coogan ruled that the complainants had failed to raise a prima facie case of discrimination.

FULL REPORT:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2416


5. DEC-E2010-152. An Employee -v- An Employer

Grounds/Issue: Conditions of Employment, Access to employment, Dismissal.

This case concerned a complaint by Mr. Dennis Solodovnikos that he was discriminated against by Breffni Carpentry Services on the ground of race contrary to sections 6(1)(a) and 6(2)(h) of the Employment Equality Acts in relation to (i) access to employment, (ii) conditions of employment and
(iii) dismissal contrary to sections 8(1)(a), 8(1)(b) and 8(6)(c) of the Acts.

The complainant submitted that, on 13 October 2006, he was told by the respondent that it no longer had any work for him and he was dismissed, having worked for the respondent for six or seven months at that stage. He submitted that no procedures were followed in relation to this dismissal and disputes the respondent's submission that he left his employment of his own volition. He did state at the hearing that the respondent had forewarned him that his work would be finishing and that he would be given one week's holiday pay. However, he stated that he was never given same. He said that the only other person working with the respondent was Mr A, who was Irish.
He said that Mr A was there when he started, but did not know when Mr A had started. He stated that there was a big difference in the way he was treated compared to the way Mr A was treated and stated that if he was Irish he would have remained in the respondent's employ. He said he has not worked since finishing with the respondent.

Finding, among other things that the complainant was hired on a casual and temporary basis and that he would not have been treated any differently in respect to the termination of his employment with the respondent if he was of a different race, nationality or ethnic or national origin the Equality Officer ruled against on the complainant on all actions.

FULL REPORT:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2419


6. DEC-E2010- 153. A Kitchen Worker -v- A Restaurant

Grounds / Issues: Gender, Marital Status, Family Status, Sexual Orientation, Conditions of Employment, Harassment, Sexual Harassment.

This dispute concerned a claim by a kitchen worker that he was discriminated against in relation to conditions of employment in terms of section 8(1)(b) of the Employment Equality Acts and that he was harassed and sexually harassed in terms of section 14A of the Acts by a restaurant on the grounds of gender, marital status, family status and sexual orientation contrary to section 6(2) of the Acts.

The complainant submitted that he started work for the respondent in 2000 as a kitchen porter and he left in 2006 because he claims he was bullied by a chef but was convinced to go back by the owner when she promised there would be no more bullying.

He submitted that his job was to wash dishes and kitchen appliances and he worked from 5pm until 11.30pm. Then he was told to prepare vegetables which he was not getting paid to do. Also he was phoned at home from time to time to come into work immediately to help out with the vegetables. He felt obliged to go in regardless of his own situation.

He stated that two chefs, when there was no manager in the kitchen, would say he was too slow for the vegetables and they would shout at him, call him a homosexual and call him "Mary". He alledged that he was constantly bullied by them, insulted, shouted at and laughed at, and this included references to his sexuality. He submitted that the management and owner knew it was going on but they did nothing.

At paragraph 4.9 the Equality Officer Hugh Lonsdale stated "The complainant was given every opportunity to substantiate his claim at the hearing but he was very reluctant to give direct evidence, even after extensive questioning. I found his evidence to be very vague and inconsistent in relation to the specific incidents he referred to. The respondent has given contradictory evidence in relation to these incidents and when given the opportunity to respond to the respondent's evidence the complainant was unable to refute their version of events. On balance I find their evidence more credible. I therefore find that the complainant has failed to establish a prima facie case of harassment or sexual harassment."

The Equality Officer then ruled :

"I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent:
- did not discriminate against the complainant in relation to his conditions of employment
- did not harass or sexually harass the complainant in relation to gender, marital status, family status and sexual orientation."

FULL REPORT:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2420


7. DEC-E2010-155. An Employee -v- An Employer

Grounds / Issues: Conditions of employment, Race, Less Favourable Treatment, Harassment, Victimisation.

Here the complainant failed to appear at the Hearing. The Equality Officer ruled as follows :

"In the light of the foregoing, and in accordance with Section 79(6) of the Act, I issue the following decision:
As part of my investigation under Section 79 of the Act, I am obliged to hold a Hearing. I find that the complainant's failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the Hearing in support of the allegation of discrimination I conclude the investigation and find against the complainant."

FULL REPORT:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2422


8. DEC-E2010-157. An Employee -v- An Employer

Grounds/Issues: Discriminatory Treatment, Dismissal, Race, Conditions of Employment.

The dispute concerns a claim by Mr. Galiauskas that that he was (i) discriminated against by Clean Build Ltd in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts,
1998 - 2007 and contrary to section 77 of those Acts.

The complainant is a Lithuanian national who worked as a skip driver with the respondent from June to August 2007. He got the job when a friend of his, who was working for the respondent, decided to quit one day. The complainant presented himself instead and he started work that day. The complainant submitted that he received no contract of employment, health and safety training or documentation. When he started he was given some basic training by one of his follow workers. He submitted that he was always under pressure at work and he did not get proper breaks. Initially when he started he had a nice boss, but the business changed hands and his new boss was difficult and picked fault with him. There were 5 other Lithuanians employed there and 1 Chinese person. As there were no Irish people working in the company other than his boss, the complainant sought to rely on a notional comparator and submits that Irish employees would not have been subjected to this sort of work environment.

The Equality Officer Elaine Cassidy ruled that in the absence of any evidence that the complainants were treated differently to an Irish comparator they had failed to raise a prima facie case on any of the allegations.

FULL REPORT:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2424


9. DEC-E2010-158. An Employee -v- An Employer

Grounds/Issues: Discriminatory Treatment, Race, Conditions of Employment, Training, Discriminatory Dismissal

This dispute involved a claim by Mr. Jarasuis who is a Lithuanian national, that he was (i) discriminated against by Igor Kurakin Transport Ltd ") in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.

The Equality Officer was unable to conclude that a hypothetical comparator would have been treated more favourably than the complainant.
The Ruling was as follows :

"6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts,
1998 to 2008. I find that:

(i) the respondent did not discriminate against the complainants on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment and contrary to section 8(1) of the Acts;
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.

Therefore the complainant's case fails."

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2425


10. DEC-E2010-161. A Complainant -v- A Publishing Company

Grounds/ Issues: Harassment, Equal Pay, Gender, Family Status, Age.

This dispute concerned a claim that the complainant was subjected to harassment by the respondent on the grounds of age, gender and family status in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 14A of those Acts. The complainant also lodged a claim for equal remuneration under Section 19 of the Acts.

Eventually all claims were withdrawn other than the issue of harassment on the gender and age grounds.

The Equality Officer Conor Stokes Ruled as follows :

"6.1 The complainant did not pursue a complaint of discriminatory treatment or discriminatory dismissal. Therefore I am not in a position to investigate these matters.

6.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the age ground has not been established and this element of the complaint fails.

6.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the gender ground has not been established and this element of the complaint also fails."

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2428