The Equality Tribunal published 13 decisions under the Employment Equality Acts, 5 of which were successful in whole or in part. These are reviewed below beginning as always with the successful cases.

A number of the complaints refer to claims by complainants Eastern European origin. The highest award was €13,000.


Employment Equality Decisions Upheld or Part Upheld

1. DEC-E2009-111 Ms. Z -v- A Chain Store.

Ground/Issue: Disability - Failure to Provide Reasonable Accommodation.
Award: €1,000 for lost Income and €7,000 for Discrimination.

The complainant, who has epilepsy, alleged that the respondent had discriminated against her in that it failed to provide her with reasonable accommodation to take account of her disability.

She asked to be moved to work other than on the checkouts as she felt that the flashing lights may have been the cause of her episodes. She subsequently went on sick leave as no accommodation could be made. During that period the complainant also canvassed other workers in the store and pointed out to management that there were other employees willing to swap with her. She visited the workplace weekly with her medical certificates and spoke to the HR Manager on occasion. Finally, when after two months the situation remained the same, she resigned.

The employer stated that although one sales assistance approached management and offered to swap with the complainant, this would not have moved the situation along for the complainant as she could still have been on call to operate a checkout.

The Equality Officer found that the respondent failed:
- to consider alternative roles without checkout duties for the complainant
- to provide such accommodation as would have established the complainant's fitness to work in a role without checkout duties, and
- to meaningfully engage with the complainant

And ordered the respondent to pay the complainant for the effects of the discrimination:
- €1,000 relating to lost income which is subject to PAYE and PRSI.
- €7000 as compensation which is not liable to PAYE and PRSI.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2191


2. DEC-E2009-116 Mr. A & Mr. B v- A Limited Company.

Ground/Issue: Disability - Race - Discriminatory Treatment - Discriminatory Dismissal.
Award: Mr. B - €3,000 for Discrimination & €10,000 for Discriminatory Dismissal.

This case highlights the importance of attending the hearing. One employee, who did not attend, failed in his case to establish a prima facie case. The other one, who had similar complaints of racial discrimination was awarded €3000 in compensation for the effects of the discriminatory treatment suffered, and €10,000 in compensation for his discriminatory dismissal. The respondent had entered a written response but did not address the core complaint of race i.e. that the respondent attempted to purge his workforce of non-nationals.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2196


3. DEC-E2009-117 An Employee -v- A Limited Company.

Ground/Issue: Age - Discriminatory Treatment - Sexual Harassment - Harassment - Gender - Race - Discriminatory Dismissal.
Award: €2,500 for Discrimination.

The complainant alleged discrimination in a redundancy exercise. The employer said he was not singled out because of his nationality but that all employees in his pool had been made redundant. The Equality Officer was persuaded by the complainant's account that he alone was not paid a redundancy payment rather than the respondents post-hearing submission that it had not paid anyone on the assembly team a redundancy amount. Therefore, he found that, in circumstances where the complainant was not paid redundancy monies while Irish national counterparts were so paid, discrimination on the race ground has occurred. €2,500 in compensation was awarded, in addition to any payment for redundancy that was still owed.

Full Report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2197


4. DEC-E2009-121 . An Employee -v- A Limited Company.

Ground/Issue: Race - Discriminatory Treatment - Discriminatory Dismissal.
Award: €500 for Discrimination.

The complainant was employed by the respondent as a General Operative between January, 2005 and October, 2006. He contended that during his period of employment he was (i) treated less favourably as regards his conditions of employment and (ii) harassed by the respondent on the basis of his Lithuanian nationality contrary to the Employment Equality Acts, 1998 and 2004. He also contended that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Lithuanian nationality) contrary to the Acts.

The complainant lost most of his claims but the complainant was awarded the sum of €500 by way of compensation for the distress suffered by him as a result of the employer's failure to health and safety training and documentation, although the respondent did state that health and safety documentation was displayed in canteen areas in English and Polish and that this material was available at all times. It probably didn't help his case that the complainant was Lithuanian rather than Polish.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2201


5. DEC-E2009-122 .An Employee -v- A Limited Company.

Ground/Issue: Race - Discriminatory Treatment - Discriminatory Dismissal.
Award: €500 for Discrimination and €8,000 for Discriminatory Dismissal.

The complainant was employed by the respondent as a security operative between June, 2005 and November, 2007. He contends that during his period of employment he was (i) treated less favourably on the basis of his Lithuanian nationality as regards his conditions of employment and (ii) dismissed by the respondent on the same discriminatory ground.

The complainant stated that he reported for duty about 8pm on Saturday 3 November, 2007 - which was about one hour before his shift was due to commence. He added that on arrival there were two strangers on the site and when he confronted them he was assaulted. The complainant stated that he contacted Mr. X - the person who was his contact/link with the respondent - who told him to go home and that he did not have to work. The complainant stated that some time later that evening he received a phone call from Mr. X telling him he was to attend a meeting with the Manager the following Monday. The complainant added that he attended this meeting but was unsure what was happening. He added that a few days later he was told by the Manager who had attended the meeting on Monday that he was fired. The Equality Officer found that the respondent did not provide interpretation facilities at that meeting and one of the complainant's colleagues translated what occurred at the meeting for him.

The Equality Officer in the instant case the respondent did not make any effort to ensure that the complainant fully understood the gravity of the allegations against him and the potential consequences of same. Whilst it is a fact that the other employees dismissed along with him were also Lithuanian his circumstances can be distinguished from those as he was not rostered to be on duty at the time of the burglary, they were. The respondent made no credible efforts to investigate the circumstances of the incident and took the decision to dismiss them all, including the complainant. The Equality Officer was satisfied, on balance, that this would not have happened to an Irish employee in similar circumstances as that worker would have understood the allegation against him/her and would have been able to articulate a defence to the charges, something the complainant was unable to do. An award of €8,500 was made.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2202


Employment Equality Decisions Not Upheld


DEC-E2009-110 An Employee -v- A College.

Ground/Issue: Age - Gender - Discriminatory Treatment.

Employment Equality Acts 1998-2008, Discrimination, age, gender - sections 6(2)(a), 6(2)(f) and section 8, failure to attend hearing, obligation under section 79 ceased.

The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 27th August 2007 alleging that the respondent discriminated against him in not appointing him to the position of Lecturer following a competitive interview. He submitted that he was more qualified and more experienced than the successful female candidate. He submitted that he was aged 54 at the time of the interview and the successful applicant was in her early thirties.

The complainant did not attend the hearing and his case was struck out after several warnings.

Full report
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2190


DEC-E2009- 112 An Employee -v- A Construction Company.

Ground/Issue: Race - Discriminatory Treatment - Discrimination Dismissal - Harassment.

The complainant, a Latvian National, began working for the respondent in May 2006. This was his first job in Ireland and he worked on various sites for the respondent. His work included brickwork, laying concrete and kerbs. Each day he was picked up by the respondent together with five other eastern Europeans and taken to wherever they were to work that day. He received no papers at all and was paid by cheque. He was paid €60 per day. At the end of September 2006 he got a call and voice mail indicating that there was no more work for him. He had no further contact with the employer.

The respondent stated that the complainant was paid the minimum wage which reflected his experience. All workers were aware that the work was drying up and the complainant was let go in the same manner as the other employees. The respondent's representative submitted that dismissal without reasons or fair procedures was not discrimination.

As the complainant had failed to establish a prima facie case of discrimination and dismissal on the race ground his claim failed.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2192


DEC-E2009-113 An Employee -v- A Limited Company.

Ground/Issue: Race - Claim for Equal Pay.

The complainant, who is of Congolese origin, worked for the respondent during the period November 2004 until September 2005. He alleged that the difference between his rate of pay and that of the named comparators was because of his race.

The complainant's claim failed for want of prosecution when he failed to turn up to parts of the hearing.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2193


DEC-E2009-114 An Employee -v- A State Body.

Ground/ Issue: Gender - Equal Pay.

This dispute concerns an equal pay claim. The complainant is employed by the respondent as an Assistant Director of Nursing in Naas General Hospital, whereas the two comparators are employed as Assistant Directors of Nursing, Mental Health Services.

The gender breakdown of the complainant's grade is approximately, 90% female and 10% male and is therefore carried out almost exclusively by females. The respondent contends that the comparators' grade is not predominantly male and the complainant is therefore unable to establish a prima facie case of indirect discrimination. The respondent provided statistics which showed the gender breakdown of the comparator group at the date of the claim, three years before the date of claim and April 2009:

Date Males Females
June 2003 50.56 49.44
July 2006 52 48
April 2009 50.29 49.71

The complainant did not dispute these figures, which show that the comparator group was not predominantly male either at the time of the claim or three years before or after that which is the 'relevant time' under section 19 (2) of the Acts which may be considered by the Equality Officer in an equal pay claim.

The complainant failed to establish a prima facie case of discrimination her equal pay claim on the gender ground failed.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2194


DEC-E2009-115 An Employee -v- An Employer.

Ground/Issue: Age - Discriminatory Treatment.

The complainant alleged that at an advertisement placed by the respondent seeking a 'young person' in The Southern Star newspaper discriminated against her on the grounds of age in relation to access to employment to the Employment Equality Acts 1998 - 2008.

The claimant failed to attend the hearing. As no evidence was given at the Hearing in support of the allegation of discrimination, the Equality Officer concluded the investigation and found against the complainant.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2195


DEC-E2009-118 An Employee -v- A Limited Company.

Ground/Issue: Race - Discriminatory Treatment - Harassment.

The complainant, who is a Latvian national, was employed by the respondent as a plasterer's labourer from April, 2006 until October, 2006. The complainant stated that there were two other employees (of Irish nationality) employed by the respondent as plasterers during his period of employment. The complainant stated that he received no written contract or terms of employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts.

The complainant submitted that the respondent failed to provide him with a health and safety statement or any health and safety training even though he was working in a potentially dangerous business. The complainant submitted that the respondent's failure to provide him with a health and safety statement in a language which he could understand amounts to discrimination within the meaning of the Acts.

The complainant later withdrew most complaints and the respondent had ceased trading and failed to turn up at the hearing.

In considering this issue, the Equality Officer pointed out that the Tribunal does not have any jurisdiction in relation to issues regarding the compliance or otherwise by an employer with its obligations under tax or social welfare legislation. The complainant could not confirm whether or not the other employees i.e. those of Irish origin engaged by the respondent during his period of employment had the appropriate tax and social welfare deductions taken from their remuneration by the respondent. Therefore, having regard to the evidence adduced in the present case and in applying the reasoning of the Labour Court in the Melbury Developments Limited case, the EQ was not satisfied that the complainant has established any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of tax and social welfare deductions. Accordingly, it was found that the complainant failed to establish a prima facie case of discrimination in relation to this element of his complaint.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2198


DEC-E2009-119 An Employee -v- An Employer.

Ground/Issue: Race - Discriminatory Treatment - Discriminatory Dismissal - Victimisation.

The complainant submitted that he was employed by the respondent from 1 February 2006 until his employment ended in March 2007. The complainant is an Estonian National and it is on that basis that this complaint was taken. The complainant further submitted that he did not receive any proper contract of employment, Health & Safety documentation or training.

However complaints must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. He failed to produce evidence and the case failed.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2199


DEC-E2009-120 An Employee -v- An Employer.

Ground/Issue: Age - Family Status - Race - Discriminatory Treatment.

This dispute involved a claim by a teacher who applied for a teaching post that the Teaching Council discriminated against him on grounds of age, family status and race, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to sections 8 and 31 of those Acts, in the manner in which it dealt with his application for recognition and registration of his teaching qualifications, which he gained in the UK.

The complainant obtained his teaching qualifications in the UK and taught there as a post-primary teacher for twenty-five years prior to his move to Ireland in 2002. In June, 2006 he applied to the respondent to have these qualifications recognised in Ireland thereby enabling him seek registration as a post-primary teacher in this country, which in turn would permit him to obtain employment in that capacity.

Notwithstanding any discussions at the hearing in relation to the details of this case, Section 36(4) of the Employment Equality Acts, 1998 and 2004 provides as follows:

"Nothing in this Part or Part II shall make it unlawful to require, in relation to a particular post --
(a) the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, or
(b) the production and evaluation of information about any qualification other than such a specified qualification."
Section 36(5) states that:
"Nothing in this Part or Part II shall make it unlawful for a body controlling the entry to, or carrying on of, a profession, vocation or occupation to require a person carrying on or wishing to enter that profession, vocation or occupation to hold a specified educational, technical or other qualification which is appropriate in the circumstances."
Section 13 provides that -
"A body which --
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.".

The Equality Officer found that the respondent is entitled to avail of the exemption provided at section 36(5) of the Employment Equality Acts, 1998 and 2004 and the complainant's claim therefore failed.

Full report:
http://www.equalitytribunal.ie/index.asp?locID=164&docID=2200