The Equality Tribunal published 18 decisions recently under the Employment Equality Acts, 6 of which were successful in whole or in part. These are reviewed below beginning, as always, with the successful cases.

EMPLOYMENT EQUALITY DECISIONS UPHELD OR PART-UPHELD:

1. DEC-E2010 -043 An Employee -v- A Construction Company.

Ground/Issue: Race - Harassment
Award: €2,000 for Harassment.

The complainant, a Lithuanian national, stated that he started working for the respondent in 2003 clearing up sites, etc. He stated that in 2005 his job role changed to that of a handyman. He stated that in this capacity he was expected to carry out all kind of building work. The complainant's employment ended in January 2007.

The complainant submitted that he and other non-national workers were expected to work overtime whenever the need occurred. He submitted that the difference of treatment in relation to this matter was that while Irish workers were provided with a choice, he and other non-nationals were ordered to work overtime. The complainant submitted that it was normal for the foreman to tell him that: "you either do the work or you can go". The complainant reiterated that he believed that Irish workers had more choice about their hours and that they were never asked to work between sites on the same day.

The Equality Officer was satisfied that such utterances as "go where you came from", "Go back to Lithuania" and what the complainant described as threats such as "if you don't want to do the work Lithuanian, then don't bother coming back" were used to create a hostile working environment contrary to the Acts and awarded €2k compensation.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2282

2. DEC-E2010-046 An Employee -v- An Employer.

Ground/Issue: Disability - Victimisation.
Award: €2,500 for Victimisation.

The complainant submitted that in July 2006, he applied for a position as school-bus driver with the respondent. He passed the driving test, and subsequently underwent a medical exam on 11 August 2006. In reply to a question from the examining doctor, he stated that he had undergone an angiogram test in 2003. He was unsuccessful in that application and his discrimination claim was ruled out of time.

However, the complainant submitted that in October 2007, he made a further application for a school bus driving job with the respondent in the Thurles/Templemore area. In the first week of November, he received a phone call from a staff member in the respondent's Limerick office. They discussed the complainant's previous application, and when the complainant was asked about its outcome, he advised the staff member that he had referred the matter to the Tribunal. The staff member said he would take this into consideration when making his decision. That was deemed by the Equality Officer to be victimisation and €2500 compensation was awarded.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2285

3. DEC-E2010-048 3 Employee's -v- A Decor Company.

Ground/Issue: Race - Discrimination - Discriminatory Dismissal - Harassment.
Award: for €500 Discrimination, €2,000 and €500 for Harassment, €2,000, €2,000 for Discriminatory Dismissal.

These cases concern complaints by three Lithuanian nationals. Complaints included:

* they did not receive a written contract of employment or any health and safety documentation or training in relation to employment.
* they were dismissed without any proper procedures and were not given any reason for the dismissal by the respondent.
* employees of Irish origin working on the site continued after their dismissal.
* they had not been paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry and that they had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA.

The respondent sent a letter to the Equality Officer, who awarded the above sums to the complainants in respect of their various complaints.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2287

4. DEC-E2010-054 An Applicant -v- A County Council.

Ground/Issue: Discriminatory Treatment.
Award: €12,000 for Discriminatory Treatment.

The complainant alleged discriminatory treatment on the grounds of disability in relation to access to employment when she applied for the position of Clerical Officer (Word Processing) with the respondent in mid-2006. Following a selection process she was placed 8th on a panel for a permanent position in November 2006.

On 3 January 2007 the complainant was offered a 22 week temporary contract to cover for someone on maternity leave in the Finance Department of a Borough Council subject to a satisfactory medical. The complainant attended for a medical on 12 January 2007. The medical report confirmed that the complainant had a "chronic back problem. Standing for long periods or lifting would cause her difficulties. I would suggest a six month trial."

The final part of the medical report asks, 'Are there any circumstances connected with the health of the candidate which, in your opinion tend to disqualify him/her from performing the duties efficiently and regularly?' , to which the doctor replied "I suspect there may be." On the basis of this medical report the respondent withdrew the offer.

The respondent submitted that it was a temporary position which needed to be filled speedily and as the initial medical report raised doubts about the complainant's capability they were not in a position to carry out a more detailed assessment. The respondent met the complainant and informed her that the withdrawal of the offer of the temporary contract was based on medical evidence. It was clarified that she remained on the panel for a permanent position and "that should her condition hopefully improve then her next application would be considered solely on the position at that time".

The complainant attended another medical examination in August 2007. The medical report stated "in my opinion currently (the applicant) is medically fit for this work . I would advise the Council of course that the workstation would need to conform to appropriate guidelines and she would need to mobilise on a regular basis, I would estimate some degree of mobilisation every 20 minutes would be reasonable. With respect to her abilities to provide regular and effective service I have to state with reservation the prognosis is guarded... On the balance of probability I suspect that (the applicant) is likely in the future to have periods of absence from work as a consequence of an exacerbation of her back pain." The respondent submitted that there would have been no problem in providing reasonable accommodation in relation to the workstation and mobilisation. However, they were concerned with the complainant's ability to carry out her duties on an ongoing basis. On 3 September 2007 the respondent informed the complainant that, based on the medical report, they would not be proceeding with her application.

The Equality Officer concluded that he would have expected the respondent to have consulted with the complainant and agreed to refer her to a specialist. He concluded that the respondent was not in possession of sufficient facts to be able to rely on a defence under section 16 of the Acts when withdrawing the offer of employment for the permanent position and that this amounted to discriminatory treatment in relation to her disability. He awarded the complainant €12,000 for the discriminatory treatment suffered, and ordered that the complainant be considered for the next available Clerical Officer position.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2293

5. DEC - E2010-055 A Government Employee -v- A Government Department.

Ground / Issue: Discriminatory Treatment - Disability - Conditions of Employment.
Award: €30,000 Discrimination

This was another complaint on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2008 in relation to conditions of employment and a failure to provide reasonable accommodation in terms of sections 8(1)(b) and 16(3) of the Acts.

The complainant submitted that he started working for the respondent on 17 January 1981. In 2002 he was diagnosed with hypertension. On 28 May 2004 he went on sick leave, on the advice of a Consultant Physician, who considered that his current position was causing him stress and exacerbating his blood pressure. On 14 February 2005, whilst still on sick leave, he advised the Department that he wanted to apply for early retirement on ill health grounds on the advice of his GP and a Consultant Physician.

Following a medical assessment by the Chief Medical Officer (CMO) his application was refused on 27 June 2005. He appealed the finding of the medical report and saw a Specialist in Occupational Medicine. On 25 October 2005 he was informed that his appeal had been turned down and he was advised that if he did not return to work immediately he would be removed from the payroll. The complainant submits that he did not return to work because of medical advice from a Consultant Physician that it would be a risk to his health to do so. On 9 November 2005 the complainant was removed from the payroll and on 10 January 2006 the complainant was informed that his file was being submitted to the head of his work area for consideration of his dismissal.

On 12 October 2006 he was reassessed by the respondent's Specialist in Occupational Medicine whose opinion was unchanged from his assessment in October 2005 that; "the history outlined above does not suggest to me that he is totally and permanently disabled or a suitable candidate for ill health retirement".

The complainant submitted that he had been discriminated against by the respondent's refusal to deem him to have a disability by compelling him to return to work and recommending his dismissal for being chronically unable to provide a regular and effective service. This discrimination relates to his conditions of employment in accordance section 8 of the Acts as his request to retire on ill health grounds was rejected. Discrimination also occurred when he was not allowed an oral hearing and that he was not given adequate opportunity to test the opinion that he was fit to return to work or to influence that decision. Furthermore the complainant submits that he was also discriminated in relation section 16 of the Acts in that he was not allowed reasonable accommodation as the respondent did not take appropriate measures which would have given the complainant access to employment.

The Equality Officer concluded that the respondent focussed on the complainant's application for retirement on ill health and when he was considered unsuitable for this they insisted he return to work. They knew he considered the job stressful but did not acknowledge this once the CMO assessed him as fit to return to work. No attempt was made to discuss this with the complainant and to see if anything could be done to assist his return his return to work; other than to suggest he return to his old job and then to discuss lighter duties with his manager. More than a year later the complainant, facing the threat of dismissal, requested that he be transferred to a less stressful job and this was not considered by the respondent. Also none of the possibilities mentioned by the Specialist in Occupational Medicine were considered. In failing to consider how they might assist the complainant to return to work they failed to fully assess the complainant's capability in accordance with section 16 of the Acts.

He ordered that the respondent:

* as they are still his employer, carry out a re-assessment of the complainant, in accordance with section 16 of the Acts, which should be completed within 6 months, and

* pay him €30,000 in compensation for the distress experienced.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2294

6. DEC-E2010-057 An Applicant -v- A Hotel .

Grounds / Issues: Discrimination - Gender.
Award: € 2,000 for Discrimination

The complainant, who is Polish , commenced employment as a waitress with the respondent in April, 2007. She stated that in October, 2007 she informed a Supervisor (Ms. B) that she was pregnant. Shortly after this the complainant suffered a pregnancy related illness which necessitated her taking time off work during the last week of November. She resumed work on 7 December, 2007 for one week but became ill again on 15 December and was unable to report for her shift. The complainant was issued with a P45.

The respondent rejected the complainant's assertions in their entirety. It accepted that the complainant's P45 issued in late December, 2007 but stated this was in error and was revoked immediately. It added that the complainant was assured her employment was safe on a number of occasions and that it made every effort rectify the situation which arose. The respondent added that it heard nothing further from the complainant (except the complaint to the Tribunal) after its letter to her of 20 February, 2008.

The Equality Officer found that, on balance, that the complainant was not dismissed by the respondent. However, the action of issuing a P45 to the complainant, who had a low standard of English, and other actions around the time of the issuing of the P45 were discriminatory and she awarded €2k in compensation.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2296


EMPLOYMENT EQUALITY DECISIONS NOT UPHELD:

7. DEC-E2010-044 An Employee -v- An Employer

Ground/Issue: Race - Age

The complainant failed to establish a prima facie case of discriminatory treatment on the basis of the race or age grounds. All that was proffered in support of that contention is a mere assertion unsupported by any evidence.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2283

8. DEC-E2010-045 An Employee -v- A Hotel.

Ground/Issue: Disability - Race.

The complainant said that he commenced work with the respondent in January 2007 as a Head Chef. In early July 2007, the complainant was due back at work following his holidays, but he felt unwell and had cramps in his stomach. He attended the hospital for tests. He said that there is a history of cancer in his family and he has tests every two years. When he got the cramps in his stomach he was fearful for his health and decided to get a medical test. He was due in at work and telephoned the hotel and gave a message to the receptionist. He was concerned that the message would not be relayed to his manager. He asked his wife who is a Slovakian national to ring him. When his wife called later in the day to collect him from the hospital she was upset. She told him that the Manager telephoned her while she was at work and he shouted abuse including racial abuse at her concerning the whereabouts of the complainant.

The complainant provided no evidence that he was disabled and the race claim was 'misconceived'.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2284

9. DEC-E2010-047 An Applicant -v- AN Employer.

Ground/Issue: Race - Discrimination - Victimisation

This case concerned a Parish Secretary, who claimed the Parish Priest of a Roman Catholic parish ,discriminated against her on the grounds of gender and marital status contrary to Sections 6(2)(a) and (b) of the Employment Equality Act 1998-2008.

The complainant claimed that she was also harassed and sexually harassed by the respondent. The complainant made a complaint of victimisation in terms of 74 (2) of the Acts. The complainant also claimed discriminatory and victimisatory dismissal. Prior to the Hearing, the Equality Officer wrote to both parties explaining that she would not be investigating the claims of discriminatory or victimisatory dismissal. This is because under Section 101 (4) of the Act an employee who has been dismissed shall not be entitled to seek redress under this Act if the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.

The Equality Officer found the evidence of the Parish Priest more credible and the complaints were not upheld.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2286

10. DEC-E2010-049 An Applicant -v- An Potential Employer.

Ground/ Issue: Discriminatory Treatment - Access to Employment - Age

The complainant failed to attend the hearing.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2288

11. DEC-E2010-050 An Employee -v- An Employer.

Ground/Issue: Discriminatory Treatment - Victimisation

The complainant, a French national and a woman, commenced employment with the respondent in March 1999. Initially she worked in the 'French Language Team'. She then moved to a Telesales Specialist on the Partner Choice Team. She resigned from her post as telemarketing agent in October 2007. It was submitted that the complainant finally bowed to the campaign of bullying, intimidation and harassment carried out by the respondent. It appears that the complainant was not a credible witness. According to the Equality Officer:

"Having read the company's policy on harassment and bullying I am satisfied that the respondent takes its obligations in this area seriously. I am also satisfied that the respondent had carried out a separate investigation into a previous complaint that the complainant had made in 2006 (in relation to matters outside the Acts) and that there is no evidence to support that the respondent does not take such matters seriously or tries to fudge its responsibilities. I do not accept that the respondent was involved in any cover-up. It is clear from the facts that the respondent conducted its affairs professionally and legitimately in relation to the complainant... I note that the complainant made a number of other speculative arguments going back as far as 2005 concerning a possible link between the complainant's difficulties in the workplace with the manager named in the email. I have been presented with no evidence to link any of these issues with the protected grounds. This Tribunal has no jurisdiction to investigate allegations of workplace bullying."
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2289

12. DEC-E2010-051 An Employee -v- An Employer.

Ground/Issue: Discriminatory Treatment - Race - Membership of certain bodies

The complainant alleged he was subjected to discriminatory treatment contrary to section 13 of the Employment Equality Acts by The Law Society of Ireland.

The complainant, a Polish national, submitted that he applied to the respondent in December 2006 to sit the entrance examination for the Solicitor profession. In January 2007, the complainant submitted, he received a letter from the respondent informing him that he needed to make an official application to the Education Committee in relation to receiving an exemption from the Preliminary Examination. This application is open to foreign graduates, from non-Irish or United Kingdom universities, who wish to be exempted from the preliminary examination. The complainant submitted that the respondent contravened section 13 of the Acts by discriminating him in relation to being asked to pay a fee of €65. This fee, it was submitted, was not required from people who have a degree from a British or Irish university.

The complainant submitted that he has a degree of Master in Art in law from a Polish University. This, he submitted, made and makes him exempt from the preliminary examination. It was submitted that he had provided a certified copy of his degree certificate and, despite this, he was requested to apply for an exemption from the preliminary examination. The complainant submitted that there was no need for such an application as the respondent was in receipt of his degree certificate. Therefore, the complainant submitted, he has been discriminated contrary to section 13 of the Acts on the grounds of his nationality.

The Equality Officer accepted, on the facts of this case, that the requirement set out by the Law Society is not directly discriminatory. For example, in a comparator situation, an Irish person who had studied law in Poland would have to apply for the same exemption from the respondent and pay the same fee as the complainant is asked to pay. It is clear that the requirement appears to be indirectly discriminatory.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2290

13. DEC-E2010-052 An Employee -v- An Employer.

Ground/Issue: Race - Discrimination - Harassment.

The complainant submitted that he is Latvian and that he worked for the respondent as a project supervisor between January 2007 and the 19th September 2007. He claimed that he previously worked for Mr. Rafferty in his garage prior to moving to work with him on construction projects. He complained that he did not receive a written contract of employment or any health and safety documentation or training in relation to his employment. He also claimed that he did not receive pay slips and was not paid according to the Registered Employment Agreement for the Construction Industry (REA) nor was he joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. He claimed that this amounts to discriminatory treatment in relation to conditions of employment and training. He also claimed his dismissal was discriminatory.

The Equality Officer was not satisfied that the complainant has adduced any evidence from which he could reasonably conclude that he was treated less favourably than an Irish person would have been, in similar circumstances, and the claims fell. The dismissal was due to a breakdown in relations between the parties.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2291

14. DEC-E2010-053 An Employee -v- An Employer.

Ground/Issue: Discrimination.

The complainant submitted that he was employed by the respondent as a Security Guard from 27 May 2007 until he was dismissed on 11 July 2007. The complainant is a Nigerian national and it is on this basis that this complaint is being taken. The complainant further submitted that he did receive a contract and Health & Safety documentation, but that the disciplinary policy referred to therein was not followed in his case. The complainant submitted that he did not receive any training in relation to his work.

However, the complainant could not provide evidence that he was treated less favourably than Irish employees. As the Equality Officer put it: "The complainant then stated that some workers worked days and some worked nights and that some were favoured in this regard. He then stated that most of the people who worked days were Irish. When asked how he knew, he stated that he just knew."
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2292

15. DEC-E2010-056 An Employee -v- An Employer.

Ground/Issue: Discrimination.

Neither the complainant nor the respondent attended 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.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2295

16. DEC-E2010-058 An Employee -v- An Employer.

Ground/Issue: Age - Discriminatory - Pay.

This dispute concerned a claim by John Cogan (a Civilian Driver) against his former employer the Commissioner of An Garda Síochána that he is entitled to the same rate of remuneration as that paid to a named younger comparator (a Garda Driver) in accordance with the provisions of Section 29 (1) of the Employment Equality Acts 1998-2008. The respondent denied that like work existed between the complainant and the comparator. Notwithstanding this argument, it submitted that there are grounds other than age which render the rates of remuneration paid to the complainant and comparator lawful in terms of Section 29 (5) of the Act. Mr Cogan had also claimed that the respondent discriminated against him on the ground of age regarding his conditions of employment.

The additional duties and responsibilities assigned to Garda Drivers include:
- Driving Ministerial cars
- Escorts to the Special Criminal Court
- Driving Garda-marked vehicles (except in limited circumstances such as within Garda Headquarters)
- Driving official vehicles on security duties or on duties of sensitive nature
- Driving official vehicles where it is expected that speed limits and/or other traffic laws will have to be breached
- Driving official vehicles when blue lights and sirens have to be used.

The Equality Officer concluded that that the difference between the rate of remuneration paid to Mr Cogan and the rate paid to his named comparator is genuinely attributable to grounds other than age.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2297

17. DEC-E2010-59 An Employee -v- An Employer.

Ground/Issue: Disability - Discriminatory Treatment - Victimisation.

The complainant submitted that he was employed as a Maintenance Electrician by the respondent since 6 December 1999. The complainant was diagnosed with an autoimmune disease of the liver and has been informed by two consultants that he will need a liver transplant. The complainant submitted that this medical condition is aggravated by stress and its main symptom is fatigue which is severe in the evening onwards, even if he has slept during the day.

The complainant submitted that he has been discriminated against in his employment because of his disability and has been repeatedly and consistently denied reasonable accommodation.

The complainant submitted that the respondent has repeatedly challenged him and refused to accept the complainant's own doctors and consultants reports and certificates regarding his medical condition and that he was treated differently to another disabled employee.

The respondent submitted that the complainant cited a fellow employee, Mr A, with a disability who was treated in a more favourable manner in that he was facilitated with daytime shifts only. The respondent submitted that when Mr A brought his disability to the attention of the respondent, it sought an opinion from an Occupational Health specialist, Dr B, as to whether Mr A was fit to carry out his duties or whether measures were needed to accommodate that employee to carry out his duties. The respondent submitted that exactly the same process was followed when the complainant brought this to the respondent's attention, including seeking an opinion for the same Occupational Health specialist, Dr B.

The respondent submitted that between October 2008 and April 2009, it was pursuing a number of matters concerning the complainant's conduct. The respondent submitted that these issues were extant prior to the complainant lodging a complaint or seeking accommodation measures and therefore could not constitute victimisation.

The complaints fell because the complainant could not establish a prima facie case.

18. DEC-E2010-060 An Employee -v- An Employer.

Ground/Issue: Discrimination - Discriminatory Dismissal - Race.

The complainant was a Lithuanian general operative who made various complaints that were defeated. In particular, the respondent's evidence was underpinned by a document which the respondent produced in evidence, which showed all redundancies from January to December 2007 in date order. There was no evidence from that document that a discriminatory pattern of redundancy for non-Irish workers existed. With regard to the complainant's case, the equality Officer noted that he was let go after an Irish worker, who had more than a full year's more service than the complainant, had his employment terminated. With regard to the specific circumstances attaching to the complainant's dismissal, the Equality Officer preferred the evidence of the respondent.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2299