The Equality Tribunal recently issued 12 decisions, five of which were successful for the complainants, with one complainant receiving €50,000 due to a dismissal on the gender ground compounded by age. Another complainant was awarded €25k for being dismissed after 3 days once the employer found out that he had epilepsy. Two cases involved discrimination against pregnant employees and another included a €1,000 award over a requirement for a foreign national employee to pay for a driving test.

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1. DEC-E2011-147- Full Case Report - Eithne McDermott -v- Connacht Gold Co-Operative Society Ltd

Grounds / Issue: Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(a) - gender, 6(2)(c) - family status, 6(2)(f) - age, 6(2)(g)- disability, Section 8(1)(b) - conditions of employment, Section 14A - harassment, Section 16- reasonable accommodations, Section 74(2) - victimisation, time limits for referring complaints to the Tribunal - section 77(5)(a), prima facie case.
Total Award: €50,000

The complainant was employed as a manager at the Castlerea branch of a Cooperative Society from 1974 until her employment terminated on the 6th July 2007.

The complainant argued discrimination on a number of grounds. These complaints were upheld on the gender ground and harassment, The Equality Officer found that the that the discrimination on the grounds of gender was compounded by discrimination on the grounds of age, notwithstanding that comparable branch managers were both older and younger than the complainant. The EO found it "notable that the complainant, who was in her fifties at the time of the termination, believed that the respondent wanted to replace older workers with younger workers and that this happened in her case. It is also significant that Ms A the manager of Kilbarron Co-operative was also replaced by a younger male manager."

In relation to alleged bullying and harassment, the EO said, "I found the following corroborated the complainant's evidence in relation to her treatment: Ms. A gave evidence that she witnessed the complainant being treated in a very dismissive way by GM at a meeting of managers and other branch managers expressed shock at the way she was treated; in a letter of 26th September 2005 the complainant's union representative expressed concern about "total victimisation on your part to our member"; the complainants SS gave evidence that he witnessed GM using choice language towards the complainant at a meeting. I have also taken into consideration a letter from the complainant's GP which stated that the complainant was having problems at work and he diagnosed she was suffering from high blood pressure but she refused to take time off work even though she told him that she was stressed at work."

The complainant had received a final warning in relation to the alleged underperformance of her branch. However, there appeared to be inconsistencies in the evidence e.g. a letter referring to diesel and steel, whereas the complaint's branch sold n either diesel nor steel. The lack of consistency and failure to provide evidence was held against the respondent:

"I note that the respondent did not produce any evidence to contradict the complainant's assertions. I also note that despite a request by the Tribunal for sales figures from other similar branches the respondent did not provide the Tribunal with this information. It is significant that the respondent stated in response to a question that there were still performance problems with the Castlerea Branch since the complainant's departure and that the proposed development plan has not been implemented so far. Consequently I am satisfied that the complainant has raised an inference of discrimination in relation to her treatment. The respondent has not convinced me that any deficiencies in the performance of the Castlerea branch were solely attributable to the management of the branch by the complainant. Taking into account the totality of the evidence presented, I am also not satisfied that the final written warning was justified in the circumstances."

The Equality Officer awarded some 15 months' remuneration (a total of €50k).
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-147-Full-Case-Report.html


2. DEC-E2011-149- Full Case Report- A Worker -v- A Company

Grounds / Issue: Employment Equality Acts 1998-2011 - Discriminatory Treatment - Disability.
Award: €25,000

The complainant submitted that he commenced working for the respondent on 14 October 2008. Before that, he had gone through a lengthy application process, including three interviews with staff of the respondent company at different levels of seniority. The complainant received a number of standard induction materials, but it was not until two days later that he was asked to fill in an application form. On this form, there was a question about existing illnesses. The complainant disclosed that he suffers from epilepsy. The complainant assured his supervisor that the condition was well controlled through medication. Two days later he was asked to leave on health and safety grounds.

The respondent stated that it was agreed that the complainant should be assigned a guardian function temporarily until this matter had been determined. When the supervisor explained this, the complainant left and did not return.

The EO weighed up all the oral and written evidence and concluded:

"I am satisfied that the respondent made no effort whatsoever to consult with the complainant, and to find out details about how his disability affected him or would affect him on the job, before deciding on his dismissal. I am further satisfied, on the evidence of both the complainant and Mr. B., that the static guard job offered to the complainant was not on the same terms and conditions as the job for which the complainant had been hired, and can therefore not be said to be reasonable accommodation within the meaning of the Acts. I am therefore satisfied that the communication to the complainant, that he could not continue to work for the respondent in the role for which he had been hired only three days earlier, constitutes discriminatory dismissal on the ground of the complainant's disability, and that the complainant is entitled to succeed."

He awarded the complainant €25,000, or slightly less than what the complainant would have earned potentially in one year in the respondent's employment.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-149-Full-Case-Report.html


3. DEC-E2011-150- Full Case Report - Suzanne Millman -v- Blackrock Medical Services (Cavan) T?A Dial A Medic

Grounds / Issue: Employment Equality Acts, 1998-2008, Sections 6 & 8 - Gender - Access to Employment - Conditions of Employment
Award: €5,000

The complainant is a nurse and worked for the respondent as a nurse on ambulance services. She submitted that on 30 November 2007 she informed the respondent she was pregnant. As no member of senior management was available she told the acting Manager. The complainant submitted there were a number of occasions when her condition was not taken into account by the respondent, including:
- on 4 December 2007 she was asked to escort an excessively obese lady from Monaghan Hospital to the Mater Hospital who had to be manually transferred to the ambulance,
- on 18 January 2008 she was requested to transfer a lady from Cavan General to Monaghan General Hospital who had diarrhoea and vomiting,
- on 8 February 2008 the complainant started work at 8.30am and had delivered a patient from Cavan General Hospital to Drogheda and was going for a break when she got a call from Mr A that a patient had to be transferred from Monaghan to Castleross Nursing Home. The complainant said she needed some lunch and the manager roared at her that the transfer had to be done immediately.
- she said she was docked pay for ante-natal appointments
- she was threatened with redundancy
- she had her working hours reduced
- she was not given a copy of the risk assessment

The respondent denied most of the above and denied that the complainant ever requested a copy of her risk assessment or medical reports.

The EO concluded that the respondent had failed to carry out a risk assessment after she informed them of her pregnancy and failed to give the complainant time off for ante-natal care appointments. This constitutes discrimination on the gender ground. He awarded €5,000.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-150-Full-Case-Report.html


4. DEC-E2011-151- Full Case Report - Mr Tomas Petrauskas -v- Wyebridge Company Limited

Grounds / Issue: Employment Equality Acts, 1998 & 2008, Section 6 and 8, - Section 6(2)(h), race ground - Section 8(i)(b), conditions of employment - circumstances in which notional comparator will be considered - additional cost on foreign nationals.
Award: €1,000

The complainant was a driver for the respondent company. He said that he was told by the owner of the company that he would have to take a driving test after starting. He claimed that he was told that it was a requirement that all non-Irish workers were required to take the test and this stipulation was placed on the respondent by its insurance company. He understood that if the foreign national drivers passed the driving test it reduced the cost of insurance for the respondent.

The respondent did not attend the hearing to refute the claims. The EO found, "...the benefit of the complainant passing the driving test is primarily for the respondent, as it reduces its insurance cost. And secondly, the complainant worked for the respondent for over a year and a half after passing the driving test. It is not as if the respondent had to incur a cost for a worker which moved on shortly after it had invested in him and got no or little return. Accordingly, I find the respondent's practice of passing on the cost of the driving test unfair and discriminatory in the circumstances of this case."

He awarded €1,000 compensation.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-151-Full-Case-Report.html


5. DEC-E2011-154- Full Case Report - Inga Zareckaite -v- James O' Carroll t/a Hillcrest Nurseries & Plant Centre

Grounds / Issue: Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, Section6(2)(b) - marital status Section 6(2)(h) - Race, Section 8 conditions of employment, pregnancy and discriminatory dismissal.
Award: €18,000

The complainant is a Lithuanian national and was employed by the respondent from May 2007 until the 28th November 2008 when her employment was terminated. The complainant worked in the respondent garden centre shop as a sales assistant and cashier. She said that she and another Lithuanian woman worked in the shop and there were other Irish employees working in the garden centre and doing landscaping. The respondent's wife helped out in the shop on a part-time basis. The complainant notified the respondent that she was pregnant shortly after it was confirmed.

On the 10th of November 2008, when the complainant was about 5 months' pregnant and about 2 weeks before the other Lithuanian employee was due to return from maternity leave, the complainant was informed that she was being let go for a few months due to a shortage of work. The other Lithuanian employee was also let go. A few weeks after that she got her P45 which indicated her employment was terminated on the 28th of November 2008.

The complainant said that she understood from the respondent that she would be taken back after a couple of months and despite telephoning him looking for her job back she was not taken back. She said that the other employee who was let go lives beside the garden centre and informed her that it had remained open. She submits that she believes she was dismissed for reasons connected with her pregnancy and she believes that she is supported in this view by the fact that she and the other woman on maternity leave were the only employees let go.

The respondent failed to turn up and the Equality Officer awarded £18k, about €5k less than the maximum possible award in this case of €22,940.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-154-Full-Case-Report.html


EMPLOYMENT EQUALITY DECISIONS NOT UPHELD:


6. DEC-E2011-148- Full Case Report - Tomas Wojciechowski -v- Tesco Ireland Limited

Grounds / Issue: Employment Equality Acts 1998-2011 - Discriminatory Treatment - Harassment- Race - Condition of employment - Prima facie case

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-148-Full-Case-Report.html


7. DEC-E2011-152- Full Case Report - Mr F -v- A Supermarket

Grounds / Issue: Employment Equality Acts, Disability, Failure to provide reasonable accommodation, Discriminatory Dismissal, No prima facie case

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-152-Full-Case-Report.html


8. DEC-E2011-153- Full Case Report - Drasutis Leipinaitis & Aleksejs Filipous -v- Slattery's Ltd

Grounds / Issue: Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8 conditions of employment and discriminatory dismissal, harassment - section 14A prima facie case.

The complainants were unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-153-Full-Case-Report.html


9. DEC-E2011-155- Full Case Report - Jones -v- Kilsaran Concrete Ltd

Grounds / Issue: Employment Equality Acts 1998- 2008 - sections 6,8, 14A, 74, 77 & 77A -age - retirement age - treatment- victimisation - time limits - misrepresentation- frivolous & vexatious

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-155-Full-Case-Report.html


10. DEC-E2011-156- Full Case Report - Aida Butiene -v- Ireland's Eye Seafoods Ltd t/a as Wrights of Howth

Grounds / Issue: Employment Equality Acts, Race, Gender, Family Status, Marital status, Conditions of Employment, Discriminatory Dismissal

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-156-Full-Case-Report.html


11. DEC-E2011-157- Full Case Report - Ivo Janmets -v- John Glennon & Edward Glennon

Grounds / Issue: Employment Equality Acts, 1998-2008 - sections 6 and 8 - race - conditions of employment - discriminatory dismissal - failure to attend hearing

The complainant failed to attend the hearing and the complaint failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-157-Full-Case-Report.html


12. DEC-E2011-158- Full Case Report - Kepezniskas, Szara & Bachovej -v- All Purpose Stone Ltd t/a Sanderwood Stone Ltd

Grounds / Issue: Employment Equality Acts 1998-2008 - sections 6 and 8 - discriminatory treatment - conditions of employment - health & safety training and documentation - circumstances in which notional comparator will be considered - race.

The complainants were unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-158-Full-Case-Report.html