The Equality Tribunal recently published 19 Decisions taken under the Employment Equality Acts, just 4 of which were successful.

The largest award was €25k but the decisions are more varied and interesting than they have been of late and cover a wide range of equality grounds, from race to age to gender and feature cases from promotion to harassment to dismissal. The third of the upheld cases is particularly interesting and the Equality Officer has gone to the trouble of outlining the law on pregnancy discrimination even where, as here, the pregnant complainant was to be brought in to cover for a pregnant employee about to go on maternity leave.
http://bit.ly/dEej9G

Another case of interest is the 14th non-upheld case, which involved a compromise agreement that did not expressly mention the Equality Acts:
http://bit.ly/e376Lu


EMPLOYMENT EQUALITY DECISIONS UPHELD OR PART-UPHELD:


1. DEC-E2011-016

Grounds / Issues: Race- discriminatory treatment - conditions of employment -harassment - prima facie case

The complainant, who is a black Zimbabwean national, was employed by the respondent as a Security Operative between December, 2002 and June, 2007. He complained of racial harassment over the period. He said that only once did he work with a white employee. He added that this employee handed him his mobile phone and showed him the contents of a text he had received . The complainant stated that this text was from Mr. R (he recognised his number) and added that the text read "Remember you are working with a black guy, you will have to watch him". The complainant stated that the long working hour regimes were exclusively assigned to the black Zimbabwean employees. The respondent failed to attend.

The Equality Officer awarded €25,000 by way of compensation for the distress suffered by him as a result of this discrimination and harassment.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-016-Full-Case-Report.html

2. DEC-E2011-025

Grounds / Issues: Race, Harassment, Section 14A (2) Defence, Access to Promotion.

This is an interesting case, involving a sales representative of South African origin, racial harassment, including an offensive racist joke and denial of promotion. In relation to the promotion aspect, at the hearing, the EO asked for the profile of nationalities of field sales representative and of those promoted to Team Coach/Team Leader/Regional Sales Manager. 85% to 90% of approximately 300 Field Sales Representatives were foreign nationals. There were 19 promotions to team leader since 2007, 16 of these were Irish, 1 was South African (white), 1 was Australian and 1 was British. It is significant that even though foreign nationals make up 85% to 90% of field sales representatives, only 16% of non-Irish nationals are promoted above this level. Regarding length of service before being promoted, the shortest length of service was 7.23 months and the longest was 54.6 months. The complainant was working there 48 months before he went on sick leave.

The Equality Officer awarded:

a. €5,000 for the effects of harassment
b. €10,000 for the effects of discrimination regarding access to promotion
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-025-Full-Case-Report.html

3. DEC-E2011-027

Grounds / Issues: Discriminatory treatment - gender - pregnancy - access to employment - prima facie case of discrimination - failure by respondent to rebut the inference of discrimination

The complainant's case was that she attended for interview with the respondent on 4th February, 2008 for the position of Financial Accountant. The interview had been arranged through a recruitment agency and at 4:00 p.m. that evening the complainant was offered (through the recruitment agency) a ten month contract in the position subject to a medical and references with a specific salary. Following further negotiations through the agency at 5:10 p.m. a further offer was made by the respondent on the same terms with an increase in salary and with an additional finishing bonus for completion of the contract.

The complainant contacted Mr. A, Financial Controller, of the respondent the following morning i.e. 5th February, 2008 to inform him that she was accepting the revised offer. During the course of this telephone conversation the complainant informed the Financial Controller that she was pregnant and she requested that he would not communicate the fact of her pregnancy to any third party. The complainant stated that the Financial Controller, Mr. A, contacted her later that day and withdrew the job offer and, moreover in breach of assurances regarding confidentiality, the respondent communicated the fact of her pregnancy to the recruitment agency.

The respondent submitted that it had a requirement to recruit a Financial Accountant on a ten month fixed contract to cover the existing holder of that position who was due to commence a period of maternity leave in February, 2008.

The Equality Officer made the following observations:

The respondent submitted that the decision to withdraw the job offer to the complainant was not in any way influenced by financial considerations but rather it was taken because of the operational requirements of the business and the upheaval that would have arisen if the complainant were to be absent for a significant period of time during ten month fixed contract. This scenario was found to be discriminatory by the ECJ in the case of Webb -v- Emo Air Cargo where it was held (at paragraph 26) that "the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive. Also, in the case of Tele Danmark A/S -v- Handels the ECJ (in reference to the foregoing) held that "Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term".

The Equality Officer awarded the maximum award allowable, €12,697.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-027-Full-Case-Report.html

4. DEC-E2011-030

Grounds / Issues: Access to Employment - Section 6(2)(a) - Gender - Section 6(2)(f) - Age - Jurisdictional Issue

The respondent raised an issue of jurisdiction in relation to time limits regarding the scope of the alleged claim of discriminatory treatment which was referred to the Tribunal by the complainant in the present case. The parties were allowed to make oral submissions at the oral hearing and were also afforded the opportunity to make further written submissions post hearing regarding this issue.

The equality Officer was satisfied that the complaint which was referred to the Tribunal by the complainant sets out the general nature of the claim of discriminatory treatment in terms of access to employment. Accordingly, the EO found that this complaint was referred to the Tribunal within the six month time limit referred to in the Acts and the tribunal has jurisdiction to hear the complaints.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-029-Full-Case-Report1.html


EMPLOYMENT EQUALITY DECISIONS NOT UPHELD:


1. DEC-E2011-017

Grounds / Issues: Race - Conditions of employment, discriminatory dismissal - dissolved company

The Equality Officer does not have jurisdiction to carry out an investigation into a complaint against a dissolved company.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-017-Full-Case-Report.html


2. DEC-E2011-018

Grounds / Issues: Race - Conditions of employment and discriminatory dismissal.

Valerijs Haritonovs contended he suffered discriminatory dismissal because the respondent had no work for him when he was fit to return to work after a period of illness. Aleksandrs Cakss, Renars Aleksejevs and Pavels Pleckans contended that they were dismissed for no good reason when other employees were kept on. At the hearing they gave evidence that those kept on were longer term employees. This evidence, plus the information in the respondent's letter that the company lost a number of contracts and they had no new contracts, lead the EO to conclude that the four complainants were let go because of a downturn in work and they adduced no evidence that this was done in a discriminatory manner based on their race.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-018-Full-Case-Report.html


3. DEC-E2011-019

Grounds / Issues: Gender -discriminatory treatment - promotion - prima facie case

Although the complainant was unable to establish a prima facie case of discrimination and the complaints failed, this was quite an interesting case where the complainant contended that the members of the Interview Panel did not possess the necessary qualifications/experience to interview him. He stated that their lack of knowledge resulted in them being unable to fully understand the responses he made during the interview and this lack of understanding was reflected in the marks he received in each of the three main competencies under which candidates were assessed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-019-Full-Case-Report.html


4. DEC-E2011-020

Grounds / Issues: Gender, Marital Status, Family Status, Religion, Access to Employment, Training, No prima facie case

Another recruitment/promotion case, the EO did not find convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified as the candidate that obtained the position. The complainant was therefore 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-E2011-020-Full-Case-Report.html

5. DEC-E2011-021

Grounds / Issues: Access to employment - Age - 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-E2011-021-Full-Case-Report.html


6. DEC-E2011-022 

Grounds / Issues: Race- employment status - conditions of employment - prima facie case - discriminatory dismissal - burden of proof- victimisation.

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-E2011-022-Full-Case-Report.html


7. DEC-E2011-023 

Grounds / Issues: Race- employment status - conditions of employment - prima facie case - discriminatory dismissal - burden of proof.

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-E2011-023-Full-Case-Report.html


8. DEC-E2011-024

Grounds / Issues: Section 6(1) - less favourable treatment, Section 6(2)(a) and (g) - gender & disability, Section 8 - discrimination in relation to conditions of employment and dismissal.

The complainant was a trainee wig fitter, mainly for people undergoing cancer treatment or who had alopecia. She argued she'd been let go due to pregnancy-related issues. The EO preferred the evidence of the employer, who argued that the complainant did 72 fittings, 20 resulted in no sale. On average the salon normally had a conversion rate from consultation to sales of 95%. She said that out of the 52 sales made by the complainant, she had 14 complaints about the sales ranging from badly cut wigs to ill fitting wigs.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-024-Full-Case-Report.html


9. DEC-E2011-026 

Grounds / Issues: Conditions of employment and dismissal from job without proper procedure.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-026-Full-Case-Report.html


10. DEC-E2011-028

Grounds / Issues: Race - 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-E2011-028-Full-Case-Report.html


11. DEC-E2011-029

Grounds / Issues: Gender and Race - Training, 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-E2011-029-Full-Case-Report.html


12. DEC-E2011-031

Grounds / Issues: Ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, conditions of employment, pay, discriminatory dismissal and in relation to a collective agreement.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-031-FUll-Case-Report.html


13. DEC-E2011-032

Grounds / Issues: Discriminatory Dismissal - Conditions of Employment - Race - Failure to attend - Unreasonable in the circumstances

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-032-Full-Case-Report.html


14. DEC-E2011-033

Grounds / Issues: Section 6(2)(g) - disability, Section 8- conditions of employment, Section 8(6)-discriminatory dismissal, status of voluntary severance package- is the complaint compromised?

The EO found that the complainant entered into the agreement following a recommendation to dismiss him after a disciplinary hearing and a finding of gross misconduct. The complainant did not avail of his right to appeal, but through his union representative entered into a course of negotiations with the company which lasted about 2 months and concluded with the signing of the severance agreement in or about a month later on the 27th of July 2004.

She was satisfied from the evidence outlining the sequence of events between the initiation of the talks in relation to the severance package and the signing of the agreement that the respondent put no pressure on the complainant to accept the package.

In applying the jurisprudence to the case in hand, the EO was satisfied that the complainant had the advice of his union representative during the course of the negotiations with the respondent. In his evidence he accepted that his union explained the Agreement to him. While the agreement does not explicitly cite the Employment Equality Acts it does provide that the severance package was in was in full and final settlement of all matters in relation to the employment and, consequently, the severance package as signed by the parties compromises any claim the complainant has under the Employment Equality Acts and precludes the Equality Officer from hearing the case.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-033-Full-Case-Report.html


15. DEC-E2011-034

Grounds / Issues: Victimisatory Dismissal, Time limits

The complaint was lodged out of time and the EO had no jurisdiction to hear the case.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-034-Full-Case-Report.html