This article looks at three recent employment equality cases concerning alleged victimisation of employees by employers in response to complaints of discrimination, where the initial decision of the Equality Tribunal was appealed to the Labour Court.


1. Introduction

Protection for employees from victimisation or penalisation by employers for exercising rights under employment legislation is somewhat uneven in Ireland. Some of the more recent pieces of legislation - for example the working time, part time work and fixed term work Acts - all provide for specific protection against penalisation. The Safety, Health and Welfare at Work Act 2005 similarly prohibits the penalisation of an employee who has raised a health and safety concern at work. Penalisation is generally defined to include any adverse treatment of the employee by the employer in relation to his or her conditions of employment up to and including dismissal.

However, some older statutes do not provide any such protection. For example, where an employee makes a complaint under the payment of wages or the terms of employment legislation of 1991 and 1994 respectively and suffers unfair treatment as a result, there is no specific mechanism for obtaining redress. Should the employee be subsequently dismissed and not have the requisite one year’s continuous service to bring an unfair dismissal claim, there would appear to be no legally enforceable remedy available outside the courts.

As a result, it is worth noting that Section 51 of the proposed Employment Rights Compliance Bill 2008 (still mired in the legislative process almost three years after its publication) intends to provide that any penalisation as a response to the exercise of rights under a wide array of employment legislation will be an offence and will also allow the employee affected to make a complaint to Rights Commissioner without requiring one year’s service.

In connection with employment equality claims, the picture as regards victimisation /penalisation is clearer. Article 11 of Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation, requires Member States to introduce ‘measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment’.

Thus, Section 77 of the Employment Equality Act 1998 – 2004 allows a person who claims to have been penalised in circumstances amounting to victimisation to make a complaint to the Equality Tribunal. Section 74 (2) provides that victimisation occurs where dismissal or other adverse treatment occurs as a reaction to, for example, legal proceedings being brought by a complainant or where a complaint of discrimination is made within the workplace or where one employee supports another employee who has made a complaint of discrimination. Redress of up to two years' compensation may be awarded for the effects of such victimisation.


2. Department of Defence and Barrett (ADE/09/39, Determination No EDA1017, 30th September, 2010)

In this case, the complainant argued that he had been subjected to adverse treatment in the form of being denied meaningful work and being subject to an unfair disciplinary process, as a direct result of complaints he had made that he had suffered discrimination on the ground of religion at work. The Director of the Equality Tribunal had originally dismissed his complaint of discrimination on grounds of religion as misconceived in law pursuant to her powers under S.77A of the Act but had directed that his complaint of victimisation should proceed to a full investigation. The Equality Tribunal subsequently upheld his victimisation complaint and awarded him €40,000 in compensation. The respondent appealed this decision to the Labour Court and the complainant also appealed on the basis that the level of compensation he was awarded was inadequate.

The Court summarised the three key ingredients that must exist for a complaint of victimisation to be sustained:

* First, the complainant must have taken an action that is ‘protected’ under the legislation, such as a complaint of discrimination, legal proceedings related to discrimination or supporting another employee who has alleged discrimination.
* Second, the complainant must be subjected to adverse treatment and
* Thirdly, that adverse treatment must be a reaction to the protected act having been taken.

Subjecting the facts of this case to these criteria, the Court first examined what protected act the complainant had originally taken. It noted that when asked to provide detail of the alleged discrimination against him on grounds of religion, he stated that he had objected to the saying of mass on the Department’s premises and to the making of a presentation to an Army Chaplin on the occasion of his appointment as a bishop. These objections stemmed from the complainant’s ‘humanist’ belief system and his view that the respondent was endowing a particular religion contrary to the Constitution.

The Court noted that the definition of discrimination under the legislation involved one person being treated less favourably that another is, has been or would be treated on one of the prohibited grounds. Although it was well settled law that protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld, the catalyst alleged for adverse treatment must at least come within the ambit of a protected act.

Ultimately, the Court concluded that the conduct the complainant of that had triggered his complaint of discrimination – the saying of mass and the presentation to the Army Chaplin – could not be considered to have treated him less favourably on grounds of religion, as he was not expected to have any involvement in these occasions. In summary therefore, the complaint fell at the first hurdle. His complaints did not, in the Court’s view, amount to a protected act and therefore it was not necessary to go on to consider whether he was subsequently subjected to adverse treatment as a result.


2. McNally and Ratkevicius (ADE/10/13, Determination No EDA1013, 16th September 2010)

In this case, the complainant appealed against a finding by the Equality Tribunal that he had not been victimised by his employer following the making of a complaint of discrimination on grounds of race. The respondent employer, although properly informed of the time, date and place of the hearing of the appeal, failed to attend or be represented.

The Court heard that the original complaint related to less favourable treatment in respect of the complainant’s conditions of employment and the manner in which the respondent treated his tax affairs. His solicitor filed a complaint form with the Equality Tribunal on May 25th, a copy of which was sent to the respondent. On May 29th, the complainant received a text message from his employer that appeared to refer to his complaints and which threatened to report him to the Gardai for alleged drug dealing and to sue him for the alleged damage done to a van belonging to the respondent. The complainant argued that this text, which was verified by his solicitor, was sent as a direct response to the proceedings he had brought.

Given its timing, the Court accepted as a matter of probability that the text was sent by the respondent after he received notice of the proceedings. It was also satisfied that the making of the threats contained within it amounted to adverse treatment of the complainant as a reaction to the initiation of the proceedings, as the content of the message was ‘strongly suggestive’ of a connection between the two. The Court was therefore satisfied that the complainant had suffered victimisation within the meaning of the legislation and he was awarded €5,000 to compensate for the effects of such discrimination.


3. Public Appointments Service and Roddy (ADE/10/25, Determination No EDA1019, 15th October 2010)

In this rather unusual case, the complainant alleged that he was victimised by the Public Appointments Service when he applied for a position as Senior Executive Planner with Donegal County Council. The Equality Tribunal ruled that he had failed to make out a prima facie case of victimisation and dismissed his complaint. He appealed that decision to the Labour Court.

The Court heard that the complainant had been unsuccessful in being shortlisted to attend an interview for the post in question, as a result of which he submitted a series of questions under the freedom of information legislation to the respondent concerning, amongst other matters, the composition of the selection board. One of the names he was provided with caused him serious concern and he further wrote to the respondent looking for information on the contacts made between it and Donegal County Council concerning the criteria for selection for the post.

On receipt of this information he again wrote to the respondent, this time to inform them of the presence on the Selection Board of a person (Ms A) with whom he had issues in the past that might amount to a conflict of interest for that member, the person nominated to the Board by Donegal County Council.

This potential conflict of interest was said to have arisen from having previously worked with her and a case that he had taken on matters of equality and fair treatment to the Equality Commission in Northern Ireland, which he had subsequently withdrawn for financial reasons. He also indicated that he had had difficulties with the Council itself in the past concerning staffing levels.

In summary, he submitted that he had been victimised by the respondent in that it included in the Selection Board a person against whom he had made a complaint to the Equality Commission in the past. He suggested that her presence on the Board favoured candidate’s already in employment with the Council and that his application had been disadvantaged by the lack of transparency in the process, which had resulted in him not being shortlisted when his qualifications, experience and skills merited it.

The respondent in reply submitted that it was normal practice for the client body to nominate a member to the Selection Board and that it always cautioned such members to advise the Service at an early stage of any potential conflict of interest. None had been advised in this case.

In summary, it submitted that there was no employer/employee relationship between the respondent and the complainant and that no adverse treatment to ground a claim of victimisation existed as it was not even aware of the possibility of a conflict of interest.

The Court noted that it was being asked to accept that the initiation of proceedings of a complaint of discrimination in the past against a distinctly separate employer in another jurisdiction could constitute a ‘protected act’ and be combined with his alleged adverse treatment by the respondent. It held that there was no ‘causal connection’ between the two and therefore this complaint could not come within the scope of victimisation intended by the legislation and was not sustainable in law.

In an interesting postscript, the Court said that although the complaint failed, it accepted that the presence of Ms A on the Selection Board constituted a conflict of interest. Although it accepted that the respondent had procedures in place to safeguard against this, it remarked that they were not effective in this case and suggested that these procedures be reviewed to prevent a reoccurrence in the future.