We recently sent a review of 'successful' decisions (from a complainant's perspective) regarding complaints before the Equality Tribunal.

Below are summaries of those 21 cases that were 'successful' from a respondent's point of view i.e. they we not upheld by the Equality Officer. Most are the usual complaints, rejected for the usual reasons of failure to attend or failure to establish a prima facie case. However, some are of rich interest. For example:

* in case number 7, the arguments revolved around the relative ages of trainee accountants;
* case number 8 has examples of a robust defence by the employer which provided much evidence to refute the allegations of race discrimination. Other employers should take note;
* cases 19 and 20 related to a 70 year old employee denied a redundancy payment when his employer became insolvent, who argued that the Irish Equality Acts were not compliant with the EU Framework Directive and then claimed he was an employee of DETI; and
* Case 21 includes opinion from Senior Counsel that the Equality Tribunal has no jurisdiction to investigate claims against dissolved companies.

Please note that the Equality Tribunal has changed the URL references for individual decisions and that previously sent links may not work. The ones below are the latest for the decisions reviewed here but, should you have difficulty linking to specific cases via previous Legal-Island emails, you should find all of the full decisions from 1996 here:
http://www.equalitytribunal.ie/Database-of-Decisions/


EMPLOYMENT EQUALITY DECISIONS NOT UPHELD:


1. DEC-E2010-238: An Employee -v- An Employer

Grounds / Issues: Race, Discriminatory Treatment, Conditions of Employment, Dismissal, Non Attendance at Hearing.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-238-Full-Case-Report.html


2. DEC-E2010-239 An Employee -v- An Employer

Grounds / Issues: Discriminatory Dismissal, Discriminatory Treatment, Race.

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-239-Full-Case-Report.html


3. DEC-E2010-240: An Employee -v- An Employer

Grounds / Issues: Race, Conditions of Employment, Training.

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-240-Full-Case-Report.html


4. DEC-E2010-241: 3 Employees -v- An Employer

Grounds / Issues: Race, Conditions of Employment, Victimisatory Dismissal.

The complainants were unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-241-Full-Case-Report.html


5. DEC-E2010-242: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Race, Conditions of Employment, Training, Discriminatory Dismissal.

The complainant failed to adduce any evidence that his dismissal was in any way connected to his race and his claim on this ground therefore failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-242-Full-Case-Report.html


6. DEC-E2010-243: Ms B -v- A Manufacturing Company

Grounds / Issues: Disability, Access to Employment, Promotion, Training, Conditions of Employment, Discriminatory Dismissal, Failure to provide reasonable accommodation.

The complaint was out of time and the EO did not have jurisdiction to investigate it further.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-243-Full-Case-Report.html


7. DEC-E2010-244: An Employee -v- An Employer. Grounds / Issues: Less Favourable Treatment, Race, Age, Training, Dismissal.

The claimant was a graduate trainee fund accountant, who was dismissed, the respondent argued, because he failed to meet the mark during his probationary period. The complainant said he was subject to a bad performance review and he believed this was due to his nationality and race. In addition, at 33, he was the oldest of the team recruited at that time and argued dismissal on the age ground.

The respondent provided evidence of poor performance and evidence to contradict the age argument. The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-244-Full-Case-Report.html


8. DEC-E2010-245: 2 Employees -v- An Employer

Grounds / Issues: Discriminatory Treatment, Race, Conditions of Employment, Health and Safety, Training.

This case was interesting in that the respondent provided a strong case to dispute allegations of unfair treatment and that the claimants had a poor grasp of English. The respondent submitted that it is an equal opportunity employer and has a strong and consistent policy of supporting and integrating employees from other countries. It presented evidence to demonstrate that it had translated much of its documentation into other languages and it claimed that it has always been able to call on fellow workers to assist if there was a problem with an employee not understanding something due to linguistic issues. The Human Resources Manager, claimed that she met with both complainants and interviewed them for the jobs. She claimed that they both had "an excellent level of English", and they had no difficulty in communicating with her. She claimed that she presented them with their contracts of employment where both were asked to read the contracts and confirm they understood them, which they both did before signing them. She claimed that no issue was raised by either to suggest they had a difficulty in understanding the contract and neither asked for an interpreter to be provided.

The complainants were unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-245-Full-Case-Report.html


9. DEC-E2010-246: An Employee -v- An Employer

Grounds / Issues: Race, Conditions of Employment, Training, Discriminatory Dismissal, Harassment.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-246-Full-Case-Report.html


10. DEC-E2010-247: An Employee -v- An Employer

Grounds / Issues: Training, Conditions of Employment, Race.

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-247-Full-Case-Report.html


11. DEC-E2010-248: An Employee -v- An Employer

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/2010/Employment-Equality-Decisions/DEC-E2010-248-Full-Case-Report.html


12. DEC-E2010- 249: An Employee -v- An Employer

Grounds / Issues: Race, Conditions of Employment, Discriminatory Dismissal.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-249-Full-Case-Report.html


13. DEC-E2010- 251: 3 Employees -v- An Employer (in liquidation)

Grounds / Issues: Discriminatory Treatment, Discriminatory Dismissal, Harassment, Race.

The complainants were unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-251-Full-Case-Report.html


14. DEC-E2010- 252: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Discriminatory Dismissal, Race.

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-252-Full-Case-Report.html

15. DEC-E2010- 253: Mr A -v- An Advertising Company

Grounds / Issues: Discrimination, Disability, Discriminating Dismissal.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-253-Full-Case-Report.html

16. DEC-E2010-254: An Employee -v- An Employer. Grounds / Issues: Discrimination.

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-254-Full-Case-Report.html


17. DEC-E2010-255: 3 Employees -v- An Employer

Grounds / Issues: Age, Race, Access to Employment, Harassment.

The complainants did not attend and the EO found against them.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-255-Full-Case-Report.html


18. DEC-E2010-256: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-256-Full-Case-Report.html


19. DEC-E2010- 258: An Employee -v- An Employer (in Liquidation)

Grounds / Issues: Discriminatory Treatment, Age, Conditions of Employment, Payments of Statutory Redundancy Entitlements.

This case involved a 70 year old employee who was made redundant when his employer went into liquidation. None of the employees received a redundancy payment from the insolvent employer, regardless of age. However, unlike some employees, the complainant did not receive payment from the Social Insurance Fund because he was over 66 at the time of making the claim.

The complainant referred to section 17(4) of the Employment Equality Acts which provides that "in relation to discrimination on the age ground, nothing in this Act shall render unlawful any act done in compliance with - (c) section 3 of the Redundancy Payments Act, 1971, as amended by section 5 of the Redundancy Payments Act, 1979" . He submitted that this provision of the Employment Equality Acts does not comply with Framework Employment Equality Directive 2000/78/EEC as it discriminates against him on the ground of age. The complainant submitted that only for the existence of section 17(4) of the Acts that he would have received protection against discrimination on the ground of age under the Employment Equality Acts in terms of his entitlement to a statutory redundancy payment.

However, the Equality Officer concluded " it was the Department of Enterprise, Trade & Innovation, and not the respondent, that took the decision to refuse the complainant's application for payment of a statutory redundancy lump sum from the Social Insurance Fund. Having regard to the foregoing, I am satisfied that the provisions of section 17(4) of the Employment Equality Acts are not relevant to the circumstances of the present case. Accordingly, I am not obliged to address the issue as to whether or not the provisions of section 17(4) of the Employment Equality Acts is/was in compliance with EU equality legislation in the circumstances of the present case."
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-258-Full-Case-Report.html


20. DEC-E2010-259: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Age, Conditions of Employment.

The complainant in the above case was not about to leave the matter there and took a second claim against DETI, arguing that it had discriminated against him by refusing to issue the redundancy payment. Notwithstanding that "it was not in dispute that the complainant was employed by Safecare Technology Limited from February, 2000 until September, 2005 when he was made redundant from his position after the company was placed into voluntary liquidation", the Director of the Equality Tribunal does not have jurisdiction to investigate a complaint of discriminatory treatment unless the complainant is an "employee" as defined at section 2 of the Employment Equality Acts, 1998 to 2008.

The argument by the complainant was that the DETI effectively became the employer in carrying out its functions of issuing payments to redundant employees in circumstances where employers were insolvent. This was rejected by the EO and the claim failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-259-Full-Case-Report.html


21. DEC-E2010-260: An Employee -v- An Employer

Grounds / Issues: Race, Conditions of Employment.

The respondent company in this case had been dissolved.

Shortly before the hearing the Equality Tribunal obtained legal opinion of Senior Counsel in relation to investigations of dissolved companies. The legal opinion concluded:
"I see no basis on which the Tribunal could continue to hear a case against a dissolved company in the absence of an express statutory power to do so. I gave consideration to the possibility that the courts might give a purposive interpretation to the word "person" under section 5 of the Interpretation Act 2005 so as to include a dissolved company, but I feel compelled to reject it. Given the express effect of the State Property Act 1954 and the fact that there are other express statutory provisions which give the dissolved company a legal existence for certain limited purposes, I fell that one is obliged to hold that the Tribunal simply has no jurisdiction in such circumstances."

The EO accepted the advice and concluded he did not have jurisdiction to investigate the case.
http://www.equalitytribunal.ie/Database-of-Decisions/2010/Employment-Equality-Decisions/DEC-E2010-260-Full-Case-Report.html