The Equality Tribunal recently published 27 decisions under the Employment Equality Acts, 5 of which were successful in whole or in part. The largest award was €100,000 in a pregnancy discrimination case that involved victimisation and the final award below was issued with an option for the respondent to pay in interest-free instalments.

This article contains summaries of the successful claims. Those not upheld will be issued in a separately.


EMPLOYMENT EQUALITY DECISIONS UPHELD OR PART-UPHELD:


DEC-E2010-114 An Employee -v- An Employer.

Grounds Issues: Discriminatory Treatment, Access to Employment, Marital Status, Family Status, Race.
Award: €6,000 for Discrimination.

The complainant submitted that she was discriminated against when she was unable to take up a position of Programme Manager she had been offered by Trinity College Dublin due to the College's 50km residency rule.

The respondent's 50km residency rule states that "Every full time member of the administrative staff shall reside at a distance of not more than 50 kilometres from the College. Dispensation from this requirement may be given by the Board, and shall normally be valid for not more than one year after appointment and shall be renewed without a fresh examination of all relevant circumstances. After the first year, or at the end of any period of dispensation, failure to take up residence, as defined above, will be deemed to be inconsistent with tenure of a full time post". In direct evidence it was presented to the Tribunal that the rule was originally introduced to ensure timely attendance at work in relation to employees, some of whom were living in the UK and were commuting backwards and forwards.

What appears obvious from the evidence presented in this case is that the complainant sought to accommodate her family circumstances into her working life. The complainant appears to have offered to comply with the 50km rule within two years of taking up the post, as her children were tied into an educational cycle which would have made it difficult to comply with the rule prior to that. In the meantime, the complainant was planning to have a full-time residence within 50km and to use it for the majority of the time - five days a week. The respondent stated to her that this arrangement would not satisfy the 50km rule.

The Equality Officer noted that residence is not defined in the rule or the available documentation. He also noted that the issue of dispensation from the rule is not clearly defined. At the hearing, it became obvious that there are no procedures governing the rule or its operation, and the respondent was unable to state whether any or all staff were in compliance with the rule. In response to the Tribunal's direct questions, the respondent was unable to say when the rule was previously invoked, if at all. As there is was evidence of the rule having been applied previously, it appears to have been invoked only in relation to the complainant after she raised the issue of commuting to her family who would have been resident in Wales. The complainant was awarded €6,000 in compensation for the discriminatory treatment suffered
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2411


DEC-E2010 -120 An Employee -v- An Employer.

Grounds/Issue: Discriminatory treatment, Age, Gender, Conditions of Employment
Award: €25,000 for Discrimination

The complainant was employed by the respondent as a Multi-Task Attendant from December, 1980 until the date of her retirement upon reaching the age of 65 years on 24th June, 2007. On 13th March, 2007 the complainant applied to the respondent for an extension to her employment beyond the retirement age of 65 years. However, she stated that this application was refused by the respondent on the basis that the terms of her contract of employment stated that she would have to retire upon reaching the age of 65 years. The complainant claimed that she was subjected to discrimination on the grounds of age in terms of the respondent's refusal to grant her application for an extension to her employment beyond the retirement age of 65 years, in circumstances, where two male members of staff, who were also employed at her place of employment, were granted such an extension to remain in employment. The complainant also complained of gender discrimination in and used the males as comparators.

The respondent confirmed that it employed the complainant as a Multi-Task Attendant from 10th December, 1980 until the date of her retirement on 24th June, 2007. The respondent accepted that the complainant applied for an extension to remain in employment beyond her retirement age of 65 years; however, she was informed by her Line Manager (following consultations with the Human Resources Department) that this request was being refused on the basis that her contract of employment contained a term that she would be required to retire upon reaching the age of 65 years. The respondent stated that extensions to employment beyond the retirement age of 65 years are only granted in exceptional circumstances, such as where there are difficulties in the recruitment/replacement of staff.

The complainant failed on the age ground but succeeded on the gender ground.

The Equality Officer found the males to be appropriate comparators for a gender discrimination claim: he was satisfied that the complainant and both males were in a comparable situation in terms of the circumstances surrounding their requests for an extension to their respective periods of employment beyond the age of 65 years. Accordingly, he did not accept the respondent's argument that the comparator in the present case must be confined to workers within the complainant's own grade within the organisation.

The Equality Officer was of the view that the respondent had failed to demonstrate that there were exceptional circumstances (as defined within its own policy on the granting of extensions) which required the retention of both Mr. A or Mr. B in employment beyond their retirement age of 65 years and awarded €25k in compensation.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2378


DEC-E2010-126 An Employee -v- An Employer

Grounds/Issue: Discriminatory Treatment, Victimisation.
Award: €50,000 for Discrimination and €50,000 for victimisation.

The case concerned a claim by Ms Denise Batt that Palmece Ltd t/a Comfort Inn discriminated against her on the grounds of gender and family status contrary to Sections 6(2)(a) and (c) of the Employment Equality Acts 1998 to 2008, in terms of treating her less favourably, and dismissing her through discriminatory selection for redundancy, because she was pregnant.

The complainant submitted that she was employed by the respondent as a General Manager, starting on a three-month contract in November 2003, and was made a permanent staff member in February 2004. The complainant then enjoyed a period of pay rises and bonuses due to her performance in her role. In January 2006, the complainant advised the respondent that she was pregnant, and of the expected confinement date. The complainant submitted that shortly afterwards she received a letter from the respondent in which perceived flaws in her work were pointed out to her, something that had never happened before.

The complainant went on maternity leave in June 2006. In October 2006, she made a request to return to work on a four-day week, which was refused. She alleged that she was not allowed or encouraged to apply for a promotional position despite her length of service. Likewise, the complainant submitted that when she expressed interest for a position of manager at the Airport Hotel, she was not interviewed for same, but simply informed that the position had gone to a better candidate. She was refused information on the interview criteria and marking scheme when she requested same from the respondent. The complainant was in the advanced stages of another pregnancy at that time and submitted that this would have been clear to management.

The complainant further submitted that when the undertaking was transferred to new ownership, she was pressurised into accepting redundancy, regardless of the fact that her position was not redundant. She further alleged that a male colleague who was made redundant on the same day as herself received a much superior redundancy package. She claimed that this amounted to discrimination on the ground of gender.

The respondent submitted that, due to the fact that the complainant had complained about her selection for redundancy to the Employment Appeals Tribunal under the Unfair Dismissals Acts, she was precluded from having the matter investigated again by the Equality Tribunal pursuant to the provisions of S.101 of the Acts.

This argument received short shrift from the Equality Officer, who found that the respondent had discriminated against the complainant in relation to promotion and other matters. The reasons behind the €50k award for victimisation were interesting:

" The complainant's potential victimisation relates to the manner in which her redundancy was effected. The complainant herself did not bring this complaint to the Tribunal, however, in the course of her evidence, I formed the opinion that it fell to be investigated and proceeded to do so based on the decision of Johnson J in Siobhan Long v. The Labour Court, Mairead Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth, 1990 No 58 Judicial Review , 25 May 1990. In accordance with the principles of fair procedures and natural and constitutional justice, and following the Supreme Court in The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987 ILRM 36], I informed the respondent of this and invited their observations on the matter. The respondent did not avail of this opportunity."

A total of €100,000 was awarded in this case.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2384


DEC-E2010-130 An Employee -v- An Employer

Grounds / Issues: Disability, Discriminatory Treatment, Access to Employment, Reasonable Accommodation
Award: €5,000 for Discrimination.

The complainant, who is deaf, stated that he applied for the position of Book-keeper with the respondent in early March, 2007 which was advertised by FÁS. He added that he subsequently received an e-mail from the respondent asking him to get in contact to arrange an interview. He stated that the interview was arranged for Monday 5 March, 2007 but when the respondent became aware he was deaf it withdrew the interview offer. He submitted that this alleged treatment constituted unlawful discrimination of him on the ground of disability contrary to the Acts. The complainant further submitted that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts.

The respondent denied the allegations and withdrawing the offer of an interview. He said he had told the complainant's friend, who had phoned about an interpreter for the interview, that there would be a lot of telephone work involved and when the complainant did not attend for interview on 5 March 2007 he presumed that the complainant, having heard the amount of telephone work involved, had simply decided the job did not suit and did not pursue his application.

The Equality Officer preferred the evidence presented by the complainant and found that the respondent discriminated against the complainant on the ground of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts in respect of the interview process for the position of Book-keeping Assistant in February/March, 2007
(ii) the respondent did not comply with the positive duty imposed on it under section 16(3)(b) of the Employment Equality Acts, 1998-2007 and he awarded €5,000 in compensation.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2388

DEC-E2010-138 An Employee -v- An Employer.

Grounds / Issues: Gender, Discrimination.
Award: €10,000 for Discrimination

The case concerns a claim by Ms Inita Senhofa that Justyne Flowers Ltd discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, while she was pregnant.

The complainant submitted that she commenced employment with the respondent on 25 October 2006. On 28 February 2007, she advised the respondent that she was pregnant, and requested leave for 3 March 2007 to attend an antenatal appointment. According to the complainant, the respondent refused to believe that she was pregnant and refused the leave requested for the appointment.

The complainant had previously obtained a few days leave from the respondent to fly to Cyprus on 10 March 2007, to attend to a personal matter. On her return to Ireland on 13 March 2007, the complainant phoned the respondent from the airport to enquire after details of her roster. According to the complainant, the respondent told her that they had a business to run and that there was no longer a job for the complainant with Justyne Flowers.

According to the respondent, the complainant had had previous absences from work for a variety of reasons at peak times for the business, such as Christmas and Valentine's Day. The respondent accepted that the complainant advised it of her pregnancy, but claims that she failed to provide evidence from a medical practitioner.

The Equality Officer was satisfied that the respondent knew that the complainant was pregnant at the material time. The respondent sought to argue that it was only Mr G. who was aware that the complainant was pregnant, and that it was Mrs G., his wife, who effected the dismissal. It was further submitted that the G.'s were experiencing marital difficulties at the material time, and that therefore the fact of the complainant's pregnancy was not communicated by Mr G. to his wife. The Equality Officer did not accept this argument:

"Communication difficulties between an immediate supervisor and an HR department, as was the case in McGloin, or between a married couple, as in the case on hand, cannot avail a respondent as a defence to show that the individual who actually effected the dismissal did not discriminate against a pregnant complainant."

Interestingly, in awarding €10,000 in compensation, the Equality Officer gave the respondent the option of paying in four quarterly instalments of €2,500, without interest accruing, if the respondent so wished.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2396