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. We recently sent a review of the successful claims. Below you will find summaries of the unsuccessful claims.

The Equality Tribunal places a great emphasis on the need to produce corroborative evidence of discrimination or, in the case of disability, evidence that the employee is disabled within the statutory definition. Of particular interest in this regard is case number 17 below. It involved an employee who had worked for the respondent's building firm for some 30 years and who was profoundly deaf. He refused to work on roofs after a fall, having produced a GP's certificate claiming he had 'psychological scarring'. The GP did not attend the hearing and the employee could not vouch for the GP's mental health knowledge and the Equality Officer had no evidence that "psychological scarring" is a disability as defined under the Acts.

EMPLOYMENT EQUALITY DECISIONS NOT UPHELD:

1. DEC-E2010-121 An Employee -v- An Employer

Grounds/Issue: Discrimination, Age, Promotion/Re-Grading

The complainant started work for the respondent in November 2005 as a Relief Driver. Among his duties he covered for the Van Sales Drivers when they were absent. He submitted that in May 2006 one of five Van Sales Drivers left and he covered for the vacancy for three months. When it was advertised he applied for the position but was turned down without an interview. When the new driver started the complainant trained him. The new driver was fifteen years younger than the complainant. In March 2007 another Van Sales Driver left and he applied for the position but was told that he was employed as a Relief Driver and again turned down without interview. Once again he trained in the new driver. The complainant submitted that he was discriminated against because of his age in not being appointed to any of the Van Sales Driver vacancies.

The respondent submitted that the complainant was employed as a Relief Driver on a flat wage and he worked in the factory if there was no driving work. This was very different to being employed as a van sales driver, who were expected to get new customers and increase sales and because of this they were paid commission on top of a flat rate wage.

The Equality Officer preferred the respondent's arguments.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2379

2. DEC-E2010-122 An Employee -v- An Employer

Grounds/Issue: Race , Access to Employment

The solicitor for the complainant stated that the notification of the hearing was received in the office but due to an administrative oversight it was not brought to his attention. He requested an adjournment in the circumstances. This was refused, partly because the complainant had previously been granted to postponements.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2380

3. DEC-E2010-123 An Employer -v- An Employee

Ground/Issue: Race , Access to Employment..

As above.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2381

4. DEC-E2010-124 Yahayo Ologele -v- Core Personnel Services

Grounds/ Issue: Race, Access to Employment.

As above.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2382

5. DEC-E2010-125 Mr Vyacheslav Gorlatov and Mr Juris Circens -v- Caragh Landscaping Limited

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

Mr. Vyacheslav Gorlatov was employed by the respondent as a labourer/landscaper from March, 2002 until 6th July, 2007. He stated that there were a number of other employees of various nationalities including of Irish origin employed by the respondent doing similar duties to him during his period of employment. He submitted that he did not receive a written contract of employment as provided by section 3 of the Terms of Employment (information) Act. He was not aware if any of the other employees working with the respondent received a written contract of employment. He also claims that he never received any Health and Safety training or documentation in his own language in the 5 years while working with the respondent. He was not aware if any of the other employees received Health and Safety training or documentation in their own language while they were working with the respondent.

He claimed that he had a problem with his back and prior to his dismissal in July 2007, he went to a doctor and was advised to take some time off. He claims that he did not get a medical certificate from the doctor. He claimed that he reported his absence to the respondent indirectly by asking some of his fellow workers that he lived with to relay the message on his behalf. He claimed that when he returned to work a number of days later he was told that he was not needed anymore. He claimed that he was unfairly treated and discriminatorily dismissed without any proper procedures applied because of his race.

The respondent claimed that it is a small landscaping company, which is in existence for approximately 19 years, operating principally in the greater Dublin area. It would normally employ approximately 6 people and seasonally that could rise to about 9 people. It claimed that it has a history of a diverse workforce with Irish, Latvian, Lithuanian, Polish, English, Moldovan and Romanian employees working with it without any problems.

The respondent claimed that Mr. Gorlatov has a history of not complying with its rules, and would fail to report for work from time to time. It specifically referred to two incidents where he broke company rules in relation to drinking alcohol while working on a job in Mayo and failing to return to work after the May bank holiday weekend in 2007. It claims that he was warned that his behaviour was not acceptable and that he would be dismissed if it continued. However, it claims that it persisted with him and gave him a chance. It maintains that in July 2007 he failed to show for work over a number of days, he did not make contact with the respondent and had his phone turned off so they were unable to get in contact with him. Mr. A, who appeared as a witness at the hearing, claims that at the end of that week Mr. Gorlatov appeared at his door demanding his P45 when Mr. A told him that he was dismissed. The respondent claims that the dismissal had nothing to do with his race.

The Equality Officer was satisfied that that the complainants did not adduce evidence from which he could reasonably conclude that they were treated less favourably than the Irish employees in relation to this aspect of their conditions of employment. Therefore, he found that the complainants had failed to establish a prima facie case of discrimination in relation to this element of their complaint. Similar conclusions were made in relation to the other complaints.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2383

6. DEC-E2010-127 Ingita Taraseviciute -v- GMK leisure Management Limited

Grounds/Issue: Race, Employment Status, Discriminatory Treatment, Discriminatory Dismissal

The complainant said she was hospitalised whilst on holiday and was dismissed upon her return, notwithstanding she furnished hospital and medical sick notes. The respondent denied it received these and said that the complainant would not answer her mobile phone whilst absent.

The EO found that the complainant failed to establish a prima facie case of (i) discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in respect of her conditions of employment and (ii) that she was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts and her entire complaint must therefore fail.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2385

7. DEC-E2010-128 A Employee -v- An Employment Agency

Grounds / Issues: Discriminatory Dismissal, Gender.

The complainant submitted that she was discriminatorily dismissed by the respondent because she was pregnant. It was clear from the complainant's own evidence that she had a number of co-workers who were pregnant and continued to work with the agency throughout their pregnancies. The difference in relation to the complainant's pregnancy was that her doctor deemed her work to be detrimental to her health while she was pregnant and the respondent was put on notice of this by the complainant. In such circumstances the respondent could not allow the complainant to carry out such duties.

It was submitted that the complainant ought to have been placed on protective leave. The enforcement of the Maternity Protection Act 1994 is not a matter for the Equality Tribunal. However, the EO noted that the respondent offered to pay the complainant three weeks 'maternity benefit pay'. This offer appeared to be in line with the requirements set out in section 18 of the above Act which states that an employee, in such circumstances where no alternative is available, is entitled to 21 days pay while out on protective leave.

The complainant could not establish a prima facie case of discrimination on the gender ground. Therefore, the case failed.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2386

8. DEC-E2010-129 An Employee -v- An Employer

Ground/Issue: Victimisation

The complainant submitted that ever since she entered into the mediated agreement with the respondent she has been victimised by it in her attempts to obtain suitable employment. Since then the schools that she provided substitution for have stopped calling and a number of unnamed individuals associated with the respondent's schools and colleges have been looking at her, following her and making her feel uncomfortable.

The respondent submitted as a preliminary issue that the complainant's claim was statute barred from March 2007 to September 2007. Furthermore, the respondent submitted that the claims subsequent to the incident in January 2008 were not admissible as they were not included in the EE1 form.

There follows some incredible descriptions of subterfuge and false names being used to circumvent recruitment procedures. The EO commented:

" In conclusion, it is clear that the complainant firmly believes that she has been and continues to be victimised by the respondent. I suspect there is little I can say to dissuade her from this belief. It is clear that the complainant believes that the respondent has instituted a campaign to exclude and punish her and that this is because she has made a complaint under these Acts. It is clear that the complainant had held such a belief for some time and that her dealings with the respondent have been tainted by this belief. I note that the complainant even submitted that she always had a witness with her when dealing with the respondent and that she believed that a post would be advertised in such a manner as to exclude her specific qualifications. These are her beliefs. Nevertheless, the complainant has not shown a scintilla of evidence to support an argument that there was widespread knowledge of the fact that the complainant had made a complaint under these Acts. The Tribunal heard a number of witnesses currently or previously employed by the respondent who all denied that they had any knowledge that the complainant had ever made a claim. The retired Principal involved in the mediated agreement denied that he had breached the confidentiality clause. The complainant was only able to refer to a gut feeling and the incident cited in paragraph 6.17. As stated above, that incident cannot be linked with this claim due to the complainant's own conduct. Furthermore, the complainant has not shown any significant facts from which an argument that the complainant has experienced any adverse treatment can be drawn."

Unsurprisingly, the claim failed.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2387

9. DEC-E2010-131 An Employee -v- An Employer

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

The complainant, who was Polish, complained of verbal racial harassment. However, he failed to take a grievance and his evidence was uncorroborated AND the employer produced witnesses denying the behaviour. The Equality Officer found:

"...that the uncorroborated evidence of the complainant does not go far to discharge the initial probative burden required of him. In reaching this conclusion I have had regard to the fact that the complainant failed to utilise the Grievance Procedure available. I note his comment that he considered using this process "pointless". I accept that it is natural to have such concerns, particularly in a small organisation and in circumstances where one of the alleged harassers would normally be the person who might investigate such a complaint. However, the Grievance Procedure provided for an appeal mechanism which would be undertaken by an Independent External Consultant. In light of the foregoing I find that the complainant has failed to establish a prima facie case of harassment on grounds of race contrary to the Acts and this element of his complaint must fail."
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2389

10. DEC-E2010-132 An Employee -v- An Employer

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

The EO found that the employer in this case treated Irish and non-Irish employees equally badly and, whilst there might be procedural errors pointing to an unfair dismissal, there was insufficient evidence to support the complainant's assertion that his Lithuanian nationality was a factor which influenced the respondent's decision to dismiss him.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2390

11. DEC-E2010-133 2 Employees -v- An Employer

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

The complainants did not attend and the EO found against them.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2391

12. DEC-E2010-134 2 Employees -v- An Employer

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

The complainants in this case submitted that they were treated less favourably in that:
1. No contracts of employment were furnished
2. No health and safety documentation was furnished
3. There was a significant underpayment of wages
4. Tax and social security were not paid
5. The company vehemently denied that the complainants were employed by it
6. The complainants were not furnished with pay slips
7. The complainants were effectively dismissed when they returned from their holidays
8. The complainants were not joined in the CWPS Pension and Sick Pay scheme
9. The complainants social welfare position has been prejudiced by the fact that the respondent company was involved in a serious tax evasion and social welfare fraud
10. The respondent company made an attempt to show pay slips before a Rights Commissioner hearing purporting that tax and social welfare had been paid.

They failed to produce evidence to back up their claims or, in the case of alleged fraud, the Equality Tribunal had no jurisdiction to investigate alleged social welfare and revenue fraud. The complainants failed to establish a prima facie case of discrimination on the race ground and their complainants failed.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2392

13. DEC-E2010-135 Grazulis -v- First Bathroom Solutions

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

The complainant was unable to show any comparator for the purposes of his argument. The complaints failed.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2393

14. DEC-E2010-136 Gintas -v- Bridford Properties Ltd

Ground/Issues: Discriminatory Treatment, Harassment, 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/index.asp?locID=181&docID=2394

15. DEC-E2010-137 An Employee -v- An Employer

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

Having regard to the evidence adduced, the Equality Officer found the respondent's evidence to be more credible and found in his favour.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2395

16. DEC-E2010-139 An Employee -v- An Employer

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

The complainant, a Latvian national, claimed constructive dismissal after, "The foreman became agitated and started shouting at him." The complainant had refused to follow an instruction to drive a teleporter across a road to another building site. The Equality Officer concluded satisfied that if an Irish worker refused to perform duties he would not have been treated more favourably.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2397

17. DEC-E2010-140 An Employee -v- An Employer

Grounds / Issues: Conditions of employment, Discriminatory Dismissal, Victimisation, Victimisatory dismissal, failure to provide reasonable accommodation..

This was an interesting case where the complainant, who had worked for the respondent's building firm for some 30 years and who was profoundly deaf, refused to work on roofs after a fall, having produced a GP's certificate claiming he had 'psychological scarring'. However, his GP did not attend the hearing and, "According to the complainant, these certificates were written after two consultations with his GP, which lasted between 10 and 15 minutes each. The complainant was not in a position to give evidence on his GP's qualification or training in mental health, although he believed that his GP had experience in mental health issues." Therefore, the EO was able to "find that no explanation on how "psychological scarring" is a disability as defined under the Acts was provided to the Tribunal. Furthermore, no report from a recognised mental health professional, to confirm such a diagnosis, was produced in evidence, either."
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2398

18. DEC-E2010-141 An Employee-v- An Employer

Grounds/ Issues: Discriminatory Dismissal, Failure to provide reasonable accommodation..

The complainant was unable to establish a prima facie case of discrimination and the complaints failed.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2399

19. DEC-E2010-142 An Employee -v An Employer

Grounds / Issues: Race, Discriminatory Dismissal.

The employee alleged he was dismissed on grounds of nationality. However, the respondent adduced evidence that 40% of the workforce comprised foreign nationals and others had also been dismissed due to lack of work.
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2400

20. DEC-E2010-143 An Employee -v- An Employer

Grounds / Issues: Religion , Age,, Race, Discriminatory Dismissal.

The complainant worked for about 30 years as a lecturer. He complained of discrimination on grounds of religion, age and race. However, in the run up to his retirement he failed to take a grievance. The Equality Officer concluded:

"No evidence has been presented that would lead me to conclude that the complainant was not in a position to raise a grievance in relation to the four job applications or his PhD application with the respondent. Furthermore, no evidence was adduced that any of the issues raised effected the complainant's day-to-day working conditions in such a way that would lead me to conclude that he considered his working conditions intolerable. I therefore cannot conclude that the respondent has failed either the contract or the reasonableness tests and I find that the complainant was not dismissed in a discriminatory manner."
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2401

21. DEC-E2010-144 An Employee -v- An Employer

Grounds/Issues: Gender, Age, Harassment, Victimisation.

The Equality Officer concluded that the claim in relation to harassment was not lodged in accordance with the time limits provided for in section 77 (5) (a) of the Acts. In relation to a complaint of victimisation, the EO concluded, "...none of the complaints made to the respondent make reference to any of the specified grounds and therefore any subsequent treatment cannot give rise to an inference of victimisation within the meaning of the Acts."
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2402

22. DEC-E2010-145 An Employee -v- An Employer.

Grounds/ Issues: Gender, Race, Discriminatory Dismissal.

The complainant claimed constructive dismissal on the race ground. However, the EO was not satisfied that the complainant had adduced any evidence to substantiate her claim. She went further, "The evidence supports the respondents contention that the complainant left the employment because she was not willing to work the new hours the respondent requested her to work."
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2403