The Equality Tribunal may be under threat of amalgamation via Minister Bruton's proposals but, for the time being, it continues to issue decisions in its own right.

Set out below are 38 recent complaints that were not upheld. Most were race cases rejected because the complainants failed to turn up or they could not establish a prima facie case of discrimination and the complaints failed. Some, however, will be of interest to readers:

* Case No. 6 - an Executive Officer in the Revenue Commissioners who argued age discrimination in promotion exercises
http://bit.ly/r31715

* Case No. 11 - a Heinz employee argued disability discrimination when dismissed for ill-health after three years' absence but whose employer had taken a text book approach to dismissal on the capability ground
http://bit.ly/pnM2EV

* Case No. 26 - an employee from the HR department of An Post National Lottery, who sought equal pay with a previous male comparator but could not rebut statistical evidence
http://bit.ly/mWKdgT

* Case No. 27 - a Registered General Medical Practitioner, who argued age was the reason for not being accepted for specialist training but whose respondent successfully argued that his lengthy experience in psychiatry without evidence of obtaining the MRCPsych examination or any parts thereof indicated a lack of professional progression and therefore, he was not deemed suitable as a trainee on the basic specialist training programme in psychiatry.
http://bit.ly/nsPMmk

There have also been a few equality claims that have been upheld by the tribunal. Reviews of those will follow in due course.


EMPLOYMENT EQUALITY DECISIONS NOT UPHELD:


1. DEC-E2011-102: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Disability, Failure to Attend.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-102-Full-Case-Report.html


2. DEC-E2011-103: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Disability, Failure to Attend.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-103-Full-Case-Report.html


3. DEC-E2011-104:An Employee -v- An Employer

Grounds / Issues: Race, Equal Pay, Non Attendance.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-104-Full-Case-Report.html


4. DEC-E2011-105:2 Employees -v- An Employer

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

The complainants were 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-E2011-105-Full-Case-Report.html


5. DEC-E2011-106:2 Employees -v- An Employer

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

The complainants did not attend and the EO found against them.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-106-Full-Case-Report.html


6. DEC-E2011-107: An Employee -v- An Employer

Grounds / Issues: Age, Promotion/ Re-grading, Leadership Competency considered not suitable for promotion, Statistics.

The claimant worked for the Revenue Commissioners from 1975 as an Executive Officer. He submitted that he was discriminated against by the respondent on the age ground, specifically in relation to a competition for promotion that took place in 2007.

He had previously applied for a Higher Executive Officer (HEO) position in 2003. The complainant submitted that, in 2007, he again applied for promotion to HEO on the basis of Seniority and Suitability and, on 10th January, 2008, he received a letter from the respondent stating that he had been deemed unsuitable for promotion. He submitted that he was discriminated against by the respondent with respect to this competition. He submitted that to be deemed 'not suitable' is an upsetting, degrading and insulting experience and he outlined the impact he said it has had on his professional confidence. He submitted that, in light of his previous PMDS ratings and his success at a 2005 promotion conference, it is completely illogical to say that he is suddenly deemed to be 'not suitable' when the only thing that has changed is his age. He used ages above and below 57 as his comparative groups.

The respondent said about 300 candidates were invited to apply. A respondent witness said that he thought there were around 15-20 applications about which reservations were expressed. He said that each competency with each candidate was dealt with separately.

Statistical evidence could be used to argue both sides of the argument. The EO was impressed by the notes of the 'consistory conference' (selection panel) and, although he found in favour of the Commissioners, issued a word of caution:

"It is clear that it was the use of the phrase "not suitable for promotion" that gave rise to the complainant forming the view that there was a change in approach of the respondent in the two years that had passed since his previous successful application for inclusion on a panel for promotion, and that this change was related to his age. (In this context, it is clear to me that if a different form of wording had been used by the respondent in the present case then this complaint would not have come before the Tribunal. It might be useful for the respondent to take note of this in the interests of avoiding further complaints should similar circumstances arise)..."
http://bit.ly/r31715


7. DEC-E2011-108: An Employee -v- An Employer

Grounds / Issues: Training, Conditions of Employment, Other, Discriminatory, Dismissal, Race, Failure to attend.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-108-Full-Case-Report.html


8. DEC-E2011-109:An Employee -v- An Employer

Grounds / Issues: Training, Discriminatory Dismissal, Conditions of Employment, Race, Failure to Attend.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-109-Full-Case-Report.html


9. DEC-E2011-110: An Employee -v- An Employer

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

The complainant did not attend and the EO found against him. Interestingly, the EO ordered €480.00 costs against the complainant:

"I accept that the complainant has impeded the investigation in the above circumstances and award the respondent the costs accrued by the respondent company staff in collating the various documents required for a defense."
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-110-Full-Case-Report.html


10. DEC-E2011-113:2 Employee -v- An Employer

Grounds / Issues: Dismissal, Less Favourable Treatment, Race, Discriminatory Dismissal, Failure to Attend.

The complainants did not attend and the EO found against them.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-113-Full-Case-Report.html


11. DEC-E2011-114: An Employee -v- An Employer

Grounds / Issues: Direct Discrimination, Less Favourable Treatment, Disability Grounds, Conditions of Employment, Dismissal, Dismissal for incapacity, Reasonable Accommodation.

The complainant had had a number of jobs at Heinz. The complainant went out sick from work on the end of March 2004 with repetitive strain injury and was referred for physiotherapy. Unfortunately her condition did not improve and she was referred to a consultant and it was diagnosed she was also suffering from fibromyalgia. The complainant remained out of work on sick leave and she had to have an operation for a different complaint in August 2004 and had a baby in July 2006. The complainant was seen by the company's occupational health advisor on a number of occasions. The complainant's medical advice, which the company had been kept fully informed about, was that she could not work in a cold environment such as that which obtained in the chilled department and that she could not lift heavy weights.

She would have taken clerical work with suitable training but said she could not give a return date with knowing her duties and was dismissed after more than three years' absence from work.

The actions of the employer were pretty much text book stuff and the decision is worth a read for anyone who has employees on long-term sick. They were fully appraised of the employee's health, considered alternatives, gave plenty of time to consider positions and the employee was incapable of doing her duties due to incapacity at the time of dismissal.
http://bit.ly/pnM2EV


12. DEC-E2011-115: An Employee -v- An Employer

Grounds / Issues: Less Favourable Treatment, Race, Access to Employment, Time Limit for referring claim

The complainant referred his complaint outside the six month time limit prescribed at Section 77(5)(a) of the Employment Equality Acts, 1998-2008. The EO found that the complainant failed to show that there was reasonable cause for referring the complaint outside the six month time limit and the complaint was dismissed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-115-Full-Case-Report.html


13. DEC-E2011-116: An Employee -v- An Employer

Grounds / Issues: Dismissal, Less favourable treatment, Race, Conditions, 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-E2011-116-Full-Case-Report.html


14. DEC-E2011-118: An Employee -v- An Employer

Grounds/ Issues: Equal Pay, Discriminatory Treatment, Discriminatory Dismissal, Race, Failure to Attend

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-118-Full-Case-Report.html


15. DEC-E2011-119: An Employee -v- An Employer

Grounds / Issues: Less Favourable Treatment, Rae, Conditions of Employment, Discriminatory Dismissal.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-119-Full-Case-Report.html


16. DEC-E2011-120:7 Employees -v- An Employer

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

The complainants were 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-E2011-120-Full-Case-Reort.html


17. DEC-E2011-121: An Employee -v- An Employer

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

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-E2011-121-Full-Case-Report.html


18. DEC-E2011-122:2 Employees -v- An Employer

Grounds / Issues: Age, Equal Treatment, Promotion.

The complainants were 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-E2011-122-Full-Case-Report.html


19. DEC-E2011-123: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Conditions of Employment, Training, 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/2011/Employment-Equality-Decisions/DEC-E2011-123-Full-Case-Report.html


20. DEC-E2011-126: An Employee -v- An Employer

Grounds / Issues: Race, Access to Employment, Promotion and Re-grading, Conditions of Employment, Discriminatory Dismissal, Harassment, Victimisation, Victimisatory Dismissal.

The complainant did not put forth any argument or evidence that her dismissal by the respondent had been Victimisatory and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-126-Full-Case-Report.html


21. DEC-E2011-127: 2 Employees -v- An Employer

Grounds / Issues: Training, Conditions of Employment, Other Discriminatory Conduct, Discriminatory Dismissal, and Equal Pay.

The EO was satisfied that it was the respondent's business difficulties, which ultimately resulted in the liquidation of the company, that led to the complainants' dismissal, and that a last-in-first-out approach generally applied to the order in which redundancies were effected. There was nothing in the evidence before the EO which would give rise to an inference that the complainants were discriminatorily selected for redundancy because of their nationality and the complaints failed.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-127-Full-Case-Report.html


22. DEC-E2011-128: 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/2011/Employment-Equality-Decisions/DEC-E2011-128-Full-Case-Report.html


23. DEC-E2011-129: 2 Employees -v- An Employer

Grounds. Issues: Discriminatory Treatment, Race.

The complainants were 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-E2011-129-Full-Case-Report.html


24. DEC-E2011-130:An Employee -v- An Employer

Grounds / Issues: Harassment, 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/2011/Employment-Equality-Decisions/DEC-E2011-130-Full-Case-Report.html


25. DEC-E2011-131: An Employee -v- An Employer

Grounds / Issues: Gender, Age, Marital Status, Access to Employment

The complainant applied for health and safety positions but was not shortlisted. The position was not filled in any case and the EO accepted that the complainant did not have the appropriate experience in relation to the required duties.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-131-Full-Case-Report.html


26. DEC-E-2011-132: An Employee -v- An Employer

Grounds / Issues: Equal Pay.

The complainant works in the HR department of An Post National Lottery. The complainant submitted that when she succeeded her comparator in the respondent's HR department, she did the same work as he did, yet for lesser pay. She appended a complaint of victimisation, in which she claimed that problems with her performance and timekeeping, the veracity of which she accepts, were subject to excessive written documentation by her manager after she lodged her complaint with the Tribunal.

The respondent accepted that there is a difference in remuneration between the complainant and her comparator, but disputed that the complainant and her comparator performed like work within the meaning of the Acts. The respondent submitted that the reason for the pay differential is that the complainant performed less challenging work commensurate with her grade as Business Support Officer. The HR function was re-organised, and a separate HR manager at Assistant Principal level was appointed to whom the complainant reports. Her predecessor comparator reported to the Logistics manager, also at Assistant Principal level, and since there was no specific HR manager to support him in his work, it had greater responsibilities attached to it. The respondent argued that her poor performance and timekeeping would not warrant a salary at the level her predecessor enjoyed.

The EO found that the complainant performed "like work" with the named comparator in terms of section 7(1)(b) of the Employment Equality Acts, 1998 to 2008, but that the respondent succeeded in rebutting the assumption that the discrepancy arose because of the complainant's gender (it was mainly females who received acting up allowances). However, the EO recommended that the respondent review its processes of allocating allowances for particular types of work with a view to establish a system of greater transparency, and to ensure that it is clearly communicated to its staff.
http://bit.ly/mWKdgT


27. DEC-E2011-133: Dr A -v- The Health Service Executive.

Grounds / Issues: Discriminatory Treatment, Age, Access to Employment, Training, Jurisdictional Issue, Time Limits.

The complainant is a Registered General Medical Practitioner and Specialist General Practitioner on the Register of Specialists as operated by the Irish Medical Council. The complainant is employed by the respondent in a permanent capacity as an Area Medical Officer and is currently on a career break. The complainant applied to the respondent for inclusion on a total of nine separate postgraduate rotational training schemes in psychiatry over a two year period between 2006 and 2007.

The complainant claimed that he satisfied all of the relevant selection criteria for inclusion on these training schemes and that the only reason why he was not selected by the respondent was on account of his age (he was aged 58 years at the date of the referral of the present complaint).

The respondent accepted that the complainant had several years' experience working in various posts in psychiatry; however, it submitted that his lengthy experience in psychiatry without evidence of obtaining the MRCPsych examination or any parts thereof indicated a lack of professional progression and therefore, he was not deemed suitable as a trainee on the basic specialist training programme in psychiatry.

The EO concluded that the complaints were not a series of ongoing acts but were separate and that there was jurisdiction to deal with only the last 4 complaints. However, the respondent could show a fair procedure and the claimant could not produce evidence that decisions were based on his age.
http://bit.ly/nsPMmk


28. DEC-E2011-134

Grounds / Issues: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - gender - pregnancy - 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-E2011-134-Full-Case-Report.html


29. DEC-E2011-135

Grounds / Issues: Employment Equality Acts, 1998-2008 - correct respondent - change of name of respondent.

The complainant was not an employee of the respondent in terms of section 2 of the Employment Equality Acts and he therefore did not have the locus standi to maintain his complaint before the Tribunal.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-135-Full-Case-Report.html


30. DEC-E2011-136

Grounds / Issues: Employment Equality Act, Discrimination, Disability, Conditions of Employment, Non-attendance

The complainant did not attend and the EO found against her.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-136-Full-Case-Report.html


31. DEC-E2011-137

Grounds / Issues: Employment Equality Act, Discrimination, Race, Conditions of Employment, Equal pay, Non-attendance

The complainant did not attend and the EO found against her.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-137-Full-Case-Report.html


32. DEC-E2011-138

Grounds / Issues: Employment Equality Acts 1998 to 2008 - Discriminatory Treatment - Race - Conditions of employment - Discriminatory dismissal

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-138-Full-Case-Report.html


33. DEC-E2011-139

Grounds / Issues: Employment Equality Acts, Race, Access to Employment.

No convincing evidence was presented to the EO that could have led her to believe that the recruitment process was tainted by discrimination.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-139-Full-Case-Report.html


34. DEC-E2011-141

Grounds / Issues: Employment Equality Acts, 1998 to 2008 - Section 8 - Access to Employment - Section 6(2)(a), Gender - Section 6(2)(f), Age - Section 6(2)(g), Disability - Section 74(2), Victimisation

The complainant was unable to back up his assertions with clear and cogent evidence that he suffered a detrimental effect in terms of access to other employment opportunities.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-141-Full-Case-Report.html


35. DEC-E2011-142

Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6,8 & 34 -age -retirement age - Framework Directive - objective justification

The complainant commenced employment with the respondent as a Winchman/Winch Operator at the respondent's helicopter base in Sligo on 1 March, 2005. He was compulsorily retired at age 55.

The EO found the retirement justified by reference to the ECJ judgement in Wolf v Stadt Frankfurt am Main, which involved firemen retired on grounds that the job was physically demanding as was the Winchman/Winch Operator job in this case.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-142-Full-Case-Report.html


36. DEC-E2011-144

Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6&12 -race - vocational training - equal treatment - jurisdiction.

The EO found that the course at issue in this case - MSc. in Pharmaceutical Quality Assurance and Biotechnology - does not constitute vocational training in terms of section 12 of the Employment Equality Acts, 1998-2008 and she had no jurisdiction to investigate the substantive aspects of the complaint.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-144-Full-Case-Report.html

37. DEC-E2011-145

Grounds / Issues: Employment Equality Acts 1998-2008- Discriminatory Treatment - Age - Race - Religion - Prima facie case

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-145-Full-Case-Report.html


38. DEC-E2011-146

Grounds / Issues: Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Victimisatory Dismissal - Marital Status - Disability - 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-E2011-146-Full-Case-Report.html

===============================================
Legal-Island
13 September 2011