The Equality Tribunal recently published many Decisions taken under the Employment Equality Acts and we summarised the upheld claims and sent those last week. Summaries of the last 40 not upheld complaints appear below.

They are mainly the usual motley crew of vexatious claims involving complainants who either failed to turn up at hearing or who could not produce enough evidence to establish a prima facie if they did turn up. However, some useful gems are here, including:

* Case 13 below: an employee who goes out sick and refuses to attend a disciplinary hearing. The complainant upped the stakes here by claiming requests from management to attend meetings constituted disability harassment.
http://bit.ly/kYEwJg

* Case 20 below: an employee who may have been disabled and had difficulty carrying heavy items placed no reasonable accommodation requirements on an employer because she did not inform the employer of the disability - "An employer cannot be expected to anticipate an employee's needs, where, as in this case, the employee has not communicated his or her needs to the employer."
http://bit.ly/kATkiN

* Case 28 below: the Equality Officer has criticised a complainant who chose not to engage with the respondent in its investigation of her complaint - she refused to meet to discuss matters and insisted on a written reply.
http://bit.ly/kjKThH

* Case 33 below: the Equality Officer offers some useful guidance on what makes a valid (and, by extension, invalid) waiver clause in a termination agreement.
http://bit.ly/lWvB7h

* Case 40 below: the Equality Officer has made the following pointed comments on the need for comparative evidence:

"... the Court is aware from its own knowledge and experience of many cases in which workers in the construction industry of Irish nationality have brought similar complaints to those advanced by the complainants under the appropriate legislation. There is no reliable basis upon which the Court could assume, without evidence, that the type of default relied upon by the complainants in this case would not have occurred if they were of a different nationality."
http://bit.ly/lDAOPY


EMPLOYMENT EQUALITY DECISIONS NOT UPHELD:


1. DEC-E2011-035: An Employee -v- An Employer

Grounds / Issues: Dismissal, less Favourable Treatment, Race, 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-E2011-035-Full-Case-Report.html


2. DEC-E2011-036:An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Harassment, 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-E2011-036-Full-Case-Report.html


3. DEC-E2011-037: A Complainant -v- A Respondent (A) and A Respondent (B)

Grounds / Issues: Disability by Association, Family Status, 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/2011/Employment-Equality-Decisions/DEC-E2011-037-Full-Case-Report.html


4. DEC-E2011-39: A Complainant -v- A Respondent

Grounds / Issues: Discriminatory Treatment, Conditions of Employment, Training, 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-E2011-039-Full-Case-Report.html


5. DEC-E2011-040: A Complainant -v- A Respondent

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-E2011-040-FUll-Case-Report.html


6. DEC-E2011-041: A Complainant -v- A Respondent

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-E2011-041-Full-Case-Report.html


7. DEC-E2011-042: A Complainant -v- A Respondent

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-E2011-042-Full-Case-Report.html


8. DEC-E2011-043:A Complainant -v- A Respondent

Grounds/ Issues: Discriminatory / Victimisatory 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-E2011-043-Full-Case-Report.html


9. DEC-E2011-044: A Complainant -v- A Respondent

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

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-E2011-044-Full-Case-Report.html


10. DEC-E2011-045: An Employee -v- An Employer

Grounds / Issues: Gender, Discriminatory Dismissal, Pregnancy.

The complainant was a cleaner in Burger King. She was pregnant and claimed she was dismissed because of her pregnancy. The EO found the complainant to be a less reliable witness than the respondent.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-045-Full-Case-Report.html


11. DEC-E2011-047: An Employee -v- An Employer

Grounds / Issues: Gender, Access to Employment, Dismissal.

The complainant did not attend and the EO found against her.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-047-Full-Case-Report.html


12. DEC-E2011-048: A Worker -v- A Department Store

Grounds / Issues: 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-E2011-048-Full-Case-Report.html


13. DEC-E2011-049:An Employee -v- An Employer

Grounds / Issues: Disability, Conditions of Employment, Harassment, Reasonable Accommodation.

This is an all too common scenario: an employee who goes out sick and refuses to attend a disciplinary hearing. The complainant upped the stakes here by claiming requests from management to attend meetings constituted disability harassment.

It didn't stop there. The complainant submitted that she was harassed by the respondent on grounds of disability when the respondent continued to request her attendance at a disciplinary meeting while she was absent from work on sick leave. It was also submitted that the respondent harassed the complainant by failing to recognise the complainant's disability.

The respondent indicated that the complainant was not suffering from a disability or had not advised the respondent that she was suffering from a disability when it first scheduled a disciplinary hearing but accepted the situation at the time of hearing. The employer's doctor's report found the complainant was "not clinically depressed", but noted that "she exhibited overt anxiety symptoms and there was also evidence of paranoia". Dr. F's report also indicated that the complainant should have been fit to return to work on 25th of January, 2010.

The EO found that the respondent had not been notified of the complainant's disability until April 2010, and was satisfied, based on the totality of the evidence provided, that any requests by the respondent to the complainant to attend disciplinary hearings prior to this could not have been construed as discrimination on grounds of disability.

After it learned of her disability the complainant was asked by the respondent to attend a return to work meeting and she said she was able. They felt she should be able to attend a disciplinary hearing as well, in that case.

The issues dragged on to a Mexican stand-off: On 2nd June 2010 the complainant submitted to the respondent a letter from her GP as well as a report from Dr. PC, Professor of Psychiatry, dated 12th April, 2010 indicating that the complainant is suffering from "an adjustment disorder" and advising that the complainant will be fit to return to work "if and when the adverse situation as she perceives it, is addressed fully and fairly". Also enclosed with the 2nd of June correspondence was a letter from Dr. D, Consultant Psychiatrist, indicating that he has received correspondence from the complainant's representative regarding recommendations for the complainant's return to work. This letter outlined the recommendations suggested by the complainant's representative for her return to work and indicate Dr. D's agreement with these recommendations.

The complainant indicated that she wished to return to work but would only do so once the respondent had put in place reasonable accommodation measures as specified in the 2nd of June letter from Dr. D. The complainant at the hearing indicated that the respondent has failed to put in place these measures and in doing so, is refusing her access to employment. The respondent in turn refused to accept the employee back whilst she continued to submit sick lines.

In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, the respondent when faced with a situation where an employee advised them that she was suffering from a disability, made appropriate enquiries by seeking the advice of Dr. C, a consultant psychiatrist in addition to that of Dr. F a specialist Occupational Health Physician regarding the complainant's condition and the facilities required for managing her condition. The EO also noted that the respondent has made efforts to meet with the complainant to discuss her return to work and reasonable accommodation measures which may be required.

The EO was satisfied, based on the totality of the evidence provided on these issues, that the respondent has made every effort to facilitate the complainant's return to work and to ascertain what if any special measures are required to facilitate the complainant in her return to work. Accordingly, the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
http://bit.ly/kYEwJg


14. DEC-E2011-050: A Complainant -v- A University College

Grounds / Issues: Discriminatory Treatment, Promotion / Re-grading, Age..

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-E2011-050-Full-Case-Report.html


15. DEC-E2011-051: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Conditions of Employment, Health & Safety, 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-E2011-051-Full-Case-Report.html


16. DEC-E2011-052: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Harassment, Gender, Race, Conditions of Employment, Training, 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-E2011-052-Full-Case-Report.html


17. DEC-E2011-053: An Employee -v- An Employer

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

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-053-Full-Case-Report.html


18. DEC-E2011-055:An Employee -v- An Employer

Grounds / Issues: Race, Discrimination, Promotion, Re-grading, Harassment, Discriminatory Dismissal, Equal Pay.

The complainant did not attend and the EO found against her.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-055-Full-Case-Report.html


19. DEC-E2011-056:An Employee -v- An Employer

Grounds / Issues: Race, Training, Vonditions of Employment, Dismissal.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-056-Full-Case-Report.html


20. DEC-E2011-057:A Complainant -v- A Respondent

Grounds / Issues: Discriminatory Treatment, Gender, Disability, Race, Conditions of Employment, Discriminatory Selection for Redundancy or Dismissal, Reasonable Accommodation.

The complainant believed she was dismissed because of her nationality and her medical condition. She also claimed that she was also discriminated against in the following ways:

She did not receive any proper contract or any contract at all. She did not receive any proper Health and Safety documentation or Training. The employer did not provide reasonable accommodation for her in that, due to her need for regular dialysis, she was obliged to have a cannula in her arm. This made it awkward for her to carry packages of 2 to 3 Kg. Her employer did not provide assistance for her. The employer ought to have anticipated her need in this case.

The claims fell. In relation to the anticipatory failure to provide reasonable accommodation, the EO found that the employee had failed to inform her employer about her difficulties and needs:

"In this case the "appropriate measures" sought by the complainant (assistance with lifting and carrying packages) could have been provided without imposing a disproportionate burden on the respondent. However, subsection 16 (3) (b) obliges an employer to take appropriate measures, where needed in a particular case, to enable a person who has a disability to access or participate in employment (emphasis added). An employer cannot be expected to anticipate an employee's needs, where, as in this case, the employee has not communicated his or her needs to the employer. The Acts do not place an obligation on employers to provide appropriate measures in anticipation, but only where needed in a particular case."
http://bit.ly/kATkiN


21. DEC-E2011-059:A Complainant -v- A Respondent

Grounds / Issues: Race, Disability, Access to Employment, Discriminatory Dismissal, Harassment.

Not Available online


22. DEC-E2011-060:A Complainant -v- A Respondent

Grounds / Issues: Equal Pay, Gender, Like Work.

This was an equal value case. The EO found that the demands made on the named male comparator in terms of the level of skill, responsibility and mental requirements were greater that than those made on the complainant. I am, therefore, satisfied that the complainant did not perform work of equal value to the named male comparator in terms of Section 7(1)(c) of the 1998-2007 Acts.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-060-Full-Case-Report.html


23. DEC-E2011-061: A Complainant -v- A Respondent

Grounds / Issues: Dismissal, Race, Victimisation.

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-E2011-061-Full-Case-Report.html


24. DEC-E2011-062: A Complainant -v- A Respondent

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

The complainants failed to attend the hearing and their claims fell.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-062-Full-Case-Report.html


25. DEC-E2011-063:A Complainant -v- A Respondent

Grounds / Issues: Gender, 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-E2011-063-Full-Case-Report.html


27. DEC-E2011-064:A Complainant -v- A Respondent

Grounds / Issues: Change of name of Respondent.

The EO found that the correct respondent was not named and she could not proceed further with the investigation.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-064-Full-Case-Report.html


28. DEC-E2011-065: A Complainant -v- A Department Store

Grounds / Issues: Race, Discriminatory Comments, Access to Employment.

This case involved a complaint against a store when, in the course of seeking employment with it, the claimant alleged she was advised that the store would only be employing Irish workers (she is English). She wrote to the employer to complain and a manager tried several times to meet with her but she refused to meet, considering a written response the correct way to deal with the matter.

The complainant had previously worked for the employer on a temporary contract and the employer said they had had no problems with her employment during that time. She was invited to apply using the appropriate procedures.

In relation to the manner in which the complainant complaint was dealt with by the respondent the Equality Officer considered that the respondent dealt with her complaint promptly and appropriately. It was unfortunate that the complainant choose not to engage with the respondent in its investigation of her complaint.
http://bit.ly/kjKThH


29. DEC-E2011-068: 2 Complainants -v- A Respondent

Grounds / Issues: Race, Conditions of Employment, Working Hours, Safety & Training.

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-E2011-068-Full-Case-Report.html


30. DEC-E2011-069: An Employee -v- An Employer

Grounds / Issues: Race, Dismissal, Discrimination.

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-E2011-069-Full-Case-Report.html


31. DEC-E2011-071: An Employee -v- An Employer

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

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-071-Full-Case-Report.html


32. DEC-E2011-072: An Employee -v- An Employer

Grounds / Issues: Discrimination, Age.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-071-Full-Case-Report1.html

33. DEC-E2011-073:An Employee -v- An Employer

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

The complainant said he was diagnosed with Parkinson's disease and commenced working on a part-time basis in November, 1999. In September, 2000 he was accepted for partial disablement on the company's income continuance plan. From then on, he worked 5 days pro-rata over a 10 day period. He had been employed with the respondent for 26 years. His work for Siemens involved maintenance and servicing of University College Cork's telecommunication equipment and remote vetting of customer technical problems. The complainant lodged a claim of discrimination in relation to training, conditions, harassment and dismissal on the grounds of his disability. On 7 March, 2008 he was called to a meeting with the general manager and the human resource officer where he was advised that 'his job was gone'. The complainant submitted that this news came as a complete shock and surprise to him. At this meeting, the complainant was told that he had two options to consider, that is electing a PHI insurance scheme which the complainant at all times considered to be unethical as he was and still remains able to work which the complainant understands was a requirement of such a scheme. The second option which was put to complainant was that of redundancy. The complainant was supplied with figures in relation to both options but he indicated to the respondent that the only ethical option available to him was redundancy.

There appeared to be doubt about the requirement to sign a waiver of rights in order to receive payments. The complainant said he had not been advised of this requirement (despite being sent emails about it); Siemens said it was standard procedure. He later signed it, but he said it was done so under duress. The employer argued the waiver was valid and the tribunal had no jurisdiction to hear the complaint.

The complainant submitted that the Tribunal had full jurisdiction to hear this claim on the basis that he was not in a position to negotiate terms with the respondent and was under severe duress to sign all documentation and forms presented to him in order to receive any redundancy payment. In this regard, the complainant referred to the case of Gerald Shortt v Data Packaging Limited (1996) E.LR.7 in support of his case. The complainant also submitted that the purported waiver does not specifically exclude any Employment Equality Legislation and therefore the Tribunal had jurisdiction to hear this claim.

The Equality Officer found in favour of the respondent. It is worth setting out the concluding paragraph for those who might be considering the use of waiver clauses in termination agreements, explaining as it does the necessary requirements for such waiver clauses to be valid:

"Having examined the course of the negotiations between the parties before signing of the agreement, I am satisfied from the complainant's own evidence that his consent to the agreement was informed and that he had the option of consulting with his solicitor and was informed by the respondent regarding seeking advice/representation regarding the waiver agreement prior to signing same. The complainant states it was put to him that the document was procedural in nature and if he did not sign same he would not receive any redundancy payment (to include even statutory redundancy) or his P45. This testimony by the complainant is in conflict with the e-mail documentation in the submissions, in that, the complainant sent an e-mail dated 8 May to the respondent stating're: the general waiver letter, you state "our policy requires that you sign this form in order that the company agrees to pay you the ex-gratia amount". Please forward me urgently a copy of this policy document for my inspection.' It is made clear that the waiver agreement related only to the ex-gratia payment and would not affect the complainant's statutory entitlements. Having examined the decision in relation to Gerald Shortt v Data Packaging Limited (1996) E.LR.7 the facts of the case are very different to the circumstances pertaining in this claim. Mr. Shortt was advised that he was being made redundant at 5.30 of a particular day and was requested to sign the waiver agreement the following day or he would not receive his financial entitlements. Mr. Shortt stated on the form that he was signing the waiver document on a without prejudice basis. It is not clear in this case whether the waiver included the right to consult with and get legal advice/representation. In relation to the complainant's case, from an examination of the submissions and the copious exchange of e-mails/letters between the parties, I am satisfied that the complainant was advised regarding the right to seek legal/advice representation prior to signing the waiver document. I am also satisfied that the complainant was aware that the signing of the waiver agreement pertained to the ex-gratia amount and would not affect his statutory entitlements to redundancy."
http://bit.ly/lWvB7h


34. DEC-E2011-074:An Employee -v- An Employer

Grounds / Issues: Discrimination

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-074-Full-Case-Report.html


35. DEC-E2011-075: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Disability, Race, Conditions of Employment, Victimisation, Victimisatory 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-E2011-075-Full-Case-Report.html


36. DEC-E2011-080: An Employee -v- An Employer

Grounds / Issues: Marital Status, Family Status, Disability, Access to Employment, Discriminatory Dismissal, Victimisatory 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/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-080-Full-Case-Report.html


37. DEC-E2011-081: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Disability, 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/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-081-Full-Case-Report.html


38. DEC-E2011-082: 2 Employees -v- An Employer

Grounds / Issues: Access to Employment, Discriminatory Treatment, Conditions of Employment, Health and Safety, Training and Documentation, Harassment, Discriminatory Dismissal, Claim in relation to a collective agreement, 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-E2011-082-Full-Case-Report1.html


39. DEC-E2011-085:An Employee -v- An Employer

Grounds / Issues: Disability, Access to Employment, Failure to provide reasonable accommodation.

The complainant did not attend and the EO found against him.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-085-Full-Case-Report.html

40. DEC-E2011-086:An Employee -v- An Employer

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

The complainant failed to provide comparators or evidence required and the complaints failed. One telling comment from the EO near the end of the decision is worth quoting:

"Regarding the totality of the complainant's evidence, I am reminded of the Labour Court case Barnmac Contracting Ltd and Silys and Volkovas: It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation. Moreover, the Court is aware from its own knowledge and experience of many cases in which workers in the construction industry of Irish nationality have brought similar complaints to those advanced by the complainants under the appropriate legislation. There is no reliable basis upon which the Court could assume, without evidence, that the type of default relied upon by the complainants in this case would not have occurred if they were of a different nationality."
http://bit.ly/lDAOPY