The Equality Tribunal recently published 16 Decisions taken under the Employment Equality Acts, 5 of which were successful. Summaries of the successful complaints appear below.
Awards varied from a €1.50 per hour rise to €25k. The successful awards covered pregnancy dismissal; reasonable accommodation for an employee with poor eyesight; victimisation for asking for equal pay; an equal pay case based on race; and less favourable redundancy rates offered to employees nearing retirement.
EMPLOYMENT EQUALITY DECISIONS UPHELD OR PART-UPHELD:
1. DEC-E2011-070:An Employee -v- An Employer
Grounds / Issues: Gender, Pregnancy, Discriminatory Dismissal
Award: €25,000 for Discrimination.
The complainant was a receptionist/accounts assistant who was dismissed because of her pregnancy. She stated that her supervisor's reaction to her changed and she was not as friendly or interested in her following the announcement of her pregnancy and only discussed work matters. She was reviewed for poor performance and was dismissed.
The respondent admitted that there was nothing put in writing regarding the mistakes that the complainant was making but that the same errors kept recurring even after 4/5 months in the job. The respondent also stated, that given the complainant was hired on a 6 month probationary basis, it was of the view that they were obliged to keep her on until the 6 months had elapsed despite her poor performance in the job and despite the fact that her supervisor had come to this conclusion at the 4 month stage where she contended she spoke to the manager informing him that the complainant was not working out as far as she was concerned.
The following paragraph from the Equality Officer's decision shows why an employer should document performance issues for ALL employees if it is to successfully defend a dismissal claim based on pregnancy:
" There is a considerable conflict of evidence in this case. Based on the evidence provided at the hearing and the facts as presented, I prefer the evidence of the complainant... I find it difficult to comprehend that if there were so many problems with the complainant's work performance that these issues were not brought to her attention either formally or in writing during the course of her employment... I find it difficult to comprehend that an employer who becomes aware that a person is unsuitable in the job after a number of months would wait until the 6 month period had elapsed before advising the employee of same and then terminate their employment after investing 6 months of time and effort, training etc. in that person. I requested the respondent to provide me with supporting documentary evidence, i.e. some written document where employees were advised that they had met the standards following their 6 month review and that they were being made permanent in the post but the respondent was unable to provide such documentation."
The Equality Officer awarded €25k:
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-070-Full-Case-Report.html
2. DEC-E2011-.076:A Worker -v- A Hotel
Grounds / Issues: Discriminatory Dismissal, Disability, Reasonable Accommodation
Award: €10,000 for Distress.
The complainant was employed by the respondent as a switchboard administrator from 21st April, 2008 until her employment was terminated on 21st May, 2008. The complainant stated that she was born with bilateral congenital cataracts and this condition has left her with very limited vision in her right eye. The complainant was interviewed for the position on 26th March, 2008 and she submitted that the respondent was aware of her disability prior to the interview as the organisation which set up the interview is one which assists disabled persons to secure employment. The complainant stated that she also discussed the nature of her disability with the respondent at the interview and that she informed her interviewer she would need to use special software on her computer for enlarging text on the screen. The complainant stated that the respondent indicated at the interview that the provision of this software would not be an issue and she accepted that this software was provided to her upon the commencement of her employment.
She started work and seemed to do well but at a meeting asked if the lighting in her room could be improved as this would help her vision, and she was informed that this would not be a problem. She also asked for a larger computer screen and headset. She said she was dismissed for being slow but does not accept this was the true reason. The complainant submitted that the reason her employment was terminated was because she had made three suggestions to the respondent at this meeting for assisting her with her disability.
The respondent stated that it was at all times aware of the complainant's disability and that it was not an issue during the course of her employment. The respondent stated that under the terms of her contract, the complainant was employed on a probationary basis for the first three months of her employment and that this was explained to her both verbally and in writing. The respondent claimed that it was explained to the complainant that her work would be monitored over the probationary period and a decision would be made at the end of the three month period as to whether she would be offered the position on a permanent basis.
The respondent stated that gradually the complainant was given extra duties and responsibilities and it appeared to managerial staff in the hotel that she found these extra duties and responsibilities stressful. The respondent submitted that the complainant seemed to panic if she was given a job/work to do when she hadn't finished completing another task. She took too long in transferring and introducing calls which was acceptable in the first two weeks whilst undergoing initial training but as time passed, it was expected that an employee would speed up at what were considered to be normal tasks. The respondent submitted that it operates a top class award winning five star hotel and professionalism and efficiency amongst staff is expected. The respondent submitted that part of the requirements for somebody on the switchboard is calmness and speed and the complainant was not showing these characteristics during the course of her employment.
However, the requests for reasonable accommodation were made and not implemented and this led to the employer's defeat at tribunal. The Equality Officer wrote:
"I am of the view that there was a strict obligation upon the respondent to at least consult with the complainant (as a person with a disability) regarding her request for these additional facilities before it took the decision to terminate her employment on the basis that she was not performing her duties to the required standard. I am satisfied that instead of doing so, the respondent took the view without any further consultation with the complainant or without conducting an adequate assessment of the situation, that these facilities would not be of assistance to her in terms of her ability to carry out her duties in an effective manner. Consequently, the complainant was not afforded any opportunity to participate at any level or influence in the decision making process that resulted in her dismissal."
€10k was awarded to the complainant by the Equality Officer.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-076-Full-Case-Report.html
3. DEC-E2011-077: An Employee -v- An Employer
Grounds / Issues: Race, Dismissal, Victimisation, Victimisatory Dismissal.
Award: €5,500 for Victimisation
The complainant is a Latvian national who argued he was dismissed because he sought appropriate rates of pay. The complainant said that when he told the respondent that he would not withdraw his complaint, the respondent said there was no more work for him. The complainant said that he has not received any more work from the respondent since then and added that the respondent has not given any work to Latvian people as a consequence.
The respondent denied the complainant's claim in full. It provided submissions in advance of the hearing but did not appear at the hearing. The hearing continued without them. The Equality Officer preferred the oral evidence of the complainant:
"I found the evidence of the complainant at the hearing to be credible and, in particular, that the description of his telephone conversation with the respondent was an accurate reflection of that conversation. Therefore, I am satisfied that the respondent threatened the complainant in the course of that conversation that he would not be provided with further employment by it if he did not withdraw his claim to the Tribunal, and that this was a clear and unambiguous attempt to intimidate the complainant into withdrawing his claim. I am further satisfied that, when the complainant refused to comply, the respondent carried through with its threat and provided no further work to the complainant. This is a clear act of victimisation within the meaning of the Acts and the complainant has established a prima facie case in that respect. "
€5500 was awarded by way of compensation:
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-077-Full-Case-Report.html
4. DEC-E2011-078: An Employer -v- An Employee
Grounds / Issues: Race, Equal Pay, Like Work.
Award: Arrears of pay €1.50 per hour worked.
This is essentially an equal pay case based on race and has some useful appendices covering matters such as the Equality Officer's Job Descriptions in respect of the Complainant and Comparator, Analysis of Comparator's Post, Analysis of Complainant's Post and more.
The complainant is a Hungarian national and is a qualified electrician, was employed by the respondent as a Panel Builder at its premises in Dublin from 30 June, 2008 until 27 May, 2009, when his employment was terminated by the respondent. The comparator is also a qualified electrician and was employed by the respondent as a Panel Builder. The complainant rejected the respondent's assertion that the comparator was a Chargehand and justified the higher pay.
The Equality Officer looked at what documentation was available. However, in the course of the Hearing the respondent confirmed that (i) there was no formal annual appraisal system in operation, (ii) there was no documentation in existence which advised staff that they could seek to negotiate an increase in remuneration at any time and (iii) there were no notes or other records of the pay determination discussions of the Directors in January of each (or any) year. It is therefore quite likely, the EO found, that the complainant was unaware of the respondent's pay determination process.
However, the performance appraisal process was not transparent and documentation was poor:
"I have carefully considered the evidence adduced by the parties on this point and I cannot accept that respondent's opinion on the relative value of the work of the complainant, the comparator, Mr. Y and Mr. Z is anything other than a subjective one."
The complainant was awarded €1.50 per hour for the hours worked during the period of employment prior to a legitimate dismissal for redundancy.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-078-Full-Case-Report.html
5. DEC-E2011-083: 5 Employees -v- An Employer
Grounds / Issues: Age, Redundancy - Compromise Agreement, Jurisdiction.
Award: €4,000 each for Distress & Re-calculation of redundancy
There were five complainants in this case and each received €4k by way of compensation. The complainants were employed by the respondent for periods ranging from 16-25 years at its plant in Donegal. They stated that in late August, 2005 the respondent announced its intention to close the plant where they worked over the following eighteen months with the loss of all 560 jobs over that time. They added that the respondent immediately commenced discussions/negotiations with the relevant trades unions in respect of a redundancy/severance package for the employees and stated that they were represented by SIPTU in these discussions/negotiations. They stated that during these discussions the respondent indicated its position in respect of those employees close to retirement, which was that those employees would be paid the lesser of (a) the terms of the redundancy package or (b) the amount of salary which those employees would have earned if they had continued in employment until the normal retirement age of 65. It is stated on the complainants' behalf that SIPTU informed the respondent that it considered this approach to be discriminatory on grounds of age and that the respondent argued it was lawful in terms of section 34(3) of the Acts.
The complainants stated that at a meeting in late October, 2005 the respondent restated its position as regards employees close to retirement who were to be made redundant after the plant closed. They added that it confirmed this position in writing on 22 November, 2005 as follows - "these employees will receive a gross payment equivalent to what they would have been paid between their date of termination (i.e. date manufacturing ceases) and the date of their normal retirement (i.e. the date the employee reaches 65 years) plus a statutory redundancy payment provided that the combined payment does not exceed seven weeks per year of service (i.e. the sum of the two payments will not exceed the equivalent of seven weeks per year of service.)". The Equality Authority pointed out to the employer that the "aspects of the redundancy package may be in breach of the Employment Equality Acts, 1998-2004. In addition, we are also concerned that section 34 may conflict with the Framework Directive."
The respondents said an agreement had been reached on those nearing retirement. The respondent stated that the complainants received appropriate advice and with the benefit of this advice they all voluntarily signed acknowledgements that the payments they received were in full and final settlement of all claim as a result of their employment with it, both in statute and at common law. It submitted therefore that the complainants had waived their right to pursue their complaints to the Tribunal and it had no jurisdiction to investigate them.
Referring to Hurley v Royal Yacht Club the Circuit Court the EO concluded that reference to 'all claims' based on free and informed consent with the full knowledge of their legal rights and that this was not done in these cases:
"The complainants trade union raised its concerns about the proposed treatment of the complainants in terms of the redundancy package for a second time in April, 2006 - when it received a conflicting view from the Equality Authority (to a previous view obtained from the same source) that elements of the redundancy proposals may be contrary to the employment equality legislation - and the respondent refused to re-examine the matter. The trade union later informed the respondent that if the matter was not resolved it would refer complaints to this Tribunal. In the circumstances I cannot accept that the complainants intended to waive their statutory right to refer such complaints when they signed the waiver documents. In light of the foregoing I find that the complainants did not enter into a binding and enforceable agreement which prevents them from pursuing their complaints to this Tribunal and those complaints are properly before me for investigation."
In relation to the discrimination claims themselves, the EO found that the "respondent offered little argument by way of objective justification. It referred to the cost of implementing the redundancy scheme but provided no detail of same. In any event the ECJ has previously held that an employer cannot justify discrimination solely on grounds of increased costs."
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-083-Full-Case-Report.html
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