The Equality Tribunal recently published 35 Decisions taken under the Employment Equality Acts, just 6 of which were successful. Summaries of the successful complaints appear below.

The decisions are more varied than we have seen in recent months. Awards range from just €500 for a man who was allegedly threatened with a referral to the Department of Social and Family Affairs for fraud if he did not settle his claims to over €32k for a male to female transgender employee made to work from home and required to wear male clothes when meeting clients.

Of most interest to employers with employees close to or beyond retirement age is the last case, where the Equality Officer found that a previously liberal approach to retirement had made the official policy defunct:

"Working beyond 66 was at the discretion of the employee and nobody who asked to work on had been refused. Therefore, at the time the complainant reached sixty six it was custom and practice within the respondent that there was no retirement age."
http://bit.ly/mO9l17


EMPLOYMENT EQUALITY DECISIONS UPHELD OR PART-UPHELD:


1. DEC-E2011-.38:HSA -v- A Company

Grounds / Issues: Discriminatory Treatment, Gender, Pregnancy, Disability, Discriminatory Dismissal
Award: €15,000 for Discrimination

The complainant submitted that she was employed as a Business Development Executive by the respondent from 22nd June, 2007 until 24th January, 2008 when she was dismissed from her employment. In December, 2008 the complainant was ill and was absent from work for a period of four weeks. The complainant returned to work on 7th January, 2008 following this period of illness and worked at first on a three day week basis (she had worked a five day week prior to this period of sick leave). This arrangement was to last for a period of four weeks after which it was intended that she would return to a five day week. The complainant submitted that she had a meeting with Ms. X, Manager, on 7th January, 2008 and explained to her that she was pregnant and that she had also been diagnosed with multiple sclerosis (whilst she was absent on sick leave).

The complainant submitted that Ms. X called her into a meeting on 24th January, 2008 and informed her that sales targets were not being met and that her position was not there anymore. The complainant submitted that the sudden termination of her employment without prior notice came approximately two weeks after she had advised Ms. X of her pregnancy and that she had been diagnosed with multiple sclerosis. The complainant submitted that she had not been given any prior indication that her position was in jeopardy on the basis of poor performance or failure to achieve sales targets.

The respondent stated that prior to the complainant's commencement of employment she completed a questionnaire as a result of which it became aware that she was at the early stages of multiple sclerosis. The Equality Officer accepted this position and the disability claim fell.

However, the Equality Officer concluded:

"Having regard to the evidence adduced, it is clear that the complainant did not achieve her sales targets during her period of employment and I note that she did not dispute the respondent's evidence that the level of sales which she achieved during this period were significantly lower than the targets which had been set upon the commencement of her employment. However, I do not accept that the respondent raised these performance related issues with the complainant to the extent which it claims or that it gave her any indication prior to the announcement of her pregnancy in January, 2008 that her employment would be terminated if her performance did not improve."

An award of €15k was made for gender discrimination.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-038-Full-Case-Report.html


2. DEC-E2011-046 An Employee -v- An Employer

Grounds / Issues: Race, Conditions of Employment, Training. Harassment, Victimisation, Equal Treatment
Award: €500 for Victimisation.

This was an unusual case, where the allegations of discrimination fell, except in one respect: victimisation. Indeed, the victimisation consisted of pressure from the respondent's wife in relation to the complainant's wife!

The complainant alleged that the respondent's wife offered €1k to settle the claims and then the respondent's wife said that if the complainant did not agree to the settlement she would inform the Department of Social and Family Affairs that his wife had been claiming Family Income Supplement (FIS) when she was not entitled to it. No-one turned up to rebut the claims and the EO awarded €500 because in relation to the complaint, "... this was not an act of victimisation that could be considered to be among the more serious cases to be brought before this Tribunal."
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-046-Full-Case-Report.html


3. DEC-E2011-054:A Complainant -v- An Auctioneer

Grounds / Issues: Discriminatory Treatment, Gender, Pregnancy, Constructive Dismissal, Discriminatory Dismissal
Award: €15,000 for Discrimination.

This was another maternity case, but this time the employee was attempting to return to work after maternity leave. She had previously worked three days a week as a job sharer and the respondent offered just one day per week when she sought to return. She resigned and claimed constructive dismissal. The complainant claimed that she was discriminatorily dismissed from her employment on the basis of the respondent's refusal to allow her to return to the same job on the same terms and conditions following her period of maternity leave.

The respondent argued the reduction had been a temporary move until the hours of other secretarial help was sorted but the EO did not accept this was made clear to the complainant and it was accepted that the constructive dismissal was correct. €15k was awarded (just €600 below the maximum award of 104 weeks' pay).
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-054-Full-Case-Report.html


4. DEC-E2011-058:An Employee -v- An Employer. Grounds/ Issues: Race, Employment Status, Conditions of Employment, Discriminatory Dismissal, Harassment
Award: €5,000 for Harassment.

The complainant, who is a Latvian national, stated she was employed by the respondent from June 2008 to 31 August 2009 as an administrator/cashier in a barber shop. She normally worked five days a week and was paid €380 a week. She submitted that she did not receive a contract of employment, health and safety documentation nor training. She contended that she never received any tax documentation. She further contended that on 31 August 2009 she was pushed out of the respondent's premises by a person who had come to work there. She alleges that the owner regularly used foul and abusive language to her. She stated that the owner spoke Russian and addressed her using Russian slang terms which are derogatory and demeaning towards women.

The respondent did not attend and an award of €5k was made.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-058-Full-Case-Report.html


5. DEC-E2011-066: An Employee -v- An Employer

Grounds / Issues: Conditions of Employment, Discriminatory Dismissal, Gender, Disability.
Award: €35422.71 Redress.

The complainant was diagnosed with Gender Identity Disorder in and around 2005 and is a male to female transsexual. The complainant claimed that since she informed her employee of her true identity and her need to live in this identity her working conditions were made intolerable to such an extent that she was ultimately constructively dismissed as a result of her transition from male to female.

The complainant underwent transgender treatment whilst employed. She also had a period of absence. She alleged that on return to the office the next day she was asked aside and was informed that she could not use the female toilets nor mention the subject to anyone. The complainant stated that the female toilet was occasionally used my male staff and drivers when the male toilet was occupied. She was also told that she could only dress in her female identity while in the office but that she would have to change into her previous male identity when seeing clients. The complainant stated that she found this request impossible to comply with and when asked to visit a client company the very next day she chose to deal with them over the phone instead.

She then worked from home whilst new offices were being prepared but did not like it and there were problems in relation to payments. Eventually she resigned.

The respondent denied the allegations and referred to a transitional schedule that would help move the complainant forward in her transgender progression. However, the EO did not accept the purpose of this schedule and found, "... that the approach set out by the respondent has little in relation to actually enabling the complainant to work in her female identity and is not realistic in terms of timing... [and was]... not satisfied... that the respondent had a genuine business need for the complainant to work from home."

The Equality Officer awarded 79 weeks' pay, amounting to compensation of over €32k.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-066-Full-Caase-Report.html


6. DEC-E2011-067: An Employee -v- A County Council

Grounds / Issues: Age, Conditions of Employment.
Award: €10,000 for Discriminatory Treatment.

The complainant was a General Services Supervisor in Longford County Council. He said the general retirement age was 66 for outdoor workers but they were allowed to work beyond 66 and in some cases into their 70s, up to 73. The complainant wanted to work beyond 66 in order to give himself more service towards his pension. The complainant submitted that the respondent forced him to retire at age 67, thus refusing him the same retirement age as others had been permitted. The complainant used a Freedom of Information request to show that from 1998 to 2008 a total of 14 outdoor employees had worked beyond the normal retirement age of 66.

The Council accepted there had been some inconsistencies but relied on a superannuation code and provided other evidence about retirement. However, the EO found that, " the Superannuation Code stated that employees should retire at 65 and there was an agreement in place that outdoor workers would retire at 66. Furthermore the respondent allowed any outdoor worker who wanted to continue working past their 66th birthday and to retire when they wished. That was the complainant's expectation when he reached his 66th birthday."

The Equality Officer awarded €10k and concluded:

"The respondent contended that their policy was implemented for legitimate aims; financial and manpower planning. Whilst I am not considering their aim in relation to anyone who was under 66 on 1 January 2007 I do have to consider it for the complainant who was past his 66th birthday on 1 January 2007. The respondent allowed this and would have planned accordingly when they did not make him retire at age 66. Working beyond 66 was at the discretion of the employee and nobody who asked to work on had been refused. Therefore, at the time the complainant reached sixty six it was custom and practice within the respondent that there was no retirement age. I therefore conclude that making the complainant retire before his legitimate expectation does not satisfy a legitimate aim and I find that the complainant's enforced retirement was discriminatory on the grounds of his age."
http://bit.ly/mO9l17