The Equality Tribunal has recently published several upheld cases on employment equality. The first, second and fifth cases of the six below all involve migrant workers. The first case is a typical case of a worker returning from maternity leave to be initially refused a return to work and then to suffer reduced hours. The second case involves the discriminatory non-recruitment of a Polish national, even though the assessment was carried out by an independent body. The fifth case concerns harassment of Polish construction workers and discriminatory accommodation arrangements.

The third and sixth cases concern reasonable accommodation. In the third case, reasonable accommodation was not considered when relocation was being proposed and the effect of a purported Settlement Agreement was considered by the Tribunal. In the sixth case, medical recommendations on reasonable accommodation were ignored.

The fourth case involves an attempt to introduce a retirement policy in circumstances where there was no consultation or consent for the change and no justification given, except that it had been introduced across a multinational group.


EMPLOYMENT EQUALITY DECISIONS UPHELD IN WHOLE OR IN PART:

1. DEC-E2012-112 Anna Olejniczak v The Docklands Partnership

Issues: Employment Equality Acts - Family Status - Conditions of employment
Award: €11,000

This is a typical case of a complainant suffering detriments at the end of her maternity leave. She had worked for the employer from September 2005 until she took maternity leave in June 2008. Despite a conflict of evidence, the Tribunal accepted that she returned from Poland in January 2009 to be told that there was not enough work for her to resume her employment. She did return to work in June 2009 for a matter of months until the business closed in August 2009, but on significantly reduced hours compared to other workers.

The Tribunal referred to Council Directive 2002/73/EC and the Maternity Protection Acts and concluded “that the complainant was discriminated against when she was not allowed to return on completion of her maternity leave and this discrimination continued when she was allowed to return to work but on less hours than she would have worked if she had not gone on maternity leave.”
She was awarded €11,000 in compensation for the discriminatory treatment suffered.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-112-Full-Case-Report.html

2. DEC-E2012-115: Kamil Jurczewski v Kerry County Council

Issues: Employment Equality Acts, - Section 6(2)(h) Race Ground - Section 8(1)(a), Access to Employment - Vicarious Liability - Inference of Discrimination
Award: €7,500

This is a case concerning discriminatory non-recruitment of a Polish national as a lifeguard. There were 39 applicants. All were Irish, with the exception of three applicants, including the complainant, who were Polish. Only one of the Polish applicants was ultimately successful while all 36 Irish applicants were. The employer used the services of Irish Water Safety to conduct the recruitment tests but it remained in control of its recruitment process.

The Tribunal concluded that a number of issues raised an inference of discrimination. It relied on the Labour Court decision in UCD v Rath (Determination No.: EDA119, 8th April, 2011), where it stated that "... it is well settled that for the purpose of establishing unlawful discrimination the ground relied upon ... need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision.... The type or range of facts which may be relied upon by a complainant to shift the probative burden can vary significantly from case to case....it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts."

The Tribunal concluded that:-
* The complainant was at least as well qualified as all 37 of the successful candidates, and better qualified than most.
* The complainant was at least as experienced as all 37 of the successful candidates, and considerably more experienced than most.
* The complainant was the only person out of all 39 candidates who failed in the First Aid element of the course despite being at least as well qualified in that area of competence as anyone else and better qualified than most.

The Tribunal also considered that nationality was a factor for a range of reasons, including that the complainant had previously worked a Senior Lifeguard on an Irish beach and was marked lower than Irish applicants with no little or no experience. It also took into account the last minute change in the timing of a second test from the day after the first until two weeks later, after the Polish applicants had already made their travel plans (and resulting in a second Polish applicant not being offered employment).

The Employer then failed to rebut the presumption of discrimination. Various factors contributed to this outcome. Although other Irish applicants received negative comments, they were all passed while the complainant was failed. His mark had been reduced from the pass mark of 25 to a fail mark of 24. No extra marks had been awarded for a First Aid qualification, although this was stated in the advertisement. Even though the tests had been marked by an independent body, the process remained the responsibility of the Council.

The complainant was awarded €7,500 in respect of the discrimination and the Tribunal also made an order requiring the Council to “ensure that all those involved in recruitment for it, including those for whose actions it can be held vicariously liable, are made familiar with their obligations under relevant Equality legislation. In particular in this respect, I order that the respondent carries out a review of recruitment processes undertaken by it or on its behalf to ensure that they provide appropriate procedures and mechanisms for the prevention of unlawful discrimination in the context of the Employment Equality Acts.”

This is a valuable case on recruitment processes. There was clear evidence of detrimentally inconsistent marking of the complainant, changing of a mark from pass to fail, failure to award marks for an advertised criterion and changes to the arrangements which were to the detriment of non-Irish applicants.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-115-Full-Case-Report.html


3. DEC-E2012-116: Quirke v Sepam Specialists Ltd

Issues: Employment Equality Acts 1998- 2008 - sections 6, 8 and 16 - disability - discriminatory dismissal - reasonable accommodation - waiver of right to maintain complaint
Award: €18,000

This case concerns reasonable accommodation for disability and also the effect of a settlement agreement. The complainant was employed a Human Resource Administrator from May 2008. She was diagnosed with Narcolepsy in mid-October 2008 and was required to relocate to The Netherlands in April 2009. In consequence, she resigned and claimed constructive discriminatory dismissal on grounds of disability.

The first issue for consideration was whether the signing of a Final Settlement Agreement precluded the complainant from pursuing her discrimination claim. The Tribunal relied on Hurley v Royal Yacht Club ([1997] ELR 225) where Mr Justice Buckley stated, "I am satisfied that the applicant was entitled to be advised of his entitlement under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that this had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in his case, would have been legal advice. In the absence of any such advice I find the agreement to be void."

In this case, the Agreement was a standard one which was presented to the complainant on the day her employment ceased. However it did not refer specifically to the Employment Equality Acts. Also, the complainant received outstanding salary and annual leave entitlements and not any additional consideration to support the waiver of her rights. In these circumstances, the Agreement did not preclude the complainant’s claim.

Having established that the complainant was disabled, the Tribunal concluded that the employer knew of her disability before the events surrounding her resignation and certainly when the relocation was being discussed. Applying the approach in the Labour Court decision in An Employer v A Worker (Mr. O No.2) (EED0410), the Tribunal preferred to adopt the ‘reasonableness’ test in section 2 of the Employment Equality Acts over the ‘contract’ test. The Tribunal accepted that it would normally be necessary for a complainant to give an employer the opportunity to investigate her grievance but, on this occasion, she was entitled to consider that the prospects of altering the employer’s approach was negligible, given its indifference to her concerns. Hence, it was accepted that a constructive dismissal had taken place, which was a discriminatory dismissal in grounds of disability.

Finally, the Tribunal considered the issue of reasonable accommodation. Accepting that section 16 (3)(b) of the Acts, in light of Article 5 of the Framework Directive 2000 (Council Directive 2000/78/EC), established a free-standing right to reasonable accommodation, the Tribunal applied the test in A Company v A Worker (EDA 106), namely that "there is a clear duty on an employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment." It concluded that the claim on reasonable accommodation had been made out and awarded the complainant €18,000 by way of compensation for the distress suffered.

This case is of interest as it is a cautionary tale on using a general settlement template and also on reasonable accommodation. Even though the complainant expected to be relocated when she took up employment, her circumstances changed when she became disabled and the employer had totally failed to consider her situation, resulting in both a constructive discriminatory dismissal and a finding on reasonable accommodation.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-116-Full-Case-Report.html


4. DEC-E2012-119: George Harte v Q Park Ireland Limited

Issues: Employment Equality Acts - Section 6(2)(f) - Section 8(6)(c), Dismissal - retirement ages - Section 34(4) - no fixed retirement age
Award: €15,000

This case concerns an employee in his 70s who had worked for the employer since 1989 and was eventually retired by the employer in September 2009, a year after a retirement policy was introduced. It appeared that employees regularly worked on past the age of 65, with the exception of managers who had a contractual retirement age of 65. In contrast, the complainant never had a written contract of employment. The Tribunal accepted the complainant’s evidence that he only became aware of the policy in April 2009 and that he had not been consulted on it or, in any way, consented to the change.

Having decided that the complainant had been discriminated against compared to younger employees who were not being required to retire, the Tribunal turned to the recurring issue of the application of Section 34(4) of the Acts, which provides an exemption from the application of the Acts to employers who fix retirement ages for employees. It applied Donegal County Council v Porter (High Court unreported (Flood J) 23 March 1993), on the basis that “where the respondents were employed on the basis of a legitimate expectation and where nothing has occurred in the intervening years which could be said to alter that state of affairs by consent, an attempt to force them into retirement by dismissal at a certain age was an attempt to unilaterally alter their contractual situation and would be in breach of contract unless it can be justified in some other lawful way.” (The Tribunal also referred to the Employment Appeals Tribunal case of McIntyre v Leitrim County Council [2006] Case No. UD926/2004.)

Finally, on the relationship between section 34(4) and the Framework Directive 2000, the Tribunal quoted Donnellan v Minister for Justice ([2008] IEHC 467), "Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate." In this case, the employer gave evidence that it had applied a retirement policy introduced by its parent company across a range of EU and EEA States. The Tribunal took the view that it had not presented any arguments that the discrimination against the complainant served any legitimate aim or purpose and so concluded that section 34(4) did not apply. He was awarded €15,000 in respect of the discrimination.

This case goes further than cases such as O'Neill v Fairview Motors Ltd (DEC-E2012-093), reviewed in the July and August successful cases, in that the employer did attempt to introduce a retirement policy but did so without consultation with, let alone, consent from the affected employees. Nor is it sufficient to submit that the policy was applied across a multinational group of companies without specific justification, whether at the multinational or national level.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-119-Full-Case-Report.html


5. DEC-E2012-122: Pawelec and others -v- ARKIL Ltd

Issues: Race, contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, promotion, training, conditions of employment, harassment, discriminatory dismissal, equal pay, victimisation and victimisatory dismissal
Awards: €5,000 for harassment and €10,000 for discrimination

This is a complaint by six Polish construction workers, who worked for the employer for at least four years prior to their dismissal in May 2009. The first-named did not make representations to the Tribunal and the case proceeded on the basis of submissions by the remaining five complainants. The Tribunal dismissed complaints on equal pay, discrimination in training, victimisation and discriminatory and victimisatory dismissals but found in favour of the complainants on discriminatory terms of employment and harassment.

In terms of harassment, there was evidence from the employer’s Irish employees that the complainant’s line manager was prone to ‘fiery outbursts’. The Tribunal preferred the evidence of the complainants that these included racist abuse. The Tribunal accepted that the complainants could not have been expected to use the company’s grievance procedure as this would have involved a complaint to their line manager, or then to his manager, who was a close associate of the line manager, and ultimately to the company’s managing director. The Tribunal accepted their evidence that they did complain to a Polish engineer in the company and that was as much as could have been expected of them.

A key issue on discriminatory terms of employment, in relation to accommodation provided by the employer, was that their line manager and his manager purchased a house, which they rented to the employer company which, in turn, rented it to the complainants. The Tribunal accepted that this was a discriminatory arrangement. It found that the two managers had exploited this situation through charging excessive rents and, given its conclusions on harassment, that their line manager had threatened them with dismissal when they objected to the arrangement. The Tribunal concluded that this dependent relationship would have been “most unusual” in the case of an Irish worker and so that these were discriminatory arrangements, in which the employer colluded through the rental arrangements and was, in any event, vicariously liable for the acts of the two managers.

On the basis of these two sets of conclusions, each of the five remaining complainants was awarded (i) €5000 for the harassment endured and (ii) €10,000 for other discrimination in relation to his conditions of employment.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-122-Full-Case-Report.html


DEC-E2012-125: A Prison Officer -v- The Irish Prison Service

Issues: Employment Equality Acts - Sections 6 and 8 - Disability - Promotion - Harassment - Failure to Provide Reasonable Accommodation.
Award: €10,000

The complainant was employed by the Prison Service from 1987 and was promoted to Assistant Chief Officer (ACO) in 2002. There had been an incident in 1996, after which he suffered depression, which was controlled by medication. However, he had a relapse after an incident on Christmas Eve 2007. After periods of sick leave, he claimed that the Service failed to provide reasonable accommodation, for example, by excusing him night shifts or allowing him to act as a floating ACO. He gave examples of situations in which reasonable accommodation had been made in the cases of other officers but none had been made in his case.

He also set out a series of incidents which he considered amounted to harassment by a number of Governors which he considered were related to his disability, as set out in section 14A (7) of the Acts.

The first issue considered by the Tribunal concerned time limits. Applying section 77(5) of the Acts, the Tribunal concluded that there had been a series of related events from Christmas Eve 2007 until April 2009. Since the claims were made in August and September 2009, they were in time. However, the complainant had also made a claim about his probationary period after promotion in 2002 up until 2005 and these claims were out of time.

On the issue of reasonable accommodation, under Section 16(3) of the Act, having determined that the complainant was disabled, the Tribunal concentrated on the Service’s refusal to excuse him night shifts. It followed the approach of the Labour Court in A Health and Fitness Club v A Worker (EED037). This included looking at the "factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently." The Tribunal was satisfied that, after the complainant’s first request on night shifts was refused on operational grounds, the relevant officer did not consider a detailed medical certificate from the complainant’s GP, including a recommendation that he be excused night shifts.

The Tribunal concluded that the employer had failed to consider properly the complainant's request for reasonable accommodation, by ignoring the doctor's certificate and that this amounted to discriminatory treatment in relation to his disability.

It dismissed the complaints on harassment, concluding that, given the nature of the work, such incidents could be stressful but were “part of the job” and were not related to his disability.
He was awarded €10,000 in compensation for the discriminatory treatment suffered.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-125-Full-Case-Report.html