The Equality Tribunal has published six upheld cases on employment equality decided in August 2012.

* The first case was only upheld on an equal pay point but raises interesting issue on illegal employment relationships.

* The second and third cases involve substantial awards. The second case raises the issue of alleged sexual harassment of a teacher by students. It is significant as it emphasises that ‘third party harassment’ of an employee by non-employees, is covered by the Employment Equality Acts and also highlights the difficult of substantiating such allegations. It is also a cautionary tale in that the school, having defended itself on the handling of the allegations, lost the case on a victimisation complaint in relation to the complainant’s subsequent dismissal.

* The third case involves selection for redundancy of a pregnant worker in the financial services sector during her ‘protected period’.

* The final three cases all involve hospitality and catering. The fourth and fifth cases concern disability discrimination. In the fourth case, a worker with a disability was dismissed shortly after it became known that she had a disability, without any capability procedures being followed. In the fifth case, a worker on medium-term sick leave was dismissed on grounds of incapacity without any consultation with her.

* The final case involves the issue of mandatory retirement age as direct age discrimination. The worker was dismissed once her age became apparent to the employer, which argued the case on the basis of the ‘age restriction’ exclusion in section 34(4) of the Employment Equality Acts, rather than seeking to objectively justify the mandatory retirement age.


EMPLOYMENT EQUALITY DECISIONS UPHELD IN WHOLE OR IN PART:

1. DEC-E2012-100: Levente Szabo -v- Padraig Thornton Waste Disposal Limited t/a Thorntons Recycling

Issues: Conditions of employment - harassment - equal pay - race.
Award: €5,000 for equal pay and €950 pay arrears

This case was only upheld on the equal pay point but is worth mentioning on the issue of illegal contracts. The complainant, a Romanian citizen of Hungarian origins, was employed by the respondent employer from February 2007 until his resignation in May 2009.

He claimed that a director of the company had advised him to get a false Hungarian passport when an application for a work permit under his Romanian passport failed. Eventually, when the tax authorities became aware of his work status, he was persuaded to resign. In the end, the Tribunal did not accept the complainant’s version of events but did make an award of €5,000 compensation on the equal pay point, for the effects of the discrimination plus arrears of pay of €950.

The case is of interest as the Court of Appeal in England and Wales has recently ruled on the issue of ‘illegal contracts’ in Hounga v Allen [2012] EWCA Civ 609. Its approach was to draw a distinction between situations in which the worker ‘actively participated’ in the illegality of the contractual arrangement or merely acquiesced to it.

This Szabo case appeared potentially to come within the former category. However all such cases are governed by EU Equality Directives and it remains to be seen whether the Court of Justice of the EU takes a similar view as the English courts to the scope of the Directives in terms of illegal employment relationships.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-100-Full-Case-Report.html


2. DEC-E2012-103: A Female Teacher -v-Board of Management of a Secondary School

Issues: Discriminatory treatment and harassment - gender - conditions of employment - discriminatory dismissal - sexual harassment - victimisation - victimisatory dismissal - prima facie case.
Award: €75,000

This is certainly a cautionary tale for employers who might ‘win the battle’ over substantive complaints of discrimination and harassment but ‘lose the war’ over a victimisation complaint. It also shows how difficult, but necessary, it is to apply equality principles in a school environment.

The complainant had a range of complaints against her employer, primarily involving allegations of verbal sexual harassment by five students. In some cases, she initiated the school’s disciplinary procedure and investigations took place. Other students were interviewed as part of these processes and there was not sufficient evidence to verify the complainant’s allegations. The Director of the Tribunal rejected these complaints on the basis that the school had followed its procedures and had robust harassment policies in place. There was a further complaint of harassment involving a pornographic drawing but here the school had dealt adequately with the matter.

This aspect of the case is interesting as it is clear that section 14A (and section 32) of the Employment Equality Acts covers what may be described as ‘third party harassment’, namely harassment of an employee by a non-employee, in this case, the students. This is a controversial issue in Great Britain, where the Government intends to repeal third party harassment provisions in the Equality Act 2010 as being ‘unworkable’. However it would appear that the Irish position is compatible with the harassment provisions in the EU Equality Directives, at least according to English authorities, such as Equal Opportunities Commission v Secretary of State for Trade & Industry [2007] EWHC 483.

Nonetheless, the case shows both the difficulties of establishing a harassment case, particularly in a school environment, and the necessity to have robust policies and procedures, including for third party harassment, which are adequately applied.

On the second major element of the complaint, the complainant was successful. At the end of the complainant’s probation period, the Principal gave a damning report to the Board of Governors and she was dismissed. Here, the Tribunal concluded that she would not have received such a report and would not have been dismissed if she had not made her complaints, even if they were considered to be unfounded. So it is important not only to follow correct procedures when dealing with harassment cases but also to ensure that the complainant does not suffer any detriment, even if the complaints are not upheld.

She was awarded €75,000 compensation for the effects of the act of victimisation.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-103-Full-Case-Report.html


3. DEC-E2012-105: Claire Keenan-v- Stephen Kehoe t/a Mortgage Cabin

Issues: Gender - conditions of employment - dismissal - victimisation - dismissal while pregnant
Award: €95,000

This is another ‘protected period’ case, involving selection of a pregnant worker for redundancy. In this case, the respondent employer did not appear at the hearing although he did make written submissions to the Tribunal.

The complainant worked for the employer from February 2005 until she was made redundant in June 2008. She announced that she was pregnant in December 2007 and, according to evidence accepted by the Tribunal, she was pressurised into taking a two month period of maternity leave and agreeing to work from home during the leave period. A male colleague was employed from May 2008 to help with the workload and the Tribunal accepted that he was doing broadly similar work to the complainant, at a more junior level. Apparent financial difficulties in the company resulted in the complainant’s redundancy on 15 June 2008.

The Tribunal once again emphasised the special status of the protected period for pregnant workers, including the entire period of pregnancy and maternity leave, as set out in the Labour Court decision in Trailercare Holdings -v- Healy (EDA128, 16 March 2012). The burden of proof was therefore on the respondent to show that the dismissal was not connected to the pregnancy and he had failed to do so. He had argued that the choice was between himself and the complainant but the Tribunal accepted that the choice was between the complainant and her recently appointed male colleague.

The complainant also attempted to raise a victimisation issue in that she claimed that the respondent refused to pay her holiday and some commission unless she agreed a full settlement with him. However the Tribunal concluded that this issue was not mentioned in the original complaint and was only raised over a year after the original complaint and therefore could not be addressed by the Tribunal.

She was awarded €95,000 (being the approximate equivalent of twelve month's remuneration) in respect of the discrimination.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-105-Full-Case-Report.html

4. DEC-E2012-106: A Hotel Worker -v-A Hotel
Award: €7,000

Issues: Direct discrimination - less favourable treatment - disability ground- conditions of employment - reasonable accommodation - dismissal - burden of proof.

This is a complaint of disability discrimination. The complainant was employed as a waitress for about 6 weeks in September and October 2009. She did not mention her disability at the time of the interview because she felt that it would not affect her work but the Tribunal accepted her evidence that she did mention it to some of the staff and her supervisor in a social context after a few weeks, by which time she had received a favourable assessment of her work from her manager.

She claimed that criticisms of her work only began after her disability became known in the workplace. After six weeks, she was dismissed, according to the respondent, for poor performance.

The Tribunal accepted the medical evidence of the complainant’s disability and applied well-established principles on the burden of proof. The complainant’s evidence was ‘convincing’. The employer failed to rebut the presumption of discrimination. A HR Manager gave evidence but not the managers responsible for her assessment. The complainant had signed a written contract shortly before her dismissal. She had received no training and the disciplinary procedure had not been followed. The company continued to recruit waitresses after the complainant’s dismissal.

The Tribunal was therefore satisfied that her dismissal was because of her disability. A claim of reasonable accommodation was dismissed as the complainant’s disability did not affect her work. She was awarded €7,000, being approximately 6 months’ wages, in compensation for the effects of the discriminatory dismissal.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-106-Full-Case-Report.html


5. DEC-E2012-109: Vicky Farrell -v- Kerry Group Services Limited

Issues: disability - conditions of employment - dismissal - reasonable accommodation - equal - victimisation.
Award: €8,000

This is another disability discrimination case, again concerning dismissal. The complainant worked for the respondent as a canteen worker from March 2000 until June 2009. She had a hip operation after a fall in July 2007, was off work until October 2007 and returned to work initially on a part-time basis before returning to full time hours in February 2008. She went back on disability-related sick leave in February 2009.

In terms of the assessment of her work capability, the Tribunal concluded that the company had followed the correct procedures. She had two medical assessments by the company’s occupational health specialists, the second on 12 May 2009, and one by her doctor. The specialist’s report concluded that the complainant was unfit for heavy manual work and was unlikely to become fit for this in the foreseeable future. It also found her fit for desk based duties or duties which do not require prolonged standing or walking. It also recommended that the complainant be considered for redeployment or early retirement.

However the complainant was dismissed on grounds of incapacity on 2 June 2009, by way of a letter sent by courier. The Tribunal did not accept the respondent’s evidence that an HR manager, who had since left the company, had been in phone conversations with the complainant prior to her dismissal. Crucially, there were no records of such conversations.

The Tribunal relied upon the Labour Court decision in A Health and Fitness Club -v- A Worker (Labour Court Determination No. EED037 - case upheld on appeal to the Circuit Court) on reasonable accommodation and dismissal in disability cases. The Tribunal stated that this case “interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.”

Here, the Tribunal was satisfied that there had been no consultation with the complainant and therefore no input from her on what reasonable accommodation might be made.

The complainant went on to complain that her dismissal had been brought about to prevent her applying for a redundancy programme which was introduced shortly after she was dismissed. Despite ‘early retirement’ being mentioned in the medical report and despite evidence from a former co-worker that a redundancy programme was commenced in the month after her dismissal, the Tribunal concluded that there was ‘no evidence’ of a connection between the two.

The complainant was therefore awarded €8,000 in compensation for discriminatory dismissal.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-109-Full-Case-Report.html


6. DEC-E2012-110: Roseanna Nolan -v- Quality Hotel, Oranmore -now trading as Maldron Hotel, Galway

Issues: Discrimination – age - retirement age - objective and reasonable justification.
Award: €9,000

This is another case from the hospitality sector, this time concerning a kitchen worker was dismissed when the employer realised that she was 68 years of age. She had been employed since 1998 and took ill in April 2009. The hospital medical certificate set out her date of birth and she was dismissed with four weeks’ notice.

The respondent claimed that she must have given an inaccurate date of birth on her application form but, since the hotel had changed hands, a copy was not available for the Tribunal. She also explained a false date of birth on a medical questionnaire in March 2004 as a mistake by her daughter who had filled it out for her.

The Tribunal took into account the complainant’s evidence that she could have obtained a medical certificate from her doctor which would not have contained her date of birth and concluded that she had not deliberately misled her employer.

This leads on to the main issue, namely whether the employer had a mandatory retirement age and whether the complainant was aware of it. The respondent could not produce any evidence of an explicit mandatory retirement age from contracts or the Company Handbook at the time that the complainant was dismissed.

The Tribunal distinguished the case of McCarthy v HSE ([2010] IEHC 75) on the basis that the complainant in that case ought to have known about a mandatory retirement age in the public sector but that the hospitality sector “was not a monolith”. This complainant was much older than her co-workers and there had not been any mandatory retirements in the hotel. However, the Tribunal did accept that the company had a mandatory retirement age, in that it had immediately dismissed the complainant upon learning of her age.

After examining the authorities, the Tribunal turned to issue of objective justification for direct age discrimination under the Framework Employment Equality Directive 2000. In previous cases, respondents had argued that the significance of Section 34(4) of the Employment Equality Acts (see, for example, DEC-E2012-093: O'Neill v Fairview Motors Ltd), which appears to exclude age restrictions from the scope of the non-discrimination principle. However, in this case, a respondent represented by IBEC chose to rely entirely on section 34(4) and not offer any evidence on objective justification.

The Tribunal recalled the statement of Hamilton J in Nathan v Bailey Gibson ([1998] IR 2 IR 162, reflecting the principle of the indirect effect of EU Directives, “It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in light of the wording and the purpose of the directive in order to achieve the result envisaged by the directive.”

The Tribunal also relied upon Donnellan v The Minister for Justice, Equality and Law Reform ([2008] IECHC 467) where McKechnie, J. states, “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.”

Whether the Tribunal’s approach precipitates further litigation remains to be seen. In this case, in the absence of argument on objective justification, the Tribunal concluded that this was a discriminatory dismissal and awarded the complainant €9,000.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-110-Full-Case-Report.html