The Equality Tribunal has published three upheld cases decided in May 2012. All the cases involve Polish workers, although the nationality of the complainant was incidental to the first case, which is another example of a dismissal during the ‘protected period’ of maternity leave, where the employer had failed to make certain that the complainant was resigning before issuing a P45.

The second case involves an altercation away from the workplace concerning the state of accommodation provided by the employer. The Tribunal sympathised with the employer in that he appeared to have been ‘set up’ to enter into the altercation in which abusive, racist language was used on both sides and made an innovation order to require procedures to be put in place to avoid a repetition, without making any compensation order.

The third case involves a respondent in liquidation, in which the Tribunal accepted that one element of one complainant’s claims on unpaid driving responsibilities had been made out as discrimination in conditions of employment.


1. DEC-E2012-056 Lucyna Cierocke v Viking Lodge Hotel

Issues: Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Race - Condition of employment - Prima facie case
Award: €4,500

This is another maternity leave dismissal, in this case during the ‘protected period, under the Pregnant Workers Directive 92/85, the Equal Treatment Directive and sections 6 and 8 of the Employment Equality Acts.

The claimant had visited the workplace with her baby during her maternity leave. The Tribunal accepted the “consistent and credible accounts” of the respondent’s witnesses that some discussion took place over whether she could change her working hours and the manner of her future payment, although the complainant disputed this.

However, in line with decisions such as Parcourt Ltd t/a Café Viena v A Worker EED0211 and also Dollymount Creche & Montessori v Finnerty EED034, there is a heavy onus on an employer to have indisputable evidence that a worker is resigning before issuing a P45 during the protected period. In this case, there was insufficient evidence of this intention on the part of the complainant. The respondent had failed to resolve all possible doubts on this and, in the absence of a clear, unambiguous resignation by the complainant, should not have issued the P45.

In light of the circumstances of the case, the complainant was awarded €4,500, being approximately 3 months’ salary.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-056-Full-Case-Report.html


2. DEC-E2012-058: Two Complainants v A Respondent Contractor

Issues: Employment Equality Acts - Discriminatory Treatment - Race - Gender - Prima facie case - Order under Section 82(1)(e) of the Acts
Award: No compensation was awarded

This case arose out of an altercation between a respondent employer and a number of Polish workers, not in the workplace but at accommodation provided for the workers. The respondent determined to evict the workers from the premises in light of the state of the accommodation, excessive utility bills and a substantial build-up of rubbish on the property.

The Tribunal accepted that the respondent had used abusive, racist language, with reference to the complainants’ nationality in response to abusive, racist language used by a ‘ring leader’ on behalf of the workers involved. The altercation had been taped, although not in an accessible format. A transcript of the tape was made but not submitted to the Tribunal.

The Tribunal accepted that a prima facie case of discriminatory behaviour had been made out, even though the respondent had reacted ‘in the heat of the moment’ and may have been subject to a ‘set up’ prior to a complaint under the Acts.

Although a finding was made against the respondent, on the basis that racist language could not be tolerated, the Order made by the Tribunal was “that the respondent introduce procedures to eradicate any use of racist language in his employment within 6 months of the date of this decision and that those procedures include appropriate sanctions for persons who continue to use such language”. No order for compensation was made.

Hence the consequences of racist language by an employer, even under provocation, were acknowledged but the sanction was directed at avoiding a repeat of such behaviour rather than granting any financial award to the complainants.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-058-Full-Case-Report.html


3. DEC-E2012-059: Aurimas Rimkunas, Mindaugas Gasiunas and Modestas Norvaisa v Tusker Agricultural Services Limited (in liquidation), Liquidator McDwyer, Lennon & Co. and Tusker Steelworks Limited

Issues: Employment Equality Acts - conditions of employment - discriminatory dismissal - equal pay - race
Award: €7,500

This case involved complaints by three Polish workers, the first-named of whom withdrew his complaints. The respondent was in liquidation and the liquidators did not attend the hearing. The respondent did make some written submissions to the Tribunal.

Claims were made by both remaining complainants that contracts of employment were not issued until nearly two years into their employment and not at all in the complainants’ own language. Claims were also made that adequate health and safety training had not been given and that whatever training was given was not in the complainants’ own language. The Tribunal concluded that a prima facie case of discrimination had not been made out. Claims for equal pay and discriminatory dismissal by the last-named complainant were also not made out.

However, the Tribunal did accept the un-contradicted evidence of the third-named complainant that he had been required to undertake driving duties over a three to four months’ period without being paid for it. The Tribunal accepted that there was a prima facie case of discrimination in his employment conditions on grounds of his nationality and awarded him €7,500, being the equivalent of approximately three months’ pay.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-059-Full-Case-Report.html