The Equality Tribunal has published four upheld cases decided in April 2012. The first involves victimisation of a Director of Services in the health sector and an award of €45,000. Only two of a wide range of victimisation complaints were upheld following an original equal pay complaint but the case shows that employers must be able to justify every stage of a review or investigation process, particularly when pre-existing complaints are also at issue.

The second case involves three Polish workers who had race discrimination claims on pay, conditions of employment and dismissal, which were successful in part in the absence of the respondent employer.

The third case is a cautionary tale of dismissal immediately after maternity leave was over but based on a decision taken during the ‘protective period’.

The final case is a particularly distressing disability discrimination case, in which a worker was dismissed a few days after a serious operation.

1. DEC-E2012-042: Kealy v Brothers Of Charity Services (Clare) Ltd.

Issues: Employment Equality Acts, Victimisation. Vicarious liability. Law of agency.
Award: €45,000

This high-profile, and complicated, case involves allegations of systematic victimisation of a Director of Services (effectively Chief Executive) in the health sector. K had an ongoing equal pay case at the Tribunal and before the Labour Court. Her victimisation complaints commenced when one of the male comparators in her case (Mr A, himself a former Director of Services in another region) was appointed Chairperson of the Board of Directors in Clare by the National Board. Other complaints were directed at Mr A’s treatment of K, the appointment of an outside consultant to review Clare Services and also her treatment by the Chief Executive and Chairperson of the National Board of the Brothers of Charity. Finally, she complained about the respondent’s treatment of its appeal to the Labour Court in the equal pay case.

Ultimately, the Tribunal found it difficult to distinguish a general deterioration of relationships within the Board of Directors, and between Clare Services and the National Board, from ‘adverse treatment’ based on her equal pay claim. Nonetheless, she succeeded on two of her complaints, namely that the Chief Executive of the National Board had briefed an independent consultant, drafted in to conduct a review of services in Clare, about K’s equal pay claim. Secondly, she also succeeded on the complaint that the draft review report was circulated to members of the Board of Clare Services but not the complainant, although the review was of Clare Services as a whole.

The case was not just complicated in an evidential sense. The Tribunal has to cope with issues of the extent to which the respondents, Brothers of Charity Services (Clare) Ltd, against whom the equal pay claim had been brought, could be liable for acts at the National Board level.

On the one hand, the Tribunal rejected arguments that the National Board was in some way an ‘agent’ for the respondents, for example, in the Appointment of Mr A as Chairperson. On the other hand, the Tribunal, noting the case of Whooley v Millipore Ireland BV and Millipore Corporation, accepted that the respondent could be liable for the actions of those at the level of the National Board, the former being a wholly owned subsidiary of the latter. Clark J, in Whooley, is quoted as stating, “"If her employer, as a subsidiary within a group, allows personnel from other companies within the group to have a direct role with her in the context of her employment, then her employer is responsible for those persons ... Any acts carried out by personnel from other companies within the group as a result of such a structure are actions for which the subsidiary employer must bear responsibility."

The Tribunal also relied on the three-fold test in the Labour Court decision in Tom Barrett v Department of Defence in its application of section 74(2) on victimisation. First, it must be clear that at the relevant time the complainant had taken a protected act in terms of section 74(2) of the Acts. The next issue is whether or not the treatment of the complainant constitutes "adverse treatment" in terms of section 74(2). Finally, the adverse treatment must be in reaction to the protected act having been taken by the complainant.

The Decision is valuable in showing how reversal of the burden of proof, once a prima facie case is established, requires an employer to explain why a particular course of action was followed. It also shows that, even in sensitive investigations such as in this case, employers and governing bodies must be able to justify every stage of the process, particularly when pre-existing court or tribunal proceedings may be brought into play. In this case, the two successful elements of her claims could not be explained except on the basis of a reaction to her equal pay claims and the complainant was awarded €45,000.
http://bit.ly/MLMOGf


2. DEC-E2012-050: Antoni Kapusta, Slawomir Rutkowski & Przemyslaw Smolarek v Edward McDonald

Issues: Employment Equality Acts - sections 6 and 19 - conditions of employment - discriminatory dismissal - equal pay – race
Award: €15,000 each

This is a case of three Polish workers claiming equal pay (on grounds of race), equal treatment in conditions of employment and discriminatory dismissals against a respondent whose representative withdrew from the case and who failed to attend the Tribunal’s hearing.

The claimants contended that they were paid half as much as two Irish comparators. However there were (minor) inconsistencies in their accounts of the sums paid to the comparators and some indications of supervisory functions on the part of the comparators. Hence their equal pay claims failed.
On equal treatment in working conditions, the Tribunal concluded that there was not enough evidence of inferior working conditions to those of Irish workers, such as being given dangerous jobs and being made to work on weekends and public holidays. However, on the failure of the respondent to pay PRSI and tax payments on behalf of the Polish workers, the Tribunal accepted that Irish workers would not have been treated in this manner.

On the claim of discriminatory dismissals, the Tribunal once again concluded that there was insufficient evidence that Irish workers would have been treated differently.

The Tribunal quotes from the Labour Court in ED/01/13, Determination No. 045 Citibank and Massinde Ntoko, “This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof."
This approach obviously has its difficulties when the respondent fails to attend to have its evidence tested at hearing. The claimants were awarded €15,000 each for the successful parts of their claims. However, in the absence of the respondent, it is difficult to see what more they could have done to establish the claims which were unsuccessful.
http://bit.ly/SKUFId


3. DEC-E2012-051: Eleanor Merriman v Edenderry Swimming Pool Limited

Issues: Employment Equality Acts - Discriminatory Dismissal - Gender - Family Status - Maternity Leave - Prima Facie Case
Award: €17,500

This case involves the dismissal of the complainant on the day after her maternity leave ended and while she was still on agreed annual leave. An apparent attempt to terminate the complainant’s employment during her maternity leave was withdrawn but she refused to attend a meeting with the Board of the Swimming Pool during that time.

Although her dismissal had occurred immediately after the end of her maternity leave, the Tribunal relied on the ECJ case of Paquay v Société d'Architeches Hoet + Minne SPRL (Case C-460/06) to reverse the burden of proof against the respondent. This was on the basis that Article 10 of the Pregnancy Leave Directive "must be interpreted as prohibiting not only the notification of a decision to dismiss on the grounds of pregnancy and/or the birth of a child during the period of protection set down in paragraph 1 of the Article but also the taking of preparatory steps for such a decision before the end of that period."

The Tribunal accepted that the Swimming Pool was in financial difficulties but these did not appear to have worsened to such an extent that the dismissal of the complainant was necessary without further discussion with her, together with discussion of the position of those who had been brought in partly to cover for her responsibilities. If she had not been absent from the workplace on maternity leave, the position would have been handled differently. She was therefore awarded €17,500, being the equivalent of 6 months’ pay.

The case is a cautionary tale on the extent of the protective period enjoyed by workers on maternity leave, including decisions taken during the period but brought into effect after it is over, and the need to be careful not to attempt to take advantage of the worker’s absence during that period.
http://bit.ly/Mv94FE


4. DEC-E2012-053 Ms. Elizabeth Graham v Atolvo Enterprises Limited

Issues: Employment Equality Acts – Disability - Promotion, conditions of employment and dismissal on grounds of disability, age and gender
Award: €17,500

This case concerns the dismissal of a part-time worker while she was in hospital recovering from a serious operation. The Tribunal was satisfied that the complainant was disabled, having had both a tumour and her kidney removed during the operation.

The Tribunal relied on the case of Humphries v Westwood Fitness Club to conclude that the “respondent, in the instant case [which did not attend the hearing as it had been declared insolvent], made no enquiries whatsoever in order to ascertain when or if the complainant would be in a position to return to work. Furthermore, it is the complainant's evidence, and this is undisputed, that had the respondent enquired, she would have been in a position to advise them, that she would be able to return to work after a 5 week recovery period.” Her dismissal was therefore on the ground of her disability.

Other claims by the complainant, that she had been denied an opportunity to work full-time on grounds of her disability, age and gender, were not accepted by the Tribunal as this possibility had been pre-empted by her dismissal. The Tribunal nonetheless took this loss of opportunity into account, together with the distressing and traumatic manner in which she had been dismissed, in awarding her €17,500.
http://bit.ly/NLCdPY