The Equality Tribunal has recently published three upheld or part-upheld cases.

The first is interesting for the comments from the Equality Officer about the "flawed" harassment policy of the respondent that required the alleged harasser to show intent and which stated that harassment required more than one incident for actions to be defined as harassment. The EO further chastised the employer for using the complaint as a possible reason for disciplining the complainant.

The second case continues the recent examples we have seen of women being discriminated against after the employer discovers they are pregnant. In this case, the complainant was awarded €20k.

The third case involved a ‘reserve member’ of An Garda Siochána. The Equality Officer ruled that she was not an employee but that the prescribed training programme for eligibility as a member of An Garda Siochána did count as 'vocational training' as defined by the Section 12 of the Employment Equality Acts.


1. DEC-E2012-027: A Complainant v An Educational Body:

Grounds / Issues: Employment Equality Acts, - Section 6(2)(a), gender ground - Section 6(1)(ii), conditions of employment - out-of-time - Section 14A, harassment - no nexus between alleged harassment and gender - prefer evidence of witness - Section 74(2), victimisation - disciplined for taking case to Tribunal
Award: €500

This case involved a long-running dispute between an Art teacher and the headmaster of the school at which she worked and the school itself. A number of claims, going back to 2004, were ruled out of time as the complainant was made to the Tribunal in 2009. Other claims of direct gender discrimination and harassment were also rejected, although the Tribunal made the following remarks about the school’s harassment policy:-

“5.20. However, I would add that I consider that the complainant is correct in stating that the harassment policies of the respondent are flawed. Firstly, they require a complainant to show intent on the part of the alleged harasser. Secondly, they state that a single incident cannot be considered to be harassment. As I have indicated in this decision, the Acts require that the act or acts of harassment in question had the purpose OR effect of harassment. Intention cannot be a requirement of harassment in that context. Furthermore, harassment (as opposed to bullying) can consist of a single act depending on the circumstances of the case.

5.21. In that context, I would urge the respondent to consider revising its harassment policies and I would refer it to the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 in that context.”

The Tribunal did find in favour of the complainant on the ground of victimisation but only by including her “unfounded” complaints to the Tribunal in disciplinary proceedings against her. As such, the Tribunal awarded the complainant €500 and ordered that, “no later than 42 days after the date of this decision, the respondent cease to include the making of this complaint to the Equality Tribunal as a cause, reason and/or matter for consideration with respect to the disciplinary action currently being taken by it against her.”

FULL DECISION:
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-027-Full-Case-Report.html

2. DEC-E2012- 036:An Employee v A Child Care Employer

Grounds / Issues: Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, Section 6(2)(h) - Race, Section 8 conditions of employment, disciplinary measures, pregnancy and discriminatory dismissal.
Award: €20,000 in compensation for the effects of the discriminatory treatment and dismissal.

In this case, the complainant is a Polish national and is a qualified childcare worker. A number of incidents occurred after she notified her employer that she was pregnant, including disciplinary proceedings for an incident in the nursery, changes in her rota, which she considered to be more onerous than previously, claims that she had resigned when leaving a disciplinary proceedings and her eventual exclusion from employment.

The Tribunal concluded that the complainant had been discriminated against and dismissed on grounds of her pregnancy. In particular, a final written warning was a disproportionate penalty for what was, at most, a minor act of misconduct. The complainant was awarded €20,000. Complaints that her treatment was also on grounds of her nationality were not accepted by the Tribunal.
FULL DECISION:
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-036-Full-Case-Report.html

3. DEC-E2012- 040: An Employee -v- A Public Sector Employer

Grounds / Issues: Discriminatory Treatment - Discriminatory Dismissal - Vocational Training - Race - Religion - Jurisdiction under the Acts Preliminary Decision

This was a preliminary ruling by the Tribunal in relation to complaints of race and religion discrimination made by a ‘reserve member’ of An Garda Siochána. The first preliminary matter was whether the complainant was an ‘employee’. On this point, the Tribunal relied on Section 15(6) of the Garda Siochána Act 2005, as amended by the Section 43 of the Criminal Justice Act 2007, which states that "a reserve member is a volunteer and does not perform his or her functions as such a member under a contract of employment".

The Tribunal took the view that this legislation impliedly amended the earlier Section 2(3)(a) of the Employment Equality Acts, so as to exclude reserve officers from the scope of “employee” within that section. A point not taken by the Tribunal is the extent to which an EU Member State can legislate, after the implementation deadline of EU Directives, to exclude individuals from the personal scope of national, and also EU equality legislation, when there is at least an arguable case that they could be within the personal scope of the Directives.

The second point concerned the issue on whether the prescribed training programme for eligibility as a member of An Garda Siochána, designated as a reserve member, amounts to 'vocational training' as defined by the Section 12 of the Employment Equality Acts. The Tribunal concluded the training programme involved did bring the complaints within Section 12. Two key elements were identified by the Tribunal, namely:

“- Members of An Garda Siochána, designated as reserve members, are not in receipt of remuneration, neither are they deemed to be employees, and therefore, on the balance of probabilities, must have some other reason to undertake the possibly onerous tasks placed upon them

- Experience gained as members of An Garda Siochána, designated as reserve members, must, in accordance with SI 509/2006 - Garda Siochána (Admissions and Appointments)(Amendment) Regulations 2006, be taken into account if/when they apply for a position as a member of An Garda Siochána, not so designated.”

FULL DECISION:
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-040-Full-Case-Report.html