The Equality Tribunal recently issued several decisions on its website. We have set out below the 7 decisions upheld in favour of claimants.

They are a mixed bag, covering most of the unlawful grounds. Some decisions of interest include:

* A finding that inadequate training for a Polish employee with poor standards of English constituted discrimination (€5k award)

* Criticism of an ex-gratia redundancy package with a cut-off age of 60 (shortfall awarded to two 62 year olds)

* Two pregnancy-related dismissals (€26k and €15k awards)

* Criticism of Bus Eireann's hearing tests for prospective drivers (€6k award)

* Expunged sick record and detailed instructions on future behaviour against a broadcasting company in disability claim (plus €40k award)

* Maternity-related discrimination and equal pay awarded (plus €30k award)


EMPLOYMENT EQUALITY DECISIONS UPHELD IN WHOLE OR IN PART:

DEC-E2011-166:An Employee -v- An Employer

Grounds / Issues: Race, Training, Conditions of Employment, Discriminatory Dismissal, Harassment.
Award: €5,000 for Discriminatory Treatment.

This case involved a Polish care assistant in a nursing home who made various allegations of discrimination and harassment and discriminatory dismissal. Most claims failed but she succeeded in relation to discriminatory training:

"In this case the respondent recruited the complainant aware that she had a poor level of English but failed to make such reasonable efforts in relation to her training to ensure she understood her duties. The lack of such efforts amount to discrimination in relation to the complainant's training."

The Equality officer went on to award €5000 to the complainant. In assessing the appropriate award in this case he was cognisant of the effect of the discriminatory training on the complainant, in that it contributed to performance issues which led to the initiation of the disciplinary procedure.
http://bit.ly/tmfhrI


DEC-E2011-177:2 Employees (1 Deceased) -v- An Employer

Grounds / Issues: Age, Redundancy, Collective Agreement, Equal Treatment, Waiver, Complainant Deceased, Conditions of Employment.
Award: order that the respondent provide equal treatment i.e. pay the complainants the appropriate shortfall amount regarding the redundancy payment.

This case involved two complaints of age discriminatory redundancy against Chivers (Ireland) Ltd (now owned by Premier Foods Ltd).

In particular, it involved complaints by two 62 year old female employees who, due to the cut-off point for ex-gratia payments based on age during redundancy situations, lost out an extra payment when redundancies occurred. Both were offered an early retirement package (retirement was normally 63 but some worked to 65) but neither could avail of the additional ex-gratia sum available to those made redundant under the age of 60.

The Equality Officer acknowledged that the "former Managing Director gave cogent and forthright evidence when he said his aim in devising the scheme was to keep costs down for the company and that the normal retirement age there was 63." She accepted that, "While it may be argued that business objectives and avoiding windfall payments to employees close to retirement are legitimate aims, where this justification clearly fails is that the means chosen to achieve these aims were not appropriate or necessary."

The Equality Officer found the redundancy scheme to be discriminatory in that it wasn't proportionate:

"While taking account of income forgone between termination of employment and compulsory retirement age is a legitimate aim, the means employed by Chivers (Ireland) Ltd was not appropriate. If the respondent had presented a tapered scheme based on income forgone, their justification would be less assailable."

She continued:

"The inequity of the scheme is obvious and is based exclusively on the age of the employees. While taking account of income forgone between termination of employment and compulsory retirement age is a legitimate aim, the means employed by Chivers (Ireland) Ltd was not appropriate. If the respondent had presented a tapered scheme based on income forgone, their justification would be less assailable. The total cost to the company if all the relevant employees over 60 received the ex-gratia payment was €41,207. Chivers (Ireland) Ltd was sold to Premier Foods for £21.8 million (sterling) in January 2007.In addition, the respondent would also be entitled to a 60% rebate from the Social Insurance Fund for all employees given statutory redundancy. Therefore, I also find the means chosen to achieve the aim was not necessary."

The respondent was ordered to pay the complainants the appropriate shortfall amount based on appended calculations.
http://bit.ly/tkMU8r


DEC-E2011-182: An Employee -v- An Employer

Grounds / Issues: Discriminatory Dismissal, Gender, Family Status,
Award: €26,500 for Discrimination.

This case involved a legal secretary in a sole solicitor's practice who alleged she was dismissed on grounds of her pregnancy. The Equality Officer preferred the evidence of the complainant and awarded the equivalent of one year's salary as compensation.
http://bit.ly/vq6sq7


DEC-E2011-184: An Employee -v- An Employer

Grounds/ Issues: Disability, Access to Employment, Reasonable Accommodation, Occupational Requirement
Award: €6,000 for Discriminatory Treatment.

This case involved an ex-Irish Army soldier who applied for a bus driver's post with Bus Eireann. He had an exemplary driving record and passed all the test except a hearing test. He argued that "...not hearing very low beeps on an audio test would not and has not had any effect on his ability to drive a bus, coach or car... he is being discriminated against on the grounds of a very slight disability."

The respondent argued it uses these test rigorously but it could not provide evidence that existing drivers or sub-contractors were subject to these tests on an ongoing basis. Awarding the claimant €6000 for discrimination in employment the Equality Officer said:

"...I accept the respondent's argument that an adequate standard of hearing is a genuine and determining occupational requirement for the post of Bus Driver. However, in the absence of supporting documentary evidence, I find that the respondent has not established, in either the international context or more specifically within its own organisational context, that the significantly high hearing thresholds set by the respondent are appropriate and constitute a genuine and determining occupational requirement for the post of Bus Driver. In a situation where it cannot be aware of the state of hearing of significant numbers of bus drivers either working directly for it or for its sub-contractors I cannot find that the respondent has objectively justified the particular hearing threshold it applied."
http://bit.ly/w0eyzi


DEC-E2011-194: Dabkowska v Gilesview Ltd

Grounds / Issue: gender, family status and race contrary to Sections 6(2)(a),(c) and (h) of the Employment Equality Acts 1998 to 2011, in terms of her conditions of employment, and discriminatory dismissal
Award: €15,000

The complainant, as sales assistant in a coffee shop, withdrew all claims except that she was dismissed due to pregnancy. The respondent sent in a written submission, arguing dismissal was due to a LIFO redundancy.

The EO found that "the respondent was unable to produce any paperwork or contemporaneous notes connected to the alleged redundancy, and the reference letter issued to the complainant likewise makes no mention of it." He awarded €15k compensation.
http://bit.ly/upyael


DEC-E2011-195: An Employee v A Broadcasting Company

Grounds / Issue: Employment Equality Acts 1998- 2007 - sections 6,8,16 & 74- disability - equal treatment - conditions of employment - reasonable accommodation - victimisation
Award: €40,000

The complainant in this case is a producer with 'A Broadcasting Company'. She stated that she has suffered from back, shoulder and neck problems for the past twenty years which were exacerbated by a bike accident in Spring 2006. Her complaints revolved around various assignments which she said would exacerbate her condition and the alleged failure of the respondent to make reasonable accommodations in relation to those assignments.

In a lengthy decision, the EO found for the complainant in relation to reasonable accommodation and also that the respondent discriminated against the complainant when it placed her on leave and delayed her return to work. The EO awarded €40,000 compensation.

Interestingly, the EO also awarded: "that should the complainant's absence between September, 2008 and February, 2009 be recorded as sick leave, that this record be expunged and that the period should count as reckonable service for the purposes of the complainant's relevant employment entitlements." She further ordered:

"(iii) that the respondent provide the complainant with reasonable accommodation in respect of all future assignments in light of the jurisprudence on what is required in terms of that concept and the manner in which any decision on same is reached by an employer.
(iv) that the respondent's procedures for dealing with assignments of employees with a disability be reviewed and amended as necessary, but in particular to ensure that the personnel making the final decisions on assignments have copies of the actual medical opinion, with or without direct contact with the medical professional, so as to enable them make a fully informed decision. This review should be completed with four months of the date of this Decision, and
(v) that all personnel who have responsibility for making the decisions mentioned above receive appropriate training as regards employees with a disability and the rights and obligations of the parties under employment equality legislation when dealing with such a matter. This training should be completed in tandem with the aforementioned review but should not be completed longer than six months of the date of this Decision."
http://bit.ly/s8U1ya


DEC-E2011-199

Grounds / Issue: Employment Equality Acts 1998- 2008 - sections 6, 8, 14A & 74 -gender - maternity- discriminatory treatment - harassment- victimisation - prima facie case - rebuttal - cultural differences.
Award: €30,000 compensation and Equal Pay

The complainant was a manager in an English language school an complained of discrimination on grounds of gender, marital status and family status.

She complained that she was criticised after taking maternity leave and that she did not receive the same pay as an equivalent male manager (Mr Z). The respondent argued there were reasons for Mr Z's higher salary but did not provide evidence. Many of the complaints revolved around Skype conference calls from Japan, where the owner of the school is based.

The EO preferred the evidence of the complainant and found that criticisms of the complainant were related more to maternity leave than the performance of the school. The award was €30k compensation and:

"that the respondent pay the complainant the same rate of remuneration (€48,200) as paid by it to Mr. Z with effect from 1 October, 2008 and that it pay her the appropriate arrears of remuneration from that date, having regard to the provisions of any maternity leave and sick leave policy that may have existed at that time, until the cessation of her employment in May, 2010."
http://bit.ly/t3TUB2