It may soon be amalgamated with other employment disputes fora but, for now, the Equality Tribunal continues to issue decisions relation to equality rights. We have set out below seven decisions in some recently upheld or part-upheld complaints. Not upheld case reviews will follow by separate email.

Some of the cases below might be seen as extraordinary in this day and age but perhaps reflect the pressures of the economy and the temptation for some employers to focus on performance and losses to the exclusion of equality laws. Some of the additional requirements within the decisions, on top of some sizeable awards, are worthy of consideration. For example:

Case number 1: in addition to €15k compensation, the respondent was ordered to "... meet with the complainant to establish whether the complainant wishes to return to work for the respondent, and if so, both parties shall (a) put a communications strategy in place to facilitate their future working relationship. And (b) the respondent shall expedite a return to work schedule for the complainant which shall include a re-assessment of the complainant's medical condition by a qualified Occupational Physician with regard to her duties with the respondent. This entire process shall be completed within 4 months from the date of this decision."
http://bit.ly/otNGmD

Case number 3: the claimant was awarded a year's salary after being found to have been paid less than the minimum wage.
http://bit.ly/q0lxie

Case number 4: In addition to a total of €50k compensation there was an order "that the respondent engage an appropriate person or organisation expert in the area of Employment Equality law to carry out a programme of training with respect to the Employment Equality Acts. Every person employed by the respondent whose work includes a management and/or supervisory role, and including the Manager and the Director, must have completed this training programme within twelve months of the date of this decision."
http://bit.ly/qlQnCa

Case number 5: There being no direct comparator, the EO considered how a nominal Irish comparator would have been treated and concluded that the employer "acted with undue haste" and awarded €10k to an employee with five months' continuous service.
http://bit.ly/nGwQ0r

EMPLOYMENT EQUALITY DECISIONS UPHELD OR PART-UPHELD:

1. DEC-E2011-111: An Employee -v- An Employer

Grounds / Issues: Discriminatory Treatment, Disability, Conditions of Employment, Failure to Provide Reasonable Accommodation.
Award: €15,000 for Distress

This case involved a shop worker in Cork who had to leave work because of consistent back pain and after various medical assessments and physiotherapy she finally had to have surgery on a prolapsed disc on her back.

The complainant claimed that on the 8th August 2006 she wrote to the respondent with a letter from her Consultant Orthopaedic Surgeon which outlined the her medical situation to date and said, "She is now fit to resume her work on a part time basis initially. She would be fit for her normal work practice except for lifting heavy bags". The respondent's letter in reply said that it was "not in a position to take you back if there is a risk of exasperation of your condition whilst in my employment", it went on to say that it required "clarity in great detail the exact duties which you can undertake."

In considering this case, the Equality Officer set out general guidance for all employers faced with potentially disabled employees who might be dismissed:

"In applying that approach it is clear that in situations where a person acquires a disability during the course of their employment the onus is most definitely with the employer to take the following steps;
1. to ensure it has fully established the factual position of impairment and the likely duration of this condition on the employee,
2. to establish what, if any, special treatment and/or features that maybe available to allow the employee to become fully capable, this will then be further considered with regard to nominal costs, and,
3. to keep the employee concerned fully aware of proceedings and allow for their participation at every level."

The correspondence between the employer and the orthopaedic surgeon was important - the employer knew the employee was not fit for all duties but could do some. The complainant was referred to a GP by the respondent but it was not disputed by the respondent that the report from the GP nor its findings were shared with the complainant. However the report lacked clarity as to what recommendations it had for the complainant's possible return to work, if at all.

Reasonable accommodation to assist disabled employees carry out duties must be considered under equality legislation. Section 16 of the Act provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post providing that the person could do so with the provision of special treatment or facilities, providing the provision of such did not give rise to more than a nominal cost to the employer. Section 16 (1) states,

"Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual -
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed."

However, section 16(3)(a) of the Employment Equality Acts tempers that defence: "For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer."

Finding for the employee, the Equality Officer concluded:

"In order to complete the two stage test and satisfy section 16 (3) of the Acts, I would have expected the respondent to have consulted with the complainant and sought to refer her to a specialist particularly when the GP's report lacked clarity regarding the duration of her condition and it failed to match the complainant's ability to do the duties required for the job. I am satisfied that as the essence of the respondent's report is at odds with that of the complainant's medical opinion, there is then a definite requirement on the respondent to seek clarity. I am also satisfied that the lack of communication from the respondent on its medical report findings infringed the very principle for the need of strong communication and transparency between it and the complainant. Accordingly, I conclude that the respondent was not in possession of sufficient facts to be able to rely on a defence under section 16 of the Acts by not accommodating her return to work and that this amounts to discriminatory treatment in relation to her disability."

In addition to €15k for distress, the EO ruled:

"... as the complainant is still an employee, the respondent shall meet with the complainant to establish whether the complainant wishes to return to work for the respondent, and if so, both parties shall (a) put a communications strategy in place to facilitate their future working relationship. And (b) the respondent shall expedite a return to work schedule for the complainant which shall include a re-assessment of the complainant's medical condition by a qualified Occupational Physician with regard to her duties with the respondent. This entire process shall be completed within 4 months from the date of this decision."
http://bit.ly/otNGmD

2. DEC-E2011-112: 2 Employees -v- An Employer

Grounds / Issues: Race, Training, Conditions of Employment, Harassment, Discriminatory Dismissal.
Awards: Gorelovs Nikolais €5,500 for Discriminatory Dismissal and Discriminatory Treatment. And Aleksejs Celdake €500 for Discriminatory Treatment.

The respondent did not make a submission to the Equality Tribunal and did not attend the hearing of this case involving two Russian workers. One gave credible evidence that he was dismissed after a tyre burst on his truck and that an Irish worker would not have been dismissed for this. He was awarded €5000 for that and a further €500 for discriminatory treatment in relation to training. His colleague was awarded €500 for discriminatory treatment in relation to training.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-112-Full-Case-Report.html

3. DEC-E2011-117: A Domestic Worker -v- An Employer

Grounds / Issues: Race Conditions of Employment, Discriminatory Dismissal.
Award: €31,486 for Discriminatory Dismissal and €10,000 for Victimisation and an order to carry out training.

This case involved a South African nanny based in a house in Dublin to look after a widower's children. There is some confusion over the documentation, much of which referred to South African legislation and the employer had business interests in South African, from where he recruited the employee. However, he failed to attend the hearing or engage in the process, although the tribunal noted that he had been contacted:

"The respondent did not engage with the investigation. No submission was received from the respondent nor did the respondent attend the hearing. The respondent was notified of the date of the hearing by two separate registered letters. The Tribunal was informed by An Post that the first one was successfully delivered; the second letter was returned to the Tribunal. I note that the respondent is listed on the register of electors 2011-2012 at the address to which the letters issued."

The complainant contended:

* she was paid less than the minimum wage,
* she worked well in excess of 48 hours per week,
* she was not paid Bank Holiday entitlement,
* she was not paid Sunday premium,
* she was not given appropriate breaks,
* she did not have privacy during her time off having to inform the respondent of her whereabouts at any time of the day,
* her movements were controlled by the respondent outside of work hours,
* she was made to work as a live-in housekeeper rather than a child minder,
* she was subject her to verbal abuse and being threatened with dismissal.

The EO found "the complainant was a cogent and credible witness." It is difficult to establish a comparator where there is only one employee. The EO concluded:

"The provisions in the contract of employment entered into between the complainant and the respondent in South Africa are quite clearly not in compliance with Irish employment law. The contract runs to eleven pages. It does not include details of hours of work, provides for 15 days annual leave after one year's work is completed, and outlines, over two pages, security searches, testing ( urine/blood tests, polygraph, forensic/electronic/chemical), monitoring (of premises, equipment, vehicles), surveillance of telephones, email, internet access, which the employer may undertake at any time. I am satisfied that an Irish employee would not have been given such a contract. I am satisfied that an Irish employee would not have been placed in the vulnerable position in which the complainant was placed, in a foreign country without appropriate documentation, without any support network, and dependant on the respondent for both employment and accommodation. I am satisfied that this left the complainant more vulnerable to being treated less favourably in terms of conditions of employment. I have found the complainant's evidence to be credible and I am satisfied that the complainant has adduced evidence from which a prima facie case of discrimination on the race ground in relation to her conditions of employment can be inferred."

She awarded €15,000 for the effects of discriminatory treatment in relation to her conditions of employment, €31,486 for the effects of discriminatory dismissal, which is equivalent to one year's salary calculated on the basis of a Right Commissioner decision and Labour Court determination that the claimant was entitled under the Minimum Wage Act 2000 to the minimum wage of €8.65 per hour equating in her case to €605.50 per week.
http://bit.ly/q0lxie

4. DEC-E2011-124: An Employee -v- An Employer

Grounds / Issues: Gender, Disability, Conditions of Employment, Dismissal, Victimisation, Pregnancy related illness, Hospital Appointments, Redundancy.
Award: €40,000 for Discrimination.

This is a lengthy decision that has to be read to be believed. It involved blatant discrimination against a pregnant employee and a Director who, the Equality Officer believed, told the respondent's employees that their holiday bonus was being withdrawn because someone had made a complaint to the Equality Authority.

The EO found that an employee did raise an objection to the complainant taking sick leave due to morning sickness; the complainant was, perhaps deliberately, left to do the work of two people; and was denied bonus because she was pregnant. She was awarded €40k for discrimination and a further €10k for victimisation. In addition, the Equality Officer ordered this stinging demand:

" Finally, in accordance with s.82(1)(e) of the Acts I also make the following order: that the respondent engage an appropriate person or organisation expert in the area of Employment Equality law to carry out a programme of training with respect to the Employment Equality Acts. Every person employed by the respondent whose work includes a management and/or supervisory role, and including the Manager and the Director, must have completed this training programme within twelve months of the date of this decision."
http://bit.ly/qlQnCa

5. DEC-E2011-125: An Employee -v- An Employer

Grounds / Issues: Race, Dismissal, Harassment, Victimisation.
Award: €10,000 Discriminatory Dismissal.

The complainant is a black Nigerian national, who was a duty manager at a shop. It is common case that there was an altercation on the shop floor between the complainant and a more junior employee (Ms. X). She said he struck her, he denied that. He said he sought assistance from his own manager, whereas the employer argued that they would have expected him to have handled the matter in a better fashion and not argue with Ms. X on the shop floor in front of customers. The claimant was dismissed and argued that the actions of Ms. X and the employer constituted unlawful discrimination, harassment and victimisation on the race ground.

The employer used CCTV (without sound) as their main source of evidence. There being no direct comparator, the EO considered how a nominal Irish comparator would have been treated and concluded that the employer "acted with undue haste".

Although the complainant failed to establish a prima facie case in relation to harassment or victimisation, the EO considered the dismissal was discriminatory and awarded €10k.
http://bit.ly/nGwQ0r

6. DEC-E2011-140

Grounds / Issues: Discriminatory treatment - Conditions of employment - Training - Harassment - Sexual Harassment - Discriminatory Dismissal - Gender - Race - Prima Facie Case
Award: €14,000

The respondent operates a restaurant called "Admiral". Neither the respondent nor its representative attended the hearing, which concerned an ethnic Russian with Latvian nationality, who claimed discrimination on grounds of race and sex. The race claimed were dismissed but, in the absence of any evidence to the contrary, her claims that her hours were cut and employment later terminated due to her pregnancy were accepted by the EO. The complainant was awarded over €14k compensation.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-140-Full-Case-Report.html

7. DEC-E2011-143

Grounds / Issues: Employment Equality Acts 1998 to 2008, contract of employment, health and safety training, dismissed without reasons or proper procedures
Award: €2,500

The respondent did not make a written submission to the Tribunal. The complainant is Lithuanian. He argued he was made redundant because of race but that complaint fell because a Moldovan and an Irish worker with longer service were both kept on.

The complainant stated that the same foreman who eventually fired him also gave the complainant harder jobs than his Irish or Moldovan colleagues, like grinding, dust-cutting or working with chemicals. The complainant also stated that the foreman said to the complainant during a break: "What are you doing here? Go home!" He was awarded €2,500 compensation.
http://www.equalitytribunal.ie/Database-of-Decisions/2011/Employment-Equality-Decisions/DEC-E2011-143-Full-Case-Report.html