The Equality Tribunal has recently published two upheld cases. The first involves dismissal of a pregnant manager and the extremely large award of some €315,000 against a well-known hotel group. Some readers may find some of the evidence upsetting. 

The second case is a disability discrimination case, with the much smaller award of €5000. The employer did not know until around two days before dismissal that the employee had depression. The Equality Officer made some interesting comments in relation to a post-transfer introduction of a new sickness policy:

" In relation to the introduction of a sick leave policy. I find nothing in this policy that is inherently discriminatory. The policy merely restricts an employee to 4 paid uncertified sick leave days per annum. An employer has the right to implement policies appropriate to the needs of its business. It was argued that this policy resulted in a change in the complainant's terms and conditions but I find that such issues are not in themselves matters for this Tribunal. While it could be argued that such a policy may result in indirect discrimination in circumstances where it could be argued that a person who has a disability is more likely to be absent than a person without a disability is or would be, I accept that the policy has been put in place to ensure that sick days are not used for absences that are not linked with illness/sickness. A person who is genuinely ill can and must obtain a medical certificate to justify any on-going absences."


EMPLOYMENT EQUALITY DECISIONS UPHELD IN WHOLE OR IN PART:

1. DEC-E2012-010: O'Brien v Persian Properties trading as O'Callaghan Hotels

Issues: Employment Equality Acts, Gender, Family Status, Discriminatory dismissal, Pregnancy, Harassment, Victimisation.
Award: €315,000

This case included a massive €315,000 award to the complainant. The complainant was appointed Director of Sales and Marketing in 2003. She argued that during her tenure sales increased and the hotels in the group won several awards. She became pregnant in 2004 and gave birth just hours after finishing work. She continued to receive work-related calls and documents during maternity leave. She said similar pressures were applied in 2008 when she gave birth to her second son. She said the MD was negative in relation to her having children and said he would prefer it if she left should she have a third child but he later apologised.

She became pregnant again in 2009 after two miscarriages and sought a 'stress free' maternity leave. After several meetings, some of which were heated and, according to the complainant, she was asked to resign, she was signed off sick on work-related stress. Despite sending in medical certificates to say that she was ill, on 10th August 2009 she received a letter from the General Manager to arrange a meeting to complete the handover of any outstanding issues. Without warning, her fuel card provided by O'Callaghan hotels was revoked (when she used it to pay for petrol, the attendant informed her that the card had been reported as 'stolen') and access to her work mobile phone (blackberry device) was blocked. She was later sent a letter asking her to return all company property e.g. her mobile phone, credit card and fuel card, even though these were normally retained by employees on holiday, maternity leave etc.

She engaged a solicitor who wrote to the respondent and said the complainant would resign at the end of her maternity leave. The baby was still born in September. She suffered an acute grief reaction. She claimed constructive dismissal and that the following incidents constitute victimisation:
- When she asserted her rights and requested a four-day week during her second pregnancy, the MD's hostile reaction and his statement that he would not be happy to retain her in his employment if she had a third child
- Applying pressure to resign after she informed the respondent that she was pregnant and intended not working during her maternity leave
- Not paying her for most of her third maternity leave when she was paid her full salary for the previous two maternity leaves
- Blocking access to the blackberry phone and fuel card provided to her by O'Callaghan hotels

The respondent said the complainant wanted to be involved during maternity leave and set up an office for this purpose. They denied harassing her and said they wished to facilitate her resignation that she requested. It was not enforced and she was 'extremely happy'.

The Equality Officer preferred the evidence of the complainant on all counts and found the facts, where in contention, better fitted the complainant's version of events. She sent out a strong message to others ("The award must also dissuade O'Callaghan hotels and other employers from unlawful discrimination.")

She ordered the respondent pay the complainant:
(a) €220,500 (the equivalent of 21 months' salary) in compensation for the harassment and discriminatory dismissal
(b) €94,500 (the equivalent of 9 months' salary) in compensation for the distress caused by victimisation.
http://bit.ly/GCJI8M


2. DEC-E2012-011: An Employee v A Logistics Company

Issues: Employment Equality Acts - Discriminatory treatment - Failure to provide appropriate measures - Conditions of employment, training, promotion/re-grading - Discriminatory dismissal - Victimisation - Victimisatory dismissal - Disability - Prima Facie Case
Award: €5,000

The employee was subject to a TUPE transfer. The new employer introduced a new sick pay scheme, where up to 4 uncertified sick days in any year would be paid. Prior to the introduction of this policy to company had paid staff who were out sick. The complainant had been diagnosed with depression. The complainant had been off sick some 26 days and was given a final warning.

The complainant later went on indefinite sick leave and he was offered one month's notice and an additional two months' compensation. He argued that the respondent should have shown some reasonable accommodation due to his disability.

The respondent offered evidence that the complainant had had only 6 certified days in 26.5 days' absences. The respondent's reason for dismissal are as unusual as they are varied:

" The respondent submitted that the decision to terminate the complainant's employment was supported by the following reasons:
1. the nature of the respondent work dictates that it was necessary to have reliable staff as the work is of such nature that any delay in getting it done could affect the respondent's client's business.
2. the disrespectful manner in which the complainant spoke to his mother at the meeting,
3. the fact that he was attending anger management; and
4. the complainant's statement that his medical advisors were of the opinion that it was the workplace that was making him ill."

The Equality Officer concluded that the complainant had not informed the respondent of his disability until two days before his dismissal. Nonetheless, the respondent should have taken the disability into account before taking action to dismiss. The award of €5000, approximately 2 months gross salary "reflects the fact that I [the Equality Officer] am satisfied that the complainant exasperated the situation by failing to notify the respondent of his disability in a timely manner."
http://bit.ly/GChOdr