Recent Equality Tribunal Decisions (Feb 14)
The Equality Tribunal published 46 decisions for December 2013
The Director of the Equality Tribunal has published the following Decisions of the Tribunal:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2013-163: Jolenta Drabik -v- Edward Zandi trading as Moonlite Cleaning Services Ltd.
Grounds / Issues: Employment Equality Acts, Gender, Discriminatory dismissal, Pregnancy, Correct Respondent.
Award: €22,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal and €11,000 in compensation for the distress caused by victimisation.
DEC-E2013-167: Attila Marton Ajtai -v- McDonnell Brothers Agricultural Suppliers Ltd.
Grounds / Issues: Employment Equality Acts - discriminatory treatment - race - working conditions - harassment - prima facie case – victimisation.
Award: €20,000 for the distress suffered by him as a result of the harassment
DEC-E2013-181: Furlong -v- The Timber Frame Company Ltd.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6 and 8 – lay-off- discriminatory dismissal – disability.
Award: €5,000
DEC-E2013-186: Alan Gallagher -v- McCosker & Sons Ltd.
Grounds / Issues: Employment Equality Acts 1998-2011, Disability –6(2)(g), Dismissal – Section 8(6), Section 6(1) – less favourable treatment, discriminatory dismissal, Section 16(3) – Failure to provide reasonable accommodation, Section 85A – prima facie case.
Award: €12,000
DEC-E2013-193: Kristina Kukstaite -v- Shedan Limited.
Grounds / Issues: Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions and discriminatory dismissal, Section 14A – harassment and sexual harassment, prima facie case.
Award: €14,000 in compensation for the distress caused by the discrimination and constructive dismissal and €20,000 in compensation for the distress caused by victimisation.
Employment Equality Decisions Not Upheld:
DEC-E2013-161: Ms Beata Milkowska -v- Kings Laundry Ltd.
Grounds / Issues: Race – harassment – indirect discrimination in conditions of employment – language policy – objective justification
DEC-E2013-162: Yalmaz Hadzhiveysal -v- ISS Ireland Limited.
Grounds / Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions of employment, failure to attend hearing.
DEC-E2013-164: Ahashan Habib -v- Gampen Ltd trading as Eddie Rockets, Killarney.
Grounds / Issues: Employment Equality Acts, Race, Harassment, Section 14A (2) Defence, No prima facie case
DEC-E2013-165: Rimantas Kazdailis -v- Ballinard Transport Ltd.
Grounds / Issues: Employment Equality Acts - discriminatory treatment - race - conditions of employment - prima facie case
DEC-E2013-166: Angelika Kozlowska -v- TA Hotels Ltd. t/a Lynams Hotel and Café Carlo.
Grounds / Issues: Employment Equality Acts - disability - working conditions - discriminatory dismissal – victimisation - prima facie case
DEC-E2013-168: Marie Daly -v- Nano Nagle School.
Grounds / Issues: Employment Equality Acts – Failure to provide reasonable accommodation – Disability – Prima Facie case – Appropriate measures – Section 16 defence
DEC-E2013-169: Mr Michael Doyle -v- The Revenue Commissioners.
Grounds / Issues: age - section 6(2) and section – Access to employment.
DEC-E2013-170: Wojciech Kaminski -v- Cillmhantain Iompair Teoranta.
Grounds / Issues: race - section 6(2)(h) - conditions of employment – dismissal - harassment - sexual harassment
DEC-E2013-171: Regimantas Sarkus -v- O’Leary International Ltd.
Grounds / Issues: Application for expenses - race - section 6 (2) (h) - conditions of employment - dismissal.
DEC-E2013-172: Moshuir Rahman -v- Munster Joinery.
Grounds / Issues: race - section 6(2)(h) - harassment - section 14A
DEC-E2013-173: Stachowski -v- Portmarnock Sport and Leisure Club.
Grounds / Issues: race – section 6 – section 8 – conditions of employment – harassment - victimisation
DEC-E2013-174: A Lecturer -v- A Third Level Institution.
Grounds / Issues: Gender – equal pay – like work – grounds other than gender for difference in remuneration – starting pay on appointment to a permanent post
DEC-E2013-175: Agnieszka Andoo -v- Pagewell Concession (ILAC) Ltd.
Grounds / Issues: Employment Equality Acts – Discriminatory Treatment – Victimisaton – Harassment - Discriminatory Dismissal – Gender – Race - Family Status – Prima Facie case
DEC-E2013-176: Liudmila Bormskaja -v- San Siro Ltd.
Grounds / Issues: Employment Equality Acts - race - discriminatory dismissal - prima facie case
DEC-E2013-177: Tunde Reisenleitneer -v- Crewlink Ireland Limited.
Grounds / Issues: Employment Equality Acts - Sections 6 and 8 – Marital Status, Family Status, Age & Race - Access to employment.
DEC-E2013-178: Mr. Chantar Arumugan -v- Ashdown Park Hotel Limited t/a Ashdown Park Hotel.
Grounds / Issues: race - section 6 - section 8 - dismissal.
DEC-E2013-179: Ms. Regina Stasytiene -v- Anora Commercial Ltd.
Grounds / Issues: race - gender - family status - section 6 - section 8 - conditions of employment - victimisation.
DEC-E2013-180: Skelly -v- St. Paul’s Secondary School.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6, 8 and 74 – discriminatory treatment – conditions of employment – marital status - victimisation.
DEC-E2013-182: An Employee -v- A Cleaning Company.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6 and 8 – resignation- discriminatory dismissal – disability
DEC-E2013-183: Pawel Soleck -v- Campion Concrete Products Limited.
Grounds / Issues: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(h), race – section 8, conditions of employment, Constructive dismissal, Section 7 & 29 – equal pay, failure to establish a prima facie case, statutory time limits, no jurisdiction in relation to constructive dismissal.
DEC-E2013-184: Przemek Czyzak -v- Steam Distilled Pure Water Limited.
Grounds / Issues: Employment Equality Acts – sections 6 and 29 - equal pay – age & race.
DEC-E2013-185: Caroline Dempsey -v- Revenue Commissioners.
Grounds / Issues: Employment Equality Acts: Sections 6(1) – less favourable treatment, 6(1)(c) – family status, Section 7 & 29 – equal pay, Section 8 - conditions of employment, Section 86- collective agreement Section 77 –time limits, Correct Respondent in relation to collective agreement - Section 86(2)(c), no jurisdiction.
DEC-E2013-187: Linda Brennan -v- Willis Risk Services (Ireland) Ltd.
Grounds / Issues: Employment Equality Acts - Family Status - Civil Status - Discriminatory treatment - No prima facie case - Access to promotion
DEC-E2013-188: Mr L -v- A Medical Technology Enterprise.
Grounds / Issues: Employment Equality Acts – Disability – Race - Post Polio Syndrome - Reasonable accommodation - Conditions of employment
DEC-E2013-189: Ms Agnieszka Spyra -v- MK Human Resources Ltd t/a Temple Recruitment.
Grounds / Issues: Race – discriminatory dismissal – employment agency – continued employment with agency
DEC-E2013-190: Mr Oscar Caracas -v- TLC Centre Ltd.
Grounds / Issues: race - Section 6(2)(h) - access to employment - provision of training - harassment - discriminatory dismissal
DEC-E2013-191: Konstantin Doulamis -v- University College Cork.
Grounds / Issues: race - section 6 (2) (h) - harassment, section 14 - conditions of employment, section 8 - victimisation, Section 74(2).
DEC-E2013-192: 4 Complainants -v- ISS Ireland Limited.
Grounds / Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, - Section 6(2(a)(b)(h) – gender, marital status and race, Section 8- conditions of employment, dismissal.
DEC-E2013-194: Anna Zajac -v- Heatons.
Grounds / Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions of employment, failure to establish a prima facie case.
DEC-E2013-195: Ms Agnieszka Spyra -v- Ryanair Ltd.
Grounds / Issues: employment agency – provider of agency work – S. 8(3) – employers within the meaning of the Acts – discontinuation of agency work – dismissal within the meaning of the Acts – Citibank v. Massinde Ntoko – Dacas v. Brook Street Bureau (UK) Ltd. – Diageo Global Supply v. Mary Rooney – subconscious bias in worker appraisals – Portroe Stevedores v. Nevins, Murphy and Flood - rebuttal.
DEC- E2013-196: Mr B -v- A Metal Processing Company.
Grounds / Issues: Employment Equality Acts – Disability – Diabetes - Reasonable accommodation - Disproportionate burden - Section 16 defence
DEC-E2013-197: John Roche -v- Complete Bar Solutions.
Grounds / Issues: Employment Equality Acts – Discrimination – Age - Retirement Age - Objective and reasonable justification.
DEC-E2013-198: A Complainant -v- Tesco Ireland Ltd.
Grounds / Issues: Employment Equality Acts - disability - working conditions - reasonable accommodation - discriminatory dismissal - prima facie case
DEC-E2013-199: Nayaranasami -v- Sheldon Park Hotel.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6 and 14A – harassment – race- prima facie case – defence available to employer.
Adare Human Resource Management Commentary
Case Law from the Equality Tribunal always provides a useful reminder to Employers of the appropriate procedures that they should have in place in order to defend themselves against claims of discriminatory treatment under the Employment Equality Acts.
In December, there were five successful claims leading to awards totalling over €100,000 being made. The remaining claims were not upheld. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including Access to Employment, Terms and Conditions of Employment and Dismissal. We have highlighted two specific decisions in December of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Acts.
Organisational Considerations – Harassment in the Workplace
Employment Equality Decision Upheld:
DEC-E2013 - 167: Attila Marton Ajtai –v- McDonnell Brothers Agricultural Suppliers Ltd.
Grounds / Issues: Discrimination under the Employment Equality Acts.
Award: €22,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal and €11,000 in compensation for the distress caused by victimisation.
In the case of Attila Marton Ajtai –v- McDonnell Brothers Agricultural Suppliers Ltd, the Tribunal in awarding the Complainant the sum of €33,000 by way of compensation found that the Respondent had subjected the Complainant to discriminatory treatment in relation to his conditions of employment leading to dismissal and victimisation which he was subjected to subsequently.
The Complainant was employed as a general worker with the company. The Complainant was a Hungarian national of the Roma community. The Complainant stated that during the course of his employment and in particular over the course of 2010/2011, two Polish co-workers M and L engaged in a campaign of harassment against him. Over a number of months in 2010, racial slurs were made against the Complainant and in particular M would comment “white power” when passing or working with the Complainant and raise his fist in the Nazi salute. The harassment continued and L and M made frequent racial slurs to the Complainant. The Complainant would try to ignore the comments and also on occasions pleaded with his colleagues to cease making such slurs.
On one occasion while he was eating his lunch, he received slaps to the nape of the neck by L and M. In addition, on three occasions in a particular week, the Complainant tasted soap in his sandwiches. These incidents were submitted to the yard supervisor, N, but nothing was done about the complaints. In January 2011, a dispute arose in respect of the microwave. The Complainant had heated some food in the microwave and then took his food out and unplugged the microwave. L came in and attacked the Complainant for having unplugged the microwave. Words were exchanged between the two and L said to the Complainant “if you are not happy here, you go downstairs and eat”. The Complainant made a further Complainant to his supervisor N but nothing was done.
The Complainant became sick suffering from stress and made a verbal complaint to his manager, D (the Managing Director) around the 29 January 2011. About an hour after the Complainant observed D speaking to M & L, M approached the Complainant and stated to him “do you think we are racist? In England, the niggers go on the bus and push the old white women, they say white bitch”. While saying these words to the Complainant, M pushed the Complainant with his left arm and shoved him. The Complainant felt very isolated after making the complaint to management and began to suffer from extreme stress and became anxious and terrified that L and M would cause him physical harm.
Given the stress of the situation at the lack of a response from his Employer the Complainant sought advice from an external source and was furnished with information regarding bullying and harassment and grievance procedures and he gave these documents to D.
On 4 February 2011, D requested the Complainant to put his complaints in writing and he did so and handed it to D on 8 February 2011. The Complainant was anxious as to the lack of progress since submitting his complaint in writing and attended at the local Garda station to make a formal complaint of harassment against M & L. On 18 February, D approached the Complainant in the yard in front of other Employees and began to shout at the Complainant.
At this stage, the Complainant became very stressed, he attempted to reason with D and spoke to him on 10 March 2011 but to no avail. D stated to him “I have to protect my business”. The Complainant attended his GP on 11 March and was certified as unfit for work due to stress. The Complainant wrote to his Employer on 15 March seeking an immediate investigation into the complaints. A response was received stating that an investigation was initiated and the Employer could find no wrong-doing on the part of the Complainant’s co-workers. The Complainant alleged that he was discriminated on grounds of his race and his Employer failed to protect him.
The Respondent contended that it was not aware of any harassment or bullying of the Complainant by L and M. The Respondent submitted that there was a full and clear denial of any misbehaviour on the part of M & L but as an interim measure, M and L and the Complainant were advised to stay out of each other’s way and to use separate canteens which were available to them. D states that he advised the Complainant of the outcome of his investigation and requested the Complainant to revert directly to him immediately if another incident occurred. The Respondent refuted the incident in which D is alleged to have shouted at the Complainant for obtaining external guidance, including the Gardaí.
The Respondent stated that the alleged acts of harassment did not happen in the course of the employment and argued that it could not be vicariously liable for alleged acts it knew nothing about. The Respondent further submitted that it tried to deal with the issues in a low-key manner and tried to get the Employees back on side and that is why initially D did not instigate a formal procedure.
Harassment is a word which strikes fear into the minds of most Managers. It can be one of the most difficult and distracting Employee relations issues for an organisation to deal with, and can present exposure to serious liability and bad press for an organisation where not dealt with correctly.
Following the correct procedure is fundamental in reducing exposure to future legal claims for compensation in relation to harassment. Organisations are advised to always take appropriate advice where a complaint is received, or where there is a suspicion of harassment occurring in the workplace.
The Codes of Practice related to harassment and sexual harassment outline that every Employer should have in place informal and formal procedures for an Employee to follow in the event of a complaint. The formal procedure involves a written complaint being submitted to the Employer, which must then be investigated. The Equality Officer is this case concluded that given the serious nature of the racial abuse, a comprehensive thorough investigation was required. However, on examination of all the evidence, the Equality Officer was satisfied, that the Respondent had no policy or procedure in the workplace to deal with an allegation of harassment.
This case also highlights the importance of having a clear anti-harassment or dignity at work policy in place which is effectively communicated to all Employees. The Tribunal noted that the Respondent had no policies or procedures in place in respect of bullying or harassment in the workplace.
Successful Enforcement of Retirement Age
Employment Equality Decision Not Upheld:
DEC-E2013-197: John Roche –v- Complete Bar Solutions
Grounds / Issues: Discrimination on the grounds of age in terms of 6(2)(f) of the Employment Equality Acts 1998-2011 (thereinafter referred to as “The Acts”) regarding being forced to retire
In the case of John Roche -v- Complete Bar Solutions, the Complainant alleged that he was discriminated against on the grounds of age, when he was forced to retire from his job, contrary to the Employment Equality Acts 1998 to 2011.
Mr Roche was originally employed by Celtic Technology Ltd on 1st March 1996. The company became Complete Bar Solutions in 2005. Mr Roche was the manager of approximately 16 people. The Respondent company engaged in contract work on behalf of various breweries in servicing the equipment in various licensed premises. Mr Roche submitted that his employment was terminated simply because he reached the retirement age of 65 on 7th March 2011.
Mr B (Managing Director) was approached by Mr Roche on 5th January 2011 with a proposal that the Respondent give him redundancy or remained employed with the company. The Complainant felt the redundancy payment could be claimed back by the company from the Exchequer. Mr A (Managing Director) explained that this was not possible as his position was not being made redundant. Similar discussions took placed in meetings on 18th January and 28th January 2011. Letters reiterating the company’s position were also sent to the Respondent on the 18th January and 23rd February.
A letter was sent to Mr Roche on 2nd March 2011 from the Respondent, following up from a meeting that which had taken place the previous week. The letter stated “I would very much like to try to resolve this issue without falling out with you. Unfortunately, the retirement age of the company is 65 years and I cannot offer a redundancy payment to you”. The Respondent went on to offer Mr Roche a fixed term contract for a period of six months as had been discussed in their earlier meeting. This offer was declined.
The Respondent confirmed that Mr Roche’s service during his period of employment was excellent. The Respondent also accepted that his written statement of terms and conditions was silent on the retirement age but argued that it was an implied term and that Mr Roche was aware of the custom in place as one of the three trustees of the company pension scheme.
The company submitted that it did not want to make a precedent by allowing somebody to stay beyond retirement age and said it was anxious to create promotional opportunities for more junior staff. Mr A said that he was in the process of internal recruitment to fill Mr Roche’s vacancy but the Respondent lost a major contract and all 73 Employees were the subject of a transfer of undertakings to CPM Ireland Ltd on 30th June 2011. The company is now in voluntary liquidation.
Over the last number of years we have witnessed an increase in the number of cases relating to the enforcement of retirement ages. There are a number of factors contributing to this increase, one of which is that Employees simply want to remain in the workplace and delay the date of retirement. Whilst it is not unlawful to require Employees to retire at a specific age, organisations must be objectively justified by demonstrating a legitimate aim or purpose.
In this case it is worth noting that the reasons given by the Respondent to enforce the retirement age at 65 was to create certainty in business planning and to encourage staff morale by using the consequential vacancy as an internal promotional vacancy. In line with previous case law, the Tribunal found this a legitimate aim of the Respondent.
Guidelines for organisations include:
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The Employment Equality Acts 1998 to 2012, outlaw discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment andvictimisation at work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.
The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.
The Director of the Equality Tribunal has published the following Decisions of the Tribunal:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2013-163: Jolenta Drabik -v- Edward Zandi trading as Moonlite Cleaning Services Ltd.
Grounds / Issues: Employment Equality Acts, Gender, Discriminatory dismissal, Pregnancy, Correct Respondent.
Award: €22,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal and €11,000 in compensation for the distress caused by victimisation.
DEC-E2013-167: Attila Marton Ajtai -v- McDonnell Brothers Agricultural Suppliers Ltd.
Grounds / Issues: Employment Equality Acts - discriminatory treatment - race - working conditions - harassment - prima facie case – victimisation.
Award: €20,000 for the distress suffered by him as a result of the harassment
DEC-E2013-181: Furlong -v- The Timber Frame Company Ltd.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6 and 8 – lay-off- discriminatory dismissal – disability.
Award: €5,000
DEC-E2013-186: Alan Gallagher -v- McCosker & Sons Ltd.
Grounds / Issues: Employment Equality Acts 1998-2011, Disability –6(2)(g), Dismissal – Section 8(6), Section 6(1) – less favourable treatment, discriminatory dismissal, Section 16(3) – Failure to provide reasonable accommodation, Section 85A – prima facie case.
Award: €12,000
DEC-E2013-193: Kristina Kukstaite -v- Shedan Limited.
Grounds / Issues: Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions and discriminatory dismissal, Section 14A – harassment and sexual harassment, prima facie case.
Award: €14,000 in compensation for the distress caused by the discrimination and constructive dismissal and €20,000 in compensation for the distress caused by victimisation.
Employment Equality Decisions Not Upheld:
DEC-E2013-161: Ms Beata Milkowska -v- Kings Laundry Ltd.
Grounds / Issues: Race – harassment – indirect discrimination in conditions of employment – language policy – objective justification
DEC-E2013-162: Yalmaz Hadzhiveysal -v- ISS Ireland Limited.
Grounds / Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions of employment, failure to attend hearing.
DEC-E2013-164: Ahashan Habib -v- Gampen Ltd trading as Eddie Rockets, Killarney.
Grounds / Issues: Employment Equality Acts, Race, Harassment, Section 14A (2) Defence, No prima facie case
DEC-E2013-165: Rimantas Kazdailis -v- Ballinard Transport Ltd.
Grounds / Issues: Employment Equality Acts - discriminatory treatment - race - conditions of employment - prima facie case
DEC-E2013-166: Angelika Kozlowska -v- TA Hotels Ltd. t/a Lynams Hotel and Café Carlo.
Grounds / Issues: Employment Equality Acts - disability - working conditions - discriminatory dismissal – victimisation - prima facie case
DEC-E2013-168: Marie Daly -v- Nano Nagle School.
Grounds / Issues: Employment Equality Acts – Failure to provide reasonable accommodation – Disability – Prima Facie case – Appropriate measures – Section 16 defence
DEC-E2013-169: Mr Michael Doyle -v- The Revenue Commissioners.
Grounds / Issues: age - section 6(2) and section – Access to employment.
DEC-E2013-170: Wojciech Kaminski -v- Cillmhantain Iompair Teoranta.
Grounds / Issues: race - section 6(2)(h) - conditions of employment – dismissal - harassment - sexual harassment
DEC-E2013-171: Regimantas Sarkus -v- O’Leary International Ltd.
Grounds / Issues: Application for expenses - race - section 6 (2) (h) - conditions of employment - dismissal.
DEC-E2013-172: Moshuir Rahman -v- Munster Joinery.
Grounds / Issues: race - section 6(2)(h) - harassment - section 14A
DEC-E2013-173: Stachowski -v- Portmarnock Sport and Leisure Club.
Grounds / Issues: race – section 6 – section 8 – conditions of employment – harassment - victimisation
DEC-E2013-174: A Lecturer -v- A Third Level Institution.
Grounds / Issues: Gender – equal pay – like work – grounds other than gender for difference in remuneration – starting pay on appointment to a permanent post
DEC-E2013-175: Agnieszka Andoo -v- Pagewell Concession (ILAC) Ltd.
Grounds / Issues: Employment Equality Acts – Discriminatory Treatment – Victimisaton – Harassment - Discriminatory Dismissal – Gender – Race - Family Status – Prima Facie case
DEC-E2013-176: Liudmila Bormskaja -v- San Siro Ltd.
Grounds / Issues: Employment Equality Acts - race - discriminatory dismissal - prima facie case
DEC-E2013-177: Tunde Reisenleitneer -v- Crewlink Ireland Limited.
Grounds / Issues: Employment Equality Acts - Sections 6 and 8 – Marital Status, Family Status, Age & Race - Access to employment.
DEC-E2013-178: Mr. Chantar Arumugan -v- Ashdown Park Hotel Limited t/a Ashdown Park Hotel.
Grounds / Issues: race - section 6 - section 8 - dismissal.
DEC-E2013-179: Ms. Regina Stasytiene -v- Anora Commercial Ltd.
Grounds / Issues: race - gender - family status - section 6 - section 8 - conditions of employment - victimisation.
DEC-E2013-180: Skelly -v- St. Paul’s Secondary School.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6, 8 and 74 – discriminatory treatment – conditions of employment – marital status - victimisation.
DEC-E2013-182: An Employee -v- A Cleaning Company.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6 and 8 – resignation- discriminatory dismissal – disability
DEC-E2013-183: Pawel Soleck -v- Campion Concrete Products Limited.
Grounds / Issues: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(h), race – section 8, conditions of employment, Constructive dismissal, Section 7 & 29 – equal pay, failure to establish a prima facie case, statutory time limits, no jurisdiction in relation to constructive dismissal.
DEC-E2013-184: Przemek Czyzak -v- Steam Distilled Pure Water Limited.
Grounds / Issues: Employment Equality Acts – sections 6 and 29 - equal pay – age & race.
DEC-E2013-185: Caroline Dempsey -v- Revenue Commissioners.
Grounds / Issues: Employment Equality Acts: Sections 6(1) – less favourable treatment, 6(1)(c) – family status, Section 7 & 29 – equal pay, Section 8 - conditions of employment, Section 86- collective agreement Section 77 –time limits, Correct Respondent in relation to collective agreement - Section 86(2)(c), no jurisdiction.
DEC-E2013-187: Linda Brennan -v- Willis Risk Services (Ireland) Ltd.
Grounds / Issues: Employment Equality Acts - Family Status - Civil Status - Discriminatory treatment - No prima facie case - Access to promotion
DEC-E2013-188: Mr L -v- A Medical Technology Enterprise.
Grounds / Issues: Employment Equality Acts – Disability – Race - Post Polio Syndrome - Reasonable accommodation - Conditions of employment
DEC-E2013-189: Ms Agnieszka Spyra -v- MK Human Resources Ltd t/a Temple Recruitment.
Grounds / Issues: Race – discriminatory dismissal – employment agency – continued employment with agency
DEC-E2013-190: Mr Oscar Caracas -v- TLC Centre Ltd.
Grounds / Issues: race - Section 6(2)(h) - access to employment - provision of training - harassment - discriminatory dismissal
DEC-E2013-191: Konstantin Doulamis -v- University College Cork.
Grounds / Issues: race - section 6 (2) (h) - harassment, section 14 - conditions of employment, section 8 - victimisation, Section 74(2).
DEC-E2013-192: 4 Complainants -v- ISS Ireland Limited.
Grounds / Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, - Section 6(2(a)(b)(h) – gender, marital status and race, Section 8- conditions of employment, dismissal.
DEC-E2013-194: Anna Zajac -v- Heatons.
Grounds / Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions of employment, failure to establish a prima facie case.
DEC-E2013-195: Ms Agnieszka Spyra -v- Ryanair Ltd.
Grounds / Issues: employment agency – provider of agency work – S. 8(3) – employers within the meaning of the Acts – discontinuation of agency work – dismissal within the meaning of the Acts – Citibank v. Massinde Ntoko – Dacas v. Brook Street Bureau (UK) Ltd. – Diageo Global Supply v. Mary Rooney – subconscious bias in worker appraisals – Portroe Stevedores v. Nevins, Murphy and Flood - rebuttal.
DEC- E2013-196: Mr B -v- A Metal Processing Company.
Grounds / Issues: Employment Equality Acts – Disability – Diabetes - Reasonable accommodation - Disproportionate burden - Section 16 defence
DEC-E2013-197: John Roche -v- Complete Bar Solutions.
Grounds / Issues: Employment Equality Acts – Discrimination – Age - Retirement Age - Objective and reasonable justification.
DEC-E2013-198: A Complainant -v- Tesco Ireland Ltd.
Grounds / Issues: Employment Equality Acts - disability - working conditions - reasonable accommodation - discriminatory dismissal - prima facie case
DEC-E2013-199: Nayaranasami -v- Sheldon Park Hotel.
Grounds / Issues: Employment Equality Acts 1998- 2008 - sections 6 and 14A – harassment – race- prima facie case – defence available to employer.
Adare Human Resource Management Commentary
Case Law from the Equality Tribunal always provides a useful reminder to Employers of the appropriate procedures that they should have in place in order to defend themselves against claims of discriminatory treatment under the Employment Equality Acts.
In December, there were five successful claims leading to awards totalling over €100,000 being made. The remaining claims were not upheld. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including Access to Employment, Terms and Conditions of Employment and Dismissal. We have highlighted two specific decisions in December of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Acts.
Organisational Considerations – Harassment in the Workplace
Employment Equality Decision Upheld:
DEC-E2013 - 167: Attila Marton Ajtai –v- McDonnell Brothers Agricultural Suppliers Ltd.
Grounds / Issues: Discrimination under the Employment Equality Acts.
Award: €22,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal and €11,000 in compensation for the distress caused by victimisation.
In the case of Attila Marton Ajtai –v- McDonnell Brothers Agricultural Suppliers Ltd, the Tribunal in awarding the Complainant the sum of €33,000 by way of compensation found that the Respondent had subjected the Complainant to discriminatory treatment in relation to his conditions of employment leading to dismissal and victimisation which he was subjected to subsequently.
The Complainant was employed as a general worker with the company. The Complainant was a Hungarian national of the Roma community. The Complainant stated that during the course of his employment and in particular over the course of 2010/2011, two Polish co-workers M and L engaged in a campaign of harassment against him. Over a number of months in 2010, racial slurs were made against the Complainant and in particular M would comment “white power” when passing or working with the Complainant and raise his fist in the Nazi salute. The harassment continued and L and M made frequent racial slurs to the Complainant. The Complainant would try to ignore the comments and also on occasions pleaded with his colleagues to cease making such slurs.
On one occasion while he was eating his lunch, he received slaps to the nape of the neck by L and M. In addition, on three occasions in a particular week, the Complainant tasted soap in his sandwiches. These incidents were submitted to the yard supervisor, N, but nothing was done about the complaints. In January 2011, a dispute arose in respect of the microwave. The Complainant had heated some food in the microwave and then took his food out and unplugged the microwave. L came in and attacked the Complainant for having unplugged the microwave. Words were exchanged between the two and L said to the Complainant “if you are not happy here, you go downstairs and eat”. The Complainant made a further Complainant to his supervisor N but nothing was done.
The Complainant became sick suffering from stress and made a verbal complaint to his manager, D (the Managing Director) around the 29 January 2011. About an hour after the Complainant observed D speaking to M & L, M approached the Complainant and stated to him “do you think we are racist? In England, the niggers go on the bus and push the old white women, they say white bitch”. While saying these words to the Complainant, M pushed the Complainant with his left arm and shoved him. The Complainant felt very isolated after making the complaint to management and began to suffer from extreme stress and became anxious and terrified that L and M would cause him physical harm.
Given the stress of the situation at the lack of a response from his Employer the Complainant sought advice from an external source and was furnished with information regarding bullying and harassment and grievance procedures and he gave these documents to D.
On 4 February 2011, D requested the Complainant to put his complaints in writing and he did so and handed it to D on 8 February 2011. The Complainant was anxious as to the lack of progress since submitting his complaint in writing and attended at the local Garda station to make a formal complaint of harassment against M & L. On 18 February, D approached the Complainant in the yard in front of other Employees and began to shout at the Complainant.
At this stage, the Complainant became very stressed, he attempted to reason with D and spoke to him on 10 March 2011 but to no avail. D stated to him “I have to protect my business”. The Complainant attended his GP on 11 March and was certified as unfit for work due to stress. The Complainant wrote to his Employer on 15 March seeking an immediate investigation into the complaints. A response was received stating that an investigation was initiated and the Employer could find no wrong-doing on the part of the Complainant’s co-workers. The Complainant alleged that he was discriminated on grounds of his race and his Employer failed to protect him.
The Respondent contended that it was not aware of any harassment or bullying of the Complainant by L and M. The Respondent submitted that there was a full and clear denial of any misbehaviour on the part of M & L but as an interim measure, M and L and the Complainant were advised to stay out of each other’s way and to use separate canteens which were available to them. D states that he advised the Complainant of the outcome of his investigation and requested the Complainant to revert directly to him immediately if another incident occurred. The Respondent refuted the incident in which D is alleged to have shouted at the Complainant for obtaining external guidance, including the Gardaí.
The Respondent stated that the alleged acts of harassment did not happen in the course of the employment and argued that it could not be vicariously liable for alleged acts it knew nothing about. The Respondent further submitted that it tried to deal with the issues in a low-key manner and tried to get the Employees back on side and that is why initially D did not instigate a formal procedure.
Harassment is a word which strikes fear into the minds of most Managers. It can be one of the most difficult and distracting Employee relations issues for an organisation to deal with, and can present exposure to serious liability and bad press for an organisation where not dealt with correctly.
Following the correct procedure is fundamental in reducing exposure to future legal claims for compensation in relation to harassment. Organisations are advised to always take appropriate advice where a complaint is received, or where there is a suspicion of harassment occurring in the workplace.
The Codes of Practice related to harassment and sexual harassment outline that every Employer should have in place informal and formal procedures for an Employee to follow in the event of a complaint. The formal procedure involves a written complaint being submitted to the Employer, which must then be investigated. The Equality Officer is this case concluded that given the serious nature of the racial abuse, a comprehensive thorough investigation was required. However, on examination of all the evidence, the Equality Officer was satisfied, that the Respondent had no policy or procedure in the workplace to deal with an allegation of harassment.
This case also highlights the importance of having a clear anti-harassment or dignity at work policy in place which is effectively communicated to all Employees. The Tribunal noted that the Respondent had no policies or procedures in place in respect of bullying or harassment in the workplace.
Successful Enforcement of Retirement Age
Employment Equality Decision Not Upheld:
DEC-E2013-197: John Roche –v- Complete Bar Solutions
Grounds / Issues: Discrimination on the grounds of age in terms of 6(2)(f) of the Employment Equality Acts 1998-2011 (thereinafter referred to as “The Acts”) regarding being forced to retire
In the case of John Roche -v- Complete Bar Solutions, the Complainant alleged that he was discriminated against on the grounds of age, when he was forced to retire from his job, contrary to the Employment Equality Acts 1998 to 2011.
Mr Roche was originally employed by Celtic Technology Ltd on 1st March 1996. The company became Complete Bar Solutions in 2005. Mr Roche was the manager of approximately 16 people. The Respondent company engaged in contract work on behalf of various breweries in servicing the equipment in various licensed premises. Mr Roche submitted that his employment was terminated simply because he reached the retirement age of 65 on 7th March 2011.
Mr B (Managing Director) was approached by Mr Roche on 5th January 2011 with a proposal that the Respondent give him redundancy or remained employed with the company. The Complainant felt the redundancy payment could be claimed back by the company from the Exchequer. Mr A (Managing Director) explained that this was not possible as his position was not being made redundant. Similar discussions took placed in meetings on 18th January and 28th January 2011. Letters reiterating the company’s position were also sent to the Respondent on the 18th January and 23rd February.
A letter was sent to Mr Roche on 2nd March 2011 from the Respondent, following up from a meeting that which had taken place the previous week. The letter stated “I would very much like to try to resolve this issue without falling out with you. Unfortunately, the retirement age of the company is 65 years and I cannot offer a redundancy payment to you”. The Respondent went on to offer Mr Roche a fixed term contract for a period of six months as had been discussed in their earlier meeting. This offer was declined.
The Respondent confirmed that Mr Roche’s service during his period of employment was excellent. The Respondent also accepted that his written statement of terms and conditions was silent on the retirement age but argued that it was an implied term and that Mr Roche was aware of the custom in place as one of the three trustees of the company pension scheme.
The company submitted that it did not want to make a precedent by allowing somebody to stay beyond retirement age and said it was anxious to create promotional opportunities for more junior staff. Mr A said that he was in the process of internal recruitment to fill Mr Roche’s vacancy but the Respondent lost a major contract and all 73 Employees were the subject of a transfer of undertakings to CPM Ireland Ltd on 30th June 2011. The company is now in voluntary liquidation.
Over the last number of years we have witnessed an increase in the number of cases relating to the enforcement of retirement ages. There are a number of factors contributing to this increase, one of which is that Employees simply want to remain in the workplace and delay the date of retirement. Whilst it is not unlawful to require Employees to retire at a specific age, organisations must be objectively justified by demonstrating a legitimate aim or purpose.
In this case it is worth noting that the reasons given by the Respondent to enforce the retirement age at 65 was to create certainty in business planning and to encourage staff morale by using the consequential vacancy as an internal promotional vacancy. In line with previous case law, the Tribunal found this a legitimate aim of the Respondent.
Guidelines for organisations include:
- Specify the retirement age in all employment contracts
- Be cautious about deviating from the retirement age stated in the contacts of employment. This should only be done in exceptional circumstances
- Be prepared to objectively justify the retirement age in the organisation specifically when the organisation has deviated from the retirement age or moved from what is custom and practice.
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The Employment Equality Acts 1998 to 2012, outlaw discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment andvictimisation at work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.
The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.
