Recent Equality Tribunal Decisions
Each month we look at and review the decisions from the Equality Tribunal. This provides a valuable insight into the types of discrimination cases before the Tribunal and the decisions that are issued.
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The Equality Tribunal published the following 10 decisions for February 2014:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-007:Lisa Mullen –v- BCon Communications Ltd.
Grounds / Issues:Employment Equality Acts 1998- 2008 - sections 6.8 and 14A – harassment – discriminatory treatment – gender- pregnancy – family status – maternity leave
Award:€80,000 by way of compensation for the distress suffered by her as a consequence of the discrimination
DEC-E2014-009:Priscilla Doogan –v- Newgate Motor Company Limited
Grounds / Issues:Employment Equality Acts - Sections 6 & 8 – Gender - pregnancy – Discriminatory Dismissal
Award:€8,000 in compensation for the discriminatory treatment suffered
DEC-E2014-012:David O’ Sullivan –v- Eastern Regional Ambulance Service
Grounds / Issues:Employment Equality Acts 1998- 2008 - sections 6, 8 and 77 – discriminatory treatment – conditions of employment- disability- time limits- out of time
Award:€2,800 by way of loss of earnings in respect of the structured overtime he was denied between 5 November, 2009 and 22 December, 2009 as a result of the discriminatory treatment of him and €12,000 by way of compensation for the distress suffered by him as a result of the discrimination.
Employment Equality Decisions Not Upheld:
DEC-E2014-004:Mohammed Faysal –v- Brinks Ireland Limited
Grounds / Issues:Employment Equality Acts - Sections 6, 8 and 16 – Race & Religion – Harassment – Discriminatory Dismissal – Victimisation & Victimisatory Dismissal.
DEC-E2014-005:Siobhan Connell –v- ERGO Services Limited
Grounds / Issues:disability in terms of section 6 of the Employment Equality Acts - conditions of employment – dismissal- reasonable accommodation.
DEC-E2014-006:Liliya Skopinska –v- Portmarnock Sport & Leisure Club
Grounds / Issues:race - conditions of employment - harassment - victimisation.
DEC-E2014-008:Evgenijs Lukjanoves –v- Rocliffe Ltd
Grounds / Issues:disability contrary to Section 6(2) (g) of the Employment Equality Acts – discriminatory dismissal
DEC-E2014-010:Olesia Berezovskaja –v- Vector Workplace and Facility Management Ltd, Campbell Catering Ltd and Aramark Ireland Holdings Ltd
Grounds / Issues:Employment Equality Acts, Race, Conditions of Employment, Harassment
DEC-E2014-011:Karen Coakley –v- Department of Social Protection
Grounds / Issues:Jurisdiction – whether respondent is the correct respondent - Catholic University School v. Dooley & Scannell - family status – access to employment – lack of eligibility for position for reasons unconnected to family status – no prima facie case
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 February, there were three successful claims leading to awards of €80,000, €8,000 and €14,800 respectively. The remaining six 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, Re-grading, Terms and Conditions of Employment and Dismissal. We have highlighted two specific decisions in February of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Discrimination on the Basis of Maternity Leave
Employment Equality Decision Upheld or Partly Upheld:
DEC-E2014-007:Lisa Mullen -v- BCon Communications Ltd. (In Liquidation)
Grounds / Issues:Employment Equality Acts 1998- 2008 - sections 6.8 and 14A – harassment – discriminatory treatment – gender- pregnancy – family status – maternity leave
Award:€80,000 by way of compensation for the distress suffered by her as a consequence of discrimination.
In the case Lisa Mullen –v- BCon Communications Ltd, the Tribunal in awarding the Complainant the sum of €80,000 found that the Respondent harassed the Complainant on the grounds of family status and gender and that the Respondent dismissed the Complainant in circumstances amounting to discrimination on the grounds of family status and gender contrary to the Employment Equality Acts.
The Complainant commenced employment with the Respondent in January 2003 and held roles of progressive responsibility until she was appointed Financial Controller in September, 2007. The Complainant stated that she informed the Respondent’s Managing Director, Mr. W, she was pregnant with her third child in November 2009 and that subsequently his attitude changed significantly and he became particularly hostile toward her. She added that at this time she had two other children and had suffered a miscarriage in July 2009. She further stated that this conversation took place in the Respondent’s warehouse and the Managing Director’s younger brother (Mr. E) was present. The Complainant stated that when she informed him of her pregnancy Mr. W replied “Jesus Lisa, you don’t hang around”. The Complainant stated that she was extremely upset by this remark, particularly in the light of her recent miscarriage. She added that when Mr. W left, Mr. E told her that what Mr. W had said what he had said to her “was a horrible comment to make”.
In a second incident, the Complainant stated that she was talking to two of the Respondent’s clients and she informed them she was pregnant. She added that she knew these clients well and they were aware of her miscarriage earlier that year. The Complainant stated that Mr. W overheard this conversation and said to the clients “Yes and to be honest lads I am not too happy about this. She was meant to stop after her first two and now I have been informed that she is having a third”. The Complainant added that when she tried to raise the matter with Mr. W later, he was dismissive of her and would not talk about it.
The Complainant further stated that she attended interviews with Mr. W in February 2010 to select the person who would provide cover for her post when she was on maternity leave. She added that in the course of the interview with the successful candidate (Ms. S) Mr. W said “well I’m not sure if Lisa will be coming back to work especially now she will have three children to look after”. The Complainants stated she was shocked by this comment as she had never done or said anything which might lead Mr. W to this conclusion and she took issue with him when the interview concluded, adding that, he replied he had assumed, if she had three children she would not want to return to work.
The Complainant states that her period of maternity leave was due to finish on 31 January 2011. She e-mailed Mr. W on 20 December 2010 informing him of her intention to return to work on 31 January, 2011. The Complainant stated that Ms. S emailed her on 6 January, 2011 asking her to attend a meeting with Mr. W on 14 January 2011 to discuss her return to work. She adds that she attended this meeting and that Mr. W and Mr. O (the Respondent’s new Technical Director) were also present. The Complainant stated that at this meeting Mr. W advised her that the role of Financial Controller no longer existed in its previous format within the new company structure and was redundant and offered the Complainant an alternative position which involved (i) an additional eight hours work per week, (ii) a 40% cut in her salary and (iii) a more junior and less responsible position in Accounts Receivable. She added that when she told Mr. W these terms were not acceptable he became quite aggressive and intimidating and she was frightened and left the meeting as soon as possible.
The Complainant states that she did some research over the following weekend and obtained some professional advice and e-mailed Mr. W on Monday 17 January, 2011 setting out (i) her understanding of the proposed new role and its terms and conditions; (ii) her rights and entitlements to return to work under maternity protection legislation and (iii) stating that the role and terms offered were unacceptable to her. She added that the Respondent, Mr. O, replied by e-mail on 21 January 2011 and stated the Complainant’s pre-maternity leave hours and terms and conditions of employment, including her rate of pay would be restored but re-iterated that the role of Financial Controller no longer existed in the company. The Complainant rejected the assertion that her role was redundant and stated that all the other tasks previously performed by her were being done by Ms. S, who was retained in employment and was based in the Complainant’s office. The Complainant stated that she e-mailed the Respondent on 27 January, 2011 advising she viewed the revised post as a “serious reduction in responsibility and role” and requested that she be permitted to return to her original role of Financial Controller as soon as possible.
The Complainant stated that Mr. O replied by e-mail on 28 January, 2011 and again re-iterated the role of Financial Controller in the company no longer existed; indicated the Respondent was acting in compliance with the maternity protection legislation and suggested that her concerns about seniority could be satisfied by the title “Credit Control Manager”. The Complainant stated that she replied by e-mail of 30 January, 2011 restating her opinion that the role offered was a “demotion that you [the Respondent] is endeavouring to impose on me”; was “so limited in scope and responsibility that had [she] seen it advertised in the newspapers [she] would not give it a second thought” and advised that it was totally unacceptable. She stated that Mr. O wrote to her on 1 February, 2011 rejecting her views and advising that the role (as most recently offered) remained open for a period of fourteen days. The Complainant stated that she replied to this letter on 11 February, 2011 restating her position and asking to be permitted to return to her original role. She added that the respondent, Mr. W, wrote to her on 15 February, 2011 rejecting all of her arguments and advising that as she had not reported for duty the respondent considered her to have resigned. The Complainant stated that the role of Financial Controller continued to exist in the respondent company at all times and in this regard furnished the Tribunal with a “screenshot” of the respondent’s website dated 11 May, 2011 – three months after her employment was terminated –which named Ms. S as the company Financial Controller.
The Respondent neither attended, nor was it represented at the Hearing. In addition, it did not at any stage file a submission with the Tribunal despite a number of requests.
The Tribunal found that the Complainant was subjected to a range of unlawful treatment and comments which intensified after she informed the Respondent of her pregnancy in November 2009. When she attempted to exercise her statutory rights and return to work at the end of her maternity leave, her Employer made it particularly difficult for her, misrepresented the true position to her by informing her that her role no longer existed when it clearly did and using that scenario as a background, offered her alternative employment which the Tribunal was satisfied amounted to a demotion.
Where possible, Employees are entitled to return to the position held immediately prior to the commencement of leave (provided this was their normal position). However, where it is not feasible to hold the position open, he/she may be required to return to a suitable alternative position, provided that the new position is no less favourable with regard to terms and conditions. This includes such factors as the opportunity for progression in the Organisation, staff responsibilities, as well as more straight forward measures, such as pay and benefits.
Should an Organisation offer employment which is less favourable this may be seen as discrimination on the grounds of an Employee who is pregnant, on protected leave or had recently returned to work following a period of protected leave.
Managing Mental Health in the Workplace
Employment Equality Decision Upheld or Partly Upheld:
DEC-E2014-012:David O’Sullivan -v- Eastern Regional Ambulance Service
Grounds / Issues:Employment Equality Acts 1998 – 2008 – sections 6,8 and 77 – Discriminatory treatment – conditions of employment – disability – timelimits – out of time
Award:€2,800 by way of loss of earning in respect of the structured overtimes he was denied between 5th November, 2009 and 22 December, 2009 as a result of the discriminatory treatment of him. And €12,000 by way of compensation for the distress suffered by him as a result of the discrimination.
In the case David O’Sullivan –v- Eastern Regional Ambulance Service, the Tribunal in awarded the Complainant the sum of €2,800 by the way of loss of earnings in respect of his conditions of employment when it removed him from the overtime roster in November 2009, as well as €12,000 by way of compensation as a result of distress suffered by the Complainant following discrimination on the grounds of disability.
The Complainant commenced employment with the Respondent as an Emergency Medical Technician (“EMT”) in September 1999. He stated that he was diagnosed with Depression in June, 2003 and his condition necessitated a number of absences from work thereafter. He added that in July 2004 he agreed an action plan with the Respondent to address his absences record, an element of which was a provision restricting the Complainant in the amount of overtime shifts he could work each week. The Complainant added that as part of this action plan he was regularly reviewed by the Respondent’s Occupational Health Department and after several meetings and assessments with Management and medical staff the review process formally concluded in September, 2006 and he was restored to full overtime duties. The Complainant stated that his employment was uneventful until November 2009 when he was referred to the Respondent’s Occupational Health Department by Mr. D, the respondent’s Assistant Chief Ambulance Officer (at that time) and he was again withdrawn from the overtime roster. He was restored to the roster in December 2009 which the Complainant submitted amounted to less favourable treatment of him on grounds of disability contrary to the Employment Equality Acts.
The Complainant stated that he experienced chest pain in November, 2009 and attended his GP. He added that he was diagnosed with anxiety and certified as unfit for duty. He further stated that he contacted Mr. C (the person who had been appointed his Peer Support Person previously) and informed him that he had been diagnosed with anxiety and had been advised to see a Specialist. The Complainant stated that he considered this conversation to be confidential – previous conversations between them had also been of a confidential nature – and when Mr. C asked him what he should tell the Complainant’s Line Manager (Mr. K) as to the reason for his absence, he told him to say that he (the Complainant) was suffering from low mood and he would be back to work in a few days. In the course of the Hearing the Complainant stated that he did not mention the word depression to Mr. C and could not explain how the submission filed on his (the Complainant’s) behalf indicated he was suffering from depression at the time and informed Mr. C of same.
The Complainant stated that when he returned to duty later in November, he met with Mr. K as part of the “Return to Duty” process. He claimed that Mr. K made reference to the Complainant’s depression and indicated he had concerns as the Complainant had access to drugs in his role as an EMT. The Complainant added that Mr. K also requested a list of any medication he (the Complainant) was taking but he refused to disclose same. The Complainant accepted that he signed the “Return to Duty Form” but did so under protest as it was the subject of industrial relations discussion between the trade union and Management at the time. He added that he left the Office and commenced his shift – as far as he was concerned the matter was concluded.
The Complainant stated that the following day he attended a meeting with Mr. D and Mr. K. He added that in the course of this meeting Mr. D informed the Complainant that he (Mr. D) had contacted the Occupational Health Department and following receipt of advice from same he (the Complainant) was being removed from overtime with immediate effect and that an appointment had been made for the Complainant to attend the Occupational Health Department for medical review on 13 November. The Complainant added that Mr. D did not disclose the nature of this advice he had received, and that he had also requested a list of the Complainant’s medication, but he (the Complainant) refused to give it to him – these details were with the Occupational Health Department and he did not consider it appropriate or necessary to furnish them to Mr. D. The Complainant stated that the medical assessment did not go ahead on 13 November because he was unavailable and that it proceeded on 3 December instead. The Complainant rejected the assertion contained in Mr. D’s purported note of the meeting of 6 November, 2009 (submitted by the Respondent) that he (Mr. D) informed the Complainant “he would prefer if he (the Complainant) did not do any structured overtime which he (the Complainant) was happy to agree to”.
The Complainant stated that he spoke with Mr. K again on 9 November, 2009 and he (Mr. K) re-stated the Complainant’s overtime had been withdrawn on the advice of Dr. E from the Occupational Health Department. The Complainant submitted that this was untrue – at the time he had not been assessed by Dr. E and it would be inappropriate for him to make such a suggestion in those circumstances. Moreover, the Complainant stated that he had a good relationship with Dr. E and he (the Complainant) subsequently asked him if he had provided such advice to the respondent and he vehemently denied the assertion. He rejected the assertion made by the Respondent that in the course of the discussions between Mr. K and him he informed Mr. K that he (the Complainant) was on the highest level of medication – he restated that he refused to discuss his medication with him at all. The Complainant stated that following his assessment by Dr. E on 3 December, 2009 he (Dr. E) wrote to the Respondent (Mr. D) advising that he was “quite happy with him (the Complainant) at the moment” and that he was “happy for him to continue in all his normal work duties without reservation”. The Complainant stated that he returned to full overtime just before Christmas 2009. He asserted that the respondent would not have returned him to full overtime access only it was Christmas and it needed shifts to be covered due to annual leave. The Complainant submitted that the alleged treatment of him amounted to discrimination on grounds of disability contrary to the Acts. In this regard he contended that another EMT (Mr. X) was treated differently in similar circumstances although the Complainant was unable to elaborate on the nature of the difference in treatment involved.
In making its award, the Tribunal found that the respondent unilaterally removed the Complainant from the structured overtime roster and that this decision was taken by Mr. D without the benefit of any medical advice from Dr. E or any other person in its Occupational Health Department. The Tribunal was further satisfied that on balance, the Respondent would not have treated another Employee engaged as an EMT, who had no disability or a different disability to the Complainant in the same manner in relation to overtime, and consequently found that the Respondent treated the Complainant less favourably on grounds of disability contrary to the Employment Equality Acts.
In essence, the term “Disability” is broadly defined under the Employment Equality Acts to include a person with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions. Under the Employment Equality Acts, it covers a person currently experiencing mental health difficulties or if their experience of mental health difficulties was in the past.
The specific details of this case highlights that appropriate guidance and support should always be obtained when a question arise as to whether an Employee is suffering from a disability as defined within the Employment Equality Acts.
Where discrimination does occur, or is alleged to occur, the Employer must take steps to ensure that there is no further reoccurrence of the discrimination. As a result, this is an area of great importance to Employers, and one which can present great exposure to the risk of claims by both Employees and Applicants for employment. Aside from the compensation that may be awarded where a case arises, the negative publicity that is generated by an equality claim can be extremely damaging to an Employer’s reputation. This is despite the fact that, in many cases, the Organisation did not intentionally discriminate, or was simply unaware of its responsibilities.
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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 and victimisation at work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint toThe Equality Tribunalthrough 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.
Additional Resources
Adare Human Resource Management can provide equality and diversity consultancy services in the following areas:
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The Equality Tribunal published the following 10 decisions for February 2014:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-007:Lisa Mullen –v- BCon Communications Ltd.
Grounds / Issues:Employment Equality Acts 1998- 2008 - sections 6.8 and 14A – harassment – discriminatory treatment – gender- pregnancy – family status – maternity leave
Award:€80,000 by way of compensation for the distress suffered by her as a consequence of the discrimination
DEC-E2014-009:Priscilla Doogan –v- Newgate Motor Company Limited
Grounds / Issues:Employment Equality Acts - Sections 6 & 8 – Gender - pregnancy – Discriminatory Dismissal
Award:€8,000 in compensation for the discriminatory treatment suffered
DEC-E2014-012:David O’ Sullivan –v- Eastern Regional Ambulance Service
Grounds / Issues:Employment Equality Acts 1998- 2008 - sections 6, 8 and 77 – discriminatory treatment – conditions of employment- disability- time limits- out of time
Award:€2,800 by way of loss of earnings in respect of the structured overtime he was denied between 5 November, 2009 and 22 December, 2009 as a result of the discriminatory treatment of him and €12,000 by way of compensation for the distress suffered by him as a result of the discrimination.
Employment Equality Decisions Not Upheld:
DEC-E2014-004:Mohammed Faysal –v- Brinks Ireland Limited
Grounds / Issues:Employment Equality Acts - Sections 6, 8 and 16 – Race & Religion – Harassment – Discriminatory Dismissal – Victimisation & Victimisatory Dismissal.
DEC-E2014-005:Siobhan Connell –v- ERGO Services Limited
Grounds / Issues:disability in terms of section 6 of the Employment Equality Acts - conditions of employment – dismissal- reasonable accommodation.
DEC-E2014-006:Liliya Skopinska –v- Portmarnock Sport & Leisure Club
Grounds / Issues:race - conditions of employment - harassment - victimisation.
DEC-E2014-008:Evgenijs Lukjanoves –v- Rocliffe Ltd
Grounds / Issues:disability contrary to Section 6(2) (g) of the Employment Equality Acts – discriminatory dismissal
DEC-E2014-010:Olesia Berezovskaja –v- Vector Workplace and Facility Management Ltd, Campbell Catering Ltd and Aramark Ireland Holdings Ltd
Grounds / Issues:Employment Equality Acts, Race, Conditions of Employment, Harassment
DEC-E2014-011:Karen Coakley –v- Department of Social Protection
Grounds / Issues:Jurisdiction – whether respondent is the correct respondent - Catholic University School v. Dooley & Scannell - family status – access to employment – lack of eligibility for position for reasons unconnected to family status – no prima facie case
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 February, there were three successful claims leading to awards of €80,000, €8,000 and €14,800 respectively. The remaining six 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, Re-grading, Terms and Conditions of Employment and Dismissal. We have highlighted two specific decisions in February of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Discrimination on the Basis of Maternity Leave
Employment Equality Decision Upheld or Partly Upheld:
DEC-E2014-007:Lisa Mullen -v- BCon Communications Ltd. (In Liquidation)
Grounds / Issues:Employment Equality Acts 1998- 2008 - sections 6.8 and 14A – harassment – discriminatory treatment – gender- pregnancy – family status – maternity leave
Award:€80,000 by way of compensation for the distress suffered by her as a consequence of discrimination.
In the case Lisa Mullen –v- BCon Communications Ltd, the Tribunal in awarding the Complainant the sum of €80,000 found that the Respondent harassed the Complainant on the grounds of family status and gender and that the Respondent dismissed the Complainant in circumstances amounting to discrimination on the grounds of family status and gender contrary to the Employment Equality Acts.
The Complainant commenced employment with the Respondent in January 2003 and held roles of progressive responsibility until she was appointed Financial Controller in September, 2007. The Complainant stated that she informed the Respondent’s Managing Director, Mr. W, she was pregnant with her third child in November 2009 and that subsequently his attitude changed significantly and he became particularly hostile toward her. She added that at this time she had two other children and had suffered a miscarriage in July 2009. She further stated that this conversation took place in the Respondent’s warehouse and the Managing Director’s younger brother (Mr. E) was present. The Complainant stated that when she informed him of her pregnancy Mr. W replied “Jesus Lisa, you don’t hang around”. The Complainant stated that she was extremely upset by this remark, particularly in the light of her recent miscarriage. She added that when Mr. W left, Mr. E told her that what Mr. W had said what he had said to her “was a horrible comment to make”.
In a second incident, the Complainant stated that she was talking to two of the Respondent’s clients and she informed them she was pregnant. She added that she knew these clients well and they were aware of her miscarriage earlier that year. The Complainant stated that Mr. W overheard this conversation and said to the clients “Yes and to be honest lads I am not too happy about this. She was meant to stop after her first two and now I have been informed that she is having a third”. The Complainant added that when she tried to raise the matter with Mr. W later, he was dismissive of her and would not talk about it.
The Complainant further stated that she attended interviews with Mr. W in February 2010 to select the person who would provide cover for her post when she was on maternity leave. She added that in the course of the interview with the successful candidate (Ms. S) Mr. W said “well I’m not sure if Lisa will be coming back to work especially now she will have three children to look after”. The Complainants stated she was shocked by this comment as she had never done or said anything which might lead Mr. W to this conclusion and she took issue with him when the interview concluded, adding that, he replied he had assumed, if she had three children she would not want to return to work.
The Complainant states that her period of maternity leave was due to finish on 31 January 2011. She e-mailed Mr. W on 20 December 2010 informing him of her intention to return to work on 31 January, 2011. The Complainant stated that Ms. S emailed her on 6 January, 2011 asking her to attend a meeting with Mr. W on 14 January 2011 to discuss her return to work. She adds that she attended this meeting and that Mr. W and Mr. O (the Respondent’s new Technical Director) were also present. The Complainant stated that at this meeting Mr. W advised her that the role of Financial Controller no longer existed in its previous format within the new company structure and was redundant and offered the Complainant an alternative position which involved (i) an additional eight hours work per week, (ii) a 40% cut in her salary and (iii) a more junior and less responsible position in Accounts Receivable. She added that when she told Mr. W these terms were not acceptable he became quite aggressive and intimidating and she was frightened and left the meeting as soon as possible.
The Complainant states that she did some research over the following weekend and obtained some professional advice and e-mailed Mr. W on Monday 17 January, 2011 setting out (i) her understanding of the proposed new role and its terms and conditions; (ii) her rights and entitlements to return to work under maternity protection legislation and (iii) stating that the role and terms offered were unacceptable to her. She added that the Respondent, Mr. O, replied by e-mail on 21 January 2011 and stated the Complainant’s pre-maternity leave hours and terms and conditions of employment, including her rate of pay would be restored but re-iterated that the role of Financial Controller no longer existed in the company. The Complainant rejected the assertion that her role was redundant and stated that all the other tasks previously performed by her were being done by Ms. S, who was retained in employment and was based in the Complainant’s office. The Complainant stated that she e-mailed the Respondent on 27 January, 2011 advising she viewed the revised post as a “serious reduction in responsibility and role” and requested that she be permitted to return to her original role of Financial Controller as soon as possible.
The Complainant stated that Mr. O replied by e-mail on 28 January, 2011 and again re-iterated the role of Financial Controller in the company no longer existed; indicated the Respondent was acting in compliance with the maternity protection legislation and suggested that her concerns about seniority could be satisfied by the title “Credit Control Manager”. The Complainant stated that she replied by e-mail of 30 January, 2011 restating her opinion that the role offered was a “demotion that you [the Respondent] is endeavouring to impose on me”; was “so limited in scope and responsibility that had [she] seen it advertised in the newspapers [she] would not give it a second thought” and advised that it was totally unacceptable. She stated that Mr. O wrote to her on 1 February, 2011 rejecting her views and advising that the role (as most recently offered) remained open for a period of fourteen days. The Complainant stated that she replied to this letter on 11 February, 2011 restating her position and asking to be permitted to return to her original role. She added that the respondent, Mr. W, wrote to her on 15 February, 2011 rejecting all of her arguments and advising that as she had not reported for duty the respondent considered her to have resigned. The Complainant stated that the role of Financial Controller continued to exist in the respondent company at all times and in this regard furnished the Tribunal with a “screenshot” of the respondent’s website dated 11 May, 2011 – three months after her employment was terminated –which named Ms. S as the company Financial Controller.
The Respondent neither attended, nor was it represented at the Hearing. In addition, it did not at any stage file a submission with the Tribunal despite a number of requests.
The Tribunal found that the Complainant was subjected to a range of unlawful treatment and comments which intensified after she informed the Respondent of her pregnancy in November 2009. When she attempted to exercise her statutory rights and return to work at the end of her maternity leave, her Employer made it particularly difficult for her, misrepresented the true position to her by informing her that her role no longer existed when it clearly did and using that scenario as a background, offered her alternative employment which the Tribunal was satisfied amounted to a demotion.
Where possible, Employees are entitled to return to the position held immediately prior to the commencement of leave (provided this was their normal position). However, where it is not feasible to hold the position open, he/she may be required to return to a suitable alternative position, provided that the new position is no less favourable with regard to terms and conditions. This includes such factors as the opportunity for progression in the Organisation, staff responsibilities, as well as more straight forward measures, such as pay and benefits.
Should an Organisation offer employment which is less favourable this may be seen as discrimination on the grounds of an Employee who is pregnant, on protected leave or had recently returned to work following a period of protected leave.
Managing Mental Health in the Workplace
Employment Equality Decision Upheld or Partly Upheld:
DEC-E2014-012:David O’Sullivan -v- Eastern Regional Ambulance Service
Grounds / Issues:Employment Equality Acts 1998 – 2008 – sections 6,8 and 77 – Discriminatory treatment – conditions of employment – disability – timelimits – out of time
Award:€2,800 by way of loss of earning in respect of the structured overtimes he was denied between 5th November, 2009 and 22 December, 2009 as a result of the discriminatory treatment of him. And €12,000 by way of compensation for the distress suffered by him as a result of the discrimination.
In the case David O’Sullivan –v- Eastern Regional Ambulance Service, the Tribunal in awarded the Complainant the sum of €2,800 by the way of loss of earnings in respect of his conditions of employment when it removed him from the overtime roster in November 2009, as well as €12,000 by way of compensation as a result of distress suffered by the Complainant following discrimination on the grounds of disability.
The Complainant commenced employment with the Respondent as an Emergency Medical Technician (“EMT”) in September 1999. He stated that he was diagnosed with Depression in June, 2003 and his condition necessitated a number of absences from work thereafter. He added that in July 2004 he agreed an action plan with the Respondent to address his absences record, an element of which was a provision restricting the Complainant in the amount of overtime shifts he could work each week. The Complainant added that as part of this action plan he was regularly reviewed by the Respondent’s Occupational Health Department and after several meetings and assessments with Management and medical staff the review process formally concluded in September, 2006 and he was restored to full overtime duties. The Complainant stated that his employment was uneventful until November 2009 when he was referred to the Respondent’s Occupational Health Department by Mr. D, the respondent’s Assistant Chief Ambulance Officer (at that time) and he was again withdrawn from the overtime roster. He was restored to the roster in December 2009 which the Complainant submitted amounted to less favourable treatment of him on grounds of disability contrary to the Employment Equality Acts.
The Complainant stated that he experienced chest pain in November, 2009 and attended his GP. He added that he was diagnosed with anxiety and certified as unfit for duty. He further stated that he contacted Mr. C (the person who had been appointed his Peer Support Person previously) and informed him that he had been diagnosed with anxiety and had been advised to see a Specialist. The Complainant stated that he considered this conversation to be confidential – previous conversations between them had also been of a confidential nature – and when Mr. C asked him what he should tell the Complainant’s Line Manager (Mr. K) as to the reason for his absence, he told him to say that he (the Complainant) was suffering from low mood and he would be back to work in a few days. In the course of the Hearing the Complainant stated that he did not mention the word depression to Mr. C and could not explain how the submission filed on his (the Complainant’s) behalf indicated he was suffering from depression at the time and informed Mr. C of same.
The Complainant stated that when he returned to duty later in November, he met with Mr. K as part of the “Return to Duty” process. He claimed that Mr. K made reference to the Complainant’s depression and indicated he had concerns as the Complainant had access to drugs in his role as an EMT. The Complainant added that Mr. K also requested a list of any medication he (the Complainant) was taking but he refused to disclose same. The Complainant accepted that he signed the “Return to Duty Form” but did so under protest as it was the subject of industrial relations discussion between the trade union and Management at the time. He added that he left the Office and commenced his shift – as far as he was concerned the matter was concluded.
The Complainant stated that the following day he attended a meeting with Mr. D and Mr. K. He added that in the course of this meeting Mr. D informed the Complainant that he (Mr. D) had contacted the Occupational Health Department and following receipt of advice from same he (the Complainant) was being removed from overtime with immediate effect and that an appointment had been made for the Complainant to attend the Occupational Health Department for medical review on 13 November. The Complainant added that Mr. D did not disclose the nature of this advice he had received, and that he had also requested a list of the Complainant’s medication, but he (the Complainant) refused to give it to him – these details were with the Occupational Health Department and he did not consider it appropriate or necessary to furnish them to Mr. D. The Complainant stated that the medical assessment did not go ahead on 13 November because he was unavailable and that it proceeded on 3 December instead. The Complainant rejected the assertion contained in Mr. D’s purported note of the meeting of 6 November, 2009 (submitted by the Respondent) that he (Mr. D) informed the Complainant “he would prefer if he (the Complainant) did not do any structured overtime which he (the Complainant) was happy to agree to”.
The Complainant stated that he spoke with Mr. K again on 9 November, 2009 and he (Mr. K) re-stated the Complainant’s overtime had been withdrawn on the advice of Dr. E from the Occupational Health Department. The Complainant submitted that this was untrue – at the time he had not been assessed by Dr. E and it would be inappropriate for him to make such a suggestion in those circumstances. Moreover, the Complainant stated that he had a good relationship with Dr. E and he (the Complainant) subsequently asked him if he had provided such advice to the respondent and he vehemently denied the assertion. He rejected the assertion made by the Respondent that in the course of the discussions between Mr. K and him he informed Mr. K that he (the Complainant) was on the highest level of medication – he restated that he refused to discuss his medication with him at all. The Complainant stated that following his assessment by Dr. E on 3 December, 2009 he (Dr. E) wrote to the Respondent (Mr. D) advising that he was “quite happy with him (the Complainant) at the moment” and that he was “happy for him to continue in all his normal work duties without reservation”. The Complainant stated that he returned to full overtime just before Christmas 2009. He asserted that the respondent would not have returned him to full overtime access only it was Christmas and it needed shifts to be covered due to annual leave. The Complainant submitted that the alleged treatment of him amounted to discrimination on grounds of disability contrary to the Acts. In this regard he contended that another EMT (Mr. X) was treated differently in similar circumstances although the Complainant was unable to elaborate on the nature of the difference in treatment involved.
In making its award, the Tribunal found that the respondent unilaterally removed the Complainant from the structured overtime roster and that this decision was taken by Mr. D without the benefit of any medical advice from Dr. E or any other person in its Occupational Health Department. The Tribunal was further satisfied that on balance, the Respondent would not have treated another Employee engaged as an EMT, who had no disability or a different disability to the Complainant in the same manner in relation to overtime, and consequently found that the Respondent treated the Complainant less favourably on grounds of disability contrary to the Employment Equality Acts.
In essence, the term “Disability” is broadly defined under the Employment Equality Acts to include a person with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions. Under the Employment Equality Acts, it covers a person currently experiencing mental health difficulties or if their experience of mental health difficulties was in the past.
The specific details of this case highlights that appropriate guidance and support should always be obtained when a question arise as to whether an Employee is suffering from a disability as defined within the Employment Equality Acts.
Where discrimination does occur, or is alleged to occur, the Employer must take steps to ensure that there is no further reoccurrence of the discrimination. As a result, this is an area of great importance to Employers, and one which can present great exposure to the risk of claims by both Employees and Applicants for employment. Aside from the compensation that may be awarded where a case arises, the negative publicity that is generated by an equality claim can be extremely damaging to an Employer’s reputation. This is despite the fact that, in many cases, the Organisation did not intentionally discriminate, or was simply unaware of its responsibilities.
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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 and victimisation at work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint toThe Equality Tribunalthrough 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.
Additional Resources
Adare Human Resource Management can provide equality and diversity consultancy services in the following areas:
- Equality and Diversity Audit and Healthcheck
- Review and Development of Policies and Procedures - Dignity at Work, Anti-Harassment and Sexual Harassment
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice.
