RECENT EQUALITY TRIBUNAL DECISIONS
The Equality Tribunal published 14 decisions for June 2015.
The Director of the Equality Tribunal has recently published the following Decisions of the Tribunal:
Employment Equality Decisions Upheld:
DEC-E2015-028: Mariusz Kozak -v- Eirtech Aviation Limited & Firefly Management Services Limited
Grounds/Issues: Race, Disability (Section 6) – reasonable accommodation, conditions of employment, dismissal.
Award: €28,000
DEC-E2015-029: Ewelina Gacek -v- Pagewell Concessions (Ilac) Ltd t/a €uro 50 Store, Ilac Centre
Grounds/Issues: Race, Gender, Family Status (Section 8) – Discrimination, promotion, training, conditions of employment. (Section 74) victimisation.
Award: €55,000
DEC-E2015-030: Mandeep Bains -v- Maothem Ltd t/a Mao
Grounds/Issues: Race (Section 6) – Discriminatory treatment (Section 8), harassment (Section 14).
Award: €500
DEC-E2015-032: Ravind Toory -v- M3 Tyre Services
Grounds/Issues: Race (Section 6) – alleged discrimination: Conditions of Employment (Section 8)
Award: €5,000
DEC-E2015-036: Zydrina Mikoliuniene -v- Halcyon Contract Cleaners Limited
Grounds/Issues: Gender & Race (Section 6) – Conditions of Employment, training (Section 8)
Award: €5,000
DEC-E2015-037: A Worker -v- A Catering Business
Grounds/Issues: Gender & Family Status – dismissal
Award: €12,000
Employment Equality Decisions Not Upheld
DEC-E2015-026: A Post Person -v- A Postal Service
Grounds/Issues: Disability (Section 6) -reasonable accommodation (Section 16), discriminatory dismissal and victimisation (Section 74)
DEC-E2015-027: Caulfield –v- Donegal County Council
Grounds/Issues: Age (Section 6) - access to employment (Section 8)
DEC-E2015-031: Slawomir Sinikowski –v- Supermacs Ireland Limited
Grounds/Issues: Race (Section 6) – conditions of employment, equal pay, discriminatory dismissal.
DEC-E2015-033: Arvydas Urbesevicius -v- Thomas Halpin
Grounds/Issues: Race (Section 6) – conditions of employment, training, dismissal. Harassment, victimisation.
DEC-E2015-034: Katarzyna Fluda & Jolanta Jarmolinska -v- MBCC Foods Ireland Limited
Grounds/Issues: Race (Section 6) - conditions of employment, dismissal (Section 8), victimisation (Section 74).
DEC-E2015-035: Aleksandrovs, Sidorov, Rikmanis, Timofejus, Sinicins -v- Roskell Limited
Grounds/Issues: Race (Section 6) - equal pay (Section 29).
DEC-E2015-038: Piet Hageman -v- Best Limited & Best Menswear
Grounds/Issues: Age & Disability (Section 6) - harassment (Section 8) reasonable accommodation.
DEC-E2015-039: McGuinness -v- Maynooth Mission to China Inc. t/a Columban Missionaries
Grounds/Issues: Age (Section 6) - extension of contract.
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 June, there were six successful claims resulting in awards of over €105,000 being made. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including Discrimination, Disability, Race, Gender, Family Status, Dismissal and Conditions of Employment. We have highlighted two specific decisions in June of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Far from model Employer ordered to pay €55,000 to Former Employee
Employment Equality Decisions Upheld:
DEC-E2015-029: Ewelina Gacek -v- Pagewell Concessions (Ilac) Ltd t/a €uro 50 Store, Ilac Centre
Grounds/Issues: Race, Gender, Family Status (Section 8) – Discrimination, promotion, training, conditions of employment. (Section 74) victimisation.
Award: €55,000
The case concerned Ms Ewelina Gacek against Pagewell Concessions Limited trading as €uro 50 store, Ilac Centre, Dublin 1. Ms Gacek claimed that the Respondent discriminated against her on the grounds of race, gender and family status leading to dismissal. Ms Gacek further claimed discrimination in a number of areas including promotion, and conditions of employment and claimed she was harassed and victimised by the Respondent.
The Complainant commenced employment with the Respondent in August 2011 as a General Sales Assistant. While the Complainant was required to work late at night due to the arrival of deliveries the Complainant submitted that Employees were instructed to clock out at midnight but continue to work. Employees did not get paid after midnight nor were taxis provided to bring Employees home at these unsocial hours.
The Complainant was asked to become a Trainee Manager in November 2011, to which she readily agreed. The Complainants annual salary increased to €22,000 per annum but lost her entitlement to overtime pay. The Complainant worked an average of 60-70 hours per week which resulted in her earning significantly less than what she earned in her previous role as a Sales Assistant i.e. below the minimum wage.
In December 2011 the Complainant submitted she signed a management handover form with Mr B (the former Store Manager) which meant she became the de facto Store manager. She submitted that she was responsible for the whole store - staff, layout of the store, deliveries and training as well as any problems or irregularities that emerged. The Complainant submitted that Mr B said that her salary would be increased at her next review to reflect her increase in responsibilities.
In February 2012 Ms Gacek informed her Employer that she was pregnant. She was instructed to take all ante-natal appointments outside work hours. Toilet breaks were also discouraged. When she raised the issue as to when her salary would be increased to reflect her new responsibilities, the Complainant submitted that Mr A repeatedly said that she would not be paid as a Store Manager until after she returned from Maternity Leave as the company did not want to pay her a higher salary during her ‘maternity holiday’.
On her return to work the Complainant submitted that her working conditions had dramatically changed. The Complainant submitted a grievance about what she felt to be a demotion. Her grievance was not upheld and the Complainant was invited to provide any documentation she wished to support her case that she was employed as a Store Manager and not a Trainee Manager prior to commencing Maternity Leave. The Complainant promptly submitted documentation to this effect which she felt showed she was employed as a Store Manager prior to commencing Maternity Leave. Following this the Complainant received a suspension and invite to attend a disciplinary hearing letter advising of an alleged breach of data protection provisions.
Following receipt of a written warning, the Complainant felt she had no choice but to resign.
In making a total award of €55,000, the Equality Tribunal found:
(i) the Respondent harassed the Complainant on the ground of race contrary to Section 14A of the Acts
(ii) the Respondent discriminated against the Complainant on the grounds of gender and family status regarding her conditions of employment
(iii) the Respondent discriminated against the Complainant the grounds of gender and family status in relation to promotion
(iv) the Respondent victimised the complainant within the meaning of 74(2) of the Acts
This case illustrates how not to act as an Employer, serving up many breaches of Employment legislation and examples of how not to treat Employees in the workplace. From less favourable and discriminatory treatment on the grounds of Maternity Leave and the grounds of gender and family status, to how not to correctly manage grievance and disciplinary issues in the workplace, it provides many examples of the far from exemplary conduct of the Employer in this instance.
An incident in which a colleague Mr. P splashed acid on the Complainants face on purpose in January 2012
Complaint with Acid thrown on his face succeeds in Claim
DEC-E2015-028: Mariusz Kozak -v- Eirtech Aviation Limited & Firefly Management Services Limited
Grounds/Issues: Race, Disability (Section 6) – reasonable accommodation, conditions of employment, dismissal.
Award: €28,000
The dispute involved a claim by Mr. Mariusz Kozak that he was discriminated against by Eirtech Aviation Limited & Firefly Management Services Limited on the grounds of his disability and race in relation to his conditions of employment and dismissal and in relation to the failure of his employer to provide him with reasonable accommodation for his disability.
It was submitted that the Complainant and other Employees were provided with a document entitled “New PAINT Facility in Ostrava Czech Republic opening January, 2012”. This document set out the pay and conditions for Employees going to the Czech Republic. The Complainant submitted that it was clear from this document that he was considered to be an Employee of the Respondent.
The Complainant submitted that he went to the Czech Republic in January 2012 and during this month was subjected to severe bullying and harassment by Employees and supervisors which resulted in the Complainant having an acute anxiety attack.
Examples of the treatment he received included:
The Complainant submitted that shortly after commencing work in the Czech Republic, due to the bullying he was subjected to and being in fear of his life, he locked himself in his room and called the emergency services. The Complainant submitted that when the police arrived, he was breathalysed, anaesthetised and taken to a psychiatric unit.
The Complainant was discharged from hospital in late January and flew home in the company of his mother. The Complainant attended his GP and a psychiatrist and was certified as unfit to work due to stress.
The Complainant initiated a complaint to the Respondent in March of that year. He received a response from Mr. R advising that an investigation would be carried out. The Complainant submitted that he received a further letter from Mr. R in May with a finding that his complaints were without foundation. This letter also informed the Complainant that there was no longer any work for him due to seasonal factors and that he was not entitled to any compensation as he had worked under a contract for services.
In determination of its findings the Tribunal found that the Complainant was an Employee of Eirtech Aviation and that, notwithstanding the existence of a written contract in which the Respondent identified the Complainant as an independent contractor, the Complainant was employed under contract of employment with Eirtech Aviation.
In determination of its findings, and awarding a sum of €28,000 to the Complainant, the Tribunal was satisfied that the Respondent was aware of the Complainant’s disability at the time of his dismissal and failed to make appropriate enquiries to ascertain the extent of the Employees condition or consult with the Complainant before coming to the conclusion that the Complainant was incapable, on the grounds of his disability of performing the duties for which he had been employed.
One of the interesting preliminary issues in this case concerned the question of determining the employment status of the Complainant – that of an Employee as distinct from a self-employed contractor. A self-employed person is not an Employee and does not, therefore, enjoy many of the rights bestowed upon Employees, e.g. protection from discriminatory dismissal as was the case in this instance.
Some of the important factors which may influence a decision as regards whether an individual is an Employee or not may include whether the person pays their own tax or whether their Employer deducts tax, whether the individual provides their own tools and equipment, the degree of control exercised by the Employer. Each case is always considered on its own merits, and one single factor rarely has an overriding impact on a case where the employment or self-employment status of the individual is being determined. In this instance, while the Respondent argued that the Complainant had signed an agreement reflecting his employment on the basis of a self-employed contractor, the Tribunal was satisfied based on the totality of the evidence, that the Complainant was an employee of Eirtech Aviation and therefore the employment protections applied.
_____________________________________________________________________________________________
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 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.
_____________________________________________________________________________________________
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our Equality and Diversity services include
- 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.
For further information in relation to our services, contact one of our HR & Employment Law Consultants –info@adarehrm.ie / 01 612 7092.
The Director of the Equality Tribunal has recently published the following Decisions of the Tribunal:
Employment Equality Decisions Upheld:
DEC-E2015-028: Mariusz Kozak -v- Eirtech Aviation Limited & Firefly Management Services Limited
Grounds/Issues: Race, Disability (Section 6) – reasonable accommodation, conditions of employment, dismissal.
Award: €28,000
DEC-E2015-029: Ewelina Gacek -v- Pagewell Concessions (Ilac) Ltd t/a €uro 50 Store, Ilac Centre
Grounds/Issues: Race, Gender, Family Status (Section 8) – Discrimination, promotion, training, conditions of employment. (Section 74) victimisation.
Award: €55,000
DEC-E2015-030: Mandeep Bains -v- Maothem Ltd t/a Mao
Grounds/Issues: Race (Section 6) – Discriminatory treatment (Section 8), harassment (Section 14).
Award: €500
DEC-E2015-032: Ravind Toory -v- M3 Tyre Services
Grounds/Issues: Race (Section 6) – alleged discrimination: Conditions of Employment (Section 8)
Award: €5,000
DEC-E2015-036: Zydrina Mikoliuniene -v- Halcyon Contract Cleaners Limited
Grounds/Issues: Gender & Race (Section 6) – Conditions of Employment, training (Section 8)
Award: €5,000
DEC-E2015-037: A Worker -v- A Catering Business
Grounds/Issues: Gender & Family Status – dismissal
Award: €12,000
Employment Equality Decisions Not Upheld
DEC-E2015-026: A Post Person -v- A Postal Service
Grounds/Issues: Disability (Section 6) -reasonable accommodation (Section 16), discriminatory dismissal and victimisation (Section 74)
DEC-E2015-027: Caulfield –v- Donegal County Council
Grounds/Issues: Age (Section 6) - access to employment (Section 8)
DEC-E2015-031: Slawomir Sinikowski –v- Supermacs Ireland Limited
Grounds/Issues: Race (Section 6) – conditions of employment, equal pay, discriminatory dismissal.
DEC-E2015-033: Arvydas Urbesevicius -v- Thomas Halpin
Grounds/Issues: Race (Section 6) – conditions of employment, training, dismissal. Harassment, victimisation.
DEC-E2015-034: Katarzyna Fluda & Jolanta Jarmolinska -v- MBCC Foods Ireland Limited
Grounds/Issues: Race (Section 6) - conditions of employment, dismissal (Section 8), victimisation (Section 74).
DEC-E2015-035: Aleksandrovs, Sidorov, Rikmanis, Timofejus, Sinicins -v- Roskell Limited
Grounds/Issues: Race (Section 6) - equal pay (Section 29).
DEC-E2015-038: Piet Hageman -v- Best Limited & Best Menswear
Grounds/Issues: Age & Disability (Section 6) - harassment (Section 8) reasonable accommodation.
DEC-E2015-039: McGuinness -v- Maynooth Mission to China Inc. t/a Columban Missionaries
Grounds/Issues: Age (Section 6) - extension of contract.
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 June, there were six successful claims resulting in awards of over €105,000 being made. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including Discrimination, Disability, Race, Gender, Family Status, Dismissal and Conditions of Employment. We have highlighted two specific decisions in June of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Far from model Employer ordered to pay €55,000 to Former Employee
Employment Equality Decisions Upheld:
DEC-E2015-029: Ewelina Gacek -v- Pagewell Concessions (Ilac) Ltd t/a €uro 50 Store, Ilac Centre
Grounds/Issues: Race, Gender, Family Status (Section 8) – Discrimination, promotion, training, conditions of employment. (Section 74) victimisation.
Award: €55,000
The case concerned Ms Ewelina Gacek against Pagewell Concessions Limited trading as €uro 50 store, Ilac Centre, Dublin 1. Ms Gacek claimed that the Respondent discriminated against her on the grounds of race, gender and family status leading to dismissal. Ms Gacek further claimed discrimination in a number of areas including promotion, and conditions of employment and claimed she was harassed and victimised by the Respondent.
The Complainant commenced employment with the Respondent in August 2011 as a General Sales Assistant. While the Complainant was required to work late at night due to the arrival of deliveries the Complainant submitted that Employees were instructed to clock out at midnight but continue to work. Employees did not get paid after midnight nor were taxis provided to bring Employees home at these unsocial hours.
The Complainant was asked to become a Trainee Manager in November 2011, to which she readily agreed. The Complainants annual salary increased to €22,000 per annum but lost her entitlement to overtime pay. The Complainant worked an average of 60-70 hours per week which resulted in her earning significantly less than what she earned in her previous role as a Sales Assistant i.e. below the minimum wage.
In December 2011 the Complainant submitted she signed a management handover form with Mr B (the former Store Manager) which meant she became the de facto Store manager. She submitted that she was responsible for the whole store - staff, layout of the store, deliveries and training as well as any problems or irregularities that emerged. The Complainant submitted that Mr B said that her salary would be increased at her next review to reflect her increase in responsibilities.
In February 2012 Ms Gacek informed her Employer that she was pregnant. She was instructed to take all ante-natal appointments outside work hours. Toilet breaks were also discouraged. When she raised the issue as to when her salary would be increased to reflect her new responsibilities, the Complainant submitted that Mr A repeatedly said that she would not be paid as a Store Manager until after she returned from Maternity Leave as the company did not want to pay her a higher salary during her ‘maternity holiday’.
On her return to work the Complainant submitted that her working conditions had dramatically changed. The Complainant submitted a grievance about what she felt to be a demotion. Her grievance was not upheld and the Complainant was invited to provide any documentation she wished to support her case that she was employed as a Store Manager and not a Trainee Manager prior to commencing Maternity Leave. The Complainant promptly submitted documentation to this effect which she felt showed she was employed as a Store Manager prior to commencing Maternity Leave. Following this the Complainant received a suspension and invite to attend a disciplinary hearing letter advising of an alleged breach of data protection provisions.
Following receipt of a written warning, the Complainant felt she had no choice but to resign.
In making a total award of €55,000, the Equality Tribunal found:
(i) the Respondent harassed the Complainant on the ground of race contrary to Section 14A of the Acts
(ii) the Respondent discriminated against the Complainant on the grounds of gender and family status regarding her conditions of employment
(iii) the Respondent discriminated against the Complainant the grounds of gender and family status in relation to promotion
(iv) the Respondent victimised the complainant within the meaning of 74(2) of the Acts
This case illustrates how not to act as an Employer, serving up many breaches of Employment legislation and examples of how not to treat Employees in the workplace. From less favourable and discriminatory treatment on the grounds of Maternity Leave and the grounds of gender and family status, to how not to correctly manage grievance and disciplinary issues in the workplace, it provides many examples of the far from exemplary conduct of the Employer in this instance.
An incident in which a colleague Mr. P splashed acid on the Complainants face on purpose in January 2012
Complaint with Acid thrown on his face succeeds in Claim
DEC-E2015-028: Mariusz Kozak -v- Eirtech Aviation Limited & Firefly Management Services Limited
Grounds/Issues: Race, Disability (Section 6) – reasonable accommodation, conditions of employment, dismissal.
Award: €28,000
The dispute involved a claim by Mr. Mariusz Kozak that he was discriminated against by Eirtech Aviation Limited & Firefly Management Services Limited on the grounds of his disability and race in relation to his conditions of employment and dismissal and in relation to the failure of his employer to provide him with reasonable accommodation for his disability.
It was submitted that the Complainant and other Employees were provided with a document entitled “New PAINT Facility in Ostrava Czech Republic opening January, 2012”. This document set out the pay and conditions for Employees going to the Czech Republic. The Complainant submitted that it was clear from this document that he was considered to be an Employee of the Respondent.
The Complainant submitted that he went to the Czech Republic in January 2012 and during this month was subjected to severe bullying and harassment by Employees and supervisors which resulted in the Complainant having an acute anxiety attack.
Examples of the treatment he received included:
- An incident in which a colleague Mr. P splashed acid on the Complainants face on purpose in January 2012
- Allegations that the Respondent kicked doors in the hotel at night
- Failure of the Respondent to assist when the Complainant was admitted to hospital and disseminating false information to the Complainant’s wife concerning the reason for his admission to hospital.
The Complainant submitted that shortly after commencing work in the Czech Republic, due to the bullying he was subjected to and being in fear of his life, he locked himself in his room and called the emergency services. The Complainant submitted that when the police arrived, he was breathalysed, anaesthetised and taken to a psychiatric unit.
The Complainant was discharged from hospital in late January and flew home in the company of his mother. The Complainant attended his GP and a psychiatrist and was certified as unfit to work due to stress.
The Complainant initiated a complaint to the Respondent in March of that year. He received a response from Mr. R advising that an investigation would be carried out. The Complainant submitted that he received a further letter from Mr. R in May with a finding that his complaints were without foundation. This letter also informed the Complainant that there was no longer any work for him due to seasonal factors and that he was not entitled to any compensation as he had worked under a contract for services.
In determination of its findings the Tribunal found that the Complainant was an Employee of Eirtech Aviation and that, notwithstanding the existence of a written contract in which the Respondent identified the Complainant as an independent contractor, the Complainant was employed under contract of employment with Eirtech Aviation.
In determination of its findings, and awarding a sum of €28,000 to the Complainant, the Tribunal was satisfied that the Respondent was aware of the Complainant’s disability at the time of his dismissal and failed to make appropriate enquiries to ascertain the extent of the Employees condition or consult with the Complainant before coming to the conclusion that the Complainant was incapable, on the grounds of his disability of performing the duties for which he had been employed.
One of the interesting preliminary issues in this case concerned the question of determining the employment status of the Complainant – that of an Employee as distinct from a self-employed contractor. A self-employed person is not an Employee and does not, therefore, enjoy many of the rights bestowed upon Employees, e.g. protection from discriminatory dismissal as was the case in this instance.
Some of the important factors which may influence a decision as regards whether an individual is an Employee or not may include whether the person pays their own tax or whether their Employer deducts tax, whether the individual provides their own tools and equipment, the degree of control exercised by the Employer. Each case is always considered on its own merits, and one single factor rarely has an overriding impact on a case where the employment or self-employment status of the individual is being determined. In this instance, while the Respondent argued that the Complainant had signed an agreement reflecting his employment on the basis of a self-employed contractor, the Tribunal was satisfied based on the totality of the evidence, that the Complainant was an employee of Eirtech Aviation and therefore the employment protections applied.
_____________________________________________________________________________________________
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 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.
_____________________________________________________________________________________________
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our Equality and Diversity services include
- 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.
For further information in relation to our services, contact one of our HR & Employment Law Consultants –info@adarehrm.ie / 01 612 7092.
