RECENT EQUALITY TRIBUNAL DECISIONS
The Equality Tribunal published 19 decisions for December 2014
The Director of the Equality Tribunal has recently published the following Decisions of the Tribunal:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-081: Alistair Clews -v- DSG Retail
Grounds/Issues: Reasonable Accommodation, Disability
Award: €14,000 for the effect of the discriminatory treatment suffered
DEC-E2014-086: Ms. Bozena Bojanowska -v- Cullen Cleaning Limited
Grounds/Issues: Gender, Family Status, and Race, Nationality, Ethnicity
Award: €4,000 in compensation for her discriminatory treatment
DEC-E2014-091: Malgorzata Kus -v- Atlantic Cleaning
Grounds/Issues: Gender
Award: €10,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal
DEC-E2014-094: Tatjana Kajina -v- Grosvenor Cleaning Services
Grounds/Issues: Gender
Award: €1,400 in compensation for the discriminatory treatment suffered
DEC-E2014-095: Laimonas Maciukas -v- G4S Secure Solutions Ltd
Grounds/Issues: Race, Nationality, Ethnicity
Award: €6,500 in compensation for the discrimination
DEC-E2014-097: A Teacher -v- A National School
Grounds/Issues: Sexual Orientation, Religious Belief, Age
Award: €54,000 in compensation for the effects of discrimination
Employment Equality Decisions Not Upheld:
DEC-E2014-082: Ainar Lucens -v- Nurendale Ltd trading as Panda Waste Services
Grounds/Issues: Equal Pay and Race, Nationality, Ethnicity
DEC-E2014-083: Mr A. -v- A Bank
Grounds/Issues: Gender, Age, Disability
DEC-E2014-084: Ms Sandra Jordan -v- Wexford Women’s Refuge
Grounds/Issues: Civil Status
DEC-E2014-085: Annemone Der -v- Aldi Stores Ireland Limited
Grounds/Issues: Gender and Race, Nationality, Ethnicity
DEC-E2014-087: Ms. Marie Ó Faoláin -v- City of Dublin, Vocational Educational Committee, Adult Ed. Service
Grounds/Issues: Age
DEC-E2014-088: Stephen Saunderson -v- Irish Rail
Grounds/Issues: Religious Belief, Age, and Race, Nationality, Ethnicity
DEC-E2014-089: Sylwia Patrzylas -v- Hudson Killeen Ltd
Grounds/Issues: Gender and Race, Nationality, Ethnicity
DEC-E2014-090: Segute Ziaugiene -v- The Hollow Bar and Restaurant
Grounds/Issues: Race, Nationality, Ethnicity
DEC-E2014-092: A Worker -v- A Government Department A & A Government Department B
Grounds/Issues: Disability
DEC-E2014-093: Geraldine Butler-Duffy -v- Copley Retail Ltd formerly trading as Paco
Grounds/Issues: Age
DEC-E2014-096: Sylvia Bielecka, Anna Krupa, Pawel Krupa, and Stanislaw Stepien -v- CH Kane Ltd.
Grounds/Issues: Gender and Race, Nationality, Ethnicity
DEC-E2014-099: Thomas Hughes -v- Dublin and Dun Laoghaire Education and Training Board formerly Dun Laoghaire VEC
Grounds/Issues: Age
DEC-E2014-100: Conlon -v- Intel Ireland Ltd
Grounds/Issues: Disability
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 six successful claims leading to awards of over €89,000 in financial compensation 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 Gender, Family Status, Race, Disability, Reasonable Accommodation and Conditions of Employment. 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 Employment Equality Acts.
Pregnant Employee Unfairly Dismissed
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-091: Malgorzata Kus -v- Atlantic Cleaning
Grounds/Issues: Employment Equality Acts 1998-2011 – sections 8(6) (C) – gender - discriminatory dismissal - pregnancy – transfer of undertakings
Award: €10,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal
The Complainant was employed as a cleaner in Athenry Golf Club by ISS Facility Services. While on pregnancy-related sick leave, she received a transfer of undertaking letter from ISS Facility Services. The letter stated that Atlantic Cleaning had been successful in winning the contract for cleaning at Athenry Golf Club and the Complainant’s employment would be transferred to Atlantic Cleaning effective from 28th May 2012.
The Complainant signed a form the following day in the ISS office. She also sent a sick leave certificate directly to Mr. B (owner of Atlantic Cleaning) certifying her as unfit for work from 28th May to 3rd June 2012. The Complainant commenced maternity leave on 4th June, 2012.
The Complainant also submitted that she telephoned Mr. B at this time but he never returned her call. The Complainant wrote again by registered post in October 2012 stating that her return to work date would be 2nd December 2012, following her 26 weeks maternity leave.
On 21st November the Complainant received a call from Mr. B. The Complainant submitted that Mr. B advised that he did not have a job for her, and that no transfer of undertaking had actually taken place. The Complainant submitted that at a time when she should have been caring for a new-born baby during her maternity leave to which she was statutorily entitled, she was worrying about whether she would have a job to return to.
Mr. B submitted at the hearing that he never would have taken the contract if there were employees attached. His intention was that his daughter would do the cleaning. Mr. B submitted that no transfer of undertaking had taken place and therefore he had no obligations to the Complainant as he never was her Employer.
In determination of its findings, the Equality Officer was satisfied that a transfer of undertaking had indeed taken place and that Mr B. as the Respondent had hoped the problem of her becoming his Employee would go away. In finding that the Respondent discriminated against the Complainant regarding her conditions of employment and had been discriminatory dismissed on the grounds of gender, the Equality Tribunal ordered the Respondent pay the Complainant €10,000 in compensation.
This case underlines many of the principle protections which apply to the Transfer of Undertakings regulations which are aimed at safeguarding the rights of Employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger. In line with the regulations, the primary responsibility for the Employee’s employment rights in this case passed to Atlantic Cleaning. The Company failed to adhere to the principle aims of the legislation which seek to safeguard employee rights in the event of such a transfer, and ordinarily prohibit the dismissal of an Employee by reason of a transfer of undertakings.
Deputy Primary School Teacher Discriminated Against on a Number of Grounds
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-097: A Teacher -v- A National School
Grounds/Issues: Employment Equality Acts – Section (2) and (37) – access to promotion – rating two very different qualified candidates as ‘equally qualified’ - sexual orientation - religious belief – age – interview questions
Award: €54,000 in compensation for the effects of discrimination
The Complainant qualified as a primary teacher in 1987. In 2000 she took up a lecturing post in UCC before returning to primary teaching in 2002. She had been employed by the Respondent since 2003 in the role of Deputy Principal.
In July 2011, she applied for the position of Principal. The initial interview process was found to be invalid due to breaches of national regulations covering the recruitment of Principals in Ireland. The position was re-advertised and the Complainant re-applied for the post.
When the Complainant attended for her second interview, she was taken aback that the interview board was identical to the first interview board, and was comprised of Sr. B, Mr B, and Mr C. In particular, the Complainant submitted that the presence of Mr C. was in contravention of the rules of procedure mentioned above. The Complainant also submitted that Sr. B asked a number of inappropriate questions during her interview such as ‘what about the homos?’
The Complainant was unsuccessful in her application and subsequently raised concerns regarding the lack of transparency in how the criteria for assessment and selection of the successful candidate were applied. The Complainant also submitted that the successful candidate was considerable younger and less experienced than she was.
The Respondent gave evidence that the irregularities which occurred in the interview process affected both candidates equally and the Complainant simply did not perform well enough during her interview to be successful. The Respondent further stated that both candidates were awarded equal marks for qualifications and experience.
The Equality Officer found that the Respondent discriminated against the Complainant on the grounds of age, religion, and sexual orientation in terms of promotion to Principal. A sum of €54,000 was compensated for the distress suffered by the Complainant. In support of its decision, the Equality Officer noted that the Complainant was the teacher representative on the Board of Management for the eight years leading up to the competition and interview for the Principle position, the successful candidate did not have a primary degree in primary teaching, did not have any work experience at Deputy Principle level, and did not hold a postgraduate degree, unlike the Complainant.
This case provides a valuable reminder of the significant financial awards which can be made in the event of a successful claim. An interviewer who asks an inappropriate question at interview may also expose their organisation to claims for compensation under the Employment Equality Acts, 1998 - 2012. Under Irish equality legislation, it is important that an Employer has in place fair and transparent recruitment procedures. While it is understandable that Employers will generally want to meet their candidates prior to making a decision, it is strongly recommended that planning be invested prior to conducting any interviews. In all cases, the interview panel should prepare for the interview by designing questions which will evaluate a candidate’s skills, knowledge and attitudes as required for the position.
__________________________________________________________________________________________
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 or Part-Upheld:
DEC-E2014-081: Alistair Clews -v- DSG Retail
Grounds/Issues: Reasonable Accommodation, Disability
Award: €14,000 for the effect of the discriminatory treatment suffered
DEC-E2014-086: Ms. Bozena Bojanowska -v- Cullen Cleaning Limited
Grounds/Issues: Gender, Family Status, and Race, Nationality, Ethnicity
Award: €4,000 in compensation for her discriminatory treatment
DEC-E2014-091: Malgorzata Kus -v- Atlantic Cleaning
Grounds/Issues: Gender
Award: €10,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal
DEC-E2014-094: Tatjana Kajina -v- Grosvenor Cleaning Services
Grounds/Issues: Gender
Award: €1,400 in compensation for the discriminatory treatment suffered
DEC-E2014-095: Laimonas Maciukas -v- G4S Secure Solutions Ltd
Grounds/Issues: Race, Nationality, Ethnicity
Award: €6,500 in compensation for the discrimination
DEC-E2014-097: A Teacher -v- A National School
Grounds/Issues: Sexual Orientation, Religious Belief, Age
Award: €54,000 in compensation for the effects of discrimination
Employment Equality Decisions Not Upheld:
DEC-E2014-082: Ainar Lucens -v- Nurendale Ltd trading as Panda Waste Services
Grounds/Issues: Equal Pay and Race, Nationality, Ethnicity
DEC-E2014-083: Mr A. -v- A Bank
Grounds/Issues: Gender, Age, Disability
DEC-E2014-084: Ms Sandra Jordan -v- Wexford Women’s Refuge
Grounds/Issues: Civil Status
DEC-E2014-085: Annemone Der -v- Aldi Stores Ireland Limited
Grounds/Issues: Gender and Race, Nationality, Ethnicity
DEC-E2014-087: Ms. Marie Ó Faoláin -v- City of Dublin, Vocational Educational Committee, Adult Ed. Service
Grounds/Issues: Age
DEC-E2014-088: Stephen Saunderson -v- Irish Rail
Grounds/Issues: Religious Belief, Age, and Race, Nationality, Ethnicity
DEC-E2014-089: Sylwia Patrzylas -v- Hudson Killeen Ltd
Grounds/Issues: Gender and Race, Nationality, Ethnicity
DEC-E2014-090: Segute Ziaugiene -v- The Hollow Bar and Restaurant
Grounds/Issues: Race, Nationality, Ethnicity
DEC-E2014-092: A Worker -v- A Government Department A & A Government Department B
Grounds/Issues: Disability
DEC-E2014-093: Geraldine Butler-Duffy -v- Copley Retail Ltd formerly trading as Paco
Grounds/Issues: Age
DEC-E2014-096: Sylvia Bielecka, Anna Krupa, Pawel Krupa, and Stanislaw Stepien -v- CH Kane Ltd.
Grounds/Issues: Gender and Race, Nationality, Ethnicity
DEC-E2014-099: Thomas Hughes -v- Dublin and Dun Laoghaire Education and Training Board formerly Dun Laoghaire VEC
Grounds/Issues: Age
DEC-E2014-100: Conlon -v- Intel Ireland Ltd
Grounds/Issues: Disability
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 six successful claims leading to awards of over €89,000 in financial compensation 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 Gender, Family Status, Race, Disability, Reasonable Accommodation and Conditions of Employment. 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 Employment Equality Acts.
Pregnant Employee Unfairly Dismissed
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-091: Malgorzata Kus -v- Atlantic Cleaning
Grounds/Issues: Employment Equality Acts 1998-2011 – sections 8(6) (C) – gender - discriminatory dismissal - pregnancy – transfer of undertakings
Award: €10,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal
The Complainant was employed as a cleaner in Athenry Golf Club by ISS Facility Services. While on pregnancy-related sick leave, she received a transfer of undertaking letter from ISS Facility Services. The letter stated that Atlantic Cleaning had been successful in winning the contract for cleaning at Athenry Golf Club and the Complainant’s employment would be transferred to Atlantic Cleaning effective from 28th May 2012.
The Complainant signed a form the following day in the ISS office. She also sent a sick leave certificate directly to Mr. B (owner of Atlantic Cleaning) certifying her as unfit for work from 28th May to 3rd June 2012. The Complainant commenced maternity leave on 4th June, 2012.
The Complainant also submitted that she telephoned Mr. B at this time but he never returned her call. The Complainant wrote again by registered post in October 2012 stating that her return to work date would be 2nd December 2012, following her 26 weeks maternity leave.
On 21st November the Complainant received a call from Mr. B. The Complainant submitted that Mr. B advised that he did not have a job for her, and that no transfer of undertaking had actually taken place. The Complainant submitted that at a time when she should have been caring for a new-born baby during her maternity leave to which she was statutorily entitled, she was worrying about whether she would have a job to return to.
Mr. B submitted at the hearing that he never would have taken the contract if there were employees attached. His intention was that his daughter would do the cleaning. Mr. B submitted that no transfer of undertaking had taken place and therefore he had no obligations to the Complainant as he never was her Employer.
In determination of its findings, the Equality Officer was satisfied that a transfer of undertaking had indeed taken place and that Mr B. as the Respondent had hoped the problem of her becoming his Employee would go away. In finding that the Respondent discriminated against the Complainant regarding her conditions of employment and had been discriminatory dismissed on the grounds of gender, the Equality Tribunal ordered the Respondent pay the Complainant €10,000 in compensation.
This case underlines many of the principle protections which apply to the Transfer of Undertakings regulations which are aimed at safeguarding the rights of Employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger. In line with the regulations, the primary responsibility for the Employee’s employment rights in this case passed to Atlantic Cleaning. The Company failed to adhere to the principle aims of the legislation which seek to safeguard employee rights in the event of such a transfer, and ordinarily prohibit the dismissal of an Employee by reason of a transfer of undertakings.
Deputy Primary School Teacher Discriminated Against on a Number of Grounds
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-097: A Teacher -v- A National School
Grounds/Issues: Employment Equality Acts – Section (2) and (37) – access to promotion – rating two very different qualified candidates as ‘equally qualified’ - sexual orientation - religious belief – age – interview questions
Award: €54,000 in compensation for the effects of discrimination
The Complainant qualified as a primary teacher in 1987. In 2000 she took up a lecturing post in UCC before returning to primary teaching in 2002. She had been employed by the Respondent since 2003 in the role of Deputy Principal.
In July 2011, she applied for the position of Principal. The initial interview process was found to be invalid due to breaches of national regulations covering the recruitment of Principals in Ireland. The position was re-advertised and the Complainant re-applied for the post.
When the Complainant attended for her second interview, she was taken aback that the interview board was identical to the first interview board, and was comprised of Sr. B, Mr B, and Mr C. In particular, the Complainant submitted that the presence of Mr C. was in contravention of the rules of procedure mentioned above. The Complainant also submitted that Sr. B asked a number of inappropriate questions during her interview such as ‘what about the homos?’
The Complainant was unsuccessful in her application and subsequently raised concerns regarding the lack of transparency in how the criteria for assessment and selection of the successful candidate were applied. The Complainant also submitted that the successful candidate was considerable younger and less experienced than she was.
The Respondent gave evidence that the irregularities which occurred in the interview process affected both candidates equally and the Complainant simply did not perform well enough during her interview to be successful. The Respondent further stated that both candidates were awarded equal marks for qualifications and experience.
The Equality Officer found that the Respondent discriminated against the Complainant on the grounds of age, religion, and sexual orientation in terms of promotion to Principal. A sum of €54,000 was compensated for the distress suffered by the Complainant. In support of its decision, the Equality Officer noted that the Complainant was the teacher representative on the Board of Management for the eight years leading up to the competition and interview for the Principle position, the successful candidate did not have a primary degree in primary teaching, did not have any work experience at Deputy Principle level, and did not hold a postgraduate degree, unlike the Complainant.
This case provides a valuable reminder of the significant financial awards which can be made in the event of a successful claim. An interviewer who asks an inappropriate question at interview may also expose their organisation to claims for compensation under the Employment Equality Acts, 1998 - 2012. Under Irish equality legislation, it is important that an Employer has in place fair and transparent recruitment procedures. While it is understandable that Employers will generally want to meet their candidates prior to making a decision, it is strongly recommended that planning be invested prior to conducting any interviews. In all cases, the interview panel should prepare for the interview by designing questions which will evaluate a candidate’s skills, knowledge and attitudes as required for the position.
__________________________________________________________________________________________
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
