RECENT EQUALITY TRIBUNAL DECISIONS
The Equality Tribunal published 9 decisions for November 2014
The Director of the Equality Tribunal has recently published the following Decisions of the Tribunal:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-072: Miaskiewicz -v- Tesco Ireland Ltd
Grounds/Issues: Employment Equality Acts 1998- 2011 – sections 6,8,16 and 74 – discriminatory treatment – discriminatory dismissal – victimisation – reasonable accommodation – disability
Award: Sum of €9,000 by way of compensation for the distress suffered and the effects of the discrimination.
DEC-E2014-074: Ms. Beata Nowakowska -v- Noel Recruitment (Ireland) Ltd and Rottapharm Ltd
Grounds/Issues: On grounds of gender by reason of her pregnancy contrary to Section 6(2A) of the Employment Equality Acts 1998 to 2008 and contrary to Section 8(1)(b) of those Acts in relation to her conditions of employment.
Award: €20,000 in compensation for the effects of the unlawful discriminatory treatment.
DEC-E2014-076: Mr. Richard Lett -v- Earagail Eisc Teoranta
Grounds/Issues: Grounds of age, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his dismissal and in relation to his conditions of employment, by being forced to retire at age 66 and by being forced to work part time prior to that retirement.
Award: €24,000 in compensation for his discriminatory dismissal and for his treatment in respect of reducing his hours from a 5 day week to a three day week. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
DEC-E2014-078: Micheline Sheehy Skeffington -v- National University of Ireland, Galway Grounds/Issues: Grounds of gender regarding access to promotion
Award: Award the complainant €70,000 which represents approximately a year of her salary.
Employment Equality Decisions Not Upheld:
DEC-E2014-073: Neil Mulvey -v- Epulet Ltd
Grounds/Issues: Grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to his dismissal. DEC-E2014-075: Ann Hurley -v- Ballincollig Community School Grounds/Issues: Employment Equality Acts - discriminatory treatment - age - access to employment - prima facie case - failure to attend the second day of hearing
DEC-E2014-077: Denise Minnock -v- Fitness Works
Grounds/Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, - Section 6(2)(g) - disability, Section 8- conditions of employment, dismissal, Section 16- failure to give reasonable accommodation, failure to attend hearing - no evidence to establish discrimination.
DEC-E2014-079: a Complainant -v- An Garda Siochana
Grounds/Issues: Employment Equality Acts - discriminatory treatment - disability - age - gender - prima facie case
DEC-E2014-080: Mr. Alexsandro Batista -v- Dawn Farm Foods Limited
Grounds/Issues: Grounds of gender, age, disability and race in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts. There is also a claim of harassment on these grounds and of victimisation as well as a claim of failure to provide reasonable accommodation.
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 November, there were four successful claims leading to awards of over €120,000 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 Age Gender, Disability, Reasonable Accommodation and Conditions of Employment. We have highlighted two specific decisions in November of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Failure to Provide for Reasonable Accommodation
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-072: Miaskiewicz -v- Tesco Ireland Ltd
Grounds/Issues: Employment Equality Acts 1998- 2011 – sections 6,8,16 and 74 – discriminatory treatment – discriminatory dismissal – victimisation – reasonable accommodation – disability
Award: Sum of €9,000 by way of compensation for the distress suffered and the effects of the discrimination.
The Complainant commenced employment with the Respondent as a Warehouse Operative at its Distribution Warehouse in Dublin in November 2007. The role was a varied one and could be broken into a number of particular tasks.
The Complainant stated that during the course of his employment he performed all designated duties, as necessary, except the work in Battery Bay. He added that only two named employees performed work in that area and confirmed that they also did other tasks appropriate to a Warehouse Operative such as Picking and Forklift duties.
The Complainant injured his back in October 2010 and was certified as unfit for duty as a result of this injury by his General Practitioner. The Complainant added that he was certified to resume work from 5th April 2011. However, his GP advised that he should avoid heavy lifting over 10kg.
The Complainant returned to work on 5th April and spoke with Ms. A, who was a member of the Respondent’s HR department. Ms. A informed him that the Respondent did not have light duties in the warehouse and given his GP’s certification that he was only fit for such activities he was not permitted to resume duty.
The Complainant received a reply letter from Ms. B, the HR manager, on 26th April, 2011 wherein she affirmed that light duties were not available at the warehouse and insisted that that he would not be permitted to return to work until his GP certified him as fully fit to do so.
In early June 2011, the Complainant provided a medical certificate confirming his fitness to return to work but the requirement for him to complete a manual handling training course.
The Complainant completed the manual training course on his return to work.
On his return to work, the Complainant signed a Performance Improvement Plan with his Line Manager, Mr. X. It was subsequently determined that the Complainant has not reached the agreed target associated with the requirements of his role. The Complainant was subsequently informed that his working hours were to be reduced due to his poor performance.
The Complainant subsequently attended a Disciplinary Meeting and was suspended with pay by Mr. X for allegedly refusing to obey an instruction to return to work.
Another Disciplinary Meeting took place in July 2011 when the Complainant was informed that the Respondent had decided to terminate his employment with immediate effect.
The Equality Officer in finding that the Respondent had discriminated against the Complainant on grounds of disability, and had failed to provide the Complainant with reasonable accommodation, ordered the Respondent to pay the Complainant a sum of €9,000 as compensation for the distress suffered and the effect of discrimination on the Complainant.
This case illustrates a number of key considerations which the Employer in this instance failed to adhere to as it relates to obligations as outlined under the Employment Equality Acts and based on an array of previous Determinations by the Tribunal and Labour Court. The Equality Officer in determination of their findings referred to the decision of the Employer not to permit the Complainant to return to work until fully fit or resume light duties without any medical advice whatsoever, or the lack of any consideration of alternatives to enable the Complainant return to work. The Equality Officer also found that the decision to place the Complainant on a Performance Improvement Plan without taking any medical evidence into account in order to determine the reasonableness or otherwise of the specific goals and objectives could be viewed as disproportionate and unreasonable, The ultimate failure by the Employer to provide for reasonable accommodation resulted in an award being made in favour of the Complainant.
Unlawful Discriminatory Treatment on Grounds of Gender
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-074: Ms. Beata Nowakowska -v- Noel Recruitment (Ireland) Ltd and Rottapharm Ltd Grounds/Issues: On grounds of gender by reason of her pregnancy contrary to Section 6(2A) of the Employment Equality Acts 1998 to 2008 and contrary to Section 8(1)(b) of those Acts in relation to her conditions of employment.
Award: €20,000 in compensation for the effects of the unlawful discriminatory treatment.
The Complainant commenced her employment as a general operative at Rottapharm, through Noel Recruitment, in November 2009. While her training and working arrangements-such as shift rotation, conditions of employment, etc. were managed by Rottapharm, she was paid by Noel Recruitment.
In December 2010 the Complainant discovered she was pregnant. In January 2011 she informed her manager at Rottapharm of her pregnancy and provided the medical evidence. She also advised Noel Recruitment of her pregnancy by email.
Ms Nowakowska submitted that in March 2011 she was asked by Rottapharm management to work a 3-cycle shift (which involved night shift work) but said she was not in a position to do so. She then provided a medical certificate advising that she should not undertake night shift work.
The Complainant gave evidence that she was subsequently asked repeatedly (almost daily) to work a 3 cycle shift even though her manager was aware that she could not do so on the advice of her doctor. She also alleged that when she requested to be assigned to day shift work exclusively, her supervisor advised her that it would be discriminatory vis-à-vis employees working both day and night shifts to allow her to do so.
The Complainant submitted that on 1st April 2011 Noel Recruitment contacted her by telephone and advised that she was no longer required by Rottapharm because of a downturn in its business. She disputed Rottapharm’s rationale for her dismissal which she contended was related to the fact that she was pregnant. Noel Recruitment did not succeed in securing another placement/assignment for her and in November she requested her P45.
Noel Recruitment stated that Rottapharm conducted a risk assessment in accordance with its policy for pregnant employees and concluded that there were no significant restrictions on the Complainant being able to do her job.
Rottapharm stated that in early 2011 a significant downturn in business forced the Company to decrease resources. In light of this, Rottapharm had to dismiss the Complainant.
The Complainant provided a list of 12 names of agency workers who had less service than her but who were retained post her redundancy. The list included two agency workers recruited via Noel Recruitment who confirmed that both were retained after Ms. Nowakowska was made redundant. The Complainant asserted that that one of these agency workers performed similar functions to her and was retained at Rottapharm until March 2012.
The Equality Officer determined that the Complainant had established a case of discriminatory dismissal on the gender ground and ordered Rottapharm Limited to pay the Complainant €20,000 as compensation for the effects of the unlawful discriminatory treatment.
In finding in favour of the Complainant, the Equality Tribunal found that the Respondent failed to clearly establish that objective rationale had been relied upon in order to demonstrate why the Complainant had been selected for redundancy compared to agency workers with less experience and less service.
It is unlawful to dismiss a pregnant employee at any stage of her employment for any reason that is linked with her pregnancy. Ultimately, the Employer in this case failed to demonstrate this and the Equality Officer found that the Complainant was discriminated against on grounds of gender ie. that her employment at Rottapharm was ended prematurely due to her pregnancy.
_________________________________________________________________________________
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-E2014-072: Miaskiewicz -v- Tesco Ireland Ltd
Grounds/Issues: Employment Equality Acts 1998- 2011 – sections 6,8,16 and 74 – discriminatory treatment – discriminatory dismissal – victimisation – reasonable accommodation – disability
Award: Sum of €9,000 by way of compensation for the distress suffered and the effects of the discrimination.
DEC-E2014-074: Ms. Beata Nowakowska -v- Noel Recruitment (Ireland) Ltd and Rottapharm Ltd
Grounds/Issues: On grounds of gender by reason of her pregnancy contrary to Section 6(2A) of the Employment Equality Acts 1998 to 2008 and contrary to Section 8(1)(b) of those Acts in relation to her conditions of employment.
Award: €20,000 in compensation for the effects of the unlawful discriminatory treatment.
DEC-E2014-076: Mr. Richard Lett -v- Earagail Eisc Teoranta
Grounds/Issues: Grounds of age, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his dismissal and in relation to his conditions of employment, by being forced to retire at age 66 and by being forced to work part time prior to that retirement.
Award: €24,000 in compensation for his discriminatory dismissal and for his treatment in respect of reducing his hours from a 5 day week to a three day week. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
DEC-E2014-078: Micheline Sheehy Skeffington -v- National University of Ireland, Galway Grounds/Issues: Grounds of gender regarding access to promotion
Award: Award the complainant €70,000 which represents approximately a year of her salary.
Employment Equality Decisions Not Upheld:
DEC-E2014-073: Neil Mulvey -v- Epulet Ltd
Grounds/Issues: Grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to his dismissal. DEC-E2014-075: Ann Hurley -v- Ballincollig Community School Grounds/Issues: Employment Equality Acts - discriminatory treatment - age - access to employment - prima facie case - failure to attend the second day of hearing
DEC-E2014-077: Denise Minnock -v- Fitness Works
Grounds/Issues: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, - Section 6(2)(g) - disability, Section 8- conditions of employment, dismissal, Section 16- failure to give reasonable accommodation, failure to attend hearing - no evidence to establish discrimination.
DEC-E2014-079: a Complainant -v- An Garda Siochana
Grounds/Issues: Employment Equality Acts - discriminatory treatment - disability - age - gender - prima facie case
DEC-E2014-080: Mr. Alexsandro Batista -v- Dawn Farm Foods Limited
Grounds/Issues: Grounds of gender, age, disability and race in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts. There is also a claim of harassment on these grounds and of victimisation as well as a claim of failure to provide reasonable accommodation.
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 November, there were four successful claims leading to awards of over €120,000 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 Age Gender, Disability, Reasonable Accommodation and Conditions of Employment. We have highlighted two specific decisions in November of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Failure to Provide for Reasonable Accommodation
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-072: Miaskiewicz -v- Tesco Ireland Ltd
Grounds/Issues: Employment Equality Acts 1998- 2011 – sections 6,8,16 and 74 – discriminatory treatment – discriminatory dismissal – victimisation – reasonable accommodation – disability
Award: Sum of €9,000 by way of compensation for the distress suffered and the effects of the discrimination.
The Complainant commenced employment with the Respondent as a Warehouse Operative at its Distribution Warehouse in Dublin in November 2007. The role was a varied one and could be broken into a number of particular tasks.
The Complainant stated that during the course of his employment he performed all designated duties, as necessary, except the work in Battery Bay. He added that only two named employees performed work in that area and confirmed that they also did other tasks appropriate to a Warehouse Operative such as Picking and Forklift duties.
The Complainant injured his back in October 2010 and was certified as unfit for duty as a result of this injury by his General Practitioner. The Complainant added that he was certified to resume work from 5th April 2011. However, his GP advised that he should avoid heavy lifting over 10kg.
The Complainant returned to work on 5th April and spoke with Ms. A, who was a member of the Respondent’s HR department. Ms. A informed him that the Respondent did not have light duties in the warehouse and given his GP’s certification that he was only fit for such activities he was not permitted to resume duty.
The Complainant received a reply letter from Ms. B, the HR manager, on 26th April, 2011 wherein she affirmed that light duties were not available at the warehouse and insisted that that he would not be permitted to return to work until his GP certified him as fully fit to do so.
In early June 2011, the Complainant provided a medical certificate confirming his fitness to return to work but the requirement for him to complete a manual handling training course.
The Complainant completed the manual training course on his return to work.
On his return to work, the Complainant signed a Performance Improvement Plan with his Line Manager, Mr. X. It was subsequently determined that the Complainant has not reached the agreed target associated with the requirements of his role. The Complainant was subsequently informed that his working hours were to be reduced due to his poor performance.
The Complainant subsequently attended a Disciplinary Meeting and was suspended with pay by Mr. X for allegedly refusing to obey an instruction to return to work.
Another Disciplinary Meeting took place in July 2011 when the Complainant was informed that the Respondent had decided to terminate his employment with immediate effect.
The Equality Officer in finding that the Respondent had discriminated against the Complainant on grounds of disability, and had failed to provide the Complainant with reasonable accommodation, ordered the Respondent to pay the Complainant a sum of €9,000 as compensation for the distress suffered and the effect of discrimination on the Complainant.
This case illustrates a number of key considerations which the Employer in this instance failed to adhere to as it relates to obligations as outlined under the Employment Equality Acts and based on an array of previous Determinations by the Tribunal and Labour Court. The Equality Officer in determination of their findings referred to the decision of the Employer not to permit the Complainant to return to work until fully fit or resume light duties without any medical advice whatsoever, or the lack of any consideration of alternatives to enable the Complainant return to work. The Equality Officer also found that the decision to place the Complainant on a Performance Improvement Plan without taking any medical evidence into account in order to determine the reasonableness or otherwise of the specific goals and objectives could be viewed as disproportionate and unreasonable, The ultimate failure by the Employer to provide for reasonable accommodation resulted in an award being made in favour of the Complainant.
Unlawful Discriminatory Treatment on Grounds of Gender
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-074: Ms. Beata Nowakowska -v- Noel Recruitment (Ireland) Ltd and Rottapharm Ltd Grounds/Issues: On grounds of gender by reason of her pregnancy contrary to Section 6(2A) of the Employment Equality Acts 1998 to 2008 and contrary to Section 8(1)(b) of those Acts in relation to her conditions of employment.
Award: €20,000 in compensation for the effects of the unlawful discriminatory treatment.
The Complainant commenced her employment as a general operative at Rottapharm, through Noel Recruitment, in November 2009. While her training and working arrangements-such as shift rotation, conditions of employment, etc. were managed by Rottapharm, she was paid by Noel Recruitment.
In December 2010 the Complainant discovered she was pregnant. In January 2011 she informed her manager at Rottapharm of her pregnancy and provided the medical evidence. She also advised Noel Recruitment of her pregnancy by email.
Ms Nowakowska submitted that in March 2011 she was asked by Rottapharm management to work a 3-cycle shift (which involved night shift work) but said she was not in a position to do so. She then provided a medical certificate advising that she should not undertake night shift work.
The Complainant gave evidence that she was subsequently asked repeatedly (almost daily) to work a 3 cycle shift even though her manager was aware that she could not do so on the advice of her doctor. She also alleged that when she requested to be assigned to day shift work exclusively, her supervisor advised her that it would be discriminatory vis-à-vis employees working both day and night shifts to allow her to do so.
The Complainant submitted that on 1st April 2011 Noel Recruitment contacted her by telephone and advised that she was no longer required by Rottapharm because of a downturn in its business. She disputed Rottapharm’s rationale for her dismissal which she contended was related to the fact that she was pregnant. Noel Recruitment did not succeed in securing another placement/assignment for her and in November she requested her P45.
Noel Recruitment stated that Rottapharm conducted a risk assessment in accordance with its policy for pregnant employees and concluded that there were no significant restrictions on the Complainant being able to do her job.
Rottapharm stated that in early 2011 a significant downturn in business forced the Company to decrease resources. In light of this, Rottapharm had to dismiss the Complainant.
The Complainant provided a list of 12 names of agency workers who had less service than her but who were retained post her redundancy. The list included two agency workers recruited via Noel Recruitment who confirmed that both were retained after Ms. Nowakowska was made redundant. The Complainant asserted that that one of these agency workers performed similar functions to her and was retained at Rottapharm until March 2012.
The Equality Officer determined that the Complainant had established a case of discriminatory dismissal on the gender ground and ordered Rottapharm Limited to pay the Complainant €20,000 as compensation for the effects of the unlawful discriminatory treatment.
In finding in favour of the Complainant, the Equality Tribunal found that the Respondent failed to clearly establish that objective rationale had been relied upon in order to demonstrate why the Complainant had been selected for redundancy compared to agency workers with less experience and less service.
It is unlawful to dismiss a pregnant employee at any stage of her employment for any reason that is linked with her pregnancy. Ultimately, the Employer in this case failed to demonstrate this and the Equality Officer found that the Complainant was discriminated against on grounds of gender ie. that her employment at Rottapharm was ended prematurely due to her pregnancy.
_________________________________________________________________________________
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
