RECENT EQUALITY TRIBUNAL DECISIONS
Employment Equality Decisions Not Upheld
Health Care Not Discriminated or Harassed on the ground of Race
DEC-E2015-128 - A Health Care Assistant-v-A Hospital
Grounds/Issues – Race – Harassment
The case concerned a claim by a Health Care Assistant (the Complainant) that he was subject of discrimination by a Nursing Home (the Respondent) on the grounds of race contrary to section 6 of the Employment Equality Acts when he was subject to harassment.
The Complainant was employed as a Health Care Assistant by the Respondent since 2006. The Complainant resigned from his position in November 2013.
The Complainant submitted that, in June 2012, the Respondent made him aware of a sexual harassment allegation against him. As a direct result, the Complainant submitted, that he was forced to make an apology and go on sick leave due to stress. The Complainant submitted that he provided the relevant sick certificates to the Respondent but that he was forced to attend a disciplinary meeting regarding his sick leave. The Complainant alleged that the Respondent suspended his sick pay despite the fact that he had valid sick certs for the period in question. The Complainant returned to work in September 2012 but left his employment in November 2013. The Complainant submitted that any alleged act of discrimination was on the ground of race, but specifically the Complainant contended that he was treated badly because he was a black man.
The Respondent fully rejected all aspects of the complaint. The Respondent received a complaint from a cleaner working in the hospital against an employee of the hospital in June 2012. As part of the investigation into that complaint the hospital enquired from the contract cleaning company if any of their other employees had issues with hospital staff. A manager in the Hospital suggested to the Complainant that if the incident had occurred, an apology may suffice. The Respondent submitted that while the cleaner who had reported the incident involving the Complainant did not wish for any action to be taken, that it was the Complainant who insisted on an investigation. The Respondent investigated the matter and the outcome was given to the Complainant in the presence of his union representative.
In relation to the suspension of his sick pay, the Respondent submitted that when the Complainant was on sick leave, he provided an illness certificate from a psychologist. This prompted the Respondent to respond to the Complainant that a certificate was required from a qualified medical practitioner. The Respondent further submitted that the Complainant was invited to a meeting with his manager (Ms X) and a HR representative, that he was not forced to attend and that it was not a disciplinary meeting but rather an opportunity to discuss when the Complainant could return to work.
The Respondent further submitted that the Complainant had been subject to disciplinary procedures because of his conduct and that he had been treated in the same manner as any other staff member would have been in the same circumstances. The Respondent denied that any of the actions taken had been outside their obligations and rights as an Employer and denied that any rights of the Complainant were denied him at any stage during the process.
In its conclusion the adjudication officer found evidence that the Respondent had followed all fair and reasonable procedure and had not forced the Complainant to attend a disciplinary meeting while he was on sick leave. Rather the Complainant attended on a voluntary basis to discuss genuine concerns by the Respondent that he was not following established procedure. It was found that the Complainant was not subject to discrimination or harassment on the ground of race and his conditions of employment were not affected.
As illustrated in this case, it is critical for an Employer to be able to demonstrate that reasonable steps have been taken to eliminate harassment occurring within the workplace, and where such issues have been alleged to have arisen, that appropriate steps are taken to investigate and prevent any further recurrence, if found to have occurred. By virtue of demonstrating such steps were taken by the Employer to investigate the allegations raised, greatly assisted in the successful defence of the claim.
Employment Equality Decision Not Upheld
Non Irish National Fails in Race Pay Claim
DEC–E2015-127 - Changiz Durrani -v- Brinks Security Services Ireland Ltd
Grounds/Issues – Race – Equal pay
This dispute was in relation to a claim by the Complainant that he was discriminated against by his Employer in failing to provide him with equal pay and other conditions of employment on the grounds of race contrary to Sections 6 and 8 of the Employment Equality Acts and that he performed like work to a named comparator as per Section 7 of the Acts.
The Complainant, who was from Pakistan, was interviewed for a position as Security Officer with the Respondent in July 2011. At the time of the interview he was employed on a part time contract in the retail trade working an average of 28 hours per week. The Complainant’s understanding arising from the interview was that he would be working full time under a permanent contract of employment. When he received his terms and conditions of employment six weeks later, he was shocked to see that it was in effect a zero hours contract. For about the first three months of his contract he did in fact work 40 hours per week. His rate of pay was €9.00 per hour.
The Complainant then began to be rostered for between 20 and 30 hours per week. He spoke to management about it but to no avail. He discovered that there was another Employee, doing the same job as he was and who had been hired some months later, who was in receipt of a higher rate of pay. This worker also got more rostered hours than the Complainant and was Irish.
The Complainants hours became less predictable and at times amounted to 6 – 8 hours per week. In early 2012 his rate of pay, along with that of other similar staff increased to €10.00 per hour. Finally in August 2012 he had a meeting with management at which he was represented by his union. He was told that he was on a casual contract. He disputed this with management but failed to get a satisfactory response. He suffered stress and illness and was advised by his doctor to consider leaving his job as it was affecting his health. The Complainant believed that he was discriminated against both as regards pay and the type of contract that he was given. He believed that this was because of his race.
The Respondent stated that there are two main types of position for such Employees, static security guards or event security guards. The Complainant commenced employment as an events security guard. Four other persons were hired on the same day as the Complainant and on the same rate of pay. These persons were all of Irish nationality. The named comparator commenced employment on 28 October 2011. His rate of pay was €10.01 per hour. In addition, at the time that the €9.00 per hour rate applied there were 44 employees on that rate of which 33 were Irish and 11 non-Irish.
The Respondent accepted that both the Complainant and the comparator performed like work but, based on the above details, rejected the allegation that the differences in wage rates / contracts were based on race.
In conclusion having evaluated all the evidence the Adjudication Officer was satisfied that the difference in pay between the Complainant and the comparator was not related to the nationality or ethnic origin of either the Complainant or the comparator. On that basis, it was found that the Respondent had made out a defence under Section 29(5) of the Acts ‘nothing shall prevent an Employer from paying, on grounds other than discriminatory grounds, different rates of remuneration to different emloyees’. While the Adjudicator found that there was no evidence regarding the criteria used by the Respondent for determining the terms and conditions in pay as between the Complainant and the Comparator, it found that the Complainant has failed to establish facts from which discrimination could be inferred.
The burden of proof in any Equality investigation initially lies with the Claimant, who is required to present facts from which discrimination may be inferred. In this case, the Respondent alleged that he was discriminated against by his Employer in failing to provide him with equal pay and other conditions of employment on the grounds of race and that he performed like work to a named comparator.
Interestingly, while the Adjudicator Officer found that the Complainant had failed to establish facts from which discrimination could be inferred in this case, the Respondent had failed to provide evidence of the criteria used for determining the various terms and conditions that were offered to job applicants.
Health Care Not Discriminated or Harassed on the ground of Race
DEC-E2015-128 - A Health Care Assistant-v-A Hospital
Grounds/Issues – Race – Harassment
The case concerned a claim by a Health Care Assistant (the Complainant) that he was subject of discrimination by a Nursing Home (the Respondent) on the grounds of race contrary to section 6 of the Employment Equality Acts when he was subject to harassment.
The Complainant was employed as a Health Care Assistant by the Respondent since 2006. The Complainant resigned from his position in November 2013.
The Complainant submitted that, in June 2012, the Respondent made him aware of a sexual harassment allegation against him. As a direct result, the Complainant submitted, that he was forced to make an apology and go on sick leave due to stress. The Complainant submitted that he provided the relevant sick certificates to the Respondent but that he was forced to attend a disciplinary meeting regarding his sick leave. The Complainant alleged that the Respondent suspended his sick pay despite the fact that he had valid sick certs for the period in question. The Complainant returned to work in September 2012 but left his employment in November 2013. The Complainant submitted that any alleged act of discrimination was on the ground of race, but specifically the Complainant contended that he was treated badly because he was a black man.
The Respondent fully rejected all aspects of the complaint. The Respondent received a complaint from a cleaner working in the hospital against an employee of the hospital in June 2012. As part of the investigation into that complaint the hospital enquired from the contract cleaning company if any of their other employees had issues with hospital staff. A manager in the Hospital suggested to the Complainant that if the incident had occurred, an apology may suffice. The Respondent submitted that while the cleaner who had reported the incident involving the Complainant did not wish for any action to be taken, that it was the Complainant who insisted on an investigation. The Respondent investigated the matter and the outcome was given to the Complainant in the presence of his union representative.
In relation to the suspension of his sick pay, the Respondent submitted that when the Complainant was on sick leave, he provided an illness certificate from a psychologist. This prompted the Respondent to respond to the Complainant that a certificate was required from a qualified medical practitioner. The Respondent further submitted that the Complainant was invited to a meeting with his manager (Ms X) and a HR representative, that he was not forced to attend and that it was not a disciplinary meeting but rather an opportunity to discuss when the Complainant could return to work.
The Respondent further submitted that the Complainant had been subject to disciplinary procedures because of his conduct and that he had been treated in the same manner as any other staff member would have been in the same circumstances. The Respondent denied that any of the actions taken had been outside their obligations and rights as an Employer and denied that any rights of the Complainant were denied him at any stage during the process.
In its conclusion the adjudication officer found evidence that the Respondent had followed all fair and reasonable procedure and had not forced the Complainant to attend a disciplinary meeting while he was on sick leave. Rather the Complainant attended on a voluntary basis to discuss genuine concerns by the Respondent that he was not following established procedure. It was found that the Complainant was not subject to discrimination or harassment on the ground of race and his conditions of employment were not affected.
As illustrated in this case, it is critical for an Employer to be able to demonstrate that reasonable steps have been taken to eliminate harassment occurring within the workplace, and where such issues have been alleged to have arisen, that appropriate steps are taken to investigate and prevent any further recurrence, if found to have occurred. By virtue of demonstrating such steps were taken by the Employer to investigate the allegations raised, greatly assisted in the successful defence of the claim.
Employment Equality Decision Not Upheld
Non Irish National Fails in Race Pay Claim
DEC–E2015-127 - Changiz Durrani -v- Brinks Security Services Ireland Ltd
Grounds/Issues – Race – Equal pay
This dispute was in relation to a claim by the Complainant that he was discriminated against by his Employer in failing to provide him with equal pay and other conditions of employment on the grounds of race contrary to Sections 6 and 8 of the Employment Equality Acts and that he performed like work to a named comparator as per Section 7 of the Acts.
The Complainant, who was from Pakistan, was interviewed for a position as Security Officer with the Respondent in July 2011. At the time of the interview he was employed on a part time contract in the retail trade working an average of 28 hours per week. The Complainant’s understanding arising from the interview was that he would be working full time under a permanent contract of employment. When he received his terms and conditions of employment six weeks later, he was shocked to see that it was in effect a zero hours contract. For about the first three months of his contract he did in fact work 40 hours per week. His rate of pay was €9.00 per hour.
The Complainant then began to be rostered for between 20 and 30 hours per week. He spoke to management about it but to no avail. He discovered that there was another Employee, doing the same job as he was and who had been hired some months later, who was in receipt of a higher rate of pay. This worker also got more rostered hours than the Complainant and was Irish.
The Complainants hours became less predictable and at times amounted to 6 – 8 hours per week. In early 2012 his rate of pay, along with that of other similar staff increased to €10.00 per hour. Finally in August 2012 he had a meeting with management at which he was represented by his union. He was told that he was on a casual contract. He disputed this with management but failed to get a satisfactory response. He suffered stress and illness and was advised by his doctor to consider leaving his job as it was affecting his health. The Complainant believed that he was discriminated against both as regards pay and the type of contract that he was given. He believed that this was because of his race.
The Respondent stated that there are two main types of position for such Employees, static security guards or event security guards. The Complainant commenced employment as an events security guard. Four other persons were hired on the same day as the Complainant and on the same rate of pay. These persons were all of Irish nationality. The named comparator commenced employment on 28 October 2011. His rate of pay was €10.01 per hour. In addition, at the time that the €9.00 per hour rate applied there were 44 employees on that rate of which 33 were Irish and 11 non-Irish.
The Respondent accepted that both the Complainant and the comparator performed like work but, based on the above details, rejected the allegation that the differences in wage rates / contracts were based on race.
In conclusion having evaluated all the evidence the Adjudication Officer was satisfied that the difference in pay between the Complainant and the comparator was not related to the nationality or ethnic origin of either the Complainant or the comparator. On that basis, it was found that the Respondent had made out a defence under Section 29(5) of the Acts ‘nothing shall prevent an Employer from paying, on grounds other than discriminatory grounds, different rates of remuneration to different emloyees’. While the Adjudicator found that there was no evidence regarding the criteria used by the Respondent for determining the terms and conditions in pay as between the Complainant and the Comparator, it found that the Complainant has failed to establish facts from which discrimination could be inferred.
The burden of proof in any Equality investigation initially lies with the Claimant, who is required to present facts from which discrimination may be inferred. In this case, the Respondent alleged that he was discriminated against by his Employer in failing to provide him with equal pay and other conditions of employment on the grounds of race and that he performed like work to a named comparator.
Interestingly, while the Adjudicator Officer found that the Complainant had failed to establish facts from which discrimination could be inferred in this case, the Respondent had failed to provide evidence of the criteria used for determining the various terms and conditions that were offered to job applicants.
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.
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:
www.adarehrm.ie
- 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.
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