RECENT EQUALITY TRIBUNAL DECISIONS
The Equality Tribunal published 5 decisions for May 2015.
The Director of the Equality Tribunal has recently published the following Decisions of the Tribunal:
Employment Equality Decisions Not Upheld
DEC-E2015-022: A Worker –v- An Insurance Company
Grounds/Issues: Gender, Family Status (Section 6) – Discrimination: maternity leave and promotion (Section 8)
Award: €70,000
Employment Equality Decisions Not Upheld:
DEC-E2015-021: Mr Andrej Suvac -v- Nurendale Limited t/a Panda Waste
Grounds/Issues: Race, Section 6 – Discrimination
DEC-E2015-023: Adejumo -v- Noonan Services Group Ltd
Grounds/Issues: Family Status, Religion, Section 6 – Discrimination
DEC-E2015-024: Muhammad Ahsan -v- Resource Services Group Ltd
Grounds/Issues: Race (Section 6) – alleged discrimination: conditions of employment (Section 8)
DEC-E2015-025: Dariusz Borkowski -v- Resource Facilities Support Ltd
Grounds/Issues: Race (Section 6) – alleged discrimination: Conditions of Employment, Promotion (Section 8)
Equal Status Decisions Not Upheld:
DEC-S2015-006: A Customer –v- A Transport Provider
Grounds/Issues: Disability, Failure to provide reasonable accommodation.
DEC-S2015-007: Elaine Carroll –v- Short Cuts
Grounds/Issues: Section 3 – Discrimination, Gender.
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 May, there was one successful claim with an award of €70,000 in financial compensation 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 Race, Access to Employment, Terms and Conditions of Employment, Disability and Reasonable Accommodation. We have highlighted two specific decisions in January of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Employment Equality Decisions Upheld:
DEC-E2015-022: A Worker –v- An Insurance Company
Grounds/Issues: Gender, Family Status (Section 6) – Discrimination: maternity leave and promotion (Section 8)
This dispute involved a claim that the Respondent discriminated against the Complainant on grounds of her gender and family status in relation to maternity leave and promotion contrary to the terms of the Employment Equality Acts 1998 to 2008. It was also submitted that the Complainant suffered victimisation following her raising the matter of her grievance with the Respondent.
The Complainant, who is no longer employed by the Respondent Company, commenced her employment in the Respondent’s European operation in Dublin in April 2005 as a HR “generalist” at tier/grade 9. The Complainant commenced her first period of maternity leave from March 2008 to February 2009. She did not receive a performance review in 2008. However, the Respondent stated that she was given a 3 rating (meets expectations) by the Respondent’s HR Director who told her that he was unable to assess her performance as she was out maternity leave - even though she had been at work for 3 months in 2008. The Respondent submitted that the grade 3 rating meant that she received a reduced bonus in 2008. She subsequently received a 2 rating (exceeds expectations) with an associated bonus increase in 2009. The Complainant subsequently commenced maternity leave again from May 2010 to May 2011 and submitted that she did not receive a performance review for 2010 and was again issued with a 3 rating (meets expectations). The Complainant submitted that she was disadvantaged and discriminated against on the basis of her maternity leave in respect of her performance rating and that she suffered financially as her annual bonus award was reduced in line with her performance rating.
The Complainant alleged that in early 2010 the CEO asked how she would feel about taking on a HR management role when she returned, which she subsequently confirmed her interest in taking on via email.
The Complainant further submitted that on the 4th May an announcement was made concerning the appointment of her “junior” colleague (Ms. F) to the role of interim HR Manager during the HR Director’s temporary assignment in Japan (from May to July 2011). The Complainant met with the CEO in August 2011. The Complainant submitted that he told her that the decision had been made in accordance with the HR Director’s recommendation, she advised him that she felt discriminated against as she had not been given the opportunity of gaining experience as interim HR Manger.
The Complainant submitted that she wrote to the CEO in December 2011 requesting redundancy because she was upset at having been given no meaningful feedback. The Complainant asserted that the CEO reiterated that redundancy was not an option and he did not believe that discrimination had occurred. The Complainant stated that, following her having made an allegation of discrimination, she had significant and sensitive tasks removed from her range of duties. The Complainant felt, therefore, that she was no longer trusted or seen as part of the HR team. The Complainant was granted redundancy in December 2013.
At the hearing, the Respondent accepted that there was no formal application or interview process for the appointment of interim HR Manager but submitted that this practice is commonplace in many organisations. The Respondent further submitted that the Complainant’s contention that she was better qualified, in that she was more “senior” in the grade and had more experience than Ms. F, was incorrect, as the Complainant was simply not the stronger candidate for the position.
In determining of its findings, and awarding €70,000 in compensation for the effects of the unlawful discriminatory treatment, the Tribunal found that the Complainant was disadvantaged whilst on maternity leave in respect of her performance rating and that she had suffered financially as her annual bonus was reduced in line with her performance rating. The Tribunal further noted that while promotional opportunities at Senior levels in Companies can be made on the recommendation of senior management, without any specific criteria being applied, the selection process for the post of HR Manager lacked any transparent objectivity and that Respondent failed to provide any substantive evidence as to why the Complainant was essentially “passed over” for both the interim role and the subsequent managerial appointment..
This case provides food for thought to Employers as it relates to the appropriate determination of performance rating for an Employee on a leave of absence such as maternity leave in this instance, or potentially any other form of protected leave, particularly where such ratings are linked to decisions on reward, recognition or promotional opportunities. Given the particular circumstances of this case, the Complainant successfully argued that she was discriminated against when given a lower 3 rating (meets expectations) during periods of maternity leave versus a 2 rating (exceeds expectations) which the Complainant received prior to and following periods of maternity leave.
Employment Equality Decisions Not Upheld:
DEC-E2015-023: Adejumo -v- Noonan Services Group Ltd
Grounds/Issues: Family Status, Religion, Section 6 – Discrimination
This dispute involved a claim by Mr. Kehinde Adejumo (“the Complainant”) that he was (i) discriminated against by Noonan Service Group Ltd (“the Respondent”) in respect of his conditions of employment on grounds of family status and religion, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts and (ii) harassed by the Respondent on grounds of family status and religion in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts.
The Complainant commenced employment as a Security Operative with a security company in July 2008 and transferred to the Respondent in November 2010 under a Transfer of Undertakings. The Complainant contended that he was originally employed on a full-time permanent basis and that shortly after his transfer to the Respondent his hours of work were reduced.
The Complainant further stated he had an arrangement with his employer at that time that he would let the Operations Manager know what hours he was available for any given week. His wife worked as a nurse and when her roster was known he would notify his availability to his employer as he and his wife shared childcare responsibilities.
The Complainant further stated that he received no roster on 25 October 2012 and that he contacted the office seeking an explanation. The Complainant added that he was requested to attend a meeting with Ms. B the following day at which he was told that the client at the site where he worked had requested a change in the staff working there. The Complainant stated that this constituted discriminatory treatment and harassment on the family status ground. The Complainant immediately went on a period of annual leave (which was granted by the Respondent) and subsequently went on sick leave and never resumed work.
In response, the Respondent stated that the contract it had with its client to provide security services at the location where the Complainant worked contained a mobility clause – which the Respondent stated is a standard provision in such contracts – which permitted the client to request the assignment or removal of certain personnel to/from that site. The Respondent further stated that the Complainant was due to commence a period of annual leave and it agreed to source shifts for him at other sites, as permitted by his contract, which he could commence on his return to work. It added that it offered the Complainant shifts at an alternative site and he refused them, because the location was unsuitable to him. The Respondent further stated that the Complainant subsequently went on sick leave and never resumed work, so the matter did not arise again.
In consideration of its findings, the Tribunal found that upon review of the total average number of hours historically worked by the Complainant (24 hours) and in the absence of any specified hours of work in the Contract of Employment, the Respondent was entitled to rely on the documentation it received and that its actions in assigning the Complainant at least 24 hours per week at the onset of employment was reasonable. The Tribunal also rejected the Complainant’s assertion that he was treated less favourably that two colleagues in relation to hours of work on the basis of family status given one of the comparators also had the same family status.
In relation to the alleged incident of discrimination and harassment on the grounds of family status the Tribunal was satisfied that the Complainant had failed to establish a case of discrimination and accepted the submission from the Respondent that three personnel, including the Complainant, were removed from that site at the request of the Respondent’s client on foot of a mobility clause contained in the contract between the Respondent and that client.
This case illustrates the importance of ensuring the appropriate due diligence is completed prior to any Transfer of Undertaking taking place, which the Respondent had completed in this instance. Essentially, the Transfer of Undertakings regulations apply where an Organisation or part of a business transfers from one owner to another. They are designed to safeguard employee rights in the event of such a transfer, and establish the responsibilities of both the previous and new owners of an Organisation.
While any due diligence process may include obtaining confirmation of written individual Terms and Conditions of Employment, in order to avoid any surprises for a new employer, clarification and understanding should also be sought as to whether there are any other established or implied terms and conditions of employment in place or practices which exist which are not outlined in the contract e.g individual hours of work, do flexible working arrangements exist, are payments received for overtime worked, other enhanced payments which may not be noted in writing.
___________________________________________________________________________________
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 Not Upheld
DEC-E2015-022: A Worker –v- An Insurance Company
Grounds/Issues: Gender, Family Status (Section 6) – Discrimination: maternity leave and promotion (Section 8)
Award: €70,000
Employment Equality Decisions Not Upheld:
DEC-E2015-021: Mr Andrej Suvac -v- Nurendale Limited t/a Panda Waste
Grounds/Issues: Race, Section 6 – Discrimination
DEC-E2015-023: Adejumo -v- Noonan Services Group Ltd
Grounds/Issues: Family Status, Religion, Section 6 – Discrimination
DEC-E2015-024: Muhammad Ahsan -v- Resource Services Group Ltd
Grounds/Issues: Race (Section 6) – alleged discrimination: conditions of employment (Section 8)
DEC-E2015-025: Dariusz Borkowski -v- Resource Facilities Support Ltd
Grounds/Issues: Race (Section 6) – alleged discrimination: Conditions of Employment, Promotion (Section 8)
Equal Status Decisions Not Upheld:
DEC-S2015-006: A Customer –v- A Transport Provider
Grounds/Issues: Disability, Failure to provide reasonable accommodation.
DEC-S2015-007: Elaine Carroll –v- Short Cuts
Grounds/Issues: Section 3 – Discrimination, Gender.
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 May, there was one successful claim with an award of €70,000 in financial compensation 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 Race, Access to Employment, Terms and Conditions of Employment, Disability and Reasonable Accommodation. We have highlighted two specific decisions in January of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.
Employment Equality Decisions Upheld:
DEC-E2015-022: A Worker –v- An Insurance Company
Grounds/Issues: Gender, Family Status (Section 6) – Discrimination: maternity leave and promotion (Section 8)
This dispute involved a claim that the Respondent discriminated against the Complainant on grounds of her gender and family status in relation to maternity leave and promotion contrary to the terms of the Employment Equality Acts 1998 to 2008. It was also submitted that the Complainant suffered victimisation following her raising the matter of her grievance with the Respondent.
The Complainant, who is no longer employed by the Respondent Company, commenced her employment in the Respondent’s European operation in Dublin in April 2005 as a HR “generalist” at tier/grade 9. The Complainant commenced her first period of maternity leave from March 2008 to February 2009. She did not receive a performance review in 2008. However, the Respondent stated that she was given a 3 rating (meets expectations) by the Respondent’s HR Director who told her that he was unable to assess her performance as she was out maternity leave - even though she had been at work for 3 months in 2008. The Respondent submitted that the grade 3 rating meant that she received a reduced bonus in 2008. She subsequently received a 2 rating (exceeds expectations) with an associated bonus increase in 2009. The Complainant subsequently commenced maternity leave again from May 2010 to May 2011 and submitted that she did not receive a performance review for 2010 and was again issued with a 3 rating (meets expectations). The Complainant submitted that she was disadvantaged and discriminated against on the basis of her maternity leave in respect of her performance rating and that she suffered financially as her annual bonus award was reduced in line with her performance rating.
The Complainant alleged that in early 2010 the CEO asked how she would feel about taking on a HR management role when she returned, which she subsequently confirmed her interest in taking on via email.
The Complainant further submitted that on the 4th May an announcement was made concerning the appointment of her “junior” colleague (Ms. F) to the role of interim HR Manager during the HR Director’s temporary assignment in Japan (from May to July 2011). The Complainant met with the CEO in August 2011. The Complainant submitted that he told her that the decision had been made in accordance with the HR Director’s recommendation, she advised him that she felt discriminated against as she had not been given the opportunity of gaining experience as interim HR Manger.
The Complainant submitted that she wrote to the CEO in December 2011 requesting redundancy because she was upset at having been given no meaningful feedback. The Complainant asserted that the CEO reiterated that redundancy was not an option and he did not believe that discrimination had occurred. The Complainant stated that, following her having made an allegation of discrimination, she had significant and sensitive tasks removed from her range of duties. The Complainant felt, therefore, that she was no longer trusted or seen as part of the HR team. The Complainant was granted redundancy in December 2013.
At the hearing, the Respondent accepted that there was no formal application or interview process for the appointment of interim HR Manager but submitted that this practice is commonplace in many organisations. The Respondent further submitted that the Complainant’s contention that she was better qualified, in that she was more “senior” in the grade and had more experience than Ms. F, was incorrect, as the Complainant was simply not the stronger candidate for the position.
In determining of its findings, and awarding €70,000 in compensation for the effects of the unlawful discriminatory treatment, the Tribunal found that the Complainant was disadvantaged whilst on maternity leave in respect of her performance rating and that she had suffered financially as her annual bonus was reduced in line with her performance rating. The Tribunal further noted that while promotional opportunities at Senior levels in Companies can be made on the recommendation of senior management, without any specific criteria being applied, the selection process for the post of HR Manager lacked any transparent objectivity and that Respondent failed to provide any substantive evidence as to why the Complainant was essentially “passed over” for both the interim role and the subsequent managerial appointment..
This case provides food for thought to Employers as it relates to the appropriate determination of performance rating for an Employee on a leave of absence such as maternity leave in this instance, or potentially any other form of protected leave, particularly where such ratings are linked to decisions on reward, recognition or promotional opportunities. Given the particular circumstances of this case, the Complainant successfully argued that she was discriminated against when given a lower 3 rating (meets expectations) during periods of maternity leave versus a 2 rating (exceeds expectations) which the Complainant received prior to and following periods of maternity leave.
Employment Equality Decisions Not Upheld:
DEC-E2015-023: Adejumo -v- Noonan Services Group Ltd
Grounds/Issues: Family Status, Religion, Section 6 – Discrimination
This dispute involved a claim by Mr. Kehinde Adejumo (“the Complainant”) that he was (i) discriminated against by Noonan Service Group Ltd (“the Respondent”) in respect of his conditions of employment on grounds of family status and religion, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts and (ii) harassed by the Respondent on grounds of family status and religion in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts.
The Complainant commenced employment as a Security Operative with a security company in July 2008 and transferred to the Respondent in November 2010 under a Transfer of Undertakings. The Complainant contended that he was originally employed on a full-time permanent basis and that shortly after his transfer to the Respondent his hours of work were reduced.
The Complainant further stated he had an arrangement with his employer at that time that he would let the Operations Manager know what hours he was available for any given week. His wife worked as a nurse and when her roster was known he would notify his availability to his employer as he and his wife shared childcare responsibilities.
The Complainant further stated that he received no roster on 25 October 2012 and that he contacted the office seeking an explanation. The Complainant added that he was requested to attend a meeting with Ms. B the following day at which he was told that the client at the site where he worked had requested a change in the staff working there. The Complainant stated that this constituted discriminatory treatment and harassment on the family status ground. The Complainant immediately went on a period of annual leave (which was granted by the Respondent) and subsequently went on sick leave and never resumed work.
In response, the Respondent stated that the contract it had with its client to provide security services at the location where the Complainant worked contained a mobility clause – which the Respondent stated is a standard provision in such contracts – which permitted the client to request the assignment or removal of certain personnel to/from that site. The Respondent further stated that the Complainant was due to commence a period of annual leave and it agreed to source shifts for him at other sites, as permitted by his contract, which he could commence on his return to work. It added that it offered the Complainant shifts at an alternative site and he refused them, because the location was unsuitable to him. The Respondent further stated that the Complainant subsequently went on sick leave and never resumed work, so the matter did not arise again.
In consideration of its findings, the Tribunal found that upon review of the total average number of hours historically worked by the Complainant (24 hours) and in the absence of any specified hours of work in the Contract of Employment, the Respondent was entitled to rely on the documentation it received and that its actions in assigning the Complainant at least 24 hours per week at the onset of employment was reasonable. The Tribunal also rejected the Complainant’s assertion that he was treated less favourably that two colleagues in relation to hours of work on the basis of family status given one of the comparators also had the same family status.
In relation to the alleged incident of discrimination and harassment on the grounds of family status the Tribunal was satisfied that the Complainant had failed to establish a case of discrimination and accepted the submission from the Respondent that three personnel, including the Complainant, were removed from that site at the request of the Respondent’s client on foot of a mobility clause contained in the contract between the Respondent and that client.
This case illustrates the importance of ensuring the appropriate due diligence is completed prior to any Transfer of Undertaking taking place, which the Respondent had completed in this instance. Essentially, the Transfer of Undertakings regulations apply where an Organisation or part of a business transfers from one owner to another. They are designed to safeguard employee rights in the event of such a transfer, and establish the responsibilities of both the previous and new owners of an Organisation.
While any due diligence process may include obtaining confirmation of written individual Terms and Conditions of Employment, in order to avoid any surprises for a new employer, clarification and understanding should also be sought as to whether there are any other established or implied terms and conditions of employment in place or practices which exist which are not outlined in the contract e.g individual hours of work, do flexible working arrangements exist, are payments received for overtime worked, other enhanced payments which may not be noted in writing.
___________________________________________________________________________________
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.
