Recent Equality Tribunal Decisions
Each month we look at and review the decisions from the Equality Tribunal. This provides a valuable insight into the types of discrimination cases before the Tribunal and the decisions that are issued.
The Equality Tribunal published the following 4 decisions for January 2014:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-003:Xin Wei -v- Drew International Limited (in receivership).
Grounds / Issues:Employment Equality Acts, Sections 6 and 8 – Race – Promotion - Conditions of Employment - Equal Pay.
Award:Arrears of pay and €4,960
Employment Equality Decisions Not Upheld:
DEC-E2014-001:34 Complainants -v- We Clean Ltd (in liquidation).
Grounds / Issues:Employment Equality Acts, 1998 to 2011 sections 6, and 8 – ground of race – conditions of employment, equal pay – prima facie case.
DEC-E2014-002:Dariusz Wszotek -v- Moduslink & O’Reilly Recruitment Limited.
Grounds / Issues:Employment Equality Acts – sections 6 - promotion – training – conditions of employment - harassment – race
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 January, there was one successful claim leading to an award of €4,960 and arrears of pay. The remaining two 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 Terms and Conditions of Employment, Equal Pay and Dismissal. 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 Acts.
Discrimination in Terms of Pay on the Basis of Race
Employment Equality Decision Upheld:
DEC-E2014-003:Xin Wei -v- Drew International Limited (in receivership).
Grounds / Issues:Employment Equality Acts, Sections 6 and 8 – Race – Promotion - Conditions of Employment - Equal Pay.
Award:Arrears of pay and €4,960
In the case ofXin Wei –v- Drew International Limitedthe Tribunal in awarding the Complaint the sum of €4,960 and arrears of pay found that the Complainant was discriminated against in that he performed ‘like work’ with a named comparator but could find no objective grounds other than race for the difference in pay.
The Complainant was a Chinese national and commenced employment in April 2002 working as a Waiter/Bartender. The Complainant submitted that in recognition of his abilities he was given extra responsibilities and became a de facto Assistant Manager. He was expected to perform the duties of an Assistant Manager although these extra duties were not in his official job description and he was not paid accordingly.
The Complainant submitted that in 2007 his named comparator, Mr A, who was Irish was recruited. He was trained by the Complainant as he had less experience. In late 2010 the Complainant discovered that Mr A was being paid between €13 and €14 per hour. The Complainant was being paid €10 per hour and had no pay rise from 2007 until September 2011. The Complainant submitted that he was paid less than Irish workers who were performing similar tasks with similar responsibilities, and specifically the named comparator. The Complainant stated he made frequent complaints to the Bar Manager (Mr B) but he was given no reasonable or logical explanation for the difference in pay.
The Respondent denied it had not discriminated against the Complainant on the grounds of race and submitted that the named comparator started work for the Respondent in February 2009, one month before they went into receivership, and not 2007 as stated by the Complainant. He was solely a bartender and received no tips. It is also submitted that he was not trained by the Complainant. It was denied that the named comparator was paid €13 - €14 per hour. They further contend that any difference in pay between the comparator and the complainant had nothing to do with race and the two were doing different jobs.
It is vital that regardless of the pay system in place, that it does not discriminate, directly or indirectly, on one or more of any of the nine grounds under the Employment Equality Acts. An entitlement to equal pay is one of the key aspects of employment that are covered under the Acts. The Acts insert into every contract of employment an equal pay clause and also outlaw indirect discrimination in relation to pay. Employers should also note there is no service requirement in order for an Employee to be covered under the protections afforded by the Employment Equality Acts.
It is important to note however that the Acts do provide for certain exemptions to the Acts and an Employer can pay different rates of pay on grounds other than the nine discriminatory grounds. For example, many Employers offer higher pay to Employers with superior qualifications and this is permissible under the Acts.
Importance of Workplace Policies – Dignity at Work
Employment Equality Decision Not Upheld:
DEC-E2014-002:Dariosz Wszotek –v- Moduslink & O’Reilly Recruitment Limited.
Grounds / Issues:Employment Equality Acts – section 6 – promotion – training – conditions of employment – harassment – race.
This dispute involved a number of claims by MrDariusz Wszotekthat he was discriminated against in relation to access to employment, promotion, training, conditions of employment and discriminatory dismissal contrary to section 8 of the Employment Equality Acts by Moduslink and O’Reilly Recruitment Limited on the grounds of race contrary to section 6 of the Employment Equality Acts and that he was harassed in accordance with section 14A of the Acts.
The Complainant worked at Moduslink from October 2008 to March 2011. He claimed he was discriminated against by the Respondent in relation to selection for work and that he was treated differently than Irish workers. He further claimed that he received verbal insults, he was given more difficult work than Irish workers, he was scapegoated and he was denied cigarette breaks. He also submitted that in March 2010 a co-worker said “fucking Polish” to him.
In relation to selection for work, the Complainant submitted there was a selection process every Friday for agency workers to be called back the following week. He submitted the Irish were called back first. Therefore he had less job security, was assigned less hours and was paid less than Irish workers. The Complainant submitted that this process continued until he left the Respondent’s employment.
The Complainant claimed that Irish workers were never denied cigarette breaks but he was never certain whether he would or would not be granted a break. On three occasions he was denied by Supervisor A and on three other occasions by Supervisor B.
The Respondent submitted that, in accordance with the time limits set out in the Employment Equality Acts, the first claim was submitted on 14 April 2011 and that all events related to this claim which took place before 13 October 2010 were out of time and there was no chain of events to bring them in time. The Respondent also submitted that they were not the correct Respondent as the Complainant was not employed by the Respondent, that he was employed by O’Reilly Recruitment at all times.
Notwithstanding these submissions the Respondent stated that they used agency staff as and when required. The level of usage depended on the needs of the business. During this period the Complainant worked a total of 52 weeks. On his initial assignment he would have received their standard induction programme, which includes a reference to their Bullying and Harassment & Grievance Procedures.
The Respondent submitted that the Complainant worked without issue at a satisfactory or good level of performance. During his employment no matter that had been submitted as part of this claim was brought to the attention of the Respondent, either directly or through the agency. The respondent claimed that in March 2011 the Complainant was responsible for a serious quality failure. He had been spoken to on numerous occasions that he had to follow normal operating procedure. As a result of this quality failure, direction was given to the agency not to place the Complainant back on site. The direction was “Do not hire due to Quality Issues”. Two other workers were also deemed unsuitable arising from the same incident; one was Irish and the other Polish. The respondent submitted that from October 2010 to March 2011 twenty three agency workers were deemed not suitable for future assignments. Of these 12 were Irish and 11 other Nationalities.
The Tribunal found that the Complainant put forward no evidence in relation to promotion and training. However, his claims in relation to access to employment and conditions of employment refer to the actions of the respondent and therefore the Equality Officer concluded that they were the correct respondent in accordance with section 8 of the Acts.
In the claim regarding the Friday selection of agency workers the Tribunal found the Complainant made no specific allegations and in these circumstances it was concluded that the Tribunal could not establish facts from which discrimination could be inferred. Furthermore, it was found that the Complainant had not established a prima facie claim of discrimination in relation to access to employment.
In relation to his claim regarding conditions of employment the Complainant gave examples of different treatment between Irish and non-Irish workers. The Tribunal found that the Complainant had made assertions rather than provided ‘more concrete evidence’ of the alleged discrimination and it was found that he had not established a prima facie claim of discrimination in relation to conditions of employment.
In relation to the claims of harassment, the Tribunal was satisfied that the Complainant was aware of the respondent’s Anti-Harassment/Bullying Policy and how he could raise a complaint, informally or formally and that the Respondent was unable to investigate his concerns as it was unaware of them. It was therefore satisfied that the Complainant had failed to establish a prima facie case of harassment.
The Employment Equality Acts set out to prevent discrimination against Employees, agency workers and applicants for employment. The purpose of the Acts is to eliminate discrimination in relation to employment and to provide a framework of enforcement to achieve this aim.
It is important for every Employer to be aware that they are obliged to provide a work environment free from harassment and bullying. Where an Employer fails to do this, they can be held liable for the effects of harassment or bullying on their Employees.
One of the most effective ways in which Organisations can promote a positive working environment and prevent the occurrence of bullying, harassment and sexual harassment is to have a Dignity at Work Policy in place. It is worth noting based on the facts as outlined in this case, that this approach places a responsibility on each Employee to maintain and contribute toward an environment which respects the right to dignity of all individuals. The Equality Tribunal in making its decision in this case found that the Complainant was aware of the respondent’s Anti-Harassment/Bullying Policy and, how he could raise a complaint, informally or formally, but had failed to do so. His claim of harassment in the workplace therefore failed.
__________________________________________________________________________________________
The Employment Equality Acts 1998 to 2012, outlawdiscriminationin work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involvingharassmentandvictimisationat work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint toThe Equality Tribunalthrough 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.
Additional Resources
Adare Human Resource Management can provide equality and diversity consultancy services in the following areas:
Contact Adare HRM for further details: info@adarehrm.ie / 01 612 7092.
The Equality Tribunal published the following 4 decisions for January 2014:
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-003:Xin Wei -v- Drew International Limited (in receivership).
Grounds / Issues:Employment Equality Acts, Sections 6 and 8 – Race – Promotion - Conditions of Employment - Equal Pay.
Award:Arrears of pay and €4,960
Employment Equality Decisions Not Upheld:
DEC-E2014-001:34 Complainants -v- We Clean Ltd (in liquidation).
Grounds / Issues:Employment Equality Acts, 1998 to 2011 sections 6, and 8 – ground of race – conditions of employment, equal pay – prima facie case.
DEC-E2014-002:Dariusz Wszotek -v- Moduslink & O’Reilly Recruitment Limited.
Grounds / Issues:Employment Equality Acts – sections 6 - promotion – training – conditions of employment - harassment – race
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 January, there was one successful claim leading to an award of €4,960 and arrears of pay. The remaining two 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 Terms and Conditions of Employment, Equal Pay and Dismissal. 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 Acts.
Discrimination in Terms of Pay on the Basis of Race
Employment Equality Decision Upheld:
DEC-E2014-003:Xin Wei -v- Drew International Limited (in receivership).
Grounds / Issues:Employment Equality Acts, Sections 6 and 8 – Race – Promotion - Conditions of Employment - Equal Pay.
Award:Arrears of pay and €4,960
In the case ofXin Wei –v- Drew International Limitedthe Tribunal in awarding the Complaint the sum of €4,960 and arrears of pay found that the Complainant was discriminated against in that he performed ‘like work’ with a named comparator but could find no objective grounds other than race for the difference in pay.
The Complainant was a Chinese national and commenced employment in April 2002 working as a Waiter/Bartender. The Complainant submitted that in recognition of his abilities he was given extra responsibilities and became a de facto Assistant Manager. He was expected to perform the duties of an Assistant Manager although these extra duties were not in his official job description and he was not paid accordingly.
The Complainant submitted that in 2007 his named comparator, Mr A, who was Irish was recruited. He was trained by the Complainant as he had less experience. In late 2010 the Complainant discovered that Mr A was being paid between €13 and €14 per hour. The Complainant was being paid €10 per hour and had no pay rise from 2007 until September 2011. The Complainant submitted that he was paid less than Irish workers who were performing similar tasks with similar responsibilities, and specifically the named comparator. The Complainant stated he made frequent complaints to the Bar Manager (Mr B) but he was given no reasonable or logical explanation for the difference in pay.
The Respondent denied it had not discriminated against the Complainant on the grounds of race and submitted that the named comparator started work for the Respondent in February 2009, one month before they went into receivership, and not 2007 as stated by the Complainant. He was solely a bartender and received no tips. It is also submitted that he was not trained by the Complainant. It was denied that the named comparator was paid €13 - €14 per hour. They further contend that any difference in pay between the comparator and the complainant had nothing to do with race and the two were doing different jobs.
It is vital that regardless of the pay system in place, that it does not discriminate, directly or indirectly, on one or more of any of the nine grounds under the Employment Equality Acts. An entitlement to equal pay is one of the key aspects of employment that are covered under the Acts. The Acts insert into every contract of employment an equal pay clause and also outlaw indirect discrimination in relation to pay. Employers should also note there is no service requirement in order for an Employee to be covered under the protections afforded by the Employment Equality Acts.
It is important to note however that the Acts do provide for certain exemptions to the Acts and an Employer can pay different rates of pay on grounds other than the nine discriminatory grounds. For example, many Employers offer higher pay to Employers with superior qualifications and this is permissible under the Acts.
Importance of Workplace Policies – Dignity at Work
Employment Equality Decision Not Upheld:
DEC-E2014-002:Dariosz Wszotek –v- Moduslink & O’Reilly Recruitment Limited.
Grounds / Issues:Employment Equality Acts – section 6 – promotion – training – conditions of employment – harassment – race.
This dispute involved a number of claims by MrDariusz Wszotekthat he was discriminated against in relation to access to employment, promotion, training, conditions of employment and discriminatory dismissal contrary to section 8 of the Employment Equality Acts by Moduslink and O’Reilly Recruitment Limited on the grounds of race contrary to section 6 of the Employment Equality Acts and that he was harassed in accordance with section 14A of the Acts.
The Complainant worked at Moduslink from October 2008 to March 2011. He claimed he was discriminated against by the Respondent in relation to selection for work and that he was treated differently than Irish workers. He further claimed that he received verbal insults, he was given more difficult work than Irish workers, he was scapegoated and he was denied cigarette breaks. He also submitted that in March 2010 a co-worker said “fucking Polish” to him.
In relation to selection for work, the Complainant submitted there was a selection process every Friday for agency workers to be called back the following week. He submitted the Irish were called back first. Therefore he had less job security, was assigned less hours and was paid less than Irish workers. The Complainant submitted that this process continued until he left the Respondent’s employment.
The Complainant claimed that Irish workers were never denied cigarette breaks but he was never certain whether he would or would not be granted a break. On three occasions he was denied by Supervisor A and on three other occasions by Supervisor B.
The Respondent submitted that, in accordance with the time limits set out in the Employment Equality Acts, the first claim was submitted on 14 April 2011 and that all events related to this claim which took place before 13 October 2010 were out of time and there was no chain of events to bring them in time. The Respondent also submitted that they were not the correct Respondent as the Complainant was not employed by the Respondent, that he was employed by O’Reilly Recruitment at all times.
Notwithstanding these submissions the Respondent stated that they used agency staff as and when required. The level of usage depended on the needs of the business. During this period the Complainant worked a total of 52 weeks. On his initial assignment he would have received their standard induction programme, which includes a reference to their Bullying and Harassment & Grievance Procedures.
The Respondent submitted that the Complainant worked without issue at a satisfactory or good level of performance. During his employment no matter that had been submitted as part of this claim was brought to the attention of the Respondent, either directly or through the agency. The respondent claimed that in March 2011 the Complainant was responsible for a serious quality failure. He had been spoken to on numerous occasions that he had to follow normal operating procedure. As a result of this quality failure, direction was given to the agency not to place the Complainant back on site. The direction was “Do not hire due to Quality Issues”. Two other workers were also deemed unsuitable arising from the same incident; one was Irish and the other Polish. The respondent submitted that from October 2010 to March 2011 twenty three agency workers were deemed not suitable for future assignments. Of these 12 were Irish and 11 other Nationalities.
The Tribunal found that the Complainant put forward no evidence in relation to promotion and training. However, his claims in relation to access to employment and conditions of employment refer to the actions of the respondent and therefore the Equality Officer concluded that they were the correct respondent in accordance with section 8 of the Acts.
In the claim regarding the Friday selection of agency workers the Tribunal found the Complainant made no specific allegations and in these circumstances it was concluded that the Tribunal could not establish facts from which discrimination could be inferred. Furthermore, it was found that the Complainant had not established a prima facie claim of discrimination in relation to access to employment.
In relation to his claim regarding conditions of employment the Complainant gave examples of different treatment between Irish and non-Irish workers. The Tribunal found that the Complainant had made assertions rather than provided ‘more concrete evidence’ of the alleged discrimination and it was found that he had not established a prima facie claim of discrimination in relation to conditions of employment.
In relation to the claims of harassment, the Tribunal was satisfied that the Complainant was aware of the respondent’s Anti-Harassment/Bullying Policy and how he could raise a complaint, informally or formally and that the Respondent was unable to investigate his concerns as it was unaware of them. It was therefore satisfied that the Complainant had failed to establish a prima facie case of harassment.
The Employment Equality Acts set out to prevent discrimination against Employees, agency workers and applicants for employment. The purpose of the Acts is to eliminate discrimination in relation to employment and to provide a framework of enforcement to achieve this aim.
It is important for every Employer to be aware that they are obliged to provide a work environment free from harassment and bullying. Where an Employer fails to do this, they can be held liable for the effects of harassment or bullying on their Employees.
One of the most effective ways in which Organisations can promote a positive working environment and prevent the occurrence of bullying, harassment and sexual harassment is to have a Dignity at Work Policy in place. It is worth noting based on the facts as outlined in this case, that this approach places a responsibility on each Employee to maintain and contribute toward an environment which respects the right to dignity of all individuals. The Equality Tribunal in making its decision in this case found that the Complainant was aware of the respondent’s Anti-Harassment/Bullying Policy and, how he could raise a complaint, informally or formally, but had failed to do so. His claim of harassment in the workplace therefore failed.
__________________________________________________________________________________________
The Employment Equality Acts 1998 to 2012, outlawdiscriminationin work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involvingharassmentandvictimisationat work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint toThe Equality Tribunalthrough 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.
Additional Resources
Adare Human Resource Management can provide equality and diversity consultancy services in the following areas:
- 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.
Contact Adare HRM for further details: info@adarehrm.ie / 01 612 7092.
