RECENT EQUALITY TRIBUNAL DECISIONS
From 1 October 2015, the Workplace Relations Commission has seen the amalgamation of the National Employment Rights Authority, the Labour Relations Commission, the Employment Appeals Tribunal, the Labour Court and the Equality Tribunal. In line with this all Workplace Relations Commission decisions will be anonymised when published.
For the months of November and December, previous Equality Tribunal decisions not covered will be reviewed. This month we focus on two cases which remind Employers of their responsibility in areas concerning pregnancy, maternity leave, health and safety and redundancy. From January 2016 onwards, we will cover case law under the Workplace Relations Commission and the new expanded amalgamated bodies.
For the months of November and December, previous Equality Tribunal decisions not covered will be reviewed. This month we focus on two cases which remind Employers of their responsibility in areas concerning pregnancy, maternity leave, health and safety and redundancy. From January 2016 onwards, we will cover case law under the Workplace Relations Commission and the new expanded amalgamated bodies.
Employment Equality Decision Upheld
Pregnant Employee Dismissed while Pregnant
DEC-E2015-084: Claire Meehan -v- Transmec
Grounds/Issues: Gender, Conditions of Employment, Discriminatory Dismissal
This dispute concerned a claim by the Complainant Ms Meehan that she was discriminated against by the Respondent on the grounds of gender contrary to section 6 (2) of the Employment Equality Acts in relation to Conditions of Employment and discriminatory dismissal in terms of sections 8 of the Acts
The Complainant started work for the Respondent in January 2012 and her employment ended in March 2013. The Complainant submitted that she was made redundant and dismissed while pregnant and that it was known to the Employer that she was pregnant. She stated no reasons were given and no performance issues were raised prior to this time. She furthered submitted that another female Employee, a comparator, who had joined the Organisation only three months earlier was not considered for dismissal.
The Respondent outlined the trading difficulties facing the Company and that it was forced to make savings adding up to approximately €50,000. This was achieved through a mix of wage cuts and the termination of the Complainant’s employment. The Company said that the Complainant was told that she had a target of €2,000 ‘profit’ per month but in fact she achieved only €370 on average per month. The Respondent stated that the comparator referred to, had previously worked for the Company and taken with that she had greater service and experience.
In closing while the Tribunal found that the Company had been experiencing genuine economic difficulties, found that it had failed to provide evidence of any fair process of selection in which the comparator, or any other person was considered for dismissal. The Tribunal found that the Respondent dismissed the Complainant in a discriminatory manner on the grounds of pregnancy. The Respondent was ordered to pay the Complainant €12,000, being approximately eleven months’ salary in compensation for the discriminatory treatment suffered.
Care must always be exercised when selecting a position for redundancy. In the first instance, the Employer must demonstrate that a redundancy situation exists. Having demonstrated that a genuine redundancy situation exists, it is essential to follow due process and use documented fair selection criteria in selecting an Employee for redundancy.
Employment Equality Decision Upheld
€1,400 Awarded for Discriminatory Treatment Suffered
DEC-E2015-084: Tatjana Kajina -v- Grosvenor Cleaning Services
Grounds/Issues: Gender, Conditions of Employment, Discriminatory Dismissal
The Complainant who was a Latvian national commenced employment with the Respondent as a cleaning operative in 2009. The Complainant stated that she normally worked five and a half hours per day cleaning at a University campus. In August 2010, the Complainant returned to work after what was a sanctioned eight week absence. On return, she submitted that she was not rostered for work and was informed by the Respondent that she was dismissed due to the length of her absence. A week and a half passed before she was rostered for work again and she resumed employment.
The Complainant submitted that in September 2010 she formally notified the Respondent that she was pregnant. She submitted that at this time she raised a number of health and safety concerns arising out of her employment and requested that a change to her place of work on the campus that would allow less strenuous work and safer conditions.
The Complainant submitted that the Respondent never carried out a risk assessment of the Complainant’s working conditions and that her hours were reduced in September to two and a half hours per day. The Complainant also submitted that following her notification of pregnancy that the Respondent would change her hours without advance notification.
The Complainant submitted that in November 2010, she was required to go on pregnancy related sick leave during which she was not paid.
The Complainant submitted that she had a very poor understanding of English and the Respondent did not properly explain to her the terms and conditions of her employment. The Respondent noted that the Complainant received appropriate training and following her notification of the pregnancy, the Complainant was not exposed to any risk related to her work.
The Equality Officer noted that when the Complainant informed the Respondent that she no longer wished to perform the new duties, there was no process in place that would allow the Respondent Company to give proper consideration to identifying alternatives and no required measures were taken. A reduction in working hours for the Complainant resulted as no further appropriate duties for a pregnant person were available. The Respondent reduced the Complainant’s hours due to her pregnancy.
The Equality Officer found that the Respondent did discriminate against the Complainant in relation to her conditions of employment on the ground of gender. The Equality Officer ordered the Respondent to pay the Complainant €1,400 in compensation for the discriminatory treatment suffered.
Organisations are required to carry out a risk assessment relating to pregnant Employees. This assessment should form part of both the health and safety statement and the organisations’ practices.
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.
Pregnant Employee Dismissed while Pregnant
DEC-E2015-084: Claire Meehan -v- Transmec
Grounds/Issues: Gender, Conditions of Employment, Discriminatory Dismissal
This dispute concerned a claim by the Complainant Ms Meehan that she was discriminated against by the Respondent on the grounds of gender contrary to section 6 (2) of the Employment Equality Acts in relation to Conditions of Employment and discriminatory dismissal in terms of sections 8 of the Acts
The Complainant started work for the Respondent in January 2012 and her employment ended in March 2013. The Complainant submitted that she was made redundant and dismissed while pregnant and that it was known to the Employer that she was pregnant. She stated no reasons were given and no performance issues were raised prior to this time. She furthered submitted that another female Employee, a comparator, who had joined the Organisation only three months earlier was not considered for dismissal.
The Respondent outlined the trading difficulties facing the Company and that it was forced to make savings adding up to approximately €50,000. This was achieved through a mix of wage cuts and the termination of the Complainant’s employment. The Company said that the Complainant was told that she had a target of €2,000 ‘profit’ per month but in fact she achieved only €370 on average per month. The Respondent stated that the comparator referred to, had previously worked for the Company and taken with that she had greater service and experience.
In closing while the Tribunal found that the Company had been experiencing genuine economic difficulties, found that it had failed to provide evidence of any fair process of selection in which the comparator, or any other person was considered for dismissal. The Tribunal found that the Respondent dismissed the Complainant in a discriminatory manner on the grounds of pregnancy. The Respondent was ordered to pay the Complainant €12,000, being approximately eleven months’ salary in compensation for the discriminatory treatment suffered.
Care must always be exercised when selecting a position for redundancy. In the first instance, the Employer must demonstrate that a redundancy situation exists. Having demonstrated that a genuine redundancy situation exists, it is essential to follow due process and use documented fair selection criteria in selecting an Employee for redundancy.
Employment Equality Decision Upheld
€1,400 Awarded for Discriminatory Treatment Suffered
DEC-E2015-084: Tatjana Kajina -v- Grosvenor Cleaning Services
Grounds/Issues: Gender, Conditions of Employment, Discriminatory Dismissal
The Complainant who was a Latvian national commenced employment with the Respondent as a cleaning operative in 2009. The Complainant stated that she normally worked five and a half hours per day cleaning at a University campus. In August 2010, the Complainant returned to work after what was a sanctioned eight week absence. On return, she submitted that she was not rostered for work and was informed by the Respondent that she was dismissed due to the length of her absence. A week and a half passed before she was rostered for work again and she resumed employment.
The Complainant submitted that in September 2010 she formally notified the Respondent that she was pregnant. She submitted that at this time she raised a number of health and safety concerns arising out of her employment and requested that a change to her place of work on the campus that would allow less strenuous work and safer conditions.
The Complainant submitted that the Respondent never carried out a risk assessment of the Complainant’s working conditions and that her hours were reduced in September to two and a half hours per day. The Complainant also submitted that following her notification of pregnancy that the Respondent would change her hours without advance notification.
The Complainant submitted that in November 2010, she was required to go on pregnancy related sick leave during which she was not paid.
The Complainant submitted that she had a very poor understanding of English and the Respondent did not properly explain to her the terms and conditions of her employment. The Respondent noted that the Complainant received appropriate training and following her notification of the pregnancy, the Complainant was not exposed to any risk related to her work.
The Equality Officer noted that when the Complainant informed the Respondent that she no longer wished to perform the new duties, there was no process in place that would allow the Respondent Company to give proper consideration to identifying alternatives and no required measures were taken. A reduction in working hours for the Complainant resulted as no further appropriate duties for a pregnant person were available. The Respondent reduced the Complainant’s hours due to her pregnancy.
The Equality Officer found that the Respondent did discriminate against the Complainant in relation to her conditions of employment on the ground of gender. The Equality Officer ordered the Respondent to pay the Complainant €1,400 in compensation for the discriminatory treatment suffered.
Organisations are required to carry out a risk assessment relating to pregnant Employees. This assessment should form part of both the health and safety statement and the organisations’ practices.
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:
For further information in relation to our services, contact one of our HR & Employment Law Consultants – info@adarehrm.ie / 01 612 7092.
- 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.
