RECENT EQUALITY TRIBUNAL DECISIONS
The Equality Tribunal published 17 decisions for August 2015.
The Director of the Equality Tribunal has recently published the following Decisions of the Tribunal:
Employment Equality Decisions Upheld:
DEC-E2015-064: Ms Sarah Jane Duggan and Ms Gayle Barry -v- Waterford Area Partnership
Grounds/Issues: Gender and Family Status.
Award: Arrears of Pay for each Complainant. €2,500 for each complainant in compensation for the effects of the discrimination
DEC-E2015-066: Grainne Hoey -v- White Horse Insurance Ireland Ltd.
Grounds/Issues: Disability and Race
Award: €12,000
DEC-E2015-079: Ms C -v- A Multi-National Grocery retailer
Grounds/Issues: Gender
Award: €33,000 plus interest
Employment Equality Decisions Not Upheld:
DEC-E2015-059: Mary Gilman Bennett - v- Elaine Byrne’s Health and Beauty Clinic
Grounds/Issues: Gender
DEC-E2015-065: A SALES ASSISTANT -v- A DEPARTMENT STORE
Grounds/Issues: Gender and Family Status
DEC-E2015-067: A Worker -v- A Public Employer
Grounds/Issues: Disability
DEC-E2015-068: David F. Matthews -v- Electricity Supply Board
Grounds/Issues: Age
DEC-E2015-069: Jessica Hayes -v- MBCC Foods Ireland Limited
Grounds/Issues: Race
DEC-E2015-070: Roman Tunyi -v- Kellsydan Ltd. t/a McDonalds Restaurant
DEC-E2015-071: Denisa Tunyiova -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
DEC-E2015-072: Grzegorz Delanowski -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
DEC-E2015-073: Leszek Pajak -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
DEC-E2015-074: Anna Smolinska -v- WEBROOT INTERNATIONAL LIMITED
Grounds/Issues: Gender and Race
DEC-E2015-075: Mr Vladimir Savel -v- Workforce International Contractors Ltd.
Grounds/Issues: Race
DEC-E2015-076: TARIRO MUTYANDASVIKA -v- CONGREGATION OF DOMINICAN
SISTERS OF ROSARY AND ST. CATHERINE OF SIENA T/A SANTA SABINA HOUSE
Grounds/Issues: Race
DEC-E2015-077: Gwen Jansen -v- Allied Irish Bank
Grounds/Issues: Race
DEC-E2015-078: UDOSEN -v- TESCO IRELAND LTD.
Grounds/Issues: 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 August, there were three successful claims leading to awards of €50,000 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 Gender, Family Status, Disability, Race and Age. We have highlighted two specific decisions in August 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 Not Upheld
Employer ordered to Pay €12,000 to Pregnant Employee Placed on Health & Safety Leave
DEC-E2015-059: Mary Gilman Bennett - v- Elaine Byrne’s Health and Beauty Clinic
Grounds/Issues: Gender
This dispute concerned a claim by Ms Mary Gilmanton Bennett that she was subjected to discriminatory treatment by the Respondent on the grounds of gender in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts.
The Complainant submitted that she was discriminated against by the Respondent when the Respondent removed her from her role as manager prematurely, failed to offer her alternative conditions of employment or in the event of that not being feasible, not sourcing alternative employment but placing her on health and safety leave, shortly after she had informed the Respondent of her pregnancy.
The Complainant submitted that she was employed by the Respondent as a General Manager of the Respondent’s Health and beauty clinic beginning in August 2011.The Complainant informed the Respondent that she was three months pregnant in early December. On the 9th December 2011 the Complainant submitted that she was requested
by the Respondent to sign an already completed pregnancy risk assessment. On the 13th of December 2011 the Respondent informed the Complainant that she was to be placed on Health and Safety leave under section 19 of the Maternity Protection Act 1994 by virtue of the risks that arose from the risk assessment. The Complainant submitted that the risks identified in the assessment only amounted to 2% of her working month.
The Complainant submitted that there was no risk surrounding her pregnancy which would have required her being placed on Health and Safety leave. She further submitted that if any such risks existed, that the Respondent was premature in placing her on such leave. The Complainant submitted that she attempted to discuss the risks outlined in the assessment with the Respondent to make it clear that none of the risks would affect her pregnancy but that the Respondent was not amenable to take any preventative measures to limit exposure to the risks.
The Respondent submitted that the most notable risk arising from the assessment was the risk of exposure to chemicals used in spray tanning and that exposure to these chemicals posed a risk to the unborn children and that she was not prepared therefore to take any such risk.
The Respondent rejected any allegation that she placed the Complainant on Health and Safety leave prematurely. She submitted that in this particular situation, given that the Complainant worked in a standalone role, and in the absence of any practical or suitable alternatives there were no suitable alternative roles available to eliminate these risks and enable the Complainant to continue working..
In determination of its findings, the Tribunal found the risk assessment included many risks which were so generic and commonplace that their application as a reason to be placed on Health and Safety leave would result in the automatic placement of all pregnant employees on such leave and that no preventative measures were taken to limit exposure to these generic risks. Accordingly, the Tribunal ordered the Respondent to pay the Complainant the sum of €12,000 in compensation for the effects of the discrimination.
As soon as an Employer becomes aware that an Employee is pregnant, they must assess the specific risks from the employment to the Employee, and take action to ensure that the Employee is not exposed to anything which would damage either her health or that of her unborn child. In this instance, while the Respondent argued it followed its legal
responsibilities in this regard, the Respondent was found to have discriminated against the Complainant on the basis of gender and failed to adequately explore other protective or preventative measures, such as an adjustment to working conditions, to enable the Employee remain at work, rather than placing the Employee on Health & Safety leave.
Employment Equality Decisions Not Upheld
Requirement to Speak English in the Workplace Not Discriminatory
DEC-E2015-072: Grzegorz Delanowski -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
This dispute concerned a claim by Grzegorz Delanowski that he was discriminated against by Kellsydan Ltd. t/a McDonalds Restaurant, on the grounds of discrimination based on race which amounted to a breach of the Employment Equality Acts 1998 to 2001 Section 6(1) and Section 6(2) due to the company’s policy which prohibited the use of any language other than English.
Mr Delanowski, a Polish National, had been living and working in Ireland for a number of years and was employed by the Respondent since 2005 as a shift manager. The basis for the claims was that the Employer insisted on the use of the English language at all times and refused the Complainant the opportunity of conversing in any other language.
The Complainant viewed this as being discriminatory treatment based on race and further contended that there were no objective grounds for the Employer’s English only policy. In response the Respondent submitted that there was no outright ban on speaking a language other than English existed in the workplace and indeed submitted that it was recognised that it may, at times, be appropriate for Employees to converse in a language other than English provided that no other Employee was being excluded.
Furthermore, the Respondent submitted that the reasoning behind the use of English as its business language was three fold: from a health and safety perspective, from a business perspective and from an inclusion perspective. In this case the Respondent submitted it was important for all Employees to be able to understand the health and safety notices and instructions issued by manage and that it had been deemed necessary based on the diversity of the workforce to use English within the workplace based on the need for all staff members to be able to communicate and understand one another.
In finding in favour of the Respondent, the Tribunal was satisfied that any one of the three reasons given by the Respondent justified the use of English as a business language and more so when the three reasons were taken into account.
This is an interesting case. Ultimately, in determination of its findings, the Tribunal was satisfied that the Respondent had objectively justified the use of English as its business language and did not place the Respondent at a disadvantage relative to persons whose native language was not English.
_____________________________________________________________________________________________
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:
DEC-E2015-064: Ms Sarah Jane Duggan and Ms Gayle Barry -v- Waterford Area Partnership
Grounds/Issues: Gender and Family Status.
Award: Arrears of Pay for each Complainant. €2,500 for each complainant in compensation for the effects of the discrimination
DEC-E2015-066: Grainne Hoey -v- White Horse Insurance Ireland Ltd.
Grounds/Issues: Disability and Race
Award: €12,000
DEC-E2015-079: Ms C -v- A Multi-National Grocery retailer
Grounds/Issues: Gender
Award: €33,000 plus interest
Employment Equality Decisions Not Upheld:
DEC-E2015-059: Mary Gilman Bennett - v- Elaine Byrne’s Health and Beauty Clinic
Grounds/Issues: Gender
DEC-E2015-065: A SALES ASSISTANT -v- A DEPARTMENT STORE
Grounds/Issues: Gender and Family Status
DEC-E2015-067: A Worker -v- A Public Employer
Grounds/Issues: Disability
DEC-E2015-068: David F. Matthews -v- Electricity Supply Board
Grounds/Issues: Age
DEC-E2015-069: Jessica Hayes -v- MBCC Foods Ireland Limited
Grounds/Issues: Race
DEC-E2015-070: Roman Tunyi -v- Kellsydan Ltd. t/a McDonalds Restaurant
DEC-E2015-071: Denisa Tunyiova -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
DEC-E2015-072: Grzegorz Delanowski -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
DEC-E2015-073: Leszek Pajak -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
DEC-E2015-074: Anna Smolinska -v- WEBROOT INTERNATIONAL LIMITED
Grounds/Issues: Gender and Race
DEC-E2015-075: Mr Vladimir Savel -v- Workforce International Contractors Ltd.
Grounds/Issues: Race
DEC-E2015-076: TARIRO MUTYANDASVIKA -v- CONGREGATION OF DOMINICAN
SISTERS OF ROSARY AND ST. CATHERINE OF SIENA T/A SANTA SABINA HOUSE
Grounds/Issues: Race
DEC-E2015-077: Gwen Jansen -v- Allied Irish Bank
Grounds/Issues: Race
DEC-E2015-078: UDOSEN -v- TESCO IRELAND LTD.
Grounds/Issues: 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 August, there were three successful claims leading to awards of €50,000 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 Gender, Family Status, Disability, Race and Age. We have highlighted two specific decisions in August 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 Not Upheld
Employer ordered to Pay €12,000 to Pregnant Employee Placed on Health & Safety Leave
DEC-E2015-059: Mary Gilman Bennett - v- Elaine Byrne’s Health and Beauty Clinic
Grounds/Issues: Gender
This dispute concerned a claim by Ms Mary Gilmanton Bennett that she was subjected to discriminatory treatment by the Respondent on the grounds of gender in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts.
The Complainant submitted that she was discriminated against by the Respondent when the Respondent removed her from her role as manager prematurely, failed to offer her alternative conditions of employment or in the event of that not being feasible, not sourcing alternative employment but placing her on health and safety leave, shortly after she had informed the Respondent of her pregnancy.
The Complainant submitted that she was employed by the Respondent as a General Manager of the Respondent’s Health and beauty clinic beginning in August 2011.The Complainant informed the Respondent that she was three months pregnant in early December. On the 9th December 2011 the Complainant submitted that she was requested
by the Respondent to sign an already completed pregnancy risk assessment. On the 13th of December 2011 the Respondent informed the Complainant that she was to be placed on Health and Safety leave under section 19 of the Maternity Protection Act 1994 by virtue of the risks that arose from the risk assessment. The Complainant submitted that the risks identified in the assessment only amounted to 2% of her working month.
The Complainant submitted that there was no risk surrounding her pregnancy which would have required her being placed on Health and Safety leave. She further submitted that if any such risks existed, that the Respondent was premature in placing her on such leave. The Complainant submitted that she attempted to discuss the risks outlined in the assessment with the Respondent to make it clear that none of the risks would affect her pregnancy but that the Respondent was not amenable to take any preventative measures to limit exposure to the risks.
The Respondent submitted that the most notable risk arising from the assessment was the risk of exposure to chemicals used in spray tanning and that exposure to these chemicals posed a risk to the unborn children and that she was not prepared therefore to take any such risk.
The Respondent rejected any allegation that she placed the Complainant on Health and Safety leave prematurely. She submitted that in this particular situation, given that the Complainant worked in a standalone role, and in the absence of any practical or suitable alternatives there were no suitable alternative roles available to eliminate these risks and enable the Complainant to continue working..
In determination of its findings, the Tribunal found the risk assessment included many risks which were so generic and commonplace that their application as a reason to be placed on Health and Safety leave would result in the automatic placement of all pregnant employees on such leave and that no preventative measures were taken to limit exposure to these generic risks. Accordingly, the Tribunal ordered the Respondent to pay the Complainant the sum of €12,000 in compensation for the effects of the discrimination.
As soon as an Employer becomes aware that an Employee is pregnant, they must assess the specific risks from the employment to the Employee, and take action to ensure that the Employee is not exposed to anything which would damage either her health or that of her unborn child. In this instance, while the Respondent argued it followed its legal
responsibilities in this regard, the Respondent was found to have discriminated against the Complainant on the basis of gender and failed to adequately explore other protective or preventative measures, such as an adjustment to working conditions, to enable the Employee remain at work, rather than placing the Employee on Health & Safety leave.
Employment Equality Decisions Not Upheld
Requirement to Speak English in the Workplace Not Discriminatory
DEC-E2015-072: Grzegorz Delanowski -v- Kellsydan Ltd. t/a McDonalds Restaurant
Grounds/Issues: Race
This dispute concerned a claim by Grzegorz Delanowski that he was discriminated against by Kellsydan Ltd. t/a McDonalds Restaurant, on the grounds of discrimination based on race which amounted to a breach of the Employment Equality Acts 1998 to 2001 Section 6(1) and Section 6(2) due to the company’s policy which prohibited the use of any language other than English.
Mr Delanowski, a Polish National, had been living and working in Ireland for a number of years and was employed by the Respondent since 2005 as a shift manager. The basis for the claims was that the Employer insisted on the use of the English language at all times and refused the Complainant the opportunity of conversing in any other language.
The Complainant viewed this as being discriminatory treatment based on race and further contended that there were no objective grounds for the Employer’s English only policy. In response the Respondent submitted that there was no outright ban on speaking a language other than English existed in the workplace and indeed submitted that it was recognised that it may, at times, be appropriate for Employees to converse in a language other than English provided that no other Employee was being excluded.
Furthermore, the Respondent submitted that the reasoning behind the use of English as its business language was three fold: from a health and safety perspective, from a business perspective and from an inclusion perspective. In this case the Respondent submitted it was important for all Employees to be able to understand the health and safety notices and instructions issued by manage and that it had been deemed necessary based on the diversity of the workforce to use English within the workplace based on the need for all staff members to be able to communicate and understand one another.
In finding in favour of the Respondent, the Tribunal was satisfied that any one of the three reasons given by the Respondent justified the use of English as a business language and more so when the three reasons were taken into account.
This is an interesting case. Ultimately, in determination of its findings, the Tribunal was satisfied that the Respondent had objectively justified the use of English as its business language and did not place the Respondent at a disadvantage relative to persons whose native language was not English.
_____________________________________________________________________________________________
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.
