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 7 decisions for July 2014.
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-049:Natalia Wozniak -v- Alexej Tuleya
Grounds/Issues:Employment Equality Acts Sections 6 and 8 – Family Status & Disability - Discriminatory dismissal.
Award:€12,000 in compensation for the discriminatory treatment suffered.
Employment Equality Decisions Not Upheld:
DEC-E2014-048:Haris Bartkevicius -v- KD Roofing
Grounds/Issues:Employment Equality Acts, Discrimination, Race, Family Status, Age, Dismissal, Conditions of Employment, Non-attendance, No prima facie case
DEC-E2014-050:Ms Z. -v- A Government Department and the Board of Management of a Community School
Grounds/Issues:Gender – disability – surrogacy arrangements – intended mother is also genetic mother of the child- right of intended mother to maternity leave or adoptive leave after the birth of her daughter by a surrogate mother – preliminary reference pursuant to Article 267 of the Functioning of the European Union – CJEU decision in case C-363/12
DEC-E2014-051:Kaniewska and Iscerjakova -v- Patrick Moore t/a Rooster Take Away Grounds/Issues: Employment Equality Acts 1998- 2008 – sections 7 and 29 – equal pay- race - like work – actual comparator – prima facie case
DEC-E2014-052:Kulasza -v- California White Services Ltd
Grounds/Issues:Employment Equality Acts 1998- 2008 – sections 6, 8 14A and 74 –– discriminatory treatment – harassment – dismissal – victimisation - race
DEC-E2014-053:Ms. Nijole Panavaite -v- Supermacs Ireland Ltd
Grounds/Issues:Gender
DEC-E2014-054:An Employee -v- Enterprise Ireland
Grounds/Issues:Disability
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 July, there was one successful claim leading to an award of €12,000. The remaining six 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 Family Status, Race, Age, Dismissal, Gender and Terms and Conditions of Employment. We have highlighted two specific decisions in July 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 or Part-Upheld:
Discrimination on the Basis of Family Status and Disability
DEC-E2014-049:Natalia Wozniak -v- Alexej Tuleya
Grounds/Issues:Employment Equality Acts Sections 6 and 8 – Family Status & Disability - discriminatory dismissal.
Award:€12,000 in compensation for the discriminatory treatment suffered.
This dispute concerned a claim by Ms Natalia Wozniak that (the “Complainant”) that she was discriminated against by Alexej Tuleya (the “Respondent”) on the grounds of family status and disability.
The Complainant started work for the Respondent in December 2010 and her employment ended on 23 November 2011. The Complainant gave evidence that after a visit to the Accident and Emergency Department in Naas in October 2011, she was diagnosed with a hernia of the spine and a dislocated disc and immediately made arrangements to have an operation back home in Poland. She informed the Respondent’s partner (Ms A) who ran the salon before she left for Poland on 19 October 2011. The Complainant underwent surgery on 26th October and went back to the doctor for an assessment on 15th November and was advised that she was not allowed to return to work before 31st December 2011.
The day following the assessment, the Complainant advised Ms A of the outcome and informed her that she had a medical certificate and asked if she wanted a copy of it, and if she wanted it translated. Ms A said she would get back to the Complainant about this but never did. The Complainant contended that she arranged for medical information to be passed to her doctor in Newbridge and he issued a certificate stating the Complainant would be off sick until 31 December 2011. The husband of the Complainant gave evidence that he dropped this certificate into the salon about one week after the operation.
The Complainant’s husband also gave evidence that in November 2011 he went to the salon for a haircut and saw someone new working there and when he asked who the new person was, he was told by the Respondent that he had replaced the Complainant who had left her position. The husband contended that he explained that the Complainant had not left her position but had been unable to return to work because of her operation. He was asked to take her P45 but refused to do so. It was posted to the Complainant a few days later.
The Respondent denied that they received the medical certificate from the doctor in Newbridge which stated that the Complainant was not fit to work until 31 December 2011. The Respondent also gave evidence that the complainant rang them on 16 November 2011 and said she would not be fit to work until January 2012 and that she wanted to be let go. Consequently they recruited a new stylist as they were approaching the busy Christmas period. When questioned about the difference in apparent discrepancy in evidence as to whether the Complainant said she did or did not intend to return to work the Respondent submitted there was a misunderstanding about the words used.
The Equality Officer in their findings found the evidence of the Respondent and his partner to be unreliable and did not accept that there was a misunderstanding as to whether the Complainant intended to return to work or give up her job and therefore concluded that the Respondent recruited a permanent replacement for the Complainant even though they knew the Claimant was on sick leave and had given no indication that she was resigning her position.
The Respondent was ordered to pay the Complainant €12,000 in compensation for the discriminatory treatment suffered. This figure represented compensation for infringement of the Complainants rights under equality legislation in relation to discrimination due to a disability.
This case serves a valuable reminder to Organisations of the appropriate steps to take prior to making any decision to dismiss. It is recommended that an Organisation obtain all of the relevant information prior to making any decision in this regard.
In instances where an Employee has been absent for a considerable period of time, (which arguably was not the case in this instance), an Organisation should obtain relevant medical information by having the Employee assessed so as to ascertain the possible duration of the sick leave absence and the prognosis for a return to work. In the event it is determined that the Employee will be unlikely to be able to return to work for the foreseeable future, or will be unable to do so on a basis which is felt to be acceptable by the Employer, an Organisation may consider seeking to determinate the Employee’s contract of employment due to their incapacity to fulfil the obligations of their employment contract. However, the decision to terminate an Employee’s contract of employment due to incapacity is not one to be taken lightly and should take account of a number of key considerations such as whether alternative employment has been considered.
Employment Equality Decisions Not Upheld:
Surrogacy No Grounds for Maternity or Adoptive Leave
DEC-E2014-050:Ms Z. -v- A Government Department and the Board of Management of a Community School
Grounds/Issues:Gender – disability – surrogacy arrangements – intended mother is also genetic mother of the child- right of intended mother to maternity leave or adoptive leave after the birth of her daughter by a surrogate mother – preliminary reference pursuant to Article 267 of the Functioning of the European Union – CJEU decision in case C-363/12
This case concerned a claim by Ms Z (the “Complainant”) that a Government Department and the Board of Management of a Community School (the “Respondents”) discriminated against her on the grounds of gender and disability in terms of not granting her either paid maternity leave or paid leave similar to adoptive leave on the birth of her daughter to a surrogate mother.
The Complainant was employed by the Respondents as a teacher. The Complainant suffered from a rare congenital disorder which meant that it was impossible for her to support a pregnancy. After considerable research, the Complainant and her husband decided to have a child through a surrogacy service operating in the US state of California.
The Complainant stated the she was very open with the school in relation to the surrogacy, and said that management were supportive of her throughout the process, including her needs for leave to take the necessary trips to California. However, when she, and the Equality Authority on her behalf, approached the first-named Respondent about paid maternity leave or paid leave equivalent to adoptive leave, she was refused, and submitted that she was advised that they were “adamant that she was not entitled to anything”. The Complainant clarified that she was not looking for an ex-gratia gesture from the first-named Respondent, but for paid leave as a right.
The Complainant explained how distressed she was to have to leave her daughter when school started again after the summer holidays and how she went on sick leave due to the resulting stress. She noted however that she used up a lot of her entitlement to paid sick leave during that time and was worried about her situation, should she fall ill in the future. Furthermore, she stated that it would not be possible to have another child through surrogacy due to this. She also pointed out that the refusal of paid maternity leave had disadvantages to her in terms of income and seniority.
The Respondents denied discriminating the Complainant as alleged or at all, and disputed that the provisions set out in the Interpretation section of the Maternity Protection Act 1994 and in Part II of that Act makes it clear that only women who are physically pregnant and go into confinement to give birth to a child (whether alive or dead), are entitled to paid maternity leave under the Acts. The first-named Respondent further argued that since Ms Z. did not give birth to her daughter, these entitlements did not apply to her, and that the Respondents are precluded by statute from granting them to her by right. Likewise, the provisions of the Adoptive Leave Acts 1995 to 2005 clearly set out that in order to avail of adoptive leave, an adoption needs to have taken place. The Respondents further argued that “leave equivalent to adoptive leave” does not exist in Irish law, and that therefore, the Complainant was not entitled to it.
The Equality Officer stated that surrogacy arrangement were unregulated in Ireland at the time the Complainant’s daughter was born in California, and still are not at the time of writing. This meant there is no statute to address the complexities of the situation intended parents may find themselves in, including any rights they might have in the workplace.
Based on all of the foregoing, and in line with a preliminary decision received from the Court of Justice of the European Union on 18 March 2014 concerning this matter, and other laws of the European Union such as the Charter of Fundamental Rights of the European Union, the Equality Officer found that the Respondents did not discriminate against the Complainant by refusing to grant her maternity leave or adoptive leave following the birth of her daughter through a surrogacy arrangement.
This case raises an interesting question as to whether individuals are entitled leave based on surrogacy. In this case, the Equality Tribunal found that based on the interpretation of current legislative provisions, the Complainant was not entitled to paid leave similar to those provided for on a maternity or adoptive leave basis. Interestingly, the Complainant also argued that she was discriminated against on the basis of a ‘disability’ in that she could not naturally conceive or carry a child. This claim was not upheld. Regardless of the specific provisions as they relate to an entitlement to avail of maternity or adoptive leave, it could be argued that in the event of any ‘assisted human production’, the right to protection and building of the relationship between a women and her child after childbirth should in any event be statutorily protected and allowed for. __________________________________________________________________________________
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.
The Equality Tribunal published 7 decisions for July 2014.
Employment Equality Decisions Upheld or Part-Upheld:
DEC-E2014-049:Natalia Wozniak -v- Alexej Tuleya
Grounds/Issues:Employment Equality Acts Sections 6 and 8 – Family Status & Disability - Discriminatory dismissal.
Award:€12,000 in compensation for the discriminatory treatment suffered.
Employment Equality Decisions Not Upheld:
DEC-E2014-048:Haris Bartkevicius -v- KD Roofing
Grounds/Issues:Employment Equality Acts, Discrimination, Race, Family Status, Age, Dismissal, Conditions of Employment, Non-attendance, No prima facie case
DEC-E2014-050:Ms Z. -v- A Government Department and the Board of Management of a Community School
Grounds/Issues:Gender – disability – surrogacy arrangements – intended mother is also genetic mother of the child- right of intended mother to maternity leave or adoptive leave after the birth of her daughter by a surrogate mother – preliminary reference pursuant to Article 267 of the Functioning of the European Union – CJEU decision in case C-363/12
DEC-E2014-051:Kaniewska and Iscerjakova -v- Patrick Moore t/a Rooster Take Away Grounds/Issues: Employment Equality Acts 1998- 2008 – sections 7 and 29 – equal pay- race - like work – actual comparator – prima facie case
DEC-E2014-052:Kulasza -v- California White Services Ltd
Grounds/Issues:Employment Equality Acts 1998- 2008 – sections 6, 8 14A and 74 –– discriminatory treatment – harassment – dismissal – victimisation - race
DEC-E2014-053:Ms. Nijole Panavaite -v- Supermacs Ireland Ltd
Grounds/Issues:Gender
DEC-E2014-054:An Employee -v- Enterprise Ireland
Grounds/Issues:Disability
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 July, there was one successful claim leading to an award of €12,000. The remaining six 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 Family Status, Race, Age, Dismissal, Gender and Terms and Conditions of Employment. We have highlighted two specific decisions in July 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 or Part-Upheld:
Discrimination on the Basis of Family Status and Disability
DEC-E2014-049:Natalia Wozniak -v- Alexej Tuleya
Grounds/Issues:Employment Equality Acts Sections 6 and 8 – Family Status & Disability - discriminatory dismissal.
Award:€12,000 in compensation for the discriminatory treatment suffered.
This dispute concerned a claim by Ms Natalia Wozniak that (the “Complainant”) that she was discriminated against by Alexej Tuleya (the “Respondent”) on the grounds of family status and disability.
The Complainant started work for the Respondent in December 2010 and her employment ended on 23 November 2011. The Complainant gave evidence that after a visit to the Accident and Emergency Department in Naas in October 2011, she was diagnosed with a hernia of the spine and a dislocated disc and immediately made arrangements to have an operation back home in Poland. She informed the Respondent’s partner (Ms A) who ran the salon before she left for Poland on 19 October 2011. The Complainant underwent surgery on 26th October and went back to the doctor for an assessment on 15th November and was advised that she was not allowed to return to work before 31st December 2011.
The day following the assessment, the Complainant advised Ms A of the outcome and informed her that she had a medical certificate and asked if she wanted a copy of it, and if she wanted it translated. Ms A said she would get back to the Complainant about this but never did. The Complainant contended that she arranged for medical information to be passed to her doctor in Newbridge and he issued a certificate stating the Complainant would be off sick until 31 December 2011. The husband of the Complainant gave evidence that he dropped this certificate into the salon about one week after the operation.
The Complainant’s husband also gave evidence that in November 2011 he went to the salon for a haircut and saw someone new working there and when he asked who the new person was, he was told by the Respondent that he had replaced the Complainant who had left her position. The husband contended that he explained that the Complainant had not left her position but had been unable to return to work because of her operation. He was asked to take her P45 but refused to do so. It was posted to the Complainant a few days later.
The Respondent denied that they received the medical certificate from the doctor in Newbridge which stated that the Complainant was not fit to work until 31 December 2011. The Respondent also gave evidence that the complainant rang them on 16 November 2011 and said she would not be fit to work until January 2012 and that she wanted to be let go. Consequently they recruited a new stylist as they were approaching the busy Christmas period. When questioned about the difference in apparent discrepancy in evidence as to whether the Complainant said she did or did not intend to return to work the Respondent submitted there was a misunderstanding about the words used.
The Equality Officer in their findings found the evidence of the Respondent and his partner to be unreliable and did not accept that there was a misunderstanding as to whether the Complainant intended to return to work or give up her job and therefore concluded that the Respondent recruited a permanent replacement for the Complainant even though they knew the Claimant was on sick leave and had given no indication that she was resigning her position.
The Respondent was ordered to pay the Complainant €12,000 in compensation for the discriminatory treatment suffered. This figure represented compensation for infringement of the Complainants rights under equality legislation in relation to discrimination due to a disability.
This case serves a valuable reminder to Organisations of the appropriate steps to take prior to making any decision to dismiss. It is recommended that an Organisation obtain all of the relevant information prior to making any decision in this regard.
In instances where an Employee has been absent for a considerable period of time, (which arguably was not the case in this instance), an Organisation should obtain relevant medical information by having the Employee assessed so as to ascertain the possible duration of the sick leave absence and the prognosis for a return to work. In the event it is determined that the Employee will be unlikely to be able to return to work for the foreseeable future, or will be unable to do so on a basis which is felt to be acceptable by the Employer, an Organisation may consider seeking to determinate the Employee’s contract of employment due to their incapacity to fulfil the obligations of their employment contract. However, the decision to terminate an Employee’s contract of employment due to incapacity is not one to be taken lightly and should take account of a number of key considerations such as whether alternative employment has been considered.
Employment Equality Decisions Not Upheld:
Surrogacy No Grounds for Maternity or Adoptive Leave
DEC-E2014-050:Ms Z. -v- A Government Department and the Board of Management of a Community School
Grounds/Issues:Gender – disability – surrogacy arrangements – intended mother is also genetic mother of the child- right of intended mother to maternity leave or adoptive leave after the birth of her daughter by a surrogate mother – preliminary reference pursuant to Article 267 of the Functioning of the European Union – CJEU decision in case C-363/12
This case concerned a claim by Ms Z (the “Complainant”) that a Government Department and the Board of Management of a Community School (the “Respondents”) discriminated against her on the grounds of gender and disability in terms of not granting her either paid maternity leave or paid leave similar to adoptive leave on the birth of her daughter to a surrogate mother.
The Complainant was employed by the Respondents as a teacher. The Complainant suffered from a rare congenital disorder which meant that it was impossible for her to support a pregnancy. After considerable research, the Complainant and her husband decided to have a child through a surrogacy service operating in the US state of California.
The Complainant stated the she was very open with the school in relation to the surrogacy, and said that management were supportive of her throughout the process, including her needs for leave to take the necessary trips to California. However, when she, and the Equality Authority on her behalf, approached the first-named Respondent about paid maternity leave or paid leave equivalent to adoptive leave, she was refused, and submitted that she was advised that they were “adamant that she was not entitled to anything”. The Complainant clarified that she was not looking for an ex-gratia gesture from the first-named Respondent, but for paid leave as a right.
The Complainant explained how distressed she was to have to leave her daughter when school started again after the summer holidays and how she went on sick leave due to the resulting stress. She noted however that she used up a lot of her entitlement to paid sick leave during that time and was worried about her situation, should she fall ill in the future. Furthermore, she stated that it would not be possible to have another child through surrogacy due to this. She also pointed out that the refusal of paid maternity leave had disadvantages to her in terms of income and seniority.
The Respondents denied discriminating the Complainant as alleged or at all, and disputed that the provisions set out in the Interpretation section of the Maternity Protection Act 1994 and in Part II of that Act makes it clear that only women who are physically pregnant and go into confinement to give birth to a child (whether alive or dead), are entitled to paid maternity leave under the Acts. The first-named Respondent further argued that since Ms Z. did not give birth to her daughter, these entitlements did not apply to her, and that the Respondents are precluded by statute from granting them to her by right. Likewise, the provisions of the Adoptive Leave Acts 1995 to 2005 clearly set out that in order to avail of adoptive leave, an adoption needs to have taken place. The Respondents further argued that “leave equivalent to adoptive leave” does not exist in Irish law, and that therefore, the Complainant was not entitled to it.
The Equality Officer stated that surrogacy arrangement were unregulated in Ireland at the time the Complainant’s daughter was born in California, and still are not at the time of writing. This meant there is no statute to address the complexities of the situation intended parents may find themselves in, including any rights they might have in the workplace.
Based on all of the foregoing, and in line with a preliminary decision received from the Court of Justice of the European Union on 18 March 2014 concerning this matter, and other laws of the European Union such as the Charter of Fundamental Rights of the European Union, the Equality Officer found that the Respondents did not discriminate against the Complainant by refusing to grant her maternity leave or adoptive leave following the birth of her daughter through a surrogacy arrangement.
This case raises an interesting question as to whether individuals are entitled leave based on surrogacy. In this case, the Equality Tribunal found that based on the interpretation of current legislative provisions, the Complainant was not entitled to paid leave similar to those provided for on a maternity or adoptive leave basis. Interestingly, the Complainant also argued that she was discriminated against on the basis of a ‘disability’ in that she could not naturally conceive or carry a child. This claim was not upheld. Regardless of the specific provisions as they relate to an entitlement to avail of maternity or adoptive leave, it could be argued that in the event of any ‘assisted human production’, the right to protection and building of the relationship between a women and her child after childbirth should in any event be statutorily protected and allowed for. __________________________________________________________________________________
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.
