A Tale of Discrimination (Vera’s Story)

discrimination story

Vera loved rabbits.

She used to remind me of Lennie in Steinbeck’s short novel, “Of Mice and Men”, although, unlike Lennie, she was sharp as a tack.

Vera started working in retail when she was 15, straight out of school.

She worked her way up in the retail industry-mainly small shops- and found herself as manager of a shop on the northside of Dublin after 35 mostly good years.

She got on great with her employer, Jimmy, who owned the shop, and he, like Vera, was “old school”.

He was a kind man and was happy to generously give Vera time off for family events or hospital appointments, which Vera never took advantage of.

When Jimmy came to tell her that he had sold the shop she was a little bit anxious, because she didn’t know what to expect from the new owner, or how things might change.

Her worst fears were soon realised when she met her.

Geraldine was a go-goeting, ambitious young woman of 25 who had been given a leg up in her aspiring entrepreneurial career by her father. He guaranteed the loan to buy the shop, and gave her the deposit,too.

Soon after taking over the shop Geraldine dropped a few remarks to Vera which Vera thought were inappropriate.

Little remarks like, “we will have to get our costs down, Vera, especially the wages bill”, and “how long do you think you will continue working?”, and “can we manage with less full timers?”

All the little digs worried Vera.

A few months after the change of ownership Vera’s GP recommended that she have some minor surgery carried out as the best way to deal with an ongoing medical issue she had.

Vera eventually bit the bullet and went in for the surgery.

The surgery was successful and her GP was happy with the outcome. However, he recommended Vera take it easy for 3 or 4 weeks when she went back to work-no heavy lifting, no pulling or dragging heavy stock, and to avoid stretching too vigorously.

Vera was fed up at home and was one of those people who had to be at something; she just couldn’t sit still for any longer than an hour.

So she was looking forward to going back to work.

She went to Geraldine to let her know when she would be back and what her GP had recommended by way of an easing back into the more vigorous parts of her job.

Vera was amazed with Geraldine’s reaction.

“Vera, I am not happy to let you back to work until you are fully fit to do your job in its entirety. Why don’t you wait a few more weeks until you are fully recovered?”, she said.

“But I want to go back to work now”, said Vera, “and the doctor said it would be good for me, provided I avoid some tasks for a few weeks”.

The conversation ended on a sour note, and Vera was stunned.

The next day she received an email from Geraldine saying that she could not let her return to work until she was fully fit. In her email she mentioned “health and safety” and “insurance” and “duty of care to employees”.

Vera was not going to take this lying down, she had given 35+ years of service in a job she loved and was not going to be “put out to grass like this”, as she saw it.

Vera came to see me and we had a good chat. Even though she was a small lady, bird like, she had a real steel about her. She told me she was brought up in Cabra, one of a family of 11, and she told me you soon had to learn how to stand up for yourself.

She said when she was 11 or 12 she used to go down to Croke Park on big match days and sell stuff to the crowd going to the GAA matches: apples, oranges, paper hats (the ones which, if it rained, all the colours ran out of), flags, you name it.

I told her about a case I had read about, where a man-I think he worked in a quarry in Galway- who wanted to return to work after brain surgery was dismissed and brought a claim for discrimination on the grounds of disability.

The man could only work for 20 hours per week on his return, on his doctor’s recommendation, but the employer wanted him to return to the full 39 hours.

They could not reach agreement so the employer dismissed him. The employee brought a claim under equality legislation and claimed that he was discriminated against on the grounds of disability, and the employer has failed, contrary to his legal obligation, to make “reasonable accommodation” for his return to work.

The worker was awarded €40,000 by the Equality Tribunal. (You can read more about that case here.)

It struck Vera and me that her situation appeared to be very similar to this man’s. No two cases are the same, of course, but there are certain guiding principles you can draw from cases with similar facts.

So, Vera decided to bring a claim against the employer and her claim was that she was being discriminated against by her employer on the grounds of disability, and the employer has failed, contrary to the Employment Equality Acts to make reasonable accommodation for her return to work.

Vera felt she was being effectively dismissed by the employer’s refusal to let her take it easy for a few weeks in relation to a handful of tasks.

Vera was so angry about the way she was treated that she resigned. Not long afterwards, Vera had a new position in retail, but she was not going to let this lie.

We submitted her claim to the WRC, and felt Vera had a really strong case. Close to the day of the hearing the case settled and Vera accepted a nice settlement in relation to her claim.

She felt vindicated. She was working away in her new job, but felt she had to take a stand in relation to the way she was treated, and the lack of respect shown to her by Geraldine.

Takeaway

There are 9 grounds of discrimination in Irish employment law, and disability is one of them. However, the definition of a “disability” is so broad, that even a runny nose has been held to be one.

A disability can be temporary or permanent, and can include an addiction to alcohol or drugs.

The monetary penalties for discrimination are high: up to 2 years’ remuneration for the employee from the WRC and the Circuit Court can award up to its jurisdictional limit.

And Vera?

She is working away, managing another shop, and happy to be back in full swing having made a full recovery from her surgery and the way she was treated.

How Safe Are You From Making This Costly Mistake?

workplace bullying

It’s an easy mistake to make.

I see it all the time, to be honest.

One day recently, I had to say this to a nice young woman who came to me for employment law advice:

I’m sorry to disappoint you, but I think you are wasting your time with this”.

And to a man a few days before: “I have to tell you that I think you are in danger of digging a big hole for yourself. My advice is that you forget about this and go back to work, keep the head down, and do your best.”

And another: “You asked me for a straight answer and that is what I am about to give you: forget about this. Accept it, and move on, or you are in danger of talking yourself out of a job”.

And “Sometimes, you may be treated unfairly or unprofessionally, but that doesn’t mean there is a legal cause of action or claim”.

It appeared to me that there was a growing number of people who, one way or another, left my office disappointed.

It’s inevitable that you begin to second guess yourself.

I began to question myself.

Was my judgment off: was I too conservative?

Was I overlooking potential causes of action?

Was I expecting too much from employees?

And too little from employers?

But when I thought about it I noticed it was not just in relation to employment law that I’ve had to say these things, either. Family, litigation, personal injury, property, landlord and tenant.

And then I read the Supreme Court decision in the alleged bullying case involving a special needs assistant, Una Ruffley, and the Board of management of the primary school in Kildare where she worked.

And one of the Judges seemed to articulate precisely what I had been saying to the various hopeful employees who came to me.

Mr. Justice Peter Charleton, in his decision, said “Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action.”

Another way of saying this, in plain English, is “shit happens”.

And that is what I was saying to the different people I have referred to above.

I was doing is as diplomatically as I could, but I had to call a spade a spade.

It’s human nature that nobody wants to be the bearer of bad news. And nobody wants to let down or disappoint prospective clients.

But I would be doing them a grave disservice if I did not give my honest opinion about whether each person had a claim, a “cause of action”, or not.

Some people take the bad news well, some take it badly.

But one unfortunate feature that I encounter on a too frequent basis is the person who appears to have become obsessive about their issue, no matter what it is.

They simply won’t let it go, even when staring at the uncomfortable facts.

The big problem in this situation is that the biggest sufferer of an unhealthy obsession is the person who has it.

Because it can lead to their well being and mental health being seriously affected.

Not only have they suffered some distress or hardship or rough treatment at the hands of another, but now they run the risk of compounding the damage and hurt by their refusal to put it behind them and let it go.

It is striking, and sad, how some situations become so personal to the individual that they simply cannot see the damage they will do to themselves if they don’t let it go.

In conclusion, sometimes you need to stand up and fight.

But sometimes you need to retreat and live to fight another day, when the odds in your favour shift to make it worthwhile.

And don’t ever fall into the trap of winning a battle, and losing the war.

Bullying in the Workplace in Ireland-Supreme Court Raises the Bar to Successful Claims?

workplace bullying

Has the Supreme Court raised the bar to successful bullying claims with this decision delivered on 26th May, 2017?

Are you being bullied at work? A lot of people complain to me about bullying.

You would not believe the large number of queries I received from people about bullying, and allegations of being bullied in work.

Many of them are, quite frankly, misguided and do a disservice to genuine victims of bullying in the workplace.

I have written quite a few posts about bullying in the workplace, such as

  1. Workplace bullying and non-physical injuries-what you need to prove
  2. The High Court Ruffley case (Una Ruffley v Board of Management of St. Anne’s School).

I also wrote about the Court of Appeal overturning the High Court decision in the Ruffley case.

This case has recently been dealt with by the Supreme Court in May, 2017, and as the Supreme Court is the highest ranking Court in Ireland what it has held in the Ruffley case is well worth taking a look at.

The Court itself has held that “this novel case will set a benchmark for all bullying claims.”

So, if you feel you are being bullied and are considering a claim on the grounds of bullying in the workplace you need to consider carefully what the Supreme Court has to say.

The background to the case is that Una Ruffley was a special needs assistant in a primary school in Kildare, St. Annes. In January, 2010 she was disciplined by her employer, the Board of Management of the School.

Una Ruffley claimed that this disciplinary procedure was part of a bullying campaign against her, and had suffered a personal injury of a psychological nature as a result.

Ms Ruffley commenced a personal injury claim in the High Court and was awarded over €255,000 euros in 2014.

Judge O’Neill in that case held that she had been bullied as she was subjected to repeated inappropriate behaviour which affected her dignity at work, and Judge O’Neill accepted the definition of bullying as set out in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

Appeal

This decision was appealed to the Court of Appeal and Judge O’Neill’s finding in her favour was overturned by 2 to 1. The reasons for this was the finding that in this particular case the Board of Management had not been guilty of the type of repetitive inappropriate conduct which undermined the right to dignity in the workplace for a period of over one year as was found by the trial judge.

One of the Judges stated that the absence of fair procedures on its own could constitute bullying; another Judge held that the behaviour had to be repeated and reasonably proximate in time.

These are obviously two completely different, contradictory opinions. For this reason, the appeal to the Supreme Court was watched closely by legal professionals because it was hoped that the Supreme Court would clarify the actual test of what constituted repeated, inappropriate behaviour-that is, bullying-from a practical perspective.

Appeal to Supreme Court

The Court agreed that the test for bullying, as set out in Quigley v Complex Tool and Moulding Limited [2008] IESC 44, was still the correct test. This means the conduct complained of must be

  • Repeated
  • Inappropriate
  • Undermining of the dignity of the employee at work.

The Court on this occasion held that each part of this test must be fulfilled on each occasion of behaviour which is argued constitutes a pattern of bullying, and found against Ms Ruffley and held that this case was not one that should have attracted damages.

The Court also distinguishes ordinary management from bullying, and holds that there is a certain degree of robustness expected from employees.

It is clear from this case that the bar over which an employee must jump to prove bullying has been raised.

The Court held:

Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.”

It also clarifies that the conduct required to prove the undermining of the employee’s dignity at work must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

Justice Charleton, in his decision, states that “the test for bullying is of necessity to be set very high”.

It appears from the Supreme Court decision in this case that it has succeeded in setting the bar high.

You can read the full decision ( Ruffley -v- The Board of Management of Saint Anne’s School, [2017] IESC 33) of the Supreme Court here-it is well worth a read.

Interestingly, Mr. Justice Peter Charleton states that

“Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action.Given that the test for bullying is of necessity to be set very high, these are not circumstances which can attract damages.”

The Statutory Penalties for Breaches of Employment Law in Ireland

Are you aware of the range of penalties that are set down in legislation in Ireland for breaches of employment law?

There is a large number of statutes/acts dealing with all aspects of employment law in Ireland. These acts cover overnighting from unfair dismissal to working time to payment of wages to health and safety to annual leave and rest breaks, etc.

In addition to these penalties and employee can always go to the Civil Courts for common law claims such as breach of contract, personal injury, negligence, health and safety breaches, breach of constitutional rights, etc. That is another day’s work.

This piece is going to look at the penalties and redress for employees as set out in statute, that is, the various acts on the statute book.

Regardless of whether you are an employer or employee, you should find it useful.

Unfair Dismissal/Constructive Dismissal

The redress is set out in section 7, Unfair Dismissals Act, 1977, and in summary comprises

  1. Reinstatement or
  2. Reengagement or
  3. Compensation of up to 104 weeks’ remuneration in respect of the financial loss due to the dismissal.

If there is no financial loss an employee can be awarded 4 weeks’ remuneration.

Working Time/Rest Breaks

The penalties are set out in section 27, Organisation of Working Time Act, 1997:

  1. Require the employer to comply with the relevant provision of the act
  2. Compensation of up to 2 years’ remuneration.

Written Terms of Employment

Failure to provide a written statement of terms and conditions of employment within 2 months of starting can be punished as set out in section 7 of the Terms of Employment (Information) Act, 1994.

The WRC adjudicator can order the employer to give the statement to the employee and can award up to 4 weeks’ remuneration by way of compensation.

Protected Disclosures/Whistleblowing

The Protected Disclosures Act, 2014 provides severe penalties in section 11 for dismissal of an employee for making a protected disclosure:

  • 260 weeks (5 years) remuneration

The employee can also bring a tort action for having suffered detriment as a result of making a protected disclosure, as set out in section 13, Protected Disclosures Act, 2014, and can seek an order from the Circuit Court as set out in section 11 of the act preventing dismissal prior to the determination of a claim for unfair dismissal.

Payment of Wages

Section 6, Payment of Wages act, 1991 sets out the penalties for breaches of the act. These include

  • Compensation of the net amount of the wages which would have been paid the previous week prior to the deduction/non payment or
  • Twice the net amount of wages that would have been paid to the employee in the week immediately preceding the deduction or payment

Minimum Notice

Compensation can be awarded pursuant to Minimum Notice and Terms of Employment Act, 1973: “may award to the employee compensation for any loss sustained by him by reason of the default of the employer.”

Agency Workers

Penalties for breach of Protection of Employees (Temporary Agency Work) Act 2012 are set out in schedule 2 of the Act. It states that the WRC can order rectification of whatever breach of the act is proved, including reengagement or reinstatement, and/or order compensation of up to 2 years’ remuneration be paid to the employee.

Adoptive Leave, Carer’s Leave, Parental Leave

Breach of the adoptive leave provisions of the Adoptive Leave Act, 1995 can see compensation of up to 20 weeks’ remuneration awarded to the employee, or the WRC making whatever directive order it feels is expedient in the circumstances.

Carer’s leave: a WRC adjudicator can award a grant of carer ’ s leave to the employee of such length to be taken at such time or times and in such manner as the adjudication officer may specify, and/or up to 26 weeks’ compensation.(Carer’s Leave Act, 2001).

Parental Leave and Force Majeure Leave:  an adjudicator can award (a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified, and/or compensation of up to 20 weeks’ remuneration.(Parental Leave Act, 1998).

Maternity leave: breaches of the employees entitlement can lead to an award of compensation of up to 20 weeks’ remuneration and or grant of the leave to which the employee is entitled.(Maternity Protection act, 1994).

Transfer of Undertakings

Complaints about breaches of S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 can lead to compensation being awarded depending on which regulation has been breached.

The compensation can range from a maximum of 4 weeks’ remuneration to 2 years’ remuneration.

Part Time Workers

The Protection of Employees (Part-Time Work) Act, 2001 is the relevant act for part time workers.

It provides that the WRC adjudicator can require the employer to comply with the relevant provision and/or award 2 years’ remuneration to the employee.

Fixed Term Workers

The Protection of Employees (Fixed-Term Work) Act 2003 is the relevant act for fixed term workers. Section 14 of the revised act provides the WRC adjudicator can:

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

Redundancy

The Redundancy Payments Act, 1967, section 7 sets out the employee’s right to a redundancy payment. Section 39 allows you to appeal the amount you have been awarded.

The Protection of Employment Act, 1977 also obliges the employer to inform and consult with employees in a collective redundancy situation. Section 11 of the Act sets out the penalties for the employer’s failure to consult and notify: a fine of up to €5,000 on summary conviction in respect of a breach of section 9 or section 10.

Discrimination and Equality Based Claims

Breaches of the Employment Equality Act, 1998 can see redress being ordered pursuant to section 82 of the Employment Equality Act, 1998:

Various orders including for re-engagement, re-instatement or compensation of up to 2 years’ remuneration or €40,000, whichever is the greater.

€13,000 can be awarded in contravention of the law in relation to a discriminatory claim in relation to access to employment.

Equal Status Acts Breaches

Equal status breaches can be penalised in accordance with the Equal Status Act, 2000. This protects you in relation to discrimination in respect of the supply of goods or services.

The maximum amount that can be awarded is the amount of the District Court limit in civil cases in contract (€15,000).

Minimum Wages

The National Minimum Wage Act, 2000 protects employees in relation to minimum wage rates. Complaints can be dealt with under section 26 of the act. The adjudication officer can order that the shortfall be rectified and paid to the employee, and the employee can also be awarded reasonable costs in respect of bringing the claim.

The employer can also be prosecuted in the District Court for breaches of this minimum wage act.

Health and Safety

Breaches of the Safety Health and Welfare Act 2005 can see an adjudication officer awarding compensation of such amount as he feels equitable in the circumstances for breach of section 27 of the act, which protects employees from penalisation or dismissal for making a complaint in respect of health and safety in the workplace.

Conclusion

The list above is not definitive, but certainly covers the most common types of employment law claim that will be brought to the WRC (Workplace Relations Commission), or Labour Court. A WRC adjudicator has a wide range of discretion for breaches of any particular act, so the various acts referred to above set out the maximum awards possible.

A Warning Employment Law Story for Employers

employers unfair dismissal story

Let me tell you a story.

Last year a small shop owner in Westmeath, Mick*, faced a claim from a dismissed employee on the grounds of unfair dismissal. The employee, Séamus*, worked for Mick for about 18 months, or so.

The background was typical enough.

Seámus started off well in the job, full of enthusiasm. Mick hoped Séamus would take the pressure off him once he learned the ropes and got a bit of experience.

As time went on, however, and particularly after Séamus had been in the job for 12 months, his performance dropped.

He showed less interest in the job, got himself a new girlfriend, a second hand car, and had much less interest in working at the weekend, especially on a Saturday evening.

His timekeeping got sloppy, too, and there were complaints from customers that his attitude and tone in the shop was poor.

One Saturday in May, Mick had Séamus rostered to work on Saturday because Mick was going to his brother’s child’s First Holy Communion. He was looking forward to the break, and the few pints and a bite to eat with “herself”.

An hour before Séamus was due to start Mick received a call from Séamus’s mother telling him that he wasn’t well and wouldn’t be able to come in.

Mick was furious, absolutely fuming, and suspected the only thing wrong with Séamus was a stonking hangover because he was seen out in the pubs on the Friday night.

Mick had to stay in the shop because he was short staffed,  and had to pass up going to the First Holy Communion. He felt really let down-gutted, in fact.

On Monday, Mick resolved to tackle Séamus about his absence on Saturday and get to the bottom of it.

When Monday came around it transpired Séamus had made a remarkable recovery, so much so that he starred for the local junior team on the Sunday.

When Mick went to discuss the situation with Séamus he was not in the best frame of mind, especially after hearing about the footballing exploits of Séamus the previous day.

The conversation between the two men started off on a bad footing, and soon went downhill rapidly.

It ended up with Mick telling Séamus that he “was taking the piss” and he wouldn’t stand for it any longer He said he was very disappointed with him, and heard he had played football the previous day.

“I can’t trust you now, I’m afraid”.

He told him he could go back home to his mother, and play his football but he wouldn’t be working for Mick anymore.

He would have his P.45 in a few days when the bookkeeper came in.

About a fortnight later a solicitor’s letter arrived at the shop. The letter stated that Séamus had “clearly been unfairly dismissed” and that he wanted, and was entitled, “to be compensated for his loss of income”.

Soon after Mick received a letter from the WRC (Workplace Relations Commission) telling him that an unfair dismissal claim has been made by Séamus.

But that was only the start of it as there was also claims for failure to give the required notice, failure to give a written contract, failure to give proper rest breaks, failure to pay the correct pay for annual leave and public holidays.

Mick went to his own solicitor about the case and made it clear he would not consider taking Séamus back, or compensating him.

His exact words were “I’ll have a beard sweeping the floor before I’d give that smart-arse waster his job back or let him back into my shop”.

Approximately 20 weeks later Mick’s solicitor received notice of the hearing date with the WRC in Lansdowne house, Dublin 4.

Mick’s solicitor strongly advised him to try to settle the case because on the unfair dismissal claim alone he was in a very weak position, having failed to follow any procedure at all.

To make matters worse, he was offside in relation to the minimum notice claim and the written contract claim, so these could not be won either.

As for the claim about getting the right rest breaks? Mick was adamant Séamus had got enough breaks, but unfortunately for Mick he had no records that he should have kept in accordance with the Organisation of Working Time Act Regulations.

So, Mick had no choice-he had to settle. It killed him but it could have been worse if the case went ahead to a full adjudication hearing.

All in all, the whole mess cost Mick approximately €23,500.

The maximum Séamus could have been awarded for the unfair dismissal would have been 2 years’ salary, so the €23,500 it cost Mick was being viewed by Mick in that context.

Nevertheless, it was €23,500 of after tax income he could ill afford to be handing out in compensation and could have used it to replace a fridge or help upgrade his deli.

Lesson for Employers

Mick made a fatal mistake in this tale. He dismissed without any procedure, and let his hurt and pride overrule his good judgment.

If an employee is dismissed without a fair or proper procedure, almost always it will constitute an unfair dismissal.

Employers also need to be careful to ensure that all employees have a written contract of employment, and to maintain work records and records of rest breaks and annual leave.

 

*Note: Mick and Séamus are not the real names of employer and employee.