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 to Deal with Employees On Long Term Sick Leave-2 Vitally Important Cases

long-term-sick

Long term sick leave.

What can or should you, as an employer, do?

Have you considered a discrimination claim, on the grounds of disability, being brought against you?

Many employers have to deal with employees absent from work on long term sick leave. Two cases which should be studied closely in this area are:

  • An Equality Tribunal case (E2011-114), Eugena Carroll and H.J. Heinz Frozen & Chilled Foods Limited and
  • An Employment Appeals Tribunal case, De Sousa v Kepak Group, UD964/2011.

(At the end of this piece you will find links to the full decisions in these cases).

Let’s take a look at De Sousa v Kepak Group, UD964/2011 first.

De Sousa V Kepak Group

Mr. De Sousa was employed as a butcher with the Kepak Group from 2002. He suffered back pain in work in 2004 and in 2007, after attending a physiotherapist; he was unable to attend work due to ongoing back pain.

He returned in March 2008 but had to stop again in June 2008. He returned again in 2009 but only lasted 1 day and had to quit again.

He was certified fit to return to work in October 2010 but complained of back pain and collapsed resulting in an ambulance being called.

In November, 2010 the Site Manager wrote to him and told him that due to his absence from  and unavailability for work the contract was frustrated and dismissed him.

Mr. De Sosa brought a claim for unfair dismissal.

The EAT found that Mr. De Sosa stayed in contact with the employer during his illness and the employer was anxious to retain Mr. De Sosa in employment.

However there were no jobs in the Kepak plant that were suitable for Mr. De Sosa as administrative jobs had become computerised and other work such as sweeping the floor involved some physical activity.

The employee was assisted in his return to work being given the least demanding physical job available as a trimmer. However when this did not work out the employer wrote to him telling him that his employment was under review due to his inability to perform the contract.

The letter of termination gave Mr. De Sosa an opportunity to appeal the decision, which he did not avail of.

The EAT found that the Unfair Dismissals act 1977 had no application in this case as the contract of employment was terminated by operation of law as the contract had become inoperable and was frustrated.

Eugena Carroll and H.J. Heinz Frozen & Chilled Foods Limited

This case involved a dismissal where the employee claimed that she was discriminated against as a result of her disability and reasonable accommodation was not made for her return to work. She brought her claim for discrimination on gender and disability ground under the Employment Equality Acts.

Ms. Carroll was employed as a general operative by H.J. Heinz Frozen & Chilled Foods Limited on the 12th July 1993 and she was dismissed on the 15th June 2007.

She was initially worked in the bakery department but after it was closed she was transferred to clerical work in the purchasing area.

She was not happy there because she had no training. She then moved to engineering stores doing stock taking and later was transferred to the chilled food department. At first she worked on the frozen food line which involved lifting up to 25kgs. And she then moved to the production line which involved putting food into trays.

She went out sick from work on the end of March 2004 with repetitive strain injury and was referred for physiotherapy. Unfortunately her condition did not improve and she was referred to a consultant and it was diagnosed she was also suffering from fibromyalgia.

She was seen by the company’s occupational health advisor on a number of occasions. The complainant’s medical advice, which the company had been kept fully informed about, was that she could not work in a cold environment such as that which obtained in the chilled department and that she could not lift heavy weights.

She said that she was anxious to go back to work and she believed that the company could have found work for her in the non chilled area or in the clerical area.

She said that she had several meetings with Occupational Health and with HR but no suitable position was offered to her other than to return to the chilled area or in an area where she was required to lift weights which she could not because of her medical condition.

She said that she wanted to return to work but could not give a return date because she was not fit to return to the position in the chilled area. She was called to a meeting with her manager and HR on the 15th of June 2007 and because she was not able to give them a return to work date and there were no alternative positions in the company which could accommodate the restrictions, she was informed, given that she was on sick leave for over 3 years the company had decided to terminate her employment.

She was advised of her right to appeal. The appeal was unsuccessful.

The complainant submits that the dismissal was discriminatory in that she was not offered reasonable accommodation because of her disability.

Decision of the  Equality Officer

The 1st thing the employee has to do in a case like this is to establish a “prima facie” case of discrimination.

The Equality Officer held:

“I am satisfied that the complainant’s condition is a disability within the meaning of the Acts. Having heard the evidence I am satisfied that the complainant was dismissed from the employment for reasons connected with her capacity to perform her job due to her disability. Therefore she has established a prima facie case of discriminatory dismissal.”

“In considering this case I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club Det. No. EED037 and which was upheld by the Circuit Court. The case concerned a complaint of dismissal on the disability ground and whether the defence under section 16(1)(b) of the Acts was applicable. The Labour Court set out the test which should be applied to by an employer if they have formed a bona fide belief that the complainant is no longer able to perform the duties for which they are employed and stated:

“At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant’s own doctor or an independent doctor where there are concerns in relations to the health of a worker.”

“In relation to the first part of the test which requires the respondent to obtain facts about the complainant’s medical condition, I note that the respondent had several medical reports about the complainant’s medical condition both from her GP and the company’s own doctor and these medical reports stated that she could not work in temperatures below 18 to 20 degrees or lift weights in excess of one or two kilogram’s. I note also that the respondent called the complainant to a number of meetings with the company where the option of returning to work in the light of her medical condition was discussed. I am satisfied that the respondent appraised himself of the full facts about the medical condition, through reports from the complainant’s GP and the company’s own doctor, before making a decision to dismiss her. I am also satisfied that the respondent gave the complainant notice that he was considering her dismissal due to her incapacity.”

“In relation to the second leg of the above test which relates to reasonable accommodation, I have examined the evidence and I note that the respondent made several suggestions about the complainant returning to work in the chilled department but her medical condition prevented her working there as all the operator roles were below 10 degrees and she required a temperature of between 18 and 20 degrees.”

“The company offered her subject to medical certification to bring her back to work on a three day week, light duties and a rotational position but the complainant’s GP would not certify her fit to return to the positions offered because of the temperature restrictions. I note that the respondent e-mailed all the heads of department on four occasions over the three year period of the complainant’s sick leave seeking alternative roles but there were no suitable vacancies except in the production area were available. Likewise I note that the complainant was also asked to do a virtual tour of the company with OH to identify roles which were suitable for her. A number of roles were deemed suitable and she was advised that the position would only be available if a vacancy existed. There were a number of vacancies in these areas over this period but the complainant did not have the qualifications or experience required.”

“I am satisfied that the dismissal of the complainant was due to her incapacity because of her disability to perform the work she was employed to do and in the circumstances the dismissal was not a discriminatory dismissal. Having regard to the provisions of Section 16(1)(b), I find that the dismissal was lawful in accordance with that provision.”

“I find that:

the respondent did not discriminate against the complainant on the disability grounds pursuant to section 6(2)(g) of the Acts and contrary to section 8(6) of the Acts in relation to her dismissal and that the defence under Section 16(1)(b) applied;

(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(g) of the Acts in relation to the provision of reasonable accommodation to the complainant in accordance with section 16(3)(b) of the Acts.”

Conclusion

If you have an employee on long term sick leave, and if you are considering dismissing on the grounds of incapacity, you will not go too far wrong if you follow the steps taken in the Carroll v Heinz case above.

Read the full De Sousa v Kepak case here.

Read the full Carroll v Heinz foods case here.

Here’s an interesting 3rd case where the employee won €40,000 for the employer’s failure to handle a long term illness/disability correctly.

Equality and Discrimination in the Workplace in Ireland-An Overview

equality in workplac

Have you been discriminated against in the workplace?

Do you know what the 9 grounds of discrimination are?

Equality and discrimination based claims to the Workplace Relations Commission (WRC) are common and costly  problems for Irish employers.

And it is a heartbreaking situation  for the employee who has been told she must retire because she is coming to a certain age, or the employee whose religion or country of origin or skin colour means they are treated differently to other workers.

And what about harassment, or sexual harassment?

Let’s take a look and see what remedies and reliefs are open to you if you feel you have been discriminated against.

And if you are an employer, let’s take a look at how to protect yourself against costly and time consuming claims.

The consequences of discriminating against an employee either in employment or in the appointment process can be catastrophic for Irish employers, and soul destroying for the employee.

Background to Equality and Discrimination Law in the Workplace

The main sources of Irish employment equality law are

  • the constitution
  • the Employment Equality Acts, 1998-2011
  • and various EU directives such as the Equal Pay Directive (75/117/EEC), the Equal Treatment Directive (76/207/EEC), and the General Framework Directive (2000/78/EC).

These directives, and others, have as their purpose the outlawing of discrimination on the grounds of religion or belief, age, disability, sexual orientation, race and also cover harassment in the workplace, victimisation, equal pay for men and women, access to the workplace for persons with a disability, measure to be taken to accommodate disability, and so on.

The Employment Equality Acts apply to employers, providers of vocational training, employment agencies, and advertisers of employment. For the purposes of the acts agency workers are deemed to be employees.

They also contain a less restrictive definition of indirect discrimination than the Equality Act, 1998.

Employment Equality Acts 1998-2011

These acts were brought into law to give effect to the issues referred to above in the various EU directives concerning discrimination and equality in the workplace.

The Employment Equality Act, 1998 prohibits discrimination in relation to:

  1. access to employment
  2. conditions of employment
  3. training or experience for or in relation to employment
  4. promotion or regrading, or
  5. classification of posts.

The Employment Equality Act 1998 prohibits discrimination in the workplace on the following grounds

• Gender

• Civil status (single, married, separated, divorced, etc.)

• Family status

• Sexual orientation

• Religion (includes having no religious belief)

• Age

• Disability

• Race/colour/nationality/ethnic or national origins

• Membership of the travelling community.

In this context discrimination is treating one person less favourably than another on one of the nine grounds above.

Section 2 of the Employment Equality Act, 1998 defines the various discriminatory grounds eg

family status” means responsibility—
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

sexual orientation” means heterosexual, homosexual or bisexual orientation;

Transsexuals are not specifically covered by the legislation but it is almost certain that they will be covered.

Disability

Note re disability ground: the protection available on this ground is not available where the person is not capable or willing to do the job in question.

An employer can however pay a different rate of pay if the amount of work done by the person is less than normally done by a person without a disability.

The employer must also make accommodation (“appropriate measures”) to a person with a disability thanks to the Equality Act, 2004 Act  unless there is a “disproportionate burden” on the employer (Section 9 Equality Act, 2004).

It is worth noting also that the definition of “disability” in the act is wide ranging and has been held to apply to temporary and permanent physical and mental conditions (eg a whiplash injury which lasted for three months, a lung infection, stress).

“Disability” is defined in the section 2 Employment Equality Act, 1998  as:

disability” means—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Race

The definition of the race ground is set out in section 6(2)(h):

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 8 of the 1998 Act also provides:

8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

The Equality Act, 2004 did away with the age limits of 18 and 65 which were in the 1998 Act; now there are no upper or lower age thresholds.

Employers’ Discrimination and Harassment Policies

It is advisable for employers to have policies in place to deal with many of the grounds for discrimination above, in particular a sexual harassment policy which would cover all grounds.

However having workplace policies on their own is not enough as the Labour Court has held; they must be proactively implemented and training provided for staff to ensure that the employer can point to having taken all reasonable steps to implement the policies in the workplace.

Types of Discrimination

Discrimination can fall into two broad categories:

1. Direct discrimination and

2. Indirect discrimination.

Direct Discrimination

Direct discrimination is outlawed by the Acts in the following areas-

• Discrimination in collective agreements

• Discrimination by employers

• Discrimination by employment agencies

• Discriminatory advertising

• Discrimination in vocational training

• Discrimination by professional and trade associations and trade unions.

workplace-harassment

Indirect Discrimination

Indirect discrimination can occur where the employer applies a condition to everyone in the workplace but it is a condition that fewer people of one gender (or other discriminatory ground) than another is able to comply with.

However it will not be indirect discrimination if the employer can objectively justify (on grounds unrelated to the discriminatory ground) the condition or provision provided that it is in pursuit of a legitimate aim and the means of achieving that aim are appropriate and necessary to achieve a legitimate aim.

Indirect discrimination was defined in section 22 of Employment Equality Act, 1998, which was then amended by section 13 of the Equality Act, 2004 as follows:

(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
 (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

 

Burden of proof

In all cases where facts are established from which it can be presumed that there has been discrimination under any of the grounds set out in the Employment Equality Acts then it is up to the employer to prove otherwise. This can be a significant burden on employers so employers should examine all work practices to ensure that they are not leaving themselves open to a successful claim.

However a recent decision in APPAREL SUPPLY SOLUTIONS LIMITED (FORMERLY TEAMKIT LIMITED)  AND  SUNDRA MULLEN shows that it is not enough “to reach conclusions of fact based upon mere supposition or speculation.”

In order to succeed in her contention that these acts amounted to acts of discrimination, the Complainant must produce some significant evidence of discrimination and not mere supposition in order to allow the Court to draw an inference that persons of a different race or nationality were or would have been treated more favourably

Section 38 of the Equality Act, 2004 sets out the burden of proof in discrimination cases:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked.”.

Requirement to work full time and job sharing

The Labour Court has found that a provision requiring an employee to go to working full time from part time working could be indirectly discriminatory on the grounds of gender. The employer would need to show

  1. this need is a real need of the employer’s business
  2. it is an appropriate measure to achieve a legitimate objective
  3. the provision is necessary to achieve the objective.

Equal Pay

The Employment Equality Acts established a legal right to equal pay for men and women engaged in “like” work by the same employer and the comparator need not be employed in the same place as the claimant.

Section 19 and 20 of the Employment Equality Act, 1998 as amended by the 2004 Act insert an equal pay clause, on gender grounds, into every contract and expressly provide for indirect discrimination in equal pay. Section 29 provides the same entitlement to equal pay for members of protected groups, on non-gender reasons.

He/she must be employed at the same time or during the previous or succeeding three years. The Acts insert into every contract of employment an equal pay clause and also outlaw indirect discrimination in relation to pay.

Section 7 of the Act defines “like work”.

if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The comparison of pay must be between an employee who is a member of one of the protected groups and an employee who is not.

However an employer can pay different rates of pay to different employees on grounds other than the discriminatory grounds.(Section 29(5) Employment Equality Act, 1998)

Red circling

Where an employee’s rate of pay is above the normal rate for the job due to personal factors related to the individual only he can be “red circled” and not used as a comparator for an equal pay claim.

Sexual Harassment and Harassment Generally

Sexual harassment had, until the Employment Equality Acts, no well accepted legal definition.

However the 1998 act introduced a definition of sexual harassment for the 1st time and the section 8 of the 2004 act amended it to include harassment generally.

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Source: Equality Acts 1998 and 2004

Redress

A victim of sexual harassment can bring legal action against the harasser or employer or both as the common law principle of vicarious liability is now on a statutory footing in section 15 of the Employment Equality Act, 1998.

15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

Defence

The acts provide a defence for an employer if he can show that he took steps which were as reasonable as practicable to prevent the harassment and reverse the effects of it. It is important to note that harassment can be carried out by any number of persons, not just the employer or fellow employees, and the employer may still be held vicariously liable as a result.

The question of whether an employer has taken reasonable steps in the workplace and therefore whether he will be held liable or not will be influenced greatly by whether the employer has a code of practice in place for dealing with harassment.

SI 78/2002 (Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002, introduced a code of practice on sexual harassment and harassment at work.

However this has been revoked in 2012 by SI 208 of 2012 which sets out an updated harassment code of practice order.

It is strongly advisable for employers to have workplace policies in place to address equality issues as well as issues surrounding health and safety, bullying, and equal opportunities as the presence or absence of such policies in the workplace can be a significant factor if a dispute appears before the Workplace Relations Commission (WRC) or the Civil Courts.

Positive Action

Sections 15 and 22 of the Equality Act, 2004 provide for positive action:

15.—The following subsection is substituted for subsection (1) of section 24 (positive action on equal opportunities) of the Act of 1998:
“(1) This Act is without prejudice to any measures—
(a) maintained or adopted with a view to ensuring full equality in practice between men and women in their employments, and
(b) providing for specific advantages so as—
(i) to make it easier for an under-represented sex to pursue a vocational activity, or
(ii) to prevent or compensate for disadvantages in professional careers.”.
22.—The following section is substituted for section 33 (positive action permitted) of the Act of 1998:
“33.—Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures—
(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),
(b) to protect the health or safety at work of persons with a disability, or
(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.”.

Exemptions-where it is lawful to discriminate

There are certain circumstances where an employer can lawfully discriminate.

1. Benefits conferred on an employee’s family or on his/her marriage are not unlawful.

2. In the operation of occupational benefits schemes it is allowed to set ages for admission and to use age criteria when calculating actuarial benefits

3. Employees with disabilities can be paid a particular rate of pay if, by reason of the disability, the amount of work done is less than over a similar period by an employee without a disability

4. The Employment Equality Acts do not oblige an employer to “require an employer to recruit..an individual if the employer is aware, on the basis of criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful”

5. A religious, medical or educational institution established for a religious purpose may discriminate where it is reasonable to do so in order to maintain the religious ethos of the institution or is reasonable necessary to avoid undermining that ethos.

The relevant sections are 16(5), 34(3), 16(3), 36, 37(1).

This is provided for in Section 37 of the Employment Equality Act, 1998.

37.—(1) A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part orPart II if—
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.
(2) Nothing in this Part or Part II applies to discrimination against C in respect of employment in a particular post if the discrimination results from preferring D on the ground that the relevant characteristic of D is or amounts to an occupational qualification for the post in question.
(3) Without prejudice to the generality of subsection (2), in relation to discrimination on the age ground, the disability ground or the ground of race, the relevant characteristic of D shall be taken to be an occupational qualification for a post where on grounds of physiology or on grounds of authenticity for the purpose of entertainment, the nature of the post—
(a) requires a person having the same relevant characteristic as D, and
(b) would be materially different if filled by a person not having that relevant characteristic.
(4) Without prejudice to the generality of subsection (2), in relation to discrimination on the religion ground or the ground of race, the relevant characteristic of D shall be taken to be an occupational qualification for a post where it is necessary that the post should be held by D because it is likely to involve the performance of duties outside the State in a place where the laws or customs are such that those duties could not reasonably be performed by a person who does not have that relevant characteristic or, as the case may require, by a person who has a relevant characteristic of C.
(5) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28 (1), nothing in this Part or Part II applies to the employment of any person for the purposes of a private household.
(6) In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment—
(a) in the Defence Forces,
(b) in the Garda Síochána, or
(c) in the prison service.

Section 25 of the Employment Equality Act 2004 made significant changes to section 37 of the 1998 Act as follows:

25.—Section 37 (exclusion of discrimination on particular grounds in certain occupations) of the Act of 1998 is amended by the substitution of the following subsections for subsections (2) to (6):
“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—
(a) the characteristic constitutes a genuine and determining occupational requirement, and
(b) the objective is legitimate and the requirement proportionate.
(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.
(4) If—
(a) the Minister is of opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and
(b) he or she by order so declares,
the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.
(5) In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.
(6) In subsection (4)(a) the reference to the Minister, in relation to an emergency service, is a reference to the Minister of the Government with official functions in regard to that service.”.

Enforcement and remedies

All cases used to commence before the Equality Tribunal but that changed in October, 2015-all cases now start with the WRC (Workplace Relations Commission). The decision may be appealed to the Labour Court within 42 days.

In gender discrimination cases the claimant may bypass the WRC and go straight to the Circuit Court and there is no ceiling on the amount that may be awarded to the successful claimant.

In cases which are not referred to the Circuit Court the following can be awarded:

  • in an equal pay case the ordering of equal pay and arrears up to equal pay for the preceding 3 years and
  • in other cases the awarding of equal treatment or ending of the discrimination and compensation of up to 2 years’ pay, or where the person was not in receipt of remuneration €12,700.

Injuries to feelings

Unlike in an unfair dismissal case where compensation is restricted to financial loss, in these discrimination cases awards for injury to feelings are compensatory, not just loss of wages or out of pocket expenses.

Awards tend to be high enough to ensure respect for the policy and objectives of the underlying anti-discrimination legislation.

Lessons for employers

Equality and anti discrimination legislation has had a huge impact on the workplace. Employers need to be very careful now about:

  • recruitment and promotion
  • terms, conditions and benefits
  • harassment policies
  • discrimination policies
  • positive action.

Employers also need to realize that it is not enough to merely have policies drawn up; they must ensure that they are implemented in the workplace to actively prevent discrimination and harassment.

They also need to be aware of the high awards that can be granted by the WRC or the Courts in discrimination cases.

Here is a useful booklet from the Equality Authority which deals with equality in the workplace in Ireland.