Categories
Equality and Discrimination

Shop Assistant Awarded 2 Years’ Salary for Discriminatory Dismissal

workplace discrimination ireland

When Jimmy came to see me after he was dismissed from his job I advised him against bringing a claim for unfair dismissal. And that decision has now paid off handsomely.

Because Jimmy has now been awarded 2 years’ salary for the claim arising from his dismissal-a discrimination claim under the Employment Equality Act 1998, not the Unfair Dismissals Act 1977.

Let me explain why we made this decision.

I was confident that Jimmy was unfairly dismissed, but if he is successful in his unfair dismissal claim under the Unfair Dismissals Act 1977 he is only entitled to financial loss. Because Jimmy obtained a new job quickly after his dismissal, he would only have been entitled to 1 month’s wages if he was successful with an unfair dismissal claim.

However, if Jimmy could prove a discriminatory dismissal, he could be awarded up to 2 years’ salary, regardless of whether he got a new job or not. Because the award under the Employment Equality Act 1998 is for the act of discrimination and the WRC adjudicator has wide discretion as to the amount to be awarded, assuming he wins his case.

And that is what the adjudication officer has done in this case, the decision of which you can read at the bottom of this page.

Obviously in order to have a choice in a situation like Jimmy’s the employee must have been discriminated against on one of the 9 grounds of discrimination. Therefore, the choice may or may not arise, depending on the circumstances.

In Jimmy’s case he was dismissed whilst he was out on certified sick leave so we made the argument that this was a discriminatory dismissal on the basis that Jimmy was suffering from a disability at the time of the dismissal and it was a central factor in the termination of his employment.

Parallel or duplicate proceedings

Generally, you cannot bring a claim under two different acts arising from the same set of circumstances, and you may be forced to pick one claim or the other. In this case we chose, for the reasons set out above, to pursue the claim under the Employment Equality Act 1998.

A recent case which I have written about saw the employee being awarded compensation under the Employment Equality Act 1998 and the Maternity Protection Act 1994. But section 101 Employment Equality Act 1998 states, inter alia,

F183 [ (4A) (a) Where an employee refers —

(i) a case or claim under section 77 , and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

Conclusion

Frequently the decisions you make before you submit your claim to the Workplace Relations Commission, and what claim you bring, will prove to be strategically important later.

Footnote: please note Jimmy is a pseudonym of my client’s real name.

Read the full anonymised decision here.

Categories
Equality and Discrimination

Parallel Proceedings-WRC Decides Both Maternity Protection Act and Employment Equality Act Claims Can Be Pursued

maternity-leave-ireland

This case involved a woman who worked as a HR manager returning to work after her maternity leave and discovering she was not, according to her, returning to the same job she had left.

She brought claims under the Maternity Protection Act 1994 and the Employment Equality Act 1998.

Preliminary issue

The employer’s legal team raised a preliminary point: that the Complainant could not pursue claims under the two different acts arising from the same set of facts.

They argued this would be an example of parallel proceedings and they relied on a Labour Court case, Power v Jahan Company t/a Irema Ireland Limited EDA 1326.

In that case the Labour Court decided the employee could not bring a claim to the Labour Court under the Employment Equality Acts because the employee had already received a decision arising from the same circumstances from a Rights Commissioner hearing under the Maternity Protection Act 1994’

The matter was held to be res judicata.

In the instant case the Complainant argued she could bring a claim under both statutes, but if forced to choose would opt for the Employment Equality act 1998.

The Adjudicator Decision

The WRC adjudicator looked at the decision of the Labour Court and its reliance on Cunningham v Intel Ireland Limited (2013) IEHC 207 and noted the High Court held

All matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings

The Labour Court had decided that the employee could not ventilate her complaint under the Employment Equality Acts as the complaint had already been adjudicated at the Rights Commissioner hearing and a remedy applied. It was, therefore, res judicata.

However, the adjudicator distinguished that case from the instant one because no previous hearing of this complaint had been heard or adjudged. Res judicata did not apply.

Also, the present claim under the two different acts would be adjudged at one sitting, not two as had occurred in Power.

Reference was also made to Financial Administrator v a Telecommunications Provider, ADJ 15172 where the adjudicator awarded redress under both acts where the same facts grounded complaints under the Maternity Protection acts and the Employment Equality Acts.

For these reasons the adjudicator decided she was not prohibited from hearing both complaints, notwithstanding that they were arising from the same set of facts.

The Decision

The adjudicator found that there was a breach of the Maternity Protection Act 1994 insofar as the complainant was not allowed to return to the position she had left prior to going on maternity leave. The job to which she was expected to return saw her being relegated to a lower position-that is, she would have been one of three HR Business Partners reporting to more senior HR manager.

Her role was, therefore, reduced and the new role was not a suitable alternative under a new contract and she experienced less favourable terms and conditions.

The adjudicator found that the complaint was well founded and awarded her €9,547 -that is, 6 weeks remuneration. This was compensation for breach of the Maternity Protection act 1994 and takes into account the redress awarded in respect of her complaint under the Employment Equality Act 1998.

The decision on the WRC website does not specify any compensation awarded under the Employment Equality act 1998.

However a report on the website IRN.ie which deals with industrial relations matters, and which has reported on the case, has reported here that the employee was also awarded €41,370 for gender discrimination. I have contacted the website to try to reconcile the difference and to ask where they obtained the figure of €41,370 for gender discrimination.

Read the full decision here. This is the WRC decision as reported on their website.

The Employment Equality Act Claim

The decision under the employment equality acts for discrimination was given here and you will note that the employee was awarded 6 months salary in the sum of €41,370.

Read the full decision in ADJ-00023183

Takeaway

This employee was awarded €50,917 in total under the two acts for claims which arose from the same set of facts and circumstances.

Categories
Employment Claims Equality and Discrimination

Two Discrimination Cases-Different Responses from Employer, Similar Outcome for Employee

employment claims
Cross examination notes

I have been involved in two discrimination cases which have been finalised in the last few weeks. The outcomes of the cases, coincidentally, are similar and have culminated in compensation for both employees.

The first one involved a case of sexual harassment in the workplace and resulted in a compensation payment, tax free, of €30,000. You can read more about that case, including the full decision of the WRC, here.

The other case, one you will not read about because it has been settled before ever going to the Workplace Relations Commission, has been settled for a similar sum of money. It was a discrimination case, not sexual harassment, as defined by the Employment Equality Act 1998.

The amount of work involved for me in both cases differed wildly, however.

The sexual harassment case involved a great deal of time and work and involved three days at the WRC: the first day was for mediation, the second day for the hearing, and the third day was to complete the hearing. Evidence had to be taken from two witnesses, cross examination of at least three witnesses, and booklets and submissions had to be prepared and submitted.

The second case, by contrast, only involved the submission of the complaint to the Workplace Relations Commission; shortly after this the solicitor for the employer made contact and the case was settled.

Responding to claims-professional or amateur?

I categorise responding to employment claims in two ways: professional or amateur.

When you bring any legal case or employment claim it is impossible to know how the other side will react.

One response is a pragmatic approach and a realistic attempt to settle the case by the party who is in the weaker position and is at risk if the case goes to a full hearing.

The risk, if you are the employer, involves an award of compensation against you, legal costs of representation, time taken to prepare for the case, and reputational damage.

The other response is to substitute cool analysis of the facts and the law with an emotional response to ‘fight the case’ to the end. This does not make much sense, quite frankly, but it is an easy reaction to embrace.

And if you have the money and are fully aware of the risks and costs, knock yourself out, if you want to. But the ‘professional’ approach, using logic and evidence rather than emotions, might serve you better in the long run.

Now, the professional response may be to fight the case in all circumstances, in order to discourage claims against you generally or copycat claims. But you should make this decision rationally after assessing all the relevant factors rather than responding emotionally.

The employee, too, must weigh up the chance of success versus the associated costs of representation, the probability of winning, and the potential remedies that can be gained. (This blog post, How to Make a Decision to Bring an Employment Claim to WRC or Not, might be worth a read.)

Categories
Equality and Discrimination

Catering Assistant Awarded €30,000 for Sexual Harassment

The WRC have awarded €30,000 to our client arising from a claim of sexual harassment in the workplace.

The claim was brought under the Employment Equality Act 1998 and in a comprehensive 20 page decision the WRC Adjudicator awarded her €30,000, not subject to any statutory deductions, which was the equivalent of 18 months’ wages.

The hearing was held over two days and evidence given by both complainant and employer was well tested.

Background

The complainant alleged that she had been sexually harassed in the workplace over a period of time which culminated in an incident in which she alleged she had been pinched in the bottom.

The employer, when advised of the allegation, carried out an investigation and made certain findings and recommendations.

We argued, however, that the findings of the investigation were irrational and perverse and flew in the face of the facts and evidence of other employees.

We also argued that the response of the employer was inadequate and an offer to transfer the complainant was unfair as she had done nothing wrong.

The law surrounding sexual harassment

Several important legal aspects of this case are worth considering.

The first has to do with the burden of proof and the obligation on the complainant, in the first instance, to establish facts from which a reasonable inference of discrimination could be drawn.

Once this prima facie hurdle has been cleared by the complainant the burden of proof shifts to the employer; but it must be cleared in the first instance in all cases alleging discrimination.

The employer has a defence in section 14 A of the Employment Equality Act:

it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

( a ) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

( b ) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

Was this defence open to the employer in this instance?

We argued that this defence was not open to the employer by reason of his failure to take reasonable steps to prevent the harassment or reverse its effects.

The WRC adjudicator agreed with our arguments insofar as she found that the response of the employer was inadequate and ‘avoided the responsibility to take the right action and deal with Patrick’s behaviour’.

She also agreed that the findings of the investigation carried out to be ‘contrived and evasive’ and the appointment of an external investigator may have led to a more ‘balanced and reasonable’ outcome.

She also agreed that the evidence of the complainant was truthful and credible and the evidence of the manager ‘doesn’t stand up’;  the decision to impose the ‘beyond a reasonable doubt’ standard of proof was ‘unfair’ and what was required was the imposition of the civil standard of proof of ‘on the balance of probability’.

To be clear, the standard of proof being set at ‘beyond a reasonable doubt’ is the appropriate standard in a criminal case, but not in a civil case or employment dispute/complaint investigation.

Interestingly, the WRC adjudicator also made the point that ‘sexual harassment is as much about power as about sex and the harasser’s intention was to humiliate the complainant and retrieve for himself some of the power she possessed’.

Conclusion

For employees it is important to know that sexual harassment in the workplace is taken extremely seriously by the Workplace Relations Commission. You must discharge the initial burden of proof to prove facts from which a reasonable inference of discrimination can be drawn. If you can do this the burden shifts to the employer.

The employer must note that having a policy in place which deals with sexual harassment and/or discrimination is not enough; the employer must go further and ensure that the policy and procedure is applied rigorously and fairly and reasonable responses happen if a finding of discrimination is arrived at.

Having a policy/procedure and going through a box ticking exercise will not be sufficient if the findings are irrational or the response is inadequate.

You can read the full decision of the Workplace Relations Commission here.

Learn more about sexual harassment here and the employer’s defence in a discrimination case here.

Categories
Equality and Discrimination

Indirect Discrimination Award of €38,000 Where Part Time Employee Required to Work Full Time

A WRC decision of August 2019 deals with a case where the part time worker was required to move to full time work. It is an instructive case when you want to understand indirect discrimination.

Indirect discrimination is different from direct discrimination and is defined as:

(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. (Section 22 of Employment Equality Act, 1998, which was then amended by section 13 of the Equality Act, 2004).

It is noteworthy that discrimination will not occur 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.

Part time to full time work

The Labour Court has previously 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, to discharge the prima facie case of discrimination, 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.

In this case the employee was told that a restructuring of the organisation was taking place and they offered her full time work, but that the part time role would be going. Ultimately, the employee brought a claim to the WRC claiming discrimination on the family status ground in relation to her conditions of employment.

She claimed that she was dismissed from her part-time role on 10 September 2018 as a result of her refusal to move to a full-time role.

The Adjudication Officer found

I consider this complaint is one of indirect discrimination on family status grounds. In a line of authorities commencing with Bilka-Kaulhaus v Karin Weber von Hatrz Case 170/84 {1986} ECR 1607, the ECJ has held that indirect discrimination arises where a requirement in relation to employment bears significantly more heavily on persons of one gender relative to that of persons of the other gender. According to the Employment Equality Acts, indirect discrimination occurs “where an apparently neutral provision, criterion or practice would put persons of a particular [ gender / family status ] at a particular disadvantage compared with persons of a different [ gender /family status ] unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.”   Based on the evidence heard, I find that the provision introduced by the respondent which would have required the complainant to work full time, amounts, prima facie, to indirect discrimination on grounds of her family status. However, a finding of discrimination only arises if the provision cannot be objectively justified. The onus of establishing objective justification rests on the respondent. (Was there a legitimate aim and were the means appropriate and necessary). The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect by which the objective in view could have been achieved. I am cognisant of the Labour Court decision in Inoue v NBK Designs Ltd. where the complainant contended that the requirement to work full-time is a condition of employment which disadvantages significantly more women than men and significantly more persons of her marital and family status than persons of a different marital and family status.   

The AO referred to the Labour Court case, the Inoue case, and decided

In that case, the Labour Court stated “the complainant was unable to work full-time, not because she was a woman per se, but because she is the mother of a school going child and the primary carer of that child.”  It accepted that it is the reality in modern society that mothers are more likely to fulfil the role of primary carer of children than are fathers.

She also pointed to the failure of the employer to give concrete examples of how the part time job was not working out and, therefore, did not meet the standard required to meet the objective justification test.

The AO decided,

In the circumstances, I find that the respondent has not adduced evidence to demonstrate that the requirement for the complainant to do the job on a full-time basis was a legitimate aim and that the means to achieve the objective were appropriate and necessary.  The respondent did not consider alternative means or less discriminatory ways in which to allow the complainant to remain in employment. Accordingly, I find that dismissal of the complainant is prima facie indirectly discriminatory on the gender and family status grounds and the respondent has not rebutted the case.

I find that the complainant was subjected to indirect discrimination on grounds of gender and family status in the manner of her dismissal.

In considering redress, I find that compensation is the most appropriate form of redress in the circumstances of this case. In accordance with the case of Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891, I am mindful of the requirement that the sanction be “effective, dissuasive and proportionate.”  In accordance with my powers under section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €38,000 by way of compensation for breaches of the Act which represents one years salary. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI code.

Conclusion

The employee was the victim of indirect discrimination by reason of the insistence of the employer that the employee move from a part time to full time role in circumstances where the employer was unable to objectively justify the move.

Read the full decision here.