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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.)

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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.

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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.

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Equality and Discrimination

Von Colson and Kamann-Establishing the Principle of Indirect Effect

You may never have heard of Von Colson and Kamann, but if you are an employee you are indebted to them.

Von Colson and Kamann were German social workers whose appeal established an important principle: that EU states were obliged to provide a legal remedy in order to give effect to the principle of equal treatment in accordance with the Equal Treatment Directive. This is the important principle of indirect effect.

Von Colson and Kamann had applied to work in men’s prisons in Germany but were rejected because they were women.

They brought a case to the German equivalent of the Labour Court and won. However, they were only awarded the cost of travelling for the interview-that is, out of pocket or petrol expenses. 

They argued they should have had a legal remedy such as compensation or an order appointing them to the position open to them.

They appealed this decision to the ECJ (European Court of Justice) and it held that member states could provide an effective legal remedy such as damages or an order for specific performance. they could do this by interpreting their own national laws in a way that gave effect to the EU directive.

ECJ-VON COLSON & KAMANN V LAND NORDHEIN-WESTFALEN

The ECJ held, inter alia, that Von Colson could not demand that the employer appoint her. The member states could fulfill their obligations to provide a remedy in several ways, including either specific performance or claiming damages. Either one would provide an effective remedy to comply with the obligation. This discretion prevented the obligation being directly effective.

“23. Although… full implementation of the directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction be such as to guarantee real and effective judicial protection.

26. … national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article 189.

28. … if a Member State chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.”

Indirect effect

The Van Colson and Kamann case saw the ECJ establishing the  principle of indirect effect-that is, the member states of the EU are obliged to interpret their existing national laws in a way which will give effect to EU directives. This is a development of the principle of effective judicial protection to citizens.

Van Colson and Kamann could, therefore, have been awarded significant compensaton as a remedy for the discrimination, and not just the travelling expenses which the German Labour Court awarded.

Read the full decision of the ECJ in Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen.

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Equality and Discrimination

Guidance from the Supreme Court in the ‘Nano Nagle’ Reasonable Accommodation Case

supreme court nano nagle

The recent Supreme Court decision in the ‘Nano Nagle’ is worth a closer look by both employers and employees who are concerned with what is expected by way of ‘reasonable accommodation’ for an employee with a disability.

This obligation on an employer to provide ‘reasonable accommodation’ to an employee is set out in section 16 of the Employment Equality Act 1998.

Section 16 of the act provides, inter alia,

F33 [ (3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.

( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

F34 [ ‘appropriate measures ’ , in relation to a person with a disability —

( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,

( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; ]

In overturning the Court of Appeal decision in the case the Supreme Court held that there was no reason why providing reasonable accommodation should not involve a redistribution of duties in the workplace, provided this did not place a disproportionate burden on the employer. In making this finding the Supreme Court held that it was not enough for the employer to merely divide up the job between essential duties and non-essential tasks, as the Court of Appeal had decided.

You will note from section 16 above that there is a non-exhaustive list set out in the Employment Equality Act 1998 which includes ‘the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources’.

This Supreme Court decision goes a step further in placing an obligation on the employer.

It has done so by suggesting that the employer must look not only at a redistribution of the tasks of the role but must look at a redistribution of the essential duties and functions of the employee’s job. The Supreme Court arrived at this finding on the basis that the Act in question obliges the employer to consider all appropriate measures to provide reasonable accommodation provided the cost of doing so would not be disproportionate.

The Supreme Court held, in essence, that the ‘test is one of reasonableness and proportionality’ but there was an obligation on the employer to explore whether public funding would be available to assist with the provision of reasonable accommodation.

As for consulting with the employee the Court of Appeal held that there was no obligation for employee participation in the process. The Supreme Court on the other hand held that while there was no statutory obligation to consult with the employee it made sense and would be sensible for the employer to do so.

The Court also reaffirmed the long held position that the employer was not obliged to create a different job for the affected employee.

Rap on the knuckles for the Labour Court

The Supreme Court also gave a slight rap on the knuckles to the Labour Court by finding that it had failed in its duty to consider all relevant evidence in the case and failed to provide reasons for its conclusions based on the evidence and sent the case back to the Labour Court for further consideration on specific points.

The Court also criticised the Labour Court for failing to give any reason for the level of compensation it had awarded on the grounds that fair procedures would dictate that parties are entitled to know the reasoning behind the level of an award.

Read the Supreme Court decision here: Nano Nagle School v Daly [2019] IESC 63