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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.

Categories
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

Categories
Equality and Discrimination

Labour Court Awards €51,168 for Discrimination Based Dismissal After Maternity Leave

The Labour Court has awarded the maximum amount open to it-€51,168-for the effects of discrimination in a case involving an employee returning to work after maternity leave.

Background

Karen Kelly worked for G4S Secure Solutions (Ireland) Limited and had been awarded €11,602.50 at a Workplace Relations Commission hearing. Both employer and employee appealed this decision, the employee not being satisfied with the amount awarded and the employer not happy with the decision to find discrimination against Ms Kelly.

Ms Kelly had brought her claim for discrimination pursuant to the Employment Equality Acts 1998-2015 on the basis that the employer did not let her return to the post she had occupied prior going on maternity leave.

Ms Kelly had been employed on a site in Swords but after her return from maternity leave G4S had instructed her not to attend the Swords site. She was advised that she was not allowed to return to that site because the employer’s client in Swords had requested that she not return to their site.

Ms Kelly was offered a fixed term contract-of 3 months, later extended to 6 months-in the employer’s head office in Ballymount. This was problematic for the employee, however, as it involved a 4-hour round trip to work and no other offers were made to her.

In April 2018 the employer stopped paying Ms Kelly and Ms Kelly requested her P45 in June 2018.

Ms Kelly’s case was founded on discrimination on the basis that had she not gone on maternity leave she would in all probability continue to work in the Swords site on a permanent or CID contract.

The employee’s case

Ms Kelly’s side argued that where a dismissal is based on a discriminatory ground the Labour Court is obliged to take into account the manner and effects of the dismissal to ensure any award is effective, proportionate and dissuasive in accordance with the principles in the ECJ case of Von Colson& Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

The fact that she was not given her P45 was also raised as an issue which compounded Ms Kelly’s difficulties in accessing social welfare payments.

The employer’s case

The employer’s position was that she was not dismissed nor discriminated against but the employer’s hands were tied insofar as it was their client who insisted that Ms Kelly not be sent back to the Swords site. The employer also stated that Ms Kelly had resigned by reason of her seeking her P45 and they had done their best to get her back onto the Swords site, but the client would not agree to this.

For this reason, they claimed, no discriminatory dismissal had occurred.

Labour Court findings

The Labour Court referred to the general right to return to work on the expiry of protective leave, as set out in the Maternity Protection Act 1994 and to the Employment Equality Acts dealing with discrimination in relation to work.

The Court also referred to the right to suitable alternative work in certain circumstances on return to work.

The court found that the employer could not rely on the insistence of the employer’s client that she not return to Swords as trumping Ms Kelly’s statutory rights.

It also found that the employer could not rely on the argument that it was not reasonably practicable to return the employee to her previous job and that a role involving a 4 hour round trip was a suitable alternative as envisaged by the Maternity Protection Act 1994.

The Court found that prior to her maternity leave Ms Kelly was working 30 minutes from home on a permanent contract; after her protective leave she was expected to travel 4 hours each day and work on a fixed term contract. Based on those facts the Court did not accept that the terms of the contract offered were ‘not less favourable’. The Court noted that no other option was put to the Complainant at any stage in the process.

The Labour Court was satisfied that this was a discrimination-based dismissal and awarded the maximum amount the Court could award, €51,168, as the compensation in such cases must be proportionate, effective and dissuasive.

Read the full decision here.

Categories
Equality and Discrimination

A Sexual Harassment Story (Ana’s Story)

Ana came to Ireland from Croatia in 2014.

She knew a small number of Croats living in Dublin and they had told her she would find work here quickly enough.

They were right and she started a job in a coffee shop in the southside of Dublin within 2 months of arriving in Dublin. She quickly settled in Dublin and shared a house with 7 other people-2 Croats, 3 Poles, and 2 Irish.

Her English was not fluent but improving and she spoke well enough to get by, get her job done, and avoid too much confusion with anyone she came into contact with in the course of her days.

She spent a few weeks just clearing tables, cleaning, checking in orders, cleaning toilets, running to the cash and carry but soon she was pressed into service serving customers.

She found it difficult at first and was afraid of making serious mistakes.

But she learned quickly and was popular with the regulars who recognised her pleasant, friendly personality and smile, and her willingness to learn.

When she came to see me for the first time she fidgeted and played with a ring she wore.

She told me about her background, her 3 brothers and family in Zagreb. She never went into great detail when speaking with me about her time in Zagreb but her face darkened noticeably and I could see she was not comfortable speaking about it.

She did tell me, though, that she was on her way to primary school in May, 1995 when rocket attacks on Zagreb killed her uncle and aunt.

When she was sexually assaulted in the workplace, however, she made an oblique reference to her childhood in Croatia.

She said, “I’ve been through a lot at home in Croatia, I’ve seen most than most people my age, but this thing in the workplace was just a humiliation; I have put up with a lot of stuff before I came to Ireland but this was too much to expect me to take”.

She said the worst part wasn’t the assault, however, it was not being believed when she complained. And the investigation that was carried out being a complete whitewash and waste of time.

She had worked in the coffee shop for 7 months or so and was getting good experience under her belt. Her problems started when the manager of the coffee shop decide to go travelling for a couple of years with her boyfriend and the two of them went to Canada for a year.

The new manager, Seamus, was friendly at first; maybe too friendly. Always grinning at her like a shark.

Soon,however, Ana began to feel uncomfortable with Seamus’s attention. He was just weird and creepy.

At first he just made a small number of jokes with sexual innuendo.

Most people would probably consider them to be just part and parcel of the workplace, banter if you like.

But the “jokes” and innuendo got worse to the point where the situation was wearing Ana down.

She felt like quitting her job rather than face these dumb, offensive remarks every day-remarks about her appearance, her private life, her boyfriend, and so on.

Ana wasn’t in the job too long, however, and was still on probation so she felt the best thing to do might be to keep her head down, not rock the boat, and hope that Seamus would lay off or get fed up and just leave her alone.

She spoke to some of the other girls about it and they told her they had to put up with the same crap. They told her they were afraid to complain because they were not Irish and he was, and they were afraid they would not be believed and, anyway, who were they to complain to?

They weren’t sure of the whole situation, the legal situation, who was to help them; it was completely new to them but they were sure that the new manager would probably have more sway and influence with the owner than they had and would be more likely to be believed.

Besides it would be easier to replace one of the support or waitressing or retail staff rather than the manager. So they felt in a vulnerable situation.

What’s more, if they complained and were not believed the atmosphere in the workplace would be even worse, and they would feel like fools.

So they just stayed quiet and hoped he would get fed up and lay off.

Ana took the same approach and did nothing about the ‘jokes’ which were getting worse and more graphic.

Unfortunately this decision, however, backfired for Ana because Seamus took encouragement from her silence and her failure to make clear that his comments were unacceptable. He was emboldened. It got worse, not better, as time went on.

It was about 11 months after starting in this workplace that the final incident happened.

She remembered it well, it was a Tuesday afternoon at 3.45 pm. She could not believe it at first.

At first she was outraged but was so surprised and shocked that she wasn’t even sure it had actually happened.

What happened was Seamus had walked behind her back into the kitchen and put his hand on her bottom and whispered “you have a fine arse, Ana”.

Ana was stunned. She did not know what to do and went to the toilets, shook with anger and wept silently.

Her mind cleared, though, and then she was sure of exactly what he had done.

The bastard had put his hand on her bottom, treated her like a piece of meat, and ignored her dignity as a person. No respect.

This had gone on too long.

She dried her tears, gathered her courage as best she could and went straight to Seamus. She told him that what he had done was completely unacceptable, that she felt humiliated and demanded an apology.

Seamus’s face reddens and his mouth tightens and a little tic develops on the left side of his mouth. He denies it completely, tells her she is nothing but a troublemaker, and nobody will believe such a stupid allegation.

Ana felt faint, confused, could not think straight.

She goes into the little store at the back of the shop that passes for a staff room, takes her bag out of her locker, puts on her coat and heads for the bus stop to go home.

Ana sits in her kitchen for 90 minutes nursing a cup of coffee.

She debates with herself about what to do: should she leave or make a formal complaint or just forget about it and tough it out or start looking for another job?

She pulls out the staff handbook from underneath her bed and discovers how she is to make a complaint.

Two days later she receives a message from the owner of the business who tells her she has appointed an external HR person to carry out an investigation.

An investigation was quickly carried out and Ana made a statement about what happened and what had happened previously. She told the investigator that it was common knowledge what Seamus was like-all he had to do was check with the other girls.

The investigator called in the other 2 girls and asked them if they ever had any difficulty with Seamus.

They told of the long running difficulties that they had experienced with him: inappropriate remarks, comments about their clothes, how they looked, their make up, told them jokes that always involved some sexual comment, and so forth.

Ana reads the letter again for the second time and she can’t believe it. She has received it by registered post and it tells her the outcome of her complaint is that the investigator from the HR company does not uphold her complaint.

The reasons given are a “conflict of evidence” and one person’s word against another’s and the absence of any witness to the alleged incident.

The letter is worded really nice and professional and it tells her the employer values her greatly and hopes she will be able to come back to work soon and are sure that her relationship with Seamus can be rebuilt “going forward”.

Ana reads it for the third time. She cannot believe it. She’s thinks she is going to be physically sick. Really throw up.

She’s not sure what to do, or what she can do.

But she knows one thing: she cannot go back into that workplace.

Ana sits in my office now. She plays with her ring, a big blue stone of a thing. She is teary and weepy and I get a small box of tissues.

She is determined about one thing: she will not let this go. She wants to take it further and tell her story. She hasn’t come from a difficult upbringing in Zagreb to Ireland to have some deviant treat her like a piece of fine meat.

We submitted her claim to the WRC without delay. It was an Employment Equality act 1998 claim that she had suffered discrimination in the workplace by reason of her gender and had been the victim of sexual harassment.

Sexual harassment is defined in Section 14A Employment Equality Act 1998 as

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.

Now, it is 8 months later and we have received the decision of the WRC adjudicator. The WRC have found that Ana’s complaint was “well founded” and she has been awarded €27,000 in compensation.

It is open to the employer to appeal this decision to the Labour Court.

But Ana doesn’t care; she has told her story to an independent adjudicator and has been believed. Not alone that but the wrong that was done to her in the workplace has been recognised by an award of compensation. It wasn’t just a trivial, inconsequential, technical wrong.

It was a serious attack on her self respect and dignity.

The money is not the important thing to Ana, but it will give her time to get on her feet again, get another job, maybe send some home to her family outside Zagreb.

(Please note “Ana” and “Seamus” are not the real names of the parties involved in this case and some facts have been changed slightly to prevent identification).