Employment Equality Decisions issued in Sept/Oct 2013 Reviewed
These decisions of the Equality Tribunal, with an additional one from the
Labour Court, were reviewed by Bernadette Treanor, Managing Consultant,
Beo Solutions, and former Equality Officer at the Equality Tribunal.
Two of the Decisions from the Equality Tribunal reviewed below relate to the
disability ground, one in respect of reasonable accommodation and
constructive dismissal and the other in respect of long-term absence and
dismissal. The former indicates that moving a person to resolve interpersonal
issues cannot override the need for reasonable accommodation and is the
second case this year, resulting in a large award, where the the HSE was
found to have ignored medical advice. The Equality Officer was very critical
of the input of staff from the Employee Relations unit in this case.
The second disability Decision provides a useful look at how to best address
long term sick absences and ultimate dismissal. The employer was found to
have breached the requirements on a technical basis only and the award
reflected this at €1000.
The other two Decisions relate to claims on the gender ground, one where the
offer of employment was allegedly withdrawn when the employer was
informed of the applicant’s pregnancy, the other in respect of a competitive
selection process where a male candidate, less qualified than the female
complainant, was successful.
The latter Decision contains an in-depth look at best practice for interviews.
Interestingly, even though the complainant was employed at the time of the
discrimination, she was on a fixed-term contract which expired before she
referred her complaint so she could only avail of the maximum award of
€13,000 rather than 2 years salary.
The final decision addressed below, a Recommendation issued by the Labour
Court EDA1326, relates to a Decision of the Tribunal issued relatively
recently, DEC-E2013-055. The claim was dispensed with by the Labour
Court on the basis of a preliminary matter as to whether or not the claimant
could pursue a claim under the equality legislation where the same matter had
already been addressed under the maternity protection legislation.
1. DEC-E2013-111 A Nurse -v- Health Service Executive
Issues: Disability, reasonable accommodation/appropriate measures,
interpersonal disputes, ignoring medical advice,
The complainant in this case was diagnosed with breast cancer for the
second time in 2002. She developed lymphoedema affecting both her arms
following surgical intervention which remained as a consequence. She
continued in her role in Unit A until she was informed she was being moved in
September 2009. The complainant believed that she was being moved
because she had made a verbal complaint of bullying against the Assistant
Director of Nursing. The Equality Officer considered that during the
intervening years the complainant was “provided with appropriate measures
and that moving her from that accommodation was an ill-considered and an
ill-thought out solution to an interpersonal staffing issue which existed there
between her and the Assistant Director of Nursing”. The Equality Officer also
found it “highly significant that the complainant was moved out of a post which
suited her needs in relation to her disability despite having medical evidence
from their own Occupational Health Consultant to the contrary”.
Taking account of the now seminal case Humphries v Westwood Fitness
Club, EED037, the Equality Officer stated: “There was no joined up thinking
between the Occupational Health Division and the Employee Relations
Division and in fact the opinions of the respondent’s own Occupational Health
Consultant and the complainant’s Oncologist were disregarded”. This was
found to constitute a prima facie case of discrimination on the disability
ground which was not rebutted by the respondent.
The Equality Officer found the testimony of the Employee Relations Manager
contemptuous, disdainful and very defensive including his response: “I don’t
want to know anything about a person’s medical condition, its not my
business it is for occupational health to decide”. The Equality Officer went
on to uphold discriminatory constructive dismissal. The complainant was
awarded €85,000 equating to approximately 2 years’ salary.
Why is this case of interest?
 Neither the complainant’s nor the employer’s medical advice was taken
into account. DEC-E2013-080 was another example this year where
the HSE ignored agreed medical findings or advice. The award in that
case was €70,000 and in this one €85,000.
 In terms of what might constitute disproportionate burden, a large
organisation such as the HSE must take account of its scale and
financial resources in accordance with s.16(3)(c)(ii).
2. DEC-E2013-105 Patricia O’Brien and National Hardware Ltd.
Issues: Access to employment, pregnancy, withdrawal of offer of
employment
On 6 January 2011 the complainant applied for a post of graphic designer to
cover maternity leave and on 9 January 2011 when she was offered the post
she informed the employer that she was pregnant. The offer of employment
was revoked allegedly because of the complainant’s unavailability. The post
was re-offered to the complainant although the complainant asserts that the
terms had altered.
The Equality Officer accepted the complainant’s evidence that the offer of
employment was withdrawn after the complainant informed the employer that
she was pregnant. He also concluded that the written offer was varied from
the original offer because the employer was aware she was pregnant.
The complainant was awarded €6,000 for the discriminatory treatment
suffered on the gender ground.
Why is this case of interest?
 Where an offer of employment is withdrawn, clear records of the
contemporaneous reasoning and considerations will be of assistance.
______________________________________________
3. DEC-E2013-.122, Ms. S v A Food Preparation Company
Issues: Disability, reasonable accommodation/appropriate measures,
dismissal
The complainant worked as a supervisor in an area where vegetables were
prepared in chlorine-containing baths before packaging. She developed a
bitter taste in her mouth and stomach aches in early 2008 and went on sick
leave until February 2010. Following further medical visits and a number of
meetings at work (including one following which the complainant allegedly
suffered a breakdown) the complainant was dismissed.
The Equality Officer was not satisfied that the respondent was put on notice
as to the complainant’s breakdown and was satisfied that it did not contribute
to the respondent’s decision to dismiss the complainant. The respondent
accepted that she was dismissed and that it was because of her disability.
The Equality Officer accepted that the complainant had a disability falling
within the definition in the Acts and that she had established a prima facie
case of discrimination.
The Equality Officer noted that the complainant was afforded appropriate
measures in accordance with medical advice and when the advice changed
the respondent changed its practices. He could not conclude, therefore, that
the respondent had failed to provide appropriate measures to the
complainant. The complainant asserted that the respondent’s suggestion of
demotion and lower pay amounted to discrimination. However, in
circumstances where the complainant refused the demotion and reduction in
pay and the respondent did not reduce her wages, the Equality Officer did not
consider that amounted to less favourable treatment. He looked favourably
on the employer’s attempts to secure up-to-date medical information and
referred to Humphries v A Health and Fitness Club, EED037. The Equality
Officer stated that having told the complainant that she should revert to them
after a medical visit the employer forged ahead with her dismissal rather than
waiting to ascertain what the then current situation was. On the basis of this
the Equality Officer found that the dismissal was “technically tainted by
discrimination on the disability ground” and awarded her €1,000.
Why is this case of interest?
 The Equality Officer clearly indicates in paragraph 5.15 that an
employee seeking to rely on the existence of a disability must provide
the employer with the information in his or her possession.
 The Decision shows how an employer may appropriately deal with long
term absence and consider dismissal without tripping up on the
requirement to provide reasonable accommodation or being required to
create a role different to that which the employee was employed to
undertake.
____________________________________________________
4. DEC-E2013-133, Clare O’Dowd v Sligo Young Enterprises Limited T/A
Sligo Community Training Centre
Issues: Gender, family status, selection process, transparent
procedures, lesser qualified candidate being successful
The complainant worked as General Manager of Sligo Community Training
Centre and following the birth of her second child, coinciding with the
hospitalisation of her first child a number of times, she requested a return to
work in the less demanding role of tutor. She was informed that she should
resign as General Manager and she would be given a fixed term post as tutor.
While working as a tutor the General Manager post was advertised and the
male colleague, who had filled the post in an acting-up capacity during her
periods of maternity leave, was successful.
The complainant applied for the role and was asked why she resigned to
which she replied describing her child’s health problems.
The Equality Officer was “not provided with any information about the
successful applicant’s management duties or how long he held these posts or
evidence to support the contention he was managing large budgets”. She
was satisfied that the complainant’s management and experience was in no
way inferior and in many respects superior to that of the successful male
candidate. The Equality Officer was satisfied that the complainant’s
qualifications were more relevant than the successful candidate’s. After a
thorough review of the selection process she found that it fell short on
transparency, objectivity, fairness and good practice and in the circumstances
the complainant had raised an inference of discrimination which the
respondent had failed to rebut.
As the complainant and the successful candidate have the same family status
the complaint on that ground was unsuccessful.
The complainant was awarded €13,000, the maximum possible in a case of
access to employment.
Why is this case of interest?
 It provides a useful review of what a selection process should involve.
 The complainant, although in the employment on a fixed term contract
at the time of the discrimination, was awarded redress on the basis of
access to employment only; that is, as a non-employee. This is based
on section 82(4) which states that the maximum that may be awarded
normally requires that the complainant be in receipt of remuneration on
the date of referral of the complaint to the Tribunal, or the date of
dismissal. The ending of a fixed-term contract where the term of the
contract has run out is not normally considered a dismissal.
 The selection of a lesser qualified candidate was also addressed in an
earlier Decision this year, DEC-E2013-054 where the complainant was
awarded approximately a year’s salary. As pointed out in the review of
that earlier Decision, also on the gender ground, this logic will apply
regardless of the ground.
_________________________________________________
5. EDA1326, Jahan Company T/A Irema Ireland and Anne Power
Issues: Pursuit of identical claims under the Maternity Protection Acts 19942001 and the Employment Equality Acts 1998-2008, res judicata estoppel
Representative for the respondent objected to the case proceeding on the
basis that the claim was res judicata, an identical case having been heard
before a Rights Commissioner. The Equality Officer found that there was
nothing in the Employment Equality Acts to prevent a claim being pursued
under both it and the Maternity Protection Acts.
The Court considered the case before each forum and found that they were
clearly grounded on the same facts. The doctrine of res judicata normally
prohibits a party from seeking to litigate the same issue twice. In other words,
the cause of action in the earlier action must be the same as that raised in the
second action for the res judicata or cause of action estoppel to apply. The
Court quoted Paul A. McDermott (Butterworth 1999, at p57) in this regard and
considered Gilroy v McLoughlin [1989] ILRM 133, Dublin Corporation v
Building and Allied Trades Union [1996] 2ILRM547 and Cunningham v Intel
Ireland Ltd [2013 IEHC 207.
The Court stated that the only question arising in this case is whether the
complainant was returned to the job that she held before the commencement
of her maternity leave and that that issue had already been the subject of
proceedings before the Rights Commissioner where the complainant was
successful and received redress in the form of compensation. The
complainant “cannot use the present proceedings to obtain an additional or
better remedy for what is undoubtedly the same wrong for which she already
has been compensated”.
The Court, even though it did not believe that additional points were being
taken in the proceedings before it, also addressed the matter of abuse of
process by fragmenting litigation stating that where a point of law or fact
should have been raised in the first case and was not, it cannot be raised in
the second case. I assume that this refers to the two claims before the
different fora in accordance with different legislation, i.e. the Rights
Commissioner and the claim before the Equality Tribunal / Labour Court. It
would not appear appropriate to interpret this as distinguishing between the
hearings at the Tribunal and the subsequent appeal at the Labour Court as
those are de novo hearings and new issues and evidence are often presented
at that stage.
The Court found that any cause of action that the complainant may have had
in these proceedings were merged in and extinguished by the Decision under
the Maternity Protection Act 1994.
Why is this case of interest:
 Section 101 of the Employment Equality Acts deals with alternative
avenues of redress but does not preclude separate claims under the
Maternity Protections Acts. This decision shows, however, that where
the causes of action are found to be the same then the cause of action
estoppel will apply.
 However, where the causes of action can be distinguished then the
rationale in this decision may not apply.
 A further consideration, not addressed in the Recommendation, is
whether the res judicata estoppel applies in its full rigour where the
rights being considered arise from two different EU Directives.
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Legal-Island would like to thank Bernadette Treanor, Managing Consultant,
Beo Solutions, for the main content of this article.
Tel: 00353 866024411
Website: www.beosolutions.ie
Bernadette Treanor is managing consultant with Beo Solutions undertaking
workplace investigations and providing an equality consultancy. As a former
Equality Officer in the Equality Tribunal Bernadette gained the expertise and
insights needed in considering equality related issues for clients and in
conducting thorough, detailed investigations and mediations. In the normally
difficult situations where an external investigator is required, employers can
hand the allegations over to Beo Solutions for the conduct of the investigation
and receive timely, comprehensive, reasoned reports. The investigations
conducted to date relate to allegations of bullying, harassment, sexual
harassment, in addition to misconduct and disciplinary matters and to both
public and private sectors.
Beo Solutions also provides training in relation to all aspects of dignity at work
policies and in particular training in workplace investigations. See
www.beosolutions.ie for more details.
LinkedIn: http://ie.linkedin.com/in/bernadettetreanor
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