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Casework Activity 2008doc - Equality Authority

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Casework Activity 2008doc - Equality Authoritydoc

Casework Activity

2008

Employment Equality Acts, 1998 2008

A. Decisions

     1. Gender

     victimisation 1.1 Access to promotion

    Heather Lane v MBNA

    1.2 Working Conditions/Victimisation and Victimisatory Dismissal

    Emma Conlon v Sheldon Park Hotel

     2. Race / Gender

    2.1 Cross appeal to the Labour Court

    Bozena Czerski v ICE Group

    2.2 Working Conditions Dismissal

    Marilyn Ramos v Promowear/Caramba Ltd

     3. Age

    3.1 Access to Promotion

    John Fagan v Office of the Revenue Commissioners

    3.2 Colm Power v Blackrock College

B. Settlements

     1. Race

    1.1 Advertising

    Equality Authority v Mayo Advertiser, Wind Farm Civils Ltd

    1.2 Application for Registration to a Professional Body

    A Complainant v A Professional Body

    1.3 Conditions of Employment, Working Conditions

    Mr Patrick Maphoso v Chubb Ireland Ltd

    1.4. Access Employment

    A Complainant v A Recruitment Company

     2. Age

    2.1 Appeal by An Post to the Labour Court

    James Dunne v An Post

    2.2 Advertising

    Equality Authority v Niall Mellon Township Trust

    2.3 Access to Promotion

    A Teacher v A Secondary School

    2.4 Dismissal

    An Employee v A Company

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     3. Disability

    3.1 Vocational Training

    A Complainant v A Third Level College

    3.2 Conditions of Employment, Failure to provide Reasonable

    Accommodation and subsequent Dismissal

    An Employee v A Voluntary Body

    3.3 Dismissal

    An Individual v An Organisation

    3.4 Access to Employment

    A Complainant v A Prospective Employer

    3.5 Disability Working Conditions

    A Female Employee v A Flower Shop

     4. Sexual Orientation

    4.1 Access to Promotion

    Dr Eibhear Walshe v University College, Cork

    4.2 Harassment Victimisatory Dismissal

    A Complainant v An Employer

     5. Membership of the Traveller community

    5.1 Access to Employment

    A Complainant v A Hotel

     6. Gender

    6.1 Equal Pay

    A Complainant v A State Organisation

    6.2 Working Conditions and Victimisation

    A Worker v A Retail Store

    6.3 Dismissal

    An Employee v An Employer

    6.4 Advertising

    Equality Authority v Nixer.ie and Virgin Vie At Home

     7. Mixed Grounds

    7.1 Gender and Race Pregnancy Dismissal

    An Employee v An Employer

    7.2 Gender / Family Status - Conditions of Employment, Working

    Conditions

    A Claimant v A Professional

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Equal Status Acts 2000 to 2008

A. Decisions

     1. Mixed Ground

    1.1 Family Status and Gender - Provision of Service

    Marie Flanagan Talbot v Killarney Cineplex

     2. Age

    2.1 Access to Financial Services

    Phyllis Fahey v Ulster Bank

     3. Disability

    3.1 Accommodation - Private

    Gabriel Moloney v Park House Hotel

    3.2 Circuit Court Decision

    Provision of Accommodation, Discrimination on grounds of

    Disability, Reasonable Accommodation, Time Limits Appeal to

    Circuit Court from Decision of Equality Tribunal.

    A City Council and a Claimant thJudgement of Judge Hunt, 15 April, 2008

     4. Traveller

    4.1 Provision of Accommodation

    Christina Boland v Killarney Town Council

    4.2 Amicus Curiae

    High Court Decision

    Lawrence & Ors. v Ballina Town Council, Mayo County Council and

    Ors.

B. Settlements

     1. Age

    1.1 Access to Grant

    Maureen McNabola v Health Service Executive and Department of

    Health and Children

    1.2 Insurance

    Equality Authority v Mondial Assistance

    1.3 Provision of Service

    Brother Anthony White v Irish Car Rentals

     2. Gender

    2.1 Ms Lynda Sheridan v Irish Life Assurance Plc

     iii

     3. Disability

    3.1 Accommodation

    A Claimant v A County Council

    3.2 Access to Service

    Elizabeth Golden v Just Beds Ltd

    3.3 Access to Education

    A mother on behalf of her son v A Special School and the Department

    of Education and Science

    3.4 A Complainant v A Travel Agent and a Tour Operator

    3.5 Provision of Service

    Birte Schulz v Hapag Lloyd Express

    3.6 Provision of Service Education

    A Complainant (on behalf of her daughter) v A National School,

    Department of Education and Science, National Council for Special

    Education (NCSE) and the National Education Welfare Board (NEWB)

Intoxicating Liquor Act 2003

    District Court

A. Decisions

     1. Membership of the Traveller Community

    1.1 Paul Maughan v Michael Warde’s Public House

B. Settlements

     1. Membership of the Traveller Community

    1.1 Access to Public House / Restaurant

    Three Members of a Traveller Family v A Public House

    1.2 A Member of the Traveller community v A Public House

    1.3 Mr JS v A Public House

    1.4 Mr AC v A Public House

     2. Disability

    2.1 Mr B McG v A Public House

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    Employment Equality Acts, 1998 2008

    A. Decisions

1. Gender

1.1 Access to promotion victimisation

Heather Lane v MBNA

    The complainant worked in the customer care section of MBNA. She became pregnant and while on maternity leave met with her manager to discuss applying for a promotion which had arisen. The manager discouraged her from applying for the promotion and told her a person with a degree was required although this was not a requirement in the job specification. The complainant withdrew her application but later found that the successful person did not hold a degree.

    On return to work, the complainant found that her manager although giving her good assessments in monthly one to one meetings was not putting her forward for promotion or a pay rise. She complained numerous times but he fobbed her off with promises that the pay rise/promotion would be given soon. In a telephone call the night before she was due to return to work after her pregnancy, the complainant was assigned to work in the payroll section at the same grade although she had clearly stated that she was not happy with a lateral move. She arrived at work to find she had no desk, no phone and no real work. She complained but the situation continued for a number of weeks. She was again promised a pay review within six months but this did not happen.

    When she had still not been promoted she escalated the matter. Various meetings with her manager, his supervisor and the complainant failed to resolve the issues and the complainant remained in her original position. Her complaints were not taken seriously and she was told the issue was a miscommunication.

    In March 2005 the complainant announced that she was pregnant. The following month her head of department told her that her appraisal had been refused because of her attitude. The complainant was upset and left work with a stress related illness. After her manager left the company the complainant met with the head of department and HR and claimed that she had been treated unfairly because of her pregnancy.

    The complainant did not subsequently receive a promotion/pay rise. Her complaint was investigated by the company who found that she had been mismanaged but not that she had been discriminated against because of her pregnancies. The Equality Authority subsequently wrote to the respondents on behalf of the complainant and a complaint was lodged with the Equality Tribunal. The complainant also claimed that the employer‟s part of the PRSI contribution was not paid while she was on maternity leave. The company rectified this in respect of the complainant but not other employees.

    In March 2007 the complainant was informed that she was to be made redundant from 31st May, 2007. She claimed that the company made no real efforts to redeploy her. She was subsequently asked to sign a redundancy agreement which would waive

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    away her rights to make a complaint under the Employment Equality Acts. As the complainant had already lodged a complaint under the Acts she refused to sign the agreement and was paid a reduced redundancy package.

    The Equality Officer found that the complainant had been discriminated against because of her pregnancies and that she had been victimised. He awarded her ?17,000 in compensation for the discrimination, ?33,000 (equivalent to one year‟s salary) for victimisation and adverse treatment, and ?6,315.84 being the difference

    between the basic and enhanced redundancy package. The total amount of the award was therefore ?56,315.84.

1.2 Working Conditions/Victimisation and Victimisatory Dismissal

Emma Conlon v Sheldon Park Hotel

     rdMs Conlon began work in the Sheldon Park Hotel on 23 November 2005 where she

    regularly worked two shifts per week. Prior to commencing her employment with the hotel, she was advised that the correct dress was a white shirt and black skirt but it was agreed that as she did not have a black skirt, she could wear black trousers for the time being. After three shifts her manager informed her that she must wear a black skirt or she would no longer have a job. Ms Conlon complied with this instruction for the remainder of her employment with the hotel although she had made it clear to her manager that she did not feel comfortable wearing a skirt.

    Ms Conlon went to the Equality Authority to seek advice on the matter. The Equality Authority wrote on her behalf to the hotel submitting that the requirement for women to wear skirts was discriminatory on the gender ground. The Equality Authority pointed out that Ms Conlon was anxious to resolve the matter amicably if at all possible and would be satisfied if the policy requiring women to wear skirts was changed. However, the Equality Authority received no response whatsoever.

    Subsequent to sending of this letter, Ms Conlon experienced a dramatic reduction in her shifts and within a short period was left with no shifts at all. She attempted on numerous occasions to speak to both her manager and the general manager but with thno success. Approximately a month later on 9 April she received her P45 in the post

    with no covering letter and no reason was ever furnished for her dismissal. The Equality Authority wrote to the respondent seeking an explanation but again received no reply. The hotel denied the allegation of discrimination and victimisatory dismissal at the hearing of the complaint. They submitted that their policy, contained in their employee handbook, was that female waiting staff could choose to wear a skirt or trousers. Ms Conlon denied any knowledge of the employee handbook. The hotel also claimed that they were unhappy with Ms Conlon as an employee.

    The Equality Officer in his decision found on the balance of evidence given that an instruction was given to the complainant that she must wear a skirt. In this regard he took into account the fact that Ms Conlon had sought to resolve the matter by changing the policy to allow her wear trousers. The Equality Officer considered the approach set out in Labour Court Determination No. EED0314: “Applying that principle whether or not a dress code is discriminatory, it is the Court‟s view that the appropriate approach is to consider if it applies a common standard of neatness,

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    conventionality and hygiene to both men and women and does not unreasonably bear more heavily on one gender than it does on the other.” However, the Equality Officer found that the respondent‟s stated policy contained in its handbook was not

    implemented for Ms Conlon and no operational reason was given why she was instructed to wear a skirt. The Equality Officer found that discriminatory treatment had taken place.

    In considering the victimisation and victimisatory dismissal, the Equality Officer found that there were no disciplinary issues that would have warranted the complainant‟s dismissal, and also that no explanation for a reduction of shifts and dismissal was provided. The Equality Officer found that given the short time between the letter from the Equality Authority and the first shift being taken away and subsequent dismissal, and in the absence of any other credible explanation, that this amounted to victimisation and victimisatory dismissal. The Equality Officer stressed the seriousness of the victimisation and victimisatory dismissal that took place in this case. In his decision the Equality Officer awarded the complainant ?1,600 in compensation for the discriminatory treatment and ?6,500 compensation in respect of

    the victimisation and victimisatory dismissal.

2. Race / Gender

2.1 Cross appeal to the Labour Court

Bozena Czerski v ICE Group

    Ms Bozena Czerski applied for assistance from the Equality Authority in respect of an appeal of Equality Officer Decision (DEC-E2006-027) brought by herself and ICE Group to the Labour Court.

    The original case taken by Ms Czerski to the Equality Tribunal was on the basis that ICE Group had discriminated against her on grounds of race and gender when they failed to submit her name for a job with a client company because she could only provide one work based reference. ICE Group had required two work based references. The Equality Officer found in her favour on some but not all grounds on th13 June 2006 and awarded her the sum of ?7,000.

The Equality Officer found:

    i. the complainant had failed to establish a prima facie case of discrimination in

    relation to her assertion that she was directly discriminated against by the

    respondent on grounds of race and gender.

    ii. the complainant had failed to establish a prima facia case of discrimination in

    relation to her assertion that she was indirectly discriminated against by the

    respondent on grounds of gender

    iii. the respondent indirectly discriminated against the complainant on grounds of

    race contrary to section 31 of the Employment Equality Act, 1998.

Ms. Czerski appealed the decision that she had failed to establish a prima facia case

    of discrimination on grounds of gender and that she had failed to establish a prima

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    facia case of indirect discrimination on grounds of gender. She did not appeal the decision of direct discrimination on race grounds.

    The Ice Group appealed against the Equality Officers decision that the complainant was indirectly discriminated against on the grounds of race.

    The Authority granted assistance to Ms Czerski for the appeal and submissions were filed.

Background

    Ms Czerski is originally from Poland and came to Ireland in 1986 following her marriage to an Irish resident. She did not work in Ireland outside the home until the year 2000. In that year she applied for and was given a job as a production operative. In 2001 she was notified that this company was closing its manufacturing plant in Ireland. As last in, she understood that she would be among the first to be let go.

     thIn the week beginning 6 August 2001, the Ice Group placed an advertisement in the Western People newspaper looking for temporary production operatives on behalf of a client company. Ms Czerski replied to the advertisement and was sent a Database Registration Form to complete. On the form she provided details of one referee, however the form required two references.

     thMs Czerski, who was still in employment at this stage, attended for interview on 20

    August where she claimed she discussed the issue of the reference with the interviewer. She said that she could only produce one work based reference in Ireland i.e. her current job. She said that she was not asked for a character reference.

    The following day she rang the ICE Group and was told there was no position available but that her application would be held on file. Subsequently people in her company were recruited for the advertised jobs. Ms Czerski‟s name was not submitted on the grounds that she could only produce one reference. However ICE Group claim that they did ask for a character reference in lieu of the second work based reference.

     thThe Labour Court hearing took place on 19 February 2008. The conclusions of the

    court were:

    i. Direct discrimination on gender grounds:

    The court is not satisfied that the facts as presented are sufficient to

    raise an inference of discrimination. Therefore, it finds that the

    complainant has failed to establish a prima facia case of direct

    discrimination on gender grounds

    ii. Indirect discrimination on race grounds:

    In making its findings under this ground, the Court accepts the

    respondents evidence that it did inform the complainant that a

    character reference would be acceptable as one of the references. In

    those circumstances the Court cannot see how a non-national would be

    placed at any greater disadvantage than a national.

    iii. Indirect Discrimination on gender grounds

    …..having a criteria ….which is applied rigidly…..may lead to

    circumstance in which an employer or recruitment agency will breach

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    the provisions of the Act. However, in this case the respondents rigid

    rule was softened by their requirement that a character reference

    could be furnished if no employment reference was available. In the

    circumstances of this case the Court does not find the requirement to

    have two references, one of them a character reference, to be

    discriminatory.

    For the reasons set out above the court finds that the respondent did not discriminate against the complainant.

2.2 Working Conditions Dismissal

Marilyn Ramos v Promowear/Caramba Ltd

    The complainant worked as an embroidery machinist with the company from 2001 to 2003 when she went on maternity leave. There were difficulties and misunderstandings surrounding her return date after maternity leave. Due to complications with the birth, Ms Ramos needed to take some additional time. When ms Ramos and her partner approached the employer they were told that neither were connected with the company any longer. Ms Ramos‟s partner had worked with the

    company but his employment had been terminated earlier. They both thought therefore that ms Ramos was also no longer employed by the company. No explanation was given for dismissal.

    Ms Ramos brought her complaint to the Labour Court contending that she was treated less favourably on grounds of gender and race in that she was summarily dismissed while on maternity leave. The respondent contended that ms Ramos left her employment voluntarily and after the period when both the pregnancy and maternity leave had concluded.

    The Labour Court in its determination ruled that the complainant had not established the facts from which it can be determined that she was dismissed from her employment and consequently found that she had not been dismissed in circumstances amounting to discrimination. Determination No. EED061.

    The complainant decided to appeal the determination of the Labour Court on the grounds that it erred in law and/or in fact as follows:

    (i) in determining that the Plaintiff had not established discrimination on

    grounds of gender and race;

    (ii) in determining that the Plaintiff had failed to establish that she had

    been dismissed on grounds of gender and/or race contrary to the

    Employment Equality Act, 1998;

    (iii) in determining that the Plaintiff’s protective leave/maternity leave

    ended on the 8th September 2003;

    (iv) in determining that the termination of the Plaintiff’s employment

    occurred outside the period of her protective leave;

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