Employment Discrimination

 

Employment Discrimination Law Advice Solicitors Dublin

The Employment Equality Acts 1998 (as amended) prohibit discrimination in a number of areas such as pay, vocational training, access to employment, work experience and promotion.

The Acts apply to:

  • full-time, part-time and temporary employees
  • public and private sector employment
  • vocational training bodies
  • employment agencies
  • trade unions, professional and trade bodies

The Acts also extend in certain circumstances to self-employed people, partnerships and state and local authority office-holders.
Specifically, the Acts prohibit discrimination in respect of:

  • recruitment and promotion
  • pay
  • working conditions
  • training or experience
  • dismissal and harassment
  • sexual harassment

What Is Employment Discrimination

Employment Discrimination, treating one person in a less favourable way than another person, is prohibited on the following grounds:

  • gender (man, woman or transsexual)
  • civil status (single, married, separated, divorced, widowed people, civil partners and former civil partners)
  • family status
  • sexual orientation
  • religious belief
  • age (does not apply anyone aged under 16)
  • disability
  • race, colour, nationality, ethnic or national origins
  • membership of the Traveller community

The Equal Status Acts 2000

The Equal Status Acts 2000 (as amended) prohibit discrimination in the provision of goods and services, the provision of accommodation and access to education, on any of the nine grounds set out below. The Equality (Miscellaneous Provisions) Act 2015 has inserted a tenth ground in the provision of goods and provision of accommodation only; the “housing assistance” ground. The Acts outlaw discrimination in all services that are generally available to the public whether provided by the state or private sector for example, banking, insurance, grants, transport and travel services.

Pregnancy Discrimination

Recent Cases before the WRC for Pregnancy Discrimination and Failure to make reasonable accommodation on the basis of disability.

One of the strongest protections in Irish law is around the protection of persons who have been discriminated against on the basis of pregnancy and/or disability discrimination.

The WRC and the courts will regularly vindicate the rights of employee who have been unfairly discriminated against.
Two recent cases have affirmed this.

15 September 2020 Case Reference ADJ-00026127

  • In this case the complainant commenced employment in October 2015.
  • She was promoted from an account/ hr administrator to a manager in 2017.
  • She reported to the general manager.
  • It was alleged that there was a number of incidents involving alleged sexual harassment and inappropriate text messages from the general manager from November 2018 to January 2019.
  • She was dismissed in October 2019 and was six months pregnant at that time.
  • There were a number of incidents of payroll admissions and the complainant alleges this was in the context of the difficulties with her manager.
  • The respondent employer set out that it was a genuine redundancy.
  • The allegations of impropriety of the general manager was denied in the strongest terms.

Findings of the WRC Adjudication Officer.

  • That there was no consideration of the business needs test or other evidence of the decision.
  • That they were not satisfied that a genuine redundancy situation existed.
  • That the complainant was presented with a final decision rather than an opportunity to make suggestions for alternatives.
  • That no right of appeal existed.
  • That she was unfairly dismissed.
  • That pursuant to Section 7(2) of the unfair dismissals act that she measured appropriate compensation at €60,000.

11 June 2020 Case Reference ADJ-00022851

  • In this case the complainant was an executive assistant working in a full-time permanent post.
  • She commenced employment on 23 November 1998.
  • She was diagnosed with obsessive compulsive disorder (OCD) which required periods of hospitalisation in 2008/2009 and again in 2012.
  • In 2015 she became pregnant with her first child.
  • Due to her OCD she had to avail herself of sick leave from August 2015 before commencing her maternity leave in November 2015.
  • Before she was due to return to work in 2016 she became pregnant with her second child.
  • As with her first pregnancy the complainant was recommended to take sick leave before commencing maternity leave.
  • Her second baby tragically passed away ten days after birth.
  • The complainant was due to return to work following her maternity and annual leave in July 2018.
  • She had medical requirements and informed HR of her disability and requested reasonable accommodation.
  • An appointment was made to meet with the company occupational health doctor.
  • The occupational health doctor informed her that the respondent employer would not allow her to work from home.
  • The Supports discussed included part time work and retirement on ill health grounds.
  • Her consultant psychiatrist informed that she was fit to return to work and that reasonable supports would be helpful.
  • Working from home was not accommodated and an appeal to speak to a more senior HR person was not facilitated.
  • After discussions between the occupational health professionals and her treating physicians it was suggested that she be retired on ill health grounds.
  • Detailed legal submissions including the supreme court in Nano Nagle School v Daly [2019] IESC 63 which set out in relation to reasonable accommodation as related to the law on disability were made.
  • The complaint submitted she was constructively dismissed.
  • The respondent set out that decision to retire was voluntary following advice from her treating psychiatrist.
  • The respondent set out that there were two competing claims under the equality acts and the unfair dismissals act and they were required to be rationalised.

Findings of the WRC Adjudication Officer

  • The adjudication officer set out that the complaint had advanced that she was discriminated against by her respondent employer failing to give her reasonable accommodation, and that the separate claim had been brought under the unfair dismissals act, and that accordingly there was no double compliant.
  • That they were not satisfied that reasonable accommodation as made on the basis on the disability, which was admitted, or any assessment made of her ability to work from home was carried out.
  • That another member of staff had been facilitated working from home for a short period.
  • That the appropriate redress was compensation for the effects of the discrimination.
  • That the complainant had not met the requisite burden of proof to establish constructive dismissal and she was not unfairly dismissed.
  • That the appropriate award for compensation for the effects of the discrimination was an award of €60,000 equivalent to one and a half years salary.

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