The Equality Tribunal published 4 decisions for January 2015.

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1 The Equality Tribunal published 4 decisions for January The Director of the Equality Tribunal has recently published the following Decisions of the Tribunal: Employment Equality Decisions Not Upheld: DEC-E : Mr. Syed Hashmi -v- Supermacs Ireland Ltd Grounds/Issues: Employment Equality Acts, 1998 to 2008 Section 6, 8 - discrimination of the grounds of race DEC-E : Healy -v- Irish Life Assurance Plc Grounds/Issues: Employment Equality Acts, 1998 to 2011 Section 79(3A) jurisdiction previous agreement setting all matters between parties DEC-E : Ms. Melanie O Grady -v- Kellsydan Ltd t/a McDonalds Grounds/Issues: Employment Equality Acts, 1998 to 2008 Section6, 8 discrimination on grounds of race, gender and family status promotion training and conditions of employment discriminatory dismissal DEC-E : Bednarczyk -v- Gem Pack Foods Ltd Grounds/Issues: Employment Equality Acts, 1998 to 2011 Sections 6, 8 and 16 discriminatory treatment gender maternity leave disability reasonable accommodation Adare Human Resource Management Commentary Case Law from the Equality Tribunal always provides a useful reminder to Employers of the appropriate procedures that they should have in place in order to defend themselves against claims of discriminatory treatment under the Employment Equality Acts. In January, unusually, there were no successful claims with no awards in financial compensation being made. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including Race, Access to Employment, Terms and Conditions of Employment, Disability and Reasonable Accommodation. We have highlighted two specific decisions in January of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts. Employment Equality Decisions Not Upheld: DEC-E : Healy -v- Irish Life Assurance Plc

2 Grounds/Issues: Employment Equality Acts, Sections 79(3A) jurisdiction previous agreement settling all matters between parties The Claimant John Healy was employed as a Representative with the Respondent from May 1985 to May He claimed that he had been discriminated on grounds of disability, age and marital status. In 2000, the Claimant issued High Court proceedings against his Employer. The Respondent disputed the claim on the grounds that in May 2011, prior to the Equality hearing, the parties had concluded a full and final settlement: of all claims by the Plaintiff (John Healy) against Irish Life in respect of his employment and the termination of the same as of 5 th May 2011, and permanent health insurance. 2) all claims by Irish Life against the Plaintiff in respect of his employment and the termination of same as of 5 th May 2011 permanent health insurance, (which is inclusive of statutory redundancy). At the hearing, the Claimant accepted that he had taken part in settlement talks that led to a full and final settlement being signed. He accepted that he had received a severance payment and a contribution towards his legal costs. However, the Complainant submitted that he was unhappy with the manner of the settlement, indicating that he had attended at what he were told were explanatory talks, there was no agenda for the settlement meeting and submitted that as he had no income and a family to support he was pressurised into accepting the settlement. In finding in favour of the Respondent, the Equality Officer stressed the meaning of full and final settlement and found that the Claimant could not ignore the obligations placed upon him by signing this agreement. The Equality Officer further noted that the Claimant had received all the monies that were provided for in this agreement and that the Claimant had the benefit of advice from his Solicitor and both Senior and Junior Council. The Equality Officer decided therefore that it did not have jurisdiction to hear this case. This case illustrates a question Employers frequently ask as to how they can ensure an Employee will not take a case against their Employer once the Employee s Contract of Employment is terminated. A severance / compromise agreement, provided it accomplishes a number of key principles, can prevent an Employee from succeeding in any later claim. As this case highlights, in order for a severance / compromise agreement entered into with an Employee to be considered binding and lawful, some of the key considerations which must be met include the Employee being advised to obtain independent legal advice or advice

3 from some other suitably qualified person with regard to the meaning and effect of entering into any such Agreement, absolute written clarity as to the specifics of any such Agreement entered into, allowance for a period of adequate consideration by the Employee, and a list of the various pieces of legislation under which the Employee is waiving his / her rights to future legal action against their Employer. Employment Equality Decisions Upheld or Part-Upheld: DEC-E : Bednarczyk -v- Gem Pack Foods Ltd Grounds/Issues: Employment Equality Acts, Sections 6, 8 and 16 discriminatory treatment gender maternity leave disability reasonable accommodation The Complainant, a Polish national, commenced employment with the Respondent as a General Operative in August She notified her Employer of her pregnancy in October/November, 2010, and was placed on light duties thereafter, prior to commencing maternity leave. The Complainant submitted that she spoke with her Line Manager (Ms. A) sometime in November She attempted to give Ms. A a letter confirming her intention to resume work on a certain date but that was refused. The Complainant submitted that Ms. A advised her that it was not necessary to confirm her intention to return to work in writing unless she intended to extend her period of maternity leave. This claim was rejected by the Respondent and added that the requirement to confirm an intention to return to work in writing is required under the Maternity Protection Acts. The Complainant submitted that she relied on this and added it was subsequently agreed that she would resume work on 9 th January, However, the Complainant did not resume work on that day as she was certified unfit for work by her GP. The Complainant submitted that she received a letter from Ms. B, a member of the HR Department dated 12 January, to advise that she had failed to comply with the return to work notification requirements under the maternity protection legislation and consequently the Complainant was not entitled to return to work with the Respondent. The Complainant submitted that the contents of this letter were not indicative of an Employer who wanted an Employee to resume work and that this amounted to less favourable

4 treatment of the Complainant on grounds of gender and that the Complainant received this letter because she was Polish an Irish Employee returning from maternity leave would not have received such a letter and that this constituted less favourable treatment of the complainant on grounds of race contrary to the Acts. The Complainant stated that she replied to this letter on 19 January 2012 to advise of the discussion she had with Ms. A in November 2011 and confirmed that she intended to return to work and asked for a date when she would be permitted to resume. The Complainant noted that Ms. B contacted her by letter advising that she was entitled to return to work on 27 th February 2012 and that on her return she would be required to participate in a return to work interview. At the hearing, the Respondent stated that the requirement for the Complainant to participate in such an interview was required under a revised provision in the Employee Handbook which had only recently come into operation and that it applied to all Employees returning after a prolonged absence. The Complainant confirmed that she remained on certified sick leave and that she never resumed work after her maternity leave, save for one day in October The Complainant stated that she had received a letter from Ms. B in May 2012 which requested her to attend an interview on 18 May to discuss her long-term sick absence in accordance with the Respondent s Sick Leave Policy. The Complainant submitted that the contents of this letter amounted to discrimination of her on grounds of gender, disability and race contrary to the Acts. The Complainant stated that she did not attend this interview and was unable to offer any explanation for this. The Claimant contended that the Respondent failed to provide her with reasonable accommodation in accordance with its obligations and submitted that her GP submitted that she should not lift items over 5k in weight which was rejected by Ms. B. In reply, the Respondent advised that the Complainant did not request a return to work or indicate she could resume duties with the provision of appropriate measures and rejected the assertion from the Complainant that Ms. B had previously refused such a request. In determination of its findings, and finding in favour of the Respondent, the Equality Officer accepted that the Respondent subsequently wrote to the Complainant on 27 January 2012 advising her that she could resume work on 27 February 2012, four weeks after the Complainant had furnished written notice of her intention to resume work. In supports of its findings, the Equality Tribunal referred to (i) the provisions of the Maternity Protections Acts, 1994 and 2004 which require an Employee to provide such written notice of their intention to

5 return to work and (ii) the Respondent Employee Handbook which also made reference to the requirement of an Employee returning from maternity leave to give a minimum of four weeks notice of her intention to do so. The Complainant did not comply with either of these requirements. Furthermore, in finding that the Complainant failed to establish a case of discrimination on any of the other grounds, the Equality Officer further noted the requirement to carry out a return to work interview with any Employee following a period of absence as clearly outlined in the Employee Handbook, that the Complainant was assigned light duties in November 2011 when she advised the Respondent of her pregnancy and was therefore reasonably accommodated and that the Respondent had taken a sensible approach to the Complainant being unfit for work and referred the Complainant to two medical assessment. The Equality Officer was also satisfied that despite the contradictory opinions provided, the Respondent did not in any way seek to force the Complainant to return to work. This case underlines the fact that in order to be entitled to return to work, an Employee is required to provide at least four weeks written notice of their intention to return. However, where an Employee fails to provide this written notification, the Employer should never simply accept that the Employee will not be resuming work. Best practice would recommend writing to the Employee, using registered post, seeking written clarification as to whether it is their intention to return to work. Such clarification should be sought in writing. While the Respondent did so in this instance, what is interesting in this case is that the Respondent when questioned failed to say why it waited until a few days after the Complainant was due to return to work (based on their records) before contacting the Claimant. On the balance of the evidence present, the Tribunal ultimately found the Employer had no case to answer for and the Claimant s various claims were not successful. The Employment Equality Acts 1998 to 2011, outlaw discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment and victimisation at work are also covered by the Acts. Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so. The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age,

6 Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community. Adare Human Resource Management is one of Ireland s leading Employment Law and Human Resource Management Consultancies. Our Equality and Diversity services include - Equality and Diversity Audit and Healthcheck - Review and Development of Policies and Procedures - Dignity at Work, Anti- Harassment and Sexual Harassment - Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment - Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice For further information in relation to our services, contact one of our HR & Employment Law Consultants info@adarehrm.ie /

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