WRC Equality Law Case Update October 2020

Posted in : Supplementary Articles ROI on 19 October 2020 Issues covered: Discrimination and Equality; Flexible Working; Equal Status

In 2019, the WRC received 439 complaint referrals under the Equal Status Acts 2000-2015, of which 97 involved a claim of discrimination on grounds of membership of the Traveller Community; this represents a 22% decrease from the previous year.  While the reasons behind this decline and a decline of 26% in Equal Status Acts complaints overall from 2018 are unclear, the WRC, as stated in the Work Programme 2020, is undertaking awareness-raising with regard to specific categories under the Equal Status Acts. The cases below illustrate some of the issues faced and what remedies may be available in successful challenges.

James McCarthy v Cork City Council - ADJ-00018849

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The Complainant sought relief under section 6 of the Equal Status Acts 2000-2015, on the basis that the Council had discriminated against him by reason of his gender and his membership of the Traveller community in allocating social housing.

The Complainant had been on the housing list for 22 years and 10 months. He was separated from his partner but retained custody of their two children. He also had a series of complex medical issues. Residing in a damaged mobile home, he submitted that he should have been a priority for rehousing.

The Council used a housing allocation system called ‘Choice Based Letting’ (CBL). This involves applicants entering their details into an online database, and expressing their interest in certain properties, which they are then considered for. In July 2018, the Complainant expressed interest in a house that was suitable for him and his family. He submitted that he was essentially guaranteed this house by the Respondent’s Traveller Liaison Officer.  However, the offer was rejected as the Council received information from a Garda source that the Complainant’s son had engaged in anti-social behaviour. According to the Council, this information precluded him from securing the house as he had failed the pre-allocation screening. The Complainant had no knowledge of this. He alleged that if he was from the settled community, or if he were a woman, he would not be left on the housing list for almost 23 years. He argued that the CBL was not ‘equality proofed’ and did not account for the Complainant’s situation.

The Adjudication Officer, Ms. Patsy Doyle, analysed the Respondent’s housing policy from the perspective of the Equal Status Acts. She noted that the Housing Authority could consider factors such as membership of the Traveller community, medical impairments and family size in prioritising allocation of social housing. Applicants of the scheme were informed that the Authority also took into account waiting time, transfer waiting list, preferred area, and family size and dwelling required. They were not told that Garda clearance was necessary.

The Respondent argued that the CBL system could not be discriminatory, as it could not break down bidders into categories such as gender or ethnic minority status.  Evidence was given by Ms. A, the Traveller Liaison Officer, and Mr. B, the Housing Officer on behalf of the Respondent.  Ms. A confirmed that the Complainant had not been medically examined by the Council for the purpose of prioritising allocation.  Mr. B acknowledged that the Complainant’s son was never criminally charged for the anti-social behaviour. He relied on ‘multiple complaints’ he received knowledge of as sufficient to refuse the Complainant’s offer.

Ms. Doyle was unsettled by the apparent lack of transparency within the allocation system; although the Respondent spoke of the Complainant’s file, this was not entered into evidence at the hearing. Further, Mr. B spoke of his unfettered discretion in allocating housing. The Authority also withheld the email purportedly linking anti-social behaviour to the Complainant’s son. Ms. Doyle found that the Respondent owed a duty of candour to the Complainant, who had established that his life expectancy was projected as linked to his chances of being rehoused. Even with this information the Respondent did not allocate a social house to the Complainant.

Relying on O’Brien v Iarnród Eireann DEC-S2003-029, the Adjudicating Officer inferred direct discrimination on the basis of imputed membership of the Traveller community from the Housing Authority’s canvas to continue bidding in the face of a real time offer in the Complainant’s preferred area. She inferred further discrimination from the Respondent’s handling of the complaint of anti-social behaviour. The Complainant was not given a chance to respond to these allegations, and the Council did not demonstrate “any threads of inquiry, intervention or prosecution” in relation to the allegation. She also found that the CBL was not blind to discrimination as the Complainant clearly applied for housing as a male member of the Travelling Community.

While she acknowledged that the Council had engaged with the Complainant and offered him a house in November 2019, Ms. Doyle awarded the Complainant €8,000 in compensation for the distress caused by the Council’s prohibited conduct. She also ordered that the Council review the CBL system and equality-proof it. She held that the complaint on the grounds of gender was not well-founded.

Whilst this case was not pleaded as ‘discrimination by algorithm’, as is so topical in recent weeks, it is an angle which could be raised in the future either as direct or indirect discrimination in fact-specific cases where an underlying AI formula directly or indirectly gives weight to a characteristic which is protected under the equality legal framework.

Marina McCarthy v Gurranabraher Credit Union - ADJ-00025710

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Adjudication Officer Mr Thomas O’Driscoll found that the Complainant was treated in a manner which “would not have been afforded to a person who was not a member of the Traveller community”. The Complainant engaged with the Respondent credit institution to obtain a loan refusal letter. She required this letter as she was seeking a grant from the City Council for a new mobile home for herself and her children. The eligibility criteria required applicants to be able to show two loan refusal letters from two separate institutions.

The Complainant engaged with the Respondent believing she was an active member. She gave her details to the receptionist who told her she would hear back in 48 hours. After no follow up, she returned to the Respondent’s premises who told her that her account was dormant, and she would need to reactivate it. She returned to the Respondent premises later the same day with Mr. O’C, a member of a Traveller Visibility Group. Ms. T, the senior manager of the branch, spoke to the Complainant and Mr. O’C in the public area of the premises. Mr. O’C offered €10 to be lodged into the Complainant’s account so she could obtain a letter, but Ms. T refused.  She stated that she could give the Respondent the letter she needed, but if she did, then “they’d all be looking for one”. Both Mr. O’C and the Complainant interpreted this to mean that members of Traveller community would be looking for one.

The Complainant gave evidence that she felt humiliated. Mr. O’C rang the Financial Ombudsman at the premises and made an internal complaint via the receptionist. The Complainant alleged that she was discriminated against under Section 3 of the Equal Status Act 2000-2015 on the basis that she was a member of the Traveller community.

At the hearing, Ms. T accepted that she knew the Complainant was a member of the Traveller community but denied treating her differently to another credit union member whose account was dormant.  The Adjudication Officer rejected this assertion. Mr. O’Driscoll pointed to a number of circumstances that favoured the Complainant’s evidence: the manager did not bring the Complainant into a private consultation room, the manager stood four feet away from the Complainant and did not shake her hand, although she did shake hands with Mr. O’C. Ms. T offered no cogent evidence as to why they refused to provide the Complainant with a loan refusal letter. The Complainant succeeded and Mr. O’Driscoll awarded her €5,000 for the distress caused by the events.

The above case reviews were written by Katie Cundelan – WRC Legal Intern and UCD Law and Social Justice Graduate. 

A Training Specialist v A Pharmaceutical Company [2020] ADJ-00025115

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This case provides a very clear, structured approach to the employment equality legal framework, which may be a useful reminder of the concepts for readers. It may also have particular relevance in the current climate in which flexible working arrangements may be permitted to deal with the pandemic context. It emphasises the importance of robust policies and clear communication between the parties as to the parameters of any such arrangements, a fair approach to decision-making around flexible working and due regard to equality law. The procedural aspect of the case around amending the Respondent name may also be interest to practitioners. Again, the case provides a comprehensive overview of the jurisprudence in this area.

As happens every so often in complaints before the WRC, the Complainant had named the incorrect employer in her complaint. The Adjudication Officer (Enda Murphy) then considered whether it was legally permissible for him to agree to the Complainant’s application to substitute the correct Respondent in this case.

The AO highlighted that statutory tribunals such as the WRC should operate with a minimum degree of informality and should not apply procedures that are more rigid or stringent than the ordinary courts. However, statutory tribunals like the WRC are also obliged to ensure adherence to fair procedures in the discharge of their functions: County Louth VEC -v- Equality Tribunal [2009] IEHC 370.

The AO noted that when deciding on this issue other factors needed to be considered including: whether the correct Respondent was aware or on notice of the proceedings in question, if they had an opportunity to be heard in relation to the matter and any prejudice which may arise if the substitution was allowed.

The Complainant’s employer was not prejudiced in any way in terms of its ability to defend the instant proceedings as a result of the misstatement of the name of the Respondent on the complaint form. The misstatement was no more than a technical error. The AO took the view that to decline jurisdiction in the pertaining circumstances that it would clearly amount to a “grossly disproportionate response” as referred to be the High Court in O'Higgins -v- University College Dublin & Anor [2013 21 MCA]. Therefore, the Respondent’s name was amended to reflect its correct legal title.

Substantive Equality Law Issues

1)     Discrimination on Disability ground

The AO considered whether the diagnosed stress that the Complainant was suffering from at the material time was a ‘disability’ within the meaning of Section 2(1) of the Acts. The AO applied the reasoning of The Labour Court in the case of Health Service Executive North West -v- Patricia Cullen Killoran EDA1830 around the definition of disability.

The AO was satisfied that he had not been presented with any medical evidence from which he could reasonably conclude that the stress which the Complainant was experiencing at the material time in question occurred as a result of an abnormality or malfunction, being either temporary or permanent in nature. Thus, the AO found that the Complainant had not been subjected to discrimination on the grounds of disability.

2)     Direct Discrimination on the grounds of Gender and Family Status

The Complainant claims that she has been subjected to discrimination on the grounds of her gender and family status in relation to the removal of her flexible working arrangement and the consequent requirement that she return to a 39 hour working week.

After her third and final maternity leave the Complainant mooted that she was thinking about resigning her position unless she was provided with a more flexible working arrangement to accommodate her family caring obligations. The Respondent agreed to reduce the Complainants hours to 23 hours over 3 days. The parties disputed whether this arrangement was a permanent amendment to the Complainants contract of employment or a temporary arrangement which had been put in place under the Respondent’s Flexible Working Policy.

The AO found that this arrangement was not envisaged as a permanent amendment to the Complainant’s contractual terms and that its continuation was contingent of the business needs of the organisation. Moreover, the Respondent’s Flexible Working Policy clearly provided that an employee who had been granted flexible working arrangements may at any stage be requested to return to normal working hours subject to the business needs of the organisation.

In deciding whether the alleged discrimination by the Complainant should be considered in the context of direct or indirect discrimination, the AO applied the reasoning of the Labour Court in Tesco Ireland –v- Swift EDA0514. The AO held that the Complainant had failed to establish a prima facie case of direct discrimination on the grounds of gender and family status. However, the AO was satisfied that the alleged discrimination in the context of the complaint was one which ought to be considered under the provisions relating to indirect discrimination.

3)     Indirect Discrimination

The AO was satisfied that “it is still the reality that mothers are more likely to fulfil the primary parenting role of young children than are fathers. In the circumstances, [he found] that it is reasonable to infer as a general proposition that women who have children find it more difficult to work full-time than fathers who have children and/or men without children.”

The AO found that the provision introduced by the Respondent i.e. the requirement to remove the Complainant’s flexible working arrangement which would have required her to return to work on a full-time basis put her at a disadvantage on the grounds of her gender and family status.

By application of the provisions of Section 31(5) of the Acts, the AO found that the Complainant had established a prima facie case of indirect discrimination on the grounds of gender only. He went on to apply the objective justification test set out in the case of Bilka-Kaufhaus Gmbh -v- Weber von Hartz [1986] ECR 1607 which an employer must satisfy to establish a defence in a claim of indirect discrimination.

Application of the objective justification test

First stage of the test: The AO recognised that the Respondent operates in a highly regulated industry in which it is of the utmost importance to have proper and effective levels of training accessible to its employees. Moreover, there was an urgent requirement to overhaul the Complainant’s Department in order to address a deficiency in training capacity and output within the overall organisation. Therefore, the AO found that the requirement to withdraw the Complainant’s flexible working arrangement was necessary to meet a real need within the Respondent’s organisation at the material time in question.

Second stage of the test: The AO noted that the Respondent clearly valued the Complainant as an employee and had provided a flexible working arrangement since 2015 after her return from her first maternity leave period.  The requirements and operational needs of the Respondent’s Training Department had changed following the review of staff training needs and that it was necessary to put measures in place to address this situation i.e. adjust employees flexible working arrangements. Thus, the AO held that the Respondent had satisfied the second stage of the test.

Third stage of the test: The Respondent did consider alternative means by which the objective in view could be achieved and that the Complainant was offered the option of taking parental leave for one day per week following the removal of her existing flexible working arrangement.

Moreover, the Respondent provided the Complainant with a period of almost three months’ notice prior to the proposed removal of her flexible working arrangement. The AO also took into consideration the Respondent’s evidence that it was not possible to offer the Complainant other alternatives such as job-sharing and that the recruitment of additional staff or redeployment of other staff members to perform the Complainant’s role, either in full or in part, was not a feasible option.

The AO found that the Respondent could rely on the defence of objective justification as it had established that the requirement to adjust the Complainant’s flexible working arrangement was necessary in the circumstances to achieve the requirement of implementing the urgent changes to its training structures.

4)     Discriminatory Dismissal

The Complainant relied on both the ‘reasonableness’ and ‘contract’ tests to ground her claim that due to the Respondents conduct she was entitled to terminate her contract of employment.

The AO found that the Complainant had failed to satisfy the burden of proof that she acted reasonably in the circumstances and that she had no option to resign from position because of the conduct of the Respondent.

In addition, the AO considered the Complainant’s claim in the context of the ‘contract’ test and did not accept that the proposed changes to her flexible working arrangement amounted to a repudiatory breach of her contract of employment.The Complainant resigned from her employment of her own volition, therefore, her complaint of discriminatory constructive dismissal could not succeed.

5)     Victimisation

The Complainant claimed that the detriment she suffered as a result of having raised this grievance was the removal of her sick pay and the refusal to send her to the Company’s doctor for a medical assessment. The AO considered the three components which must be present for a claim of victimisation as set out by the Labour Court in Tom Barrett -v- Department of Defence EDA1017.

The AO found that the Complainant did not take any action which could be construed as a protected act within the meaning of Section 74(2) of the Acts prior to the date upon which the alleged detriment actually occurred. Thus, the Complainant has failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts.

Evita Baikoua v Thomas O'Brien & Grainne Durham [2020] ADJ-00026767

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This case deals with discrimination and victimisation under the ESA, relating to a request from the Complainant to the Respondent to process her Housing Assistance Payment (HAP) application.

In this case, the Complainant submitted Housing Assistance Payment (HAP) application forms to the Respondent. However, the Respondent did not sign the forms and the AO found that this amounted to discrimination under the Equal Status Act on the housing status ground, finding in favour of the Complainant.

Additionally, the Complainant argued that she had been subjected to victimisation when the Respondent instructed the agent to make more regular inspections following her request for her HAP application to be processed.

At the top of the ES1 form it clearly states that it is notification under the Equal Status Acts and “[t]his document warns of a possible legal action.” The Respondent emailed their response on the ES2 form and stated “[a]s discussed on Friday, going forward we would like more regular inspections given the nature of this tenant and the present situation we are now in.” The AO held that this response on the ES2 form satisfied subsection (v) of Section 3 of the ESA. Therefore, the Complainant was victimised when the Respondent requested extra inspections.

With regard to the circumstances and the stress caused to the complainant, the AO ordered the Respondent to pay €5,000 to the Complainant in compensation for the effects of the discrimination and a further €5,000 for the victimisation in contravention of the Equal Status Acts.

IHREC’s recent work on the Housing Assistance Payment ground explores further inequalities in the area of housing and the challenges those in receipt of HAP may face both as potential and current tenants: www.ihrec.ie/discrimination-and-inequality-in-housing-in-ireland-set-out-in-new-research/

The above case reviews were written by Aisling Carey, WRC Legal Intern, and MSc in HR Management graduate.

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This article is correct at 19/10/2020

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