Diversity & Inclusion: Discrimination Case Law Review - Your Questions Answered!

Following on from his hugely popular webinar, on 20th September 2023, Ciarán Ahern, Partner at McInnes Dunne Murphy LLP takes the time to answer your questions:

Catch up on the recording below:
https://www.legal-island.ie/articles/ire/resources/webinars/2023/september/diversity--inclusion-discrimination-case-law-review/

Question 1

The case of Daniel Asari v. XYZ Limited, seems like a blatant case of racial discrimination. Have you any idea's on why the maximum award of 15k wasn't given? Is there certain aggrevating/mitigating factors the WRC take account of? Surely if they are trying to deter this behaviour the book needs to be thrown at people who fall foul, especially when they deny any wrong-doing. 

Yes, I agree it seemed like platant discrimination. The AO indicated that they had reduced the award as it seems Mr Asari may have not been fully up front about exactly what happened and may have contributed to the second situation. I'm not exactly sure why, but the AO said the following: In arriving at a Decision that the Complainants complaint is well founded and then awarding redress I do take account of the fact that I am satisfied that Mr Asari did engage actively in a dispute with P on the second night and his ES1 form and the impression of his evidence at the hearing was that the dispute on the second night was also concerned with buying diesel. No evidence was provided of purchasing diesel was provided and if it was purchased the dispute and refusal of a service on the second night was down to what sandwich he requested-something he omitted to mention until put to him by Mr Killeen. Mr Asaris evidence on that point was somewhat evasive. I am satisfied on the balance of probabilities that the issue of discrimination on the second night is down to the racist language used by P towards the Complainant during an altercation and not any unjustified refusal of service on race grounds. This does not mean that racist abusive language towards Mr Asari by P can be justified or was not discriminatory.

Question 2

If an employee tells you they are currently suffering from mental health issues but says they are ok to continue working but as an e/r you have concerns, can you make them take sick leave / annual leave? How to address this - it is a sales/KPI environment so would a proven dip in activity by the e/e assist?

I don't think you could force someone to take time off. However, if you had reason to do so, you could refer them to your company doctor to determine their fitness to work. If they had been out of work for a period of time you could make this a condition of their return to work. Otherwise you would probably have to deal with this as part of a performance improvement process, but may need to make reasonable accommodation for the employee as to penalise them on the basis of performance when they will be able to say the reason for underperformance is their having mental health issues may be deemed to be discriminatory. A very tricky area. 

Question 3

Would you advise to keep both hard copy and soft copy of employee files? The  company I am going to start with just have files online.

I don't think there's any need to hold hard copy files, unless you wanted a backup as a failsafe. Under the Electronic Commerce Act electronic copies and signatures on contracts are equally valid. 

Question 4

Aren't the WRC going outside of their scope to give directives to employers, are they not just there to make a determination on the case?

I wasn't necessarily aware of this myself, but under section 81(2)(e) of the Employment Equality Acts an AO is authorised to order that a person or persons specified in the order take a course of action which is so specified. This appears to be just as binding as an award for compensation. 

Question 5

Hi both, great webinar. Can I ask if there have been any interesting cases in relation to the 'return to the workplace'-type scenarios following on from the pandemic?

I haven't seen many cases on this actually, but here is one interesting one: https://www.rte.ie/news/business/2023/0821/1400871-worker-left-in-limbo-during-pandemic-awarded-30-000/ 

Question 6

Can you speak about Menapause in the workplace and the potential disicrimination associated with this?

There is no specific requirement for employers to have period or menopause-friendly policies or protections for employees. However, there are growing calls for this to change. The Trade Union Forsa have called for Menstrual Health Policies in all workplaces (https://www.forsa.ie/forsa-calls-for-menstrual-health-policy-in-all-workplaces/) and the Labour Party has called for Reproductive Health Leave (https://labour.ie/news/2023/02/03/without-paid-miscarriage-leave-women-will-remain-disadvantaged-in-the-workplace) 

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