Diversity & Inclusion: Discrimination Case Law Review

Posted in : Webinar Recordings on 21 September 2023
Legal Island
Legal Island
Issues covered: Diversity and Inclusion; Discrimination

Do you think a WRC discrimination claim won’t happen to your organisation? If it does, are you prepared?

According to the 2023 Workplace Equality Survey, by Matrix Recruitment, a staggering one in five have said they have both witnessed and been a victim of discrimination in the workplace.

Nearly 500 employment equality complaints were received by the WRC in the first half of 2023, with disability, gender and race making up the bulk of complaints. And did you know that the majority of claims before the WRC are now held in public with names of both employers and employees published?

On top of this, the WRC can award significant compensation for employees who have been discriminated in the workplace – with some recent cases awarding up to €100,000!

At Legal Island, we believe that prevention is always better than the cure.

In this webinar, Laura McKee, Knowledge Partner is joined by employment law expert, Ciarán Ahern, Partner at McInnes Dunne Murphy LLP who:

• Provides a short discussion on the top employment discrimination cases this year

• Outlines the key lessons and recommended actions for employers

• Discusses how employers can implement robust policies and training for all staff on Diversity and Inclusion and hear how Legal Island can support you on this journey.

 ***Cases and links referred to in this webinar:***

Marta Siudak v Slane Trading Company Limited

Bartender v Bar

Brendan Beirne v Rosdera Irish Meats Group [2023] - Age Discrimination

Code of Practice on Longer Working

Daniel Asari v XYZ Retail Ltd







Laura: Good afternoon, everyone. You are very welcome to our Diversity and Inclusion webinar. Today, it's on Discrimination Case Law Review, which is sponsored by MCS Group.

My name is Laura McKee, and I work in the Knowledge Team here at Legal-Island. And I'm delighted today to be joined by Employment Law expert Ciarán Ahern, partner at McInnes Dunne Murphy LLP. Good afternoon, Ciarán, and thanks for being here.

Ciarán: Hi, Laura. Thanks for having me.

Laura: So, before we get started, let me tell you a little bit about Ciarán. He joined McInnes Dunne Murphy as a partner in September 2021 from A&L Goodbody Solicitors, where he trained and practised as an employment solicitor for 10 years. He has significant experience advising both employees and employers on all aspects of the employment relationship.

Ciarán is the current treasurer of the Employment Law Association of Ireland. He tutors and lectures on employment law at the Law Society of Ireland, and he regularly volunteers with the free legal advice centres.

So in today's webinar, Ciarán is going to look at the top discrimination cases that were relevant to the workplace in 2023, and some of the key takeaways for employers. So you will be exposed today to numerous examples highlighting the value and significance of implementing company-wide diversity and inclusion training for your workforce.

And while we understand that managing D&I training into an organisation might initially appear quite daunting, I am delighted to let you know that Legal-Island offers a comprehensive all-staff awareness-raising course that will greatly assist you on this journey. And more importantly, I'm delighted to say that Legal-Island will be offering a 25% discount to all of today's attendees.

So during my time at Legal-Island, I've witnessed an astonishing growth in demand for our eLearning training, and it's fantastic to see the number of delegates here today that are already current users of our eLearning programmes.

And I'd like to extend that invitation to those of you who are interested with overseeing staff training to reach out and receive that complimentary access to our trial of our D&I staff training course.

So if you're interested in receiving that demo access to our diversity and inclusion training course following this webinar, please go ahead and use the chat box now, and just type in "yes", and a member of our eLearning team will be in touch. It's a great opportunity to get access to the demo and to see what it is like.

So before we get started into the main event, I'd love your participation in a quick poll. My colleague Maria is going to put on the screen now the first poll. So the question is "Does your organisation currently provide all employees with diversity and inclusive training?" So yes or no. We'll give you a minute to fill that in.

And then the next question is "When was D&I training last delivered to all employees?" Was it less than 12 months ago, between 12 and 24 months ago, over 36 months ago, or never?

And the third question is "What factors restrict you from delivering all-staff D&I training?" Is it staff time limitations, logistical delivery, cost, senior manager buy-in, or it'll just never happen to us? As in a discrimination claim, you don't expect it ever will happen in your company.

So really appreciate your input there, and we're going to have results of those polls at the end of the webinar.

And just to remind you, if you do have any questions for Ciarán throughout the webinar, please do pop them into the question box, and we will have some time at the end to have a look through those.

I'll also be dropping into the chat box some of the links to the cases that we are discussing today. So don't worry if you don't want to take notes. You will get those links and you will also get a recording of the webinar in your post-webinar email.

So now, over to discussing some of the cases. Ciarán, I know we were discussing some of the recent discrimination case law that's been coming up the last number of months. The first case that we were chatting about, and I'd love to hear more about, is the Marta Siudak v Slane Trading Company Limited case. I understand this is a discriminatory dismissal case. Could you tell us a little bit about that?

Ciarán: Yeah, Laura. So this case involves an award of €17,500, or six months' pay, for the effects of discrimination after an employer fired an employee a few weeks after she had a miscarriage. So the adjudication officer in this case didn't believe that the employer had good cause to fire Ms Siudak on performance grounds, as they said they did, and found that there was an inference of discrimination that the employer couldn't rebut.

So I'm just going to go through the facts of this, hopefully briefly enough, because there are a few quite interesting nerdy legal points we can talk about at the end of this.

So the first thing to say is that Ms Siudak began working as Operations Manager with this wedding venue in around October 2021. She then, in December, told her employer that she was pregnant, and after that asked for a risk assessment because COVID was happening at the moment, there had been a recent outbreak in their workplace, and she wanted to ensure that she was in a safe working environment during the early stages of her pregnancy. So they agreed alternative duties with her and remote working with her in early January.

Now, unfortunately, at the beginning of February, she then suffered a miscarriage, and after taking some sick leave, she returned to work at the end of February. And then very shortly after that, she received a letter asking her to attend a disciplinary meeting, and her employment was terminated on 2 March.

It was terminated on performance grounds. The employer said that she had failed to effectively manage staff under her direction, that she'd failed to complete checklists and various tasks that had resulted in others having to complete her work.

So she was quite surprised by this. She filed two main complaints to the Workplace Relations Commission after this, one for unfair dismissal and one for discriminatory dismissal on gender grounds due to the pregnancy. And the employer's defence was that this was not discriminatory, but it was actually a performance-related dismissal.

So the adjudication officer in this case was pretty scathing of the employer's management of the disciplinary and performance process. The adjudication officer said there was no documentary evidence that the complainant was underperforming or that her job was in jeopardy in the lead-up to her being summoned to this disciplinary hearing and then fired on 2 March.

And the AO said that after she'd had this COVID risk assessment going, the change to an alternative role would've been an opportunity for her employer to flag at that point any performance issues. But the employer didn't raise any issues at that point, and they also didn't raise any issues about her probation at that point, because she was only in the business for a few months at that stage.

So when they were agreeing these new duties with her, they didn't raise any of these performance issues. And the adjudication officer said that that demonstrates that her performance was not under scrutiny at that time and the job wasn't in jeopardy.

Now, at the dismissal meeting itself with the employee, the employer referred back to an earlier meeting that they'd had in December, and a note that the manager had taken at that meeting. They tried to use this to demonstrate that there had been on-going performance issues.

Now, importantly, that note was never shared with the employee at the time. And actually, the adjudication officer took the view that the employer was really just trying to get that note on the record retrospectively, and they didn't necessarily believe that it had been written at the time they said it was.

So the adjudication officer sort of looked at this company's employee handbook and said, "Look, your own handbook allows you to make an audio recording of any performance meetings, but there was no audio recording at this performance meeting. And your performance policy also allows for an informal discussion and then a formal discussion about performance issues. These things didn't happen".

So basically, the employee said that she didn't believe that . . . There was a meeting in December, but she didn't believe that it was in any way disciplinary or performance-related.

So there was conflicting evidence here about the status of that earlier meeting. And the employee's account was found to be more credible because it was a lack of correspondence on any underperformance during her employment. And that wasn't good enough. It wasn't in line with the company's own policy.

 So the whole theme of the employer's evidence in this case was that they were trying to retrospectively make a case for underperformance. The AO found that there were no records of contemporaneous notes demonstrating this. And so basically, the AO found that the evidence established an inference of discriminatory treatment, and that the dismissal was related in some way to the complainant's gender and her pregnancy.

And although this inference can theoretically be rebutted by an employer, in this case, the adjudication officer found there wasn't sufficient, substantial, or cogent reasons for the dismissal from the employer's evidence, and six months of pay was made as an award for the effects of the discrimination on this lady.

So there are a few sort of themes that we could talk about arising out of this case. And the first is that this employee had taken two claims. She'd taken an unfair dismissal claim, and she'd taken a discriminatory dismissal claim. And of course, you're required . . . when it comes to arguing your case, you have to choose one of those claims to prosecute as an employee. You can't take two sets of claims arising out of the same facts for unfair dismissal or for discriminatory.

So she chose discriminatory dismissal rather than proceeding with an unfair dismissal complaint. And maybe one of the reasons for this was because compensation that could be awarded for these claims is different.

So in an unfair dismissal complaint, your compensation is based on your loss of earnings, whereas in a discriminatory dismissal complaint, your compensation is due to the effects of the discrimination.

So the evidence in this case was that the employee got a new role shortly after being dismissed. So her economic loss could have been quite small, and maybe that's why she decided to take this case.

And this could be something that we see a bit more of at the moment. Compensation is becoming a bit of an issue in some unfair dismissal cases, because we're at a time of full employment. Many people are getting new roles quickly regardless and despite how badly they've been treated by their employer. So maybe an unfair dismissal case isn't always a fantastic remedy.

So maybe people, if they have had experience with discrimination, may start choosing these types of cases for compensation reasons. That's just speculation on my part.

Laura: Brilliant. And so what do you think are the kind of main key lessons for an employer from this case then, Ciarán?

Ciarán: Well, performance management. You've got to maintain a record of documentary evidence to show that an employee is underperforming, or that their job is being scrutinised.

It's important not just to have a policy, but to read it, to know what's in it, to stick to it, and ensure your management are aware of it, and to be consistent with how you implement it.

Performance improvement processes are supposed to give employees an opportunity to improve their performance before you make a disciplinary matter and turf them out. And it's important that you would allow for that.

Laura: And like you said, making sure that everything is really well documented as well.

Ciarán: Absolutely. Yeah. I mean, this is important in terms of rebutting the burden of proof here. So in this case, where there's this discrimination, initially the burden is on the employee to raise a prima facie case of discrimination, to make some inference that something happened that the employer did that was potentially discriminatory.

Now, interestingly in this case, the adjudication officer cited Irish and European case law and said that women are to be afforded special protection from adverse treatment and from dismissal on account of their pregnancy, from the commencement of their pregnancy until the end of their maternity leave.

And the employee didn't necessarily even have to raise a prima facie case here. They said that it was enough that this dismissal took place while she was pregnant. The fact it took place while she was pregnant was enough to raise an influence of discrimination, and then the employer had to rebut that.

And the issue to be decided was whether the dismissal was in any way connected to the employee's pregnancy. Or were there legitimate, cogent performance-related reasons for her dismissal? And because the employer had no documentary evidence to speak of, then they couldn't get over that evidentiary burden, and they lost the case.

Laura: That's really interesting as well, the difference between discriminatory dismissal and unfair dismissal. So the burden of proof is different in both types of cases, is that right? A discriminatory dismissal, it's on the employee to prove. But obviously, in this case, the adjudication officer felt the employee had done enough to have a prima facie case. Whereas unfair dismissal, the burden of proof is on the employer to prove that the dismissal was fair.

Ciarán: Yeah. The initial burden is on the employee in a discrimination case to raise some prima facie example of discrimination, and then the burden shifts to the employer. Whereas, yes, in an unfair dismissal case, it's up to the employer. Any dismissal is automatically deemed to be unfair until an employer proves otherwise. That's in your straightforward unfair dismissal.

Laura: Brilliant. But it seems here in this case, because she was pregnant, and she was able to show an example, it was actually quite easy for her to overcome that hurdle.

Ciarán: Exactly.

Laura: Okay. Brilliant. Well, we might move on to the next case, which I understand is around disability discrimination. And it's Bartender v Bar. So this is one of the cases that's been anonymised before the WRC. Can you tell us a little bit about what that case is about?

Ciarán: Yeah, sure. So the complainant here resigned from her job, and she claimed she was subject to discriminatory constructive dismissal, and that the respondent had failed to provide her with reasonable accommodations during her employment.

So she was a bartender and she performed fairly standard duties, and opened the pub a few times a week and closed the pub on a Sunday. She suffered from stress, anxiety, depression, and insomnia, and she had been treated for this by her GP for several years. She was on medication.

This all pre-dated her employment. When she started employment with this bar, her supervisor was aware of all of this. The complainant asked the supervisor to just keep this sensitive medical information to herself, and was assured that it would be kept confidential, and that reasonable accommodations would be made for her.

And actually, part of her duties was to close the bar on a Sunday night. The complainant said she'd be quite anxious to close the premises alone, and asked if security could be provided.

And so, while her employer didn't want to pay the €20 per hour for a private security to be there all night, they did agree that a security worker could be sent over from a nearby pub, which was owned by the same group of companies. This person would come over 30 minutes before she closed the pub, and that would alleviate her anxiety.

This actually was quite a good example of reasonable accommodation being provided by an employer. And this resulted in the employer successfully being able to defend a claim from this employee that she hadn't been provided with reasonable accommodation during her employment.

The adjudication officer quoted Section 16 of the Employment Equality Act and stated that the meeting with the employee about this and making arrangements for her shifts of this private security, that complied with the employer's obligations in terms of during her employment, providing her with reasonable accommodation.

But now we go back to the main case, which was the dismissal. And on a Friday in August in 2021, this complainant said she was feeling low. She texted her supervisor stating that she was suffering from her mental health condition, and explained to her supervisor, "Look, if I appeared quiet today, my condition is acting up. That's why". And she said that's the only reason.

So the supervisor asked her would she be okay to open the bar the next day on Saturday, and she said she would. So on Saturday she attended for work, but after a few hours she felt worse. She was feeling overwhelmed. She said she could feel her hands shaking, she could feel her heart racing, she felt a panic attack coming on. And so she texted her supervisor saying that she couldn't continue her work that day due to her condition, and asked her supervisor if she could find someone to cover for her that day. Supervisor said she'd be in, in 45 minutes.

While the claimant was waiting for the supervisor to arrive, she received a voice note from the supervisor, and it quickly became apparent that the voice note was not meant for her, but was actually meant for another employee.

So the voice note went into quite a lot of detail about the complainant, that she was having a panic attack at work, and the supervisor was complaining about having to go in and cover. And the supervisor went on to say, "So I have to get rid of her now. I hate doing it, but the manager of the bar has said she has to go".

The supervisor told this other person that she was being paid extra that day to essentially go in and fire the complainant and tell her that the job just doesn't suit her at the moment. And when she gets better, her job will always be there for her.

So the complainant was surprised at getting this message. She didn't mention it to the supervisor when her supervisor arrived. She just left. The supervisor clearly wasn't aware that it had been sent. Later that day, the complainant texted the supervisor to say she got the voice note. The supervisor apologised, said she could return to work when she felt better.

The employer obviously realised pretty quickly that they'd made a huge mistake by sending this voice note, and they tried to manage that, and naturally enough, they met with the complainant, they told her that they hadn't made any decision to fire her, they hadn't intended to do so, and the managers in question didn't even have the power to fire her, even if they'd wanted to. They just didn't have that authority.

The complainant, though, was quite sceptical of all of these follow-up efforts. She felt her employer had made a decision that she wasn't suitable for her job because of her disability. She felt that the voice note made it clear that they planned to end her employment because of the panic attack that she had had that morning.

And the tone of the message really made her feel that returning wasn't an option. So she said, "Actually, it wouldn't be reasonable to expect someone like me with mental health issues to return to a workplace where there appears to have been an intention to dismiss me due to my disability, and where my disability appears to be the subject of discussion between employees despite repeated requests for confidentiality".

She actually said she felt there was a serious risk of deterioration in her condition if she returned to work. And so she didn't submit any internal grievance about this. A few months later, she resigned in December 2021, having never returned to work, and just resigned citing stress and humiliation she suffered following that voice note.

And the adjudication officer found that she had been discriminatorily constructively dismissed. So the adjudication officer said that the onus is on the complainant to prove that the conduct of the employer was so unreasonable that she couldn't fairly be expected to put up with it any longer and that she was justified in leaving.

And he said that the tone and language of the voice note would reasonably be considered to be deeply offensive and indicated an intention to dismiss her, and the evidence given by the respondent's witnesses just wasn't enough to rebut this.

The complainant resigned due to stress and humiliation. Her mental health condition hindered her from utilising the internal grievance process. That's what the adjudication officer said. And that there was very little follow-up from the employer in terms of convincing her to try and come back to work. She was awarded €10,000 compensation for the effects of the discrimination.

And there are a couple of points on this point, just a few practical points about this case. So the first is, as you know, at the top, Laura, this case was heard in private.

Laura: Yeah.

Ciarán: That can be quite unusual. The Workplace . . .

Laura: Why was that in this case?

Ciarán: Well, basically, there were special circumstances, and it was really the mental health issues identified in relation to the complainant. That's why the adjudication officer said that it should be held otherwise than in public, and the Workplace Relations Act provides for that, and that the parties wouldn't be identified on the website.

Laura: It is really interesting, this case, as well. I think the adjudication officer noted that it was actually not possible for the complainant to utilise the grievance procedure, which is usually required in constructive dismissal cases, due to her mental health difficulties. Is that quite unusual for the WRC to say that?

Ciarán: Yeah, I think so. I mean, again, in a constructive dismissal case, the burden of proof rests with the employee to show that their employer's conduct was so unreasonable that they had no choice but to resign from their employment.

And the first line of defence for an employer in a situation like this is normally, "Well, did you exhaust your internal remedies? If you had raised this issue with us before jumping the gun and resigning, we would of course have met with you. We have processes and procedures to deal with these types of things. We would've resolved it internally. There was no need for you to resign".

And often, constructive dismissal cases are really hard to win from an employee perspective because of this burden that's on an employee. So it is quite unusual, but again, the adjudication said that it was due to her mental health difficulties that she couldn't be expected . . . having been put through that ordeal essentially by her employer, that she couldn't be reasonably expected to just lodge a grievance about it.

Laura: And what was the award in that case again, Ciarán?

Ciarán: The award was €10,000. Now, it's not really . . . One second. I tried to work it out. She was being paid about €14 or €16 an hour. So it was approximately four months of pay in that case.

Laura: Okay. Four months. Great. Any other kind of recommended actions you think for employers following that case? Obviously, it highlights the importance of training employees as well in terms of social media or in terms of WhatsApp messages. Obviously, a very dangerous way to communicate internally about an employer-employee relationship. Anything else from you in terms of key lessons for employers on that?

Ciarán: I mean, additional leeway appears to have been granted to this complainant because of her vulnerable position and her disability. The fact that she said that returning to work might result in a deterioration in her condition because everyone was talking about her, that added to the view that her employer was unreasonable and that she was reasonable therefore in resigning.

This just adds to the common sense advice that employers should be particularly sensitive to those with disabilities, including mental health issues, when you're dealing with people.

Laura: Yeah. Okay, great. Well, we might move on to the next case then, which I understand is a hot topic at the moment on mandatory retirement ages, or forced retirement, I suppose, and age discrimination. So is this the Rosderra Meats case? I know we've discussed this before at Legal-Island, but it is such an important case in this area. What's this about?

Ciarán: Yeah, so this case involved a Mr Brendan Beirne, and he argued successfully that he was discriminatorily dismissed by Rosderra on the grounds of his age because they forced him to retire when he reached age 65, which was the contractual age of retirement in his employment contract.

He requested to work beyond his 65th birthday. He had a good record with the company, he was fit, he was healthy, he was able to perform all of his duties. He felt that he was treated less favourably than others who he said had been allowed to work past 65, and he suspected that because he was on superior employment terms and conditions because he had been part of a TUPE transfer and had been red-circled previously. But that was one of the reasons why the company rejected his request to stay for longer. He was essentially more expensive than other employees.

And the company's response to that was that he signed an employment contract, which had a mandatory retirement age of 65, he was subject to a collective agreement with SIPTU that stated that his retirement age was 65, and his pension scheme was also relating to age 65.

So Mr Beirne, though, when he approached the employer Rosderra about working beyond 65, they wrote back to him . . . they sent him a letter, and they just attached excerpts of these agreements noting the retirement age of 65. And they rejected his request to work longer, and there was no consultation or negotiation with Mr Beirne.

So at the WRC hearing about this, the company gave evidence and said, "Yeah, okay, a few employees have worked beyond 65 in exceptional circumstances". One employee worked for a few months longer because he had special skills as a lab technician, and he needed to train his replacement, and he left as soon as that replacement was trained.

They had a number of similar instances like that where people who had very specialised skill sets were kept on for a little longer because it was difficult to find a replacement, and they left when those replacements had been sourced.

The company said its mandatory retirement age of 65 was objectively and reasonably justified by a number of generic legitimate aims, which it listed and which it said were all appropriate and necessary, as per the usual language.

And the adjudication officer noted that it's well established nowadays that the imposition of a mandatory retirement age is on its face discriminatory. And in order for it to be lawful under the Employment Equality Act, this mandatory retirement age has to serve a legitimate aim or purpose, and the means of achieving that aim must be appropriate and no more than necessary. So everyone kind of accepts that, and the company was trying to demonstrate that.

The adjudication officer accepted the company's rationale for allowing a few people to work beyond 65, and accepted that the norm in the company is to retire at 65.

But the adjudication officer said, "Look, it's important that even if a contract has a mandatory retirement age, that doesn't mean that an employer has a unilateral right to enforce retirement against an employee's will".

And the key consideration is whether the employer can objectively and reasonably justify the decision to insist on retirement for that particular employee by reference to a legitimate aim. And the burden of proof in justifying this rests with the employer.

And the company had listed various objective grounds that it implemented that said, "This is why we need retirement at 65". And this included ensuring health and safety of staff and customers, creating certainty in succession planning, age balance in the workforce, freeing up jobs for younger workers to enter the workforce, etc.

But the adjudication officer said that company's reasons for enforcing this retirement age specifically against Mr Beirne were actually never put to Mr Beirne at any stage before the WRC hearing.

And the next bit is, the most important bit, he referred to the Workplace Relations Commission's 2017 code of practice on longer working. And the AO said that these generic legitimate aims that the courts have said are potential objective justifications for an enforced mandatory retirement age can't be used as a generic justification for refusing all requests to work past the normal retirement age.

So each individual employee that asks to work longer, you have to provide them with specific, personalised objective grounds why their requests are being refused, and you need to give the employee an opportunity to test those grounds before a final decision is made, and you have to even potentially allow an appeal.

The respondent here, the company, relied exclusively on the enabling clause in the contract, the clause that says, "Your retirement age is 65", and these collective agreements.

Because they didn't really engage at all with the individual employee, for that reason it was found that he was discriminated against, and he was awarded €30,000 in compensation.

Laura: Wow. And so in terms of a personalised objective justification, do we have any examples of what an objective justification looks like, or are they very vague?

Ciarán: No, I suppose it could be any of those that were identified by the company and that have been identified by the courts. They're saying that these are valid, but you have to put them to the employee and you have to allow the employee to kind of have a bit of an argument essentially with you, and a bit of back and forth and say, "Well, are you sure that this is the case? Are there definitely younger workers that need to come through here that mean that I have to retire?"

They just didn't do any of that. They really just were quite dismissive of this employee's request, and that is not what the code of practice asks for.

So the code of practice is very useful on a practical basis for employers dealing with these types of scenarios. It sort of sets out a best practice procedure for dealing with requests. So the learning here for employers is to get familiar with the code of practice on longer work, to make sure that you have a policy on retirement and a procedure to deal with requests for longer working. But a template procedure is almost provided for in that code of practice.

Laura: Brilliant. And I've dropped that into the chat box there for everyone to have a look at as well if you're not familiar with it.

Ciarán: I mean, the point being that the WRC expects employers now to be compliant with this code of practice on longer working. And if you aren't, they will, as happened here, hold it against you.

Laura: Okay. Really interesting. I think we have another case to discuss. Just a reminder to everyone, if you do have questions, please continue to pop them into the question box.

And also, just a reminder, if you want to access the free demo trial for our eLearning course on D&I, just put "yes" into the question box as well, and a member of our eLearning team will be in touch with you.

So the last case then, Ciarán, is on race discrimination. I understand this is under the Equal Status Acts.

Ciarán: Yeah. So this was a pretty egregious case as well. And there are two cases, Laura, that I might mention briefly. There's the Daniel Asari v XYZ Retail Ltd. And there's also a case that just appears to have been reported today of Catherine Kelly v An Post. They relate to different things, but the outcomes and the directions of the adjudication officers in both cases are quite interesting, and quite instructive for employers.

So the first case, Daniel Asari, this was an individual who reported an incident of racism in the provision of services to him under the Equal Status Acts. He was refused service at a Sweeney Oil service station in Galway on the grounds of race and colour. And he was racially abused by an employee of this service station. The adjudication officer found that he had been discriminated against in the provision of services to him. He was refused service at this petrol station.

And the unlawful discrimination by a staff member was then compounded by the employer in this case, in how they responded to the matter when it was raised with them.

So the adjudication officer found that, essentially, there was indifference and neglect in the handling of the complaints. The individual here complained to the company, as you were required to do in taking an Equal Status Claim. He complained to the company first about how he had been treated, and the company essentially denied ever receiving complaints from him repeatedly. They also refused apparently to deal with his solicitor.

So the adjudication officer found that their indifference and neglect in the handling of the complaints represented an attitude of inherent racism in this employer. And the pattern of humiliating treatment by their employee had been compounded by the employer's response to the complaint, which the response was found to be discriminatory.

So under the Equal Status Acts, the maximum award you can get for discrimination is €15,000. The adjudication officer here awarded €7,500, which is 50% the maximum award.

But what's most interesting almost in this case is that the adjudication officer made four directions to the company how they had to proceed following this incident.

So they have to revise their staff handbook within three months to include all of the grounds of discrimination contained in the Equal Status Acts. They have to include a policy within the staff handbook intended to deter discrimination against customers. They have set out consequences of finding discrimination against staff members. They have to introduce a complaint system for customers if they feel they've been discriminated against by staff. They have to provide training for all managers on the Equal Status legislation.

And they have to put a revised staff policy and the complaint system all in place before the end of 2023. Each member of staff was to receive the revised policy personally together with a copy of the complaints procedure.

So very specific and detailed requirements from the Workplace Relations Commission in that case.

Laura: This is the Workplace Relations Commission actually telling a company that they need to have D&I staff training, and they need to have policies in place, which is quite . . . Does the WRC actually have the power to order that, or was it more of a recommendation?

Ciarán: It appears to be an order. I'm not sure of the enforceability of it. But presumably, WRC inspectors would be made aware of these types of things and cognisant of them.

I mean, again, it's one of those things that if another complaint ever arose from a customer and the employer hadn't implemented this recommendation, it would look pretty bad.

Laura: Yeah, and especially because the company is named here as well.

Just moving on to that case that's just been published from the WRC, two years' compensation awarded against An Post. I'll drop in . . . there's a news article from RTE. Can you tell us a little bit about that? Quite a huge compensation. The maximum award, is that correct?

Ciarán: Yeah. And maximum award is extremely unusual. This award was really made as a deterrent. It was awarded against An Post due to essentially how poorly An Post had followed its own Dignity at Work policy, both at investigation and appeal stage of this complaint.

This was a very serious complaint that Ms Kelly put forward of repeated sexual harassment by a colleague. And An Post do not appear to have covered themselves in glory in how they handled it. The adjudication officer criticised the fact that an individual, a manager, who had been involved in the initial investigation was also involved in the appeal. But the whole thing was not investigated very early, it was dismissed, no findings were really made.

An Post, importantly, didn't stick to their own Dignity at Work policy. The adjudication officer said, "Look, An Post is a large organisation, and it has sufficient resources to ensure that its own policies are complied with". And basically, the evidence given by the witnesses put forward by An Post showed a lack of awareness of their own policy and a lack of training.

So as well as making this award of two years' pay, which is €53,560, which is the maximum allowed under the Employment Equality Acts, the adjudication officer directed that all An Post supervisors and management staff receive full training in their Dignity at Work anti-bullying policy.

The training had to include full guidance and practical steps in how a complaint should be dealt with. And a record must be kept of all those who received the training, and all new supervisors and managers must receive this training as part of their induction programme. Again, really specific.

Laura: Yes. And Legal-Island do have bullying training as well as part of our eLearning packages. So do check that out.

Well, look, we might move on to questions, because we're coming up close to time. Somebody's asking about the links to all the cases. They have been dropped into the chat box. Hopefully you can see them. If you can't, we will send them out to you in the post-webinar email.

A question came in, Ciarán, just before the webinar started, and you've kind of touched on this. Someone asked, "It would be good to understand the potential outcomes for findings against an employer in discrimination cases". So what is the maximum financial cost to an employer in such a case?

Ciarán: Yeah, so under the Employment Equality Acts, the maximum award that can be made is either €40,000, or two years' remuneration for that employee. So that's the maximum award.

Now, as I mentioned earlier, Employment Equality awards are made for the effects of the discrimination, unlike unfair dismissal complaints where an award of compensation is based on the employee's loss of earnings between the date they were dismissed and the date they got a new job, and maybe there's a little bit of an on-going loss if their new job doesn't pay as much as their old job.

But there are very defined and relatively strict parameters in how an unfair dismissal complaint is compensated. Those don't exist for employment quality cases. They are for the effects of the discrimination.

So within the bounds of two years of remuneration. It will depend on how egregious the discrimination has been, or the harassment, or whatever.

And again, there's case law to say that the penalties for Employment Equality cases should be effective, proportionate, and dissuasive. And you can see that in the Catherine Kelly v An Post case. The adjudication officer there, I think, quotes the [Coulson 00:43:15] case. And this was a dissuasive award. This was really to penalise an employer that the adjudication officer thinks should be doing better.

Laura: And you don't want to be that employer that's in that position.

Ciarán: No, you don't.

Laura: Okay. Next question is, "Do informal meetings need to be documented?" So this is going back to the first case, the Marta Siudak. What would your view on that be?

Ciarán: It depends if you've ever want to rely on them. I mean, whether you need to have a full case report or a full meeting note writing will be up to you. I suppose if it's an informal meeting, then it presumably doesn't form part of a formal process that would follow.

I mean, most performance processes would have . . . you would have an initial informal chat with someone, tell them to pull up their socks, and this is where they need to improve. If that isn't working, if the informal things don't work, then you switch to a more formal process where you would take note of your meetings, and let them see the notes of that, and put them on a plan, give them objectives that they're required to meet, and things like that, and hold them to those objectives.

But again, if you want to rely on a meeting at a future date, if you feel you may need to rely on this in order to justify a decision to terminate someone's employment or take disciplinary action against them, then yeah, even if it's an informal chat, maybe you want to just put a note in their HR file that, "We spoke on this date about this issue, and it was handled informally, and that was it".

Laura: We have a number of questions coming through. What we might do is maybe do written responses to them after because we're not going to get through them all today.

There is a question around probation. This comes up a lot. And it's, "Can an employer not dismiss during probation without fair procedures?" I would imagine that question comes across your desk quite a lot, Ciarán.

Ciarán: Yeah, and there have been cases now at the Labour Court and elsewhere where employers have been criticised for this. The Labour Court has said that there's a requirement at all stages of employment, even including probation periods, to dismiss with fair procedures, that fair procedures apply the whole time.

Now, there are maybe limits to what an employee can do in terms of enforcing their rights if they are dismissed during their probation periods. Obviously, the Unfair Dismissals Acts only kick in after 12 months of service, regardless of whether that's during a probation period or not.

So yeah, it would be advisable to go through some process with an employee in terms of dismissing them at any stage of their employment.

Laura: Yeah. Okay. Look, we're at time now, so we might just wrap up there. Thank you so much for all that information. That was very informative.

Maria will put the results of the polls up now, and we'll have a quick look at those.

So does your organisation currently provide all employees with D&I training? Sixty-one per cent say no, and 39% say yes. Okay, great. If you could go on to the next one, Maria. Interesting that most people don't at the moment.

When was D&I training last delivered to all employees? So the highest is never. Really interesting. And I think it shows from the case law today the importance of having training and policies in place for all staff.

And then the third question, "What factors restrict you from delivering all-staff D&I training?" Staff time limitations coming out at 46%, so quite a lot. Nearly 50% of people are saying staff time limitations. So that's really interesting to see that one coming out on top.

And I suppose the misconception of all-staff training in the past may have meant that general duties would be disrupted as staff would have to come together in groups to train. However, the training that Legal-Island provides on our eLearning platform actually allows employees to do their compliance training independently. So it's at a time that works for them and works around the employee's workload. Just something to bear in mind.

Again, just a reminder to put "yes" into the question box if you want access to the demo of our eLearning training following this webinar. We are also offering a 25% discount on our eLearning D&I training to all attendees today.

I just want to finish off by saying thank you so much to Ciarán for a very informative session and answering those questions. Thanks to Maria in the background for her tech support as well. And thank you, everyone, for attending today and for all of your questions. We'll see you next time. Take care.

Ciarán: Bye.

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This article is correct at 21/09/2023

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

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