€7,500 awarded to disabled worker mocked on social media

A disabled employee for Mr. Price Branded Bargains has been awarded €7,500 by the Workplace Relations Commission (WRC) in a discrimination case brought by him under the Employment Equality Act when it was found a store manager had shared three recordings of the employee on a staff WhatsApp group for the enjoyment of colleagues.

The unnamed sales assistant was made aware of the recordings on 1 December 2015, by an employee who had by then left the company. He became traumatized and had to go on work-related stress leave and hasn’t returned to work since.

In defense, Mr. Price argued that one recording showed the complainant conversing with a customer and a second recording showed him behaving in a manner on the shop floor, which posed a health and safety risk for himself and others.

Finding

The Adjudication Officer in the case, Ray Flaherty, found that three video recordings of the man at work were shared by the shop manager for fun with staff "who had no operational need or entitlement to review the material".

“It is clear from viewing the recordings that not only was the complainant discriminated against on the grounds of his disability, but his basic right, and that of any employee, able or disabled, to the provision of dignity at work was seriously undermined.”

Learning Points

Under no circumstances should the mocking of an employee be condoned in the workplace - that goes without saying. In this case as the manager shared the video footage via WhatsApp, and the fact that the employee that reported the videos only did so after they had left the company, highlights the importance for employers to have a social media policy in place detailing what is or is not acceptable, and how to report any breaches of a policy as soon as they happen.

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Be careful of discrimination in job interviews

Having a wide range of interview questions is vital to find out as much information about a candidate as possible to assess whether they have the right skills and attributes for the role. When conducting an interview you may veer off your pre-set questions when building rapport with a candidate and to do a little digging in some areas, however asking the wrong question could leave you at risk of a hefty discrimination claim.

Marital and family status, sexual orientation

Although it may seem friendly asking if a candidate has a family or children it is not suitable for an interview. Asking such questions may leave you appearing more favorable to someone who may seem more stable or someone who might not have family commitments.

 Do you have or plan on having children? What childcare arrangements do you have?

The job may require some overtime at short notice. What days/hours are you available        to work? Can you travel?

Place of birth, race, religious beliefs

Again, employers may think they are being friendly asking questions like: where are you from originally? Or do you get to visit home often? But be warned that any questions surrounding birthplace, background or religious beliefs can lead to discrimination.

Where were you born? What religion do you practice?

Are you eligible to work in Ireland? What languages do you speak or write fluently?

Gender, age

Asking a candidate questions about their gender or age in relation to their ability to do a particular role is discrimination. If there are certain challenges to a role you may certainly ask about their ability to handle those situations but never imply that their gender or age may affect this.

We’ve always had a man/woman in this role. Do you think you can handle it? How              many years do you think you’ll have left until you retire?

What can you bring to this role? What are your long term goals?

Location, disability, illness

You may think asking questions regarding where a candidate lives and how far/long it will take to commute to work is innocent but asking these questions could cause discrimination relating to a neighborhood heavily populated by an ethnic group or social class. Also asking questions around gaps in a candidate’s employment is acceptable, but asking questions around a disability and how it may affect their capabilities to do a job is not.

How far would your commute be? Do you smoke/drink?
Are you able to start at 9 am? Have you ever been disciplined due to alcohol/drugs?

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Forced to retire at 65? I don’t think so

John Glavey V Connaught Airport Development Co Ltd

A court recently fined Connaught Airport Development Co Ltd €6,500 for the unfair dismissal of Mr. Glavey, a veteran barman who was forced to retire from his role as a senior bartender at 65 years of age. Mr. Glavey had been working in the bar at West Airport Knock since 1991. Although the airport did not have a policy on retirement age, they said that it was custom for all employees to retire at 65.
Mr. Glavey argued that not only was there no retirement age stated in his contract of employment but with the state pension at 66 years there is a requirement on him up to 66 years to be available for work. At the age of 65, Mr. Glavey was fit and well and had no difficulty carrying out the duties of his job. It was heard that Mr. Glavey had been one of few employees that held a 39 hour per week contract as opposed to new recruits on temporary/part-time contracts.

Finding

The Labour Court found that as the airport firm had ample opportunity to inform Mr. Glavey of a requirement that he retire at age 65 he was unfairly dismissed by reason of his age and awarded him €6,500.

Learning Points

As an employer, you must ensure that if you do have a compulsory retirement age in your contracts that you have a legitimate reason, and can objectively justify your retirement age. In the past courts have ruled reasons such as health and safety or security as objective reasons; however, what will be acceptable reasons will differ from company to company. Should you require your company to have a retirement age, be sure to re-assess your reasons and have clear, sensible explanations for doing so.

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Proposal to ban zero hour contracts

Wednesday saw the approval of draft legislative proposals to ban the use of zero hour contracts. The proposal sees the ban on zero hour contracts in most circumstances and huge fines for employers for the misuse of them. The proposal brought to the cabinet by Minister for Jobs, Enterprise and Innovation Mary Mitchell O’Connor and Minister of State for Employment and Small Business Pat Breen, aims to stop the exploitation of, particularly low-paid and vulnerable workers.

The new proposal is a result of research conducted by the University of Limerick, in which they found that the use of zero-hour contracts has significantly increased in recent years. The research found that zero-hour contracts do cause issues for employees, namely uncertainty of earnings week to week. This can have a number of knock-on effects for the employee, including their ability to apply for a mortgage or their entitlement to sick pay or holiday pay.

In an effort to address these issues the draft legislation proposes a number of changes including:

•  If an employee comes to work and is sent home, they will be compensated for three hours pay at three times the national minimum wage.
• Employers will be required to provide employees with clearer information about the nature and core terms of their employment arrangements within five days of commencing a job. This will include the expected duration of the contract and what the employer reasonably expects the normal length of the employee's working day and week will be.

Zero-hour contracts or if and when contracts, can offer some businesses the flexibility to manage their workforce, particularly where work demands fluctuate. The concern for small employers now is that this flexibility may be taken away from them and that they may endure significant costs if work is not available.

Although the changes may take some time to come into effect when they do they will be the most significant changes to modern employment legislation.

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