Equality Tribunal awards €95,000 to employee for gender discrimination
Ms Claire Keenan worked for Mortgage Cabin as a mortgage consultant since February 2005. In December 2007 she informed her employer that she was pregnant. She was told on the 13th July 2008, whilst pregnant, that she was being made redundant on the grounds that ‘there wasn’t enough business to go around’. The employer had hired an additional employee six weeks before making Ms Keenan redundant. The equality officer found that the hiring of an additional employee shortly before making Ms Keenan redundant was not consistent with the submission of the employer that he was in serious financial difficulty at the time.
It was alleged that the employer had approached Ms Keenan in the weeks and months prior to the redundancy decision regarding not taking the full maternity leave entitlement. The equality officer was satisfied that the employer did take issue with the employee availing of her full maternity leave entitlements and did seek to put pressure on her to reduce her maternity leave or at least to work from home. In conclusion the equality officer found that Ms Keenan’s wish to avail of her full maternity rights was the catalyst for the redundancy and that she was discriminated against on the gender ground
The employer was ordered to pay Ms Keenan the sum of €95,000, the approximate equivalent of 12 months pay, to compensate her for the distress caused to her as a result of the discrimination.
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Employee who did not receive a written contract awarded €1200
This Employment Appeals Tribunal hearing took place in July and was an appeal of a Rights Commissioner recommendation. The employer, a pizza restaurant, hired a delivery driver through an advert in the restaurant window and employed him for just over 2 months. The employee worked in the restaurant carrying out general tasks as well as being a delivery driver. He never received written terms and conditions of employment and sought compensation for this.
At the tribunal hearing, a representative of the restaurant produced a copy of a contract which he said was usually given to delivery drivers but he could not say whether such a contract was given to the individual in this case. He said that these contracts ‘’were always there to be signed but he may not have signed one’’.
The tribunal was satisfied that in this case the individual was employed by the restaurant on a contract of employment and as such was entitled to receive written terms and conditions of employment in accordance with The Terms of Employment (Information) Act 1994. The individual did not receive these and therefore the tribunal upheld the Rights Commissioner recommendation and awarded €1200 to the individual.
This case highlights that employers need to be aware that they are required by law to give their employees written terms and conditions of employment, even for employees with relatively short temporary contracts. Apart from the cost of the award, the employer in this case also had to take time out to attend the hearings and prepare his defence. When you consider how economic and efficient a written contract can now be prepared, all employers are best advised to ensure that they are compliant.
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Sexual Harassment and Harassment at Work
Code of Practice on Sexual Harassment and Harassment at Work
A new code of practice on sexual harassment and harassment at work was approved by the Minister for Justice and Equality this summer. This provides guidance to employers on how to deal with the issue in their workplace and what to include in their policy. Bright Contracts have updated the default policy in the handbook to reflect these changes. The full code of practice is available at www.brightcontracts.ie/docs/codes-of-practice/ but I will take this opportunity to outline some important aspects and key changes.
Overview
The code states that an employer is legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless he/she took reasonably practicable steps to prevent sexual harassment and harassment from occurring, to reverse the effects of it and to prevent its recurrence. Employers who take the steps set out in the code to prevent sexual harassment or harassment, to reverse the effects of it and to prevent its recurrence, may avoid liability for such acts in any legal proceeding brought against them.
Although the code does not impose any legal obligations in itself, it’s provisions are admissible in evidence and may be taken into account in any criminal or other proceedings before a court and also proceedings before a Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Equality Tribunal and a Rights Commissioner.
Employers are encouraged to follow the recommendations in a way that is appropriate to the size and structure of their organisation.
Discriminatory Grounds
As with the previous code, there are nine discriminatory grounds, but ‘marital status’ has been changed to ‘civil status.’ The nine grounds are:
- Gender
- Civil status
- Family status
- Sexual orientation
- Religious belief or lack of religious belief
- Age
- Disability, lack of disability or the nature of disability
- Race, colour, nationality or ethnic or national origins
- Membership or non-membership of the Traveller community
Definitions
The definitions of harassment and sexual harassment have been updated.
“Harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
“Sexual harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
Non-Employees
The Employment Equality Act protects employees from sexual harassment and harassment by:
- the employee
- fellow employees
- clients
- customers
- other business contacts including any person with whom the employer might reasonably expect the employee to come into contact in the workplace. This may include those who supply or deliver goods/service to the employer, maintenance and other type of professional contractors as well as volunteers.
It is important for employers to consider the application of the code to non-employees. Employers are legally responsible for the sexual harassment and harassment of employees carried out by clients, customers or other business contacts of the employer.
A policy should point out that sexual harassment and harassment by non-employees such as clients, customers and business contacts will not be tolerated and may lead, for example to termination of contract, suspension of services, exclusion from a premises or the imposition of other sanctions.
The scope of the provisions also extend beyond the workplace, for example to conference and training that occur outside the workplace. It may also extend to work-related social events.
Communication
To effectively communicate the policy to employees, the code states that it should be part of the formal induction process and employers should consider an employee handbook to be distributed to all employees as part of the induction process. The handbook would need to be updated regularly to reflect relevant changes.
It states that the policy should include commitments to training staff on issues of sexual harassment and harassment.
The code recognises that the communication of the policy to non-employees is more difficult and has included some measures that the employer could consider.
The code also refers to ensuring the accessibility to policies and procedures, for example the translation of policies and procedures into languages other than English as appropriate or the provision of interpreters.
Defence
It is a defence for an employer to prove that he/she took reasonably practicable steps to prevent:
- the employee from being harassed
- the employee from being treated differently in the workplace or in the course of employment and, if and so far as any such treatment occurred, to reverse the effects of it.
In order to rely on this defence, employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also effective complaints procedures. The measures taken to put the policies and procedure into practice will also be taken into account by courts and tribunals. Employers will not be able to rely on an excellent policy if it has not been effectively implemented.
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High Court rules exploitation case worker is not entitled to €92,000 award
Muhammad Younis, from Pakistan had been awarded €92,000 by a Rights Commissioner who had found that he had been the victim of exploitation by his employer, the Poppadom restaurant at Newlands Cross in Dublin, by being underpaid and forced to work excessive hours.
The High Court ruled that he is not entitled to this award because his employment contract is substantively illegal. Mr Younis was a non-EU migrant worker and did not have a work permit. Mr Justice Gerald Hogan said he was concerned that the Employment Permits Act 2003 had perhaps produced consequences that were not foreseen or envisaged, because it meant that any employment contract involving a non-EU migrant worker without a work permit was substantively illegal
Siobhán O'Donoghue of the Migrant Rights Centre Ireland has called on the Oireachtas to address the problem with the Employment Permits Act urgently.
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NERA Activity from January to June 2012
NERA carries out workplace inspections to ensure compliance with employment rights legislation. The latest report includes some interesting details on the inspections that have taken place between January and June and the breaches uncovered.
• The amount of unpaid wages recovered over this period was €426,818.
• 45 cases were referred for prosecution.
• 31 convictions were recorded in cases heard by the courts over the period resulting in fines of €77,400 being imposed.
The report breaks down the employers they have inspected by sectors marking each sector with a compliance rate. The Catering sector with 215 has the most inspections by a distance and a compliance rate of 42%. This is followed by Construction with 130 inspections and a compliance rate of 51%, Agriculture with 62 inspections and a compliance rate of 42% and Retail Grocery with 61 inspections and a compliance rate of 48%.
NERA also operates a call centre providing information on employment issues. For the period January to June 2012, they provided information to over 33,900 people. The highest numbers of queries were in the categories of redundancy, working hours, terms of employment, payment of wages and unfair dismissal.
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Casino worker awarded €36k for unfair dismissal over pregnancy
The requirement to have a proper disciplinary procedure in place and to follow it, was reinforced by this recent decision from the Employment Appeals Tribunal.
The claimant Ayalamba Chocken claimed that she was dismissed from her job as croupier with the Fitzpatrick Club in Limerick, a few months after informing her manager that she was pregnant.
The EAT found that the employer did not employ fair or satisfactory procedures in the dismissal of the claimant and that gross misconduct had not been proven or satisfactorily established against her. They went on to say that the procedures were defective and could be said to be crude.
The Tribunal was unanimous in finding that the employee’s dismissal was wholly or mainly due to her pregnancy and awarded her €36,000 under the Unfair Dismissals Acts 1977 to 2007.
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Read more at www.irishexaminer.com >
Mechanic awarded €30K over age discrimination - No written contract
This case from the Equality Tribunal highlights once again the requirement for employers to use written contracts of employment to specify the retirement age for employees within the organisation.
Mr John O’Neill, a mechanic with Fairview Motors, successfully argued that he was discriminated against by his employer’s decision to unilaterally terminate his employment on reaching the age of 66. He had never been given a written contract.
Mr O’Neill also claimed that his employer discriminated against him on the grounds of age by refusing him permission to attend training courses whilst younger mechanics in the employment had been allowed to attend similar courses.
Bright Contracts – Employment contracts and handbooks
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Read more at www.irishexaminer.com >
Public Holiday Entitlements
Public Holidays
I’ve had some queries recently about what employees are entitled to for public holidays. In particular there seems to be some confusion as to what rules apply to part-time employees and I am aware that some employers are applying the rules incorrectly.
The rules on Public Holiday entitlement are set out in the Organisation of Working Time Act 1997. Employees are entitled to nine official public holidays per year. These days are as follows:
1. New Years Day
2. St Patrick’s Day
3. Easter Monday
4. May Bank Holiday
5. June Bank Holiday
6. August Bank Holiday
7. October Bank Holiday
8. Christmas Day
9. St. Stephen's Day
Employer’s Options
In respect of a public holiday the employee is entitled to whichever of the following the employer determines:
(a) a paid day off on the day in question; or
(b) a paid day off within a month of that day; or
(c) an extra day's annual leave; or
(d) an extra day's pay.
For example, if one of the public holidays listed falls on a day that is not usually worked by employees, such as Saturday or Sunday, the employer may decide on which of options (b) to (d) to apply, depending on the circumstances.
The employee can request, not later than 21 days before the public holiday, that the employer nominate which of the above options will apply to the employee in regard to an upcoming public holiday. If the employer fails to nominate one of the options 14 days prior to the public holiday, then the employee will automatically be entitled to a paid day off on the public holiday.
Determining Entitlement
All full-time employees are automatically entitled to public holiday benefit. Part-time employees qualify for public holiday entitlement provided they have worked at least 40 hours during the five weeks ending on the day before a public holiday. Employees who work or are normally rostered to work on the public holiday are entitled to a day's pay for the public holiday. Employees who are not normally rostered to work on the public holiday are entitled to one fifth of their normal weekly rate of remuneration for the public holiday.
Take, for example a public holiday that occurs on a Monday. An employee who normally works 24 hours a week based on 8 hours each Monday, Tuesday and Wednesday is entitled to 8 hours public holiday entitlement as the public holiday occurs on Monday, one of his/her normal working days. An employee who works 24 hours per week based on working 8 hours each Wednesday, Thursday and Friday will be entitled to 4.8 hours, which is one fifth of his/her normal working week as the public holiday falls on a day that he/she would not normally work.
Absence and Public Holiday Entitlement
Employees absent due to maternity leave, adoptive leave, parental leave, annual leave and jury duty accrue public holiday entitlement as if they were at work. Employees on carer’s leave continue to accrue public holiday entitlement for the first 13 weeks absence on carer’s leave.
The following type of absences occurring immediately before the public holiday will not be entitled to public holiday benefit.
• Absence in excess of 52 weeks due to occupational injury;
• Absence in excess of 26 weeks due to illness or injury;
• Absence in excess of 13 weeks by reason not referred to above authorized by the employer including lay off;
• Absence by reason of strike.
Termination of Employment
Employees who leave the employment during the week ending on the day before a public holiday, having worked the 4 weeks proceeding that week, are entitled to receive benefits for that public holiday.
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Payment in Lieu of Notice
To follow on from last week’s blog about notice periods, I thought I’d throw some light on how paying an employee in lieu of notice operates.
When an employee’s contract is put on notice of termination, be it through redundancy, dismissal or resignation, rather than the employee working for the specified period of notice, employers may prefer, for varying reason, to terminate the contract immediately. This would involve paying the employee up to the end of the specified notice period but terminating the contract with immediate effect i.e. paying in lieu of notice.
Waiving the right of notice
The Minimum Notice and Terms of Employment Acts 1973 to 2005 allows for either party to voluntarily waive their right to notice. For example an employee may want to leave before the notice period has expired and the employer agrees. In that situation the contract ends on the date the employee physically leaves the employment and the employer is not liable for any further payment beyond this date.
What the Contract of Employment states
Under the Minimum Notice and Terms of Employment Acts 1973 to 2005, in order for the employer to have the unilateral right to pay in lieu of notice a clause allowing payment in lieu of notice must be included in the contract of employment. If this clause is not included in the contract, then paying in lieu of notice has to be by agreement between the employer and the employee.
In a situation where an employee accepts an employers offer to pay in lieu of notice, the date the contract ends is the date on which the employee physically leaves the employment. However, the date that the notice would have ended, often referred to as the notional termination date, is the date that the employer must use to calculate normal pay due and to calculate the annual leave entitlement of the employee. In a redundancy situation where payment is made in lieu of notice, statutory redundancy entitlement must also be calculated up to the notional termination date.
There is a further issue to consider. If the clause allowing payment in lieu of notice is included in the contract, then the employee will be liable to pay tax on the notice period payment. If, however it is not included in the contract, but is agreed between the parties, then the payment for the notice period is not taxable.
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Notice Periods
One question that comes up time and time again is how much notice an employee has to give their employer when leaving the employment. The answer is quite simple, one week or whatever it states in the contract of employment.
There is no obligation for an employee to give any more than one week’s notice of their intention to leave a position so employers who don’t have a different period of notice specified in the contract/written terms and conditions of employment could find themselves short staffed at short notice.
There is an assumption amongst many, that the Minimum Notice and Terms of Employment Acts 1973 to 2001 dictate the length of notice, but it is important to remember that this only applies to employers giving notice to their employee. The regulations in this case are as follows:
• Length of Service from 13 weeks to less than 2 years: 1 week’s notice required.
• Length of service from 2 years to less than 5 years: 2 weeks’ notice required.
• Length of service from 5 years to less than 10 years: 4 weeks’ notice required.
• Length of service from 10 years to less than 15 years: 6 weeks’ notice required.
• Length of service of more than 15 years: 8 weeks’ notice required.
The contract of employment may specify a notice period that is different to what is set out in the regulations above. In that situation, the rule is that whichever is the longer is applicable. For example the contract may specify 4 weeks’ notice but if the employee has 10 years’ service the employer is obliged to give him/her 6 weeks’ notice in accordance with the Act. If however, the employee has 2 years’ service, then the length of notice will be 4 weeks as set out in the contract.
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