Discrimination Case Law: Doherty v St John of God Community Services
St John of God was ordered to pay €45k for refusing to allow a pregnant employee to work remotely during the pandemic.
In this blog post, we will discuss the facts, and what employers should do to avoid any claims.
Facts
The employee, in this case, claimed that her inability to work from home during the Covid-19 outbreak and her role change constituted discrimination based on her family situation. She explained that she believed she was given no choice but to take sick leave. She was not given the same options as other parents or other pregnant women such as reduced hours, using zoom calls to contact service users as an alternative, and especially working from home.
She said in a conversation with her supervisor she was told that if she couldn’t work from home her only option was to take sick leave even though other staff in her department were allowed to work from home. Even after sending in her sick cert, she was asked to participate in Zoom calls, attend to phone calls and text messages and contact other staff. After this, she took ill, with stress and upset a factor, and had to be hospitalised.
In July 2020 a colleague contacted her about coming back to work, initially at a site that facilitated social distancing, but she was contacted being told she was being transferred to a more public-facing role which was not ideal for someone who is 30 weeks pregnant.
Note for Employers
Employers should establish clear policies and procedures to manage remote work. Policies should establish guidelines and expectations in order to ensure fair and consistent practices, as well as legal compliance when decisions are made based on the role’s suitability for remote work.
Bright Contracts has a Working from Home policy in the “Terms and Conditions” section of the Handbook.
Related Articles:
How to Prevent Discrimination in the Workplace
WRC Annual Report 2017 – The Facts and Figures
The Work Place Relations Commission have published their third annual report, outlining the key performance metrics relating to complaints filed and decisions made across the employment realms.
One of the bigger achievements made by the WRC is a dramatic reduction in the length of time it takes to get a case to resolution. When the WRC was established in October 2015 it could take a case up to 2 years to secure an outcome whereas now, once submissions are received, it is taking less than 6 months.
Other Key Facts
• €1.8 million was recovered in unpaid wages; up €300,000 on the previous year
• 4750 workplace inspections were carried out, either announced or unannounced with over 99,000 employees covered by these inspections
• 14,001 complaints were received by WRC relating to:
- Pay – 27%
- Unfair Dismissal - 14%
- Discrimination and Equality - 11%
- Terms and Conditions of Employment – 8%
• Over 52,000 calls were received on the WRC information hotline, with just under half of these relating to employment permit queries.
• There were 4,370 adjudication hearing’s; up 24% on 2016
It is now almost three years since the formation of the WRC, and from the above figures it is clear that they are well into their stride and making significant inroads in terms of their objective of promoting the improvement of workplace relations, encouraging compliance with relevant employment and equality legislation. As such it is imperative that employer’s have the proper records in place in case of an inspection.
Solution
Bright Contracts allows the user to create and customise contracts of employment and company handbooks, this covers part of your obligation as an employer under current Employment Legislation.
To book a free online demo of Bright Contracts click here.
To download your free trial of Bright Contracts click here.
How long should you retain employee data under GDPR?
The General Data Protection Regulation (GDPR) will come into force on 25th May 2018, legislation with new rules and guidelines on how to protect and process personal data. Employee personal data held may include: name, address, phone number, email address, emergency contact details, PPS number, bank account details etc.
The GDPR requires that when retaining and processing personal data there must be lawful reasoning for doing so. In terms of processing employee data employers are likely to rely on a number of lawful reasons, mainly: to fulfill contractual obligations, legal obligations or other legitimate interests. Under data protection legislation employee data should be kept for no longer than is necessary, for the purpose that it was retained. However, when deciding how long to retain personal data employers should be guided by employment legislation.
So how long should I retain employee data?
Written Terms of Employment – 1 year
Employers must retain a copy of this statement throughout the employee’s employment and for one year after termination at a minimum.
Payroll details and Payslips – 6 years
Records, calculations and documents relating to the value of benefits for employees must be kept for 6 years in the event of an audit by Revenue. The WRC may also inspect these in an audit and seek evidence that employees are supplied with payslips.
Hours of Work – 3 years
Details of days and hours worked each week, annual leave and public holidays taken and payment received for same. Rest break records and/or records of notification of employees being fully informed about rest break entitlement and procedures if rest break is unable to be taken.
Maternity and Adoptive Leave Records – none
While there is no set period of the retention of data on maternity leave or adoptive leave records, claims can be made within 6 months of employers being informed of an issue giving rise to a dispute or extended to 12 months in exceptional circumstances.
Parental Leave – 8 years
Records of Parental Leave, including the period of employment of each employee and the dates and times of the leave taken, must be retained for 8 years.
A more detailed list of Employee Record Keeping Requirements can be viewed here.
Where legislation gives no guidance on record keeping requirements, employers should carefully predetermine, and include in any employee privacy notice, how long and the grounds they will use for retaining that data. For example; an employer may decide to retain all performance review records for the entire duration of an employee’s employment to monitor employee performance.
Whatever the reasoning behind retaining employee data – whether it be legal or other business reasons, employers need to ensure they have a clear policy outlining their reasoning, that this is easily accessible to employees and that the policy is consistently applied.
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Is it discrimination to top up maternity pay but not paternity pay?
September 2016 saw the introduction of Paternity Leave, that for the first time ever allowed fathers/partners to take two weeks paid leave on the birth of a child / placement of a child for adoption. Paternity Leave is paid at the same rate as Maternity Pay, currently €235 per week*, leaving it up to employers to decide whether or not they wish to top-up pay during the two weeks leave. The question then arose that if by topping up maternity leave, would an employer by default have to top up paternity pay?
A recent Workplace Relations Commission (WRC) case involving a transport company, provides useful guidance on the answer to this question.
In this case a male employee brought a case under the Employment Equality Act claiming discrimination on the grounds of gender due to the fact that the employer topped up maternity pay but did not top up paternity pay.
However the WRC Adjudicator held in favour of the Company, stating that maternity leave is different to paternity leave and that “the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law”. The Adjudicator concluded that the employer was entitled to make special provisions for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts.
Conclusion
This case gives the green light to employers who wish to offer a maternity top up but not offer the same for paternity leave. Whatever it is you decide on, employers are advised to have clear paternity and maternity leave policies in place that is accessible to all employees.
*The rate of maternity/paternity pay will increase to €240 per week from end of March 2018.
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€15k awarded in discrimination case to pregnant employee
The Labour Court found that the sacking of a manager from Wrights of Howth’s Crabby Jo’s restaurant was tainted with discrimination and have awarded compensation of €15,000.
Background
The employee was on a 6 month probationary period when she was fired just 3 months into her employment, very shortly after informing her bosses that she was pregnant.
No issues had been raised about the employee’s performance, however poor work performance was used as the reason for her dismissal on the 15th of June. The employee felt that the atmosphere had changed completely after she had announced her pregnancy on the 8th of May, she had requested a meeting to discuss her concerns she had over this. She was given no opportunity to make any representations or defend her position and was simply informed, without warning, that her employment was terminated.
In its ruling, the court found that no issues had previously been raised about the employee’s performance prior to her notifying them that she was pregnant and she had not been subject to any disciplinary warnings or action. The court originally awarded €30,000 for discrimination based on gender, however this decision was appealed and a lesser figure of €15,000 compensation was awarded due to the manner of the dismissal and the serious lacking in adherence to the restaurant’s own disciplinary procedures.
Learning points
It is important to recognise that disciplinary procedures must be followed at all times, regardless of how simple or difficult a situation may seem to be. It can end up being a very expensive mistake for an employer. Bright Contracts has comprehensive Disciplinary and Grievance procedures, customisable to companies requirements, built into the software.
How to avoid harassment in the workplace
The recent allegations against Harvey Weinstein n the US have created somewhat of a snowball effect worldwide with thousands of women and men speaking out about their accounts of sexual harassment and assault, many of them being work related. Allegations involving high profile individuals and people in authority have demonstrated just how widespread a problem this has become across all industries and professions and has exposed a sinister culture of silence, fear and acceptance which we must now turn on its head.
The Employment Equality Acts clearly defines sexual harassment as: forms 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.
It is important for employers to ensure that harassment will not be tolerated and to portray this to their employees and clients. Employers are therefore compelled to take steps to ensure a harassment-free work environment. Effectively, organisations must set down clearly defined procedures to deal with all forms of harassment including sexual harassment.
There are a number of steps an employer can take to help prevent this type of behavior from occurring in the workplace:
A Bullying and Harassment policy
- to protect the dignity of employees and to encourage respect in the workplace
An Equal Opportunities policy
- to create a workplace which provides for Equal Opportunities for all staff
A Whistle-blowing policy
- to enable staff to voice concerns in a responsible and effective manner.
Transparent and fair procedures throughout
Disciplinary action
- A sanction that is appropriate for the level of alleged harassment – to help try and change the culture of silence that has allowed harassment to become normal and protected.
Provision of on-going training
- At all levels within organisation
Bright Contracts has a fully customisable Staff Handbook, which includes a Bullying and Harassment Policy and also an Equality Policy and Whistleblowing Policy.
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Be careful of age discrimination in job adverts
Age discrimination in job advertisements has become an increased issue recently and employers need to ensure they are acting lawfully under the Employment Equality Act, 1998. Such discrimination can be seen in advertisements that exclude people applying for certain roles based on their age. Specifically advertising for younger or older people not only limits your chances of finding the right candidate but also discriminates against people of certain ages and a claim can be made against you to an employment tribunal.
Ambitious Young People
Using phrases like “ambitious young people” or “youthful and energetic” straightaway excludes people from a certain age bracket to apply for these roles. These phrases clearly deter older, suitable persons from applying for such roles. With thousands of job advertisements asking for “recent graduates” it discriminates against someone who may have graduated over 10 years ago, but would also be highly suited for the position.
5+ Years’ Experience
Many young people are finding job advertisements that show clear signs of age discrimination impossible barriers to apply for these roles and getting a foot on the career ladder. If a job advertisement asks the candidate to have 5 years + experience in a particular role it could be seen as discriminating against someone who hasn’t yet had the opportunity to gain that experience as they are too young.
Learning Points
When writing a job advertisement it must be carefully written so that the criteria for the role doesn’t make it impossible for, or discourage a certain age group to apply. There are special circumstances where you may look for a particular age group to apply, and in these instances, you must have a justifiable reason or certain necessary requirements of the role and these must be clearly included in the advertisement.
For further information on how to avoid discrimination in your recruitment process please see here.
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4 Reasons why contracts of employment are needed
We’ve heard all the excuses before; “I’m too busy and don’t have the time”, “It’s too expensive to implement contracts”, or “I only have four employees, I don’t need to provide employment contracts”. If you are an employer you are obliged to provide your employees with a written statement of terms of employment.
We have compiled the 4 most important reasons why contracts of employment are needed.
It is a legal requirement
Under the Terms of Employment (Information) Acts 1994-2014, as an employer you must provide a written contract of employment to a new staff member no later than 2 months after their commencement. Employers must also provide employees with written disciplinary procedures, and procedures that the employer will follow when dismissing an employee, within 28 days of the employee starting. These procedures may be included in the employment contract or in the company handbook.
Protect your business against costly disputes
Having contracts of employment in place offers your business protection in the case of a dispute. A dispute can escalate to the WRC, where not having clearly documented terms of employment can really leave you wide open as an employer. If you are found not to have contracts of employment in place for your staff you will face a fine of 4 weeks’ pay per employee. In the case of a dispute, employers could face fines equating to two years remuneration - the maximum compensation award.
Protect your company against WRC inspections
Approximately 5,000 workplace inspections are carried out by the WRC every year, with 60% of them being unannounced. During a WRC inspection, the first thing they will ask to see is a copy of your contracts of employment. In 2016, 62% of employers failed to keep adequate employment records. Inspectors may issue on the spot fines for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence.
Instills confidence in you and your employees
In terms of the employer/employee relationship, the contract of employment is the most important thing you’ll ever deal with. It is the foundation stone of the employer/employee relationship. Having contracts of employment in place will clarify certain conditions for you and your employee so that both parties are aware of what is expected of them. Having contracts in place will also instill confidence in you, knowing that you are doing everything you can do to protect yourself and your business in any situation that may arise.
It is never too late to put contracts of employment in place. Read our blog “How can I introduce contracts to existing employees?” and follow our 4 simple steps here.
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Employee awarded maximum unfair dismissal compensation
The Labor Court has recently ruled that a driver was unfairly dismissed after he was involved in three road accidents. The driver was awarded €72,042, equating to two years remuneration - the maximum compensation which could be awarded.
Background
Mr. Coughlan was employed as a van driver for DHL for 11 years. In 2012 he was involved in a road accident to which he received a written warning. In 2013 he was involved in a second road accident where he received a final warning. The warnings were ‘live’ for 12 months, after which they expired. The claimant was involved in a third road accident in 2015 to which damages to the van amounted to €2,500. By that time both previous warnings had expired and he was brought into a disciplinary hearing for “failure to protect and safeguard company property”.
During the hearing Mr. Coughlan took responsibility for his misjudgment which led to the accident. Throughout the hearing numerous references were made to the expired incidents. Mr. Coughlan was dismissed with immediate effect for gross misconduct on the basis that he had failed to protect and safeguard company property.
Finding
The WRC found the dismissal unreasonable and ordered reinstatement. At the appeal to the Labor Court, DHL argued that they had no other choice but to dismiss Mr. Coughlan as their faith in his driving abilities was lost. Although his previous warnings had expired, the company felt that they had to take his entire working history into consideration. The Court determined that the 2015 incident, in isolation to the previous warnings was not sufficient to dismiss. It also took into consideration the company’s failure to consider alternative positions within the organisation for Mr. Coughlan.
Learning Points
This case highlights something we see time again, the importance of practicing fair procedures when considering dismissal. It highlights the importance of employers showing that they had considered alternative roles where possible before dismissal – something that is often noted in unfair dismissal cases. Lastly, the enormous amount awarded to Mr. Coughlan reminds employers of the costly consequence unfair dismissal can have on their business.
The dangers of dismissing an employee during probation
Recruitment is tricky, and with any new hire there is an element of risk involved; will they work out, is their experience what they say it is, will they fit-in with the team? In the unfortunate instances where things do not work out, it can be problematic for an employer, particularly a small employer.
A Common Misconception
A common misconception is that if an employee is on probation and things are not working out, that they can be dismissed without regard. This is not the case and can leave employers wide open to a claim against them. There are a number of employment cases that illustrate this and serve as good case studies for employers. In the case of Glenpatrick Water Coolers Limited v. a worker, the Labour Court recommended that the employer pay €6,500 to an employee who was unfairly dismissed whilst on probation. Whilst the Court recognised the inclusion in the contract that normal disciplinary procedures did not apply during the probationary period, the court insisted that fair procedures must still apply. More significantly, an engineer was awarded €33,400 having been dismissed 2 months into his probation period. In both of the above cases, the courts highlighted the employer's’ total failure to adhere to the Code of Practice on Grievance and Disciplinary procedures.
Be Aware
Whilst an employee is not protected by the Unfair Dismissals Act until they have accrued one year's’ service, claims for unfair dismissal can be brought under the Industrial Relations Act. Employers should be aware that although dismissal during probation is possible, it does not give employers a free-hand to act as they please. Fair procedures and natural justice should always be respected.
To view our full Essential Guide to Managing Probation click here
To view our Sample Probation Letters click here
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To download your free Bright Contracts trial click here
