2015

This dispute concerned a claim by Grzegorz Delanowski, that he was discriminated against by Kellsydan Ltd. t/a McDonalds Restaurant, on the grounds of discrimination based on race which amounted to a breach of the Employment Equality Acts 1998 to 2001 Section 6(1) and Section 6(2) due to the company’s policy which prohibited the use of any language other than English.

Mr Delanowski, a Polish National, had been living and working in Ireland for a number of years and was employed by the Respondent since 2005 as a shift manager. The basis for the claims was that the Employer insists on the use of the English language at all times and refused the Complainant the opportunity of conversing in any other language. The Complainant viewed this as being discriminatory treatment based on race and further contended that there were no objective grounds for the Employer’s English only policy.

In response the Respondent submitted that there is no outright ban on speaking a language other than English existed in the workplace and indeed submitted that it was recognised that it may, at times, be appropriate for Employees to converse in a language other than English provided that no other Employee was being excluded.

Furthermore, the Respondent submitted that the reasoning behind the use of English as its business language was three fold: from a health and safety perspective, from a business perspective and from an inclusion perspective.  In this case the Respondent submitted it was important for all Employees to be able to understand the health and safety notices and instructions issued by manage and that it had been deemed necessary based on the diversity of the workforce to use English within the workplace based on the need for all staff members to be able to communicate and understand one another.

In findings in favour of the Respondent, the Tribunal was satisfied that any one of the three reasons given by the Respondent justified the use of English as a business language and more so when the three reasons were taken into account.

This is an interesting case. Ultimately, in determination of its findings, the Tribunal was satisfied that the Respondent had objectively justified the use of English as its business language and did not place the Respondent at a disadvantage relative to persons who native language was English.

This dispute concerned a claim by Ms Mary Gilmanton Bennett that she was subjected to discriminatory treatment by the Respondent on the grounds of gender in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts.

The Complainant submitted that she was discriminated against by the Respondent when the Respondent removed her from her role as manager prematurely, failed to offer her alternative conditions of employment or in the event of that not being feasible, sourcing alternative employment but placing her on health and safety leave, shortly after she had informed the Respondent of her pregnancy.

The Complainant submitted that she was employed by the Respondent as a General Manager of the Respondent’s Health and beauty clinic beginning in August 2011.The Complainant informed the Respondent that she was three months pregnant in early  December. On the 9th December 2011 the Complainant submitted that she was requested by the Respondent to sign an already completed pregnancy risk assessment. On the 13th of December 2011 the Respondent informed the Complainant that she was to be placed on Health and Safety leave under section 19 of the Maternity Protection Act 1994 by virtue of the risks that arose from the risk assessment. The Complainant submitted that the risks identified in the assessment only amounted to 2% of her working month.

The Complainant submitted that there was no risk surrounding her pregnancy which would have required her being placed on Health and Safety leave. She further submitted that if any such risks existed, that the Respondent was premature in placing her on such leave. The Complainant submitted that she attempted to discuss the risks outlined in the assessment with the Respondent to make it clear that none of the risks would affect her pregnancy but that the Respondent was not amenable to take any preventative measures to limit exposure to the risks.

The Respondent submitted that the most notable risk arising from the assessment was the risk of exposure to chemicals used in spray tanning and that exposure to these chemicals posed a risk to the unborn children and that she was not prepared therefore to take any such risk.

The Respondent rejected any allegation that she placed the Complainant on Health and Safety leave prematurely. She submitted that in this particular situation, given that the Complainant worked in a standalone role, and in the absence of any practical or suitable alternatives there were no suitable alternative roles available to eliminate these risks and enable the Complainant to continue working..

In determination of its findings, the Tribunal found the risk assessment included many risks which were so generic and commonplace that their application as a reason to be placed on Health and Safety leave would result in the automatic placement of all pregnant employees on such leave and that no preventative measures were taken to limit exposure to these generic risks. Accordingly, the Tribunal ordered the Respondent to pay the Complainant the sum of €12,000 in compensation for the effects of the discrimination.

As soon as an Employer becomes aware that an Employee is pregnant, they must assess the specific risks from the employment to the Employee, and take action to ensure that the Employee is not exposed to anything which would damage either her health or that of her unborn child. In this instance, while the Respondent argued it followed its legal responsibilities in this regard, the Respondent was found to have discriminated against the Complainant on the basis of gender and failed to adequately explore other protective or preventative measures, such as an adjustment to working conditions, to enable the Employee remain at work, prior to placing the Employee on Health & Safety leave.  

This dispute concerned a claim by Ms. A, the Complainant,  that she was discriminated against by Employer X on the grounds of Sexual Orientation, Religion and Gender and suffered discrimination in relation to Promotion, Training, Conditions of Employment, Discriminatory Dismissal, Harassment, Sexual Harassment, and was subject to Victimisation and Victimisatory Dismissal.

The Complainant stated that she suffered unwanted conduct, which had the effect of violating her dignity as a person and of creating an intimidating, hostile and degrading, humiliating and offensive environment. She alleged that she experienced unjustified and unequal treatment in that she was stigmatised because of her actual or perceived sexual orientation and was therefore unable to fully enjoy her basic human rights.

She complained informally to her Manger in relation to her treatment and believed that the Respondent subsequently victimised her. During a Sales Conference a colleague made unwanted sexual advances and physical contact. Other colleagues made unfavourable remarks about her and previous meetings she had with HR. She felt she was being ridiculed behind her back. It was well known to colleagues that she did not drink alcohol and this was a cause of some unfavourable comment from colleagues. She was perceived as being very religious which again was used to ridicule her. In addition she felt that she was discriminated against in the allocation of Mobile Phones and was the only new staff member not allocated a mobile phone handset.

The Respondent stated that the Complainant’s submission contained a number of unsubstantiated allegations. She had failed to provide details to support her claims. This basic factual detail is a minimum requirement in order for the Complainant to substantiate her allegations. The Respondent felt that they had been placed in the invidious position of not being in a position to adequately investigate or respond to the allegations being made. A Dignity at Work Policy and a Business Compliance Policy would have been known to the Complainant. Details were provided of a number of meetings that took place between the HR department and the Complainant. There was no evidence of any formal complaints of discrimination ever having been made by the Complainant. If they had been made they would have been investigated fully. In relation to the mobile phone issue, the Respondent stated that receipt of a mobile phone was not part of the Complaints contract of employment.

In closing, the Tribunal found that the Claimant in this case at had no substantial evidence of dates, times, places or named persons on which an investigation could proceed. The Complainant had not established a prima facie claim of discrimination in relation to Promotion, Training, Conditions of Employment and Discriminatory Dismissal, Harassment and Sexual Harassment, and Victimisation and Victimisatory Dismissal and accordingly the claim failed.

This case demonstrates the appropriate procedures an Organisation must outline in terms of sexual harassment, harassment and discrimination in the workplace. In this case the Respondent had in place a Dignity at Work Policy and Business Compliance Policy, all of which ensured any claims of this type would be dealt with accordingly. No facts were established by the Complainant with regard to dates, times, named persons, etc, thus neither the Respondent Company nor the Tribunal could adequately investigate such claims. 

This dispute concerned a claim by Ms. Rigoli, the Complainant that she was discriminated against by Metro Café Limited on the grounds of gender contrary to section 6 of the Employment Equality Acts and in terms of discriminatory dismissal contrary to section 8 of the Acts.

The Complainant started work for the Respondent in June 2012 as a waitress/consultant. In October 2012 she informed her Manger Mr. CK that she was pregnant.

In early December, 2012 the Complainant submitted an annual leave  request form for the 13th December and the period 14th January to the 24th January 2013. The Respondent was not advised for what purpose the January leave was being sought.

Later that month the Manager, Mr. CK informed the Complainant that he could not approve the extended period in January and asked her to reconsider the days and accommodate the Respondent by working the weekend of Friday 18th to Sunday 20th – the busiest days of the Restaurant. The amount of leave actually earned by the Complainant was 4 days not the 11 being sought.

On the 30th December a further annual leave request form was submitted specifically for Ante Natal visits on the Friday 11th January and Tuesday 29th January 2013. These were immediately granted. On the 5th January 2013 the Complainant met with Mr. CK, informing him she could work two days in the period, Thursday the 17th and Friday 18th January. She could not “budge” on the weekend. She was going to London and had “plans” for the other days. It is alleged that the Complainant became quite angry and agitated, abruptly left the office and told colleagues, as she left the Restaurant, that she “had been fired”.

The Respondent contested the recollection of events by the Complainant and stated that  Mr. CK attempted to negotiate an amicable, mutual arrangement in relation to such a long period of leave but the Complainant was in effect quite unreasonable in her response. The Respondent further submitted that many efforts in the period after 5th January were made to contact the Complainant to ask her to reconsider. The Complainant tendered her resignation of the 8th of January. A meeting with the Manager took place on the 15th February at which it was stated by the Respondent that the Complainant refused to reconsider her position and confirmed that she wished to terminate her employment.

The contested letter referred to by the Complainant was an offer by the Respondent to pay a good will payment out of regard for their previous good relationship without any admission of liability. The Respondent submitted that the letter was not a coercive tactic or designed to waive legal liability.

In determination of whether the Complainant was discriminated against and dismissed in a discriminatory manner on the grounds of gender, whilst pregnant, the Tribunal found no apparent or clear evidence of discrimination. Furthermore, the Tribunal found that the efforts of the Manager to get the Complainant to reconsider her decision and re-establish a good relationship, following the ending of the employment were not indicative of an employer anxious to orchestrate a Constructive Dismissal.

A constructive dismissal arises where it is alleged that due to the conduct of the Employer, the Employee terminated their employment on the basis that he/she could not reasonably be expected to remain in their employment.  In this particular instance, the Tribunal was satisfied that the Employer acted reasonably in all of the circumstances at all times and therefore the Complainant’s case failed.