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Case Law - Reviewed

Case Law - Reviewed

Date published on: 01/10/2020

Employee discriminated on the grounds of race as Employer did not grant sick pay

Summary of Complainant’s Case

The Complainant has submitted a complaint of discrimination by reason of her race in her conditions of employment.

After notifying the Respondent of her cancer diagnosis on 7th December 2018, the Complainant commenced working from home on 7th January 2019 on full salary. However, on or about the 18th February 2019 the Complainant informed the Respondent that her chemotherapy had caused a high blood sugar level which made her feel quite ill. She could not work that week and she asked if she could take sick leave for a few days. The Respondent’s Recruitment and Talent Manager informed the Complainant by email dated 19th February 2019 that the Respondent had decided not to afford her paid sick leave and that she would have to apply to the Department of Employment Affairs and Social Protection for illness benefit.

The Complainant did not anticipate that she would need to take sick leave for more than a week and that in those circumstances she would not be eligible for illness benefit. Having been informed of the decision to refuse her paid sick leave, she suggested that she be placed on unpaid sick leave for one week.  

The Complainant subsequently backtracked and decided against this approach. On 25th February 2019, she informed the Respondent that she would have to take unpaid sick leave and seek illness benefit because she did not want to have to contend with the stresses of work whilst on chemotherapy.

The Respondent replied to the Complainant’s email as follows: “Thanks for your email, no worries about this change. I hope this helps you to get better and recover. I’ll let [colleagues] to know about this.”

The Complainant applied for and obtained illness benefit from in or around the end of February 2019.   She emailed the Respondent a copy of her illness benefit claim form and medical certificate every three weeks from the end of February 2019.

The Complainant submits that she was treated less favourably on the race ground then her Irish colleague, MC who had received full pay during a period of ill health. 


Summary of Respondent’s Case

In or around December 2018 the Complainant approached the Respondent and informed it that she had been diagnosed with breast cancer. The Respondent discussed working arrangements with the Complainant. As a result of their discussion, the Complainant and the Respondent agreed that the Complainant could work from home for a period of time to allow her to attend appointments and manage her own work and medical requirements.

Subsequently the Complainant took sick leave and a short time after that enquired if the Respondent would pay her for sick leave. The request was denied, in line with the Respondent’s practice that long term illness benefit is not paid.

The Complainant has claimed that she has been discriminated against on the grounds of race, in relation to the refusal of the Respondent to grant sick pay. The Complainant states that another Employee was granted sick pay. It is the Respondent’s submission that no other Employee has ever been paid while on long term sick leave.

Furthermore, it is the submission of the Respondent that the Complainant’s terms and conditions of Employment are clear, where it is stated as follows: “Any payments of salary during periods of absence due to sickness or injury are made at the absolute discretions of the Company”.

The Respondent has paid 14 individual Employees including the Complainant sick pay within the last 2 years. The longest period of absence by any Employee prior to the Complainant was 3 weeks. However, circumstances surrounding that payment were completely isolated. In that specific situation the Employee concerned worked from home for a period of one month and following that was out sick for a period of three weeks.

It is the position of the Respondent that at all times the Complainant has been treated in a manner consistent with all other Employees. The Complainant has not been treated in any way differently to any other Employee and has not been discriminated against by the Respondent. It has always been the position of the Respondent to assess each absence on its merits and this particular case was no different.

The Respondent acted in accordance with the Complainant’s terms and conditions of employment and simply exercised its discretion as was its contractual right as set out in the Complainant’s terms of employment which the Complainant agreed to at the time she accepted the employment.


Findings and Conclusions

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different race who received more favourable treatment than she did. This is specified in section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”, which includes the ground of race on which the complaint was brought.

Thus, the Complainant must be the subject of less favourable treatment in comparison to another person on grounds of race i.e. because she is Croatian.

The Adjudication Officer found that the Complainant has identified MC who is Irish as a comparator who was in a “comparable situation” to the Complainant within the meaning of the Acts, to serve as a valid comparator within the meaning of section 6(1) of the Acts.

It is clear from the evidence adduced by MC that she was paid her full salary from the entirety of her period of ill health which occurred in the latter half of 2018.  The Respondent did not require her to apply to the Department of Employment Affairs and Social Protection for illness benefit and facilitated her in working from home even when she was unable to work all of her normal hours.

However, when the Complainant indicated in February 2019 that she was unable to work for a week due to the side effects of her cancer treatment, the Respondent informed her that she would have to apply to the Department of Employment Affairs and Social Protection for illness benefit and that it would not cover any loss of income.

The Complainant has demonstrated that she was treated less favourably than MC had been when MC was in a “comparable situation” to the Complainant within the meaning of the Acts. The only difference between the Complainant and MC was that MC was of a different race.

As the Complainant has established a prima facie that discrimination took place due to her race, the Adjudication Officer must decide whether the Respondent has adduced sufficient evidence to rebut the claim of discrimination.

The Respondent has put forward the view that the only reason that the Complainant was not granted sick leave was due to the financial difficulties which it was experiencing at the time and that it could not afford to pay sick pay to the Complainant.

Additionally, the Respondent contends that it did not pay long term sick leave. From the evidence adduced by the Complainant, it is clear that the Complainant was not initially seeking long term sick leave but that she indicated that she was unable to work for one week and asked the Respondent to pay her for her absence during that week. It was only subsequent to the Respondent’s refusal to pay her sick leave for a week that she went on long-term sick leave.

The Respondent did not adduce any evidence to show that its financial situation had altered significantly between the final four months of 2018 when MC was paid her full salary while on sick leave and February 2019 when the Complainant’s request for one week’s paid sick leave was denied.

The Adjudication Officer concluded that the Complainant has established a prima facie case of discrimination on the grounds of race which has not been rebutted by the Respondent and found that the complaint was well founded.


Decision

The Adjudication Officer ordered the Respondent to pay the Complainant the sum of €20,000 by way of compensation for the distress suffered as a result of the discrimination.


Our Commentary

It is important that an Organisation does not treat an Employee differently or discriminate against an Employee in relation to employment benefits. As this decision demonstrates, an Organisation should have an objective justification and rationale in applying its discretion related to sick pay.

Even if sick pay is discretionary in nature, Employers should consider precedence when making a decision in this regard and seek to engage with Employees with a view of supporting them during their absence and return to work.
 

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Employee unfairly selected for Redundancy receives €30,000 in compensation

Summary of Complainant’s Case

The Complainant asserted that he was dismissed for reasons of alleged redundancy. He was offered no advance notice, there was no information of any justification (economically) for any such decision, there was no selection / qualification process for him to understand why he was picked for dismissal. The Complainant claims he was not given any alternative (redeployment) option and not given any time ahead to look for alternative employment. There was no process but just a decision communicated on the spot with immediate effect.

The Respondent employs a total of 25 staff. The number of menders (i.e. Employees holding same position) including the Complainant’s wife (ref ADJ-00023218) was 5 of whom she had the longest length of service (10 years) and a comparably high experience and solid hands-on job skills and practical qualifications.

The number of weavers including the Complainant was 3 of whom he had the longest length of service (12 years) and a comparably high experience and solid hands-on job skills and practical qualifications.

They worked on a weekend shift (the "A shift") made of 3 workers (altogether) that was targeted for redundancy or reduction for economical or cost management reasons and they did not dispute the right of the employer to make such working time adjustment that would suit the needs of the business.

The Complainant opposed vehemently the fact as unfair and unlawful that whilst work is being reorganised it is particular people who arc pointed and picked for dismissal (alongside the changes to business organisation) without a process of fair selection.

The Complainant emphasised that albeit the employer purported to conduct (which is documented) a consultation process, they failed to conduct a fair selection process and namely failed to:

  • put in place a transparent fair selection mechanism (matrix) and communicate same openly.

  • propose objective, fair and reasonable criteria (such as e.g. qualifications, conduct/record, skills, length of service, additional qualifications, flexibility to accept different rotas and roster duties etc).

  • seek Employees input on such criteria or categories of assessment as far as practicable.

  • put forward a fair pool of potential candidates for redundancy (which in the circumstances would include all 5 menders and all 8 weavers in the firm and not preselected single individuals).

  • assess all workers at same criteria. i.e. by awarding score in the categories.

  • permit Employees to have their say by e.g. canvassing their opinion (popular poll) if practicable.

  • consult and publish the assessment in a transparent process.

  • allow the Employee a simple fast-rack appeal or review process.

Therefore, the redundancy was unfair on foot of the Respondent's failure to conduct fair selection and assessment process.

The firm employing 25 staff where a single 3 people shift was liquidated only 3 named individuals were pre-selected from the start and no other potential candidates for redundancy were considered. The Complainant have never been offered let alone declined an offer of work in alternative times or days i.e. at such times during the week when employer's business operated.

It simply emanated that the A shift was being cancelled to cancel out the staff thereon employed. The Complainant was capable of carrying out same work at a different rota schedule and such opportunity was never offered.

There was a reason or an (ulterior) motive in that under a veil of Redundancy the respondent removed particular Employees (taking the redundancy as convenient opportunity) who had addressed serious issues in the Company in the past rather than to remove (or to avoid dealing with) problems which the dismissed Employees had brought up.

The Complainant claims that his dismissal is a consequence of his exposure of the breaches of time organisation laws (inadequate rest breaks) in the Company. The facts point that this dismissal comes very close to a typical "whistleblowing reprisal" dismissal as the Complainant and his colleagues did procure a WRC inspection with the Respondent’s business which resulted in enforcement directions.

In their direct evidence, the Complainant asserted that the Company failed to take account of the range and level of experience they had gained – with the Complainant having trained many of the current workforce and had experience of shift work during the week while their partner had familiarity with all of the machines in the other factory. The Complainant disputed the accuracy of the Respondent’s records of the pre-redundancy meetings. It was asserted that the Complainant were never offered or presented with alternatives to redundancy. It was contended that the Company had been working on their strategy for 10-12 weeks and yet they were only given 4 days to come up with alternative proposals. The Complainant contended that every time he asked a question at the 2 redundancy meetings, they were told the question were not relevant.


Summary of Respondent’s Case

The respondent denied that the Complainant and his wife were unfairly dismissed.

The Complainant’s employment ended on 7th July 2019 following an internal review which was undertaken by the Respondent of their carpet plant in K to assess the efficiency and effectiveness of the manufacturing facility and to identify if the business needs were been adequately met with the current operating profile.

This review was prompted by the formulation of their 3-year strategic plan which indicated price pressures and increasing raw materials costs, which lead to significant margin erosion. To ensure the Company remained as a viable going concern the board of directors requested this review to take place and had authorised immediate corrective measure to be implemented to ensure current operations were running as efficiently as possible as well as reducing financial pressure whilst ensuring the Company met changes in their business needs.

The Complainant worked on a weekend shift which was commonly known as shift 1. The shift pattern in question was introduced 12 years previously when the Respondent first entered the carpet sector. Being totally unsupported by ancillary staff, this shift was intended to run uninterrupted batch quantities of non-complex standard carpet designs, which required no technical, design or maintenance support.

However, the Company identified that in the last 2 years customers’ needs had changed substantially and it was proposed that a restructure was required for shift A. To support Shift A, headcount would have to be doubled to include an engineer, a designer and a supervisor. This additional manpower requirements would be more than double the shift cost and would further increase the financial pressures on the Company, therefore the board have decided that this option is not a viable prospect and cost prohibitive to pursue.

The board has proposed that Shift A be dis-counted as it no longer meets the needs of the business and does not make a sustainable financial return. As a result of this proposal, Employees who currently work on this shift would be directly affected. This proposed re-structuring may ultimately result in those positions becoming redundant.

By letter dated 24th June 2019, the Complainant was invited to a consultation meeting to be held on Saturday 29th June to discuss operational and staffing requirements of the Company going forward. The Complainant was advised in the said letter that the Company was currently considering a restructure of how work in the Company would be conducted going forward and that any proposals currently under consideration may impact on his current role within the Company. He was also advised of his right to be appropriately represented at the said consultation meeting.

On 29th June 2019, the said meeting went ahead and was attended by the Complainant and his representative. The Complainant was informed at the meeting that a review of the Respondents facility in K had been carried out and the reasons for such were also outlined, in particular, that the shift that the Complainant was currently working on was not making a sustainable financial return and the Company were considering ending that shift. The Complainant was advised that his role may become redundant as a result but that no decisions had been made as this was a proposal only and no decisions were made at that stage. The Complainant was further advised that the Company were looking at alternative roles and/or redeployment within the Company for personnel working that shift and was also advised to put forward any proposals that he may have in respect of alternative work or potential areas of redeployment that he may be available to do.

The Complainant was provided with a detailed summary of the meeting held on 29th June and advised on the next steps in respect of the process under review. The Complainant was again advised in the said letter that no decisions about his future employment would be made until such time as he had a chance to express his views on the situation and also the Respondent had a chance to consider all the available information and possible options or alternatives to any proposed redundancy. The Complainant was also asked in the said letter to put forward in writing any proposals that he wished to be considered ahead of a proposed meeting to be held on 7th July 2019 of which he was again advised of his right to representation.

On 3rd July 2019, the Respondent received a written correspondence by e-mail from the Complainant regarding a number of issues raised at the previous meeting. No alternative ideas were put forward in respect to this communication. A further meeting went ahead as scheduled on 7th July 2019. The meeting was attended by the Complainant and his work colleague Ms. J.K. At this meeting, the Complainant was advised that his role was being made redundant and given the reasons why.

It is the Respondent’s position that the dismissal of the Complainant was wholly and mainly as a result of his role being redundant.


Decision

While the Adjudicator acknowledged that convincing financial evidence was advanced by the Respondent for the necessity to effect redundancies in the weekend shift populated by the Complainant, his wife and their witness, it was found that no credible evidence was advanced by the Respondent to justify their selection of the Complainant for redundancy.

No plausible explanation was advanced for the Company’s failure to identify the appropriate pool of workers to be considered for redundancy. No evidence was advanced to demonstrate that the selection was based on an unbiased objective and transparent matrix of skills and competencies nor indeed was any evidence advanced to demonstrate that this was approached from an objective perspective where the job as opposed to the person was to the forefront in the Company’s deliberations on the matter.

No plausible explanation was advanced for the Company’s failure to explore the option of voluntary redundancy amongst the wider pool of workers. No plausible explanation was advanced for the Company’s failure to explore part time work or temporary lay off’s as an alternative option to redundancy.

The Company failed to justify the very narrow time frame given to the Complainant to come up with alternative solutions given the prolonged period allowed for the strategic review and no account appears to have been taken of the Complainant’s limited insight into the financial imperatives driving these redundancies.

The Adjudicator accepted the Complainant’s contention that the engagement could not be considered to be meaningful and one could not but conclude from the Company’ own records of the meetings that no evidence of having explored meaningful alternatives to redundancy was offered or presented.

The Adjudicator required the Respondent to pay the Complainant €30,000 compensation for his unfair dismissal.


Our Commentary

Having a genuine reason to instigate redundancies and following a fair process is vital for Employers who want to avoid any potential claims from their Employees.

If your Organisation deems to have a genuine redundancy situation, you are still obliged to follow fair procedures when it comes to making Employee(s) redundant.

In any given case, it is likely to require a valid business case for redundancy which Employees can comment on, fair selection, consideration of alternatives to redundancy, a period of engagement / consultation with the affected Employees and an avenue of appeal.