Inchicore College of Further Education Employment Law Essay

Assignment

Scenario

You are an intern in an HR firm and have been asked to carry out some research and present your findings. You are required to choose one of the 3 topics/tasks below

QQI
6N4322
Employment law
Assessment Brief 2 – 30%
Class:
BHR6
Date handed out: 9/2/22
Tutor: Joan Kelly
Submission date: 4/3/22
Scenario
You are an intern in a HR firm and have been asked to carry out some
research and present your findings. You are required to choose one of the 3
topics/tasks below
Tasks
1 Prepare a report on a Court case (including the factual history, the main
legal arguments made by both sides and the decision) which deals with a
principle of employment law and evaluate the impact of that principle on a
chosen vocational area.
2 The Irish legislature, largely influenced by EU law, has enacted various
pieces of legislation creating/protecting individual rights in employment law.
Research the main pieces of legislation and evaluate the individual rights
created/protected by them to support family life, prevent discrimination and
protect privacy.
Your evaluation should include reference to the main terms of the
following pieces of legislation:
Maternity Protection Acts 1994-2004
The Adoptive Leave Acts 1995-2005
The Paternity Leave Act 2016
The Parental Leave Acts 1998-2019
The Carers Leave Act 2001
The Parent’s Leave and Benefit Act 2019 as amended by the Family
Leave and Miscellaneous Provisions Act 2021
Protection of Employees (Part time) Work Act 2001
Protection of Employees (Fixed Term) Work Act 2003
The Protection of Employees (Temporary Agency Work) Act, 2012
The Organisation of Working time Act 1997
Employment (Miscellaneous Provisions) Act 2018
National Minimum Wage Act 2000
The Payment of Wages Act 1991
The Employment Equality Acts 1998-2015
The Safety Health and Welfare at Work Act 2005 as amended
The Unfair Dismissal Acts 1977-2015
GDPR and the Data Protection Acts 1988-2018
The Pensions Act 1990 and EU Occupational Pension Scheme
Regulations 2021
The Social Welfare and Pensions Act 2011 as amended.
And refer to relevant caselaw
3 Evaluate the impact of Data Protection and Freedom of Information in the
management and maintenance of employee information in the workplace.
In your evaluation please include reference to:
-the employers role in the processing of personal data in compliance
with GDPR and the Data Protection Acts 1988-2018
-the circumstances where an employer is justified in limiting an
employee’s privacy in order to manage and protect the business electronic communications, Email and Internet usage, CCTV
Surveillance and Biometric testing
-an employee’s right to privacy outside the workplace
(refer to relevant caselaw)
and
formulate
(a) the Key Steps an employer must take to Ensure Compliance with
Data Protection legislation and
(b) the key steps in processing FOI request in relation to personnel
records.
Submission guidelines
The information is to be presented in the form of a case report for topic 1 and
an essay for topics 2 and 3 using Font 12 Times New Roman, 1.5 line spacing
and referenced as per the Harvard System with use of a Bibliography and
case law referenced by Name and Year
Submission is through moodle on or before the submission date.
Marking Scheme
Criteria
Relevant information appropriately
presented
Understanding and knowledge of
chosen topic clearly demonstrated
and a comprehensive evaluation
provided
Legal Principles appropriately
applied, and relevant case law and/or
examples included
Total
Marks
10
10
10
30
Safety Health and Welfare at Work
Legislative Framework
The Safety Health and Welfare at Work Act 2005 as amended
Regulations made in accordance with S58 of the 2005 Act
The General Application Regulations 2007-2020
Codes of Practice under S60 of the 2005 Act
General duties of employer under the 2005 Act
as amended
Section 8(1) of the Safety, Health and Welfare at Work Act 2005 (“SHWWA”)
provides “Every employer shall ensure, so far as is reasonably practicable, the
safety, health and welfare at work of his or her employees.
This mirrors the duty to take care of an employee under the Tort of Negligence save that the
tort of negligence requires reasonable care but the 2005 Act requires the employer to ensure
health and safety as far as reasonably practicable.
The threshold under the 2005 as amended is thus higher than that which one would have previously
considered sufficient under the common law. The onus is placed on the employer to prove that
he did everything that was ―reasonable practicable‖ in order to defend a prosecution .
“Reasonably practicable” under section 2(6) of SHWWA “in relation to the duties of
an employer, means that an employer has exercised all due care by putting in place
the necessary protective and preventive measures, having identified the hazards and
assessed the risks to safety and health likely to result in accidents or injury to health
at the place of work concerned and where the putting in place of any further
measures is grossly disproportionate having regard to the unusual, unforeseeable
and exceptional nature of any circumstance or occurrence that may result in an
accident at work or injury to health at that place of work.”
Thus the employer is required to have protective and preventative measures addressing risks and be
able to establish that any further protective and preventative measures would be grossly
disproportionate having regard to the unusual unforeseeable and exceptional nature of any
circumstances or occurrence that may result in an accident at work or injury to health at the work
place..
Where somebody is killed, it would be very difficult to show that any measures preventing
this would be grossly disproportionate‘.
Under section 13 of SHWWA employees are also under a responsibility to “take
reasonable care to protect his or her safety, health and welfare…”.
The duties of employers (including the self employed ) under Section 8 is to ensure
safety health and welfare at work are essentially to create and maintain a safe
workplace and
It covers
1• managing and conducting work activities to ensure safety health and welfare at work,
2• preventing improper conduct or behaviour likely to put employees at risk (for example,
violence, bullying or horseplay at work),
3• Designing, providing and maintaining a safe place of work that has safe access and egress, and
uses plant and equipment that is safe and without risk to health.,
4• ensuring safety and Prevention of risks from the use of any article or substance, or from
exposure to physical agents, noise, vibration and ionising or other
radiations. at the place of work,
5• providing safe systems of work, i.e. Planning, organising, performing, maintaining and, where
appropriate, revising systems of work that are safe and without risk to health.
6• providing and maintaining adequate welfare facilities for employees at work
7• Providing adequate information, instruction, training and supervision regarding
safety and health to employees, which must be in a form, manner, and language that they are likely
to understand (see also Sections 9 and 10),
8-Cooperating with other employers who share the workplace so as to ensure that safety and health
measures apply to all employees (including fixed-term and temporary workers) and providing
employees with all relevant safety and health information. See s21
9_ Providing appropriate protective equipment and clothing to the employees (and at no cost to the
employees).
10_ Appointing one or more competent persons to specifically advise the employer on compliance
with the safety and health laws.
11_ Preventing risks to other people at the place of work.
12_ Ensuring that reportable accidents and dangerous occurrences are reported to the Health and
Safety Authority.
13• preparing risk assessments and safety statements as required by Sections 19 and 20 that
take
account of the general principles of prevention in Schedule 3 to the Act when implementing
Section 19 provides that every employer must identify the hazards at the place of
work(something that can potentially cause harm eg chemicals) , assess the risks from those
hazards [(i) the likelihood of that harm occurring, (ii) the potential severity of that harm (as in
the degree of injury or ill-health following an accident), and (iii) the number of people who
might be exposed to the hazard.]
The assessment must be in writing and apply to all of the employees and to
any employees who may be exposed to any unusual risks eg risks specified by safety and
health legislation. Particular assessment would need to be given to young or inexperienced
workers, new and expectant mothers, night workers and those who work alone. The level of
detail depends on the business type and size.
The risk assessment must be reviewed at a minimum annually and if there has been a
significant change or if there has been an accident or dangerous occurrence.
.
The employer must take steps to implement any improvements and control measures
considered necessary by the risk assessment.
When carrying out a risk assessment, account should be taken of the general
principles of prevention set out in Schedule 3 to the Act.
S26 requires the employer to consult with employees, or their representatives, on the risk
Assessment
THE 5 STEPS
1
2
3
4
5
Identify hazards eg chemial, physical, biological, human, mechanical – eg slip
and fall,
Assess the risk – likelihood of harm – severity of injury – who at risk
Select Control measures – name those responsible, plans for emergency, name of
safety rep
Write Safety Statement
Record and Review annually and after any dangerous occurrence
Section 20 requires an employer to have a written safety statement based on the hazards
identified and the risk assessment under Section 19 setting out how the safety, health and
welfare of employees will be safeguarded and managed. – i.e the control measures
It relates not just to employees but also customers/visitors
.
The Safety statements must set out
• the hazards identified and the risks assessed,
• the control measures – and resources necessary to avoid risks and minimise risk that cannot
be avoided I.e the protective and preventive measures taken and the resources allocated to
safety, health and welfare, the selection of competent people, equipment and the way work is
done
• the plans and procedures for dealing with emergencies or serious and imminent danger, in
compliance with Sections 8 and 11,
• the duties of employees as regards safety, health and welfare at work, and the requirement
for them to co-operate with their employer and any person who has responsibility under the
relevant statutory provisions,
• the names and, where applicable, job titles of persons assigned to perform tasks pursuant to
the
safety statement, and
• the arrangements for the appointment of safety representatives and safety consultation at the
place of work in compliance with Sections 25 and 26 and the names of any safety
representatives and/or safety committee members
Section 22 requires employers to ensure that health surveillance relevant to the risks in the
risk assessments and any health surveillance required by legislation, is available to employees
When preparing a risk assessment and safety statement, account should be taken of the
general principles of prevention set out in Schedule 3 to the 2005 Act
General Principles of Prevention.
1. The avoidance of risks.
2. The evaluation of unavoidable risks.
3. The combating of risks at source.
4. The adoption of work to the individual, especially as regards the design
of places of work, the choice of work equipment and the choice of
systems of work, with a view, in particular, to alleviating monotonous
work and work at a predetermined work rate and to reducing the effect
5. The adaptation of the place of work to technical progress.
6. The replacement of dangerous articles, substances or systems of work
by safe or less dangerous articles, substances or systems of work.
7. The giving of priority to collective protective measures over individual
protective measures.
8. The development of an adequate prevention policy in relation to safety,
health and welfare at work, which takes account of technology,
organisation of work, working conditions, social factors and the
influence of factors related to the working environment.
9. The giving of appropriate training and instructions to employeesf this work on health.
Employers and persons in control of places of work must prepare a safety statement in
relation to their duty to persons other than their employees as regards Section 12 or
Section 15.
Information – the risk assessment and safety statement must be in a form and language that is
understandable to employees etc.
CASELAW
In Duke v Dunnes Stores ,[2019] IECA 88
FACTS the plaintiff became entangled in, and slipped on, shrink wrapping attached to a
pallet on the floor when retrieving frozen pizzas from the freezer room. The plaintiff
fractured his cuboid bone in his right foot.
The plaintiff accepted
1- he had received training from the employer which stressed the importance of
housekeeping, keeping floors free from obstruction and to “clean as you go”, both upon
induction and as a refresher course,
2 that the shrink wrap on the pallet and floor was obvious and that he should have
seen it.
The shrink wrap on the pallet and floor was likely to have been caused by another
employee and as such the employer could be vicariously liable for that employee’s
actions.
The plaintiff was awarded €36,320 in damages by Barr J in the High Court [2017 IEHC
142 (accounting for 20% contributory negligence by the plaintiff).
McGovern J 25/3/2019 for the Court of Appeal [2019] IECA 88
stated that :
The court must look at Section 8 of the SHWWA 2005 in relation to duty and that “so
far as reasonably practicable” means strict liability is not imposed on an employer.
Therefore the Court of Appeal held that where an employer raises a defence of
proper training and proper cleaning an maintenance regime the Court of trial has a
duty to anayse such evidence in the context of what is reasonably practicable.
The Court of appeal McGovern J. held that the High Court judge had not carried out
a proper analysis of the evidence in light of Mr Duke’s statutory obligations and had
reached conclusions unsupported by the evidence. Whilst it was accepted that
Dunnes was vicariously liable for the negligence of the employee leaving the shrink
wrap on the ground, McGovern J. found that the High Court judge had failed to
sufficiently analyse the issue of causation. the High Court judge had failed to address
the question of whether Dunnes had taken such steps as were reasonably practicable
for the safety of Mr Duke. McGovern J. was clear that it had, insofar as it had put in
place a training regime which stressed that employees should clear away obvious
hazards as they worked.
McGovern J. found that the evidence was unambiguous to the effect that the hazard
was clear (and this had been accepted by Mr Duke), the room was well lit, and Mr
Duke was not under pressure to perform the task. In these circumstances, he held
that the proximate cause of the accident was the failure of Mr Duke to exercise
reasonable care in keeping a proper look out and adhering to the instructions he had
received in training. Had the High Court judge carried out a proper analysis of the
proximate cause of the accident, the proper finding would have been to dismiss the
claim. Accordingly, the Court of Appeal allowed the appeal against the finding of
liability.
The Plaintiff unsuccessfully applied for leave to appeal to the Supreme Court
In Greene v Dunnes Stores [2019] IECA 115
https://www.bailii.org/ie/cases/IECA/2019/CA115.html
The plaintiff left her checkout position to exchange two bottles, and she apparently
slipped on a wrapper which would have been wrapped around a roll of refuse bags for
sale and injured her shoulder, arm and elbow.
The employer provided evidence from a security manager, who also walked the floors in
a hygiene capacity, that five minutes prior to the accident there was nothing on the
floor. The security manager also had a floor cleaning inspection record to support his
evidence. The employer also provided evidence from a Consulting Forensic Engineer
who informed the Court that the wrapping on which the plaintiff slipped was
conspicuous and would have been seen by a person keeping a proper lookout. The
engineer also described the cleaning and inspection system operated by the employer
as “first class”. Neither of these points of evidence were challenged by the plaintiff.
The High Court found that the probable cause of the source of the wrapper was a
member of the employer’s staff and concluded that it was put there when the security
manager or another member of staff was not in a position to identify it. The wrapper
created a hazard and, having been put there by a member of staff, the employer was
vicariously liable.
The Court of Appeal held that the employer does not have an absolute duty to
ensure safety having referred to the dicta of Irvine J in Martin v Dunnes Stores
[2016] IECA 85 wherein she reiterated the principle that the duty of an
employer is not unlimited, that the employer is not an insurer and referred to
Henchy J in Bradley v CIE [1976] IR 217 that an employer will have discharged
his duty if he does what a reasonable and prudent employer would have done
in the circumstances.
In the circumstances of the case the Court of Appeal held
•
it was not necessarily a member of staff who was responsible for the wrapper
on which the plaintiff slipped – taking into account the security manager’s
evidence that he did not see a wrapper shortly before the accident, it was
plausible the wrapper could have been put on the floor by a customer;
•
the unchallenged evidence was that the wrapper was conspicuous and the
inference which can be drawn from this is that the plaintiff ought to have seen
it;
•
it was accepted that the employer had a “first class” system of cleaning and
inspection;
•
the employer had trained the plaintiff and other employees, emphasising the
need for good housekeeping and that employees should clear as they go,
which would involve picking up any item from the floor which might represent
a hazard.
The trial judge failed to engage with the issue as to whether or not the employer
had fulfilled its common law and statutory duty to ensure health and safety so far
as is reasonably practicable and in so doing failed to apply the proper legal test.
There was no reference to the training that the plaintiff received on the system of
cleaning and inspection.. The Court of Appeal held the case should have been
dismissed.
In both of these cases the Court of Appeal over turned the High Court awards in favour of
the plaintiffs. The employer in these cases was able to avoid liability for the slips at work
due to its “first class” cleaning and inspection system, employee training on the system,
and the failure by the particular employees in question to see a “conspicuous” or
“obvious” hazard.
Thus Employer is not an insurer – they are merely required to do what is reasonable
practicable and may discharge that onus by virtue of cleaning and inspection systems and
training. Further the employee has a duty in relation to their their own safety.
_______________________________________________________________________
Duties of employee under the 2005 Act
Section 13 specifically provides that an employee must .
1• comply with safety and health legislation, both in the 2005 Act and elsewhere,
2• take reasonable care to protect his or her own safety, health and welfare and that of any
other person who may be affected by his or her acts or omissions at work,
3• not be under the influence of alcohol or drugs or a combination of alcohol and drugs to the
extent that he or she is likely to endanger his or her own safety, health or welfare at work or
that of any other person,
4• if reasonably required by his or her employer, submit to any appropriate, reasonable and
proportionate tests, by or under the supervision of a registered medical practitioner who is a
competent person, as may be required by Regulations made under the 2005 Act,
5• co-operate with his or her employer or any other person, as necessary, to assist that person
in complying with safety and health legislation as appropriate, as a project eg a supervisor
appointed under the Safety, Health and Welfare at Work (Construction) Regulations
6• not engage in improper conduct or other behavior such as violence, bullying or horseplay,
which could endanger another person at work or his or her safety, health and welfare,
7• where safety and health training related to a particular task is required by the employer or
by safety and health legislation, attend and undergo, as appropriate, any reasonable
assessment required byhis or her employer or as may be prescribed in Regulations,
8• taking account of the training and instructions given by the employer in relation to how to
correctly use of any article or substance, protective clothing and also equipment provided for
use at work or for his protection.
9- employee should accurately state his level of training on commencement of the job and
should not misrepresent it
Records of training given and received should be maintained.
-10 -Section 14 prohibits any person from intentionally or recklessly interfering with,
misusing or damaging anything provided under safety and health legislation, or provided to
protect the safety, health and welfare of persons at work, or to place at risk the safety, health
or welfare of persons in connection with work activities without reasonable cause. [This
applies to employees but is not limited to them i.e it applies to any person.
11 If an employee covered by this section 23 and regulations becomes aware that he or she is
suffering from any disease or illness likely to expose him or her or any other person to an
increased risk of danger in connection with any work activity, he or she must immediately
inform their employer or a registered medical practitioner, nominated bythe employer.
12 Managers have liability under Section 80 of the 2005 Act as do directors and officers
of Companies for offences under the Act of 2005 as amended.
In The People (DPP) for the HSA v Clare County Council and Michael Scully (2010), Clare
Co Co and Michael Scully pleaded guilty to breaches of the 2005 Act a worker was killed
when the dumper he was driving overturned. The County Council was fined €50,000 for four
charges including– failing to discharge its duty to manage and conduct work activities so as
to ensure, so far as was reasonably practicable, the safety of its employees. Michael Scully
was given two 12 month suspended sentences for offences including failing to identify the
risks and hazards under section 19(1).
13 An employee is required to report to the employer, or other appropriate person, as
soon as they become aware of any instance –
•where work is or is likely to be carried on, in a manner which may endanger his or her
safety, health or welfare or that of another person,
• of any defect in the place of work, the systems of work or in any article or substance likely
to endanger him or her or another person, and
• a breach of safety and health legislation likely to endanger him or her or another person
which comes to his or her attention.
Supervisors and line managers have an important role in bringing any known deficiencies in
health and safetyto the attention of senior management.
________________________________________________________________
REGULATIONS
Section 58 gives power to the Minister to make Regulations either where matters are
prescribed, or generally for the purposes of giving full effect to the Act and in respect of the
matters set out in Schedule 7 to the Act.
Before making Regulations, the Minister is required to consult the Authority (unless proposal
came from HAS) and may give public notice giving persons 21 days to make submissions.
The Minister must also consult the HSA if making Regulations with modifications, which
implement a proposal, made by the Authority.
Regulations made under the Act may –
• contain incidental, supplementary and consequential provisions as necessary,
• apply generally or to a specified class or classes of persons, places of work, work activities,
article or substance or other matter,( e.g. Safety, Health and Welfare at Work (Construction)
Regulations 2013. ) )and
• include different provisions in relation to different classes of persons, place of work, work
activity,article or substance.
The General Applications Regulations of 2007-2020 are secondary legislation used to
provide specific regulation regarding workplace hazards. These regulations provide
detailed requirements for each of the following and for many individual hazards that
come under each heading
The area of work and work activities covered in detail include:
-Workplace
Chapter 1 of Part 2 of the Regulations sets out requirements relating to places of work as
regards various matters including structural stability, ventilation, temperature, lighting, floors,
walls, ceilings and roofs, windows and sky lights, doors and gates, emergency routes and
exits fire detection and fire fighting, movement of pedestrians and vehicles danger areas,
loading bays and ramps, room dimensions and air space, general welfare requirements,
sanitary and washing facilities.
– Use of work equipment Chapter 2 of Part 2 and Schedule 1 to the Regulations
– Personal Protective Equipment – Chapter 3 of Part 2 and Schedule 2 to the Regulations
– Manual Handling of loads – Chapter 4 of Part 2 and Schedule 3
– Display Screen equipment Chapter 5 of Part 2 and Schedule 4 to the Regulations set out
requirements relating to the provision and use of Display Screen Equipment
– Electricity – Part 3 of the Regulations – including suitability of electrical equipment
– Work at heights – Part 4 requires organisation, planning and risk assessment of work at
height, checking of places of work at height, weather conditions, avoidance of risks from
work at height, protection of places of work at height, selection of work equipment for work
at height,
-Control of Noise at work – Chp 1 Part 5 – requirements for risk assessments , exposure
limit values and ppe
– Control of Vibration at work – Chp 2 Part 5
– Sensitive risk groups – Chapter 1 of Part 6 and Schedule 7 obligatiions re children and
young people and Chhp 2 Part 6 and Schd 8 re pregnant, breastfeeding mothers and people
working at night – and also Chp3 re night and shift work
– Safety signs Chp 1 of Part 7 and Schd 9 re provision of safety signs, information and
instruction and acoustic and illuminated signs
– First aid Part 7
– Explosive Atmospheres – Part 8
Gen Apps Control of Noise.pdf (585 KB)
Gen Apps Display Screen Equipment.pdf (573 KB)
Gen_Apps_Children_Young_Persons.pdf (654 KB)
Gen_Apps_Electricity.pdf (814 KB)
Gen_Apps_Explosive_Atmospheres.pdf (689 KB)
Gen_Apps_First_Aid.pdf (501 KB)
Gen_Apps_Manual_Handling.pdf (1015 KB)
Gen_Apps_Night_Shift_Work.pdf (405 KB)
Gen_Apps_PPE.pdf (576 KB)
Gen_Apps_Pregnant_Post_Natal.pdf (652 KB)
Gen_Apps_Safety_Signs.pdf (1492 KB)
Gen_Apps_Vibration_At_Work.pdf (625 KB)
Gen_Apps_Work_at_Height.pdf (921 KB)
Gen Apps Work Equipment.pdf (1285 KB)
gen_apps_workplace.pdf (872 KB)
CODES OF PRACTICE
Codes of practice are issued by the HAS under S60 of the 2005 Act and are intended to give
practical guidance.
A COP is produced by the Health and Safety Authority (in consultation with competent
persons from industry and social partners) to assist with the implementation of safe working
practice for work activities that present high risk. In addition, the H.S.A. may approve Codes
of Practice from other bodies. A CoP, so approved, will have the same legal status as a CoP
produced by the H.S.A.
If an activity has a code of practice in place for its safe operation e.g. scaffolding code of
practice,ands an accident occurs relating to the work activity and the code of practice was
not implemented, that failure may be cited as evidence of poor safety management or / and
negligence. Examples of codes of practice
: Scaffolding 2018
Roofwork 2016
Avoiding dangers from underground services 2016
Code of Practice for preventing Injury and Occupational Ill health in Agriculture 2017
Chemical Agents and Carcinigens Code of Practice 2021
Code of Practice for avoiding Danger from overhead electric lines 2019
Code of Practice workinh in confined spaces 2017
There was a HAS code of practice on bullying but since 2020 there is a joint one with LC
from 2021 http://www.irishstatutebook.ie/eli/2020/si/674/made/en/print
Employers with three or less employees can comply with S20 if they observe the terms of a
code of practice, if any, relating to safety statements that apply to their particular sector and
published or approved under Section 60 of the 2005 Act
Any contravention of the code of practice is admissible in evidence in proceeding sper S 61
of the 2005 Act as amended and compliance can support a claim of compliance with relevant
safety and health legislation
___________________________________________________________________________
SAFETY REPRESENTATIVE
Section 25, of the 2005 Act as amended entitles employees to select and appoint a safety
representative
or, by agreement with their employer, more than one safety representative to represent them
in consultations with the employer on matters of safety, health and welfare at the place of
work.
A safety representative, with reasonable notice to the employer is entitled to inspect the place
of work at an agreed schedule.
. Safety representatives have the right to immediately inspect where an accident, dangerous
occurrence or imminent danger or risk to the safety, health and welfare of any person has
occurred or is present.
They may investigate accidents and dangerous occurrences, provided this does not
interfere with those carrying out statutory duties under safety and health legislation, such as
an inspector to see it.
With reasonable notice to the employer, the safety representative may investigate complaints
relating to safety, health and welfare at work that have been made by an employee whom he
or she represents.
A safety representative may also • accompany an inspector carrying out an inspection under
Section 64
_______________________________________________________________________
SECTION 5 of the 2005 Act refers to OTHER PEOPLE WITH DUTIES
“Persons who have control over:
_ a non-domestic place of work that has been made available to the employees of another
person,
_ the means of access to or egress from that place of work, or _ any article or substance
provided for use at that place of work (other than employees of the person in control) have a
duty to ensure, so far as is reasonably practicable, that the place of work, the access to and
egress from it, and any article or substance so provided, is safe and without risk to health.
For example, a person in control of an office has to ensure that a visiting window cleaner is
provided with safe access and egress and, in particular, that any permanent window cleaning
equipment is safe to use (of course, the employer of the window cleaner also has duties in
relation to his or her employees.).” HSA 2005 “A Short Guide to the Safety Health and
Welfare at Work Act 2005” available at www. HAS.ie, accessed 10/1/ 2009
Manufacturers, importers and suppliers (including designers, installers and erectors) have to
comply with the following duties:
“_ Manufacturers, importers and suppliers of equipment, machinery, articles, or substances
used at work have the duty of ensuring safety and health concerning the use of the materials
that they produce or supply.
_ Manufacturers, importers and suppliers must provide information on the correct use of the
materials to ensure safety and health at work.
Those who design or construct a place of work must ensure that it is designed and capable of
being constructed and maintained without risk to safety and health.” HSA 2005 “A Short
Guide to the Safety Health and Welfare at Work Act 2005” available at www. HAS.ie,
accessed 10/1/ 2009
______________________________________________________________________
EMPLOYEE RIGHTS
S27 of the Act introduces the concept of penalization into Health and safety law.
“(1) In this section penalization includes any act or omission by an employer or a person
acting on behalf of an employer that affects to his or her detriment, an employee with respect
to any term or condition of his nor her employment.
(2) Without prejudice to the generality of subsection(1), penalization includesa.
suspension, lay-off or dismissal (including a dismissal within the meaning of
the Unfair Dismissals Acts 1977-2001) or the threat of suspension, lay off or
dismissal
b
demotion or loss of opportunity for promotion
c
transfer of duties, change of location of place of work, reduction in
wages or change in working hours,
d
imposition of any discipline, reprimand or other penalty (including a financial
penalty), and
e
coercion or intimidation”
The definition is broad but there must be an act or omission by the er or person acting on his
behalf effecting an ee to his or her detriment wrt any term/condition of employment.
The question is whether an objective or subjective interpretation of detriment will be taken.
Surely the detriment must be such that it would reasonably seem to be a detriment.
The detriment must be as a result of matters set out in subsection 3 ie_
“(3) An employer shall not penalize or threaten penalization against an employee for
(a)
acting in compliance with the relevant statutory provisions,
(b)
performing any duty or exercising any right under the relevant statutory
provisions,
(c)
(d)
(e)
(f)
making a complaint or representation to his or her safety representative or
employer or the Authority, as regards any matter relating to safety, health or
welfare at work,
giving evidence in proceedings in respect of the enforcement of the relevant
statutory provisions,
being a safety representative or an employee designated under section 11 or
appointed under section 18 to perform functions under this Act, or
subject to subsection (6) in circumstances of danger which the employee
reasonably believed to be serious and imminent and which he or she could not
reasonably have been expected to avert, leaving (or proposing to leave) or, while
the danger persisted, refusing to return to his or her place of work or taking (or
proposing to take) appropriate steps to protect himself or herself or other persons
from the danger”.
In respect of bullying and harassment the significant provision is that an employee shall not
be penalized for making a complaint to their employer in respect of any matter regarding
safety, health or welfare at work.
Thus it is now open to an employee who makes a complaint of bullying or harassment and
suffers a detriment w/in the meaning of s27 as a result to claim they have suffered
penalization within the meaning fo the section.
This is a new cause of action for victims of bullying and harassment and there is no limit on
the amount of compensation that can be awarded!!!
S28 provides for a hearing and redress from a Rights Commissioner who if finds the
allegation well founded can require the employer take a specific course of action or pay
compensation as is just and equitable.
A RC’s determination can be appealed to the Labour Court.
Under the 2005 Act determinations of the LabourCourt are enforceable by order of the
Circuit Court.
This is a new jurisprudence and whilst a number of claims have been taken to the RC
pursuant to s28 re bullying and harassment many of them have been taken up with
bprocedural issues such as time over which RC has jurisdiction as Act only implemented in
Sept 05.
Kirwan v Dept of Justice Equality & Law Reform HAS/07 -1 Det No 071
There the acts complained of were in April May 2005. The Lab Ct on appeal said S27 should
be construed as:“providing that penalization can arise where, after the commencement of the Act, a worker is
subjected to unfavourable treatment of the type referred to at sub-section (2) of that section in
consequence of having made a complaint to hisn or her employer as regards any matter
relating to health or welfare at work notwithstanding that such complaint was made before
the commencement of the Act”
Court later found against the claimant on the facts on the substantive issue.
It was its view that the burden was on the claimant to prove the link between the treatment
and the making of the complaint.
A complainant v A Hospital RC Recomm 29/1/07 – Delay of er in dealing with allegations
of claimant of bullying and malpractice at work. By the time the matter came on the delay
was 2 years. ( Before the Act she had gone to RC under the Industrial Relations Act for delay
and was awarded €2,000 as a goodwill gesture.) Respondent denied penalization took place
and argued penalization required a proactive step.Rights Commissioner disagreed and
awarded €20,000 and further directed the parties to agree that in the vent the matters had not
been resolved by 1/4/2007 “that whatever issues are still outstanding will be referred for
final adjudication by an appropriate third party within one month after that date”.
(This case is under appeal to the Labour Court)
ENFORCEMENT MEASURES
The Health and Safety Authority is responsible for enforcing and promoting safety
and health at work. For the most part, HSA Inspectors give advice and information
during the course of an inspection. However, they have a wide range of enforcement
powers that are used in appropriate circumstances.
1
An inspector’s direction for an improvement plan
An inspector may serve a direction for an improvement plan requiring the
submission, within one month, of an improvement plan setting out the proposed
remedial action for dealing with a specified risk.
2
Enforcement Notices
Enforcement notices may be served to deal with a failure to comply with the law.
2a
An Improvement Notice (IN) (is issued where there is a breach of Occupational safety
and Health law that requires a remedy but is not so serious to require a work
stoppage)
An Improvement Notice gives a period of time for the matter to be remedied.
2b
A Prohibition Notice (PN) (isissued to stop a work activity that involves or is likely to
involve a risk of serious injury)
A Prohibition Notice requires the immediate cessation of the activity that has created
the risk. The Authority may also apply to the High Court for an order prohibiting or
restricting the use of a place of work.
2c
An IN or PI is discharged by compliance with its terms.
Sections 6696) & 67(11) provide that once the addressee of an IN or a PN is of the
opinion he has complied with its terms, he shall confirm that in writing to the issuing
inspector and on the inspector being satisfied this is the case, w/in one month of
receipt of the confirmation the inspector shall give notice to the addressee of
compliance.
3
Prosecution in the Courts
Following prosecution, the Courts may impose fines or prison sentences (or both),
depending on the seriousness of the offence.
Most offences, including any breaches of Regulations under the Safety, Health and
Welfare at Work Act 2005 may be tried either in the :-
District Court, where the maximum penalty is €3,000 per charge and/or up to six
months imprisonment, or
on indictment in the Circuit Court where the maximum penalty is 3 million euro
and/or imprisonment for a term not exceeding two years (see Sec 78)
–
In addition to the above the person convicted can be ordered to pay the authority’s
costs and expenses.
4
Sec 79 provides for a system of on the spot fines by inspectors -(max fine €1,000)
for certain offences to be prescribed by regulations The HAS will not initiate a
prosecution before the due date of payment of an on the spot fine and if payment is
made on time no prosecution will be brought.
If a prosecution is brought the onus is on the accused to show a payment has been
made.
5
S85 introduces a so called “name and shame” facility which allows the HAS to
publish lists of those persons and corporate bodies :-on whom a fine or other penalty was imposed following a court conviction
-on whom a PN was served
-against whom an ex parte High Court injunction was obtained.
6
Personal Liability for Directors & Officers of Undertakings – I
Where an undertaking was prosecuted for offences under the 1989 act and it could be
proved that they were committed with the consent or connivance of or to have been
attributable to any neglect on the part of any director, manager, secretary or other
similar officer of the body corporate or a person who was purporting to act in any
such capacity, he as well as the body corporate would also be liable to be proceeded
against and punished accordingly..
S80(1) of the 2005 Act also provides for this but s80(2) shifts the burden of poof onto
the accused person. Thus where such a person is being prosecuted in this way and it is
proved that at all material times he was a director or a person employed by it whose
duty included making decisions that to a significant extent could have affected the
management of the undertaking or purported to so act there is now a rebuttable
presumption that the commission of the offences by the undertaking was authorized
by consent to or attributable to connivance or neglect on the part of that person.
Since Sept 1st 2005 any record held by the HAS arising out of its enforcement function
cannot be accessed under the Freedom of Information Acts.
Offences
Section 77 provides for two categories of offences. The first category applies to less serious
matters and the second category covers all of the more serious offences under health and
safety laws.
Section 80 makes explicit the responsibilities of directors and managers. Primary
responsibility for worker safety and health falls on employers, including in private companies
and in the public sector, because it is they, in effect, who create the risks. Company directors
and managers therefore carry a significant social responsibility to protect safety and health.
Joint Safety and Health Agreements
The Act introduces a new feature and provides that where employers and trade unions get
together and agree practical guidance on health and safety in an industry or sector, that
agreement can be recognised by the HSA and taken account of in enforcement .
Protection against Dismissal and Penalisation
Another new provision in the Act will ensure that employees have an avenue of appeal
against any form of penalisation in their employment, which results from carrying out their
duty in regard to safety matters
CASES
In The People (DPP) for the HSA v Smurfit News Press Ltd (Circuit Court, October 2004),
a record fine of €1 million was imposed on the defendant company after it pleaded guilty to 6
charges under the 1989 Act and various Regulations made under the 1989Act. The case arose
following two accidents which occurred two weeks apart in 2002 and from almost identical
circumstances. In the first incident, an employee was working at a printing press when his
right leg became trapped; his knee was later amputated below the knee. Two weeks later,
another employee at the same plant suffered a second serious injury when his hand became
trapped in a printing press, and as a result he injured his left. The Court was informed that the
causes of the accidents were inadequate guarding and a failure to prepare an adequate risk
assessment on the hazards involved in working on printing presses. The judge stated that the
incidents had displayed a cavalier attitude by Smurfit News Press Ltd to safety. He said the
company had placed the pursuit of profit over the safety of its workers and expressed the
view that the second accident should never have happened if the first accident, just two weeks
previously, had been taken seriously
The case of The People (DPP) for the HSA v Bus Eireann, Keltank Limited, Mc Ardles
Test Centre Limited and Meath County Council (Dublin Circuit Criminal Court, June 2008)
arose out of a bus crash in which five teenage girls were killed. The case was taken under the
1989 Act. The bus company, Bus Eireann, was prosecuted along with Keltank Limited who
had serviced the bus 18 days prior to the crash but had failed to take any steps to deal with the
fact that the ABS system on the bus was not working. Meath County Council was prosecuted
for failing to appoint project supervisors in respect of road works on-going on the road at that
time. Bus Eireann pleaded guilty of failing to maintain the bus and failing to ensure, in so far
as reasonably practicable, the safety of employees and were fined €2 million. Keltank
pleaded guilty to failing to ensure, in so far as is reasonably practicable, that persons not in its
employment were not exposed to risk and were fined €100,000 and Meath County Council
were fined €100,000.
In the case of The People (DPP) for the HSA v Kilkenny Limestone (Thomastown District
Court, February 2008) the court imposed a fine of €2,000 following an accident whereby a
diamond rope flew and struck a worker on the back. The HSA prosecuted the employer as
there was no guard on the fly wheel of the diamond rope. The employer was guilty contrary
to section 8(2)(a) of the 2005 Act of failing to manage its affairs to ensure the safety health
and welfare of its employees.
The People (DPP) for the HSA v JR Perry Limited (Naas Circuit Court, March 2009) was a
case where a 17 year old worker was left paralysed after a weight of 980kg fell on him. The
court found the company guilty of failing to provide information, training and supervision as
required by section 8(2)(g) of the 2005 Act. The company was also found guilty of failing to
comply with the Safety, Health and Welfare at Work (Children and Young Persons)
Regulations 1998. The company pleaded guilty and fined €35,000.
DPP for HSA v Gibson Brothers (Ireland):
Gibson Brothers (Ireland) were fined €30,000 when the roadworks it was carrying out caused
an elderly man to fatally trip and fall.
Martin v Dunnes Stores (Dundalk): Court of Appeal, March 2016
Court of Appeal has held an employer was not liable for injuries suffered by an employee
who had been provided with manual handling training but carried out a manual handling task
contrary to the system of work in place.
McDonagh v Vikram Limited t/a The George Pub: High Court, Dublin, November 2015
A man, who admitted to being ‗merry‘, was awarded damages of €44,000 by the High Court
recently, after he fell as he left the smoking area of a pub.
Prosecutions – Health and Safety Authority (hsa.ie)
5.0 EMPLOYMENT EQUALITY LAW
5.1. The Employment Equality Acts, 1998-2015
The Employment Equality Act, 1998-2015 were enacted to promote equality and to combat
discrimination victimisation and harassment in the contexts of employment, and application and
training for employment. The Act covers employees, trainees, and applicants for jobs both in the
public and private sectors.
The acts implement the equal treatment directives:
•Directive
2006/54/EC of 5 July 2006 on the implementation of the principle of
equal opportunities and equal treatment of men and women in matters of
employment and occupation (recast). It replaces the Equal Treatment
Directive (76/207/EEC) and the Equal Pay Directive (75/117/EEC).
S.6 of the 1998 Act defines discrimination as: the treatment of any one person less favorably than
another is, has been or would be treated, on any one of the nine stated grounds.
•
•
The gender ground: A man, a woman or a transsexual person (specific protection is provided
for pregnant employees or in relation to maternity leave);
The civil status ground: civil status’ means being single, married, separated, divorced,
widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and
Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by
death or been dissolved;”; (S102(2) Civil Partnership Act 2010);
•
•
•
•
•
•
•
The family status ground: A parent of a person under 18 years or the resident primary carer
or a parent of a person with a disability;
The sexual orientation ground: Gay, lesbian, bisexual or heterosexual;
The religion ground: Different religious belief, background, outlook or none;
The age ground: This applies to all ages above the maximum age at which a person is
statutorily obliged to attend school;
The disability ground: This is broadly defined including people with physical, intellectual,
learning, cognitive or emotional disabilities and a range of medical conditions;
The race ground: A particular race, skin colour, nationality or ethnic origin;
The Traveller community ground: People who are commonly called Travellers, who are
identified both by Travellers and others as people with a shared history, culture and
traditions, identified historically as a nomadic way of life on the island of Ireland.
Some examples of what would be regarded as discriminatory practices:
Gender: any practice whereby a female employee receives less pay than her male comparator (and
there is no other justifiable reason).
Civil Status: a female applicant for a position is asked questions at an interview in relation to her
marital status and the number of children she has and male applicants are not asked these questions
at the interview.
Age: an employee is considered too old and close to retirement to gain any benefit from training
in IT.
Direct and Indirect Discrimination
The 1998-2015 Acts prohibit not only direct forms of discrimination but also indirect
discrimination.
To establish direct discrimination, a direct comparison must be made between the treatment of the
complainant and a comparator: for example:
1 Where Disability Discrimination is claimed, the comparison must be between a person who
has a disability and another who has not, or is a person with a different disability.
•
Direct discrimination on grounds of sex arises where one person is treated less favourably
than another of the opposite sex. For example in Bradley -v- Eastern Health Board where
the claimant rang the defendants to apply for a position as a laundry worker but was informed
that it was a job which would be unsuitable for a man.
•
Indirect discrimination occurs where a requirement which may appear on the surface nondiscriminatory, adversely affects a particular group or class of persons. Indirect
discrimination is concerned with impact, when practices or policies discriminate against one
group more than another.
For example, take an organisation/ firm where significantly more females than males are employed
on a part-time basis and the vast majority of full-time employees are male. If it is stated to be a
condition precedent for consideration for promotion within that organisation that an employee is
required to have a certain number of years of full-time service, this requirement would be indirect
discrimination, if it could not be justified by objective factors.
Discrimination by Association –
• this happens where a person associated with another person (belonging to a specified
ground) is treated less favourably because of that association.
Areas where discrimination is unlawful
An employer must not discriminate against any person in relation to access to employment,
conditions of employment, classifications of posts, access to training, promotion or or termination
of employment
The Minister for Justice and Equality and The Commissioner of the Garda Síochána
v Workplace Relations Commission 4/12/18 CJEU
•
•
•
The CJEU determined that the primacy of EU law means that national
courts, and other organs of the State called upon within the exercise of their
powers to apply EU law, have a duty to give full effect to those provisions
and, if necessary, refuse to apply a conflicting provision of national law.
Therefore, the WRC has an obligation to ensure that EU law is fully effective
and may dis-apply any provision of national legislation that may be contrary
to EU legislation in a specific case but did not have powers to strike down
the provision generally.
Three men Boyle, Cotter and Fitzpatrick who sought to join the Gardai between
2005 and 2007, and were refused based on the Garda Síochána (Admission and
Appointments) Regulations 1988, which set the upper age limit for entry as a
trainee at 35., brought complaints before the Equality Tribunal (the predecessor
•
•
to the WRC) that the maximum age limit for entry amounted to age discrimination
under the Employment Equality Act 1998. The 1998 Act gives effect to the EU
Directive on equal treatment in employment.
The Minister took Judicial Review proceedings in the High Court challenging the
authority of the Tribunal to consider the case. The High Court held the Tribunal
was not entitled to declare that a national law was inconsistent with EU law, this
being a power given to the High Court under the Constitution.
This case was appealed to the Supreme Court which found that the WRC did not
have power under national law to disregard legislation, but referred a question to
the CJEU to decide whether a body such as the WRC has the authority under EU
law to make a binding legal declaration where national and EU laws are
inconsistent and disapply national law The CJEU said it did in specific cases..
When the case went back to the WRC the
•
•
•
(WRC) Adjudication Officer, found that Brian Fitzpatrick and Ronald Boyle
were discriminated against by the Garda Síochána on the grounds of age
when seeking to join the force.
Mr Jackson has ordered each man be paid €12,700, the maximum
compensation allowed under the equality legislation when the men initiated
their cases in 2006/07 for “the distress suffered as a result of this
discrimination.”
The WRC adjudicators found that the age limit applied to the two men’s
Garda applications was not proportionate and was discriminatory. The
adjudicator found that the Garda Commissioner had not shown that there
would be a significant number of members of gardaí unable to perform
physically demanding tasks if this upper age limit did not apply. The Garda
Commissioner had also not shown that the maximum recruitment age could
be justified on the basis of training requirements or the need for a
reasonable period of employment before retirement.
Thus the legislation impacts on how a business:
1 Recruits employees – advertising, interviewing etc
2 Conditions of employment An employer must not discriminate either directly or
indirectly, in relation to conditions of employment
3 The reasons for termination/dismissal cannot be based on discriminatory grounds
4 An employer is required to reasonably accommodate a person with a disability to
access, participate or advance in employment and undertake training where same is
not a disproportionate burden and cannot discriminate on the basis of disability
5 An employer is obliged to prevent Harassment and Sexual harassment in the
workplace.
There should be codes of practice on dealing with bully, harassment and sexual
harassment in the workplace
Codes of Practice are sets of written rules which define how persons or bodies must act in given
situations.
Under the Industrial Relations Acts, the former Labour Relations Commission (LRC) drafted a
number of such codes of practice governing behaviour within the industrial relations and
employment sphere. With the enactment of the Workplace Relations Act 2015, the function of
drafting such Codes of Practice has now transferred to the Workplace Relations Commission
(WRC).
The Equality Authority published a code of practice on bullying in 2002
The Health and Safety Authority published a code of practice on bullying by regulation made
under the 2005 Act in 2007 – the code provides practical guidance. Failure to follow it is not an
offence but the code is admissible in evidencein criminal proceedings under the Safety Health
and Welfare at Work Act 2005.
SI 208 of 2012 Code of Practice Harassment Order – establishes an approved code of practice
under the Employment Equality Act 1998.
Thus the Minister by means of secondary legislation has established an approved code
of practice
This code aims to give practical guidance to employers, employers’ organisations,
trade unions and employees on:
— what is meant by sexual harassment and harassment in the workplace
— how it may be prevented
— what steps to take if it does occur to ensure that adequate procedures are there to
deal with it and prevent recurrence
The code seeks to promote policies and procedures for ensuring that working
environments fare free of sexual harassment and harassment .
The code does not impose any legal obligations on an employer. It is in effect a
voluntary standard.
The provisions of this code are admissible in evidence and if relevant may be taken
into account in any criminal or other proceedings
It is a defence for an employer to prove that the employer took reasonably practicable steps
to prevent the person harassing or sexually harassing the victim or (where relevant) prevent
the employee from being treated differently in the workplace or in the course of
employment (and to reverse its effects if it has occurred). The employer should specify
that the act must not occur before the saver can take effect under the acts. If an employer
has a policy in line with the code in the SI it aids in showing he took reasonable practical
steps to prevent harassment.
The Labour Court has made it clear that whether or not an employer has a formal
complaints procedure in place will be very relevant in determining liability. Suggested
procedure in Code of Practice, firstly informal and then formal. As part of the procedure,
the employer should distribute a policy statement => known to be seen as a disciplinary
offence
__________________________________________________
The aim of recruitment is to obtain the best candidate for the job . in order to do that the
following is suggested:
1 Identify the job- area, purpose, location, who the person would report to, hours, salary,
any specific qualifications/competencies required.
Advertisement should refer to the job and the qualifications and competencies required
and void discriminatory references – young person – waitress –
Advertising
It is prohibited to publish, display or cause to be published or displayed an ad which relates
to employment which indicates an intention to discriminated or might be reasonably
understood to indicate such an indication.
Claims can only be referred by Equality Authority:
Equality Authority v Ryanair Sought [2001] ELR 107 “young & dynamic person” airline
fined £8,000
Lidl was ordered to pay €5,000 compensation to the complainant by Equality Tribunal when they
advertised for a graduate with no more than 2/3 years’ experience.
2 Establish selection criteria for interview based on the requirements of the job and before
assessing cv’s
South Eastern Health Board v Bridget Burke (EDA0410) the interview and selection
committee met on the morning of the interview and selected 2 candidates after checking
their cvs
3 Ensure access to interview Harrington v East Coast Area Health Board DEC – E
/2002/001 – Employer required to facilitate a person with a disability subject to
‘disproportionate burden
Interviews whether the interview was conducted in a discriminatory manner.
Descriminatory questions/comments are evidence of discrimination in relation to
appointment itself
4 Interviews should be conducted by at least 2 people who have had training in
interviewing. Preferably they should not be of the one sex
5 A marking scheme should be devised with the majority of the marks to be for the key
competencies for the role.
6 Questions should refer to the requirements of the job and should not be either directly or
indirectly discriminatory.
Employers should avoid asking questions about issues such as childminding arrangements and
the applicant’s marital status. If they are essential questions they should be asked of all
applicants. In Chaney -v- UCD the claimant was asked during the course of an interview,
questions regarding her child-minding arrangements for her children. The Equality Officer
found this question to be discriminatory.
Similarly in the case of O’Connor -v- The Southern Health Board the applicant was asked had
she done any night shifts since the birth of her baby. The Health Board was directed to pay
compensation and recommended she be appointed as a permanent nurse.
Discriminatory comments prior to interview are covered per Rodmell v Trinity College Applicant
referred to as the “lady electrician”
7 The same core consistent, transparent and objective criteria related topics/questions should be
asked of all candidates.
8 Each interviewer should score the candidates against the objective criteria.
9 Detailed notes should be taken of all the interviews and the reasons why each candidate was
either successful or unsuccessful should be documented. Notes should only be taken in relation
to professional competencies and not in relation to the 9 categories. This information should be
kept for at least 12 months after the recruitment process and should be available to
unsuccessful applicants such that they can see their scores as is their right.
2 Conditions of employment
An employer must not discriminate either directly or indirectly, in relation to conditions of
employment for example terms of employment (other than pay) and treatment in relation to
overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures.
Refusal to allow female nurses to work overtime when overtime was available to male nurses
amounted to unlawful discrimination in South Eastern Health Board -v- Mulhall.
Training and experience given to the employees
It is unlawful to discriminate in the provision of training or work experience. (There are some
exceptions).
Promotion
There should be no discrimination in the promotion opportunities for any employee.
There should be no discrimination in relation to pay
3 Termination The reasons for termination or selection for dismissal cannot be based on
any of the discriminatory grounds as same would amount to a discriminatory dismissal. Please
note one could have a constructive discriminatory dismissal where an employer fails to deal with
bullying or harassment or sexual harassment.
• O’Doherty v John Paul Hennessy Jnr & Harrow Holdings Ltd [1993] ELR 161 – claimant
alleged subjected to sexual harassment by a member of 1st named respondent’s family. She
complained to manager – nothing done so she left and claimed constructive dismissal.
•
•
•
EAT held conduct concerned was sexual harassment which justified termination and
amounted to constructive discriminatory dismissal
Absence of a procedure for dealing with such complaints has been used by labour ct on a
no of occasions to confer liability on Er for sexual harassment even where er unaware of
allegations.
Procedures are a requirement of the Codes of Practice on Bullying and Harassment
Positive Discrimination
The concept of positive discrimination or affirmative action includes any measure taken by an
organisation “to identify and eliminate any discrimination in its employment policies and practices,
and to put right the effects of past discrimination.”
Some Exceptions to an Employer’s Obligations Under the Act
Discrimination is not unlawful where it can be shown that a person’s sex is a genuine
occupational qualification for the job. The Act does not however, provide any blanket
exceptions, in every case it will be for the employer to show that the relevant criteria apply
to the job in question. The criteria are provided in Sections 25 and 26.
•
•
•
•
•
nature of the job requires a particular sex for reasons of physiology or authenticity, to the
extent that the job would be materially different if done by a member of the other sex. For
example, modelling, acting.
where the duties of the post require personal services and it is necessary to have both sexes
involved. Section 26 gives the example of caring for an elderly or disabled person in that
person’s home.
where by ‘the nature of the work’ employees have to spend at least some time living on the
job and sharing sleeping and sanitary facilities and where it would be unreasonable to expect
an employer to provide separate facilities or impractical for him to do so.
where the job is likely to involve duties outside the state in a country whose laws and
customs are such that those duties could not be performed by a man (or a woman).
exception is made for the filling of a post in the Prison Service or Garda Siochana where
there are not already sufficient members capable of carrying out duties such as maintaining
order in relation to violent persons or disturbances or where the post requires personal
supervision or personal searches or interviewing persons in connection with the investigation
of sexual offences.
In Brady -v- Irish TV Rentals, the employer was held to have discriminated in favour of male
applicants for a position as security guard on the basis that male staff would be more likely to deter
thieves. This was not an occupational qualification for the job.
__________________________________________________________________
4 Disability – Reasonable Accommodation
An employer is obliged to take appropriate measures to enable a person who has a disability –
•
to have access to employment
•
to participate or advance in employment
•
to undertake training
unless the measures would impose a disproportionate burden on the employer.
Appropriate measures
They are effective and practical measures to adapt the employer’s place of business including:
the adaptation of premises and equipment, patterns of working time, distribution of tasks or the
provision of training or integration resources.
The employer is not obliged to provide any treatment, facility or thing that the person might
ordinarily or reasonably provide for himself or herself.
Disproportionate burden
In determining whether the measures would impose a disproportionate burden, account is taken of
a) the financial and other costs entailed
b) the scale and financial resources of the employer’s business, and
c) the possibility of obtaining public funding or other assistance.
Disability Cases
In Humphries v Westwood Health & Fitness Club Unrep CCT 13/2/2004
Labour Court held dismissal wholly or mainly due to her disability (anorexia) and awarded
€13,000 for a dismissal in breach of fair procedures.
1
Labour court said it was clear from the letter sent to Ms H of 6th June 2002 that her
dismissal arose wholly or mainly from the respondent’s belief that the disability from
which she suffered impaired her ability to carry out the duties for which she was
employed
.Therefore she was treated less favourably than someone who didn’t suffer from such
a disability resulting in the same perceived impairment would have been treated –
thus the dismissal was prima facie discriminatory.
2
The Labour Court then looked at the s16 saver re and said to successfully avail of this
will normally require a 2 stage process:(i)investigate factual position re ee’s capacity – look at med evidence of ee’s dr or
independent evidence
(ii) if not capable S16(3) requires ER to consider what if any special
facilities/treatment may be available to render ee fully capable and whether the
cost is a disproportionate burden on er. (depends on size & resources of business)
(iii) ee must get an opportunity to participate at each level & present relevant
evidence.
There was an appeal to the Circuit Court.
Dunne J held that anorexia was a disability w/in the meaning of the Acts for which fair
procedures and medical advice were required before the decision to dismiss was made. She
noted there were legitimate concerns in Jan-June 2002 re plaintiff’s health but er simply jumped
the gun – thus she affirmed the decision.
A Worker v Cascella t/a Donatello’s Restaurant (Labour Court ED No 2004/043)
The Labour court determined that symptoms of diabetes amounted to a disability.
Waiter engaged initially on a 2 week period trial. The day prior to end of trial he collapsed due to
low sugar levels. Employer told him to go home and return the next day – he did and on return
was dismissed. He argued Employer made no attempt to ascertain the nature of his disability or
any requirements he had to be reasonably accommodated.
ER said not offered employment after trial due to poor punctuality, skills not of the required
standard and complaints received from customers. Evidence from other ees of his poor
performance. Er told employee dismissed due to lack of business – said they said that to avoid
upsetting him. Labour Court held against Er Rejected argument that coincidence dismissal 24
hours after collapse .Never put to employee position in jeopardy. Disability was a factor in
decision Not given an opportunity to influence decision
In Customer Perception Limited v Leydon [2004] ELR 101
Labour court determined a temporary injury suffered by an employee as a result of a road traffic
accident constituted a disability.
Labour court gave plain and ordinary meaning to “malfunction – of a person’s body”.
Claimant a business development exec who travelled to retail outlets using her own car . MD
outlined plans in Jan to make her a field sales rep. Not told continued employment dependent on
having a car. In April she was in a car accident and needed physiotherapy which required taking
1 day off per week for 6 weeks. She discussed this with MD and asked for time off for it. Later
that day MD met with her and told her she was dismissed – as did not have a car and thus could
not perform her work.
Labour court said
– it was up to respondent to prove that was the reason and not disability
– but respondent had not established that a car was the only suitable type of transport,
public transport was viable at least in the short term.
An Employee v A Government Dept Equality Tribunal E2005/034
EQ Trib determined alcoholism is a disability w/in the meaning of the acts and thus
discrimination on said ground is prohibited.
Complainant employed in grade since 1979 – received treatment for alcoholism in 1995 – since
then recovering – unsuccessfully applied for promotion in 2003.
Siad members of promotion panel aware of his disability and alleged discrimination due to
disability.
8 candidates placed on panel got less marks than him
Of 24 on panel – 1 got C, 14 got a B same as complainant
Only 1 candidate had similar service (21 to his 23 years) other 3-9 range
EQ Tribunal found for him
Thus an Er would need to tread carefully re an ee with a pattern of coming into work under the
influence of alcohol – if he informs er he is an alcoholic then not a good idea to treat it as gross
misconduct – as a disability it is governed by the rules re fair procedures and reasonable
accommodation
A Hotel v A Worker Det No EDE0721
Employee who suffered from osteoarthritis which caused her difficulty in climbing stairs. She
resigned from her job after 2 days as the company failed to make any attempt to accommodate
her need not to have to climb 22 steps. Dispute as to whether or not she had advised Er of her
disability at interview.
The Labour Court described the duty to provide reasonable accommodation pursuant to s16 as
“The duty to provide special treatment or facilities is proactive in nature. It includes an
obligation to carry out a full assessment of the needs of the person with a disability and of the
measures necessary to accommodate that person’s disability”.
It further stated the defence could not be relied on if with the assistance of special treatment the
complainant would have been capable of performing her duties.
No evidence management sought to define exact nature of disability or made any appropriate
enquiries re measures that might enable her continue with employment and no evidence of any
discussions with staff re alternative arrangements.
Compensation of €10,000 was awarded.
Louise Hannon v First Direct Logistics Ltd.
Decision No. DEC-E2011-066 Ground: Gender and Disability
When Ms Hannon initially revealed her true identity to the company in October 2006 she
intended to resign her position to work in an open environment but was persuaded to remain on.
In December 2006 the complainant sought to clarify when she could begin to change over to her
female identity at work and was asked to wait a couple of months to allow a new staff member to
settle in.
Ms Hannon had an appointment to change her name by deed poll on 5th March 2007 and arrived
in the office the following day in her true gender using her female identity. She requested that
her email be changed over to her new name. Ms Hannon was told that she must complete her
sales over the phone in her male identity and that the Operations Manager would meet any
clients personally should the need arise and that she may have to work using her male identity
until Christmas 2007. Later that month the Operations Manager approached Ms Hannon and
expressed concerns about her productivity. The complainant claims she was asked to revert to
her male identity for another three month period. The Director of the company subsequently
agreed that she could return to the office dressed as a woman but asked that she change into her
male identity when seeing clients. Ms Hannon found this request very difficult to comply with
and she dealt with clients over the phone instead although she did meet with client companies in
her male identity on two occasions. The complainant also claims that she was asked not to use
the female toilets.
In April 2007 the Complainant was asked if she would move to the new office where she could
work in her female identity but was asked if she could work from home until such time as the
office was set up. The complainant agreed as she understood this to be a brief interim period of
one month.
The complainant found it very difficult to work from home as her leads dried up when she was
out of the office environment. However, despite requests the complainant was not allowed to
return to the office and was informed that a new person had started and there was no room for
her. On 19th July 2007 the Director contacted her to inform her that he was not happy with her
work and that she needed to produce new clients in the next weeks if she wanted to keep her job.
Ms Hannon subsequently met with the Director and requested that she be allowed to return to the
office but her request was refused on the basis that her presence caused a bad atmosphere. The
complainant decided that she had no alternative but to leave her employment at the end of July
2007.
Ms Hannon made a complaint re First Direct Logistics Ltd
The Equality Officer stated that transsexualism is a recognised medical condition which is
treated by a combination of hormone therapy, surgery (in some cases) and “real life experience”
and that to gain “real life experience the person must be able to live their life continuously in the
other sex without the need to revert to the birth sex”. This applied to the work place and that
there is an obligation on employers to accommodate such “real life experience” she added.
The Equality Officer found
(1)that the plan formulated by the company to allow the transition from male to female was
clearly a unilateral approach which had not been fully explored with the complainan and was
satisfied that requesting Ms Hannon to switch between a male/female identity whenever the
respondent felt the need for it constituted direct discrimination on the gender and disability
grounds.
(2) there was not a genuine business need for the complainant to work from home. She found
that had Ms Hannon remained in her male identity she would not have been requested to work
from home. She concluded that the request to work from home was discriminatory on both the
gender and disability grounds.
The Equality Officer found that the Respondent had little if any understanding that the gender
transition process was a form of treatment relevant to the complainant’s condition. She was
satisfied that an employer has a duty to obtain enough knowledge about an employee’s disclosed
disability to ensure that their actions do not discriminate against a person whose disability may
require the person to behave or act in a certain way. While the Equality Officer found the
complainant did not require reasonable accommodation per se, she did require a workplace that
recognised her right to dress and be identified as a female. The Equality Officer pointed out that
the difficulties concerning the complainants gender lay entirely with the respondent and that it
was apparent that the company presumed that there would be negative consequences because of
the complainant’s female identity.
The Equality Officer found that the complainant had suffered discriminatory treatment on the
grounds of gender and disability.
(4) that Ms Hannon received no relevant support from the company and was isolated in her home
from late April 2007. She found that the respondent’s approach amounted to discriminatory
dismissal on the gender and disability grounds. The issue of victimisation was raised in relation
to ex-gratia payments but this was not upheld. The Equality Officer awarded redress in the sum
of €35, 422.71. She also ordered the company to pay the complainant interest at the courts rate
on the award.
A shop Assistant v A Retail Store 8/3/2018 WRC Adjudication
The shop assistant had her job terminated on grounds of her long-term absence from
work. She was on sick leave from 24 February 2016 until dismissal in June 2017 as she has f
a serious shoulder and sole problem which she stated may have been caused by temperature
and the lifting of heavy weights in the workplace. She was in the same position for seven years
in her employment. After 8 meetings with her Employer where the complaint was never able to
give a date when she might return to work, the Complainant was dismissed. She had submitted
medical certs monthly. She was dismissed on 2 June 2017, giving four weeks’ notice, because
of her medical condition. She contends that the Respondent discriminated against her and she
cited two comparators who were on long term illness absence and were not dismissed,
(Comparator H and Comparator F who are still in the employment).
The Complainant
further contends that the Respondent acted prematurely in moving to dismiss her while a
pending surgery has not been carried out. She further states that the Respondent acted
unfairly by refusing to accede to her request to be medically assessed and provide medical
reports from the Respondent’s doctor.
It was found that:
Ms H is not a valid comparator for the reason that she was not on sick leave for the same length
of time as the Complainant but it was common case Ms F was.
There was a flaw in the Respondent’s position by not referring the Complainant for an
assessment by a doctor designated by the Respondent. However, the Respondent’s evidence
that no number of referrals would have resulted in the Complainant being fit to return to work in
any reasonable period was accepted. The Respondent made some effort to offer an
accommodation to the Complainant for her to return to work by asking her in the June meeting if
they could do anything to helpher return to work , but the key issue is that the Complainant was
unable to provide an indication of a return to work or even partial return date.
It was found that the Respondent had formed the bona fide belief that the Complainant was not
fully capable of performing the duties for which she was employed and that the Complainant’s
complaint of discrimination is not upheld.
Mr O v An Industrial Waste Management Company Tribunal decision of [E2103/142
Mr O was a service operative doing manual handling during which he sustained neck injury.He went on
sick leave in aug 2008. In June 2009 his orthopaedic surgeon said his work situation needed to be
reduced criticially to reduce his degree of bending and lifting.. Hisemployment was terminated in March
2010.
38k was awarded by the Tribunal who agreed with the complainant that the respondent made an
assumption that he could do no manual handling whatsoever and that it was merely going through the
motions before discontinuing his employment and that the respondent was hasty in dismissing his
suggestions for appropriate measures. Furthermore the Tribunal found that that the respondent was not
pro-active in exploring appropriate measures in order to accommodate Mr. O’s return to work. The
respondent’s Occupational Health Advisor for example did not speak with Mr. O’s surgeon nor did she
seek a second opinion from another orthopaedic consultant.
Neither was the Tribunal satisfied that the suggestions by Mr. O for reasonable accommodation – the
useof an electric pallet truck or being transferred to cardboard duties would have placed a
disproportionate financial burden on the respondent. Bearing in mind that the respondent is a multinational enterprise with significant resources the Tribunal found it did not sufficiently explore options in
order to continue to employ Mr. O.
________________________
Discriminatory dismissal
• Discriminatory dismissal – focus on discrimination not on fairness ‘, unfairness is not of
itself determinative of discrimination’ (Labour Court)
• Once WRC has commenced an investigation into a dismissal case a person cannot
normally refer a dismissal case under Unfair Dismissals legislation
• But after investigation an Equality Officer/Labour Court can allow referral under UDA
Dismissal and disability see above cases
Dismissal and Race
• The fact that a person of a particular race has no actual comparator with whom to
compare is not necessarily detrimental to his/her case
• The application of the same procedural standards to a non-national worker as are applied
to an Irish national may be discrimination
Dismissal and Harassment
• Harassment – an employee can claim constructive dismissal where an employer fails to
deal adequately with his/her complaint
• Employee can argue that he/she was entitled to regard the contract of employment as
repudiated and as a result reasonable to resign in the circumstances
Dismissal and Age
• In July, 2001, the Labour Court found in favour of a woman who was dismissed by a firm
of solicitors on age grounds. The female worker was told that she was being made
redundant because it had been decided to “take on a young girl who could be trained to
do her job”
• Can have different retirement ages for different categories of worker
• Not discriminatory to fix ages for admission to a redundancy scheme
• Not discriminatory to use age to determine who has the longer service where 2 people
commence employment on the same day provided this is contained in a collective
agreement.
Positive Action
Employers can take steps with a view to ensuring full equality in practice between employees on
all of the nine discriminatory grounds.
Victimisation
It is unlawful for an employer to penalise an employee for taking action around the enforcement
of the Employment Equality Acts 1998 – 2015 and the Equal Status Acts 2000 -2015.
Victimisation occurs where the dismissal or other adverse treatment of an employee is a reaction
by the employer to
(a)
(b)
(c)
(d)
a complaint of discrimination made by the employee to the employer,
any proceedings by a complainant,
an employee having represented or otherwise supported a complainant,
the work of an employee having been compared with that of another employee
(e)
(f)
(g)
for any of the purposes of these Acts or any enactment repealed by these Acts,
an employee having been witness in any proceedings under these Acts or any such repealed
enactment
an employee having opposed by lawful means an act which is unlawful under these Acts or
any such repealed enactment, or
an employee having given notice or an intention to take any of the actions mentioned in the
preceding paragraphs.
REDRESS
Go to WRC – Appeal to Labour Court and appeal on a point of law to the High Court.
Case of discrimination on the grounds of gender may be brought to the Circuit Court whch may
award compensation under S82 of the 1998 Act even if it is outside its jurisdiction.
Time limits 6 months but it may be extended to 12 months for reasonable cause
WRC Act 2015 provdes that the WRC may refer a case to mediation where it appears it could be
resolved that way.
A claim of discrimination re recruitment by Civila Service, Local Appointments Commission,
Garda, Defence forces must first be made to the recruitment authority.
Awards of compensation
WRC and the Labour Court gave compensation for hurt feelings under the 1977 Act although
there was no specific provision for them to do so.
S82 of the 1998- 2011 Acts provide for “an order for compensation for the effects of acts of
discrimination or victimisation which occurred not earlier than six years before the date of the
referral of the case”
Awards
Equal treatment cases awards not exceeding 2 years pay
Assessing Injury –
Relevant principles per EAT were
1
Such awards are compensatory and should be just to both parties not punishment
2
Awards should not be too low –to respect anti-discrimination policy but not too high
to be unjust riches
3
Awards should be broadly similar to PI awards
4
Tribunal should bear in mind the value of the sum – ie purchasing power.
5
Tribunal should bear in mind need for public to respect the awards.
Dismissal cases – re-instatement or reengagement of a max of 2 years pay
________________________________________________________________________
5.2. Equal Pay
Section 19 of the Employment Equality Act now governs the entitlement to equal remuneration
without discrimination on grounds of sex.
Section 29(1) prohibits discrimination in relation to remuneration arising from grounds other than
gender.
Remuneration includes any consideration, whether in cash or in kind, which an employee receives,
directly or indirectly in respect of his employment from his employer. Remuneration has been
interpreted widely as including bonus payments, pensions, marriage gratuities, overtime payments,
redundancy lump sum payments, house purchase loans, commission to sales assistants and salary
paid in respect of sick pay.
The guarantee to equal pay therefore has four conditions.
1.
In order to be successful in her claim the woman (or man) must find an actual comparator in
order to compare both the job itself and the rate of pay There is no provision for comparison
with a ‘hypothetical’ comparator doing like work.
2.
The individuals must be employed in the same place of employment. This however, tends
to be interpreted widely for example in Ostlanna Iompair Eireann Teo -v- 9 Female
Employees the catering staffs at Connolly Station, Busaras and Heuston Station were
employed in the same place. In PMPA -v- 3 Women Insurance Officials it was held that
where remuneration is fixed centrally even though the employees are working in different
localities, the requirement is met. Here the Equality Officer found that 3 female employees
working in the company’s office in Waterford were working in the same place as men in the
Kilkenny office.
3.
The employees must be employed ‘by the same or associated employers’. In Clonskeagh
Hospital -v- 2 telephonists, the Health Board was held to be the same employer for two
telephonists employed in different hospitals. However, in Brides v Minister for Agriculture
[1998] ELR 125, it was held that the female claimants employed by the Department were
not entitled to equal pay with male employees of Teagasc since the claimants and
comparators (although doing the same work) could not be said to be employed by the same
or an associated employer
4.
The claimant and comparator must be employed on ‘Like work’.
Section 7 provides that two persons will be regarded as employed on like work, where:
(a)
both perform identical work (i.e. where one could do the other’s job with little or no
notice.) The tribunal/court in examining a claim under this head will focus on the reality
of the situation and will not be guided only by labels or notional job descriptions.
Theoretical duties will not be considered. In Department of Posts and Telegraphs v
Kenneffick the employer attempted to defend a disparity in pay between a male and female
clerk doing ostensibly identical work on the grounds that the man’s job carried additional
duties, although he was seldom called upon to perform those duties. The Labour Court
refused to be guided by the job descriptions and the employer’s defence failed.
(b)
the work performed by one is of a similar nature to that performed by the other and any
differences occur infrequently. In Dowdall O’Mahony v 9 Female Employes, the
claimants and comparators were general factory operatives. The former group’s equal
pay claim was upheld on the grounds of similar work there being only minor and
infrequent differences between the work done by both groups. The Equality Office stated:
“a difference in work performed by 2 workers which warrants a difference in pay is an
actual difference in terms of skill, effort or some other factor which, under normal
circumstances in the employment in which the work is performed would give rise to a
difference in pay irrespective of which workers were performing it.”
(c)
the work performed by one is equal in value to that performed by the other in terms
of the demands it makes in relation to such matters as skill, physical or mental
effort, responsibility and working conditions. The purpose of Section 7(c) is to
allow jobs which are very different in content to form the basis of an equal pay
claim if it can be shown that the work performed by the claimant and the
comparator are equally demanding. There is a weighing of factors such as the
amount of skill, physical or mental effort and responsibility and environmental
conditions.
For example in Hayward -v- Cammel Laird Shipbuilders Ltd, a female cook employed in
the cafeteria at the employer’s shipyard sought equal pay with men employed as painters,
thermal insulation engineers and joiners. The work was examined under five headings:
physical demands, environmental demands, planning and decision making, skill and
knowledge required and responsibility involved. On the basis of this evaluation the jobs
were found to be equal in value.
Employer’s Defences
In a gender-based equal pay claim, the employer must point to objective factors
unconnected to sex, if he is to successfully defend the claim. The Act itself is silent on
what constitutes an objective justification for discrimination in pay. The following grounds
have been identified by the judiciary as acceptable justifications in appropriate
circumstances: red circling, prior experience, length of service, employee’s responsibilities
or performance, employee’s job content.
The defence of red circling, for example, is typically used to justify a situation where a person is
employed in one grade but receives remuneration associated with a higher grade. The disparity
between the employee’s grade and salary may be due to changing circumstances in the workplace,
ill-health or other personal circumstances. In those types of situation, the employer may be able
to rely on the defence of red-circling to justify what would otherwise be unequal pay for like work.
However, the employer’s claim will be carefully examined to see if there is a genuine red-circling
arrangement in place or whether this is simply an artificial device to avoid the allegation of
discrimination on grounds of sex. In Irish Crown Cork Co. Ltd v SIPTU the company accepted that
the claimant and comparator did work of equal value but sought to justify a difference in their
respective remuneration on the basis of red-circling. The employer argued the comparator was
entitled to the higher rate of pay because he was available to work on a particular machine and was
therefore of greater economic value to the employer. The Labour Court rejected this argument
noting that it was based on a stereotypical perception of male strength. In all the circumstances,
the Court believed the comparator’s higher rate of pay was based on the fact of that he was a man.
The culture of the company clearly identified particular jobs as men’s jobs and others as typically
women’s jobs. The workforce was predominantly female.
In the case of a claim for equal pay, in the context of alleged discrimination on grounds other than
sex, the employer will be required to show that the practice was reasonable in all the circumstances
(section 29(4)(d)).
_________________________________________________________________________
5.3.
Harrassment and Sexual Harassment
Sexual harassment
– difficult to assess how widespread the problem is
– power based as opposed to sex based
– difficult to isolate from what is acceptable
– verbal and sexual requests and advances which are unwanted and unwelcome
– practical jokes which are unwanted/unwelcome
– if employer tolerates sexual harassment the employer could be found to condone sexual
harassment
– sexual harassment is a form of sexual discrimination within the meaning of the Act
2 categories of sexual harassment
i) quid pro quo (i.e. opportunity offered in return for compliance with sexual requests)
ii) abusive environment (i.e. persistent atmosphere of harassment – language, jokes, advances)
Sexual harassment and harassment of an employee (including agency workers or vocational
workers) is prohibited in the workplace or in the course of employment by
a)
another employee
b)
the employer
c)
clients, customers or other business contacts of an employer including any other person
with whom the employer might reasonably expect the victim to come into contact and the
circumstances of the harassment are such that the employer ought reasonably to have taken steps
to control it.
The Acts prohibit the victim being treated differently by reason of rejecting or accepting the
harassment (or it could reasonably be anticipated that he or she would be so treated).
Harassment is any form of unwanted conduct related to any of the discriminatory grounds. S8(7)
Sexual harassment is any form of unwanted verbal, non–verbal or physical conduct of a sexual
nature. S8 of 1998 act as amended
In both cases it is conduct 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.
In both cases the unwanted conduct may include acts, requests, spoken words, gestures or the
production, display or circulation of written words, pictures or other material.
+Sexual harassment or harassment of an employee is discrimination by the employer.
The 1998 and 2004 legislation provides a definition of sexual harassment:
(a)
“Any act of physical intimacy by B towards A, other than an act which no reasonable
person could consider to be sexually offensive, humiliating or intimidating to A;
(b)
any express request by B for sexual favours from A; and
(c)
any other act or conduct of B (including, without prejudice to the generality, spoken words,
gestures or the production, display or circulation of written words, pictures or other
material) which a reasonable person would consider to be sexually offensive, humiliating
or intimidating to A.”
+Reed & Bull Information Systems v Steadman [1999] IRLR 299 held that a course of conduct
can amount to sexual harassment (comments, remarks, behaviour) though each event not in and
of itself sufficient to constitute sexual harassment –
+The conduct is to be judged subjectively and it is up to the victim to judge what is unwanted
conduct but per Allen v Independeant Newspapers UD 641/2000 the EAT said an employees
perception that he was subjected to a hostile environment must be reasonable..
2 female Claimants v Boys Secondary School DEC-E2001-005 An Equality Officer held the
Board of Management of a school was vicariously liable for sexual harassment of teachers by
pupils as it was responsible for the disciplinary and working environment in the school and in a
position to control the behaviour of the students.
This followed the position of the Labour Court under the 1977 Act in A worker v A company
[1992] ELR 40 where the Labour Court held that the employer did in effect discriminate against
the employee in imposing discriminatory conditions of employment by failing to protect her
from sexual harassment by a perpetrator. (who was allowed use premises for own business
purposes) who was not an employee but was on the company premises with the agreement of the
employer who was in a position to protect the worker.
++Where can sexual harassment/harassment occur ? – in the workplace, otherwise in the course
of employment or outside the workplace and in the course of employment where the employee
may reasonably anticipate being treated differently in the workplace or in the course of
employment as a result of accepting or rejecting the harassment
It can include a place of socializing where it is work related eg office party – seminars, business
functions, conferences or sports or social outings where employees congregate.
Chief Constable of Lincolnshire v Stubbs [1999] IRLR 81 clarifed “in the course of
employment”. – included events or circumstances which may be described as extensions of the
workplace. Er held liable for 2 acts of harassment of one ee by another – oneduring a routine
visit to a pub after work and the second at a leaving party for a fellow ee.
Need to examine the circumstances leading to the persons being there.
Ms Z v A Hotel, Equality Tribunal, 2007- related to conduct at a Christmas party
A Part time waitress alleged she felt uncomfortable in the presence of Mr. A, the General Manager
of the hotel, from early in her employment although nothing happened. She attended the
respondent’s Christmas party on 7th December, 2004 in the company of a friend and work colleague
Ms. X. She alleged that around 3.00am Mr. A, who was sitting alone at the time, beckoned her to sit
beside him. She added that he then told her she looked gorgeous that evening, that he wanted to go
home with her and that they should get a taxi together. She alleged he repeated this phrase a
number of times, although he did not touch her in an inappropriate manner.She submitted that this
behaviour constituted sexual harassment of her contrary to the Acts. Further she complained that it
was discriminatory treatment when, early in the New Year there was a lay off of staff and she was
not re-engaged.
Finding in favour of the complainant the Equality Officer made the following order:
1. That the respondent pay the complainant the sum of €12,000 by way of compensation for the
distress and effects of the discrimination and harassment.
2. That the respondent develop a code of Practice on Harassment on all of the nine
discriminatory grounds covered by the Employment Equality Acts, 1998-2004, which is
modeled on the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002
and that this Code should be in place within 3 months from the date of this decision;
3. …