Corbett -v- Bus Eireann (DEC-E2011-184)
Facts:
The dispute arose in relation to the complainant, who claimed that he was subjected to discriminatory treatment by the respondent on the grounds of disability pursuant to the Employment Equality Acts with regard to access to employment when he applied for a job as a bus driver. After the interview, the complainant was submitted to a medical examination and during the course of this exam it was determined that his hearing failed to meet the necessary standard. The complainant however attended a private ENT consultant who confirmed that the complainant did not in fact need a hearing aid. The complainant claimed that he had over 20 years incident free driving and that not hearing very low beeps on an audio test would not have any impact on his ability to drive. He further argued that his job application did not make any reference to hearing criteria.
The respondent stated that it had its own hearing test in place for drivers since 2003 and that any driver who does not meet the required standard of hearing could not be considered for a position. The respondent stated that the Road Safety Authority is currently preparing guidelines for hearing requirements for Group 2 licenses in conjunction with the ENT Medical; Consultants and Occupational Consultants which include the Chief Medical Officer (CMO) of CIE. In relation to hearing aids the respondent argued that these were unsuitable in the circumstances as they can increase noise levels in what already is considered a noisy job.
Equality Tribunal:
The Equality Officer considered whether the respondent had been discriminated against on the ground of a disability contrary to Section 6 and Section 8 of the Employment Equality Acts. Section 6 states that discrimination shall be taken to occur where one person is treated less favourably than another person is, has or would be treated on one of the grounds of discrimination which includes disability. Section 8 provides that an employer shall not discriminate against a potential employee in relation to access to employment. It was determined that the complainant had hearing loss and this came within the definition of a disability within Section 2 of the Acts. Accordingly, it was held that the respondent had not established that the high hearing threshold set by the respondent was an appropriate and genuine occupational requirement”. They stated that “in the absence of supporting documentary evidence, I find that the respondent has not established, in either the international context or more specifically within its own organisational context, that the significantly high hearing thresholds set by the respondent are appropriate and constitute a genuine and determining occupational requirement for the post of Bus Driver. In a situation where it cannot be aware of the state of hearing of significant numbers of bus drivers either working directly for it or for its sub-contractors I cannot find that the respondent has objectively justified the particular hearing threshold it applied.”
Conclusion:
It was held that, after considering all written and oral evidence, that the Claimant had established a strong case that discrimination on the grounds of disability in relation to access to employment had occurred. The complainant awarded €6,000 in compensation.
Galvin v Burston Ltd, t/a Quays Bar – (UD 1311/2010)
Facts:
The dispute arose in relation to a senior bar manager who claimed that he was unfairly dismissed pursuant to the Unfair Dismissals Acts 1977-2007 after he was invited to a meeting and told that he was being made redundant immediately. The claimant stated that he was notified the day before that he should attend a meeting the next morning. He claimed that at the meeting he was told that he was being made redundant with immediate effect. In addition, he stated that he was not informed of his right to bring a representative to the meeting or told why the meeting was taking place. He stated that the first time redundancy was mentioned was at the meeting. He also alleged that he was given a contract of employment to sign at the meeting and in a “state of shock” signed the document. It was argued that the claimant was not told to obtain legal advice. Finally, the claimant argued that he was never offered any alternatives to redundancy at the meeting such as a temporary lay off or a reduction in pay.
When considering the fairness of a redundancy process the employment rights for a in Ireland will not just consider whether or not the role was genuinely redundant but also how the employer went about effecting that redundancy on the employee. This arises from section 6(7)(a) of the Unfair Dismissals Acts, 1977-2007, which states that “in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”
Employment Appeals Tribunal:
The EAT considered whether the redundancy was reasonable in the circumstances. The EAT considered the fact that there were no alternatives to redundancy such as (temporary) lay off or even a reduction in pay put forward at the meeting and also the fact that there was no reasonable selection procedure put in place for redundancy.
Conclusion:
The EAT held that the procedure adopted by the employer was inherently unfair given the lack of consultation or discussion and in the absence of any procedure they determined that the claimant was entitled to succeed in this claim. They awarded the ‘maximum’ compensation of 104 weeks remuneration for unfair dismissal, which amounted €78,520.00.
Kara Coyle v Boylesports-UD 2577/2009
Facts:
The dispute arose in relation to the claimant, who was an area manager, where it was argued that she was unfairly selected for redundancy and was unfairly dismissed pursuant to the Unfair Dismissals Act 1977-2007. It arose in this case that the employee’s manager was in a relationship with the claimant’s ex-partner. It was argued by her manager that this relationship began in November 2008, although the claimant maintained that it emerged in 2007. Her manager argued that she maintained a good working relationship with the employee subsequent to them gaining knowledge of the relationship.
The company in which both the claimant and her manager worked went through a redundancy procedure via a selection process, commonly known as a selection matrix, which evaluated the employees on their skills with the weakest employees being made redundant. In this instance, scores were distributed to the employees under five main categories: standards, administration, people management, communication and business development. The employee was at risk of redundancy and her manager was one of the three managers tasked with evaluating the employees together with the regional manager and human resources manager with all three subsequently distributing the scores. The human resources manager decided that the other four candidates were more suitable for the position of area manager than the claimant. Furthermore, it was argued by the regional manager that the procedure of allocating points was tough but fair and transparent.
At the hearing the claimant stated that she feared for her future position within the company from the outset as her manager was having a relationship with her ex-partner and that it was this manager who was heavily involved in the selection process. The claimant was the longest serving employee and was always dedicated to her position within the company. It was alleged that when she was offered an alternative manager’s role which she viewed as a “massive demotion” and she didn’t see the logic in engaging in a grievance procedure due to the relationship between her manager and ex-partner.
Employment Appeals Tribunal:
The Tribunal considered the selection matrix and held that it was an unfair selection and that considering the personal relationship involved, it could not be argued that it was not free from bias. For instance, it was reasonable to suggest that the objectivity and independence of the whole procedure was tainted by the involvement of personal relationships.
Conclusion:
The Tribunal held that the criterion used in the selection procedure was not a genuine or fair assessment of the claimant’s skills for the job and that the whole process was completely subjective in its application. The Tribunal argued that there was a complete breach of trust which is an essential part of the employment relationship. Therefore, the Tribunal held that the claimant was unfairly selected for redundancy which amounted to an unfair dismissal. The Tribunal awarded €60,000 in compensation.
