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Home About Us Services Publications Information Publications Research Publications Codes of Practice Policy Publications Good Practice Publications Annual Reports Casework Reports Newsletters Submissions Articles All Articles Update by CEO Case Reports EU Briefings Information FAQs Events Research Equality Mainstreaming Unit Links Contact Us Translations Sitemap Gaeilge	Case Reports - Winter 2004 By Patrick O' Leary, Equality Authority. Non-National Dismissed because of Alleged Theft of Bananas - Labour Court Points to Positive Duties on Employers Equality Settlement Highlights Issue for Young Drivers in Motor Insurance Ageism in the Workplace Challenged 1. Non-National Dismissed because of Alleged Theft of Bananas - Labour Court Points to Positive Duties on Employers A recent decision of the Labour Court found that Aderonke Rasaq had been discriminated against in her dismissal by Campbell Catering. The Labour Court finding identified a positive duty on employers to take account of the practical implications of the cultural and linguistic diversity of their workforce in the case of disciplinary procedures. Aderonke Rasaq was dismissed after being wrongfully accused of stealing bananas from the workplace. In the early stages of pregnancy she took three bananas from the kitchen which she intended to eat before she left. She believed she had a right to take food for consumption at work and this wasn't disputed by the company. The Labour Court found as a fact that the claimant did not steal the bananas and could not reasonably have been accused of stealing the bananas. The Labour Court found that the company's decision to dismiss Aderonke Rassaq from her job at a hostel for refugees and asylum seekers in Dublin was discriminatory on the race ground. The Labour Court stated that she was not offered fair procedures in that she was not told that her dismissal was in contemplation before the decision was taken. Also she was not informed of her right to be represented at any disciplinary hearing, and there was no investigation in any meaningful sense into the allegation made against the complainant. The Labour Court found that she had been treated less favourably than other employees facing allegations of serious misconduct had been or would be treated in similar circumstances. The claimant was awarded €15,000. The Labour Court in its decision made it clear that many non-national workers encounter special difficulties in employment, arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. It stated that in the case of 'disciplinary procedures employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciated the gravity of the situation and is given appropriate facilities and guidance in making a defence'. This is an important and ground breaking decision by the Labour Court. It acknowledges that cultural and linguistic diversity has practical implications for employment practices and procedures. It establishes a requirement on employers to take action to accommodate this diversity. It is important that employers are aware of this requirement - a requirement that will not only improve the situation and experience of migrant workers but will also enhance the contribution of those workers to business success. The Labour Court has based this important requirement on the fact that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations. The claimant was represented by the Equality Authority. The case highlights the very difficult experience of discrimination being brought forward by migrant workers. The majority of casefiles on the race ground deal with migrant workers. They cover issues that include working conditions, dismissal, equal pay, access to employment and harassment. Migrant workers are key to continuing growth in the Irish economy. The Equality Authority casefiles indicate that migrant workers are experiencing high levels of discrimination. This is bad for the economy, for business success and for migrant workers. We need to invest more in ensuring migrant workers know their rights and have access to adequate supports if they are to continue to make their contribution to the Irish economy. Go to top 2. Equality Settlement Highlights Issue for Young Drivers in Motor Insurance The Equality Authority recently reached a settlement with First Call Direct in a case of potential discrimination on the age ground in relation to the provision of motor insurance to an under 25 year old. The Equal Status Act 2000 prohibits discrimination on a number of grounds including age, in the provision of goods and services including insurance. In an earlier landmark ruling in relation to another insurance company the Equality Tribunal found that the across the board policy of refusing quotation to persons over 70 years of age with no regard for the persons particular circumstances was not reasonable and found against the insurance company. This settlement refers to the application of a lower age limit of 25 years of age. This is an important settlement in further developing the application of the Equal Status Act to the provision of insurance. In November 2001, the claimant contacted the call centre at First Call Direct for a motor insurance quote. He was 23 years old at the time. The company refused to quote the claimant because he was under 25 years of age. The Equality Authority pursued the matter on behalf of the claimant and the case was listed for hearing by the Equality Tribunal. The refusal of service had no relationship to any previous history relating to the insurance claims or accident record of the individual's personal vehicle. On the day of the hearing, the company's representatives stated that the company had now changed its policy and removed the lower age limit for quotations. In those circumstances, the claim was settled and financial payment made paid to the complainant. These cases raise the issue of age limits being used to exclude particular groups of people, young and old, from insurance. It is important that insurance companies ensure that the manner in which they seek to manage risk does not rely on irrelevant factors or characteristics. Recourse to such factors all too often leads to discrimination and exclusion. Go to top 3. Ageism in the Workplace Challenged The Equality Tribunal recently made a decision of indirect discrimination against Bus Eireann. Mr. Brian O'Loughlin was found to have been indirectly discriminated against on the age ground and was awarded €3000 compensation. Bus Eireann were ordered to treat Mr. O'Loughlin in the same manner as any other applicant in relation to any application he makes for the position of school bus driver. They were also ordered to immediately implement an Equality Policy which takes account of the provisions of the Employment Equality Acts 1998 and 2004 and to communicate this to all those potentially affected by it. The Equality Authority represented Mr. Brian O'Loughlin at the Tribunal. Mr. O'Loughlin had worked as a bus driver for 23 years. He availed of a voluntary severance package with effect from 31st October 2001. On the 16th October 2001, before leaving the company he asked to be considered for a position of school bus driver and/ or seasonal bus driver. He subsequently applied for such work but received a response stating that it was not company policy to re-employ staff who go out on retirement. The company policy applied to all prospective employees. However 96.5% of those who applied for the voluntary severance package were over 50. The Equality Officer of the Equality Tribunal highlighted that Bus Eireann did not show how cost savings can be achieved by not employing the complainant who availed of the voluntary severance scheme as opposed to employing someone who has not availed of the scheme. She also stated that Bus Eireann could not rely on the justification of achieving cost savings (if there were any) for the operation of a policy of not employing persons who availed of voluntary severance. She found that the practice of not re-employing persons who had availed of voluntary severance indirectly discriminated against the complainant on the age ground. This case has now been appealed. This case raises once again the issue of ageism in the workplace. The finding sends out an important message that this issue needs to be more effectively dealt with by employers. This finding of indirect discrimination is very significant as there are very few recommendations of the Labour Court or the Equality Tribunal on this issue. Indirect discrimination is a less obvious form of discrimination which arises from the impact or effect of certain policies or procedures. It highlights the need to assess employment policies and practices for their actual impact on older people. The failure to make such an assessment all too easily leads to the exclusion of older people. Such a failure reflects an inflexibility in the workplace where the needs and aspirations of older people are not taken into account in the design of workplace practices and procedures. This creates barriers to their participation in the workplace. This has negative consequences not only for older people but also for business and for the economy. The casefiles of the Equality Authority highlight a wide range of experiences of discrimination by older people in the workplace. These cover claims of discrimination in relation to job advertisements, job interviews, promotions and working conditions. Enterprises could usefully develop more planned and systematic approach to equality to achieve change in this context. The order of the Equality Officer of the Equality Tribunal that Bus Eireann put in place an Equality Policy is important in this regard. An Equality Policy is the key starting point for this planned and systematic approach to workplace equality. Go to top Note: This article is taken from the Winter 2004 edition of Equality News.	Search Tick the box to search just the current location and its sublocations Advanced Search

Case Reports - Winter 2004

By Patrick O' Leary, Equality Authority.

Non-National Dismissed because of Alleged Theft of Bananas - Labour Court Points to Positive Duties on Employers
Equality Settlement Highlights Issue for Young Drivers in Motor Insurance
Ageism in the Workplace Challenged

1. Non-National Dismissed because of Alleged Theft of Bananas - Labour Court Points to Positive Duties on Employers

A recent decision of the Labour Court found that Aderonke Rasaq had been discriminated against in her dismissal by Campbell Catering. The Labour Court finding identified a positive duty on employers to take account of the practical implications of the cultural and linguistic diversity of their workforce in the case of disciplinary procedures.

Aderonke Rasaq was dismissed after being wrongfully accused of stealing bananas from the workplace. In the early stages of pregnancy she took three bananas from the kitchen which she intended to eat before she left. She believed she had a right to take food for consumption at work and this wasn't disputed by the company.

The Labour Court found as a fact that the claimant did not steal the bananas and could not reasonably have been accused of stealing the bananas. The Labour Court found that the company's decision to dismiss Aderonke Rassaq from her job at a hostel for refugees and asylum seekers in Dublin was discriminatory on the race ground. The Labour Court stated that she was not offered fair procedures in that she was not told that her dismissal was in contemplation before the decision was taken. Also she was not informed of her right to be represented at any disciplinary hearing, and there was no investigation in any meaningful sense into the allegation made against the complainant. The Labour Court found that she had been treated less favourably than other employees facing allegations of serious misconduct had been or would be treated in similar circumstances. The claimant was awarded €15,000.

The Labour Court in its decision made it clear that many non-national workers encounter special difficulties in employment, arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture.

It stated that in the case of 'disciplinary procedures employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciated the gravity of the situation and is given appropriate facilities and guidance in making a defence'.

This is an important and ground breaking decision by the Labour Court.
It acknowledges that cultural and linguistic diversity has practical implications for employment practices and procedures.
It establishes a requirement on employers to take action to accommodate this diversity.

It is important that employers are aware of this requirement - a requirement that will not only improve the situation and experience of migrant workers but will also enhance the contribution of those workers to business success. The Labour Court has based this important requirement on the fact that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations.

The claimant was represented by the Equality Authority. The case highlights the very difficult experience of discrimination being brought forward by migrant workers. The majority of casefiles on the race ground deal with migrant workers. They cover issues that include working conditions, dismissal, equal pay, access to employment and harassment.

Migrant workers are key to continuing growth in the Irish economy. The Equality Authority casefiles indicate that migrant workers are experiencing high levels of discrimination. This is bad for the economy, for business success and for migrant workers. We need to invest more in ensuring migrant workers know their rights and have access to adequate supports if they are to continue to make their contribution to the Irish economy.

Go to top

2. Equality Settlement Highlights Issue for Young Drivers in Motor Insurance

The Equality Authority recently reached a settlement with First Call Direct in a case of potential discrimination on the age ground in relation to the provision of motor insurance to an under 25 year old. The Equal Status Act 2000 prohibits discrimination on a number of grounds including age, in the provision of goods and services including insurance. In an earlier landmark ruling in relation to another insurance company the Equality Tribunal found that the across the board policy of refusing quotation to persons over 70 years of age with no regard for the persons particular circumstances was not reasonable and found against the insurance company. This settlement refers to the application of a lower age limit of 25 years of age. This is an important settlement in further developing the application of the Equal Status Act to the provision of insurance.

In November 2001, the claimant contacted the call centre at First Call Direct for a motor insurance quote. He was 23 years old at the time. The company refused to quote the claimant because he was under 25 years of age. The Equality Authority pursued the matter on behalf of the claimant and the case was listed for hearing by the Equality Tribunal. The refusal of service had no relationship to any previous history relating to the insurance claims or accident record of the individual's personal vehicle. On the day of the hearing, the company's representatives stated that the company had now changed its policy and removed the lower age limit for quotations. In those circumstances, the claim was settled and financial payment made paid to the complainant.

These cases raise the issue of age limits being used to exclude particular groups of people, young and old, from insurance. It is important that insurance companies ensure that the manner in which they seek to manage risk does not rely on irrelevant factors or characteristics. Recourse to such factors all too often leads to discrimination and exclusion.

Go to top

3. Ageism in the Workplace Challenged

The Equality Tribunal recently made a decision of indirect discrimination against Bus Eireann. Mr. Brian O'Loughlin was found to have been indirectly discriminated against on the age ground and was awarded €3000 compensation. Bus Eireann were ordered to treat Mr. O'Loughlin in the same manner as any other applicant in relation to any application he makes for the position of school bus driver. They were also ordered to immediately implement an Equality Policy which takes account of the provisions of the Employment Equality Acts 1998 and 2004 and to communicate this to all those potentially affected by it. The Equality Authority represented Mr. Brian O'Loughlin at the Tribunal.

Mr. O'Loughlin had worked as a bus driver for 23 years. He availed of a voluntary severance package with effect from 31st October 2001. On the 16th October 2001, before leaving the company he asked to be considered for a position of school bus driver and/ or seasonal bus driver. He subsequently applied for such work but received a response stating that it was not company policy to re-employ staff who go out on retirement.

The company policy applied to all prospective employees. However 96.5% of those who applied for the voluntary severance package were over 50.

The Equality Officer of the Equality Tribunal highlighted that Bus Eireann did not show how cost savings can be achieved by not employing the complainant who availed of the voluntary severance scheme as opposed to employing someone who has not availed of the scheme. She also stated that Bus Eireann could not rely on the justification of achieving cost savings (if there were any) for the operation of a policy of not employing persons who availed of voluntary severance. She found that the practice of not re-employing persons who had availed of voluntary severance indirectly discriminated against the complainant on the age ground. This case has now been appealed.

This case raises once again the issue of ageism in the workplace. The finding sends out an important message that this issue needs to be more effectively dealt with by employers.

This finding of indirect discrimination is very significant as there are very few recommendations of the Labour Court or the Equality Tribunal on this issue. Indirect discrimination is a less obvious form of discrimination which arises from the impact or effect of certain policies or procedures.

It highlights the need to assess employment policies and practices for their actual impact on older people. The failure to make such an assessment all too easily leads to the exclusion of older people. Such a failure reflects an inflexibility in the workplace where the needs and aspirations of older people are not taken into account in the design of workplace practices and procedures. This creates barriers to their participation in the workplace. This has negative consequences not only for older people but also for business and for the economy.

The casefiles of the Equality Authority highlight a wide range of experiences of discrimination by older people in the workplace. These cover claims of discrimination in relation to job advertisements, job interviews, promotions and working conditions. Enterprises could usefully develop more planned and systematic approach to equality to achieve change in this context. The order of the Equality Officer of the Equality Tribunal that Bus Eireann put in place an Equality Policy is important in this regard. An Equality Policy is the key starting point for this planned and systematic approach to workplace equality.

Go to top

Note: This article is taken from the Winter 2004 edition of Equality News.