Covid-19 news with a HR Twist
June 2017
Minor and Gross Misconduct Procedures
Proper conduct and professional behaviour in the workplace is essential to ensure the efficient operation of a Company on a daily basis. Employers need to define unacceptable conduct so that employees can differentiate between appropriate and inappropriate behaviour/actions.
- Examples of minor misconduct include:
- Persistent lateness or absenteeism
- Unsatisfactory standards of work or poor productivity
- Disruption of other employees
- Abusive language
- Unauthorised use of property or negligent damage/loss of property
- Failure to abide by Company dress code or Health and Safety procedures
Cases of gross misconduct are more serious than ordinary instances of poor conduct. Gross misconduct can call for immediate dismissal and the employer does not have to give notice or pay in lieu of notice in these grave circumstances.
Examples of gross misconduct include:
- Sleeping while on duty
- Sexual harassment
- Making false allegations of personal injury/accidents in the workplace
- Gross indecent or immoral behaviour, deliberate discrimination or serious acts of harassment
- Deliberate fraud – e.g. falsification of records in respect of the individual or another employee or deliberate misrepresentation
- Smoking in breach of the Company policy
- Endangering others through fighting/physical assault or abuse
- Incapacity at work due to the use of intoxicants or drugs
- Possession, supply or use of illicit drugs
- Deliberate failure to carry out instructions, deliberate damage to Company policy/deliberate poor work performance
- Breach of code of professional conduct
- Providing confidential Company information to competitors or unauthorised bodies
- Rudeness towards clients and objectionable behaviour – neglect of duties that could result in harm to clients
- The taking of any property/money owned by colleagues or the Company without authorisation
- Arriving to work under the influence of alcohol where carrying out duties may be hindered
- Unauthorised use of Company property, facilities, or resources. Selling, attempting to sell or promoting the sale of non-Company merchandise while on Company premises.
January 2017
Long Term Illness and Disability
The recent case of ‘Arravasc Limited v Gerard Cahill’ has provided some clarity regarding what constitutes a disability under equality [...]
June 2016
Channel Islands Transgender case a ‘warning’ to others.
A transgender woman has won a case of direct and indirect discrimination against Ferries company Condor after one of its employees advised her to [...]
June 2015
Jobseekers Increasingly Consider Employer Brand Before Applying
[rev_slider EmployerBrand] According to recent reports, one in five workers are ‘ashamed’ of their organisation A survey in [...]
Stress in Ireland
[rev_slider stressinireland] Introduction: Stress in the Workplace One growing area in Irish employment law is employers' liability for workplace stress, bullying [...]
Paris-to-Nice Cycle 2014
Last update: 30/09/2014 @ 10:11
The Final Update - Mission Accomplished
So after 6 roller coaster days, I am pleased to say that we finally made it to Nice safe and well. I would like to express my sincere thanks and gratitude to everyone for their support over the last few months. Between us we've raised over €11k for Special Olympics Ireland and we really couldn't have done any of this without your support. For those of you that are interested I've included some photo's of the event above. Thanks again, Philip. [divider]Stage 4 - Carpentras to Aix [105KM]
Some photos from yesterdays cycle to Aix. 
Philip en-route to Aix.
View from the top
Mid-way through the cycle while en-route to Aix.
[divider]
Stage 3 - Logis to Carpentras [90KM]
Slightly later than scheduled, the group set off on their way to Carpentras just after 12.00pm this afternoon. The cycle took them through the lavender fields in the region via the village of Grignan which hosts a stunning Renaissance Castle.
The group are expected to finish todays cycle in the next hour which will see them reach the half way point of the challenge.
[divider]
Stage 2 - Montargis to Nevers [143KM]
The group have now completed Stage two of their cycle to Nice. They are currently in the town of Nevers in central France.
Today they left Montargis and travelled 143km to Nevers where they arrived at around 16:45. Tomorrow they will leave to cycle to Carpentras on stage 3 of the cycle.
Two cyclist have been injured in the last 48 hours which sadly means they will be unable to complete the challenge.
Check back again tomorrow for further updates and thanks again for all your support.
[divider]
The HR Company Proudly Supporting Special Olympics Ireland
The HR Company has teamed up with Sigmar Recruitment in support of Special Olympics Ireland. This year's event 'Paris2Nice' is just about to get underway with both Managing Directors of The HR Company and Sigmar joining an additional 93 cyclists as they make their way to Paris for the start of the 700 mile cycle. The first stage of the of cycle which commences tomorrow morning Saturday 20th September 2014, will see the group travel 128km from Paris to Montargis.Since 2011 Paris2Nice has raised €1.25m for a number of different charities. Paris2Nice is a central coordination hub, which in 2014 is supporting 95 riders to raise funds for 18 charities. The cycle will take place from 20th-25th September and the target for this year is €1,000,000!
Philip and Adie would like to pay a special thank you to everyone who has supported them over the last 9 months or contributed to this very worthy cause.
You can continue to contribute to this cause with all funds raised going directly to the charity.
Please note Philip and Adie will be paying for the cost of the trip independently of the fundraising, so be rest assured your donation will make a difference to those who need it.
Receptionist awarded €63K by Maternity leave discrimination
€63,000 has been awarded to a receptionist by The Equality Tribunal after it found she was discriminated against on the grounds of gender and race, and subsequently victimised. Sylwia Wach, a Polish receptionist began working at the Waterford Travelodge in 2007 where she was initially employed as an accommodation assistant before becoming a receptionist one year later. Ms Wach went on maternity leave on 23rd March 2011 before returning on 21st September 2011. On her return from maternity leave, Ms. Wach found her hours reduced, and also found that the company brought in a staff member from Cork to do shifts when Ms. Wach was available. Her manager allegedly expressed annoyance when he learned that she had raised this matter with their HR manager. He further stated that Ms. Wach’s contract was only for 24 hours, and that therefore, that was all she was entitled to. Ms. Wach outlined that those 24 hours were “minimum hours”, and that, on agreement with the previous manager, she had been working full time for the last three years. Her HR manager also accused her of not having sufficient English to work the job.
Ms Wach sent a written complaint about all the matters to her manager in October 2011 and as a result, a meeting was held in November 2011. Ms. Wach told the tribunal that following the complaint, her manager allegedly threatened to look through CCTV footage for any possible wrongdoing by her, where she was accused of selling alcohol to non-residents. Equality Officer Stephen Bonnlander outlined that he was satisfied Ms. Wach was fluent in both written and spoken English and that Ms. Wach's manager was "determined to make life difficult for her". In his judgement Mr. Bonnlander said:“I find that the complainant is entitled to succeed in her complaint of discrimination on the ground of gender, with regard to her conditions of employment. I do not accept the complainant’s manager’s statement with regard to the complainant’s proficiency in English, and therefore do not accept his reason for not assigning her day shifts, I find that the complainant is also entitled to succeed on her complaint of discrimination in her terms and conditions on the ground of race.”In accordance with Section 82 of the Acts, Mr Bonnlander ordered that Travelodge pay the Ms. Wach: (i) € 21,000 which equals one year’s salary for the complainant according to her P60 form for 2010 in compensation for the effects of discrimination and (ii) € 42,000 or the equivalent of two year’s salary in compensation for the effects of victimisation. This reflects the seriousness of the finding that the complainant found herself immediately threatened with false disciplinary charges when she exercised her right of complaint under the respondent’s own policies. He also said that the awards were in compensation for the distress suffered by the complainant and are not in the nature of pay and therefore not subject to tax. Do you want to protect your business with Ireland's leading HR and Employment Law experts ? If so, please feel free to contact The HR Company on 01 2911870.
Ireland’s Whistleblowing Act
The Protected Disclosures Act, 2014 is now in effect. The Protected Disclosure Bill 2013, commonly known as the ‘Whistleblowers Bill’ was published on July 3rd 2013 by the Minister for Public Expenditure and Reform, Brendan Howlin, T.D. The Bill was drafted to establish a comprehensive legislative framework protecting whistle-blowers in all industries in Ireland. The Bill recently passed through the Oireachtas and Minister Howlin announced the commencement of the Protected Disclosures Act, 2014 today. The purpose of this Act is to protect workers who raise concerns regarding wrongdoing (or potential wrongdoing) that they have become aware of one way or another in the workplace. The Act offers significant employment and other protections to whistle-blowers if they suffer any penalties at the hands of their employer for coming forward with information of wrongdoing in their place of work. The Protected Disclosures Act, 2014 closely reflects best practices in whistle-blowing protection in developed nations around the world. Minister Howlin said that the Act “sends out a very clear message that whistleblowers’ concerns must be listened to and acted on and those who make such reports should not be penalised for doing so.” The Minister wanted to “instil all workers with confidence that should they ever need to take that decisive step and speak-up on concerns that they have about possible misconduct in the workplace, they will find that society values their actions as entirely legitimate, appropriate and in the public interest”. Some key elements included in the Bill are as follows: Compensation of up to a maximum of five years remuneration can be awarded in the case of an Unfair Dismissal that came about as a result of making a protected disclosure. This is a massive step forward in Ireland’s attempt to match the standards set by other established nations. The Act also provides for interim relief if an employee is dismissed for making a protected disclosure. *It is important to note that limitations relating to the length of service that usually apply in Unfair Dismissals cases are set aside in instances of protected disclosures. As a result of this Act, whistle-blowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law. The legislation provides a number of disclosure channels for potential whistle-blowers and stresses that the disclosure, rather than the whistle-blower, should be the focus of the attention. The Act provides strong protections against the disclosure of a whistle-blower's identity. Protections for the whistle-blower remain in place even where the information disclosed does not reveal any wrongdoing when examined. Deliberate false reporting, however, is not be protected. These measures should encourage more people to come forward, and feel comfortable doing so, when they become aware of (or suspect) any criminal activity, misconduct or wrongdoing in the workplace. What should employers do? As it applies to all employees in Ireland including contractors, agency workers, Gardaí and members of the defence forces; all employers should establish and clearly communicate a comprehensive ‘whistleblowing’ policy to ensure that staff are aware of and understand the provisions of the Protected Disclosures Act, 2014. It is important that cultural issues and negative connotations surrounding whistle-blowing are addressed within companies to ensure that employees adhere to the appropriate whistleblowing guidelines.
Employers – Do You Know the New Regulations re Mobile Phone Use While Driving?
Employers - Did you know that, as of today May 1st, 2014, New Legislation on the Use of Mobile Phones While Driving will be effective?
For some time now it has been illegal to talk on the phone or send text messages while driving. However, an amendment, effective 1st May, 2014, will tighten up on the rules which saw some people dodge penalties if the phone was operated while resting in a “cradle” or via a hands-free kit, for instance.The amendment to the existing legislation governing phone use while driving, which was signed by Leo Varadkar, Minister for Transport, on 11th April, 2014, makes it an offence for an individual to "hold” a mobile phone while driving a mechanically propelled vehicle in a public place.
Holding the mobile device includes supporting or “cradling” it with any part of your body (not just your hand) e.g. between the neck and shoulder. It is not a requisite that a person is actually engaged in a conversation on the phone. Similarly a person sending or even reading a text message (including SMS/MMS), or accessing information via the internet/e-mails etc. is committing an offence if "holding” the device as outlined above.
Sending or reading a text, in this instance, does not include anything done without touching the mobile phone or through voice activation.
The offence is punishable on conviction with a fine of up to €1,000 (first offence). The fine could reach €2,000 for a second offence. Three offences within 12 months could see a motorist face a 3 month jail term in addition to a fine. This is in addition to penalty points.
Close to 10,000 people were detected holding a mobile while driving in the Republic of Ireland between the beginning of January and the end of March 2014.
Assistant Garda Commissioner, John Twomey, communicated the staggering statistic that a motorist is four times more likely to have a collision when using a mobile phone.
Employers should issue employees with a notice detailing the important new regulations so that they are aware of their responsibilities. This notice should also serve to inform the employees that the Company will not cover the cost of road traffic offences including fines received under the penalty points system. Your notice should let employees know that these costs will be borne by the employee regardless of whether the vehicle was being driven for private or business use at the time the offences occurred.
We have prepared a sample Notice to Employees to help you to explain the new legislation – this can be downloaded by clicking the below image.
We hope you find it helpful!
Important Employer Responsibilities re Employees working with VDUs
A significant number of employees regularly work with Visual Display Units (VDUs) as part of their role.
Employers – Did you know that there are a range of measures that you must adhere to with regard to VDUs in your workplace?
*The following are the categories of employees who will be covered by these Regulations;
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If the employee has no choice but to the use the VDU to carry out his or her work.
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If the employee normally uses the VDU for continuous periods of more than one hour.
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If the VDU is generally used by the employee on a daily basis.
Please note that a normal laptop is not covered by these Regulations due to the fact that the keyboard is tilt-able and separate from the screen so as to allow the user to find a comfortable working position hence avoiding fatigue in the arms or hands of the employee.
*In accordance with the Safety, Health and Welfare at Work Acts 2005 and 2010, employees working with VDUs are entitled to have their workstation assessed in line with the following requirements;
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The Company must ensure that the general use of the equipment is not a source of risk for the employee.
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The Company is obliged to perform an analysis of the employee’s workstation in order to evaluate the safety and health conditions to which it may give rise.
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The Company must take appropriate measures to remedy any risks found during the workstation analysis.
*Upon the commencement of their employment employers must ensure that;
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Employees are trained in the use of the VDU workstation and given information about health and safety factors.
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Employees receive periodic breaks or changes of routine (away from the VDU).
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Employees receive appropriate eye and eyesight tests (or may opt for either) before working with VDUs as well as at regular intervals throughout their employment with the Company.
If an employee experiences any eyesight/physical problems as a result of working with a VDU, the employee should highlight the issue to his or her manager as soon as possible.
*Some notable points for employers;
• If special corrective appliances (glasses) are required exclusively for working at a display screen, they must be provided by the employer at no cost to the employee. The costs of minimum requirement frames and lenses must be borne by the employer.
• Should the glasses be used also for other purposes the employer must cover the cost of the correction required for working with display screens only.
• Employer obligations relating to the various components of the workstation (from chairs to the display screen, lighting, noise levels, heat, radiation and humidity) are also included in the Acts.
We have created a draft VDU Policy for you to incorporate in your Employee Handbook alongside all of your other HR policies.
Click the below image in order to download our draft policy that you can tailor for your Company.
EAT Annual Report Highlights Shocking Statistics for Employers
The 2012 Annual Report of the Employment Appeals Tribunal has highlighted some astounding statistics
- According to Chairperson Kate T O’Mahony’s foreword “there are presently approximately 5,000 cases awaiting a hearing, of these 37% are unfair dismissals cases.”
- According to the Chairperson’s foreword, “In its appellate jurisdiction the Tribunal deals with disputes about matters occurring during the course of the employment relationship. A notable trend in recent years has been the steady increase each year in the percentage of the Tribunal’s appellate work which, significantly doubled from 12% in 2011 to 24% in 2012.”
- In 2012, employees had some sort of additional representation at the hearing before the Employment Appeals Tribunal on 1,917 occasions – employers, however, only had representation in 1,116 cases. It is clear that unfair dismissal cases see the highest level of representation but it is interesting to note that employee parties had representation in 1,071 cases and employer parties only had representation on 740 occasions.
- In 2012, the Employment Appeals Tribunal received 5,623 cases.
- The number of appeals against the recommendations of the Rights Commissioners received in 2012 was 1,349 – this number represents a 38% increase on the previous year and a staggering 81% increase on the 2010 total.
- The top 3 categories of cases referred to the Employment Appeals Tribunal in 2012 were Unfair Dismissal (1,742), Redundancy (1,239) and Minimum Notice & Terms of Employment (929).
- In 2012, the Employment Appeals Tribunal awarded almost €7million in 377 Unfair Dismissal cases. The average compensation awarded was more than €18.5k. *96 claimants received more than €25k
- The number of Payment of Wages cases disposed of in 2011 was 154 – this number rose by 164% to 407 in 2012.
- The number of Maternity Protection Acts appeals rose from just 2 in 2011 to 11 in 2012.
The Role of NERA in our Workplaces
In the 6 month period between January and June 2013, The National Employment Rights Authority (NERA) conducted 2,755 workplace inspections. A staggering 1,458 (53%) of these inspections were unannounced!
NERA’s update on activity from January to September 2013 illustrated the following:
*In the first 9 months of 2013 the NERA Customer Service Unit provided information to more than 48,484 people. The vast majority of people who received information from the Customer Service Unit were employees or former employees (an estimated 71%).
*Redundancy, Working Hours, Conditions and Terms of Employment, Payment of Wages and Unfair Dismissal were the main topics/issues dealt with during the period.
*The Workplace Relations Customer Services (which deals with complaints in relation to all employment rights bodies) received 11,787 Employment Rights Complaints between January and July of 2013. This number represents a significant increase on the same period in 2012 when 9,809 complaints were received.
*4,009 workplace inspection cases were completed in the first 9 months of 2013. These cases involved more than 44,100 employees. This represents a significant increase on the 2012 figure of 3,140. The amount of unpaid wages recovered totalled €583,650.
*In the period between January and September 2013, 33 cases were referred for prosecution. 47 convictions were recorded in cases heard by the Courts during the first 9 months of last year.
http://www.workplacerelations.ie/en/Publications_Forms/NERA_Update_September_2013.pdf
Important Points for Employers re Data Protection
The Data Protection Acts 1988 and 2003 provide rules that apply to the collection, use, disclosure and transfer abroad of information about individuals. The Acts cover the principals that companies must follow when processing personal data about employees as well as information about clients/residents.
The Acts also give individuals certain rights in relation to personal data that is held about them.
If you as a Company collect, host or process data about people on any type of computer or structured filing system, then you are considered a data controller under the Acts.
Every Company holding information about individuals should have a Data Protection Policy in place and should ensure that all IT administrators and employees with access to personal/confidential information are fully trained on the rights and responsibilities associated with that access.
Billy Hawkes, the Data Protection Commissioner, ensures that companies that keep personal data are in compliance with the Acts. The Commissioner has a range of enforcement powers to help guarantee that the provisions of the Acts are observed. The Commissioner can serve legal notices compelling data controllers to provide information needed to assist with his enquiries. He can also compel data controllers to implement provisions of the Acts in a particular prescribed manner.
He may investigate complaints made by members of the public and can authorise officers to enter sites with the aim of inspecting the type of personal information kept as well as how it is processed and the security measures that the data controller has in place. Companies are required to co-operate fully with such data protection officers.
Data controllers who are found guilty of offences under the Acts can be fined up to €100,000 on conviction and may be ordered to delete all or part of their database.
The Data Protection Commissioner publishes a report annually naming, in certain cases, data controllers who were investigated by his office.
On 12th May 2014 Billy Hawkes launched his Annual Report for 2013. The report contains a summary of the activities of the Office of the Data Commissioner during the entire year.
The Annual Report highlights a huge number of individual complaints that were referred to the Office regarding difficulties in gaining access to personal data. According to the report these were as a result of poor customer service standards by commercial entities.
It appears as though individuals who feel as though they are not receiving sufficient customer service from a commercial entity are exercising their data protection rights more regularly and are more frequently requesting a copy of all personal data held by that entity.
If the initial query or request had been comprehensively dealt with in the first instance then perhaps they would have been less likely to exercise their data protection right to request a copy of all personal data held about them.
Employers should note that telephone call recordings are considered personal data. The Office has seen as increase in the number of access requests to data controllers by individuals seeking a copy of telephone recordings. Organisations are obliged to inform data subjects that their call may be recorded if a call recording system is in operation.
Throughout the course of 2013 the Office opened more than 900 complaints for investigation. More than 500 of these complaints (56.8%) were from individuals who experienced difficulty when gaining access to their personal data held by organisations. This was a record high for this type of complaint which is indicative of the increased level of awareness among the general public of their statutory right of access.
Last year the Office dealt with 1,577 Data Security Breach notifications. The 2013 Annual Report contains a variety of case studies regarding Data Security Breach investigations. One such case study involved the taking of a client list by a former employee to a new employer. This has emerged as a regular issue in recent years and is a serious breach that is a big concern for all employers.
Civil sanctions may result where a person suffers any damage as a consequence of failures on the part of a data controller to meet his/her obligations.
In November 2013 it was discovered that the personal information of more than 1,500,000 people was compromised by a major security breach at a Co. Clare based Company. In an RTE Morning Ireland interview at the time, Mr. Hawkes admitted that “cyber-criminals have become extremely sophisticated and it can be quite difficult to actually identify that your system has been perpetrated.” This was one of the worst data breaches in Irish history.
The Society for Chartered IT Professionals in Ireland, known as the Irish Computer Society (ICS), carried out a recent survey on data protection in Ireland and the results, which were published in January 2014, were astonishing.
256 Irish based companies were surveyed and a record number of data breaches were reported to have occurred in 2013. Findings revealed that one in two of the surveyed companies experienced a data breach during the last 12 months. In fact, more than 20% of the companies contacted by the ICS reported multiple breaches. These statistics mark a significant increase on last year’s figures when 43% of companies examined reported a breach.
According to the results, one third of employees are not fully aware of data protection issues and many receive insufficient data protection training or, alarmingly, no relevant training whatsoever.
Several IT managers admitted that Data Protection policies are not implemented at all in their Company or they are only partially adhered to. The survey has highlighted the need for companies to manage their data processing environment much more carefully and provide additional training for their IT administrators and all employees who have contact with personal information pertaining to employees/clients. According to the ICS survey, negligence on the part of employees accounted for 77% of the reported incidents. Hackers seeking to obtain data and unencrypted laptops were also cited as major threats.
According to Fintan Swanton, Chairman of the Association of Data Protection Officers, “Clear policies and procedures are vital, with regular refresher training and timely reviews to ensure that staff are complying with the structures.”
It is important for employers to be aware that new data protection legislation will require most organisations to appoint a Data Protection Officer.
Disabled Employee not Accommodated by Employer Awarded €30,000!
As redress for infringement of her statutory rights and breaches of the Employment Equality Acts, former employee of a Multi-National Retailer receives compensation in the amount of €30,000.
The Director of the Equality Tribunal delegated this case to Orlaith Mannion, Equality Officer on 13th August 2013.
The specific case concerned a claim by Ms. H against her employer, a Multi-National Retailer. Ms. H claimed that she was discriminated against on the grounds of disability in terms 6(2)(g) of the Employment Equality Acts 1998-2011. The claimant stated that her employer failed to provide appropriate measures to allow her to continue to be employed in her original role with the retailer.
The claimant had worked on the customer service desk for 30 years and enjoyed her position there. In 2001 Ms. H had an operation to remove her colon and, after that, had some medical issues including episodes of diarrhoea. A few years after this operation, Ms. H once again had surgery – this time on her knees as a result of osteoarthritis and had issues with the toilet facilities in her place of work after this as the one suitable toilet in the store was upstairs. One toilet located on Ms. H’s floor required that she walk across the shopping centre to access it. This toilet did not offer a huge improvement for Ms. H as she had to hoist herself up and down onto the toilet by gripping the doorframe.
When the store was being revamped, the claimant suggested that her employer take the opportunity to install a toilet for people with disabilities – customers and employees alike. No disabled toilet was installed and Ms. H said she heard many excuses for this throughout her service with her employer.
Ms. H claimed that in 2009 she was informed that a disabled toilet was due to be installed. Ms. H went on holidays shortly after hearing this news and, unfortunately, broke her leg while away. Ms. H was a wheelchair user for a period of 6 months and underwent more surgeries in January and July 2010. When she was back on her feet Ms. H wanted to return to work and was medically certified as fit to do so in July 2011. Ms. H’s doctor made some recommendations that would allow Ms. H to return to work –
The doctor recommended that Ms. H should return on a phased basis, that she should be able to sit for periods during her working day and that she have access to a disabled toilet.
The employer responded stating that the claimant returning on a phased basis would be facilitated. However, they were not able to fulfil the other recommendations of the doctor. According to the store management, Ms. H’s role (behind the kiosk) had changed during her absence and, although a chair had been available there previously, the store was no longer able to facilitate a chair behind the kiosk and therefore they could offer her a role at the checkout when she returned to work instead of Ms. H returning to her previous role. A checkout role would not have been practical for Ms. H to take as she would have been required to lift heavy grocery items and this was something that she was not able to do (and had not been required to do as part of her Customer Service role).
Also, according to the management, because the store revamp had been suspended, so too had the provision of a disabled toilet. However, the respondent did offer the claimant extra time to use the shopping centre’s disabled toilet and the management of the store felt as though this was reasonable.
Ms. H felt that the checkout role was unsuitable and would have been a demotion. She also felt that the toilet scenario was unacceptable as there was often queues at this toilet and her condition did not allow for her to wait in queues for long periods. Ms. H raised a formal grievance which was heard in August 2011. The complaint was not upheld and neither was Ms. H’s appeal. Ms. H felt that her employer ignored her disabilities since her surgeries in 2005 and felt as though her employer had failed in their duty of care to her.
The respondent refuted any claims of discrimination and claimed that the employee had been out of work for a much longer period than the doctor had originally advised (6-9 months). More than one year after Ms. H broke her leg on holidays she attended a return to work meeting and the respondent pointed out that Ms. H was outside of her support period and recommended that she attend the company doctor. Ms. H did so the following month and the Occupational Health Advisor recommended that she return to work on a phased basis in approximately 3 months' time. The Health Advisor also recommended that a risk assessment should take place and anything like slippy or uneven floors should be attended to in order that another fall was prevented.
The respondent was satisfied for Ms. H to return when recommended by the Occupational Health Advisor (in approximately 3 months). However, as the Customer Service desk role had changed in the two years that Ms. H had been absent from work and (for various reasons e.g. lack of space) no chair was situated there any longer, the respondent was not especially fit for that particular role any longer. Ms. H and her doctor felt that the checkout operator role was not a valid alternative.
The Equality Officer found that Ms. H had been discriminated against by her employer. While her doctor’s request for her to return to work on a phased basis had been upheld, other notable recommendations were not fully adhered to.
MS. H was supposed to be allowed to sit for periods during the working shift – the customer service role would not have allowed for this and, while the checkout operator role allowed her to sit, it required lifting of heavy groceries. The Equality Officer found that providing a reasonable disabled toilet for Ms. H would have cost the respondent approximately €22,600.00 and this would not have imposed a burden on a company that, in 2013, reported revenue in Ireland as £2,315 million Sterling.
The employer did not show genuine engagement with the process of finding effective and practical measures to allow the claimant to return to work.
Therefore, the Equality Officer found in favour of the claimant.
In accordance with Section 82 of the Act, she ordered the respondent:
(a) pay the complainant €30,000 (the approximate equivalent of a year’s salary) in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms H’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(b) conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to how employees with disabilities are treated.
http://www.workplacerelations.ie/en/Cases/2014/April/DEC-E2014-030.html
