The Equality Tribunal has seen a huge increase in the number of cases taken alleging discrimination in the workplace. If your company does not have clear written policies in place to deal with an allegation of discrimination, it is leaving itself wide open to costly and embarrassing claims.
The Equality Tribunal recently published its annual report for 2007. According to the report, a record number of claims were referred in 2007, resulting in a 36% increase on claims received in 2006. The number of claims being brought before the Equality Tribunal is increasing each year and in the first six months of 2008 employment equality claims are up by 32% on 2007 and equal status claims are up by 11%.
- 106% increase in claims on the race ground
- 59% increase in claims on the disability ground
- 5% increase in claims on the gender ground
- 14% decrease in claims on the age ground
Discrimination in Ireland is dealt with under two pieces of legislation, namely the Employment Equality Acts 1998 to 2008, which deal with discrimination in the workplace, and the Equal Status Acts 2000 to 2008, which deals with discrimination outside of the workplace. The Acts prohibit discrimination on nine grounds, namely, gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. Many cases of alleged discrimination are brought on multiple grounds with a view to maximising a claimant's prospects of success.
Increasingly, employers are faced with complex and costly claims brought by their employees. The problem for employers when such claims arise include the monetary compensation that might be awarded to a victim of discrimination as well as the legal costs that will be incurred by the employer, the time involved in dealing with the claim, the damage to corporate reputation and the possibility of similar claims emerging. One cannot overstate the importance for employers to comply with their obligations under the Acts and associated codes of practice and to ensure that proper policies and procedures are in place to deal with any complaint of alleged discrimination made by an employee.
One recent case which illustrates this point is A Female Employee v A Recruitment Company. Here, the equality officer found that the complainant had been sexually harassed by explicit and suggestive text messages sent to her mobile phone from her manager's phone and ordered the respondent company to pay the complainant €25,000. In this case, it was evident from the correspondence that passed between the complainant and the company that the company was unclear about how to handle the complaint of sexual harassment and had no policies and procedures in place to deal with it.
The equality officer expressed her concern about the implications for the complainant as a result of the respondent's failure to have proper policies and procedures in place and, in addition to awarding the complainant compensation, ordered the company to draft a policy on the prevention of harassment and sexual harassment in the workplace and to take appropriate measures to communicate the policy to all of its employees and to display this policy permanently in a prominent position in the workplace. A vital aspect of dealing with any grievance or complaint is the existence of a clear written policy which sets out for employees:
- where to direct a complaint,
- what to expect when a complaint is made,
- that the complaint will be investigated in as confidential and sensitive a manner as possible and
- what the procedure is for carrying out an investigation of a complaint o what to expect when the investigation concludes in circumstances where a complaint is upheld or not upheld.
It is important to note that it is a defence for an employer under the Employment Equality Acts 1998 to 2008 to prove that it took such steps as are "reasonably practicable" to prevent the harassment in question. Employers who do not have in place appropriate, clear and written policies and procedures - which make clear that discrimination will not be tolerated - and who do not properly implement them are much less likely to be in a position to successfully defend legal proceedings brought against them. Having regard to the level of compensation that may be awarded if proceedings are issued against a company, it is prudent for employers to seek appropriate legal advice both in relation to formulating policies and procedures and in relation to dealing with incidents or allegations of discrimination.