FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : HSE EAST COAST AREA (REPRESENTED BY BCM HANBY WALLACE,) - AND - A WORKER DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Act, 1998. Dec-E2006-056
BACKGROUND:
2. The worker referred his case to the Labour Court on the 22nd December, 2006, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 29th of May, 2007. The following is the Court's determination:
DETERMINATION:
Background:
The facts of the case are not disputed between the parties.
The respondent applied in May, 2001, for a position with the appellant. He was placed on a panel. In August of that year he was offered employment with the appellant, on foot of his placement on the panel, on two separate occasions. He accepted both offers by return of post.
On inquiring after two months why he had heard nothing further he was informed by the appellant that there was an issue holding up his appointment. He subsequently learned that a disability had been imputed to him arising from a medical check with his previous employer. He was not eventually appointed until 31st January, 2005, and he alleged that the manner of his treatment constituted discrimination against him on grounds of disability contrary to the Employment Equality Acrts 1998-2004 (the Acts).
On the 3rd August, 2004, the respondent referred a complaint under the Employment Equality Acts 1998 and 2004 to the Equality Tribunal. An Equality Officer heard the case on 8th November, 2006. At that hearing, the appellant admitted discrimination contrary to the Acts and the only issue before the Equality was that of redress.
In his Decision, dated 16th November, 2006, the Equality Officer ordered as follows in accordance with Section 82 of the Acts: -
(i) that the respondent backdate the complainant’s appointment to the post in question from 31st January 2005 to 1st November, 2001 on the basis of the terms and conditions, including the weekly hours of attendance, which apply at present. In addition, the complainant should receive the full range of employment benefits associated with the post, including remuneration (with any necessary adjustments) and recognition of service from 1st November, 2001
(ii) that the respondent pay the complainant the sum of €4,000 by way of compensation for the distress suffered by him as a result of the discriminatory treatment. This award does not contain any element in respect of loss of income on the part of the complainant.
The respondent took up duty with the appellant on 31st January, 2005, and continues to work for them on a half-time basis.
On 22nd December, 2006, the HSE East Coast Area appealed against this decision on the grounds of quantum.
Appellants Arguments:
1. Under the terms of Section 82 (4) of the Acts, where the respondent was not in receipt of remuneration, the jurisdiction of the Labour Court in making a monetary award is limited to €12,697.38 (formally £10,000). Section 82(4) provides as follows: -
- “The maximum amount which may be ordered by the Director or the Labour Court by way of compensation under sub-section (1)(c) or by the Court under sub-section (2)(b) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, shall be an amount equal to 104 times either-
(b) where it is greater, the amount, determined on a weekly basis, which the complainant would have received at that date, but for the act of discrimination or victimisation in question.
- And in any other case, shall be £10,000 (€12697.38)
This wording placing a limit of €12,697.38 on compensation is intended to be an alternative to the situations outlined in Section 82(4))(a) & (b). The Equality Officer did not have jurisdiction to adopt the approach envisaged at Section 82(4)(b) to compensate the (then) complainant with the amount that he would have received at a particular date but for the act of discrimination in question. This case clearly falls within the alternative approach i.e. that of “any other case”.2. The appellant agrees that the Court is entitled to award redress in accordance with the provisions of Section 82(1) and may in particular direct an Order for equal treatment on an Order that a person or persons specified in the order take a course of action which is so specified (Section 82 (1)(e)). This appears to give the Court a wide jurisdiction in regard to remedies, which may be awarded. The appellant submits that this jurisdiction must be interpreted in the light of the specific provisions of Section 82 (4), which limit the amount of monetary compensation to €12,697.38.
3. In attempting to put the appellant into the position he would have been in had it not been for the discrimination which he suffered, the Equality Officer has awarded the respondent far more compensation than €12,697.38 by appointing him from November 2001 and awarding him €4,000 in compensation for discrimination also. Aside altogether from the fact that he may not have been entitled to do this under Section 82 (4)(b), given that he was not in receipt of remuneration, there is also the fact that the respondent has admitted that he was in paid employment since the time from when he claimed he should have been appointed to the position in question by the appellant.
The respondent declined to give details of these earnings from November, 2001, to January 2005, and they were not taken into account by the Equality Officer in his decision. Therefore, the Equality Officer has put the respondent into a far superior financial position than he would have been but for the act of discrimination.4. The Equality Officer apparently failed to take account of the written apology forwarded to the respondent from the appellant dated 9th March, 2004, before the respondent had instituted proceedings. He also apparently failed to take account of a later full written apology, dated 6th November, 2006, furnished by the appellant to the respondent and accepted by him
Respondent’s Arguments:
1. Under Section 79 (6)(1) of the Acts, the Equality Tribunal is entitled, where it decides in favour of a complaint, to provide for redress under Section 82. It is possible to provide one or more remedies. In addition to such other remedies as may be available, the Tribunal can order compensation for the effects of discrimination.The respondent submits that in this case, the Tribunal has, under Section 82 (1)(e), decided upon a remedy, which is not restricted by any other section of the Act and has directed that a course of action should be followed in addition to compensation. The appointment of the respondent to the position in question should be effective from the 1st November, 2001. Responsibility for his exclusion from employment from that date until 31st January, 2005, rests totally with the appellant. The respondent further submits that while he is currently working part-time his appointment should be on a full-time basis from the 1st November, 2001, until the 31st January, 2005The respondent further submits that the compensation of €4,000 awarded by the Equality Officer under Section 82(1)(c) is inadequate given the serious nature of the breach. The respondent submits that the award should be increased to the maximum allowable, namely €12,697.38.
Discrimination on the disability ground has been admitted. The only question before the Court is that of quantum. It is also agreed by the parties that this is a case concerning access to employment.
Section 82(1) of the Acts provides for redress in one or more specified ways which include both an order for compensation for the act of discrimination (Section 82 (1)(c)) and an order that a person or persons specified in the order take a course of action which is so specified (Section 82 (1)(e). This, in relation to the Court, is reinforced in Section 82 (2)(a) where the Court is given the jurisdiction to provide for redress in one or more of the orders specified in Section 82 (1)(c) to (e).
The Limitation of £10,000 (€12,697.38) set in Section 82 (4) on the Court is clearly confined, on a plain reading, to compensation under Section 82 (1)(c) and does not prevent the Court also making an order under Section 82 (1)(e).
In the case of “Von Colson & Kamann v Land Nordrhein-Westfalen” [1984] ECR1891, the European Court of Justice stated that the remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive”.
Determination:
This breach of the Act continued for almost four years, causing the respondent substantial distress and inconvenience. The appellant had the opportunity on a number of occasions to remedy the situation. Regrettably it did not avail of those opportunities. Having carefully considered the submissions and the evidence of both parties and bearing in mind the principles contained in the Von Colson case, the Court makes the following determination:
(1) the respondent shall be treated in all respects as if his employment had commenced on 1st November, 2001, on a full time basis, with the proviso that any net sums due to him by way of remuneration shall be reduced by such net sums as he actually earned in the period between 1st November, 2001, and 31st, January, 2005, these sums to be verified by the respondent either through the production of P.60’s or income tax returns, as the respondent deems suitable.
If, after production of all necessary documentation, the parties are unable to agree the sums in question, the matter may be referred back this Court for a final monetary determination.
(2) the appellant shall pay to the respondent the sum of €12,697. 38 for the effects of the discrimination.
The Equality Officer's decision is varied accordingly.
Signed on behalf of the Labour Court
Raymond McGee
18th July, 2007______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.