EDA1126

The Complaints

In these proceedings the Complainant alleges that she was discriminated against by the Respondent in respect to her conditions of employment on grounds of her age, race and disability. It is further alleged that the Respondent failed to provide her with reasonable accommodation in respect to a disability from which she suffered; that she was harassed in the course of her employment on the grounds of her age and that she was victimised by the Respondent for having initiated the within proceedings. Finally, the Complainant claims equal pay with a named comparator of a different nationality.

Background

The factual background giving rise to these complaints is not in dispute in any material respect and can be summarised as follows:

The Complainant has been employed by the Respondent in her capacity as a cleaning operative since September 2000. She is a native of Latvia and was originally recruited by the Respondent in that country to work in Ireland. The Respondent is a provider of contract cleaning services.

In or about November 2003 the Complainant was assigned to work at a pharmaceutical plant in Dublin. She undertook general cleaning duties on a night shift. She worked 42 hours per week and received a premium rate of pay of €11.88 per hour.

On or about 13th December 2006 the Complainant requested a transfer to day work on medical grounds. In support of that request she presented a certificate from her Doctor which, in effect, stated that it would be medically more beneficial for the Complainant if she ceased night work. This certificate did not specify the medical condition from which the Complainant was suffering although the evidence disclosed that she had been diagnosed with high blood pressure and shoulder strain.

The Respondent was disposed to accommodating the Complainant on day work. However the Complainant was concerned at the loss of earnings which she would suffer arising from the loss of premium pay and reduced hours, if transferred to normal day working. It was agreed that the Complainant would be assigned to work in a ‘clean room’ which is a specialist area of the plant. Work in this area attracted the same rate of pay as that applicable to night work thus avoiding any loss of earnings to the Complainant.

The Complainant was required to undertake additional training in order to work in the clean room and she was assigned to this duty on a trial basis for one month. There are additional regulatory requirements attaching to cleaning in this area which require a high level of record-keeping on the part of the cleaners involved. This, in the Respondent’s submission, necessitates a higher level of competence in both written and spoken English than is normally required.

At the end of the trial period the Complainant was informed by the Respondent that her competency in English was below the required standard for working in the clean room. She was told that she should take further language training so as to bring her competency to the required standard. In the interim she was to be transferred to normal day work at the rate of pay and working hours applicable to that shift. That involved a reduction in the Complainant’s rate of pay to €9.55 per hour and a reduction in her standard working hours to 39 per week.

The Complainant continued on the day shift on the reduced rate of pay and reduced hours. She undertook lessons in English at her own expense and later applied to be restored to duties in the clean room. She was interviewed for a vacancy in that facility but, according to the Respondent, her competency in English had not sufficiently improved so as to allow her to work in that area.

The Complainant referred complaints to the Equality Tribunal in or about April 2008. She claimed that the Respondent had discriminated against her on the ground of her disability and on the ground of her race in transferring her to a normal day shift and in reducing her pay. She further contended that in allocating her to duties attracting a lower rate of pay the Respondent failed in its duty to provide her with reasonable accommodation in relation to her disability. The Complainant made further complaints alleging that she had been victimised by the Respondent for having taken the within claims. She also claimed equal pay with a named comparator of a different nationality.

The complaints were investigated by an Equality Officer who found against the Complainant on all of her complaints. The Complainant appealed to this Court.


Position of the Parties

The Complainant

The Complainant told the Court that she suffered from high blood pressure and shoulder strain. This, she contends, is a disability within the statutory meaning of that term. She claims that in consequence of these conditions she was unable to work nights. The Complainant bases her claim of discrimination on the disability ground on her removal from the duties in the clean room and the consequent reduction in earnings which she suffered. This, she contends, constituted a failure to provide her with reasonable accommodation in respect of her disability. The Complainant further contends that the reason given for removing her from duties in the clean room, namely her lack of proficiency in written and spoken English, amounted to indirect discrimination on race grounds. Her claim of discrimination on the age ground relates to derogatory comments made to her by a colleague in relation to her age which, she claims, amounted to harassment. The Complainant’s equal pay claim in based on her contention that a named comparator of a different nationality was paid premium rates while working on the same day shift as that on which she was employed. Finally, the Complainant grounds her claim of victimisation on three verbal disciplinary warnings which she received in relation to her standard of work and the refusal of the Respondent to allow her to take holidays at Christmas 2007. She also relies on the conduct of a meeting with management held to discuss her grievances and, in particular, the alleged insistence of the Respondent that she withdraw her claims under the Act.

Evidence of the Complainant

In evidence the Complainant told the Court that she commenced working for the Respondent in 2000, initially cleaning the Intel plant in Co Kildare. In 2002 she was transferred to work at the Wyeth Medica plant at Newbridge Co Kildare. One year later she transferred to the Wyeth Biopharma plant in Grangecastle, Co.Dublin. She worked mixed shifts. She was required to complete a logbook in English and did so without difficulty. In 2004 she was assigned to night work. She told the Court that she was doing the same work as she as she had been doing on days. She did not have to complete a logbook and only completed written task lists.

The Complainant told the Court that there were no complaints made concerning her work up to December 2006. At that time she developed high blood pressure and a strain in her shoulder which she believed was work related. She approached her Supervisor, Ms C, and asked to be transferred to day work. She presented a note from her Doctor to the effect that such a change was required on medical grounds. According to the Complainant, Ms C told her that if she transferred to day work she would receive less pay. This was unacceptable to the Complainant. However, in January 2007 she was assigned to day work in the clean room at the same premium rate as applied on the night shift.

The Complainant told the Court that she underwent initial training for work in the clean room which she found unsatisfactory and incomplete. She said that while undergoing this training she was harassed and insulted by a co-worker of Lithuanian nationality who made disparaging comments relating to her age. According to the Complainant she reported this abuse to her trainer and to Mr T, the Operations Manager, neither of whom took any action in the matter.

In February 2007 the Complainant met with Ms C who told her that her competency in English was insufficient for her to continue working in the clean room area. She was told that she would have to transfer to general day work. That, the Complainant said, would have involved a reduction in pay to €9.55 per hour and a reduced working week from 42 hours to 39 hours. It was the Complainant’s evidence that she was prepared to transfer to general day work but she was unable to take a pay reduction. Nonetheless she was forced to transfer to day work and her pay was reduced accordingly. She told the Court that she suffered from stress in consequence of the difficulties she experienced in coping with a significant decrease in her income.

The Complainant told the Court that she was a member of SIPTU which was recognised by the Respondent for normal industrial relations purposes. She contacted her union representative in relation to the reduction in her pay. The Union subsequently contacted the Respondent seeking to have the Complainant reassigned to clean room duties.

The Complainant said that after the Union became involved she began to experience further difficulties in her employment. She said that she was closely supervised and bullied by her Supervisors. She said that her Supervisor, Ms H.M., gave herverbal warnings in relation to her work performance which she considered unjustified. She said that another Supervisor, Ms B.L., would ring her many times per day to check on the progress of her work. The Complainant recalled an incident, in March 2007 in which Ms B.L. took her to task in relation to the manner in which she had cleaned a toilet. She was told that she would have to undergo further training in how this work should be performed. According to the Complainant she had adequate competency in how to undertake this task. The Court was told of two further incidents in which the Complainant received warnings, one in relation to an error which she made in labelling a bottle containing chemicals and another in relation to the placing of a bag of rubbish beside a bin which was full. These incidents occurred in or about May 2007. The Complainant also referred to an incident in or about June 2007 when she received a verbal warning from Ms HM for allegedly failing to clean an office and toilet in time. The Complainant’s evidence was to the effect that the incidents referred to were not unusual and would not normally warrant a formal warning.

The Complainant undertook language training in English at her own expense. In or about July 2007 the Complainant wrote to the Respondent and requested that she be reassigned to duties in the clean room, in which a vacancy had arisen. She was given a language test by a Mr T who concluded that her standard of English had not sufficiently improved. According to the Complainant, two other employees whose standard of English was less than hers were assigned to these duties.

The Complainant said that she became aware of another cleaning operative of a different nationality who was reassigned from night work to day work and who retained the premium rate while on day work.

Finally, the Complainant told the Court that in or about April 2008, after she had initiated the within complaints, she wrote to the Respondent seeking to be restored to her original night shift. Subsequently she was invited to meeting with three members of management, including Mr O’D who was then Operations Manager. Her language teacher was also present to act as interpreter. She told the Court that she was unprepared for the meeting and felt shocked at the manner in which it was conducted. She was told that her equality claim would have to be withdrawn if her issues were to be addressed. She subsequently received a letter from the Respondent confirming the outcome of the meeting and containing a condition that her equality claim be withdrawn.

Evidence of Ms Y C

In 2004 this witness was employed by the Respondent as a cleaning operative. At that time she worked with the Complainant. The witness worked on swing shifts in non-specialist areas of the plant. It was Ms C’s evidence that while working with the Complainant they were obliged to fill in a logbook describing the chemicals used and that this logbook would be shown the Client’s staff. Normally one person competed the logbook. During her time working with the Complainant she (the Complainant) undertook this task and there were no complaints concerning the manner in which she discharged this function. The witness recalled that on one occasion she made a mistake in completing an entry in a logbook which the Complainant corrected.

The witness also told the Court that in cases where a rubbish bin was full the normal practice was to leave bags of rubbish beside it on the floor.

In cross-examination this witness accepted that there were substantial differences between the standard of recording required in normal cleaning and that required in clean room cleaning. She said that in the case of the clean room an employee was liable to dismissal if the log book was incorrectly competed.

The Respondent's case

The Respondent’s defence is essentially a traverse of the Complainant’s case.
According to the Respondent, the Complainant presented a certificate from her Doctor on 13th December 2006 stating that it would be helpful if the Complainant could be assigned to day work. This letter, which was put in evidence, did not indicate the nature of the Complainant’s medical condition.

The Respondent was disposed to accommodate the Complainant in that request. The terms and conditions of employment of the Respondent’s staff are determined by the Employment Regulation Order for the Contract Cleaning Industry which specifies an hourly rate at €9.55 per hour and standard working hours at 39 per week. Night work attracts a premium rate and additional weekly hours. It was explained to the Complainant that if she transferred to day work she would revert to the standard basic rate and hours of work. However, a vacancy arose on day work in the clean room of the plant which attracted the same premium as applied to night work. The Complainant was offered employment on this shift on a one-month trial.

It is the Respondent’s case that stringent recording and reporting procedures exist in relation to cleaning in the clean room, breaches of which could have profound consequence for the Respondent and its Client. The operation of the clean room is subject to monitoring by the FDA (as the drugs manufactured by the Respondent are exported to the USA) and by the IMB, who undertake frequent audits of procedures including cleaning procedures. Staff working in the clean room must have a capability to explain in English to auditors what they are doing and why.

Management of the Respondent formed the view that the Complainant’s command of both written and spoken English was inadequate for this purpose and it was decided to remove her from duties in the clean room. She was reassigned to general day work duties at the basic rate and standard working hours prescribed by the ERO for the sector. The Complainant was advised to undertake language training and the Respondent undertook to consider reassigning her to the clean room within three months if her competency in English improved.

In April 2007 the Respondent received a letter from an English teacher advising it that the Complainant had taken English lessons twice per week for one hour in the previous three weeks.

An official of SIPTU contacted the Respondent on or about 30th April 2007 and made representations on behalf of the Complainant. He asked why she was removed from the clean room and was advised that it was due to her poor command of English. The official was advised that should the Complainant’s competency in the language improve she would be restored to the clean room. The Union official sought to have the premium rates restored to the Complainant in the interim but the Respondent was not prepared to make this concession. The matter was not pursued further.

It is the Respondent’s case that the removal of the Complainant from the clean room was unrelated to any of the discriminatory grounds and was solely because she was unable to meet an essential requirement for the job.

In relation to the equal pay claim made by the Complainant, the Respondent’s position is that the named comparator was transferred from night work to day work by the Respondent and in accordance with the collective agreement which the Respondent has with the Union there was an obligation to give four weeks' notice of a change in shift or to continue the higher rate for four weeks. The requisite notice was not given and this employee retained the higher rate for the four-week period after which he left the employment.

The Respondent denied that the Complainant had ever reported incidents of harassment. The Respondent has a dignity at work policy which had not been invoked. In relation to alleged acts of victimisation, the Respondent contends that the verbal warnings about which the Complainant complained were given for good and substantial reasons and could not be regarded as acts of victimisation. In relation to the terms of the proposed settlement the Respondent’s position is that the Complainant requested a meeting to discuss the subject matter of her complaint to the Equality Tribunal. A meeting was arranged and the Complainant through her English teacher, who acted as interpreter, indicated that if a settlement were reached the case would be withdrawn. This was confirmed in the letter setting out the outcome of the meeting. No pressure of any type was placed on the Complainant to withdraw her complaint.

Evidence of Ms EC

Evidence was given by Ms by E.C who is a Contracts Manager with the Respondent. She was responsible for the day-to-day running of the Wyeths contract. The witness told the Court that the Respondent employs around 8000 employees, 20% of whom are not Irish. There were approximately 100 employees on the Wyeth site of different nationalities and ages. When the Complainant started on this site she reported indirectly to the witness. She was engaged in night work in non-specialist areas of the plant.

The witness recalled receiving a medical cert from the Complainant’s Doctor asking that she be relieved from night work. The certificate did not specify the ailments from which the Complainant was suffering. The witness was also adamant that the Complainant had never told her the nature of her medical condition nor had she inquired into the matter. The witness told the Court that she was disposed to accommodating the Complainant with a transfer to day work and considered assigning her to work in the specialist areas of the plant which attracted the same premium that she received while on night work. She said that in order to work in that area the Complainant would require further training. The witness also said that the Complainant would have to demonstrate an ability to communicate effectively in English as auditors would regularly need to speak to cleaners in that area about the processes in which they were engaged. There was also a greater need for competency in written English having regard to the additional reporting and recording requirements in that area.

The Complainant was offered work in the clean room on a trial basis for one month.
According to the witness it became apparent during the trial period that the Complainant’s competency in English was insufficient for her to work in the clean room. The Complainant was informed by the witness that she was being reassigned to general day work duties for a period of three months during which she should undergo language training so as to bring her competency in the language up to the required standard.

The witness told the Court that the only alternative day work then available was in the non-specialist areas of the plant and this work did not attract premium pay.

The witness said that night shifts are not supervised to the same extent as day shifts and that this could account for the Complainant’s complaint that she was subjected to more supervision while on day work than when she worked nights. The witness was, however, aware that the Complainant had received at least one verbal warning while on night work in 2006.

In cross-examination the witness was referred to the training records for the period during which the Complainant was assigned to the clean room on trial. The witness accepted that these records showed that the majority of tasks assigned to the Complainant were completed satisfactorily.

Evidence of Mr C.T.

This witness has been employed by the Respondent for 18 years and at the time material to this claim held the position of Operations Manager. He was involved with the previous witness in the decision to reassign the Complainant out of the clean room. He said that the Complainant had been given a commitment that if her standard of English improved sufficiently within three months she could be returned to that area.

The witness told the Court that in July 2007 he undertook a test of the Complainant's competency in English in the context of an application which she had made to return to the clean room. It took the form of asking the Complainant a serious of questions and asking her to explain what they meant. He said that the replies given indicated to him that the Complainant had an unsatisfactory understanding of the questions and that she was unable to communicate in English to the requisite standard. In consequence she was not reassigned to the clean room. The witness told the Court that the employees who were assigned to this work had a higher standard of English than the Complainant.

The witness also told the Court that the Complainant had never approached him in relation to the incidents of bullying or harassment to which she referred in her submissions and in her evidence-in-chief. He said that the Respondent has a dignity at work policy which sets down procedures to be followed where bullying or harassment is alleged. This involves a number of procedural stages for dealing with such complaints. The witness said that he had made all employees aware of the policy.

Mr T. also gave evidence in relation to the Complainant’s complaint concerning his refusal to allow her to take holidays at Christmas 2007. He said that other employees had already booked holidays at that time and he could not release the Complainant for operational reasons. The witness denied that his decision was in any way related to the ongoing issues concerning the Complainant transfer from the clean room.

In cross examination the witness denied that the Complainant had told him that she needed the holidays so as to obtain physiotherapy in her native country for her shoulder injury.

Conclusions of the Court

Having regard to the evidence adduced in the course of the appeal, the submissions advanced by the parties and the evidence tendered, the Court has reached the following conclusions in respect of each of the within complaints.

Discrimination on Grounds of Disability and Failure to Provide Reasonable Accommodation

Section 16(3)(b) of the Act provides that an employer shall take appropriate measures (referred to in the Act as reasonable accommodation) where needed in a particular case to enable a person who has a disability to have access to employment, to participate or advance in employment or to undergo training.

In this case there is a substantial disagreement between the parties on the question of whether or not the Complainant suffered from a disability and whether or not the Respondent was informed of the nature of her condition. In the Court's view these questions are of little consequence since it is clear that the Complainant was provided with the accommodation that she requested, namely a transfer to day work. The subsequent issue which arose concerned the reason for her transfer out of a specialist area attracting a premium rate to a general area to which only the basic rate was applicable. The evidence tendered by the Respondent was to the effect that the reason for this transfer was the Complainant’s poor linguistic skills in both written and spoken English.

The Court is fully satisfied that a reasonable level of competence in English was an essential requirement for work in that area of the plant. The Court is also satisfied that the Respondent came to the view that the Complainant did not meet the minimum standard of competence required. Whether or not the Respondent acted fairly in reaching that decision is not what is in issue in this case. It is only if the decision was tainted by discrimination, in the sense that it was influence by considerations of the Complainant’s medical condition, that it could be rendered unlawful on the disability ground. There is no evidence whatsoever to show that the decision to reassign the Complainant to general day work was in any way related to her medical condition, whether or not the Respondent was aware of the nature of that condition.

Moreover, in her evidence to the Court, the Complainant said that her complaint did not relate to being transferred out of the clean roomper sebut at having her rate of pay reduced. In effect, the import of the Complainant’s position is that she is entitled under the Act to premium rates while working on the general day shift because she enjoyed an enhanced rate while on night work. That raises a question as to the ambit of the obligation imposed on a employer by s.16(3)(b) of the Act. Implicit in the submissions made on behalf of the Complainant is the contention that the Respondent was not only obliged to provide the Complainant with a facility to transfer from night work to day work but that it was also obliged to preserve her previous level of earnings.

That contention is unsupported by any authority known to the Court and none was opened to it in the course of the appeal. What is obligated by the relevant statutory provision is thatreasonableaccommodation be provided where necessary for the purposes referred to in the subsection. This imports into the obligation considerations of objective fairness and proportionality. In that regard the Court has very considerable doubt that the requirement of reasonableness could be relied upon so as to oblige the Respondent to pay the Complainant premium rates in respect of work for which only basic rates are paid to all other employees. Indeed the frailty of the Complainant’s contention could best be illustrated by considering the paradigm cases of an employee who could not continue to work overtime because of a disability or an employee who sought to work part-time for the same reason. While it could readily be said that s.16(3)(b) of the Act places an obligation on an employer to seriously consider such a request it would be plainly unreasonable to hold that having facilitated the employee the employer is statutorily obliged to maintain his or her pervious level of earnings.

It follows that when faced with the Complainant’s request to cease night working in December 2006, the Respondent could reasonably have assigned her to the day shift at the appropriate rate and working hours. In such an event the Complainant could not have complained under the Act. In the Court’s view she could not subsequently accrue a cause of action merely because she was given an opportunity to retain her premium rate which, for reasons unrelated to her medical condition, proved to be unsuccessful.

For these reasons the Court is satisfied that the Complainant has failed to make out aprima faciecase of discrimination on grounds of disability nor has she shown that the Respondent failed to provide her with reasonable accommodation in terms of s.16(3)(b) of the Act.

Discrimination on Grounds of Nationality

On the question of the decision being tainted with race discrimination, it is clear that a requirement to have competency in English is likely to place persons whose native language is other than English at a disadvantage relative to persons whose native language is English. Hence,prima facie, a requirement of competency in English is indirectly discriminatory unless it is objectively justified. It is well settled that a potentially indirectly discriminatory measure is objectively justified if it is in pursuance of a legitimate objective of the employer and the means chosen are appropriate and necessary to that end. In this case it is not disputed that there is a need for employees working in the clean room to communicate in English with employees of the Client company and with auditors of both the FDA and IMB. There is also a serious obligation on the Respondent to ensure that adequate and proper records are maintained through the use of logbooks. Adherence to these standards undoubtedly constitutes a legitimate aim of the Respondent. It seems to the Court to be clear beyond argument that the requirement for employees to be competent in English, so as to discharge these obligations, is both appropriate and necessary to the achievement of that objective. Accordingly the Court is satisfied that the requirement of a competence in English for employment in the clean room of the plant was at all times objectively justified within the statutory and jurisprudential meaning of that term.

Discrimination on Grounds of Age

The complaint of discrimination on the age ground relates to the alleged harassment of the Complainant by a work colleague who made disparaging and insulting remarks directed at the Complainant’s age. The only evidence that such harassment occurred is contained in the Complainant’s uncorroborated testimony.

In her evidence the Complainant told the Court that she reported the alleged harassment to Ms EC and to Mr CT. Both Ms EC and Mr CT in their evidence denied having received such reports. Moreover, the Complainant did not progress the matter through the Respondent’s dignity at work policy which provides, in effect, that following the initial informal stage, such complaints should be reduced to writing and submitted to management. The Court also considers it significant that the Complainant appears not to have raised this matter with her Trade Union from which she sought advice and assistance in April 2007.

On balance the Court does not believe that the Complainant’s uncorroborated evidence goes far enough to establish as a fact that the harassment of which she complained occurred.

Equal Pay

The Complainant claims equal pay with a named male co-worker of a different nationality who, she claims, was transferred from night work to day work and retained his premium rate of pay. The uncontested evidence of the Respondent is to the effect that this comparator was transferred from night work to day work at the insistence of the Respondent and without notice. In accordance with the terms of the Union / Company agreement, in these circumstances the comparator became entitled to maintain his premium pay for a period of four weeks in lieu of four weeks' notice of transfer. Thereafter this employee left the employment of the Respondent.

In these circumstances the payment of premium pay to the comparator while working on the day shift was clearly on grounds other than his nationality. Accordingly the Complainant's equal pay claim cannot succeed.

Victimisation

There are two limbs to the Complainant’s claim of victimisation. Firstly, she claims that she received unjustified warnings and was subjected to oppressive supervision in consequence of having made complaints to her Trade Union. The Complainant relies upon four incidents in particular in advancing this aspect of her complaint. She claims that in March 2007 a supervisor, Ms BL heavily criticised her for the manner in which she had cleaned a toilet. She further complained at having received a verbal warning in May 2007 for having forgotten to label a bottle, at having received a verbal warning in June 2007 for having left a bag of rubbish on a floor beside a rubbish bin which was full and a further warning in June 2007 for not cleaning a toilet and an office in time.

Secondly, she contends that in the course of a meeting to discuss the subject matter of the within complaints, and in correspondence confirming the outcome of that meeting, she was asked to withdraw her complaint. She claims that both matters constitute unlawful victimisation.

It is the Complainant’s case that she had never previously had any difficulty in her employment or came in for criticism from her employer before she contacted her Trade Union in relation to her loss of premium pay. The evidence tendered by the Respondent was to the effect that while on night work the Complainant was not supervised and that this accounted for her perception that she was subjected to closer supervision when she transferred to day work. It was the Respondent's evidence that the Complainant was treated no differently than other employees and that the warnings she received were justified. There was also evidence that the Complainant received a disciplinary warning in relation to another matter in 2006.

A further complaint made by the Complainant related to the refusal of the Respondent to allow her to take holidays at Christmas 2007. The Respondent’s reply to this complaint was that the exigencies of the work schedule required the Complainant’s presence at that time as other workers has previously been granted leave over this period.

Victimisation is defined by s.74 (2) of the Act as follows: -

• For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
  • (a) a complaint of discrimination made by the employee to the employer,

    (b) any proceedings by a complainant,

    (c) an employee having represented or otherwise supported a complainant,

    (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act ,

    (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

    (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

    (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

  (3) For the purposes of sections 77, 78 , 83 , 87 and 90 the date on which a case is referred, or an appeal made, under those provisions is the date on which the reference or appeal is received by the Director, Labour Court or Circuit Court, as the case may be.

• “This proposal is put forward as a means of re-establishing positive working relationships with you and an understanding that the equality claim will be withdrawn.”

• “A number of authorities were cited in the course of argument which make it clear that offers made in the course of negotiations for settlement are not normally admissible in evidence and that this is usually ensured by marking the relevant correspondence or documents“Without Prejudice”. (It should, of course, be borne in mind that the application of the rule is not necessarily dependent on the use of the words“Without Prejudice”). It is also clear that the rule is founded on public policy, the Court taking the view that parties should be encouraged as far as possible to settle their disputes without recourse to litigation and should not be discouraged by the knowledge that anything that is said in the course of negotiations may be used in the course of proceedings. The relevant law is clearly and comprehensively stated in the speech of Lord Griffiths inRush and Tomkins Limited v Greater London Council[1989] AC 1280. This last mentioned decision also makes it clear that such correspondence is also inadmissible in any subsequent litigation connected with the subject matter, whether between the same or different parties.”

Determination

For all of the reasons set out herein the appeal is disallowed and the Decision of the Equality Tribunal is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
29th July 2011______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.