News & Events

Race and Equality in the Workplace - An Area of Increasing Interest for Employers

17 October 2006

Mason Hayes & Curran host mock equality hearing in Dublin.

Leading business law firm Mason Hayes & Curran yesterday held a Mock Equality Hearing on the prominent issue of race and equality in the workplace.  The mock hearing was in response to requests from clients and business peers to delve into the topic of race and its relationship to dismissals. Yesterday’s hearing did just that, offering members of the business community a unique insight into how a Mock Equality Hearing is conducted.

The Mock Equality Hearing was held in conjunction with Career Change & Outplacement specialists Sanders, Sidney & O’Shea.  Chairman of the Labour Court Kevin Duffy also participated, lending authenticity to the event.  As part of the “jury audience”, attendees voted on the outcome of the case before Chairman delivered the final verdict.

Based on actual events, the scenario presented was that of an employee who had been dismissed for “gross misconduct” and claimed it was discriminatory on the grounds of race and family status. Opposing barristers and solicitors defended their respective client’s position (employer and employee). Both the claimant and HR director gave evidence and were subject to cross-examination by the opposite parties.  

Scenario

The employee’s job was to receive telephone calls from customers seeking addresses and/or telephone numbers of businesses and individuals around Ireland. This person, known as the Appellant, had to provide the information in an expedient manner and keep the phone line open at all times.   

The employer, known here as the Respondent, had a strict policy in place in relation to the use of the telephone and IT systems for personal use.  This was contained in the Electronic Communications Policy, received during induction training. The policy provided that only limited personal use of the telephone system outside of working hours was permitted and that personal use during working hours was prohibited, except in cases of emergency when short calls could be made once approved by an employee’s manager or immediate supervisor.  Employees who breached the policy were liable to disciplinary action up to and including dismissal.

In autumn 2005, the Appellant was observed by his manager speaking in Polish on the phone during work hours. The Appellant indicated that it was not a customer and his manager indicated to the Appellant that he should terminate the call immediately.  The Appellant refused to terminate the call and allegedly became aggressive stating that he had family problems to address.

In giving evidence, the Respondent explained that an additional announcement had been circulated to all employees two months prior to the incident, reminding them that breaches of personal use of telephone and Internet facilities could constitute gross misconduct leading to dismissal. 

After an internal investigation, the Appellant attended a disciplinary meeting where the results of the investigation were presented to him by the Managing Director of the company.  On the basis that the Appellant was not able to provide a reasonable explanation for his actions during this meeting, the Appellant was dismissed without notice for gross misconduct.

The Appellant filed a complaint with the Equality Hearing under the Employment Equality Acts 1998 and 2004 claiming discriminatory dismissal on the grounds of race and family status.  On 26 July 2006, the Equality Hearing issued its decision in favour of the Respondent and found that the dismissal was not discriminatory. The Appellant subsequently lodged an appeal with the Labour Court, appealing the decision of the Equality Hearing.

Having observed the scenario as it was played out on stage, the attendees at the Mock Equality Hearing were asked to make a decision: was the dismissal discriminatory on the grounds of race?  If so, how much compensation should the Appellant be awarded?

Outcome

An overwhelming majority (approximately 90%) of attendees at the Mock Equality Hearing concluded that the Appellant had been fairly dismissed.

Legal Viewpoints

The Irish workplace is becoming more and more diverse by the day and a wise response to this diversity is to ensure that well-thought out, fair policies are in place. Issues that, to an employer, may not seem to involve race can quickly be labeled as such.  It is imperative that employers create policy manuals and communications that are as clear as possible, and make efforts to ensure that all employees receive and understand company policy communication completely, no matter their country of origin.  

The main reason the audience decided against the Appellant was that he could not prove that the same or very similar situation had happened in that workplace, that had resulted in a different outcome. In other words, had the Appellant proven examples of Irish employees making personal phones calls with no retribution, the outcome might have been different.

Emer Gilvarry, Mason Hayes & Curran’s head of employment law and benefits, said, “The firm is delighted to have hosted our sixth mock hearing, which has become a valuable tool for our clients and something they consistency inquire about.  With each year, we’ve gained interest and momentum and this Equality Hearing was as interactive and stimulating as it was informative”.

Sanders, Sidney & O’Shea principal consultant Patricia Slevin added, “It’s gratifying to facilitate such an out-of-the-ordinary learning event like this in a no-risk environment. We are delighted to have been involved again and look forward to many more years of collaboration with Mason Hayes & Curran”.