Workplace Health and Safety Regulations Overview
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INTO Equality Conference
Portlaoise,
September, 2016
Anne McElduff, B.Ed., LL.B., BL.
INTO Assistant General Secretary
SAFETY, HEALTH AND WELFARE AT WORK ACTS 2005 & 2010
SAFETY, HEALTH AND WELFARE AT WORK (GENERAL
APPLICATION) REGUALTIONS 2007
HEALTH & SAFETY AUTHORITY (HSA)
•
APPLIES TO ALL EMPLOYERS, EMPLOYEES (INCLUDING
FIXED-TERM AND TEMPORARY) AND SELF-EMPLOYED
PEOPLE IN THEIR WORKPLACES
•
SETS OUT RIGHTS AND OBLIGATIONS FOR BOTH
EMPLOYERS AND EMPLOYEES
•
PROVIDES FOR SUBSTANTIAL FINES AND PENALTIES FOR
BREACHES OF THE HEALTH AND SAFETY LEGISLATION
EMPLOYERS DUTIES HAS DUTY TO:
•
ENSURE EMPLOYEES’ SAFETY, HEALTH AND WELFARE AT
WORK AS FAR AS REASONABLY PRACTICABLE...
•
PROVIDE AND MAINTAIN A SAFE PLACE OF
WORK...PROVIDE INSTRUCTIONS AND TRAINING TO
EMPLOYEES ON HEALTH AND SAFETY....HAVE PROPER
PROCEDURES IN PLACE TO DEAL WITH IMPROPER
CONDUCT OR BEHAVIOUR....
•
APPOINT A SAFETY OFFICER
•
DRAFT A SAFETY STATEMENT
•
CARRY OUT RISK ASSESSMENTS TO IDENTIFY POTENTIAL
HAZARDS.....
•
TO REPORT ANY ACCIDENT THAT RESULTS IN AN
EMPLOYEE MISSING 3 CONSECUTIVE DAYS AT WORK TO
THE HEALTH AND SAFETY AUTHORITY (HSA)
•
EMPLOYEES MUST TAKE REASONABLE CARE TO PROTECT
THE HEALTH AND SAFETY OF THEMSELVES AND OTHERS;
NOT TO ENGAGE IN IMPROPER BEHAVIOUR OR CONDUCT;
NOT TO BE UNDER THE INFLUENCE OF DRINK OR DRUGS
IN THE WORKPLACE; REPORT ANY DEFECTS IN
EQUIPMENT ETC....
•
BULLYING - EMPLOYER SHOULD ESTABLISH PROCEDURES
FOR DEALING WITH COMPLAINTS IN THE WORKPLACE
•
INTO/MANAGEMENT AGREED
WORKING TOGETHER
PROCEDURES
•
CODE OF PRACTICE FOR EMPLOYERS AND EMPLOYEES ON
THE PREVENTION AND RESOLUTION OF BULLYING AT
WORK
•
HARASSMENT – EMPLOYER HAS DUTY UNDER THE EEA ACTS
TO PREVENT HARASSMENT IN WORKPLACE - CLAIM TO
EQUALITY TRIBUNAL UNDER 9 GROUNDS
•
VICTIMISATION – EMPLOYEE CANNOT BE VICTIMISED
FOR MAKING A COMPLAINT UNDER THE H&S ACTS
I.E. DISCIPLINED OR TREATED LESS FAVOURABLY
•
ENFORCEMENT.. ..COMPLAINT TO HSA/RIGHTS
COMMISSIONER/EQUALITY TRIBUNAL – 6/12
MONTHS
•
HARASSMENT DEFINED AS
“ANY FORM OF UNWANTED
CONDUCT RELATED TO ANY OF THE DISCRIMINATORY
GROUNDS”
•
SEXUAL HARASSMENT DEFINED AS
“ANY FORM OF
UNWANTED VERBAL, NON-VERBAL OR PHYSICAL
CONDUCT OF A SEXUAL NATURE”
......BEING CONDUCT .....
WHICH HAS THE PURPOSE OR EFFECT OF VIOLATING A
PERSON’S DIGNITY AND CREATING AN INTIMIDATING,
HOSTILE, DEGRADING, HUMILIATING OR OFFENSIVE
ENVIRONMENT FOR THE PERSON
•
VICARIOUS LIABILITY APPLIES....IE EMPLOYER LIABLE
“WHETHER OR NOT IT WAS DONE WITH THE EMPLOYER’S
KNOWLEDGE OR APPROVAL
TWO FEMALE TEACHERS V A BOYS SECONDARY SCHOOL -
LABOUR COURT [2002]
•
CLAIMS BY TEACHERS IN RESPECT OF SEXUAL
HARASSMENT ALLEGEDLY PERPETRATED BY SENIOR
STUDENTS OVER A PROTRACTED TIME…INCLUDING
SEXUALLY EXPLICIT NOTES/DRAWINGS & REMARKS,
TEACHERS BEING SUBJECTED TO CRUDE REMARKS OF A
SEXUAL NATURE….WOLF WHISTLING AND CAT CALLING….
•
WHETHER COMPLAINTS TAKEN SUFFICIENTLY SERIOUSLY
BY PRINCIPAL/BofM….RELIANCE ON DISCIPLINE WHERE
PUPILS COULD BE IDENTIFIED…
•
INVOLVEMENT OF ASTI….AND APPARENT NEGATIVE
RESPONSE OF PRINCIPAL/BofM TO THIS….AND
INITIALLY TO REQUESTS FOR MEETINGS TO ADDRESS
“A CULTURE….AMONGST STUDENTS…WHICH
RESULTED IN NUMEROUS INCIDENTS OF SEXUAL
HARASSMENT OF TEACHERS….THE ENVIRONMENT
….HAD BECOME POLLUTED BY SEXUAL HARASSMENT”
•
WHETHER THE CONDUCT OF STUDENTS COMES
WITHIN AMBIT OF EMPLOYER’S LIABILITY
JUDGEMENT:
•
SITUATIONS CAN ARISE
“IN WHICH THE EMPLOYER
MAY ADOPT A COURSE OF ACTION TO AVOID
HARASSMENT OF AN EMPLOYEE BUT THAT
HARASSMENT NONETHELESS OCCURS”
•
DISCIPLINARY SANCTIONS NOT IN THEMSELVES
SUFFICIENT….
”TO ALLEVIATE OR CONTROL THE
DEVELOPING CULTURE OF SEXUAL HARASSMENT….”
•
SCHOOL DID NOT TAKE SUFFICIENT MEASURES TO
CONTROL THE SITUATION….EG DEVELOPMENT OF CODE
OF PRACTICE/POLICY
•
EMPLOYER/BofM VICARIOUSLY LIABLE AND FAILED TO
EXERCISE ADEQUATE CONTROL
•
DISCRIMINATION OCCURRED…..AS THE EMPLOYER/BOFM
FAILED TO PROVIDE TEACHERS
“WITH A PLACE OF WORK
FREE FROM SEXUAL HARASSMENT”
•
AWARD OF 10K AND 20K RESPECTIVELY TO THE TWO
TEACHERS
HIGH COURT [2011] - UNA RUFFLEY V ST ANNE’S
SPECIAL SCHOOL
•
CLAIMANT AN SNA
•
ISSUE CONCERNING USE OF SENSORY
ROOM....WHETHER SNA LOCKED A PUPIL INTO
SENSORY ROOM
•
WHETHER GENERAL PRACTICE BY SNA’S TO LOCK
SENSORY ROOM
HC JUDGEMENT:
•
NOTED VARIOUS INTERACTIONS WITH THE
PRINCIPAL…INCLUDING FURTHER INCIDENT OF ALLEGED
“
FALSIFICATION
” OF PAPERWORK
•
WHETHER DISCIPLINARY ACTION/SANCTION APPLIED
FAIRLY
•
REFUSAL OF APPEAL BY BofM
•
WHETHER TREATMENT OF CLAIMANT BETWEEN
14/9/2009 AND 27/10/2010 AMOUNTED TO BULLYING
AND HARASSMENT....WAS BEHAVIOUR PERSISTENT OVER
TIME?
•
WHETHER EMPLOYER/BOFM AWARE OF IMPACT OF
DEVELOPMENTS ON CLAIMANT?
•
WHETHER CLAIMANT SUFFERED A PERSONAL INJURY –
“A DEFINITE PSYCHIATRIC INJURY”
....MEDICAL
EVIDENCE [OF]...... DEPRESSION AND GENERAL
ANXIETY DISORDER?
•
CLAIMANT ON SICK LEAVE DUE TO WORK RELATED
STRESS
•
? OF DAMAGES
COURT OF APPEAL [2015] –
UNA
RUFFLEY V ST ANNE’S SPECIAL SCHOOL
2 ISSUES CONSIDERED:
•
APPLICATION OF WRITTEN WARNING/FAIR
PROCEDURES
•
WHETHER PRINCIPAL & BofM’S CONDUCT
AMOUNTED TO BULLYING & HARASSMENT
•
DEFINITION OF BULLYING CONSIDERED….WHETHER
PRINCIPAL’S/BOARD’S CONDUCT AMOUNTED TO
“….REPEATED INAPPROPRIATE BEHAVIOUR….WHICH
COULD REASONABLY BE REGARDED AS UNDERMINING
INDIVIDUAL’S RIGHT TO DIGNITY AT WORK”
PRINCIPAL/BofM ARGUED:
•
APPLICATION OF THE DISCIPLINARY PROCEDURES DID
NOT AMOUNT TO BULLYING….
•
THERE WAS NO CAUSAL LINK BETWEEN
PRINCIPAL’S/BofM’S ACTIONS AND PSYCHOLOGICAL
INJURIES SUFFERED BY SNA
•
AWARD OF DAMAGES EXCESSIVE
CA RULED OUT MOST OF THE ACTIONS OF PRINCIPAL
AND BofM AS NOT BEING INAPPROPRIATE….RECOGNISED
ONE ACTION ONLY AS INAPPROPRIATE/NOT
REPEATED….EG CA STATED:
•
BULLYING CAN ONLY BE IDENTIFIED
RETROSPECTIVELY….
•
INCIDENTS OF INAPPROPRIATE CONDUCT DO NOT
HAVE TO BE
“OF THE SAME NATURE OR CHARACTER…”
CA STATED…
•
WHAT AMOUNTS TO INAPPROPRIATE BEHAVIOUR MUST
BE OBJECTIVELY DETERMINED….THE TEST DOES NOT
CENTRE ON THE INTENTION OF PERSONS…
•
NOT INAPPROPRIATE:
–
TO ADVISE SNA SHE WOULD BE SUBJECT TO
DISCIPLINARY PROCEEDINGS
–
NOT TO CONDUCT A PRELIMINARY
INVESTIGATION/PRINCIPAL
–
TO KEEP SNA’S PERFORMANCE UNDER REVIEW
MONA JACKSON V CAHILL & CAHILL SOLICITORS
[HC 6/7/2016]
•
CLAIM BY SOLICITOR OF B&H AGAINST THE PRINCIPAL
•
VARIETY OF COMPLAINTS CITED….INCLUDING…
o
ERRATIC & INTIMIDATING BEHAVIOUR
o
DIFFERENT/INCONSISTENT TREATMENT…. RE THREATS OF
PAY CUTS OF 20%/10%/5%, BONUSES, AND THREAT OF
REDUNDANCY….(2010-2012 MAINLY & PRACTICE UNDER
SOME FINANCIAL PRESSURE)
o
ISSUES RE NOTES, EMAILS AND MANNER OF DELIVERY
o
ISSUES RE PAYMENT OF HEALTH INSURANCE,
PRACTICING CERT, CHRISTMAS BAR LUNCH IN
CASTLEBAR
o
WHETHER WORK ENVIRONMENT TOXIC
o
PL’S WORK COMPETENCE NOT AN ISSUE
o
WHETHER COMPLAINTS WERE ONLY
“AN
EMOTIONAL REACTION TO HER PERCEPTION OF
BULLYING”
•
TWO DIFFERENT/CONTRADICTORY PSYCHIATRISTS
OPINIONS FOR PL AND DFT....PL’S EVIDENCE THAT SHE
CAME TO SUFFER
“SIGNIFICANT DEPRESSION AND
ANXIETY”
•
COMPLAINTS ALL DENIED BY DFT…EG DENIED
“SHOUTING….”,
ACCEPTED ON OCCASIONS BECAME
EXCITABLE AND BECOMING FLUSTERED & REFERRED
TO OFFICE
“JOKES AND A BIT OF CRAIC”
•
HR CONSULTANT HIRED….NO INDICATION OF
OUTCOME & MATTER REFERRED TO WRC
•
STANDARD DEFINITION OF BULLYING ACCEPTED….
REPEATED & UNDERMINING OF DIGNITY AT
WORK….OBJECTIVE VIEW – IE PERSON ENTITLED
“TO
BE TREATED WITH REASONABLE FAIRNESS IN THE
EYES OF OTHERS”
•
FOR PERSONAL INJURY….+ RECOGNISED PSYCHIATRIC
INJURY (NOT ORDINARY STRESS) + REASONABLE
FORESEEABILITY
JUDGEMENT:
•
CASE FINELY BALANCED….”WITH UTTERLY NO CLEAR
CUT RESOLUTION….”
•
“VERY LITTLE CORROBORATION OF VERSIONS
ADVANCED BY EITHER PARTY”
•
PL FOUND TO BE “MORE RELIABLE
HISTORIAN…[THOUGH]…OTHER ASPECTS OF HER
TESTIMONY HAVE CAUSED…MISGIVINGS [EG FAILURE
TO DISCLOSE HIP SURGERY..ETC]”
•
PL “MORE RELIABLE AND PERSUASIVE WITNESS”
•
FINDING 8:4 IN FAVOUR OF PL….A NUMBER OF
INCIDENTS MET THE
“THRESHOLD FOR WORKPLACE
BULLYING”
•
€50K AWARDED WITH 20% DEDUCTED TO REFLECT HC
VIEW THAT IN CERTAIN INSTANCES PL
“LESS THAN
CANDID”
APPOINTMENT PROCEDURES
GOVERNANCE MANUAL – APPENDICES D & E
ADVERTISING RULES
SELECTION PROCEDURES
CRITERIA FOR ASSESSMENT
DISCLOSURE OF INTEREST
INTERVIEWS
SEQUENCE LEADING TO APPOINTMENT/CONTRACT
RETENTION OF RECORDS
EMPLOYMENT EQUALITY ACTS, (EEA) (1998-
2008
)
EEA- SCOPE - ASPECTS OF EMPLOYMENT THAT ARE
COVERED INCLUDE:
–
ADVERTISING
–
EQUAL PAY
–
ACCESS TO EMPLOYMENT
–
VOCATIONAL TRAINING AND WORK EXPERIENCE
–
TERMS AND CONDITIONS OF EMPLOYMENT
–
PROMOTION OR RE-GRADING
–
CLASSIFICATION OF POSTS
–
DISMISSAL
–
COLLECTIVE AGREEMENTS
EEA: O’ CONGHAILE V BOM OF MERCY MEAN
SCOIL MHUIRE, GALWAY [DEC – E2007 -068]
•
APPLICATION FOR PRINCIPALSHIP....WHETHER THERE
WAS DISCRIMINATION ON AGE GROUND
•
CLAIMANT 36 YEARS EXPERIENCE...HIGH
PROFILE....ACTIVE IN
EDUCATION/UNSUCCESSFUL/YOUNGER CANDIDATE
APPOINTED...
•
WHETHER QUESTION AT INTERVIEW DISCRIMINATORY...
“...WHY SHE WAS APPLYING FOR THE JOB AT THIS TIME IN
HER LIFE”
V RESPONDENT’S CLAIM QUESTION WAS
“CAN
YOU OFFER SELECTION COMMITTEE A BRIEF OUTLINE AS
TO WHY YOU FEEL, AT THIS STAGE IN YOUR CAREER, THAT
YOU ARE THE MOST SUITABLE CANDIDATE....”
•
ISSUE OF QUALIFICATIONS/EXPERIENCE/EXPERTISE OF
SELECTION BOARD
•
EO....
THERE IS NO EXHAUSTIVE LIST OF FACTORS WHICH
CAN BE REGARDED AS INDICATIVE OF
DISCRIMINATION.....AN INFERENCE OF DISCRIMINATION
CAN ARISE....”
•
RELIANCE ON EU JURISPRUDENCE –
“...IT IS SETTLED LAW
THAT DISCRIMINATION CAN ARISE NOT ONLY THROUGH
THE APPLICATION OF DIFFERENT RULES TO COMPARABLE
SITUATIONS BUT BY THE APPLICATION OF THE SAME RULE
TO DIFFERENT SITUATIONS”.....
IE COULD THE DISPUTED
QUESTION ASKED OF ALL THE CANDIDATES HAD A
DIFFERENT SIGNIFICANCE FOR EACH?
•
ALL RECORDS NOT MAINTAINED &
INCONSISTENCIES....CAN LEAD TO AN INFERENCE OF
DISCRIMINATION
•
EO EMPHASIS ON OPENNESS AND TRANSPARENCY
•
DISCRIMINATION - WHERE
“A PERSON IS TREATED LESS
FAVOURABLY THAN ANOTHER PERSON IS, HAS BEEN OR
WOULD BE TREATED IN A COMPARABLE SITUATION, ON
ANY OF THE GROUNDS SPECIFIED...
•
INDIRECT DISCRIMINATION ....WHERE AN APPARENTLY
NEUTRAL PROVISION PUTS PERSONS AT A PARTICULAR
DISADVANTAGE....UNLESS THE PROVISION
“IS
OBJECTIVELY JUSTIFIED BY A LEGITIMATE AIM AND THE
MEANS OF ACHIEVING THAT AIM ARE APPROPRIATE AND
NECESSARY”......
•
IMPUTED BY ASSOCIATION
A TEACHER V A NATIONAL SCHOOL
DEC-E2014-097
•
CLAIM FOR DISCRIMINATION ON THE GROUNDS OF AGE,
RELIGION AND SEXUAL ORIENTATION CONTRARY TO
S.6.2(d), (e) and (f) of the EEA 1998-2011
•
RELIGION…
“…WHERE IT IS REASONABLE....IN ORDER TO
MAINTAIN THE RELIGIOUS ETHOS OF THE
INSTITUTION.....OR......PREVENT AN EMPLOYEE OR A
PROSPECTIVE EMPLOYEE FROM UNDERMINING THE
RELIGIOUS ETHOS OF THE INSTITUTION”
....
•
FOR AGE IN CERTAIN CIRCUMSTANCES.....
•
INTERVIEW FOR PRINCIPALSHIP
•
ASKED “THOUGHTS ON …FORUM ON PLURALISM &
PATRONAGE” & “WHAT ABOUT THE HOMO’S”
•
ALL QUALIFICATIONS SHOULD BE TAKEN INTO ACCOUNT
WHEN AWARDING MARKS
•
CLAIMANT CITED HER QUALIFICATIONS AND
EXPERIENCE....
•
PERSONAL OPINIONS SHOULD NOT BE ASKED FOR AT
INTERVIEW
•
QUESTIONS IN RELATION TO SEXUAL ORIENTATION ARE
UNLAWFUL
•
AWARD OF €54,000
•
AWARD UPHELD BY THE LABOUR COURT
EEA: MURRAY V BofM, SCOIL MHUIRE,
SWANLINBAR [DEC – E2005 -015]
•
PERMANENT POST/ CLAIMANT UNSUCCESSFUL/
WHETHER GENDER DISCRIMINATION
•
QUESTION AT INTERVIEW ABOUT HER MATERNITY
LEAVE/WHEN IT WOULD END/WHEN AVAILABLE &
COMMENT ABOUT DIFFICULTY IN OBTAINING
SUBSTITUTE TEACHERS
•
DENIED BY RESPONDENT...ARGUED OBJECTIVE CRITERIA &
ALL CANDIDATES ASKED WHEN AVAILABLE
•
SELECTION BOARD OUTLINED ITS PROCESS....RELIED ON
COMPETENCY TO TEACH IRISH & EXPERIENCE IN MULTI-
CLASS TEACHING...
•
NO INDIVIDUAL MARKING SHEETS...
•
CLAIMANT INFORMED SHE WAS UNSUCCESSFUL
DUE TO HER UNAVAILABILITY...
•
WHETHER QUESTION C/WOULD NOT HAVE BEEN
ASKED OF A MALE CANDIDATE....LINKING OF NON-
APPOINTMENT TO PREGNANCY/MATERNITY – IE
GENDER GROUND
•
WHETHER THE RESULT WAS BASED SOLELY ON THE
CANDIDATES PERFORMANCE AT INTERVIEW & CVs
•
WHETHER QUESTION WAS INDIRECTLY
DISCRIMINATORY....AS MORE WOMEN THAN MEN
WOULD BE ADVERSELY AFFECTED ....IN CIRCUMSTANCES
WHERE THE PREGNANCY WAS KNOWN IN ADVANCE....
•
WHETHER MISMATCH BETWEEN FORMAL SELECTION
CRITERIA AND THOSE APPLIED IN PRACTICE....
•
WHETHER STANDARDS OF FAIRNESS, TRANSPARENCY,
OBJECTIVITY AND GOOD PRACTICE WERE BREACHED....
•
€10,000 COMPENSATION AWARDED.
Explore key aspects of workplace safety laws and regulations, including employer duties, employee responsibilities, bullying and harassment prevention, and procedures for handling complaints. Learn about the Equality Tribunal, safety officers, risk assessments, and more to ensure a safe work environment for all.
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Presentation Transcript
INTO & GENDER DISCRIMINATION INTO Equality Conference Portlaoise, September, 2016 Anne McElduff, B.Ed., LL.B., BL. INTO Assistant General Secretary
SAFETY, HEALTH AND WELFARE AT WORK ACTS 2005 & 2010 SAFETY, HEALTH AND WELFARE AT WORK (GENERAL APPLICATION) REGUALTIONS 2007 HEALTH & SAFETY AUTHORITY (HSA) APPLIES TO ALL EMPLOYERS, EMPLOYEES (INCLUDING FIXED-TERM AND TEMPORARY) AND SELF-EMPLOYED PEOPLE IN THEIR WORKPLACES SETS OUT RIGHTS AND OBLIGATIONS FOR BOTH EMPLOYERS AND EMPLOYEES PROVIDES FOR SUBSTANTIAL FINES AND PENALTIES FOR BREACHES OF THE HEALTH AND SAFETY LEGISLATION
EMPLOYERS DUTIES HAS DUTY TO: ENSURE EMPLOYEES SAFETY, HEALTH AND WELFARE AT WORK AS FAR AS REASONABLY PRACTICABLE... PROVIDE AND MAINTAIN A SAFE PLACE OF WORK...PROVIDE INSTRUCTIONS AND TRAINING TO EMPLOYEES ON HEALTH AND SAFETY....HAVE PROPER PROCEDURES IN PLACE TO DEAL WITH IMPROPER CONDUCT OR BEHAVIOUR....
APPOINT A SAFETY OFFICER DRAFT A SAFETY STATEMENT CARRY OUT RISK ASSESSMENTS TO IDENTIFY POTENTIAL HAZARDS..... TO REPORT ANY ACCIDENT THAT RESULTS IN AN EMPLOYEE MISSING 3 CONSECUTIVE DAYS AT WORK TO THE HEALTH AND SAFETY AUTHORITY (HSA)
EMPLOYEES MUST TAKE REASONABLE CARE TO PROTECT THE HEALTH AND SAFETY OF THEMSELVES AND OTHERS; NOT TO ENGAGE IN IMPROPER BEHAVIOUR OR CONDUCT; NOT TO BE UNDER THE INFLUENCE OF DRINK OR DRUGS IN THE WORKPLACE; REPORT ANY DEFECTS IN EQUIPMENT ETC....
BULLYING - EMPLOYER SHOULD ESTABLISH PROCEDURES FOR DEALING WITH COMPLAINTS IN THE WORKPLACE INTO/MANAGEMENT AGREED WORKING TOGETHER PROCEDURES CODE OF PRACTICE FOR EMPLOYERS AND EMPLOYEES ON THE PREVENTION AND RESOLUTION OF BULLYING AT WORK HARASSMENT EMPLOYER HAS DUTY UNDER THE EEA ACTS TO PREVENT HARASSMENT IN WORKPLACE - CLAIM TO EQUALITY TRIBUNAL UNDER 9 GROUNDS
VICTIMISATION EMPLOYEE CANNOT BE VICTIMISED FOR MAKING A COMPLAINT UNDER THE H&S ACTS I.E. DISCIPLINED OR TREATED LESS FAVOURABLY ENFORCEMENT.. ..COMPLAINT TO HSA/RIGHTS COMMISSIONER/EQUALITY TRIBUNAL 6/12 MONTHS
HARASSMENT DEFINED AS ANY FORM OF UNWANTED CONDUCT RELATED TO ANY OF THE DISCRIMINATORY GROUNDS SEXUAL HARASSMENT DEFINED AS ANY FORM OF UNWANTED VERBAL, NON-VERBAL OR PHYSICAL CONDUCT OF A SEXUAL NATURE ......BEING CONDUCT ..... WHICH HAS THE PURPOSE OR EFFECT OF VIOLATING A PERSON S DIGNITY AND CREATING AN INTIMIDATING, HOSTILE, DEGRADING, HUMILIATING OR OFFENSIVE ENVIRONMENT FOR THE PERSON
VICARIOUS LIABILITY APPLIES....IE EMPLOYER LIABLE WHETHER OR NOT IT WAS DONE WITH THE EMPLOYER S KNOWLEDGE OR APPROVAL
TWO FEMALE TEACHERS V A BOYS SECONDARY SCHOOL - LABOUR COURT [2002] CLAIMS BY TEACHERS IN RESPECT OF SEXUAL HARASSMENT ALLEGEDLY PERPETRATED BY SENIOR STUDENTS OVER A PROTRACTED TIME INCLUDING SEXUALLY EXPLICIT NOTES/DRAWINGS & REMARKS, TEACHERS BEING SUBJECTED TO CRUDE REMARKS OF A SEXUAL NATURE .WOLF WHISTLING AND CAT CALLING . WHETHER COMPLAINTS TAKEN SUFFICIENTLY SERIOUSLY BY PRINCIPAL/BofM .RELIANCE ON DISCIPLINE WHERE PUPILS COULD BE IDENTIFIED
INVOLVEMENT OF ASTI.AND APPARENT NEGATIVE RESPONSE OF PRINCIPAL/BofM TO THIS .AND INITIALLY TO REQUESTS FOR MEETINGS TO ADDRESS A CULTURE .AMONGST STUDENTS WHICH RESULTED IN NUMEROUS INCIDENTS OF SEXUAL HARASSMENT OF TEACHERS .THE ENVIRONMENT .HAD BECOME POLLUTED BY SEXUAL HARASSMENT WHETHER THE CONDUCT OF STUDENTS COMES WITHIN AMBIT OF EMPLOYER S LIABILITY
JUDGEMENT: SITUATIONS CAN ARISE IN WHICH THE EMPLOYER MAY ADOPT A COURSE OF ACTION TO AVOID HARASSMENT OF AN EMPLOYEE BUT THAT HARASSMENT NONETHELESS OCCURS DISCIPLINARY SANCTIONS NOT IN THEMSELVES SUFFICIENT . TO ALLEVIATE OR CONTROL THE DEVELOPING CULTURE OF SEXUAL HARASSMENT .
SCHOOL DID NOT TAKE SUFFICIENT MEASURES TO CONTROL THE SITUATION .EG DEVELOPMENT OF CODE OF PRACTICE/POLICY EMPLOYER/BofM VICARIOUSLY LIABLE AND FAILED TO EXERCISE ADEQUATE CONTROL DISCRIMINATION OCCURRED ..AS THE EMPLOYER/BOFM FAILED TO PROVIDE TEACHERS WITH A PLACE OF WORK FREE FROM SEXUAL HARASSMENT AWARD OF 10K AND 20K RESPECTIVELY TO THE TWO TEACHERS
HIGH COURT [2011] - UNA RUFFLEY V ST ANNES SPECIAL SCHOOL CLAIMANT AN SNA ISSUE CONCERNING USE OF SENSORY ROOM....WHETHER SNA LOCKED A PUPIL INTO SENSORY ROOM WHETHER GENERAL PRACTICE BY SNA S TO LOCK SENSORY ROOM
HC JUDGEMENT: NOTED VARIOUS INTERACTIONS WITH THE PRINCIPAL INCLUDING FURTHER INCIDENT OF ALLEGED FALSIFICATION OF PAPERWORK WHETHER DISCIPLINARY ACTION/SANCTION APPLIED FAIRLY REFUSAL OF APPEAL BY BofM WHETHER TREATMENT OF CLAIMANT BETWEEN 14/9/2009 AND 27/10/2010 AMOUNTED TO BULLYING AND HARASSMENT....WAS BEHAVIOUR PERSISTENT OVER TIME?
WHETHER EMPLOYER/BOFM AWARE OF IMPACT OF DEVELOPMENTS ON CLAIMANT? WHETHER CLAIMANT SUFFERED A PERSONAL INJURY A DEFINITE PSYCHIATRIC INJURY ....MEDICAL EVIDENCE [OF]...... DEPRESSION AND GENERAL ANXIETY DISORDER? CLAIMANT ON SICK LEAVE DUE TO WORK RELATED STRESS ? OF DAMAGES
COURT OF APPEAL [2015] UNA RUFFLEY V ST ANNE S SPECIAL SCHOOL 2 ISSUES CONSIDERED: APPLICATION OF WRITTEN WARNING/FAIR PROCEDURES WHETHER PRINCIPAL & BofM S CONDUCT AMOUNTED TO BULLYING & HARASSMENT
DEFINITION OF BULLYING CONSIDERED.WHETHER PRINCIPAL S/BOARD S CONDUCT AMOUNTED TO .REPEATED INAPPROPRIATE BEHAVIOUR .WHICH COULD REASONABLY BE REGARDED AS UNDERMINING INDIVIDUAL S RIGHT TO DIGNITY AT WORK
PRINCIPAL/BofM ARGUED: APPLICATION OF THE DISCIPLINARY PROCEDURES DID NOT AMOUNT TO BULLYING . THERE WAS NO CAUSAL LINK BETWEEN PRINCIPAL S/BofM S ACTIONS AND PSYCHOLOGICAL INJURIES SUFFERED BY SNA AWARD OF DAMAGES EXCESSIVE
CA RULED OUT MOST OF THE ACTIONS OF PRINCIPAL AND BofM AS NOT BEING INAPPROPRIATE .RECOGNISED ONE ACTION ONLY AS INAPPROPRIATE/NOT REPEATED .EG CA STATED: BULLYING CAN ONLY BE IDENTIFIED RETROSPECTIVELY . INCIDENTS OF INAPPROPRIATE CONDUCT DO NOT HAVE TO BE OF THE SAME NATURE OR CHARACTER
CA STATED WHAT AMOUNTS TO INAPPROPRIATE BEHAVIOUR MUST BE OBJECTIVELY DETERMINED .THE TEST DOES NOT CENTRE ON THE INTENTION OF PERSONS NOT INAPPROPRIATE: TO ADVISE SNA SHE WOULD BE SUBJECT TO DISCIPLINARY PROCEEDINGS NOT TO CONDUCT A PRELIMINARY INVESTIGATION/PRINCIPAL TO KEEP SNA S PERFORMANCE UNDER REVIEW
MONA JACKSON V CAHILL & CAHILL SOLICITORS [HC 6/7/2016] CLAIM BY SOLICITOR OF B&H AGAINST THE PRINCIPAL VARIETY OF COMPLAINTS CITED .INCLUDING o ERRATIC & INTIMIDATING BEHAVIOUR o DIFFERENT/INCONSISTENT TREATMENT . RE THREATS OF PAY CUTS OF 20%/10%/5%, BONUSES, AND THREAT OF REDUNDANCY .(2010-2012 MAINLY & PRACTICE UNDER SOME FINANCIAL PRESSURE) o ISSUES RE NOTES, EMAILS AND MANNER OF DELIVERY
o ISSUES RE PAYMENT OF HEALTH INSURANCE, PRACTICING CERT, CHRISTMAS BAR LUNCH IN CASTLEBAR o WHETHER WORK ENVIRONMENT TOXIC o PL S WORK COMPETENCE NOT AN ISSUE o WHETHER COMPLAINTS WERE ONLY AN EMOTIONAL REACTION TO HER PERCEPTION OF BULLYING
TWO DIFFERENT/CONTRADICTORY PSYCHIATRISTS OPINIONS FOR PL AND DFT....PL S EVIDENCE THAT SHE CAME TO SUFFER SIGNIFICANT DEPRESSION AND ANXIETY COMPLAINTS ALL DENIED BY DFT EG DENIED SHOUTING . , ACCEPTED ON OCCASIONS BECAME EXCITABLE AND BECOMING FLUSTERED & REFERRED TO OFFICE JOKES AND A BIT OF CRAIC HR CONSULTANT HIRED .NO INDICATION OF OUTCOME & MATTER REFERRED TO WRC
STANDARD DEFINITION OF BULLYING ACCEPTED. REPEATED & UNDERMINING OF DIGNITY AT WORK .OBJECTIVE VIEW IE PERSON ENTITLED TO BE TREATED WITH REASONABLE FAIRNESS IN THE EYES OF OTHERS FOR PERSONAL INJURY .+ RECOGNISED PSYCHIATRIC INJURY (NOT ORDINARY STRESS) + REASONABLE FORESEEABILITY
JUDGEMENT: CASE FINELY BALANCED . WITH UTTERLY NO CLEAR CUT RESOLUTION . VERY LITTLE CORROBORATION OF VERSIONS ADVANCED BY EITHER PARTY PL FOUND TO BE MORE RELIABLE HISTORIAN [THOUGH] OTHER ASPECTS OF HER TESTIMONY HAVE CAUSED MISGIVINGS [EG FAILURE TO DISCLOSE HIP SURGERY..ETC] PL MORE RELIABLE AND PERSUASIVE WITNESS
FINDING 8:4 IN FAVOUR OF PL.A NUMBER OF INCIDENTS MET THE THRESHOLD FOR WORKPLACE BULLYING 50K AWARDED WITH 20% DEDUCTED TO REFLECT HC VIEW THAT IN CERTAIN INSTANCES PL LESS THAN CANDID
APPOINTMENT PROCEDURES GOVERNANCE MANUAL APPENDICES D & E ADVERTISING RULES SELECTION PROCEDURES CRITERIA FOR ASSESSMENT DISCLOSURE OF INTEREST INTERVIEWS
SEQUENCE LEADING TO APPOINTMENT/CONTRACT RETENTION OF RECORDS
EMPLOYMENT EQUALITY ACTS, (EEA) (1998- 2008) EEA- SCOPE - ASPECTS OF EMPLOYMENT THAT ARE COVERED INCLUDE: ADVERTISING EQUAL PAY ACCESS TO EMPLOYMENT VOCATIONAL TRAINING AND WORK EXPERIENCE TERMS AND CONDITIONS OF EMPLOYMENT PROMOTION OR RE-GRADING CLASSIFICATION OF POSTS DISMISSAL COLLECTIVE AGREEMENTS
EEA: O CONGHAILE V BOM OF MERCY MEAN SCOIL MHUIRE, GALWAY [DEC E2007 -068] APPLICATION FOR PRINCIPALSHIP....WHETHER THERE WAS DISCRIMINATION ON AGE GROUND CLAIMANT 36 YEARS EXPERIENCE...HIGH PROFILE....ACTIVE IN EDUCATION/UNSUCCESSFUL/YOUNGER CANDIDATE APPOINTED...
WHETHER QUESTION AT INTERVIEW DISCRIMINATORY... ...WHY SHE WAS APPLYING FOR THE JOB AT THIS TIME IN HER LIFE V RESPONDENT S CLAIM QUESTION WAS CAN YOU OFFER SELECTION COMMITTEE A BRIEF OUTLINE AS TO WHY YOU FEEL, AT THIS STAGE IN YOUR CAREER, THAT YOU ARE THE MOST SUITABLE CANDIDATE.... ISSUE OF QUALIFICATIONS/EXPERIENCE/EXPERTISE OF SELECTION BOARD
EO....THERE IS NO EXHAUSTIVE LIST OF FACTORS WHICH CAN BE REGARDED AS INDICATIVE OF DISCRIMINATION.....AN INFERENCE OF DISCRIMINATION CAN ARISE.... RELIANCE ON EU JURISPRUDENCE ...IT IS SETTLED LAW THAT DISCRIMINATION CAN ARISE NOT ONLY THROUGH THE APPLICATION OF DIFFERENT RULES TO COMPARABLE SITUATIONS BUT BY THE APPLICATION OF THE SAME RULE TO DIFFERENT SITUATIONS .....IE COULD THE DISPUTED QUESTION ASKED OF ALL THE CANDIDATES HAD A DIFFERENT SIGNIFICANCE FOR EACH?
ALL RECORDS NOT MAINTAINED & INCONSISTENCIES....CAN LEAD TO AN INFERENCE OF DISCRIMINATION EO EMPHASIS ON OPENNESS AND TRANSPARENCY
DISCRIMINATION - WHERE A PERSON IS TREATED LESS FAVOURABLY THAN ANOTHER PERSON IS, HAS BEEN OR WOULD BE TREATED IN A COMPARABLE SITUATION, ON ANY OF THE GROUNDS SPECIFIED... INDIRECT DISCRIMINATION ....WHERE AN APPARENTLY NEUTRAL PROVISION PUTS PERSONS AT A PARTICULAR DISADVANTAGE....UNLESS THE PROVISION IS OBJECTIVELY JUSTIFIED BY A LEGITIMATE AIM AND THE MEANS OF ACHIEVING THAT AIM ARE APPROPRIATE AND NECESSARY ...... IMPUTED BY ASSOCIATION
A TEACHER V A NATIONAL SCHOOL DEC-E2014-097 CLAIM FOR DISCRIMINATION ON THE GROUNDS OF AGE, RELIGION AND SEXUAL ORIENTATION CONTRARY TO S.6.2(d), (e) and (f) of the EEA 1998-2011 RELIGION WHERE IT IS REASONABLE....IN ORDER TO MAINTAIN THE RELIGIOUS ETHOS OF THE INSTITUTION.....OR......PREVENT AN EMPLOYEE OR A PROSPECTIVE EMPLOYEE FROM UNDERMINING THE RELIGIOUS ETHOS OF THE INSTITUTION .... FOR AGE IN CERTAIN CIRCUMSTANCES.....
INTERVIEW FOR PRINCIPALSHIP ASKED THOUGHTS ON FORUM ON PLURALISM & PATRONAGE & WHAT ABOUT THE HOMO S ALL QUALIFICATIONS SHOULD BE TAKEN INTO ACCOUNT WHEN AWARDING MARKS CLAIMANT CITED HER QUALIFICATIONS AND EXPERIENCE....
PERSONAL OPINIONS SHOULD NOT BE ASKED FOR AT INTERVIEW QUESTIONS IN RELATION TO SEXUAL ORIENTATION ARE UNLAWFUL AWARD OF 54,000 AWARD UPHELD BY THE LABOUR COURT
EEA: MURRAY V BofM, SCOIL MHUIRE, SWANLINBAR [DEC E2005 -015] PERMANENT POST/ CLAIMANT UNSUCCESSFUL/ WHETHER GENDER DISCRIMINATION QUESTION AT INTERVIEW ABOUT HER MATERNITY LEAVE/WHEN IT WOULD END/WHEN AVAILABLE & COMMENT ABOUT DIFFICULTY IN OBTAINING SUBSTITUTE TEACHERS
DENIED BY RESPONDENT...ARGUED OBJECTIVE CRITERIA & ALL CANDIDATES ASKED WHEN AVAILABLE SELECTION BOARD OUTLINED ITS PROCESS....RELIED ON COMPETENCY TO TEACH IRISH & EXPERIENCE IN MULTI- CLASS TEACHING... NO INDIVIDUAL MARKING SHEETS...
CLAIMANT INFORMED SHE WAS UNSUCCESSFUL DUE TO HER UNAVAILABILITY... WHETHER QUESTION C/WOULD NOT HAVE BEEN ASKED OF A MALE CANDIDATE....LINKING OF NON- APPOINTMENT TO PREGNANCY/MATERNITY IE GENDER GROUND
WHETHER THE RESULT WAS BASED SOLELY ON THE CANDIDATES PERFORMANCE AT INTERVIEW & CVs WHETHER QUESTION WAS INDIRECTLY DISCRIMINATORY....AS MORE WOMEN THAN MEN WOULD BE ADVERSELY AFFECTED ....IN CIRCUMSTANCES WHERE THE PREGNANCY WAS KNOWN IN ADVANCE....
WHETHER MISMATCH BETWEEN FORMAL SELECTION CRITERIA AND THOSE APPLIED IN PRACTICE.... WHETHER STANDARDS OF FAIRNESS, TRANSPARENCY, OBJECTIVITY AND GOOD PRACTICE WERE BREACHED.... 10,000 COMPENSATION AWARDED.
