Employer Resources Newsletter - April 2023

What is your organisation doing to combat discrimination?

The UN established 21 March 2022 as the  International Day for the Elimination of Racial Discrimination and now in its second year it is a timely reminder for employers in the non-profit sector to consider the application of their Dignity at Work and anti-harassment policies as well as promoting equal opportunities in the workplace. Further steps should be taken by employers to have in place diversity and inclusion policies and initiatives that prevent any workplace racism or discrimination in their organisation and in order to promote inclusive practices. Racial discrimination in the workplace is against the law in and employers who allow it to occur can face significant legal consequences and financial penalties. Employers who fail to address racism in the workplace can also face potential reputational damage that could impact their organisation circumventing the ethos of organisations in the not-for-profit sector and their promotion of inclusivity.

Consequences of Failing to Address Racism in the Workplace

In a recent case review an employee was awarded €8,000 in redress due to racist discrimination in the workplace. It is an interesting case to review, as in this situation the employer did have both Diversity and Dignity at Work policies in place but was not seen as proactive in its implementation. The organisation was deemed to not have done enough to protect the Complainant against discriminatory behaviour and was ordered to pay compensation to the impacted employee which demonstrates the need to go further than just having the appropriate policies in place.

Is Racism in the Workplace on the Rise?

Unfortunately, a recent research report suggests that racism in workplaces in Ireland is on the rise. A 2022 Irish Network Against Racism (INAR) Report shared preliminary findings that found a record 69 cases were reported, up from 16 in 2021.

A December 2022 report by the Irish Human Rights and Equality Commission (IHREC) shares findings of young ethnic minority workers in Ireland being exposed to microaggression on an everyday basis that made some participants leave their workplace. It also shared experiences of employees being directly discriminated against or positioned as different or inferior by virtue of a name, their race or skin colour.

What legal protections must employers be aware of with regard to racial discrimination?

In Ireland, employees are protected from racial discrimination by a number of laws and regulations. The Employment Equality Acts 1998-2015 prohibit discrimination on nine grounds including gender, civil and family status, sexual orientation, religious belief, age and the grounds of race, nationality, ethnic origin, or membership of the Traveller community in employment. The Acts cover all aspects of employment, including recruitment, promotion, and training. Additionally, the Equal Status Acts 2000-2018 prohibit discrimination in access to goods and services, education, and accommodation. Employers are required to take steps to prevent discrimination and should ensure that anti-harassment procedures are in place under Dignity at Work policies. The Workplace Relations Commission (WRC) is responsible for enforcing these laws and investigating complaints of discrimination and has the power to award compensation to Employees who have been discriminated against.

Workplace Relations Commission (WRC) Complaints

The most recent Annual Report (2021) published by the Workplace Relations Commission (WRC) highlights the receipt of 85 Equal Status complaints on the grounds of Race, worryingly up 12% from 2020.  There were 181 referrals under the Employment Equality Acts 1998-2015 under the grounds of race, down 14% from 2020 when it received 210 referrals. This seems positive but still accounts for the second-highest category of grounds for complaints under that Act; which points to a greater need for establishing and promoting equal opportunities in the workplace.

Benchmarking Diversity and Inclusion in Organisations

Our most recent Adare HRM HR Barometer Report (Nov 2022) found that –

• seven in ten (72%) organisations have a formal Diversity and Inclusion (D&I) policy in place, and,
• 50% of Organisations delivered D&I training in 2022.

While it is a good start, it is important to note that a D&I policy alone, is not enough. Training and embedding inclusive practices promoting inclusion and diversity is also important as demonstrated by the recent WRC judgment against the Company we outlined earlier.

What can organisations in the non-profit sector do to combat racism at work?

Employers should take action to address racism in the workplace including not only the implementation of clear policies under Equal Opportunity but also by providing diversity and inclusion training, detailing unconscious bias for better understanding, and ensuring inclusive practices remain to the fore. Employers should also have robust Dignity at Work policies and procedures in place to ensure all concerns of harassment are addressed in an appropriate manner and in order to guide employees on how to report incidents of racism. Where any concerns arise employers must take swift and appropriate action against those who engage in any discriminatory behaviour.

Racism in the workplace is a serious issue that employers must address. Employers who create an inclusive workplace culture often reap the benefits of increased employee morale and productivity, leading to a more successful organisation. Employers who actively work to create a diverse and inclusive workplace will not only benefit their employees but should also see their organisations thrive. Staying compliant with legislative requirements is the first step and employers must ensure adequate protections are in place for employees through the deployment of appropriate skills in managing complaints and promoting inclusive practices.

Internal Dispute leads to a complaint under the Industrial Relations Act

Background:

The Complainant alleges that she is entitled to a Community Allowance payment. The Respondent concedes the point but is only willing to make a retrospective eighteen months payment.

Summary of Complainant’s Case:

In December 2017 the Complainant, following completion of four years Masters, achieved the title of Clinical Nurse Specialist.

In March 2019 she met up with her colleagues. During that meeting she discovered that she was not being paid an allowance. She then invoked the grievance procedure. Many e-mails went back and forth. At the time of the hearing the adjudicator was advised that her claim for the Community Allowance was conceded and was agreed to be paid from January 1, 2023. Arrears have been offered back to July 2021. Arrears should be paid from December 14, 2017.

Despite trying to get the Respondent to engage to resolve the matter, they were extremely slow to do so and failed to respond to many emails. 

Summary of Respondent’s Case:

The Respondent continuously engaged with the Complainant providing updates on the progress they had made in relation to queries she had regarding eligibility to qualification allowance, location allowance and community allowance. Through their investigation the Respondent sought feedback from the payroll department and the hospital.

Having investigated the matter it was confirmed to the Complainant that she should have been in receipt of the location and qualification allowances. Retrospective payments were processed in relation to these. In relation to the community allowance, it was communicated to the Complainant, that such allowance did not apply to an acute setting which is what the Respondent Hospital is.  This was confirmed by two of the Governing Bodies Corporate Employee Relations.

Up until January 23, 2023, it was the Respondent’s position that no employees of the Hospital are in receipt of the allowance. The Respondent argued that although some allowances apply to some CNS’s (which the Complainant is) the community allowance is not one of them.

However, on 23rd January 2023 the governing body confirmed that the Complainant is and was eligible for the allowance. An offer was made to make an eighteen months’ retrospective payment. This was rejected by the Complainant on January 26, 2023.

The confusion arose due to the dual nature of the Complainants role. She works partly in the community and partly in the hospital. The Respondent is unable to make unilateral decision on such matters and most seek the approval from their governing body prior to communicating any decision.

As can be seen from the documentation submitted the Respondent did engage with the Complainants grievance and did try to get clarity on the matter from their governing body.

Findings and Conclusions:

The Complainant seeks a recommendation in relation to two complaints. Firstly, she alleges that she was entitled to an allowance which was payable from December 2017 when she took up the post of Clinical Nurse Specialist. Secondly, she is seeking compensation for the delay caused by the Respondent’s lack of engagement with her Grievance. 

At the hearing the Respondent stated that they have been trying to get clarity on the issue from their governing body since March 2019. It wasn’t until the week of the hearing that they received that clarity. Their governing body confirmed that the Complainant is entitled to the allowance she seeks. However, they only gave authority to make the retrospective payment for the previous eighteen months. No explanation was forthcoming as to why such limitation was put on the payment. There is no logic to the offer made. Either the Complainant is entitled to the payment, or she is not. As it has been conceded that she is entitled to it, then it should be paid to her in full going back to the date she commenced the role, December 2017.

The Adjudicator recommends that the Respondent pay to the Complainant her allowance in full, from December 2017 to date and that the payment should be made on or before the 28th February 2023.

The Complainant is also seeking compensation for the delay caused by the Respondent’s alleged non engagement with her grievance. She formally invoked the grievance on 12 March 2019. There were numerous emails going back and forth from the parties in relation to the issue from that date and throughout the entire period leading up to today’s hearing. The Adjudicator accepts that the Respondent cannot make unilateral decisions on such matters and needs the approval from their governing body. The Adjudicator also accepts that the majority of this time period was in the pandemic and that the governing body was under the inordinate pressure at that time. That said, to leave an employee over three years with no answer to her grievance is not acceptable, particularly in circumstances where there were nurses in other hospitals carrying out the same role in the same circumstances, who were paid the allowance.

In assessing the appropriate amount of compensation that should be paid, the Adjudicator has considered the length of the delay, the complexity of the grievance against the Respondent’s need to get approval from their governing body and the inordinate pressure that body was under at that time due to the pandemic. 

Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that the Adjudicator makes a recommendation in relation to the dispute.

• The Respondent is pay to the Complainant her allowance dating back to December 2017. The payment is to be made on or before28 February 2023.
• The Respondent is to pay the sum of €2,500.00 compensation. The said sum is to be paid in full on or before 28 February 2023.

Our Commentary

Managing grievances is par for the course as an employer but how a concern is resolved will ultimately dictate whether or not a risk of third-party engagement will result. With all grievances an informal resolution will always be the preferred option but with many, a more formal application will be necessary. Maintaining natural justice and fair procedures is paramount to the resolution of any grievance and ensuring all parties are treated in a manner that is fair is essential. This also includes the manner in which an individual is treated throughout the process. Care must be taken to not intentionally or unintentionally impact on the rights of an individual in the maintenance of their contractual terms and conditions. Where a matter is being investigated it is essential that the parties’ terms and conditions are maintained and all rights and entitlements protected. The outcome here highlights that all organisations regardless of sector should ensure the principles of natural justice apply and take account of the length of time a grievance takes to manage, even where other parties, such as those who provide funding, impact on the process. Therefore, seeking appropriate advices is essential to maintaining the requirements and alignment to the relevant Code of Practice in particular in the application of a fair process.  

The Health and Safety Authority, in consultation with the National Disability Authority and with the assistance from charitable bodies, amended the 2009 employer’s guide to implementing inclusive health and safety practices for employees with disabilities in 2021 in order to assist employers with ensuring health and safety systems of work are inclusive to people with disabilities.  This guide is of particular importance in aligning your health and safety obligations to everyone in the workplace and is an important resource to understand other legal obligations in the context of the employment relationship, all of which will promote inclusivity and diversity in the workplace.

Legal Requirements

The Employment Equality Acts 1998 – 2015 prohibits discrimination under 9 grounds. It also outlines an employer’s obligation in making reasonable accommodations for people with disabilities by taking appropriate measures to meet the needs of disabled people in the workplace.

Appropriate measures mean effective and practical changes that an employer puts in place to enable employees with a disability to carry out their work on an equal footing with others. These include:

• adapting the premises or the equipment, for example, installing wheelchair ramps, providing special computers for the visually impaired, installing loop systems, and so on.
• offering flexible working times.
• providing training or other supports that might help.
• adjusting an employee’s attendance hours or allowing them to work from home; or
• assigning an employee certain tasks, and substituting others for equivalent duties, in consultation with the employee.

The legislation also provides that all individuals should have equal access to job opportunities. Access covers all arrangements for filling a vacancy including placing the advertisement, shortlisting applicants and conducting interviews. It is therefore essential that employers do not discriminate and promote inclusivity at all stages of the recruitment process. The Act also requires that Employees should be provided with equality of opportunity to acquire the range of training, skills and experience necessary for their career development.

When it comes to promoting inclusive practices in the workplace best practice is to ensure that inclusivity is a prominent feature at each and every stage of attracting talent to your organisation.

When it comes to the Advertisement

• Make it clear that your organisation is an equal opportunities employer by indicating that people with disabilities are welcome to apply for positions.
• Ensure that the first contact with every candidate is positive and that adverts are free from gendered or other biased wording.
• Promote inclusivity by having available accessibility to candidates with disabilities. Ensure that the means by which you communicate with candidates are accessible to candidates with disabilities and where relevant that your message is accessible by alternative means.

Application Forms

• Application forms should only seek information that is relevant to the ability of the person to do the job.
• The structure and content of the application form should be clear and coherent.
• Information, application forms and job descriptions should, where possible, be made available in a range of formats on request e.g., Braille, audio, enlarged print, by telephone and email.

Interview

• Encourage candidates to state any specific adjustments or accommodations they may require in order to participate in the interview e.g., provision of sign language interpreter or readers.
• Where tests and assessments are being used as part of the selection process accommodations such as additional time; use of a separate room; use of a computer should be made available where appropriate.
• Brief interview boards on the disability/ equality awareness policy and the Employment Equality Act, 1998- 2015.
• Enable each candidate to demonstrate how their skills and experience can add value to your organisation.
• Each candidate should be interviewed in a manner which focuses only on their ability to do the job.

Pre-employment Health Assessment

• Provide the occupational health physician with full details of the requirements of the job and the working environment.
• Only those aspects that relate to the capability of the person to perform the tasks involved in the job should be assessed.
• Where the occupational health physician conducting the medical is doubtful as to the person’s ability to carry out certain aspects of the job in light of their medical condition, these concerns should be discussed with the candidate themselves .
• All options in relation to reasonable accommodation should be investigated by the employer and discussed with the candidate.

Induction and Promotion

• Discuss accommodation needs and facilities with the employee, where possible prior to commencement, to ensure the workplace is safe and accessible and the supports required (if any) are already in place and suitable to the needs of the person with the disability.
• A record of adjustments made for employees with disabilities should be retained to inform future actions and allow for evaluation and review.
• Heads of services and line managers should be made aware of the importance of integrating a person with a disability and of being aware of their needs on an on-going basis.
• The co-operation and support of co-workers is essential to the successful induction and integration of any new member of staff. Existing staff should be briefed on disability/equality awareness.
• Performance issues should be discussed with the employees during their probation (in line with the Transparent and Predictable Working Conditions requirements) and appropriate support and assistance provided to address shortcomings.

Training, Career Development and Promotion

• Employees with disabilities should be provided with equal access to training opportunities.
• Measures should be taken to ensure that employees with disabilities are able to fully access training opportunities including ensuring venues for training are accessible and that training materials are in an accessible format.
• In assigning duties to employees with disabilities, care should be taken to ensure, to the greatest extent possible, that they are given the same opportunities as other staff to acquire the range of skills and experience necessary for future career development.
• Employees with disabilities should have equal access to promotional opportunities.
• Performance issues should be discussed with the employees and appropriate assistance provided to address shortcomings.

If your Organisation requires support, advice or guidance on developing and implementing policies and procedures or developing HR Strategy contact our expert-led team at Adare Human Resource Management.

Dublin Office: (01) 561 3594 | Cork Office: (021) 486 1420 | Shannon Office: (061) 363 805
info@adarehrm.ie | www.adarehrm.ie