Case Background

The 64 year old cleaner had been employed from December 2018 to June 2019 by an unnamed residential care facility. She worked Mondays, Wednesdays and Fridays.

The Claim

The claim was taken under the Equality Act for being dismissed due to age and illness.

Employer’s Mistakes

  • The employee was never given a contract of employment or handbook.
  • The employee was not given any form of training or even an induction.
  • The employer first stated in their response submission that the employee had resigned, they then stated she had been terminated due to misconduct and then stated it was because of her age and illness.
  • The employer during the hearing stated that the residential care facility had asked for the cleaner to be replaced for breaching rules about specific conduct requirements in the facility.
  • The employer did not undertake any form of investigation to confirm that the employee’s age or illness impacted on her ability to do her work.
  • The employer claimed to have offered the employee similar work at a school but had no evidence to prove this.

What could the employer do differently?

  • By providing a contract and handbook the employer would firstly have shown that they were complying with current Irish legislation and not ignoring their obligations. The contract/handbook would have set out an internal grievance procedure that the employee would have had to exhaust before taking a claim and this would have given the employer time to resolve the issues. If the employee didn’t exhaust the grievance policy it would look reflect poorly on their decision to skip that step and go straight to a claim.
  • By providing training the employer is again showing that they are seeking to comply with Irish legislation, discharging their duty of care to the employee and would have a record showing that the employee had been shown what they could and could not do in the care facility. If the employee then flagrantly breached these policies she would not have had a strong case.
  • By bouncing from one reason for termination to the next the employer showed the WRC that they had no real reason to terminate the employee and this was fundamental to her case.
  • Had the employer gone to the employee and stated that the client, the care facility, did not want her back and sent her to another site that would most certainly have mitigated the decision.
  • Had the employer sent the employee for a medical exam and consulted with her on its findings again this would have mitigated the decision.
  • As much as possible even if it is an email of text message keep copies of communications where important matters are discussed.

Ultimately, the employer did not have any written documentation and was at best inconsistent in its communications with the employee.

If your business would like to ensure that your documentation is compliant please don’t hesitate to contact ESA on [email protected] or 01 8774608.

Stay safe.