DEC-E2005-033 Full Case Report

Mr. John Elliot (Represented by IMPACT) vs Letterkenny Institute of Technology (Represented by Arthur Cox Solicitors)

1. DISPUTE
   1. The dispute concerns a claim by IMPACT, on behalf of Mr. John Elliot, that he was subjected to discriminatory treatment and harassment on the grounds of religion in terms of Sections 6(1), 6(2)(e) and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act with regard to his conditions of employment. It is also claimed that he was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act.
      
2. BACKGROUND
   1. The complainant alleges that he has been subjected to continuous discrimination and harassment by the respondent organisation since 1995 on the grounds of religion. The complainant is Presbyterian. He alleges that this discriminatory treatment and harassment has resulted in adverse conditions of employment and a failure to get promoted. The respondent has denied all the allegations.
   2. Consequently the complainant referred a complaint to the Director of Equality Investigations on 13 th June, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 10 th February, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing took place on 28 th September, 2004. Further substantial submissions were received from the respondent. These were passed to the complainant’s representative for a response and on receipt this was passed to the respondent’s representative for comment. This process continued for some time and by 4 th May, 2005 I had received an indication from both parties that they had no further comments to make in relation to this claim.
      
3. SUMMARY OF THE CLAIMANT’S SUBMISSION
   1. According to the complainant he commenced employment with the respondent organisation in 1981. He contends that he was subjected to harassment and less favourable treatment by his employer on the grounds of religion the details of which are set out in Appendix A. It is his contention that this evidence supports his claim of prime faciediscrimination.
   2. The complainant states that discrimination normally involves a difference in treatment and he refers to the European Court of Justice case of Gillespie and Others v Northern Health and Social Services Board and Others² in which it is stated that “it is well settled that discrimination involves the application of different rules to comparable situations for the application of the same rules to different situations”. According to the complainant the Employment Equality Act, 1998 mandates that persons cannot be treated less favourably on the grounds of religion. He is a Presbyterian and it is his contention that he has been the subject of sustained less favourable treatment than his colleagues who are of different religious persuasion. The complainant asks the Equality Officer to have regard to the case law set out in detail in Appendix B.
   3. It is the complainant’s contention that he has been subjected to sustained discrimination since the mid 1990s in his employment with the respondent and he asks the Equality Officer, in deciding on a remedy, to recommend his assignment to a position of equivalent status to that which he would have enjoyed had discrimination not occurred. The complainant further seeks compensation for the sustained distress caused to him and his family because of the discriminatory treatment.
      
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. The respondent rejects the allegation of discrimination on the grounds of the complainant’s religious belief. Having said this the respondent contends that most of the complainant’s allegations cannot be investigated under the Employment Equality Act, 1998 because they are supposed to have occurred before the Act became effective or are outside the time limits set down in the Act for referring a claim. The respondent notes that the Employment Equality Act, 1998 became effective on 18 th October, 1999 and says that it is only since that date that discrimination on the grounds of religious belief has been covered by equality legislation. The respondent cites the Equality Officer Decision in the case of A Complainant v National Training and Development Institute³ in support of this argument.
   2. The respondent states that the complainant has made a number of allegations which post-date the enactment of the Employment Equality Act, 1998 on 18 th October, 1999. However it is the respondent’s contention that these allegations have been referred outside the time limit set down in the 1998 Act for referring a claim. According to the respondent the complainant referred his claim on 13 th June, 2003 and having regard to the provisions of Section 77(5) of the Act alleged incidents which occurred prior to 13 th December, 2002 cannot be investigated. The respondent contends that the Equality Officer has no jurisdiction to investigate any of the allegations referred to above.
   3. In relation to the complainant’s allegation about overtime payments the respondent states that staff were informed by memo from the Director dated 1 st December, 1993 that overtime must have the prior approval of the Scretary/ Financial Controller. In 1996 the complainant submitted a claim for substantial overtime which had not received the necessary prior approval and by letter to the complainant dated 9 th August, 1996 the Secretary/Financial Controller stated:
      
      “ I have approved your request on this occasion. I would draw your attention once again to the necessity to obtain prior approval to the working of overtime, regardless of previous practice, where this is going to generate a claim for either payment or time off. As you are aware this has been outlined to staff previously both verbally and in writing”.
      
      The respondent notes that in 2000 the complainant submitted a claim for substantial overtime for which no prior approval had been given and on 10 th August, 2000 the Secretary/Financial Controller wrote to the complainant stating:
      
      “I am prepared to authorise payment of the overtime claimed in this particular instance. In future claims for overtime for which prior approval has not been given will notbe paid.”
      
      Then on 23rd September, 2002 the complainant submitted a claim for overtime amounting to 142 hours. Prior approval had not been received from either the Secretary/Financial Controller or Director for overtime on this scale. Some overtime was considered necessary but this amount of overtime was deemed excessive. The respondent entered into correspondence with the Union who had made representations on the complainant’s behalf and the claim was adjusted downwards to 139 hours. The Union also made reference to the complainant’s two female colleagues who had claimed and were paid overtime for 22.75 hours and 27.6 hours at a total cost of €700. The respondent notes that it paid the complainant overtime to a total of €4,724.98. According to the respondent overtime is used sparingly in the respondent organisation and only when considered essential. Since 1996 a total of €18,203.25 has been paid in overtime to fifteen of the approximate thirty administrative staff in the respondent organisation and the amount received by the complainant represents 44.48% of the total overtime paid. The respondent further notes that the complainant’s successor in Examinations did not make any overtime claim.
   4. In relation to the move of the Design Department to the main campus the respondent decided to create a new position of Project Officer to facilitate a smooth relocation. The complainant was assigned to this position. It is the respondent’s submission that it is clear from the complainant’s job description that it was part of his duties to contact the Estates Office regarding any issues relating to the move including his own situation. The respondent notes that the complainant took annual leave the day after the principal move took place and this, in all probability, gave rise to the necessity to store his file, etc. temporarily. The respondent states that it does not see how the complainant’s failure to deal with an issue within his own sphere of responsibility can be construed as discrimination on religious grounds.
   5. In relation to the number of Presbyterians employed in the respondent organisation the respondent states that it does not request information from applicants as this information is not directly relevant to the position being sought. In this regard the respondent says that it does not request information on date of birth, marital status or religion. On this basis the respondent cannot provide information on the numbers in any particular religious denomination. The respondent expresses concern that the non-inclusion of the photograph of the Presbyterian Chaplain in the prospectus would be construed as discrimination and states that consideration will be given to the inclusion of such a photograph in future editions. According to the respondent Chaplains are included in any functions for example at the opening of the new multi-purpose centre the Roman Catholic, Church of Ireland and Presbyterian Chaplains together performed the spiritual part of the ceremony
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in this claim is whether or not the complainant was discriminated against and harassed on the grounds of religion in terms of Sections 6, 8 and 32 of the Employment Equality Act, 1998. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties. At the hearing of this claim the complainant withdrew his allegations of harassment against a female staff member and his allegation of victimisation in accordance with the provisions of Section 74(2) of the Employment Equality Act, 1998. As a result of the withdrawal of the allegations of harassment against a female staff member I have not included them in the summary of the complainant’s submission.
   2. In his submission the complainant made allegations of discrimination on the grounds of religion going back to 1995. The complainant is Presbyterian and it is his contention that he has been subjected to sustained less favourable treatment than his colleagues who are of different religious persuasion. At the hearing of this claim I informed the parties that the Employment Equality Act, 1998 came into effect on 18 th October, 1999. Prior to that date there was no legislation in place outlawing discrimination on the grounds of religion. Hence I am satisfied that I have no jurisdiction to investigate allegations of discrimination on the grounds of religion which occurred prior to the commencement of the Employment Equality Act, 1998.Time Limits
   3. The complainant referred his claims of discriminatory treatment and harassment to the Equality Tribunal on 13 th June, 2003. However a number of his allegations relate to the period between 18 th October, 1999 and 14 th December, 2002. It is the complainant’s contention that he was the subject of continuing discrimination and harassment on the grounds of religion and in accordance with the provision in the Employment Equality Act, 1998 relating to the time limits for referring a claim (Section 77(5) refers) he is entitled to bring a claim of continuing discrimination and harassment. The respondent disagreed and stated that each of the allegations of discriminatory treatment and harassment were independent issues which were not related. The respondent stated that there was no continuing nature to the allegations made by the complainant. It was the respondent’s further contention that the complainant can only refer allegations of discrimination or harassment which have occurred within a six month period prior to the date of referral of this claim i.e. from 14 th December, 2002 to 13 th June, 2003. The respondent states that, in accordance with Section 77(6) of the Employment Equality Act 1998, the onus is on the complainant to show that exceptional circumstances existed which prevented him from referring a claim within the six months time limit for the time limit to be extended to a period not exceeding twelve months. It is the respondent’s submission that the complainant did not show that exceptional circumstances did exist to prevent him referring his claim within the six months time limit.
   4. I note that in this case the complainant did not make an application to the Director seeking an extension of time in accordance with the requirement to do so under Section 77(6) of the 1998 Act. So the issue here which must be addressed is whether or not the allegations of discrimination and harassment were continuing. Whether or not there is continuous discrimination/ harassment in a case is an issue which is only pertinent to that case and what has been decided in other cases cannot be relied upon to determine the issue in this case. I note the respondent’s argument that all the issues raised by the complainant are independent of each other. However I am concerned that if a person was being subjected to continuous discrimination or harassment on the grounds of religion within the meaning of Section 6(2)(e) of the 1998 Act, the discrimination or harassment could arise as a result of different issues which bear no relationship with each other as in this case. It is, therefore, my intention to firstly examine the following issues which occurred in the 12 months up to the referral of this claim to the Equality Tribunal namely:
      1. Overtime Payment.
      2. Move of St. Conal’s Campus to Port Road.
      3. Alleged harassment by Mr. A in November, 2002.
      4. Grade 7 Internal Competition held on 10th September, 2002.
      5. Full-time Lecturer in Business Studies Competition held on 3rd July, 2002.
      If I find that the complainant establishes aprima facie claim of discrimination or harassment on one or more of the above issues the burden of proof shifts to the respondent and if the respondent fails to discharge that burden then I will proceed to examine all allegations post the coming into force of the Employment Equality Act, 1998 on 18 th October, 1999. Overtime Payments
   5. If a member of staff wished to avail of overtime there was a clear requirement that he/she would seek approval in writing for that overtime. This was set out in a memorandum issued by the Director dated 1 st December, 1993 which clearly states:
      
      “From todays date staff who find it necessary to work overtime must in all cases obtain prior approval of the Secretary/Financial Controller.
      
      Applications for approval should specify the number of hours required and over what period, the purpose for which the overtime is required, etc.”
      
      In this case the complainant made an overtime claim in excess of 100 hours over an eight month period from 15 th January, 2002 to 6 th September, 2002. According to the complainant it took the respondent two years to pay this claim. I note from the complainant that he had sought approval for this overtime from Mr. A by email dated 11 th December, 2001 followed by a memorandum dated 12 th December, 2001. In the email and memo the complainant states as follows:
      
      “I am writing to seek clarification with regards to the following.
      
      Given the nature of the Examination process and the workload involved it has been, and continues to be necessary for me as Examinations Officer, and on occasions other staff in the Examinations/Admissions Office, to work overtime.
      
      I would be grateful therefore if you would confirm, as soon as possible, that this practice meets with your approval as we are currently in the middle of the Christmas Examinations.”
      
      No reply was received to the e-mail or memorandum and the complainant interpreted the non reply as approval to proceed with overtime. It was only when he submitted his claim that questions were raised.
   6. Having examined all the evidence submitted to me in relation to this issue I note that the complainant failed to comply with the instructions of the Director in his memorandum dated 1st December, 1993 in which staff were clearly asked to make their applications to the Secretary/Financial Controller and to provide details. I note that, prior to this instruction, the complainant had sought approval for overtime from the Secretary/Financial Controller and had clearly set out his requirements. Furthermore in 2000 the Secretary/Financial Controller wrote to the complainant pointing out that overtime claims by him contained no prior approval attached. The Secretary/Financial Controller agreed to authorise the payment of this overtime but stressed that “future claims for overtime for which prior approval has not been given will not be paid”. In these circumstances I cannot find any unfavourable treatment of the complainant. I note that the complainant has sought to compare himself with two others who made overtime claims without prior approval and had these claims paid within weeks. I do not accept that this is a valid comparison as the overtime claims made by these members of staff were small and these staff members were working overtime at the complainant’s request and under his supervision. I, therefore, accept the respondent’s submission that the onus was on the complainant to obtain the approval for these staff members to undertake overtime. I am, further, satisfied that there is no evidence that the questioning the complainant’s overtime claim by the respondent was in any way related to his religion and I find that the complainant has failed to establish a prima facie claim of discrimination on grounds of religion in this regard. Move of St. Conal’s Campus to Port Road
   7. The complainant was assigned to the position of Project Officer to facilitate the smooth transition of the Design Department which was located on St. Conal’s campus to the main campus at Port Road. The new position of Project Officer was to be based in St. Conal’s campus. It was the function of the Project Officer (i.e. the complainant) to oversee the move from one location to the other, including his own move. The complainant took annual leave on the day following the principal move taking place. According to the respondent this is presumably why his files, etc. were packed up and placed in storage in a situation where the complainant had failed to organise his own accommodation at the main campus. There is no evidence that this issue had anything to do with the complainant’s religion and I find that the complainant has failed to establish a prima facie claim of discrimination on the grounds of religion in this regard.
   8. In this submission the complainant alleged that he had been subjected to harassment by Mr. A on the grounds of religion in November, 2002. It was only at the hearing of this claim, in response to my questions, that the complainant stated that the harassment arose as a result of his overtime claim. According to the complainant when he approached Mr. A about his overtime claim Mr. A was angry and agitated with him and was also hostile towards him. The complainant contends that Mr. A’s behaviour constituted harassment on the grounds of religion. The respondent has denied that the complainant was subjected to harassment by Mr. A. At the hearing of this claim Mr. A stated that his recollection of the meeting was somewhat different to the complainant’s and that he was not aggressive or hostile. Mr. A stated that it was not his style to be confrontational and that he did not and would not discriminate on the grounds of religion. I note that there were no witnesses to this meeting and there is no evidence that the complainant was subjected to harassment by Mr. A on the grounds of his religion, given that the issue which was being discussed was the overtime claim. In conclusion therefore I find that the complainant has failed to establish a prima facie claim of harassment on the grounds of religion in relation to the allegations made against Mr. A. Grade 7 Internal Competition held on 10th September, 2002
   9. The respondent provided me with detailed information about this competition. Four applications were received for the post and three of these applicants (including the complainant) were invited for interview. There were five members on the Selection Board including Mr. A and the Secretary/Financial Controller. The Selection Board had pre-determined criteria on which each applicant was marked. Some of the criteria were objective e.g. Qualifications and Experience whereas others e.g. Commitment was regarded by the complainant as subjective. I note that under each of the criteria the Selection Board was provided with detailed guidelines as to what was being sought under each criterion. Each applicant was marked under each criterion and there were supporting comments for two of the three applicants (the exception was the candidate who was ultimately appointed). While it is unusual not to provide supporting comments for all applicants (including the person being offered the position) there is no evidence that this manner of operation was in any way related to religion. In terms of the application form for this competition applicants were not asked to state their religion hence an applicant’s religion or religious persuasion was not known to the members of the Selection Board. In terms of relevant qualifications I note that the complainant was awarded the highest marks giving recognition to his higher qualifications. There is no evidence that the failure to appoint the complainant to this position was in any way related to his religion. I therefore find that, in relation to this competition, the complainant has failed to establish aprima facie claim of discrimination on the grounds of religion. Full-time Lecturer in Business Studies Competition held in July, 2002
   10. The respondent provided me with detailed information about this competition. A total of 46 applications were received of which 12 applicants (including the complainant) were invited for interview. The Selection Board comprised 5 members including the Head of Development and the Head of School of Business Studies in the respondent organisation. The Selection Board had pre-determined criteria on which each applicant was marked. I note that no applicant was asked to state his/her religion or his/her religious persuasion on the application form for the position. The complainant was unsuccessful in his application. He raised a number of issues in relation to the process e.g. the fact that one member of the Selection Board had not asked him any questions. This issue was addressed by the respondent but not to the satisfaction of the complainant. I do not consider that it is necessary for me to address this issue as there is no evidence that it is related to any discrimination on the grounds of religion. The complainant also raised the issue of having been promised 16 hours of lecturing by the Head of School of Business Studies, irrespective of the outcome of this competition, but this did not materialise thereafter. The respondent denied that such an offer had been made. Again this is not an issue for investigation by me as there is no evidence it was related to the complainant’s religion. There is no evidence that the complainant’s failure to succeed in this competition was in any way related to his religion. I find that the complainant has failed to establish a prima facie claim of discrimination on the grounds of religion in relation to this competition.
   11. As I have found that the complainant has failed to establish a prima facie claim of discrimination or harassment on the grounds of religion in relation to each of the issues listed at paragraph 5.6 above I will not be examining all the allegations made between the coming into force of the Employment Equality Act, 1998 on 18 th October, 1999 and 14 th June, 2002 (which is the date which is 12 months prior to the referral of the claim in this case). Other Issues
   12. I note that the complainant has alleged previous harassment on the grounds of religion by Mr. A prior to 14 th June, 2002. In his applications for the Grade 7 position and the Lecturing position I note that the complainant has named Mr. A as his first referee. If the complainant was being subjected to harassment on the grounds of religion by Mr. A it is unlikely that he would name the alleged harasser as his first referee in a promotion competition.
   13. In relation to the issues raised in relation to the Presbyterian Chaplain at the hearing of this claim namely
       1. the fact that his photograph did not appear in the Student Handbook and
       2. the failure to invite the Presbyterian Chaplain to an ‘ecumenical service’
       I find that these issues are outside the scope of this investigation and are matters for the Chaplain concerned and the respondent.
   14. The respondent adopts a practice in promotion or appointment competitions to rank applicants following the short listing process and to pass on that ranking to the members of the Selection Board. I would suggest that this practice is not to be recommended and could result in a claim of alleged discriminatory treatment on one of the grounds covered by the Employment Equality Act, 1998.
       
6. DECISION
   1. In view of the foregoing I find that Mr. John Elliot failed to establish a prima facie claim of discrimination or harassment by the Letterkenny Institute of Technology in terms of Sections 6 and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.

Gerardine Coyle,
Equality Officer,
13th July, 2005

²ECJ – C342/1993
³Equality Officer Decision – DEC-E2002-037