McMahon
(Represented by Bairbre O'Neill BL, on the instructions of Harte & Associates, Solicitors)
AND
Enterprise Ireland & University College Dublin
(UCD represented by IBEC)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Irene McMahon that she was discriminated against by her employer in relation to her salary on the ground of age, contrary to the provisions of the Employment Equality Act 1998. The purpose of this decision is to deal with the preliminary issue of the correct respondent in this claim.
1.2 The complainant referred a claim against BioResearch Ireland to the Director of Equality Investigations on 22 July 2003 under the Employment Equality Act 1998. Following notification to the named respondent at the address given, a reply was received from Enterprise Ireland indicating that the complainant was not an employee of Enterprise Ireland, the statutory body of which BioResearch Ireland (BRI) is a constituent part. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 20 May 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary hearing was held 17 June 2004, at which Enterprise Ireland continued to argue it was not the complainant's employer. It said that her employer was University College Dublin (UCD), and it was agreed that this matter would be decided first.
1.3 Submissions were received from both parties regarding the issue, and a hearing was arranged for 22 April 2005. This hearing did not proceed, because Enterprise Ireland submitted a letter from UCD confirming that it was the complainant's employer. The hearing was adjourned to permit the complainant to seek legal advice, and UCD was notified by letter that it had been joined as a respondent. Further submissions were received from the parties, and a final hearing was held on 1 June 2006. Subsequent correspondence concluded on 7 June 2006.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant says she was engaged as an Executive Assistant/Secretary by Dr W, General Manager of BRI, by way of a letter dated 24 August 1999. She says that Dr W is an employee of Enterprise Ireland, and not of UCD, although BRI was based in the National Agricultural and Veterinary Biotechnology Centre (NAVBC) at UCD. She says the letter from Dr W represented himself/BRI as her employer, and no reference was made to UCD.
2.2 The complainant says that, following a review of her performance in August 2000, Dr W sent her an internal memorandum indicating his appreciation of her "ability to deal effectively with a large organisation like UCD", which she says indicates UCD was a third party. She says this memorandum also confirmed Dr W was awarding her a salary increase and dealt with personal development and training targets.
2.3 On20 August 2001, the complainant wrote to Dr W regarding a further salary review. In response, Dr W said "…the level of Administrator salary, and the regularity of salary reviews, are set at Centre level by myself, and notEnterprise Ireland…it is the total amount and activity justification that is approved by BioResearch Ireland, and not individual salaries." Dr W went on to propose a meeting to carry out the review. The complainant says this is further indication that Dr W determined her salary and not UCD.
2.4 The complainant subsequently raised the question of her salary with a senior employee of BRI by email on 29 August, enquiring as to who dictated the level of salary of BRI employees based in universities. She received an email on 31 August from the UCD Personnel Department which said "The funding for your temporary post comes entirely from BioResearch Ireland. Therefore the issue of your salary should be raised appropriately with Dr W as your post does not have a pay relationship with UCD scales."
2.5 The complainant notes that UCD contends that she brought an unfair dismissal claim against the University. However, she claims that the dismissal claim was lodged against BioResearch Ireland, with an address at UCD. In the written statement attached to her dismissal claim, the complainant said "I have worked for Enterprise Ireland/BRI at UCD for four years." She says that the Rights Commissioner determination in her claim named her employer as "BioResearch Ireland, UCD".
2.6 The complainant says that section 77 (4) of the Act defines a respondent as
…the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause…She says that Dr W and UCD both represented Dr W as being the person responsible in relation to her salary. The complainant says that section 15 of the Act provides that an employer is vicariously liable for the discriminating acts of its employees. As Dr W was an employee of BRI, BRI is therefore liable for his actions.
2.7 The complainant submits that it is clear from caselaw that the manner in which the parties purport to describe the contractual relationship is not determinative. She says that in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare ([1998] 1 IR) Murphy J noted "Whether Ms McMahon was retained under a contract of service depends essentially on the totality of the contractual relationship between her and the appellant and not upon any statement as to the consequence of the bargain." She notes that in Phelan v Coillte Teoranta ([1993] 1 IR 18) Barr J said "…there is no justification in law for holding an employer vicariously liable for the negligence of a person over who he has no control." The complainant submits that this dicta is also relevant to the issue of vicarious liability. She says that the discriminating acts were those of Dr W and/or were under the control of Dr W, who is accepted by BRI as its employee.
3. SUMMARY OF THE FIRST-NAMED RESPONDENT’S CASE
3.1 The first-named respondent says Enterprise Ireland is a non-commercial semi-state organisation with the remit of developing enterprise in Ireland. It says that BRI, a division of Enterprise Ireland, was based in Glasnevin but participated in a number of campus-based projects at various Irish universities. The NAVBC was established in UCD as a project to which both BRI and UCD contributed. UCD provided the premises and some staff, while BRI provided the remainder of the staff and reimbursed UCD for certain costs incurred in connection with the centre.
3.2 The first-named respondent says the complainant was never an employee of Enterprise Ireland. It says she never entered into a contract of employment with Enterprise Ireland. She reported to the general manager of the NAVBC, Dr W. Although Dr W was employed by Enterprise Ireland, he reported to the centre director who was a UCD professor. Enterprise Ireland says that the complainant seems to argue that because one of the persons to whom she reported was an employee of BRI, she was therefore an employee of BRI. It submits that this proposition has no basis in law.
3.3 Enterprise Ireland submits that the complainant is incorrect in her argument that UCD was not responsible for her remuneration. Enterprise Ireland says that, on the contrary, UCD was solely responsible for the complainant's remuneration, and points out that all of her P60s so indicate. Enterprise Ireland submits that it never made any payments to the complainant.
3.4 Enterprise Ireland says that the caselaw cited by the complainant is irrelevant to the preliminary issue to be determined. It says the cases cited dealt with the issue of whether a person was an employee or an independent contractor. It submits that no one is claiming the complainant was an independent contractor, and that the matter to be determined is the identity of the employer, in accordance with the definitions of employer and employee set out in section 2 of the Act.
3.5 Enterprise Ireland says that the email to the complainant from UCD's Personnel Department (referred to at 2.4 above) does not say that she was an employee of BRI, but that the funding for her post came from BRI. Enterprise Ireland says this is factually correct, and that it is not unusual for some posts in third level institutions to be funded by external third parties. The first-named respondent submits that there is no principle of law which states that such providers of funds to colleges are to be considered the employer of the person occupying the post.
4. SUMMARY OF THE SECOND-NAMED RESPONDENT’S CASE
4.1 UCD submits that it was the complainant's employer from 20 September 1999 to 16 October 2003. It says she had signed a contract of employment which clearly stated UCD was her employer, and said that Enterprise Ireland was not a party to that contract. UCD says that at all times during her employment the complainant followed UCD's policies and procedures and interacted with its personnel department in the same manner as all other employees. The university points out that all of the complainant's payslips, P60s and related documentation clearly identify her employer as UCD.
4.2 UCD says the complainant was made redundant by the University, and that she accepted and retained the statutory redundancy payment it made to her. UCD says that the complainant pursued an unfair dismissals claim against it, and accepted a Rights Commissioner recommendation in her favour against the University. UCD says that it appeared on its own as the complainant's employer at the hearings of the unfair dismissals claim, and the University asserts that the complainant did not object to its appearance or seek to have Enterprise Ireland deemed her employer.
4.3 UCD says that it notes the university was only joined as a respondent in this matter following the hearing of 22 April 2005. The university says the complainant's employment ended on 16 October 2003, and it contends that the complaint under the Acts is out of time in accordance with section 77 (5) (a) of the 1998 Act as amended by the 2004 Act.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties
5.2 As stated, the only matter being addressed in this decision is the preliminary matter of who the complainant's employer was at the relevant time. However, I wish to point out at this stage that UCD is incorrect in its contention that the complaint against it is out of time. Section 77 (5) as amended states
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation…
(b) [extensions of time limit]
(c) This subsection does not apply in relation to a claim not to be receiving equal remuneration in accordance with an equal remuneration term.
As the complainant's case refers exclusively to a claim for equal remuneration, the time limit of six months does not apply.
5.3 Enterprise Ireland is correct to say that the caselaw cited by the complainant relates to whether a person was an employee or an independent contractor, which is not at issue in this case. However, the caselaw is useful to the extent that it demonstrates that a written contract in itself is not determinative of an employment relationship. As Keane J pointed out in Denny "…it has not been shown that the appeals officer in any way misconstrued the written contract: he was, on the contrary, entirely correct in holding that he should not confine his consideration to what was contained in the written contract, but should have regard to all the circumstances of Ms McMahon's employment." Accordingly, I am satisfied that the employment contracts alone do not constitute proof that UCD was the complainant's employer.
5.4 The letter from UCD, submitted at the adjourned hearing on 22 April 2005, confirmed that it was the complainant's employer but added "Her terms and conditions were as advised by BioResearch Ireland to the University." At the hearing, Enterprise Ireland denied this, repeating that the complainant's contract was issued by UCD. The situation is that both respondents agree that the complainant's employer was UCD. However, the University declined to discuss a salary increase with the complainant, saying the funding for her post came entirely from BRI and she should raise the matter with Dr W. I am satisfied that all of the evidence demonstrates that Dr W was responsible for the complainant's rate of remuneration.
5.5 I note that Enterprise Ireland argues that there is no basis in law for the proposition that because the complainant reported to an employee of Enterprise Ireland, she was therefore an employee of Enterprise Ireland. However, section 15 of the Act states
(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
As I have found that the complainant's rate of remuneration was set by Dr W, and that this was done in the course of his employment with Enterprise Ireland, I find that Enterprise Ireland is the correct respondent for the purposes of the complainant's claim for equal pay.
6. DECISION
6.1 Based on the foregoing, I find that the appropriate respondent in the complainant's claim under the Employment Equality Acts 1998 - 2004 is Enterprise Ireland.
_____________________
Anne-Marie Lynch
Equality Officer
19 September 2006