EMPLOYMENT EQUALITY ACTS 1998 - 2007
EQUALITY OFFICER’S DECISION DEC-E2008-027
PARTIES
Ms Ann Slattery
(Represented by IMPACT)
AND
HSE North West
1. DISPUTE
1.1 This dispute concerns a claim by Ms Ann Slattery that she was discriminated against in relation to her conditions of service arising from a collective agreement by the HSE North West on the grounds of gender in terms of section 6 (2) (a) of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts when she was not awarded incremental credit for previous private sector work experience, on her appointment in May 2001.
1.2 The complainant referred her claim of discriminatory treatment to the Director of the Equality Tribunal on 22 February 2006 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought and received from the parties, a hearing was held on 2 October 2007, further submissions were received on 8 May 2008.
2. PRELIMINARY ISSUE – DATE OF DISCRIMINATION
2.1 At the hearing the respondent raised a preliminary issue for the first time that the claim was out of time in accordance with section 77(5) (a) of the Employment Equality Acts, 1998 – 2007. The respondent submits that the complainant was appointed on 7 May 2001 but did not make the claim until February 2006. I sought further information from both sides to clarify the issue raised.
2.2 A full hearing of the complainant took place on 2 October 2007 but before I can look at the substantive issues I have to examine this preliminary issue. Section 77 (5) (a) of the Employment Equality Acts 1998 - 2007 states that the six-month time limit starts from the “date of occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence”. In this case the alleged discrimination took place on the complainant’s appointment in May 2001. However, case law has confirmed that the time limit can start from the date that a decision regarding an alleged act of discriminatory treatment is made by a respondent.
2.3 In July 2001 the complainant requested that her previous private sector experience be recognised for incremental purposes in accordance with an agreement between the HSEA and IMPACT that “with effect from 16 March 2000 full incremental credit may be granted on permanent appointment in respect of all previous relevant experience”. In a letter dated 16 July 2001 the respondent replied that a Labour Court recommendation (CD/04/609: rec no 18046) had confirmed that the Mid Western Health Board had “correctly applied the rules concerning the granting of incremental credit for previous service” when they did not recognise previous private sector experience for incremental purposes but only previous public sector experience. The respondent stated that they were bound by this Labour court Recommendation.
2.4 Subsequently, in October 2001 the complainant’s two line managers put her case to the respondent to have her previous private sector experience recognised. In a letter dated 26 November 2001 the respondent re-affirmed that previous relevant experience only included public sector experience.
2.5 Both parties provided chronologies of events which showed that the complainant took no further action in her complaint until 8 April 2005 when she submitted a grievance to the respondent and the case went to the Regional Appeals Office. In a letter dated 7 November 2005 the Regional Appeals Officer confirmed her role was to “clarify whether the decisions being made are correct within the established legislation and agreements” and stated that “in relation to your file I have reviewed the documentation and have rechecked with relevant parties that the agreement entered into in 2000 is still the existing positon” and concluded “I regret that I have no basis for stating that decision taken in relation to you is anything other than correct in accordance with current agreements.”
2.6 The approach generally taken in this situation is set out in Cast v Croydon College¹which states that: “a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.”My conclusion is that the letter of 26 November 2001 and the Regional Appeals Officer letter of 7 November 2005 were a reiteration of the original decision and do not constitute a new decision; no new information was available to, or taken into account by, the respondent.
2.7 I therefore conclude that the time line in this case started from 16 July 2001 when the first decision was made and as the complainant submitted her claim of discrimination on 22 February 2006 the claim is out of time.
3. DECISION
On the basis of the foregoing I find that the complaint is outside of the scope of the Employment Equality Acts, 1998 - 2007 and I have no jurisdiction to investigate the claim.
_________________
Hugh Lonsdale
Equality Officer
29 May 2008
¹Cast v Croydon College, Court of Appeal [1998] IRLR 318