The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-051
PARTIES
Richard O’Reilly, Peadar Ward & Mary Jackson
(Represented by the AHCPS)
AND
Public Appointments Service
(Represented by Anthony Kerr BL, instructed by Chief State Solicitor’s Office)
File reference: EE/2006/181, EE/2006/210 & EE/2006/303
Date of issue: 19 June 2009
HEADNOTE
Employment Equality Acts, 1998-2008 Age – Promotion. Preliminary Issues – section 77.7 application and time limits
1. DISPUTE
1.1 This dispute concerns a claim by Mr Richard O’Reilly, Mr Peadar Ward and Ms Mary Jackson that they were discriminated against by the Public Appointments Service in a competition for appointment to Principal Officer in the Civil Service on the grounds of age contrary to section 6 (2) (f) and gender in the case of Ms Jackson contrary to section 6 (2) (a) of the Employment Equality Acts 1998-2008 in relation to promotion/re-grading in terms of sections 8 of the Acts.
1.2 The complainants initially referred their claims to the Director of the Equality Tribunal on 1 June 2006 in the cases of Mr O’Reilly and Mr Ward and 22 June 2006 in the case of Ms Jackson. Following a referral of claims to the Public Appointments Service the claims were re-submitted on 12 September 2006 in the cases of Mr O’Reilly and Mr Ward and 13 September 2006 in the case of Ms Jackson. On 26 September 2008 in respect of the claims of Mr O’Reilly and Ms Jackson and 4 November 2008 in respect of the claim of Mr Ward, in accordance with her powers under section 75 of the Acts, the Director delegated the cases 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, on which date my investigation commenced. Submissions were received from both sides. In the course of their submission the respondent raised three preliminary issues. Due to the importance of these issues further submissions were requested from parties and in accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a preliminary hearing on 20 May 2009, further information was received on 28 May 2009.
2. PRELIMINARY ISSUES
The respondent raised three preliminary issues which are as follows:
· The claim of discriminatory treatment on the grounds of gender made by Ms Jackson was not made in accordance with the provisions of section 77 (7),
· The claims of discriminatory treatment on the grounds of age made by all three complainants were not made in accordance with the provisions of section 77 (7),
· None of the claims were lodged in accordance with the time limits provided for in section 77 (5) of the Acts.
Referral of Claims under Section 77 (7)
Section 77 (7) of the Acts states: “Where the complainant’s claim for redress is in respect of discrimination by … the Civil Service Commissioners in the course of such a recruitment or selection process as is referred to in section 76(5)(a),….. the complainant shall in the first instance refer the claim for redress to the Commissioners concerned…”; and subsection (8) confirms that a claim cannot be made to the Equality Tribunal until either the Commissioners have failed to give a decision or the complainant is not satisfied with the decision. Under the Public Services Management (Recruitment and Appointments) Act, 2004 section 77.7 of the Employment Equality Acts was amended to replace the Civil Service Commissioners by the “holder of a recruitment licence under the Public Services Management (Recruitment and Appointments) Act, 2004”. Circular25/2005 which announced the competition clearly states that it was to be run by the Public Appointments Service.
Initially claims were referred to the Tribunal on 1 June 2006 in the cases of Mr O’Reilly and Mr Ward and 22 June 2006 in the case of Ms Jackson. The Tribunal wrote to the complainants’ representative on 29 June 2006 querying the position on section 77 (7) and asking if the claims had been referred in the first instance to the Commissioners. The AHCPS on behalf of the claimants made a claim for redress to the Public Appointments Service on 24 July 2006. However, it made no reference to Ms Jackson’s claim for discrimination on the grounds of gender. At the hearing Ms Jackson withdrew her claim of gender discrimination.
The respondent submitted that the AHCPS letter of 24 July 2006 did not comply with the requirements of section 77(7) as the Public Appointments Service in their reply to the AHCPS on 17 August 2006 stated that “no detailed case” was put forward. However, section 77.7 makes no provision for the need to put forward a detailed case but merely to make a claim for redress. This the AHCPS did in their letter of 24 July 2006. Furthermore, in their reply the Public Appointments Service stated “……I will address the allegation of age bias below” . I therefore conclude that the three claims on the grounds of age were satisfactorily referred to the Public Appointments on 24 July 2006 and I therefore find that the complainants have satisfied section 77 (7) only in terms of having referred a claim in the first instance to the Public Appointments Service.
Time limits under section 77 (5)
I must now consider the issue raised by the respondent that the claims are out of time in accordance with section 77 (5) (a) of the Employment Equality Acts, 1998 – 2007 which states: “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence” and subsection (b) allows applications to be made to extend the time period to 12 months if there is “reasonable cause”.
Regarding claims under section 77 (7) Section 77 (8) of the Acts states: “the end of the period of time which is applicable under subsection (5) …shall be construed as-
(i) the end of that period, or
(ii) the end of the period of 28 days from the expiration of the period referred to in paragraph (a) or the date of the decision referred to in paragraph (b),
whichever last occurs.
I must first decide the start of that period by deciding on “the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence.” The three complainants were interviewed in October 2005 and Mr O’Reilly and Mr Ward were advised they were unsuccessful on 10 November 2005. Ms Jackson attended a second interview on 17 November 2006 and was advised she was unsuccessful on 8 December 2005. They all received individual feedback from the PAS within one month of being advised they were unsuccessful. The AHCPS received feedback on the overall competition in March 2006 and the three complainants submit that they were only in a position to make their claim after this information was reviewed and age bias was seen in the interview results. The complainants therefore contend that this date (March 2006) is the date of the most recent occurrence of the discrimination. The respondent submitted that the date of discrimination is the date of interview and no discrimination could have taken place after this date. Any subsequent statistical information merely supports, or otherwise, the complainants’ claim of discrimination.
In Equality Tribunal Decision DIR-E2002-004 the Equality Officer held “I am satisfied that, in relation to access to employment (including promotion within employment) the date on which discrimination takes place is the date on which the employer decides to treat one candidate less favourably than another on a discriminatory ground. This is generally the date on which an interview board makes its decision”. In the competition entered by the complainants interviews were held by a number of different boards and marks agreed for each candidate by the interviewing board. The marks were then collated centrally and then decisions were made as to which candidates were successful and which were not. I therefore find the date of discrimination to be the date of the letter confirming the complainants were not successful; 10 November 2005 for Messrs O’Reilly and Ward and 8 December 200t5 for Ms Jackson. The end of the period provided for in section 77 (5) is six months from these dates: 9 May 2006 and 7 June 2006. It was 24 July 2006 before the claims were made to the Public Appointments Service under section 77 (7) which is clearly outside the time limits.
In his initial application Mr Ward made the case that he had “reasonable cause” to be outside the six month time limit because the statistical information on the competition was not available until March 2006 and at the hearing the AHCPS made an application for all three complainants that the time limit should be extended because the statistical information was not available until March 2006. However, the date of discrimination is the date of the letter confirming the complainants were not successful and no discrimination could have taken place after this date and any subsequent statistical information merely supports, or otherwise, the complainants’ claim of discrimination. I therefore cannot accept that waiting for this information was reasonable cause to delay submitting the claims.
The AHCPS also made an application for all three complainants that the time limit should be extended because there was confusion as to which body the claim under section 77 (7) should be made and this delayed the submission of their claims to the Public Appointments Service. The Employment Equality Acts refer to the Civil Service Commissioners, an organisation which did not exist in 2006, but which was replaced under the Public Services Management (Recruitment and Appointments) Act, 2004 by the Public Appointments Service and as stated earlier the Circular announcing the competition clearly stated that the Public Appointments Service was running the competition. Furthermore the respondent relied on Justice Laffoy in Minister for Finance v CPSU, PSEU and IMPACT on behalf of ten claimants: High Court 2004 No. 336 Sp (Laffoy J.) May 11, 2006 ([2007] E.L.R. 36) who decided “It is established jurisprudence in this jurisdiction that lack of knowledge or awareness on the part of a claimant, or the absence of a legal precedent which indicates that as a matter of law a claim will have a claim will have a successful outcome, does not prevent a statutory limitation period from starting to run.” I accept this argument and find that the complainants should have been aware of the existence of the Public Appointments Service as being the correct body to which they should have made a claim and cannot accept that this change of body would be a “reasonable cause” for a delay in submitting a claim.
Furthermore, the Equality Tribunal wrote to the AHCPS on 29 June 2006 asking if a claim had been made under section 77 (7) and it was clearly only then that the complainants considered making such a claim. The 29 June 2006 is also outside the six month time frame for the three complainants of 9 May 2006 or 7 June 2006 and I cannot consider that any subsequent delay in making the claim to the Public Appointments Service, for whatever reason, amounts to “reasonable cause”.
3. DECISION
I have investigated the above issues and make the following decisions in accordance with section 79 of the Acts:
· that the claim of discriminatory treatment on the grounds of gender made by Ms Jackson was withdrawn,
· that the claims of discriminatory treatment on the grounds of age made by all three complainants were correctly referred in accordance with the provisions of section 77 (7),
· that all three claims were not lodged in accordance with the time limits provided for in section 77 (5) (a) of the Acts and I find no reasonable cause to extend the time limits in accordance with section 77 (5) (b) and I therefore have no jurisdiction to investigate the claims.
____________________
Hugh Lonsdale
Equality Officer
19 June 2009