EQUALITY TRIBUNAL Decision No:  DEC-E/2009/017

Parties

Breen

(Represented by John Curran BL – Instructed by the

Equality Authority)

And

DublinAirport Authority

(Represented by BCM Hanby Wallace - Solicitors

File No: EE/2002/128

Date of issue 19 March, 2009

TABLE OF CONTENTS

           SECTION                                                                              PAGE

            Dispute                                                                                     2

            Background                                                                             2

            Summary of Complainant’s Case                                          3

            Summary of Respondent’s Case                                            8

            Conclusions of the Equality Officer                                    11

           Decision                                                                                  14

Headnotes

Employment Equality Act, 1998 -  sections 6, 8, 16 and 77 – discriminatory treatment –chain of events – timelimits – disability.

1.         DISPUTE

           This dispute involves a claim by Mr. Liam Breen that that he was discriminated against by Dublin Airport Authority on grounds of disability, in terms of section 6(2) of the Employment Equality Act, 1998, and contrary to section 8 of that Act in relation to his conditions of employment between 2000 and 2002. The complainant further claims that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Act in relation to certain aspects of his conditions of employment during this period. 

2.         BACKGROUND

2.1      The complainant, who is profoundly deaf, commenced employment with the respondent as a General Operative in the Cleaning Section in June, 1988 and was later assigned to the Window Cleaning Section. He states that in early 2000 he was asked to serve on an Internal Working Group to examine reorganisation of the working practices of the Section and the process continued until mid 2002. He contends that he was unable to participate fully in this process due to a failure by the respondent on several occasions to provide sign language interpreters at the meetings and that this constitutes discrimination of him. The complainant also alleges he was discriminated against in relation to changes in the pension scheme which applied to him and the internal process concerning the election of Worker Directors; in particular that the respondent did not provide adequate interpretation to enable him engage fully in these elections and staff meetings related the pension changes. The complainant also alleges that certain tasks were unilaterally removed from him as a result of his disability and no effort was made to examine what form of reasonable accommodation might be provided to enable him continue perform those tasks. The respondent rejects the complainant’s assertions in their entirety and in addition submits that certain of the allegations are out of time in terms of section 77(5) of the Act as they allegedly occurred more than six months prior to the date of referral of the complaint to the Equality Tribunal. The respondent further argues that alleged incidents which took place after the date of referral of the complaint to the Tribunal are not validly before it as they constitute new complaints. It submits that these are new alleged incidents, they are also out of time because they were not the subject of new referrals to the Tribunal and the time period for any extension of the timelimits under section 77 of the Act expired.

2.2      The complainant referred a complaint under the Employment Equality Acts, 1998 to the Equality Tribunal on 14 June, 2002.  In accordance with her powers under the Act the Director delegated the complaint to Ms. Anne Marie Lynch, Equality Office Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. However before Ms. Lynch was able to conclude her investigation she transferred from the Tribunal. The Director then delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 9 August, 2007, the date the complaint was delegated to me. Hearings on the complaint took place on 15 February, 2008, 8 and 9 May, 2008 and 2 July, 2008. A number of issues arose at the Hearing which gave rise to correspondence between the parties and the Equality Officer for a number of months. This process concluded in late October, 2008.

3.         SUMMARY OF COMPLAINANT’S CASE

Time Limit issue

3.1      The complainant submitsthat the entirety of his complaint is validly before the Equality Tribunal for investigation. He argues that a number of the alleged acts of discrimination (connected with the failure to provide sign language interpreters at meetings in January and March, 2002) occurred within six months of the date of referral of his complaint to the Tribunal. He contends that these incidents form part of a series of linked discriminatory events and the Tribunal has held previously[1] that in those circumstances it has jurisdiction to investigate the totality of his complaint. In addition, the complainant submits that the element of his complaint relating to his removal from High Building Cleaning was ongoing at the time of the referral of his complaint to the Tribunal, indeed it was still in operation at the time of the Hearing and as this treatment was linked with the other elements of his complaint (insofar as certain of the respondent’s personnel were common to them) the Tribunal was entitled to investigate his complaint in full. The complainant referred to the UK Court of Appeal judgement in Cast v Croyden College[2] in support of his assertion on this point. Finally, the complainant states that he was not aware in 2000 and 2001 that the alleged treatment of him could be contrary to the Act as he was unaware of the existence of the Act or the Tribunal. It is submitted on his behalf that this constitutes “exceptional circumstances” for the purpose of extending the period for referral of the complaint to a maximum of twelve months in accordance with section 77(6) of the Act.

3.2       The complainant contends that his complaint comprises four elements as follows: Involvement in the Constructive Participation Group (January, 2000- May, 2001); Issues surrounding his Pension Scheme (October, 2001); his removal from the High Building Cleaning (September, 2001 to date of Hearing) and issues in relation to his participation in the Worker Director Elections (October/November, 2001).

3.3      Involvement in the Construction Participation Group (CPG)

The complainant states that the CPG was an internal mechanism between Management, Unions and Staff connected with the Window Cleaning Section which was established to discuss the future strategy of the Section. He adds that following an invitation from the respondent in early 2000 he decided to participate in the Group because he was interested in the issues. He contends it was agreed by the respondent at the outset (Mr. Lynch, Department Manager) that sign language interpreters would be provided at the meetings and there would be no barrier to his participation. He states that meetings of the Group were normally held on a monthly basis, that there was approximately 15/16 meetings and that he attended when he was available – he recalled being on annual leave on one occasion. The complainant states despite an assurance that interpretation would be provided this was not the case at 4-5 of the meetings. He adds that the first such occasion was one held in the office of Mr. Lynch in May/June, 2000. He asserts that when he raised this issue with Mr. Lynch or Ms. Doyle (Cleaning Department Administrator) he did not receive a satisfactory answer. He further asserts that on occasion Mr. Lynch got angry with him for enquiring why an interpreter was not present at meetings. He states that this was particularly the case in respect of the meeting on 4 April, 2001 although he did not register a formal complaint against him at that time because he was unaware of the Internal Grievance Procedure. The complainant accepts that on occasion Ms. Doyle sat beside him at the CPG meetings and gave him written notes of what was going on. He submits that this was not adequate for a number of reasons – Ms. Doyle was unable to write notes at a pace that would allow him actively participate in the meeting and at the same time allow her to follow the thrust of the meeting; as English is not his first language it took some time to process the information, although he accepted it is adequate in some instances; he was restricted in his contribution because he then had to write down his comments and have Ms. Doyle relate them to the meeting. The respondent sometimes used the services of an employee who could sign for the purposes of these meetings but the complainant found the person difficult to understand as she was not a trained interpreter. A similar situation existed with another colleague who possessed basic sign language and he states the neither of these alternatives were suitable to him. The complainant submits that this treatment placed him at a disadvantage as regards his involvement in the process, that the treatment of him was due to his hearing disability and the respondent therefore discriminated against him on grounds of disability contrary to the Act as the outcomes of these meetings ultimately resulted in changes to the work practices in the Window Cleaning Section and thus affected his conditions of employment.

3.4      The complainant states that his requests to have his complaints about the lack of interpretation at the CPG meetings recorded in the minutes of those meetings were ignored. In addition, his request to have this matter reflected in the final document of the CPG was rejected by Mr. Lynch - stating that there was no need to have such a comment included. He adds that although he signed the final document he felt he was duped into doing so. He states that all the participants were present in a room for the signing and he was the first to be asked to sign. He states he had no choice given he was the first to be asked to sign it after the Management representative (Mr. Lynch) and the Trade Union Official and he felt that the eyes of the other participants were on him. He states that he was not happy doing this because he felt he had not participated fully in the process and felt coerced into signing off on the document.

3.5      The complainant states that a number of other meetings (unconnected with the CPG) were called at short notice and no interpreter was provided at these meetings either. He is unable to provide more specific details of these meetings but recalls that they were about issues such as sick leave and issue relating to new buildings within the airport complex. He adds that 2/3 other meetings were held in the Staff Room at lunch time in January-March, 2002. He asserts that these meetings could last half an hour and on occasion involved Mr. Lynch standing on a chair in the middle of the room. The complainant states that Ms. Doyle provided him with notes of what was going on at these meetings but the same difficulties as outlined above also prevailed here. He adds that the issues which were discussed at these meetings were work related and therefore had a direct impact on him. He submits that his exclusion from the process constitutes unlawful discrimination of him. The complainant concluded on this matter by stating that he was unaware of his rights under the Act until he attended a Conference in October, 2001 and that was why he did not refer a complaint to the Tribunal at the time.

3.6      Pension Scheme

The complainant states that in September/ October, 2001 the respondent organised two/three meetings relating to the restructuring of the Pension Scheme which the complainant was a member of. He contends that all these meetings took place in the same week and that he attended just one of them. He states that the meeting he attended was addressed by Mr. Daly (Industrial Relation’s Manager). There was no interpreter present and the complainant states that he felt excluded from the process. He adds that he wrote a note which he proposed to give to Mr. Daly setting out his displeasure that no interpreter was present at the meeting and when he attempted to approach Mr. Daly with it he was intercepted by Mr. Lynch, who took the note off him and told him to go back to work in an aggressive fashion. The complainant states that although he has a limited lip reading facility he was certain of what Mr. Lynch had said to him. The complainant states that Mr. Lynch subsequently returned his note to him having written on the back “I called this meeting at short notice. I have another meeting arranged for tomorrow and I hope to have an interpreter present”. The complainant was unable to say whether or not this second meeting took place but he did not attend any subsequent meeting on the matter. The complainant states that sometime later he received his payslip and the structure of it had altered although the amount of deduction had not changed. He states that some months later he received a note with his payslip which related to the change in structure of same. He adds that this was in advanced English and as this is not his first language he could not understand it. He submits that the behaviour of the respondent constitutes discrimination of him on grounds of disability in terms of the Act.

3.7      HighBuildingCleaning

The complainant states that he attended a training course on High Building Cleaning in April, 1999 at the suggestion of his Supervisor (Mr. May) and that on completion of the one day course he was certified as competent in that area of work. He adds that he subsequently performed external high building cleaning on about 4/5 occasions (comprising in excess of 20 days) and these duties were assigned to him by his Supervisor. He further states that he carried out all aspects of the duties associated with the work – there are three specific tasks involved - two in the hoisted cradle and one on the ground ensuring the route is safe from hazards. The complainant states that following a comment from a colleague he became conscious he was not being assigned duties associated with the high building cleaning, whilst his colleagues continued to be rostered on them. He asserts that when he approached his Supervisor to enquire as to why this was happening Mr. May initially told him he could not answer him but subsequently told him that he (Mr. May) had been instructed by Mr. Lynch to stop assigning such duties to the complainant, but that he did not know why that instruction had issued. The complainant states that when he raised the matter with Mr. Lynch he was told he was removed for “health and safety reasons”. The complainant states that nobody had previously raised any issues of health and safety with him and he rejects the respondent’s assertion that he was happy with the arrangement he should not be assigned high building cleaning tasks pending a full health and safety investigation into the matter. He adds that he has never been involved in any such investigation or assessment and was not informed that any such processes had taken place. He adds that at the time he was unaware the respondent has convened a meeting sometime in September, 2001 to discuss his capability to perform high building cleaning and submits that the unilateral decision of the respondent to remove him from this work constitutes discrimination of him on grounds of disability contrary to the Act. He further asserts that the manner in which the respondent handled this issue does not enable it to avail of the defence available at section 16(1) of the Act.

3.8      Election of Worker Directors

The complainant states that the election process for Worker Director to the Board of the respondent organisation took place in October/November, 2001. This process involved about a half dozen meetings where candidates addressed employees seeking their support. The complainant states that no interpretation facilities were provided at these meetings, many of which were held in the lunch room. He asserts that this is a serious issue for employees, as it allows them to have a voice at the highest level of management in the organisation – the Board of Directors. He accepts that written and other visual material on the various candidates was available but submits that this was insufficient. He states that he was interested in the presentations from the candidates and he was unable to engage at that level because of his hearing disability. He states that when he raised the issue of interpretation with Mr. Lynch he replied it “was not his responsibility”.  The complainant submits that the respondent is responsible for providing sign language interpretation at these meetings and its failure to do so effectively disenfranchised him as he was unable to participate fully in the process. He argues that this constitutes discrimination of him contrary to the Act.

3.9      Finally, it is submitted on behalf of the complainant that certain contents of a letter from the respondent’s HR Director to the Equality Authority dated 23 June, 2004, constitutes victimisation of the complainant as the tenor of those comments was intimidatory.

4.         SUMMARY OF RESPONDENT’S CASE

4.1      Time Limit Issue

The respondent submits that at the relevant time the law in force was the Employment Equality Act, 1998. It further submits that in accordance with section 77(5) of that Act the complainant must refer his complaint to the Tribunal within six months of the last occurrence of the alleged discrimination. It states that the complainant referred his complaint to the Tribunal on 14 June, 2002 and therefore any alleged incidents which predate 15 December, 2001 (six months prior to the day of referral) are outside the jurisdiction of the Tribunal. It relies on the decision of the Equality Tribunal in Johnson v Louth VEC[3] on this point. The respondent contends that the alleged incidents of discrimination which the complainant asserts occurred between these two dates have no link with any of the alleged incidents which predate 15 December, 2001 and submits therefore that the caselaw which the complainant seeks to rely upon is not relevant in the instant case. The respondent further submits that any alleged incident of discrimination after the date of the referral of the complaint to the Tribunal is not validly before the Tribunal. It contends that any such alleged incident constitutes a new complaint and would require a separate referral. It states that no such referral has been made by the complainant and that at this juncture it would be out of time and way beyond the period of extension permitted by the Act.

4.2      Involvement in the Construction Participation Group (CPG)

The respondent denies that it discriminated against the complainant as regards his involvement in the CPG. It accepts that sign language interpreters were not provided at every meeting – Ms. Doyle who was responsible for organising the interpreters agrees that the facility was not available at nine of the CPG meetings. She adds that on three/four such occasions the organisation the respondent used for obtaining interpreters had none available or cancelled the booking at the eleventh hour. Ms. Doyle states that she made every effort to secure interpretation for each meeting but was unable to do so on every occasion. She states that when official interpretation was not available she would sit beside the complainant and write down the main points of the discussion for him. She adds that on these occasions she was satisfied that the complainant was getting the “full gist” of the meeting. It states that when official external interpreters could not be acquired the respondent offered the services of two staff who could sign but neither of these individuals was acceptable to the complainant.  The respondent further denies that Mr. Lynch was abrupt or impolite to the complainant at the meeting on 4 April, 2001.   

4.3       The respondent rejects the complainant’s assertion that his concerns about the lack of interpretation at the CPG meetings were ignored and not recorded. Ms. Doyle states that she was responsible for preparing and circulating the minutes of each meeting and the complainant never raised any issue about amendment of the minutes, although she accepts he raised the lack of interpreters with her on several occasions. She adds that draft minutes were circulated at least two weeks prior to the next meeting and were subsequently approved by the attendees at the following meeting, including the complainant. The respondent also rejects the assertion that the complainant was duped or coerced into signing the final document which emerged from the CPG process. It states that the document was signed by the representative of Management and the Trade Union first and then by the individual members of the Group in alphabetical order. It asserts that it was coincidental that the complainant was first on the list of signatories on that basis. The respondent states that the draft final report was circulated to members of the Group at least two weeks prior to the signing and it denies (Ms. Doyle and Mr. Lynch) that the complainant requested the document should reflect his discontent about the level of interpretation.

4.4       The respondent states that from time to time it is necessary to call meetings at short notice and accepts that they occurred, although on a very rare basis. It adds that the meetings of this type would be on an informatory in nature, would not generally involve staff participation and would be short in duration – five-ten minutes maximum. Generally the meeting would be followed up with a Memo on the notice board in the Staff Room. The respondent states that on such occasions the complainant would be furnished with notes of the meeting by Ms. Doyle. The respondent states that it has no record of any meetings in January and March, 2002 and asserts that they may be meetings of the aforementioned type. It contends that the complainant clearly views them as separate to the meetings which formed part of the CPG process and submits that given the nature of these meetings it was not possible to engage an interpreter in advance and it did not therefore discriminate against the complainant.

4.5      Pension Scheme

The respondent states that around October, 2001 it proposed making administrative changes to the appearance of payslips in relation to pension deductions. It states that there was however, no change to the amounts deducted from employees’ salaries. It further states that when this proposed change was brought to the attention of the employees’ trade union, it demanded an immediate information session to explain the changes to staff. The respondent (Ms. Doyle was the union shop steward) states that the meeting was organised with less than twenty-four hours notice and was addressed by Mr. Daly. It was therefore not possible to arrange for an interpreter to be present. The respondent states that Mr. Daly subsequently (1 October, 2001) issued an Explanatory Memorandum to all staff about the matter. The respondent (Mr. Lynch) accepts that the complainant approached him in the course of the meeting with a note, indicating that he wished to speak with Mr. Daly. The respondent states that Mr. Lynch wrote on the note and returned it to the complainant, but rejects emphatically that he (Mr. Lynch) told the complainant to “shut up” or behaved in a rude or abusive manner toward him. The respondent (Mr. Lynch) states that no further meeting with staff on the matter (as it subsequently became an industrial relation’s matter) and that the only action taken was Mr. Daly’s Memorandum.

4.6      HighBuilding Cleaning

The respondent accepts that the complainant was trained to perform high building cleaning in 1999 and that he was subsequently assigned those tasks, although the number of occasions is disputed. The respondent also accepts that it had no concerns (from a health and safety or capability perspective) about the complainant’s ability to perform these tasks until two of his colleagues raised concerns with Mr. May (Supervisor) about their health and safety whilst working on the high building cleaning hoist with the complainant sometime in July, 2001. The respondent states that Mr. May immediately brought the matter to the attention of Mr. Lynch, who instructed him to remove the complainant from those duties with immediate effect and not to assign the complainant those tasks until the matter had been discussed with the respondent’s Health and Safety Officer. The respondent further states that Mr. Lynch raised the matter with the respondent’s Health and Safety Manager (Mr. Murray), who in turn asked the Health and Safety Compliance Manager (Mr. Murtagh) to inspect the hoist and work area and report back to him. It adds that this report – which stated that the complainant should not operate the hoist - was furnished (verbally) to Mr. Murray within days and he contacted an external consultant which it the respondent retains on health and safety issues for a further opinion on the matter. The respondent states that these deliberations culminated in a meeting of all the aforementioned personnel in September, 2001 at which it was decided that the complainant should not operate the hoist until a full risk assessment had been conducted. The respondent adds that this decision was subsequently communicated (verbally) to the complainant by Mr. Lynch and he (the complainant) did not appear to have any issues with it. The respondent accepts that this full risk assessment has never taken place but states that this is because of unavailability of the hoist (it is hired from an external company) and the fact that the complainant has been absent from work on a fairly continuous basis since - he was still out of work at the date of the Final Hearing.

4.7      Election of Worker Directors

The respondent submits that the election of Worker Directors is a staff matter and that it has no role in the election process. It further submits that canvassing is conducted by each candidate on an ad-hoc basis, normally by attending staff canteen areas and talking with employees. These impromptu visits are normally conducted with the approval of Supervisors in order to minimise disruption of shifts and maximise exposure to voters. The respondent asserts that there are no pre-arranged meetings where all candidates address the workers, although these type of gatherings can take place at nomination level, when the trade unions are finalising who will be the candidate for that particular trade union. The respondent also states that the last election process prior to the referral of Mr. Breen’s complaint to the Tribunal was October/November, 2001 and is therefore out of time.

4.8       The respondent rejects the complainant’s assertion that its letter of 23 June, 2004 to the Equality Authority contains any comments which constitute victimisation of him contrary to the Act.

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1      The issues for decision by me are (i) what, if any elements of Mr. Breen’s complaint are properly before the Tribunal for investigation, (ii) if the complaint, or elements therein, is in time, whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in relation to his conditions of employment between 2000 and 2002 and (iii) whether or not the respondent can avail of the defence available to it in terms of section 16(3) of the Act. In reaching my decision I have taken into consideration all of the submissions, both written and oral, made by the parties as well as the evidence given by witnesses at the Hearing.

5.2      At the time of the alleged incidents of discrimination, the statute in force was the Employment Equality Act, 1998. It was the established practice of this Tribunal and the Labour Court when dealing with complaints of discrimination under that statute, notwithstanding that there was no express provision in the legislation on the probative burden which applied to each party, to require the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

5.3      However, before dealing with that issue I must be satisfied that the complaint, or which elements therein, are properly before the Tribunal for investigation. Section 77(5) and 77(6) of the Employment Equality Act, 1998 provide as follows:

“(5)      Subject to subsection (6), a claim for redress in respect of discrimination or   victimisation may not be referred under this section at the end of the period of 6   months from the date of the occurrence or, as the case may require, the most           recent occurrence of the act of discrimination…..

  (6)        If on an application made by the complainant the Director… is satisfied that  exceptional circumstances prevented the complainant’s case….being referred  within the timelimit in subsection (5)-

(a)        the Director…may direct that….subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months…”

5.4      The complaint comprises four elements – (i) Involvement in the Constructive Participation Group (January, 2000- May, 2001); (ii) Issues surrounding the complainant’s Pension Scheme (October, 2001); (iii) his removal from the High Building Cleaning (September, 2001 to date of Hearing) and (iv) issues in relation to his participation in the Worker Director Elections (October/November, 2001). From the evidence presented in the course of my investigation I am satisfied that elements (i), (ii) and (iv) can be grouped together as they relate to very similar issues – the alleged less favourable treatment of the complainant as regards certain aspects of his conditions of employment and in particular the failure of the respondent to deal with his concerns about sign language interpretation at meetings in the workplace. These alleged incidents, on the complainant’s evidence, span the period January, 2000-November, 2001. They relate, by and large, to structured meetings organised by the respondent in relation to matters which are clearly related to his conditions of employment. However, all of them occurred more than six months prior to the date he referred his complaint to this Tribunal – 14 June, 2002. It has been the practice of this Tribunal and the Labour Court to include in an investigation of discriminatory treatment, incidents which took place prior to the six month time limit, provided they are similar and related incidents. The complainant must therefore point to related or similar incidents which occurred during the period 15 December, 2001 and 14 June, 2002.

5.5      The complainant asserts that during this period (January-March, 2002) meetings took place in the Staff Room which he attended and these meetings were addressed by Mr. Lynch. The complainant is unable to provide more specific details or dates of these meetings but states they were about work related issues. He asserts that these meetings could last half an hour and would involve Mr. Lynch standing on a chair in the middle of the room. The respondent accepts that the need for meetings arose on an ad-hoc basis but states that it has no record of meetings (formal or informal) which took place in January-March, 2002 involving Mr. Lynch addressing staff. In the course of the Hearing Mr. Lynch emphatically denied that he ever stood on a chair to address in the Staff Room to address staff. This was corroborated by Ms. Doyle. Having carefully considered the evidence on this point I am not satisfied, on balance, that the complainant’s recollection of the dates of these events is correct and the respondent’s version is therefore to be preferred. Consequently, these three elements of Mr. Breen’s claim are out of time unless they can be brought into time by virtue of section 77(6) of the Act. The complainant submits that he was unaware of his rights or the existence of the Tribunal until he attended a Conference in October, 2001. Yet armed with this knowledge and having recently been subjected to the alleged treatment of him following the Worker Director elections, which he asserts was part of a long running campaign of discriminatory treatment of him,  he did not refer the matter to the Tribunal until mid-June, 2002. The complainant was unable to offer any further explanation for this delay in referring his complaint. I find therefore that he has not demonstrated that there were “exceptional circumstances which prevented” his complaint from being referred to the Tribunal within the six month timelimit prescribed at section 77(5) of the Act. It follows therefore, that elements (i), (ii) and (iv) of the complaint (as detailed in the preceding paragraph) are not validly before the Tribunal for investigation.

5.6      I shall now examine element (iii) of the complaint – the removal of the complainant, by the respondent, from the High Building Cleaning. On the basis of the evidence presented to me by several witnesses in the course of my investigation, I am satisfied that the respondent (Mr. Lynch) took a unilateral decision to withdraw the complainant from the High Building Cleaning and that this decision was significantly influenced by the fact that the complainant had a hearing disability. I am also satisfied that this decision was ultimately approved at a meeting in September, 2001, attended by Mr. May, Mr. Lynch, Mr. Murray and an External Health and Safety Consultant and that the outcome of this meeting was communicated to the complainant soon afterward. Finally, I am satisfied that the effect of this decision was still in existence in June, 2002 when the complainant referred his complaint to this Tribunal. A question arises as to whether or not this element of the complaint is validly before the Tribunal for investigation insofar as the timelimit under section 77(5) is concerned.

5.7             It is clear to me that once the respondent reached this decision at the September, 2001 meeting it took no further action on the matter. I am therefore satisfied that the decision involved a once-off decision which had continuing consequences for the complainant. The UK EAT has differentiated between this type of situation[4] and an act extending over a period of time[5] and these decisions offer useful guidance in the instant case. I further note that the complainant did not make any request of the respondent to re-visit its decision following the communication of it to him in September, 2001. Having evaluated all of the evidence on this point I am satisfied that the date of the most recent possible occurrence of discrimination is the day of the meeting mentioned above. Whilst the exact date is unknown what is clear is that it took place sometime in September, 2001. The complainant referred his complaint in June, 2002 and it is therefore out of time in terms of section 77(5) of the Act. The complainant cannot avail of section 77(6) of the Act in this matter for the same reasons set out at paragraph 5.5 above. It follows therefore that this element of the complaint is also not validly before the Tribunal for investigation.

5.8             Finally, the complainant submits that the contents of the respondent’s letter of 23 July, 2004 constitute victimisation of him in terms of section 75 of the Act. Having examined this correspondence I am not satisfied that he has established a prima facie case of victimisation contrary to the Act and this element of his complaint must therefore fail.

6.         DECISION OF THE EQUALITY OFFICER.

6.1      I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008.

I find that -  

                        (i)         the complainant has failed to establish  a prima facie case of victimisation                           contrary to the Act and this element of his complaint fails,  and

                        (ii)        the remaining elements of the complaint (concerning discriminatory                                   treatment in relation to the complainant’s conditions of employment) were                         not referred within the timelimits prescribed at section 77 of the                                      Employment Equality Act, 1998 and they are not therefore validly before the                         Tribunal for investigation.

           _______________________________

            Vivian Jackson         

            Equality Officer

            19 March, 2009