THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 – 015
and
PENSION ACTS 1990 - 2004
Decision DEC – P2009 – 002
PARTIES
Ms Avril Sheridan
(represented by Ms Mary Honan, BL, instructed by O’Mara, Geraghty, McCourt, Solicitors)
and
Bank of Scotland Ireland Ltd
(represented by IBEC)
File References: EE/2006/233&
EE/2006/272
Date of Issue: 13th of March, 2009
Claim
The case concerns a claim by Ms Avril Sheridan that Bank of Scotland (Ireland), discriminated against her on the ground of disability contrary to Sections 6(2)(g) of the Employment Equality Acts 1998 to 2004, and S. 66(2)(g) of the Pensions Acts 1990 to 2004.
Background
The complainant referred a complaint under the Pensions Acts 1990 to 2004 to the Director of the Equality Tribunal on 25 July 2006 (complaint EE/2006/272) and a complaint under the Employment Equality Acts on 26 July 2006 (complaint EE/2006/233). On 21 September 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated both cases to Stephen Bonnlander, 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. A submission was received from the complainant on 18 April 2008. A submission was received from the respondent on 16 June 2008. A joint hearing of the claim was held on 2 October 2008, and resumed on 31 October 2008. Additional evidence was requested from the respondent on 13 November 2008 and received on 15 December 2008.
Summary of the Complainant’s Written Submission
The complainant submits that she has been discriminated against by the respondent contrary to the Employment Equality Acts 1998-2004, on the grounds that the respondent refused to allow her to return to her employment in November 2004; that the respondent failed to discharges its duty regarding reasonable accommodation; that the respondent did not allow her to avail of early retirement, and that the respondent discriminatorily dismissed her on 31st August 2005.
The complainant further submits that she was discriminated against the Pension Acts 1990-2004 by exclusion from the respondent’s Early Retirement Scheme and Disability Scheme under the respondent’s pension scheme.
The complainant submits that it was not possible for her to submit her complaint within the six-month timeframe stipulated by S. 77(5)(a) of the Acts since the respondent did not provide information to her which was necessary for the filing of the complaint.
The complainant further submits that she did not file her complaint under the Pensions Acts 1990-2004 according to the time limit stipulated in S. 81E(6) of these Acts, because she was not aware of her rights under the Pension Acts until March 2006.
Summary of the Respondent’s Written Submission
The respondent contends that both complaints are outside the statutory time limit and that therefore the Tribunal has no jurisdiction to investigate them. In particular, the respondent submits that the complainant is a solicitor, that her communications with the respondent show her to be aware of her rights under the Acts, and that she did file a complaint with the Rights Commissioners in time. The respondent argues that therefore, no time extension for reasonable cause should be afforded to the complainant.
Conclusions of the Equality Officer
The issues for decision for me in this case are:
· Has the complainant’s case under the Employment Equality Acts 1998 – 2004 been referred in time pursuant to S. 77(5) of the Acts and do I therefore have jurisdiction to investigate it?
· If so, has the complainant been discriminated against by the respondent on the ground of disability and
· Has the complainant been discriminatorily dismissed by the respondent on the ground of disability?
· Has the complainant’s case under the Pension Acts 1990 – 2004 been referred in time pursuant to S. 81E of the Pension Acts?
· If so, has the complainant been discriminated against on the ground of disability under the provisions of the Acts?
Complaint under the Employment Equality Acts
The complainant’s employment with the respondent ended on 31 August 2005. On 26 July 2006, the complainant lodged her complaint under the Employment Equality Acts with the Tribunal. Subsequently, the complainant made an application for extension of time to the Director. On 21 September 2007, the Director delegated the decision in this matter to myself, in accordance with her powers under S. 75 of the Acts. The complainant argues that she had struggled to obtain medical reports from the respondent’s occupational health specialist, which she felt she needed to assess whether she had a case under the legislation. It is the respondent’s position that this does not represent “reasonable cause”. In particular, the respondent points out that the complainant only started to seek this information in December 2005, some four months after the termination of her employment.
To show reasonable cause for bringing proceedings late, the reasons given must both explain and justify the delay. Factors that have previously been taken into account by the Labour Court and the High Court have included engagement between the parties with a view to resolving the matter on hand [O’Donnell v. Dun Laoghaire Corporation, 1991, ILRM 301 and Murphy v. Minister for Social Welfare 1987 IR 295], whether the complainant was represented or not [Cementation Skanska v. Michael Neary, Labour Court DET 349] and whether the complainant is a non-national, non-native speaker with limited knowledge of the law [Singh & Singh t/a Gaylord Tandoori Restaurant v. Nitin Guatam & ors, Labour Court Det WT/05/62]
In this context, I find it important to note that the complainant is a trained solicitor and a native speaker of English. Her knowledge of the law and professional experience should have alerted her to the importance of statutory time limits. I note the fact that engagement between the parties occurred after the termination of the complainant’s employment, but the last letter pertaining to the termination of the complainant’s employment, wherein the respondent’s decision was affirmed, dates from 12 October 2005. This is some six weeks after the termination of the complainant’s employment, and comfortably within the time limit specified in the Acts. Subsequent correspondence between the parties was for the express purpose of obtaining various kinds of evidence and cannot be considered engagement within the meaning of the O’Donnell and Murphy cases.
It is the complainant’s contention that she needed to obtain this evidence to assess whether she had grounds to bring a case. I do not accept this argument. Complainants before the Tribunal and their representatives seek information and evidence from the respondent to varying degrees, which is then usually submitted to the Equality Officer. In cases where a complainant does not succeed in this, it is within the powers of the Equality Officer to obtain the relevant evidence from the respondent. None of these actions have a bearing on whether complainants reason that they have grounds to take a case. For complainants to make this decision, all that is needed is the incident which they believe gave rise to the discriminatory treatment. In the instant case, this incident would have been the unsuccessful communications with the respondent on the complainant’s return to work, and the letter which communicated to her the termination of her employment on 31 August 2005. From the correspondence between the parties in August 2005, it is clear that the reason for the termination of the complainant’s employment was the complainant’s ill-health, and the respondent’s perception that it was not possible to accommodate the complainant with a suitable role in the organisation.
Accordingly, I find that the complainant has not shown reasonable cause why she should be granted an extension of time pursuant to S. 77(5) of the Employment Equality Acts, and that her claim is out of time. Therefore, I have no jurisdiction to investigate her complaint.
Complaint under the Pension Acts
Pursuant to S. 81E of the Pension Acts, a complaint must be lodged with the Director within six months of the termination of the respective employment. The complainant lodged her complaint with the Tribunal on 25 July 2006, having ceased employment with the respondent on 31 August 2005. Subsequently, the complainant made an application for extension of time to the Director, arguing that lack of awareness of her rights had prevented her from filing a complaint.
I do not accept this. Lack of awareness of rights does not in itself constitute reasonable cause for the granting of an extension of time. Furthermore, not only is the complainant a trained solicitor, but from the evidence it is clear that she was a trustee of the respondent’s pension scheme as the current deeds governing the scheme came into force. It is the complainant’s case that she was only a trustee for about eight weeks, but that does not diminish her involvement in the scheme as outlined above, and the knowledge she gained through that involvement.
Accordingly, I find that the complainant has not shown reasonable cause why she should be granted an extension of time pursuant to S. 81E of the Pension Acts, and that her claim is out of time. Therefore, I have no jurisdiction to investigate her complaint.
Decision
Based on all of the foregoing, and pursuant to S.79(6) of the Employment Equality Acts and S. 81H of the Pension Acts, I find that
(i) I have no jurisdiction to investigate the complainant’s claim of discrimination in employment on the ground of disability due to the referral of the complaint outside the time limit specified in S. 77(5) of the Employment Equality Acts 1998 to 2008 and
(ii) I have no jurisdiction to investigate the complainant’s claim of discrimination in relation to a pension scheme on the ground of disability due to the referral of the complaint outside the time limit specified in S. 81E of the Pension Acts 1990 to 2004.
_____________________
Stephen Bonnlander
Equality Officer
13 March 2009