EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-144
PARTIES
Mary Mulligan
(Represented by Helix HR)
AND
Offaly County Council
(Represented by Local Government Services Management Board)
File reference: EE/2007/647
Date of issue: 28 July 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 14A & 74 - Gender & Age - Harassment - Victimisation.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Mary Mulligan that she was harassed in terms of section 14A of the Acts and victimised in accordance with section 74 (2) of the Acts by Offaly County Council on the grounds of gender and age contrary to section 6 of the Employment Equality Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 7 December 2007 under the Employment Equality Acts. On 25 November 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, 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 accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 16 May 2010.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started working for the respondent in 1999 in Edenderry. She submits that a new Town Clerk was appointed in 2004 and this led to a change in relationship from March 2005, when her job was diminished and she was not given enough information to do her job. She subsequently made a complaint against her supervisor and a mediated agreement was reached in November 2005 between the two parties but the recommendations were not implemented by the respondent.
2.2. The complainant submits that in August 2006 a complainant was made against her by a colleague and there was an investigation. The report recommended that both parties be transferred. Following her appeal she was transferred to Tullamore in April 2007 and the complainant considers that this transfer was discriminatory on the grounds of her age as the other party was 10-15 years younger and was less effected by the transfer in terms of daily travel.
2.3. The complainant submits that in September 2005 when her husband spoke to the Area Engineer to say that she was sick, the Area Engineer made a comment which she considers to be discriminatory on the grounds of her gender. Following further incidents the complainant made a complaint of bullying against the Area Engineer in January 2007. She submits that his behaviour was a response to her complaint in 2005. The complainant submits that the respondent refused to deal with this as a claim of bullying but told her that it would have to be dealt with under their Grievance and Disciplinary Policy. The respondent refused to proceed with this process as they would not allow her to be accompanied by the person of her choice.
2.4. The complainant submits that as a result of the complaints she made she was victimised at work by the Area Engineer and HR in the way they dealt with the complaints, and she was also victimised by the respondent when she was transferred because she was assigned a disproportionate level of work and that this continues. The complainant submitted an organisational chart for her work area in Tullamore which showed that she had more work areas that other staff.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that this claim is out of time as the last incident referred to by the complainant is 30 April 2007 and the claim was not made until 7 December 2007.
3.2. The respondent submits that the mediated agreement was confidential to the two parties involved and was not made known to anyone else, therefore they could not be responsible for implementing aspects of the agreement of which they were not aware. The other party to the complainant was reassigned from Edenderry in January 2006, following the termination of an acting appointment. No events around these incidents had anything to do with the respondent's age or gender.
3.3. The respondent submits the person making a complaint against the complainant in August 2006 opted for an investigation. This was carried out and a report issued in February 2007 which recommended that both parties be transferred. The complainant appealed the transfer but it was not upheld and both parties were transferred to different sections in Tullamore on 30 April 2007. The respondent submits that both parties were treated the same and age was not a factor.
3.4. In January 2007 the complainant made a complaint relating to one incident against the Area Engineer, they did not consider this fell under their definition of bullying, "repeated inappropriate behaviour", and proposed to deal with it under their Grievance Policy. However, the complainant did not agree to be represented by a staff colleague and/or trade union representative as allowed in their procedures and insisted that she wanted to be represented by someone from outside. In these circumstances they were unable to conclude their investigation and this was unrelated to the complainant's age or gender.
3.5. The respondent submits that they did not discriminate against the complainant on the grounds of gender or age and that she has failed to establish a prima facie case.
4. FINDINGS & CONCLUSION
4.1. I must first look at the respondent's contention that this claim is 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 this may be extended if there is "reasonable cause" to 12 months.
4.2. The complainant referred in her submission to a number of incidents which she claims amount to harassment from March 2005 until 30 April 2007 when she is transferred out of the Edenderry office. At the hearing for the first time she made allegations that this harassment continued after her transfer to the Tullamore office because of the unfair work allocation. However, she gave no evidence that this harassment was related to any of the grounds. Instead her evidence indicated that the alleged treatment in the Tullamore office falls within the category of victimisation, as she is claiming that it occurred because of her previous complaints.
4.3. Given the complainant has provided no evidence of any allegation of harassment after 30 April 2007 and has provided no reasonable cause for failing to submit her claim within the six months provided for in section 77 (5) (a) I find that the claim of harassment is out of time.
4.4. I have to decide if the complainant was victimised. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. Section 74 (2) states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings [under this Act] by a complainant, ......."
Section 6 (1) of the Acts states "discrimination shall be taken to occur where ... a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified"
4.5. In this case the complainant alleges that she was victimised by the Area Engineer as a result of the complainant of she made in 2005 and also by HR in the way they dealt with her complaints. She contends that this victimisation continued when she was alleges she was given what she considered to be an onerous workload on her transfer to the Tullamore office, which she contends occurred because of her previous complaints. Whilst she may have had a number of work areas the complainant was unable to provide evidence that her workload was more or less than anyone else in the Tullamore office. The respondent contended that the complainant's duties were appropriate to her role. I conclude there is no evidence that the complainant was victimised on her transfer to the Tullamore office. Furthermore, none of the complaints made to the respondent make reference to any of the specified grounds and therefore any subsequent treatment cannot give rise to an inference of victimisation within the meaning of the Acts.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the claim in relation to harassment was not lodged in accordance with the time limits provided for in section 77 (5) (a) of the Acts and I therefore have no jurisdiction to investigate the claims, and
- that the respondent did not victimise the complainant.
____________________
Hugh Lonsdale
Equality Officer
28 July 2010