The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-104
PARTIES
Michael Sweeney
(Represented by Marguerite Bolger SC, instructed by
BCM Hanby Wallace Solicitors)
AND
Department of Education and Science
(Represented by David Keane S.C., instructed by
the Chief State Solicitor's Office)
File reference: EE/2007/596
Date of issue: 18 June 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Age - Conditions of Employment - Time limits.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Michael Sweeney that he was discriminated against by the Department of Education and Science on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 14 November 2007 under the Employment Equality Acts. On 17 August 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 24 March 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 From 1984 until 1989 the complainant worked as a part-time teacher. From 1989 until 1994 he worked as an Eligible part-time teacher (EPT). On 1 August 1994 he was appointed as a permanent whole time teacher.
2.2 The complainant submits that when he was appointed as a permanent whole time teacher he was given pro rata incremental credit based on the actual hours he had worked as an EPT. He received incremental credit of 5½ years.
2.3 Department of Education and Science Circular 00029/2007, "Scheme for the Award of Incremental Credit to Teachers at Second Level", gave full incremental credit to Regular part-time teachers (RPT) for each year of service irrespective of actual hours worked with effect from 20 December 2001; after which date the designation RPT replaced EPT. As he was made permanent in 1994 the complainant was not included in this Circular and he submits that if this scheme had been applied to his own situation he would have received six years incremental credit. This effects his pay each year and ultimately will effect his pension entitlements.
2.4 The complainant submits that this amounts to indirect discrimination in relation to age as the group of teachers who, like him, would not have benefited from this change would have been older than those included in the Circular.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that the complainant is misconceived as the provision awarding the incremental credit did not put any teacher at a disadvantage compared with any other teacher on the ground that they were of different ages.
3.2 The respondent submits that the change to the awarding of incremental credit to teachers, who had been working part time, when they were appointed to a permanent position arose out of the implementation of the provisions of the Protection of Employees (Part-time Work) Act, 2001 and was therefore objectively justified. The changes were made by Department of Education and Science Circular Letter Pay 13/04, "Incremental Point on Common basic Scale of Teachers Part-Time Service and Eligible Part-time Service" which states:
"Fully qualified pro-rata teachers (i.e. teachers employed for a regular number of hours each week for the duration of the academic year) will receive one increment on the relevant scale of pay for each year of such service where the managerial authority deems it to be satisfactory.
The pro-rata teacher will retain his/her incremental point on the scale on appointment to a post as a fully qualified temporary whole-time teacher or as a fully qualified permanent whole-time teacher.
The above arrangements apply in respect of both Eligible Part Time and Regular Part Time teachers appointed from the 20th December 2001 and relates to service given in both categories after that date.
The arrangements that applied for the reckoning of service as Eligible Part Time teachers prior to the 20th December 2001 as outlined in Para. 1 (b) of Circular PPT09/02 shall continue to apply."
Subsequently Department of Education and Science Circular 00029/2007, "Scheme for the Award of Incremental Credit to Teachers at Second Level", contained a consolidated scheme which reiterates the relevant provisions of Department of Education and Science Circular Letter Pay 13/04.
3.3 The respondent submits that this claim is outside the time limits set out in section 77 (5) of the Acts which provides that a claim of discrimination must be made within six months of the alleged "date of occurrence of the discrimination", in two respects. Firstly, that Mr Sweeney received his incremental credit when appointed a permanent teacher on 1 August 1994 and that this act was clearly outside the time limits as he made his claim of discrimination on 14 November 2007. Secondly, if the complainant is contending that the alleged discrimination took place with the introduction of a scheme which gave service after 20 December 2001 full incremental credit as opposed to pro rata credit then the date of discrimination would have to be July 2004 when the scheme was introduced by Circular Letter Pay 13/04, not with the publication of Circular 00029/2007 as alleged by the complainant, and this is also outside the time limits.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The respondent raised a preliminary issue when they contended that this claim was out of time in accordance with section 77(5) of the Acts. The complainant contended that the date of most recent occurrence of discrimination to be 31 July 2007, which he claims is when Circular 0029/2007 was implemented. This Circular sets down a consolidated scheme for the revised arrangements for the awarding of incremental credit for all categories of teachers, including EPT and RPT, arising from the implementation of the Protection of Employees (Part-time Work) Act, 2001.
4.2 Circular Letter Pay 13/04 was distributed by the Department of Education and Science in July 2004 and states the "Minister wishes to advise Boards of Management and teachers of the revised arrangements with regard to the award of incremental credit for certain fully qualified teachers employed on a pro-rata basis" and deals only with the arrangements for EPT and RPT teachers. Circular letter Pay 13/04 sets out the arrangements for the awarding of incremental credit for EPT and RPT teachers; that EPT teachers appointed to a whole time post prior to 20 December 2001 will receive pro-rata credit, whilst RPT teachers appointed to after 20 December 2001 will receive full credit for each year of service. Circular 0029/2007 repeats these arrangements as part of the consolidated scheme. I conclude that Circular 0029/2007 was a reiteration of Circular Letter Pay 13/04 and no new act of discrimination could have taken place on 31 July 2007 and find that this claim is out of time in accordance with section 77 (5) 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 this claim was not lodged in accordance with the time limits provided for in section 77 (5) of the Acts and I therefore have no jurisdiction to investigate the claims.
___________________
Hugh Lonsdale
Equality Officer
18 June 2010