FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : A BANK (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007
BACKGROUND:
2. The worker referred her case to the Labour Court on the 22nd April, 2010, in accordance with Section 83 of the Employment Equality Act, 1998 to 2007. A Labour Court hearing took place on 13th April, 2010. The following is the Court's determination:
DETERMINATION:
This is an appeal by the Worker against the decision of the Equality Tribunal in her complaint of discrimination on the disability ground against a Bank by which she was formerly employed. The claim was made pursuant to the Employment Equality Acts 1998 to 2008 (the Equality Act) and the Pensions Acts 1990 –2004 (the Pensions Act).
In line with the normal practice of the Court, parties are referred to as they were at first instance. Accordingly, the worker is referred to as the Complainant and the Bank is referred to as the Respondent.
In this appeal the Complainant appeared in person and was not represented. The Respondent was represented by IBEC.
An Equality Officer of the Equality Tribunal investigated the complaints under both Acts. He found that both were presented outside the statutory time limit and that he lacked jurisdiction to investigate the complaints.
The Complainant appealed to the Court against that decision.
Basis of the appeal.
While the Equality Officer did not say so in terms it is clear that the complaint under the Employment Equality Acts was dealt with by way of a preliminary investigation pursuant to s.79 (3A) of the Act. This subsection allows the Equality Tribunal to determine any question as to the entitlement of a person to bring a complaint under the Act by way of a preliminary investigation. Section 83(5) of the Act provides that if the determination of the Court on a preliminary issue against the decision of the Equality Tribunal under s.79(3) is in favour of the Complainant, the matter shall be referred back to the Equality Tribunal for an investigation of the substantive issue.
No corresponding provision is made in relation to a decision of the Equality Tribunal pursuant to s.77(3A). Nonetheless, it seems to the Court that as a matter of principle a similar approach should be adopted where the decision of the Equality Tribunal under that provision is reversed. Section 84(4) of the Act provides that where the decision of the Equality Tribunal on any question is set aside the Court may refer the matter back for a new investigation and decision under s.79 of the Act.
By virtue of s.22 of the Social Welfare (Miscellaneous Provisions) Act 2004, as amended by s.66 of the Equality Act 2004, ss.79, 83 and 84 of the Employment Equality Act are incorporated into the Pensions Acts.
At the commencement of the appeal the Court informed the parties that in the event of its Determination being to set aside the decision of the Equality Tribunal on the time limit issue it would exercise its powers to refer the substantive issue back to the Equality Tribunal for a new investigation and decision. Accordingly, the Court determined to deal only with the time limit issue in the appeal.
The facts.
The material facts, as admitted or as found by the Court, in so far as they relate to the time limit issue, can be summarised as follows: -
The Complainant, who is a Solicitor by training, commenced her employment with the Respondent as Private Client Services Manager with the predecessor of the Respondent, in or about May 1988. In or about May 2001 the Complainant was granted leave of absence to take up a position of solicitor with another organisation. The Complainant was due to return to her employment with the Respondent in November 2004. Preparatory to her return the Complainant had discussions with the Human Resources Manager of the Respondent concerning the role to which she would be assigned.
The Complainant was informed that she would be assigned to the post of Senior Deposits Dealer in the Treasury Department. The Complainant informed the Respondent that due to an illness from which she then suffered she would be unable to undertake the duties of that post. The Complainant was then referred by the Respondent to an Occupational Health Consultant (now deceased) for an opinion on her condition. This Occupational Health Consultant (hereafter the Company Doctor) confirmed that the Complainant was medically unfit for the role to which she was to be assigned. He further opined that when the treatment which she was then undertaking was completed her condition should be reassessed.
At the request of the Respondent the Complainant arranged for the Company Doctor to be furnished with reports from her own medical advisors. Following receipt of these reports the Company Doctor met with the Complainant on 15th February, 2005, and again in March 2005. Having received a further report from the Complainant’s Doctor, the Company Doctor presented a final report to the Respondent dated 15th July, 2005. The report was put in evidence but it is unnecessary to recite its content in full. Suffice it to say that in this report the Company Doctor concluded,“I cannot guarantee that this lady will be able to give you continuous employment.The report also made reference to the possibility of certain symptoms of the Complainant’s illness impacting adversely on other employees having regard to the layout of the office area in which the Complainant would be expected to work.
It would appear that in various discussions with the Respondent the Complainant requested that she be provided with access to a voluntary severance scheme which had been introduced in 2002. The Respondent had refused this request on the basis that the scheme in question had been discontinued.
By letter dated 9th August 2005 the Respondent wrote to the Complainant and put her on notice that on the medical evidence available it may have no option but to terminate her employment. In this letter the Respondent interpreted the Company Doctor’s opinion as being“your health is such that your former job in Treasury is not suitable for you at present”, and“the Bank is not a suitable environment for your condition”. The Complainant replied by way of a detailed letter dated 13th August, 2005. In this letter the Complainant took issue with the stated stance of the Respondent. In this letter the Complainant,inter alia, requested that she be restored to the pay roll and granted an enhanced early retirement pension pursuant to the 2002 scheme.
The Complainant met with a representative of the Respondent on 25th August to discuss her continued employment. At this meeting the Complainant was informed that her employment was being terminated due to her incapacity to fulfil the terms of her contract of employment. The Respondent confirmed this decision by letter dated 31st August, 2005. The Complainant appealed against this decision to the Head of Human Resources. The appeal was unsuccessful and her dismissal was confirmed by letter dated 15th October, 2005.
By notice dated 25th October, 2005, the Complainant referred a complaint to a Rights Commissioner under the Industrial Relations Act 1969 and the Payment of Wages Act 1991.
The Complainant corresponded further with the Respondent requesting copies of the reports in its possession relating to her medical condition. In or about January, 2006, the Respondent furnished the Complainant with the report which it had received from the Company Doctor dated 15th July 2005. It subsequently transpired that there were two earlier reports by the Company Doctor in the Respondent’s possession which were not furnished to the Complainant. These reports were released to the Complainant by Solicitors acting for the estate of the Company Doctor, on or about 11th August, 2006.
The Complainant presented the within complaints to the Equality Tribunal on 5th July, 2006.
Position of the parties
The substance of the Complainant’s case is that she was discriminated against on grounds of disability in being dismissed by reason of her illness and in not being afforded reasonable accommodation for her illness. On the time limit issue the Complainant told the Court that in light of the content of its letter to her dated 9th August, 2005, she formed the opinion that the Respondent had a full defence to any claim of discriminatory treatment that she might bring. She gave this as the initial reason for not pursuing a claim under the Act. She said that when the Company Doctor’s report dated 15th July was provided on 6th January, 2006, she realised that the opinion attributed to him by the Respondent in its letter of 9th August was seriously inaccurate. In light of the content of the Company Doctor’s report the Complainant took issue in particular with the statement in the letter to the effect that“the Bank is not a suitable environment for your condition
The Complainant contends that this statement constituted a misrepresentation and that, in consequence, the time limit should only run from the time the misrepresentation was discovered, namely 6th January, 2006. The complaint under the Act was made on 5th July, 2006, which was within the six-month time limit measured from that date.
With regard to the claim under the Pensions Acts, the Complainant told the Court that she presented her claim on 25th July, 2006, which was some three months after the expiry of the time limit. The Complainant contends that she only became aware of some material information concerning the possibility of claiming early retirement on grounds of ill health in 2007. She submitted that the Respondent’s failure to provide this information earlier constituted a misrepresentation which prevented time from running against her.
The Respondent
The Respondent contends that the Complainant was at all times aware of the underlying facts upon which her substantive case is grounded. She chose not to pursue a claim until the time limit had expired and there is no reasonable cause for an extension of time.
In relation to the claim of misrepresentation, the author of the letter dated 9th August 2005, Ms Sue Buckley, gave evidence. Ms Buckley told the Court that the statement impugned by the Complainant was based on the content of reports from the Company Doctor and from a conversation which she had with him in relation to the reports. The witness also told the Court that the Complainant had been told that all of the medical reports which came into its possession were available to her through her own GP.
Conclusion of the Court
The only issue before the Court is whether the substantive complaint of discrimination can be entertained having regard to the provisions of s. 77 of the Act. Subsections (5) and (6) of s.77 are relevant for present purposes. They provide: -
- “(5) (a) Subject to paragraph (b), 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 may be, the date of its most recent occurrence
- (b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) 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 as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
- (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.
- (b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) 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 as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
In this case the most recent occurrence of the alleged discrimination to which the complaint relates was the dismissal of the Complainant. That dismissal
was finally confirmed by letter dated 12th October, 2005. Hence, the time limit prescribed by s.77(5)(a) started to run from that date, or as soon thereafter as the Complainant received that letter, and would have expired on or about 11th April, 2006. The within complaint was lodged on 5th July, 2006. The Complainant is seeking an extension of time pursuant to s.77(5)(b) of the Act and in the alternative she contends that she is entitled to rely of s.77(6) so as to delay the start of the time limit until 6th January, 2006.
The Complainant told the Court in evidence that she became aware of the content of the Company Doctor’s report on 6th January, 2006. She initially decided not to pursue a complaint under the Act because she was awaiting a hearing before a Rights Commissioner on related matters. That hearing was held on 23rd January, 2006. It was the Complainant’s evidence that she then considered her position and having examined the statute she formed the opinion that the circumstances surrounding her claim came within the ambit of s 77(6) of the Act in that the Respondent had been guilty of misrepresentation. She based this opinion on the representation made by Ms Buckley in her letter of 9th August, 2005, concerning the advice given to the Respondent by the Company Doctor which, she contends, was not borne out by the report of 15th July, 2005. She accordingly concluded that the time limit started to run, in her case, from the date on which she discovered that misrepresentation, namely 6th January, 2006.
The Court first considered the Complainant’s application for an extension of time in which to bring her claim. Based on the Complainant’s own evidence the Court can see no basis upon which it could be held that reasonable cause, within the meaning of s.77(5) of the Act, existed for the delay in initiating this claim. The established test for deciding if an extension should be granted is that formulated by this Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). The irreducible minimum requirement under this test is that the complainant shows that there are reasons which both explain the delay and afford an excuse for the delay. On the evidence tendered it is clear that the Complainant took a deliberate decision not to present her claim within the time limit prescribed by s. 77(5)(a) because she believed that s. 77(6) was applicable. If the Complainant was mistaken that cannot avail her since it is well established that a mistaken view of the law cannot be relied upon to ground an application to extend a statutory time limit (seeMinister for Finance v CPSU & Ors[2007] 18 ELR 36).
The main thrust of the Complainant’s case is that the Respondent had misrepresented the import of the Company Doctor’s opinion on her medical condition and that this misrepresentation was the operative cause of the delay in initiating her claim. The term ‘misrepresentation’ is generally understood as referring to a false statement of fact, intended to be acted upon, which actually misleads the person to whom it is addressed. In the context in which the term appears in s. 77(6) of the Act operative misrepresentation can arise where: -
(a) The Respondent makes a false statement of fact in respect to some material particular affecting a cause of action under the Act;(b) The Complainant believed the statement to be true, and(c) In reliance on the truth of the statement the Complainant delayed in initiating a complaint under the Act.What is in issue in this aspect of the case is whether the impugned statement to the effect that the Bank was not a suitable environment for the Complainant, contained in the letter of 9th August, 2005, was false in some material particular. In addressing that question the Court has considered the content of the final report submitted to the Respondent by the Company Doctor, dated 15th July, 2005. In relevant part the report refers to certain symptoms of the Complainant’s condition and suggests that they could have an undesirable effect on others working with her in an open plan office. In its letter to the Complainant the Respondent represented that conclusion as“the Bank is not a suitable environment for your condition”.
In the Court’s view the words used by the Respondent are reasonably concordant with the import of the Company Doctor’s conclusions as set out in his report of 15th July 2005. Accordingly, it could not be held the words impugned constituted a false statement of fact. On this basis alone the Complainant’s contention that the Respondent was guilty of misrepresentation cannot succeed.
In these circumstances it is unnecessary to consider if the other elements of the test referred to above have been met.
The Pensions Act complaint
The Complainant was unable to identify any statement made by the Respondent which could have deflected her from presenting her claim in time. In her submissions to the Court the Complainant contended that the Respondent was guilty of misrepresentation in failing to disclose certain material facts in relation to its pension scheme. The Complainant accepted that she became aware of these undisclosed facts after her claim was submitted to the Equality Tribunal. In these circumstances the non-disclosure upon which she seeks to rely could not have had any causative effect in preventing her from presenting her claim in time. Accordingly, this aspect of the claim must also fail.
Determination
For the reasons referred to herein the decision of the Equality Tribunal is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
6th May, 2010______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.