The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-217
PARTIES
A Complainant
- V -
A Respondent 'Z'
(Represented by Byrne Wallace Solicitors )
File reference: PEN/2009/002
Date of issue: 5 November 2010
Keywords - Employment Equality Acts - Victimisation - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to victimisation by the respondent in terms of section 74(2) of the Employment Equality Acts (hereafter referred to as 'the Acts').
1.2 The complainant referred a claim of victimisation to the Director of the Equality Tribunal on 22 January 2009 under the Acts. On 25 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 September 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that there was a long history of his employment with the State, and that this was interrupted without due cognisance to the law in 1999. By way of providing background information, the complainant further submitted that he took a case under the Employment Equality Acts a number of years ago. During the hearing of that matter, the respondent accepted that it had discriminated against the complainant and thereafter, the Tribunal concerned itself solely with the quantum of the remedy to be awarded. The Tribunal's decision was appealed to the Labour Court who varied the terms of the award. A number of other proceedings were taken in various fora in order to clarify the complainant's employment status.
2.2 The complainant submitted that he has been subjected to victimisation arising from his involvement in that earlier case under the Employment Equality Acts. The complainant submitted that the victimisation took the form of being denied an entitlement to an uncoordinated pension (a occupational pension that is not reduced by the level of the Social Insurance pension), being denied access to full-time employment, and that the respondent has not provided him with information as regards his future pension entitlements. The complainant submitted that this treatment also amounted to victimisatory harassment during the intervening period.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant claims that he has been the subject of victimisation which commenced before 2007 and which is ongoing. It further submitted that the complainant maintains that the victimisation comprises treatment in respect of pension entitlements and that this treatment is because of, or is related to, a claim brought under the Employment Equality Acts. As an initial matter, the respondent submitted that in circumstances where the complainant has not yet retired, the treatment complained of has not actually occurred.
3.2 The respondent submitted that the complainant maintains that any pension arising from his employment with the respondent should be paid to him on an uncoordinated basis notwithstanding that he pays Class A PRSI in respect of his current employment. The respondent submitted that employees pay either Class A or Class D PRSI contributions and that all staff employed by them after 6 April 1995 fall into the Class A category. The pension for the Class A category of employees is coordinated with the State Social Insurance pension, i.e. recipients receive a lower level of occupational pension which is topped up by the Social Insurance pension.
3.3 The respondent submitted that the complainant was made redundant from his employment with 'X' employer in 2000 and that this was confirmed in a determination by the Employment Appeals Tribunal, affirmed by subsequent High Court proceedings. A number of former employees of 'X' went on to become employees of the respondent ('Z') but at all times were in the employment of the State. Originally those employees were employed on a coordinated pension basis. One of those employees took a claim to the Rights Commissioners Service of the Labour Relations Commission. The Rights Commissioner made a recommendation that the employee was entitled to an uncoordinated pension as agreed on their transfer from 'X' as this could be construed from his continuous employment with the State. The respondent submitted that this Rights Commissioner's Recommendation was then applied to all former employees of 'X' whose employment could be construed as continuous since their pre-1995 recruitment.
3.5 The respondent submitted that, as the complainant had been made redundant in 2000 from employer 'X' and that he had subsequently applied for a separate recruitment competition to employer 'Z' in July 2001, his employment could not be regarded as continuous.
3.6 The respondent submitted that the non-continuous nature of the complainants employment accounts for the difference in his pension entitlements, as opposed to any victimisatory reason arising from the complainants involvement in, or in relation to, a claim brought under the Employment Equality Acts.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent victimised the complainant in terms of section 74(2) of the Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of victimisation. It requires the complainant to establish, in the first instance, facts from which victimisation may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of victimisation raised.
4.3 The respondent suggested that, in circumstances where the complainant has not yet retired, the treatment complained of has not actually occurred. I am satisfied that an action taken in the present, but which only crystallises at some future date, may be construed as amounting to adverse treatment for the purposes of considering victimisation under the Acts. Therefore, it is appropriate for the Tribunal to consider these matters under the Acts.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...". In considering evidence submitted by both the complainant and the respondent, a number of points emerge:
- Although the complainant was initially retired from this earlier employment 'X' on the grounds of permanent infirmity, the Employment Appeals Tribunal subsequently determined that the reason for the termination was redundancy.
- The effective date of the end of his former employment with 'X' was 12 June 2000. The complainant is in receipt of a redundancy package from that employment which included receipt of a lump sum and a fortnightly severance payment.
- It was determined in the determination of the Labour Court following a decision by the Equality Tribunal, that the complainant began work with in his current employment with 'Z' on 1 November 2001.
- Some of the complainants former work colleagues who worked with him at 'X' are once again colleagues employed by 'Z', having moved straight from employment 'X' to alternative employment in a number of State organisations before moving to employment 'Z'.
- The recommendation of a Rights Commissioner is that one of the aforementioned colleagues has continuous service in the State sector and therefore has an entitlement to an uncoordinated pension.
- The respondent considered the recommendation of the Rights Commissioner and, following a similar line of reasoning, gave all persons in analogous situations, i.e. those whose service could be considered unbroken, access to the uncoordinated pension. However the respondent did not consider that the complainant was in an analogous situtation.
- The respondent did not respond to the complainants queries related to his pension entitlements as a matter of priority, or on occasion, at all
4.5 The complainant stated that he was directly isolated from a historical entitlement to an uncoordinated pension as a result of taking the earlier proceedings. In response, the respondent stated that the complainant is not in a similar position to his colleagues in that he has a break in service of about sixteen months, received a redundancy lump sum which included ten 'added years' and is in ongoing receipt of a fortnightly severance payment and this accounts for why he is not in receipt of an uncoordinated pension. In addition, the respondent stated that prior to the Rights Commissioners recommendation, all of the former employees of 'X' were treated in a similar fashion to one another, including the complainant. The complainant stated that the sixteen months of broken service had nothing to do with anything and was 'irrelevant'. Having regard to the evidence presented to me by both parties, I prefer the respondents reasoning and am satisfied that there are factors which differentiate the complainant from his colleagues vis-a-vis length and continuity of service. Accordingly, I am satisfied that there are the reasons which account for the difference in the treatment of the complainant in relation to his pension entitlements that are unrelated to the complainant's earlier Equality Act proceedings. Therefore, I do not consider that this treatment amounts to victimisation.
4.6 As regards the complainant's contention that he was restricted in terms of access to employment, the respondent gave evidence that under the current rules covering pension payments, the complainant could work fulltime hours if he wished but would only be paid at a rate equivalent to the amount he receives for the part-time hours he currently works. In addition, the respondent stated that if the complainant wished to work fulltime for a similar salary, he could do so. Considering this issue, I am satisfied that the respondent did not restrict the complainant's access to employment and, therefore, this does not amount to victimisation under the Acts.
4.7 The complainant also contends that he was victimised by 'misinformation and no information' and harassed by 'maladministration'. In support of this the complainant stated that he frequently wrote to the respondent to clarify his pension entitlements and was not responded to immediately or, on occasion, at all. In reply, the respondent stated that pension queries from employees who are not about to retire are not generally treated as a priority. The respondent accepted that it did not respond to some of the complainant's queries in a timely manner but that the complainant was not treated any differently than anyone else was. As the complainant did not submit any evidence that he was treated differently to other colleagues who had not been a party to proceedings under the Acts, I am satisfied that any delay in dealing with the complainants queries does not amount to victimisation.
4.8 As regards the allegation of victimisatory harassment, the Acts define harassment in Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.9 Having considered the evidence given by both parties, I am not satisfied that the complainant has presented evidence of treatment that amounts to 'conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person'. Accordingly, I do not consider that the complainant has established the prima facie existence of harassment and this element of the complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation in accordance with Section 74(2) of the Acts has not been established and this complaint fails.
Conor Stokes
Equality Officer
5 November 2010