EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-233
PARTIES
Mr James O'Farrell
AND
Department of Finance
(Represented by Cliona Kimber, B.L. instructed by Chief State Solicitors Office)
File reference: EE/2009/298
Date of issue: 12 December 2011
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Gender - Promotion - Time Limits
1. DISPUTE
1.1 This dispute concerns a claim by Mr James O'Farrell that he was discriminated against by the Department of Finance on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts in relation to promotion in terms of section 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 6 May 2009 under the Employment Equality Acts. On 29 September 2011, in accordance with his 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(1) of the Acts and as part of my investigation I proceeded to a hearing on 30 November 2011 and final information was received on 2 December 2011.
2. PRELIMINARY ISSUE - DATE OF DISCRIMINATION
2.1 The complainant alleges that he was discriminated against by the respondent in relation to promotion. His allegations centre on the appointment of a colleague (Ms A) to a new position which attracted an allowance in July 2001 and her subsequent up-grading in the same position to Director level in November 2006. The complainant made his claim on 6 May 2009.
2.2 Section 77 (5) of the Acts which states:
(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.
As this claim appeared to be out of time in accordance with section 77 (5) of the Acts I sought further submissions both parties.
2.3 The complainant contends that he was not aware of Ms A's upgrading in November 2006. The 'alarm bells' were raised for him in October 2008 and he made a request under the Freedom of Information (FOI) Acts. He submits that Ms A's promotion was only confirmed when he received the outcome of his FOI request in January 2009. He contends that this was the date of discrimination as far as he was concerned and he submitted his claim within six months of this date.
2.4 The respondent confirmed that the complainant was clearly aware that Ms A was appointed to a post with an allowance in July 2001, from CSD Notice 27/01. The allowance was 90% of the Director Level allowance. Ms A was not promoted in 2006 but her post was re-assessed and on the basis of her duties Ms A was given a full Director level allowance. The respondent contends that the complainant would have been fully aware of Ms A's position all the way along. They specifically referred to Office Notice 7/2006 of 14 July 2006 which indicates that Ms A is a Director, and Office Notice 3/07 of November 2007, CSD Notice 2/2008 of 9 January 2008 and CSD Notice 20/2008 of 22 October 2008 all of which directly refer to Ms A as a Director. Ms A was re-assigned to a different post in January 2008 and the Notices of January 2008 and October 2008 both refer to this new post.
2.5 Leaving the other Notices aside it is clear that there is no difference in relation to the information about Ms A in the two office notices issued in January and October 2008. It is on the basis of the Notice issued in October 2008 that 'alarm bells' were raised for the complainant. I can find no reason why these 'alarm bells' were not raised in January 2008.
2.6 Without investigating whether the date of discrimination may have occurred in 2001, 2006 or at some point thereafter I can conclude that the complainant was clearly aware of Ms A's position in January 2008 and this is more than one year before he made his claim. I therefore find this claim to be out of time.
3. 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
12 December 2011