EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-030
PARTIES
John G. Cahill
and
OSG Chartered Loss Adjusters
(represented by Mason Hayes & Curran Solicitors)
File Reference: EE/2008/089
Date of Issue: 18th February, 2011
Keywords: Employment Equality Acts, 1998 to 2008 - Section 8 - Access to Employment - Section 6(2)(a) - Gender - Section 6(2)(f) - Age - Jurisdictional Issue
1. Dispute
1.1 This case concerns a complaint by the complainant, Mr. John G. Cahill, that he was subjected to discrimination by the respondent, OSG Chartered Loss Adjusters, on the grounds of his gender and age contrary to sections 6(2)(a) and 6(2)(f) and section 8 of the Employment Equality Acts, 1998 to 2008 in terms of access to employment.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 11th February, 2008. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 11th March, 2010 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 31st October, 2008 and from the respondent on 2nd March, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 27th October, 2010. The final correspondence between the parties and the Tribunal in relation to the issue of jurisdiction concluded on 15th November, 2010.
3. Jurisdictional Issue
3.1 The respondent raised an issue of jurisdiction regarding the scope of the alleged claim of discriminatory treatment which has been referred to the Tribunal by the complainant in the present case. The parties were allowed to make oral submissions at the oral hearing and were also afforded the opportunity to make further written submissions post hearing regarding this issue. The submissions of both parties in relation to this issue of jurisdiction can be summarised as follows:
Summary of the respondent's case in relation to the jurisdictional issue
3.2 The respondent submitted that the scope of the investigation in the present case should be confined strictly to the complainant's claim of discrimination in relation to the advertised position of Liability Claims Handler. The respondent submitted that the Equality Tribunal does not have any jurisdiction to allow the complainant's age discrimination claim to be extended to include circumstances surrounding interview for a second role of Administrative Assistant. The respondent's submissions in relation to this issue of jurisdiction can be summarised as follows:
The Complaint Referral Form (EE.1) and the complainant's written submissions which were received by the Tribunal on 11 February, 2008 and 31 October, 2008 respectively, clearly set out the parameters of the claim which exclusively refer to allegations of discriminatory treatment in relation to the role of Liability Claims Handler.
The respondent submitted that, in its written submissions to the Tribunal dated 2 March, 2009, it identified what transpired after the closing date for CV's had passed in relation to the role of Liability Claims Handler, namely that the decision was taken to interview for a separate role of Administrative Assistant. The respondent submitted that this information was volunteered to put into context its replies in relation to the claim set out in the Form EE.2.
The respondent submitted that it was clearly stated in its written submission dated 2 March, 2009 that it was of the view that the process regarding the role of Administrative Assistant did not form part of the complainant's claim. The respondent submitted that it limited its submissions accordingly and that the Tribunal's scope was limited exclusively to the role of Liability Claims Handler.
The respondent submitted that from March, 2009 until the date of hearing on 27 October, 2010 that it heard nothing from either the complainant or the Equality Tribunal regarding the position that it had adopted in this regard and that it was entitled to prepare for the hearing of the complaint on the basis of its understanding of the complainant's claim as set out in its written submissions dated 2 March, 2009.
The respondent submitted that it would be entirely prejudicial for the Equality Tribunal to indicate some 18 months after it had made its written submissions that it should, in fact, meet a claim that was not made by the complainant.
The respondent submitted that too much time has now elapsed for it to be informed for the first time that it should be required to meet, what is in essence, a second claim of discrimination and one which the complainant himself stated during the course of preliminary submissions was only being raised by him for the first time on 27 October, 2010.
The respondent submitted that the position might be different if, during the 18 month timeframe (i.e. from the date he received the respondent's submission until the hearing date), the complainant identified he was previously unaware of any separate possible claim of discrimination prior to receipt of the respondent's submissions in March, 2009, but that he then believed that the circumstances surrounding the second role also gave rise to a claim for discrimination on his part.
The respondent submitted that the complainant is statute barred from raising any claim of discrimination in relation to the second role of Administrative Assistant, which would need to have been brought within six months of the date of the alleged discrimination, or from the date of its most recent occurrence. The respondent submitted this was from the date of the interviews on 9 October, 2007 or without prejudice to the foregoing, six months from the date of its written submissions in March, 2009.
The respondent submitted that the strict statutory time limits under section 77(5) of the Employment Equality Acts must apply in the present case and that simply because discrimination in respect of the Administrative Assistant role might be claimed on the age ground, which corresponds with the complainant's stated claim of age discrimination in relation to the Liability Claims Handler role, does not circumvent these statutory time limits.
The respondent submitted that the facts in the present case are entirely distinguishable from that of the High Court case of County Louth VEC -v- Equality Tribunal.
Summary of the complainant's case in relation to the jurisdictional issue
3.3 The complainant submitted that the Tribunal has jurisdiction to investigate the further act of alleged discriminatory treatment on the grounds of his age in relation to the manner in which the recruitment process was carried out by the respondent for the role of Administrative Assistant (in addition to the allegations of discriminatory treatment in relation to the advertised role of Liability Claims Handler). The complainant's submissions in relation to this issue of jurisdiction can be summarised as follows:
The complainant submitted that interviews were held for the position of Liability Claims Handler on 9 October, 2007 and according to the respondent only one candidate, Mr. A, was being actively considered. A further position had arisen within the respondent prior to 9 October, 2007 i.e. that of Administrative Assistant and the respondent decided to interview for this position the candidates who applied for the role of Liability Claims Handler, although no notice was given to the prospective candidates that they were in fact attending an interview for a different position to that of the advertised position.
The complainant submitted that he was not called for interview for the Administrative Assistant position on the basis that "he was significantly over-qualified for such a lower grade position". The complainant referred to the case of Rescon -v- Michael Scanlon where the Labour Court found that when the complainant was informed he was "too experienced" for the job an inference of discriminatory treatment was created and that it was for the respondent to prove the contrary.
The complainant stated that the respondent now wishes to limit the scope of the complaint to that of the original claims as set out on the Complaint Referral Form (EE.1). However, he submitted that it was established by the High Court in the County Louth VEC case that the EE.1 Form was only intended to set out in broad outline the general nature of the complaint and that it is permissible to amend the claim as set out in the Form EE.1 so long as the general nature of the complaint remains the same.
The complainant submitted that as the interviews for the Administrative Assistant position took place on the same day as the interview for Liability Claims Handlers, these interviews were all part of the one transaction, given also that the same advertisement was used in attracting candidates to apply for the position in administration.
The complainant submitted that the nature of the claim remained the same i.e. that of gender and age discrimination as outlined in the Form EE.1 and therefore, in reality the issue of time limits within the meaning of section 77(5) of the Employment Equality Acts does not arise.
4. Conclusions of the Equality Officer in relation to the jurisdictional issue
4.1 The respondent has submitted that the scope of the investigation in the present case should be confined strictly to the complainant's claim of discrimination in relation to the advertised position of Liability Claims Handler. The respondent contends that the Equality Tribunal does not have any jurisdiction to allow the complainant's discrimination claim to be extended to include circumstances surrounding interview for a second role of Administrative Assistant. The respondent has submitted that the Complaint Referral Form (EE.1) and the complainant's written submissions clearly set out the parameters of the claim which related specifically to a claim of discrimination in respect of the advertised position of Liability Claims Handler. The respondent submitted that the initial claim did not make any reference to alleged discrimination in relation to the interview process for the role of Administrative Assistant.
4.2 In considering this issue, I note the respondent's evidence that a separate vacancy arose for the position of Administrative Assistant at around the same period of time that it was receiving applications for the position of Liability Claims Handler. The respondent's evidence was that instead of going through the process of advertising separately for this role, it decided to take the opportunity to consider the applications received for the advertised role (i.e. Liability Claims Handler) to interview for the administrative role. The respondent gave evidence that interviews for both the advertised position of Liability Claims Handler and the position of Administrative Assistant took place on 9 October, 2007 and that a total of five candidates were called for interview on this date (i.e. two candidates in relation to the Liability Claims Handler position and three candidates for the Administrative Assistant position).
4.3 The respondent stated that the three candidates who were called for interview for the Administrative Assistant position were only informed that they were being considered for this position rather than the Liability Claims Handler position on the date of the interview. I am of the view that it is therefore reasonable to conclude that these candidates would have attended the interview with the expectation that they were being interviewed for the position of Liability Claims Handler. The respondent did not contact any of the 19 applicants (for the position of Liability Claims Handler) prior to the interviews on 9 October, 2007, either to inform them that a separate position of Administrative Assistant had become available, or to seek clarification if they would also be interested in being considered for this position. It is clear that the respondent decided to conduct a simultaneous selection process for both positions from the same pool of applicants. In the circumstances, I am satisfied that the selection process which the respondent carried out for both of the positions was therefore inextricably linked.
4.4 Having regard to the evidence adduced, I am satisfied the first occasion that the complainant actually became aware that the respondent had also carried out interviews for the position of Administrative Assistant was when he received a copy of the respondent's written submission (which was forwarded to him by the Tribunal on 3 March, 2009). I am therefore satisfied that it would not have been possible for the complainant to have included a claim of discriminatory treatment in relation to the position of Administrative Assistant in either his Complaint Referral Form or his subsequent written submission as both of these documents were furnished to the Tribunal before he became aware that a selection process had been carried out for the Administrative Assistant position. I note that the complainant sought information from the respondent prior to the referral of the present complaint (by way of a letters on 26 October, 2007 and 15 November, 2007 and through the Form EE.2 (Right to Information) on 8 January, 2008) regarding the reasons and circumstances surrounding his failure to be selected for interview for the position of Liability Claims Handler. However, the respondent failed to offer any explanation to the complainant in this regard at that juncture and it did not disclose any details to him about the simultaneous selection process that had been carried out in relation to the position of Administrative Assistant.
4.5 In the High Court case of County Louth VEC -v- The Equality Tribunal and Pearse Brannigan McGovern J. held that "I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be possible to amend a claim as set out in a form such the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same". In the present case, the complainant referred a complaint to the Tribunal in which he claimed discriminatory treatment on the grounds of age and gender in terms of access to employment with the respondent i.e. he set out in broad outline the general nature of the alleged discrimination. The complainant was not in a position to set out particulars in relation to the Administrative Assistant position as the information regarding this position had not been brought to his attention by the respondent at that juncture. As I have already stated, it is clear that the respondent sought to conduct a simultaneous selection process for both positions from the same pool of applicants. Having regard to the judgement in the County Louth VEC case, I am satisfied that the complainant is not precluded from amending the particulars of the claim so long as the general nature of the complaint remains the same. I therefore cannot accept the respondent's contention that the scope of the complaint in the present case should be limited to the claims as set out on his Complaint Referral Form or written submission.
4.6 Also, I do not accept the respondent's argument that the claim in relation to the Administrative Assistant position does not comply with the provisions contained within section 77 of the Employment Equality Acts regarding the time limits for the referral of complaints to the Tribunal. I am satisfied that the complaint which was referred to the Tribunal by the complainant sets out the general nature of the claim of discriminatory treatment in terms of access to employment. Accordingly, I find that this complaint was referred to the Tribunal within the six month time limit referred to in the Acts.
4.7 Neither can I accept the respondent's argument that it would be significantly prejudiced if the Tribunal were to decide at this juncture that the present claim should also include the alleged discriminatory treatment in relation to the Administrative Assistant position. Firstly, I note that the respondent has addressed this issue in its written submissions which were forwarded to the Tribunal on 2 March, 2009 and it has also outlined its defence in this submission against any alleged discrimination in relation to the manner in which the selection process was carried out in relation to Administrative Assistant position.
4.8 Secondly, it should also be noted that I indicated to the parties at the oral hearing that I would afford them the opportunity to forward supplementary written submissions regarding the alleged discrimination in relation to the Administrative Assistant position in the event that I were to find that the Tribunal did have jurisdiction to investigate this matter. I also informed the parties that I would reconvene a further oral hearing, if necessary, to afford both parties the opportunity to adduce evidence in relation to this matter. In the County Louth VEC case the High Court held that "Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice". In the circumstances, I am satisfied that the procedures which I have adopted in relation to this issue are reasonable in the circumstances of the present case, and accordingly, are in compliance with the principles of natural and constitutional justice.
4.9 Having regard to the foregoing, I find that the Tribunal does have jurisdiction to investigate the alleged discriminatory treatment on the grounds of age and gender in relation to the position Administrative Assistant.
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Enda Murphy
Equality Officer
18th February, 2010