EDA1124

Introduction

This is a determination of the Court on preliminary issues raised in the course of the hearing of the appeal. The Court is satisfied that the determination of these issues by way of a preliminary ruling could be determinative of the whole case.

There are some unusual aspects to this case which should be recorded in some detail. The Complainant who was originally represented by a firm of solicitors appeared in person at the hearing, on 10th May, 2011, having apparently lost the services of her solicitors. At the commencement of the hearing the Complainant was invited to apply for an adjournment if she felt that she might obtain representation from an alternative source. The Complainant told the Court that she wished to proceed.

It was clear from the written submission filed by the Respondent that it would be contending that many of the incidents relied upon by the Complainant as constituting victimisation occurred outside the time limit prescribed by s. 77 of the Act and were therefore statute barred. The Court suggested that this point could be considered as a preliminary matter. In that regard the Court suggested that occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make all of them part of a continuum. A further issue arose as to whether occurrences not referred to in the Complainant’s original complaint, and occurrence after the complaint had been presented, could be relied upon.

The Court suggested to the parties that an occurrence after the complaint had been presented could not have been comprehended by the claim and could not be relied upon for the purpose of obtaining redress. It did, however, indicate that evidence in relation to these later incident, which was relevant and probative in relation to the earlier occurrences, could be admitted in respect of those earlier incidents.

The Court proposed to the parties that it should proceed with the preliminary point in relation to the time limit only. It proposed that for that purpose the Complainant should adduce evidence in relation to the occurrences that were within the time limit. It suggested that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.

Counsel for the Respondent agreed with this proposal. The Complainant was asked to consider this proposal and the Court rose for 30 minutes in order to allow her an opportunity of so doing. On resumption of the hearing the Complainant indicated her agreement to proceed in the manner suggested by the Court.

It was submitted by Counsel for the Respondent that the two occurrences about which there was no issue as to admissibility related to the filling of posts in Bandon Macroom School Completion Project (January 2008) and Clonakilty Community College (May 2008). It was proposed that evidence should only be taken in relation to these incidents. Again the Complainant agreed to confine her evidence to these two occurrences for the purpose of the preliminary investigation.

The Complainant gave her evidence in relation to these occurrences and did not call any other witnesses. The Respondent presented its evidence by calling two witnesses. Following short closing statements the Court reserved its decision and the hearing terminated. The Court indicated that it would give its determination in writing on the preliminary question and depending on its determination the hearing might or might not be resumed. The Complainant did not raise any objection to the process adopted nor did she seek to adduce evidence in relation to any other matter.

Later that day the Complainant contacted the Secretary to the Court and expressed concern that she had not properly presented her case. She claimed that the two occurrences which had been identified and in relation to which she had given evidence were not the ‘final acts of victimisation’ and she wished to rely on two later occurrences for the purpose of the preliminary issue. The Complainant then attended personally at the Court and presented the Court Secretary with a written document setting out her position in relation to these matters and asking that the case be reopened. The Court wrote to the Complainant asking her to particularise the additional evidence that she wished to produce including the identity of any witness that she wished to call. The document presented by the Complainant together with the Court's reply thereto was copied to the Respondent. The Solicitor for the Respondent replied objecting to a reopening of the case.

Further correspondence ensued between the Court and the Complainant in relation to this matter. In the course of this correspondence the Court indicated that it would consider reopening the case if the Complainant provided written details of the additional evidence that she wished to adduce in relation to the matters in issue at this stage in the appeal, namely whether she was subjected to an act of victimisation in the six-month period prior to the date on which the within complaints were presented to the Equality Tribunal. It was pointed out to the Complainant that the Court could not accept mere assertion or hearsay. The Complainant was also asked to provide the names of additional witnesses that she wished to proffer together with a statement of the evidence that the proposed witnesses would give.

At all times the Respondent objected to the matter being reopened and claimed that to do so would be fundamentally unfair to the Respondent.

In a document submitted to the Court under cover of a letter dated 5th July, 2011, the Complainant set out details of the additional evidence that she now wished to adduce. It is clear from that document that the Complainant wishes to give further evidence in relation to a matter in respect to which she has already given evidence at the hearing of 10th May, 2011, namely the filling of a post at Bandon / Macroom Completion Project. Furthermore, the Complainant indicated that she wishes to give evidence in relation to events which she claim to be acts of victimisation that occurred after her complaint was made to the Equality Tribunal. No details were provided of the nature of that evidence or its relevance or probative value to the preliminary point now before the Court.

The Complainant also indicated that she wishes to call two witnesses both of whom where present in Court on 10th May but were not called by the complainant to give evidence on that occasion. Both of these witnesses had submitted statements of the evidence they proposed to give. Conscious of the fact that the Complainant is a lay litigant and without prejudice to the Respondents contention that the case could not be reopened the Court reviewed these statements and in the view of the Court they are comprised almost entirely of hearsay, assertion and expressions of opinion. Any evidence given on the basis of these statements could not assist the complainant in advancing her complaint.

Again in ease of the Complainant the Court has also examined the written submissions originally filed on behalf of the Complainant by her former legal advisers. While reference is made therein to the filling of posts and to competitions in which the Complainant participated unsuccessfully in July, 2008, and in September, 2008, the Court cannot identify any admissible evidence of probative value in these submissions which could avail the Complainant in advancing her claim.

In considering whether or not to allow the case to be reopened the Court must balance two conflicting considerations. On the one hand it is anxious to ensure that an unrepresented party is given the maximum latitude to present her case as she wishes. On the other hand the Court must ensure that the Respondent does not suffer an injustice by being required to incur additional inconvenience and expense in having to defend ill defined and apparently tenuous complaints.

Having regard to all the circumstances of the case and in light of the strong objections of the Respondent, the Court decided that there is an insufficient basis upon which the reopening of the case would be justified. Accordingly, what follows is the determination of the Court formulated on the basis of the submissions advanced and the evidence adduced at the hearing held on 10th May, 2011.

Background

The Complainant is a qualified second level teacher. She completed a Higher Diploma in Education in English and C.S.P.E in 2003. She has since obtained a Modular Certificate in Dyslexia in 2004 and a Diploma in Teaching Children with Special Educational Needs.

The Complainant worked in a number of substitute teaching positions in various primary schools in the period 1998 to 2001. Having obtained the Higher Diploma in Education the Complainant obtained temporary employment with the Respondent as a resource teacher during the academic year 2003 – 2004. Her temporary contract with the Respondent was not renewed and this gave rise to a complaint under the Act. This complaint was dealt with by the Equality Tribunal through a process of mediation. The matter was resolved through this process in 2006 on confidential terms.

Since the resolution of that complaint the Complainant has sought several teachings posts with the Respondent but has been unsuccessful on each occasion. The Complainant believes that her failure to obtain further employment with the Respondent is related to the proceedings which she previously brought.

The Complainant referred a complaint to the Equality Tribunal on 11th June, 2008, alleging that she had been victimised within the meaning of s.74(2) of the Act by being denied employment with the Respondent.

Provision of information

By way of a preliminary issue the Complainant told the Court that she had requested certain information from the Respondent which she regarded as essential if she was to adequately present her claim. She said that this information related to the marks issued to the candidates in various competitions in which she had participated. She said that she had also requested interview notes and the marking scheme used in these competitions. The Court was asked to direct the production of documents containing this information.

Counsel for the Respondent told the Court that a statutory questionnaire had been served on the Respondent and such information as was available was furnished. Counsel told the Court that interview notes were not retained but that other information had been furnished to the Complainant’s former Solicitors.

Without reaching any conclusion on whether or not the information had been provided, the Court asked that the Respondent furnish the Complainant with copies of such documents as were available. The Court rose so as to allow these documents to be furnished and for the Respondent to examine the documents.

The Court is satisfied that such documents in the possession of the Respondent as are material to the case were provided to the Complainant either before the hearing or in the course of the recess.

Position of the parties

The essence of the Complainant’s case is that she was unsuccessful in applications for employment which she made in March, 2007, June, 2007, July, 2007, on two occasions in August 2007, September 2007, January, 2008, May 2008 and July 2008. It is the Complainant’s case that the incidents cited were all part of a continuing act of victimisation because of the earlier proceedings which she brought against the Respondent.

By way of preliminary objection, the Respondent contends that the complaints of victimisation, in so far as they relate to events which occurred before 12th December, 2007, are outside the time-limit prescribed by s.77(5) of the Act and are statute barred. The Respondent further contends that the incidents referred to by the Complainant which occurred in May 2008 and July 2008 were not referred to in her complaint to the Equality Tribunal and cannot now be proceeded with. The Respondent accepts that the complaint, in so far as it relates to the decision not to appoint the Complainant to a post in January, 2008, is within the time limit but it contends that there is no evidence to connect that decision which either the earlier decisions impugned or with her previous complaint under the Act.

Without prejudice to its submissions in that regard, the Respondent denies that the Complainant was victimised in the manner alleged or at all. The Respondent contends that on each occasion the posts in issue were filled on the basis of the merit of the candidates as determined by an interview board. The Respondent further contends that those involved in the interview process had no knowledge of the previous proceedings taken by the Complainant.

Consideration of the preliminary objection

The various posts at issue in this case were filled by differently constituted interview boards. If the filling of each of these posts was put in issue in this appeal a considerable number of witnesses would be required to give evidence and a significant number of documents would have to be produced and examined. Conversely, if the appeal could be disposed of by considering only the conduct of those competitions held within the time limit the hearing could be significantly abridged.

The Court suggested to the parties that in these circumstances it might be convenient to deal with the time limit issue as a preliminary matter. Both parties indicated their agreement to this approach

The Court proceeded accordingly.

Application of the Time Limit

Section 77(5)(a) of the Acts provides: -

• (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.

• For the purposes of this section —

  (a) discrimination or victimisation occurs—

  • • (i) if the act constituting it extends over a period, at the end of the period,
    • (ii) [not relevant]
      • (iii) [not relevant]

• “On the following day, 5 October, the planned reconciliation meeting between the two men took place. But it was a dismal failure. Mr Pankhurst was racially abusive to Mr Robertson and refused to shake his hand. The Community Centre immediately set in train procedures to discipline him for that, but he pre-empted that outcome by resigning on the following day. Those events of 5 and 6 October, postdating, as they did, Mr Robertson's application to the employment tribunal, were not and could not be considered as part of his application. If he had wished to have them considered, he could have issued a fresh application asking the tribunal to dispense with service and hear the complaints in both applications at the same time. But he did not do that.
  

• “There was, contrary to Mr Robertson's submissions, no evidence that his employer, the Community Centre, had acquiesced in, or condoned, Mr Pankhurst's behaviour at any time. And, in any event, the Appeal Tribunal was not entitled to take 5 October 1999 incident into account in considering whether there was a continuing act. That behaviour took place, as I have said, after the date of Mr Robertson's application, and could not properly be taken into account for the purpose of determining whether the complaint was out of time. Though it may be that it could have been relevant to the second and quite distinct issue whether it was just and equitable to consider the claim out of time (seeDin (Ghulam) v Carrington Viyella Ltd (Jersey Kapwood Ltd)[1982] IRLR 281 EAT, and alsoPonsford-Jones v Hampshire Education Authority and another(unreported, 25 November 1997)).

• The provision in s.48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
  
  The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.

The gist of the Complainant’s case appears to be that the Respondent had adopted a policy of denying her further employment because of her earlier claim under the Act and that each of the refusals upon which she relies are mere manifestations of that policy. If she is correct in that assertion her claim would fall to be decided by application of s.77(6A) of the Act and the time limit would run only from the time when the policy was discontinued.

It appears to the Court that the pursuance of a policy of victimisation against the Complainant would have involved a conspiracy between various employees of the Respondent and a number of different independent interview boards. It is for the Complainant to produce credible evidence from which the existence of such a conspiracy could be inferred. Neither in her oral evidence nor in her written submissions to the Court has the Complainant offered any evidence from which the Court could draw such an inference. In that regard the Court could not accept that the mere coincidence of her having brought a claim under the Act, and her subsequent failure to obtain employment through open competition, is a sufficient basis from which to draw an inference of victimisation. Accordingly, the Court cannot accept that the acts or omissions complained of can be regarded as a continuum for the purpose of s.77(6A)

The Court then considered if all of the incidents relied upon could be regarded as part of a continuing act of victimisation for the purpose of s.77(5) of the Act. In that regard, applying the principles identified above to the instant case, it appears that the admissibility of the claim in so far as it relates to alleged acts of victimisation in the period before 12th December, 2007, depends upon the validity of the claims of victimisation which allegedly occurred in the period after that date. Their admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

In relation to the occurrences upon which the Complainant seeks to rely which occurred after her claim was presented to the Equality Tribunal on 11th June 2008, the positions is substantially different. The decision inCounty Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, is clear authority for the proposition that a claim under the Act may be amended so as to rely on additional acts or omissions which occurred before the claim was initiated provided that the nature of the claim remains the same. In this case the Complainant is seeking to rely on incidents which occurred after her claim was presented for the purpose of obtaining redress. The decision inRobertson v Bexley Community Centreindicates that this is not permissible.

The Court did, however, indicate in the course of the hearing that it would hear any evidence which the Complainant wished to tender, in relation to later incidents, which had probative value in relation to the incidents which are encompassed by her claim.

The admissibility of Complainant’s claim of victimisation in the filling of posts in the period before 12th December, 2007, is dependent upon there having been an act of victimisation in the filling of posts after that date and before her claim was presented. In these circumstances the Court put it to the parties that it should proceed to hear evidence in relation to the Complainant’s claim in so far as it relates to the filling of posts in January 2008 and May 2008; that it should reserve its decision on those claims and in the event that it upholds those claims it would reconvene the hearing so as to deal with the other aspects of the claim. On this proposal if the Complainant did not succeed in relation to these claims, those outside the time limit would be statute barred.

Following a recess to allow the parties to consider this proposal the Court was informed by the Complainant and by Counsel for the Respondent that they were agreeable to proceed in the manner proposed by the Court.

The Evidence

The Complainant gave evidence in relation to both incidents. In relation to the incident in May 2008 the Complainant told the Court that she checked the Respondent’s website and found application forms in relation to a number of teaching posts including one in respect to a resource teacher. The Complainant downloaded the form and sent an e-mail to the school in question asking when the post would be advertised and what the closing date was to be.

The Complainant received a reply to the effect that there was in fact no vacancy for a resource teacher and the reference to this post was removed from the website. The Complainant said that other posts referred to on the website were subsequently advertised and filled. The Complainant told the Court that she believed that the Respondent had decided not to fill the resource teacher post because it was the one for which she was most qualified.

In relation to the incident in January 2008, the Complainant told the Court that she applied for a position with the Bandon – Macroom School Completion Programme. She was told that she was unsuccessful and that her nominated referees had not replied to requests from the Respondent for references. The Complainant said that she believed that this failure was a major reason for the rejection of her application. The Complainant said that she had reason to believe that the Respondent had never written to her nominated referees requesting a reference. She said that she was relying on this failure as constituting an act of victimisation.

In relation to the May incident evidence was given on behalf of the Respondent by Ms Anne Dunne who is Principal of Clonakilty Community College. This witness told the Court that at the time in question the Collect was carrying work on its website and certain tests were being performed. As part of this process forms were placed on the website for the purpose of testing if they could be downloaded. The witness told the Court that there never was a vacancy for a resource teacher and it is not the practice of the College to employ teachers solely in that role.

Ms Dunne told the Court that she sent an e-mail to the Complainant on 15th May 2008 pointing out that the website was under reconstruction. She also pointed out that there may be vacancies later in the year and that these would be advertised. The witness said that some posts were subsequently advertised but since no vacancy for a resource teacher existed such a post was not advertised. The witness told the Court that she had no knowledge of the Complainant having previously taken proceedings against the Respondent.

Mr Kevin Earlie, who was Local Coordinator- Bandon – Macroom Schools Completion Programme, gave evidence in relation to the posting of a letter to persons nominated as referees by the Complainant. This witness referred the Court to copies of two letters addressed to the nominated referees, dated 20th December 2007, seeking references for the Complainant. The witness told the Court that he typed the letters and placed them in the post on the day they were written. No reply was received to either letter. It was Mr Earlie’s evidence that the failure of the referees to respond was not a factor which influenced the decision not to appoint the Complainant to the post under consideration. He said that it was his practice only to follow up requests for references in the case of an applicant whom the Respondent proposes to employ.

Conclusion of the Court

On the evidence adduced there is no basis whatsoever upon which the Court could conclude that the either of the incidents relied upon by the Complainant within the time limit were acts of victimisation. Accordingly, the Court must conclude that no acts capable of constituting victimisation occurred in the period of six-months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly, even if the Complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limit prescribed by s.77(5) and are statute barred.

For all of the reasons the set out in this Determination the within appeal cannot succeed and the decision of the Equality Tribunal is affirmed.