EDA116

Background

At all times material to this claim the Complainant was employed by the Respondent as a Civil Servant attached to the Diplomatic Service. She brought proceedings against the Respondent alleging discrimination on grounds of her sexual orientation. She relied on a number of incidents and occurrences extending over a prolonged period relating to her posting within the Diplomatic Service and the assessment of her performance by the Respondent. She claimed that these incidents and occurrences amounted to discrimination within the meaning of s. 6(2)(d) of the Employment Equality Acts 1998-2008. The Complainant referred a complaint under the Acts to the Equality Tribunal on 5th April 2007.

The complaint was investigated by an Equality Officer of the Equality Tribunal on 12th January 2010. The Respondent was not represented at the hearing. The Court was told that the Office of the Chief State Solicitor, which acted for the Respondent, was unaware of the date fixed for the hearing until contacted by the Equality Officer on the morning of the hearing. The hearing proceeded in the absence of the Respondent. The Equality Officer found that the complaint of discrimination was not made out. However, he found that the Complainant had been victimised by the Respondent. He awarded her compensation in the amount of €20,000.

The Complainant appealed to this Court and the Respondent cross-appealed.

Preliminary issue

Having received the written submissions of the parties the Court held a case management conference to consider procedural maters arising in the case. At this conference the Respondent sought directions from the Court in respect to two preliminary issues arising in the case. Firstly, the Respondent sought a ruling from the Court on whether a claim of victimisation was properly before it. Here the Respondent contended that the Complainant had never complained of victimisation, or had done so only at the hearing before the Equality Tribunal, at which point any such complaint was out of time. Secondly, the Respondent contended that the Complainant was relying on events which occurred over a significant timeframe, many of which were outside the time limit prescribed by s 77(5) of the Acts.

Having considered the submissions of the parties on these issues the Court reserved its decision on the preliminary issues and subsequently issued a preliminary ruling in the following terms: -

• Preliminary Ruling

  
  This case proceeded before the Equality Tribunal in the absence of the Respondent. The circumstances in which that arose are fully recited in the decision of the Equality Officer. In the course of this appeal the Respondent has raised serious issues concerning the procedures adopted by the Equality Tribunal in the investigation of this complaint and it contends that the requirements of natural and constitutional justice were not observed in the conduct of the investigation.
  
  The role of this Court is to determine an appeal by way of ade novohearing of the case. This Court does not exercise any supervisory role over the conduct of cases by the Equality Tribunal. The Tribunal is an autonomous statutory body with power to establish its own procedures. If a party is aggrieved at any aspect of those procedures they have a remedy through other proceedings. However, this Court has no jurisdiction to entertain complaints concerning the way in which the Equality Tribunal fulfils its statutory mandate.
  
  Accordingly this Court will deal with the case on its merits by way of a full rehearing on all questions of fact and law.
  
  At a case management meeting with the parties held to identify the range of issues in dispute the Court was asked to make a preliminary ruling on two aspects of this case. They relate to the timeframe over which the `Claimant can rely on alleged acts of discrimination and whether or not the Court can consider a claim of victimisation which was made during the course of the Equality Officer's investigation.
  
  The Court is satisfied that significant savings in time and expense can be made by disposing of these matters in advance of the substantive hearing. Accordingly the Court agreed to give its decision on these matters.
  

  Scope of the Claim

  In essence the matter relates to whether or not the Complainant can raise issues which occurred more than six months before the within claim was submitted to the Equality Tribunal.
  
  Section 77(5) of the Acts provides: -
  

  • (5) Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
  
  The effect of this provision is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Equality Tribunal unless the discrimination in issue is part of a continuum of events. That is not what is alleged in the instant case. The claim was submitted on 5th April 2007. Consequently occurrences before 6th October 2006 are not cognisable for the purpose of the Complainant’s claim for redress. In that regard it is noted that in the course of the case management meeting the Complainant accepted that she would only be relying on alleged acts of discrimination which occurred within that timeframe in advancing her claim.
  

  Claim of Victimisation

  The factual background against which this matter arose is as follows: -
  
  The Complainant presented a claim alleging discrimination on the ground of her sexual orientation. The claim was grounded on a number of specific events which, it was alleged, amounted to acts of discrimination. Subsequently, by letter dated 26th September 2008, the Complainant wrote to the Equality Tribunal and alleged,inter alia, that the Respondent had underscored her in a performance appraisal and that it had used an extension of time granted to it by the Equality `Tribunal to facilitate it in so doing. This complaint related to an appraisal undertaken in June 2008.
  
  The Complainant did not, at that stage, seek to characterise the matter about which she complained as victimisation. Neither did she indicate an intention to make an additional complaint or that she that she wished to amend her original complaint. At the hearing before the Equality Tribunal, on 12th January 2010, the Complainant, for the first time, claimed that the underscoring, about which she complained in her letter of 26th September 2008 amounted to victimisation. The Equality Officer proceeded to deal with the complaint. The Equality Officer found that the claim of victimisation was well founded. He awarded the Complainant compensation in the amount of €20,000.
  

  Conclusions of the Court as to the claim of Victimisation

  It is clear that the act alleged to constitute victimisation occurred some 14 months after the Complainant made her original complaint to the Equality Tribunal. Consequently it could not have been comprehended by that complaint. In these circumstances the question arises as to whether the claim of victimisation was properly made by way of an amendment to the original complaint or whether it was properly admissible as a new complaint.
  
  The circumstances in which a complainant can subsequently amend or augment an original claim was considered by the High Court inCounty Louth Vocational Education Committee v The Equality Tribunal[2009] IEHC 370. Here, during the course of a hearing before an Equality Officer, a Complainant sought to rely on occurrences, which he claimed were acts of discrimination, that had not been referred to in his original claim. When the Equality Officer refused to rule out this evidence as inadmissible the Respondent VEC brought Judicial Review proceedings in the High Court challenging her decision. In a Judgment delivered on 24th July 2009 McGovern J rejected the VEC’s challenge to the decision of the Equality Officer to consider the new points raised by the Complainant. In the course of his Judgment Mc Govern J said the following: -
  

  • 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 permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say, that complaints going back over a very lengthy period would have to be considered, as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
  
  In that case the Complainant was seeking to rely on events which occurred many years before he made his original complaint whereas the Complainant in this case is seeking to rely on an occurrence which post-dated her complaint. Nonetheless the general principles encapsulated in the passage just quoted are apposite in the instant case.
  
  The fundamental principle adumbrated by the Judge is that, by analogy with the practice in civil proceedings in the ordinary Courts, a complainant should be permitted to amend his or her original claim where the justice of the case requires it. McGovern J did, however, add an important qualification to this general principle in pointing out that an amendment can only be made where the general nature of the complaint remains the same.
  
  In the instant case the complaint made by the Complainant was one of discrimination on grounds of her sexual orientation. The new complaint was of victimisation for having brought her original complaint. That, in the Court's view, is an entirely different complaint than that which had been made originally. Furthermore, if the complaint was first made in the course of the hearing on 12th January 2010, and it related to events which occurred in or about September 2008, it was, at that point, statute-barred by operation of s.77(5) of the Act. The decision of the Supreme Court inBank of Ireland v Connell[1941] IR 1 is authority for the proposition that an amendment to pleadings cannot be allowed if its effect would be to permit a party to pursue a cause of action which would otherwise be excluded by the Statute of Limitations.
  
  The question then turns on whether the complaint of victimisation was made in the course of the hearing on 12 January 2010, in which case it was clearly out of time, or whether it was made in the letter which the Complainant sent to the Equality Tribunal dated 26th September 2008, in which case it was within time.
  

  Letter of 26th September 2008

  The Court has carefully examined the content of this letter. It was sent by the Complainant to Mr Barry Quinn of the Equality Tribunal in response to a letter which he had sent to the Complainant dated 19th September 2008 informing her that the Respondent had been granted an extension of time in which to file its submissions. In this letter the Complainant raised issues,inter alia,concerning the conduct of her PMDS assessment which was undertaken in or about the previous June. The Complainant did not expressly allege victimisation on the part of the Respondent nor did she indicate in express terms an intention to amend or augment her original claim so as to contain a complaint of victimisation.
  
  Nevertheless, although not formally referred in those terms, the Court is satisfied that the facts alleged in this letter are capable of being understood as an allegation of victimisation within the meaning of s.74(2) of the Acts. The Equality Tribunal copied the letter of 26th September 2008 to the Respondent on 30th September 2008. Consequently the Respondent was on notice of the allegations contained therein and could have sought clarification from the Complainant as to the import of her letter and the purpose for which it had been sent to the Equality Tribunal.
  
  InCounty Louth Vocational Education Committee v The Equality TribunalMcGovern J accepted that the Equality Tribunal was entitled to adopt relatively informal procedures in the conduct of its investigations provided that they are consistent with the requirements of natural justice. It is clear that the Equality Officer accepted that the letter of 26th September 2008 contained a complaint of victimisation which he was entitled to investigate. Moreover, it is clear that the Respondent now fully understands the gravamen of the complaint of victimisation and in the context of ade novohearing of the matter any prejudice which the Respondent may have suffered at first instance is now cured.
  
  Having regard to all the circumstances of this case the Court is prepared to accept that the claim of victimisation is properly before it and can be investigated de novo.
  

  Preliminary Ruling

  For the reasons set out above the Court is satisfied that (a) the Complainant can only seek redress in respect of acts of discrimination which occurred on or after 6th October 2006 and (b) the Complainant can maintain her claim of victimisation.
  

The Court conducted ade novohearing into the substantive issues arising in the case on 25th, 26th and 27th January 2011 and on 28th February 2011. The Court received extensive oral evidence from the Complainant and from seven witnesses tendered by the Respondent over three days. While the Court has taken all of the evidence adduced into account it is only necessary to set out herein the import of the evidence which is germane to the Court’s Determination.

Position of the parties

The Complainant

The Discrimination Claim
The Complainant contends that she was discriminated against in the allocation of upgraded posts from Assistant Principal (standard scale) to Assistant Principal (higher scale), in or about July 2006. The Complainant told the Court in evidence that she is gay and that this was well known within the Respondent Department. She joined the Respondent Department in January 1976 as a Third Secretary. She was promoted to First Secretary in 1990.

The Complainant gave evidence concerning a number of difficulties which she encountered over the course of her employment with the Respondent both in relation to obtaining a suitable posting abroad and in seeking promotion. This evidence was tendered by way of background to the events forming the subject-matter of the within complaint. It was the Complainant’s contention that her difficulties were related to her sexual orientation. In support of that contention she relied on a statement made to her by a former Superior Officer to that effect.

The Complainant told the Court that a number of upgraded posts became available in 2006 which were to be filled on the basis of seniority subject to suitability. The Complainant applied for one of these positions and her suitability was assessed by her Superior Officer, Mr Conor O’Riordan. She told the Court that Mr O’Riordan gave her sufficiently high ratings so as to qualify as suitable for the position for which she had applied. Her Assistant Secretary, Mr Brendan Rogers, endorsed these ratings. It is the Complainant’s case that had those ratings been accepted she would have been upgraded.

In accordance with normal procedure the applications for upgrading were referred to the Management Advisory Committee within the Respondent Department. The Management Advisory Committee decided to seek a further opinion on the Complainant’s suitability and for that purpose contacted a Mr Frank Sheridan who had been her supervisor some three years earlier. Mr Sheridan did not recommend the Complainant as being suitable for appointment to an upgraded post. In consequence she was not appointed to the post. It is the Complainant’s case that she was treated differently to all other candidates for upgrading in not having her initial assessment accepted. The Complainant told the Court that some time later the Respondent accepted Mr O’Riordan’s assessment of her performance when it decided to assign her to a prestigious posting with the UN in New York. She contends that these facts, combined with the other difficulties about which she gave evidence, should give rise to an inference of unlawful discrimination.

Victimisation Claim
The Complainant contends that she was posted to New York on the basis that her continuance in that post would be dependent on a satisfactory performance assessment after one year. Her posting took effect in July 2007. She had lodged the within complaint in April 2007. In or about August 2008 the Complainant filed a statement with the Equality Tribunal in furtherance of her claim.

Her first performance review was undertaken in June 2008. According to the Complainant her then supervisor, Mr Kevin Dowling, awarded her a rating that corresponded to a rating of 3, indicating that she had met the requirement of the job. That assessment was returned to the Respondent’s HR department in Dublin. The Complainant understood that she would be confirmed in her posting on foot of this assessment. She then received a furniture allowance of €10,000 which is payable to Officers who are posted abroad for a period in excess of 18 months.

In later transpired that the assessment has been undertaken using the wrong form. Mr Dowling was asked to undertake the assessment again using the correct form. He did so in September 2008. In this assessment the Complainant received a rating of 2. It is her case that the alteration in her grading was in consequence of her having lodged the statement with the Equality Tribunal in support of her equality claim.

The Respondent

Discrimination Claim
A number of witnesses on behalf of the Respondent gave evidence to the effect that the difficulties relied upon by the Complainant as background in relation to her claim of discrimination arose because of performance issues over the course of her employment. In relation to the particular matter complained of as constituting discrimination- the awarding of upgraded posts - Mr Frank Sheridan and Mr Adrian O’Neill gave evidence.

Mr Sheridan is currently the Ambassador to Brazil. He first worked with the Complainant in 1978. He later worked with her between 2000 and 2004 when he was her immediate supervisor. Mr Sheridan gave evidence concerning a number of difficulties which he had encountered with the Complainant in relation to her performance. In relation to the circumstances in which he came to offer an opinion on the Complainant’s suitability for upgrading, he gave evidence of having received a phone call advising him that he would be contacted in connection with her application. He was subsequently contacted by a Mr Rory Montgomery who asked his opinion on the suitability of the Complainant and another Officer for upgrading. The witness said that he had no hesitation in recommending the other Officer but could not recommend the Complainant based on his experience while working with her.

Mr Sheridan told the Court that he was aware of the Complainant’s sexual orientation but that this was not a factor which influenced him in any was in relation to his assessment of her suitability for the post in issue.

Mr Adrian O’Neill gave evidence. At the time material to this case this witness was Head of Corporate Services with the Respondent, which includes responsibility for the personnel function. Mr. O'Neill is currently Secretary General to the President. He said that in 2006 a number of upgrades from AP to AP1 became available. The system in place for the filling of these posts was that a threshold of suitability was established and those who met that threshold were placed on a panel in which vacancies were filled in order of seniority. The suitability of candidates was assessed by their managers.

The Management Advisory Committee (MAC) within the Department considered the applications and recommendations for the filling of posts were made by this committee to the Director General. Mr O’Neill was responsible for organising the process of selection through the MAC. The witness referred to the assessment form completed in respect of the Complainant by Mr O’Riordan. He said that in his opinion the comments were uncertain and Mr O’Riordan’s comments posed questions as to whether the ratings shown were reliable. He said that the comments by Mr Rogers were also somewhat uncertain.

According to Mr O’Neill the system was that each member of the MAC would take the lead role in dealing with different applications. Mr Montgomery was responsible for dealing with the Complainant’s application. Mr Montgomery raised questions concerning the reliability of the assessment of the Complainant by Mr O’Riordan and it was agreed to contact Mr Sheridan for an opinion on her suitability. Mr Sheridan was duly contacted and based on his reported comments on the matter it was decided not to award the Complainant one of the upgrades available. It was, however, decided that her performance be kept under review.

Victimisation Claim
In relation to the claim of victimisation, evidence was given by Mr Kevin Dowling concerning the assessment of the Complainant’s performance in June 2008 and again in September 2008. The witness told the Court that he undertook the assessment originally using an old Form which by that time had become obsolete. The Form which he used required a commentary on the Officers performance and then required a rating by placing an "x" along a straight line. One extremity of this line indicated that the Officer “does not meet the requirements of the job/role and needs significant development”. The other extremity indicates that the Officer is “exceeding the requirements of the job/role”. The centre point signifies that the Officer “meets the requirements for the job/role”. Mr Dowling rated the Complainant by placing an "x" on the centre point of the line.

The witness returned this form to the Department in Dublin on 9th June 2008. He later received a phone call from Mr O’Neill advising him that he had used the wrong Form and that the assessment would have to be undertaken using the correct Form. Mr Dowling told the Court that apart from being told to use the correct Form he did not receive any instruction or advice in relation to his conduct of the assessment.

The witness said that the new Form required a numerical grading in place of the linear grading used on the old format. It was Mr Dowling’s evidence that he completed the new Form in consultation with the Complainant and he believed that the narrative which he used in the second assessment was not materially different to that which he used in the first Form. However, he awarded the Complainant a rating of 2, which he considered to be in line with the assessment which was contained in the narrative on both forms.

It was put to the witness that the rating given on the original form equated to a 3 on the new form. The witness said that the rating system was completely different and he was satisfied that his assessment of the Complainant, which was the same on both occasions, warranted a rating of 2.

The Complainant would not accept the assessment and in consequence the matter was referred to the Ambassador for decision.

Mr Dowling told the Court that at the time he completed the assessment of the Complainant he was not aware that she had taken proceedings under the Act and was not aware that she had filed a statement in furtherance of that claim. The witness told the Court that he only became aware that the Complainant had taken proceedings when he saw the decision of the Equality Officer.

Mr Paul Kavanagh, who was Ambassador to the UN at the material time and is currently the Ambassador to France gave evidence in relation to his involvement in the Complainant’s assessment in 2008. He said that he was aware that an assessment of the Complainant’s performance had been undertaken and that it had to be redone. The Complainant did not agree with Mr Dowling’s assessment of her performance and the matter was referred to him for decision. The witness said that he met with both parties separately to discuss their respective positions. There was then an interval due to holidays and sick leave after which he met with both parties and indicated his decision. He concluded that Mr Dowling’s assessment should be supported.

Mr Kavanagh prepared a letter to the Corporate Services Division of the Respondent, dated 24th February 2009, setting out his decision and the rationale for the decision. According to the witness the problem arose because it was never intended that the content of a form in the old format would be transcribed to a form in the new format. The witness said that his approach in dealing with the matter was to give his own assessment of the Complainant’s performance taking account of the views expressed by her manager but looking also at the standard of achievement of her peer group.

Mr Kavanagh told the Court that the Complainant’s position was further considered by the Management Advisory Committee of the Department and it was decided that she should continue in her assignment in New York. It was also decided that her performance be further reviewed in the summer of 2009. At the subsequent appraisal the Complainant was given a rating of 3.

The witness said that he was aware that there were issues in contention between the Complainant and the Respondent but he was not aware of the details of her claim. He denied that this was a matter which influenced him in any way in dealing with the Complainant’s assessment. The witness also said that he had never experienced anyone in the Department adopting an adverse attitude towards Officers who are gay.

Conclusions

Admissibility of Hearsay Evidence

In the course of her evidence, and in response to a question from the Court, the Complainant said that she has been told by a former Superior Officer that he had been pressurised to mark her down in an assessment and that this was because of her sexual orientation. This was the only direct evidence to show any nexus between the conduct of which the Complainant complained and her sexual orientation. Counsel for the Respondent objected to this statement being accepted as evidence on the grounds that it amounted to hearsay.

On this point the Court is satisfied that there may be circumstances in which it can act informally and should not be constrained by the normal rules of evidence, including the rule against hearsay (see comments to this effect of Henchy J inKiely v Minister for Social Welfare[1977] IR 267). Nevertheless the Court is always required to act fairly and in accordance with the requirements of natural justice. Further, as was pointed out by McCracken J inSmithkline Beecham plc v Antigen Pharmaceuticals Ltd2 [1999] ILRM 190, there are cases in which hearsay evidence, although admissible, cannot be safely relied upon.

In this case the person to whom the out-of-Court statement was attributed was not available to give evidence for reasons that were explained to the Court. Consequently the veracity of the statement attributed to this person could not be tested nor could its true import be explored. Moreover the statement was in the nature of double hearsay in that the person who uttered the statement to the Complainant was at best narrating an opinion conveyed to him by some unnamed third party. In these circumstances the evidence has no probative value and cannot be relied upon as establishing a discriminatory disposition on the part of the Respondent.
.

The Discrimination Claim

The absence of direct evidence of discrimination is not, however, fatal to the Complainant’s case. InNtoko v Citibank[2004] ELR 116 this Court pointed to the empiricism that a person who discriminates will rarely do so overtly and will not leave evidence of the discrimination within their victim’s power of procurement (see alsoGlasgow City Council v Zafar[1998] 2 All ER 953). Hence, evidence of discrimination will usually be found in apparently neutral facts surrounding the act or omission alleged to constitute discrimination and, where appropriate, by drawing inferences from those facts. That approach is now reflected in s. 85A of the Acts which provides that where facts are established from which discrimination may be inferred the onus of proving the absence of discrimination shifts to the Respondent.

It is the Complainant’s case that the actions of the Respondent in going behind the assessment of her performance made by Mr O’Riordan, and seeking the opinion of Mr Sheridan, demonstrates that she was treated differently to other candidates in the competition for an upgrade. The Court was invited to hold that this is a fact from which discrimination can be inferred so as to fix the Respondent with the burden of proving that the Complainant was not treated differently because of her sexual orientation.

It appears to the Court that the Complainant was indeed treated differently to other candidates in that respect. It is also clear that she was passed over for an upgrade in consequence of the decision to prefer Mr Sheridan’s assessment of her to that of Mr O’Riordan. It could cogently be argued that the Respondent acted unreasonably in attaching greater weight to Mr Sheridan’s opinion on the merits of the Complainant’s application, since he had last worked with her some three years earlier, whereas Mr O’Riordan was her then current supervisor.

In evidence Mr O’Neill gave an explanation for the reason to consult Mr Sheridan rather than to rely solely on the assessment of Mr O’Riordan and Mr Rogers. While that explanation may be subjected to criticism, that does not mean that it should be rejected. This was made clear by the High Court inMulcahy v Waterford Leader Partnership Ltd13 ELR 12. That case involved an appeal in point of law from a decision of this Court to accept an explanation for the plaintiff’s dismissal which the Court acknowledged to be unfair and unreasonable. In dealing with that point O’Sullivan J said the following: -

• I do not, in fact, agree that it is erroneous either in law or in logic to say that because a person offers a bad reason this necessarily means that the bad reason is not the real one. Rather that seems to me a commonplace observation: one may well truly give as one's reason for dismissing a employee the fact that one doesn't like her. This ‘bad’ reason may well be repugnant, precisely because it is the real reason. In my view that is all the Labour Court is saying in the sentence under analysis.

Victimisation

Section 74(2) of the Acts defines victimisation as follows: -

• “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
  
  • (a) a complaint of discrimination made by the employee to the employer,
    
    (b) any proceedings by a complainant,
    
    (c) an employee having represented or otherwise supported a complainant,
    
    (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
    
    (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
    
    (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
    
    (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Determination

For all of the reasons referred to, the Court is satisfied that the Complainant’s appeal against the Equality Tribunal’s finding that she was not discriminated against cannot succeed. The Respondent’s appeal against the finding of victimisation is allowed and the award of compensation is set aside.

It is the determination of the Court that the Respondent did not discriminate against the Complainant on the grounds of her sexual orientation and that it did not victimise theComplainant.



Signed on behalf of the Labour Court



Kevin Duffy
14th March, 2011______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.