The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION DEC-E2011- 175
PARTIES
Ms. Kathleen O'Sullivan
-v-
Health Service Executive
File reference: EE/2007/681
Date of issue: 19th September 2011
HEADNOTE
Employment Equality Acts, 1998-2008 - Age - Sections 6 and 8 - Preliminary Issues - Section 77(5) time limits - Jurisdiction
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Kathleen O'Sullivan that she was discriminated against by Health Service Executive (HSE) in the temporary filling of a position in an "Acting-up" capacity in a HSE regional office on the ground of Age contrary to Section 6(2)(f) of the Employment Equality Acts 1998-2008 in relation to a promotion in terms of Section 8(1)(d) of the Acts.
1.2 The complainant referred the claim to the Director of the Equality Tribunal on the 18th December 2007. On the 30th June 2010 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, James Kelly, 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 requested and received from both sides. A hearing was scheduled for the 28th July 2011. Both parties were in attendance. The final correspondence in relation to this case was received on the 23rd August 2011.
2. PRELIMINARY ISSUE
2.1 The respondent raised an issue of whether or not this matter is properly before the Equality Tribunal on the basis of the time limits set out under Section 77(5)(a) of the Employment Equality Acts and has asked me to consider this as a preliminary matter in the investigation of the case.
2.2 Section 77(5)(a) of the Employment Equality Acts 1998 to 2008 states that "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". [my emphasis added]
2.3 Section 77(5)(b) of the Employment Equality Acts 1998 to 2008 states that "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."
2.4 The complaint referral form EE1 was received at the Equality Tribunal on the 18th December 2007, where Ms. O'Sullivan outlining her claim for discrimination states that the first occurrence of the discriminatory act was the 3rd May 2007 and that the 'date of the most recent occurrence of discriminatory act' was 30th November 2007. Accordingly, this case was forwarded to me an Equality Officer for investigation, hearing and decision as is the normal practice on the basis that the last act of discrimination fell well within the statutory 6 month time limits for referring a claim as set out in Section 77(5)(a)
2.5 At the hearing of this matter, the complainant stated that her claim is in relation to how the HSE decided to fill a vacancy by means of a temporary "Acting-up" contract. The position became vacant on the 4th June 2007. Ms. O'Sullivan was 61 years old at the time and claims that she had 33 years experience with the HSE and its previous forms. She claims that the HSE approached her colleague and peer, Ms. A, prior to the 2nd May 2007 and offered her the opportunity to Act- up in the post until it was filled permanently by competition. Ms. O'Sullivan claims that Ms. A is approximately 10 years younger than her and is in the HSE a number of years less than her. Ms. O'Sullivan claims that Ms. A refused the offer of acting up and the HSE then decided to advertise a competition locally on the 2nd May 2007. Ms. O'Sullivan submitted her application indicating her interest in the position.
2.6 Ms. O'Sullivan claims that the competition was cancelled a short time before the interviews were scheduled to be held. She claims that Ms. A was approached again and she went on to accept the position and took it up on the 4th June 2007.
2.7 The respondent claims that Ms. A and Ms. O'Sullivan were the same grade, Assistant Directors, at the time. However, Ms. A was more senior in the grade and she was accordingly offered the opportunity to 'act-up' to the vacant post as Acting Director on the basis of her seniority, which was not an unusual practice in the HSE at the time. The respondent agrees that Ms. A initially refused the offer and the HSE then decided to run a "local" competition to fill the vacancy in the short term. Interviews were to be held on the 14th May 2007. The respondent claims that it stopped the "local" competition as it claims that it erred by not advertising the competition regionally, as per its Code of Practice for External and Internal Recruitment for Appointment to positions in the Health Service Executive which would take some time to organise. In the mean-time it again approached Ms. A and asked her to fill the vacancy until that was arranged and completed. Ms. A agreed to take the post on a temporary basis and commenced in the post on 4th June 2007.
2.8 Following this date, the parties were in communication primarily over Ms. O'Sullivan's dissatisfaction regarding inter alia the manner in which the acting-up position had been filled and trying to determine the possible date(s) of the future interviews. The communication between the parties eventually concluded in a letter on the 26th July 2007 from Ms. O'Sullivan's solicitor requesting an investigation as to how the Acting Director position was filled and with regard to how Ms. O'Sullivan was treated. An investigation under Section 8 of its Code of Practice into the matter was held by the HSE and its findings were reported on the 30th November 2007, which Ms. O'Sullivan states was "most unsatisfactory".
3. Conclusions of the Equality Officer
3.1. The preliminary issue for me for decision in this case is in regard to time limits pursuant to Section 77(5)(a) of the Acts arise and whether this precludes me from investigating the complainant's case.
3.2 Having made inquiries of the complainant regarding the details of her claim and have considered the evidence adduced. Accordingly, I am satisfied that the issue of alleged discrimination before me for consideration relates to how the HSE decided to fill the Director's vacancy that became vacant on the 4th June 2007.
3.3 I am satisfied that the decision in how the vacancy was to be filled - by asking Ms. A to Act up to the post - was originally made in April 2007. I am satisfied that the decision was re-visited when Ms. A turned down the acting-up opportunity and the respondent decided to then advertise the Acting Director position locally. I note this decision was made in advance of the advertisement of the competition, which was circulated to local staff on the 2nd May 2007. The decision was re-visited a 3rd time when the respondent stopped the local competition when it realised that it should have advertised the position to a greater regional audience. In the mean-time it again approached Ms. A, who agreed to take up the position on the 4th June 2007 when it came vacant.
3.4 Ms. O'Sullivan claims that to approach Ms A. ahead of her was discriminatory, as Ms. O'Sullivan claims she was more senior to Ms. A. She also claims that to then subsequently change the methodology in how the position was filled - from approaching the most senior person to deciding to hold a competition- was also discriminatory. Ms. O'Sullivan claims that in effect this resulted in her being eliminated from the acting up position and she alleges that this was because of her Age.
3.5 I am satisfied that this is the case before me for consideration and I am satisfied that there is no evidence of any instances of alleged discriminatory acts subsequent to the points raised above. I am satisfied that all the communications that followed were in relation to seeking clarifications on Ms. A's appointment, potential dates for future interviews and Ms. O'Sullivan outlining her dissatisfaction with the respondent, where she finally sought an investigation of the respondent's actions. I note that an investigation was completed and the findings were sent to the complainant on the 30th November 2007. It would appear that this is the date that Ms. O'Sullivan claims is the date of the most recent occurrence of a discriminatory act.
3.6 I note that the respondent had raised this preliminary issue regarding statutory time limits in its submission to the Tribunal on the 22nd December 2008. The complainant did not comment on the respondent's submission. At the hearing I invited both parties to present their case in relation to the preliminary issue prior to taking evidence on the substantive issue. The respondent again outlined its legal position that the claim is out of time and that the complainant did not make an application to extend that time as provided by Section 77(5)(b). I note that the complainant did not offer any legal submission in this aspect of the case in reply.
3.7 The Acts are clear where they require a complaint to be referred, in the first instance, within six months of the most recent occurrence of the alleged discrimination. That period can be extended by the Director to an absolute maximum of twelve months in certain circumstances. The respondent's decisions referred to by the complainant took place in April/May 2007 (in respect of the approach to Ms. A on the 1st occasion and then the subsequent decision to hold a local competition) and the second approach to Ms. A was also in May 2007 and no later than the 4th June 2007, which is the date Ms. A took up the position. I note the respondent claims that, leaving aside the exact dates the decisions were made in how to fill the vacant position, Ms. A ultimately took up the position on the 4th June 2007 and the complainant did not refer a complaint to the Equality Tribunal even within the 6 month period from this date.
3.8 I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that Section 19(5) of the Employment Equality Act of 1977, being the equivalent provision to Section 77(5) of the Acts, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of Section 19(5) or Section 77(5), respectively, to make an application to this end to the court or judicial body. I am satisfied that I have to interpret the time limits as set out in Section 77(5)(a) accordingly.
3.9 From the facts put before me, I am satisfied that the case for consideration is how the HSE decided to fill an Acting Director vacancy that arose in a regional HSE office. I am satisfied that the decisions were taken in April/May 2007, culminating in Ms. A taking up the Acting Director on the 4th June 2007 and that she was approached and accepted the position in advance of this date. Accordingly, I therefore find that the complainant's case has been referred to the Tribunal outside the time limits prescribed by Section 77(5) of the Acts, and that no application for an extension of the time limits has been made prior to the hearing of the complaint. Accordingly, I find that the case was not referred within the statutory time limit prescribed at section 77(5) of the Acts and is not therefore validly before the Tribunal.
4. DECISION
4.1 Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts that this claim was not lodged within the timeframe provided by Section 77(5) of the Employment Equality Acts and therefore, I have no jurisdiction to investigate the matter.
______________________
James Kelly
Equality Officer
19th September 2011