EDA1223

Background
The background to this dispute is fully and accurately recorded in the Decision of the Equality Tribunal. For present purposes it can be briefly stated.

The Complainant brought proceedings against the Respondent under the Acts in 2002 and in 2003. These proceedings were settled by an agreement concluded between the parties in 2005. The settlement agreement provided, inter alia, for the transfer of the Complainant to another location as soon as a suitable vacancy became available. The terms of the agreement, in so far as is relevant for present purposes, provided as follows: -

• “The [Respondents] acknowledge that the Claimant is 1^ston the transfer list for [location specified] and will use bona-fide best endeavours to accommodate her with a transfer to a part-time position at that location should such a part-time position become available”

The Complainant’s case
The Complainant presented a detailed submission setting out the nature of her complaints. In summary she believes that the Respondent failed to implement the original agreement to relocate her to the office specified in the settlement agreement and instead transferred her to locations within the same functional area in which the original incident occurred. She told the Court that during this period she was forced to work with people who were connected with those against whom her original complaints were made. She also told the Court that she was subjected to inappropriate conduct by others and that she was assigned to inappropriate duties. The Complainant contends that the failure of the Respondent to transfer her to the location specified in the settlement agreement and its conduct in transferring her within the area in which she worked was because of or in retaliation for having made the original complaint.

The Respondent
The Respondent told the Court that the terms of the settlement provided that it would use its best endeavours to accommodate the Complainant in the location specified. The first occasion on which a vacancy arose in that location was in 2009 and the Complainant was then transferred in accordance with the agreement. The Court was told that on each occasion on which the Complainant was transferred within the location in which she originally worked it was at her own request. The Respondent contends that the duties to which she was assigned were appropriate to her grade. The Complainant had been invited to make formal complaints in relations to the inappropriate conduct of which she now complains but she had declined to do so. In consequence the Respondent could not investigate those complaints.

Conclusions of the Court
The settlement concluded in 2005 was specific in requiring the Respondent to use its best endeavours to accommodate the Complainant with a transfer when a suitable vacancy in the desired location arose. It is the Respondent’s case that the first vacancy arose in 2009 and it then transferred the Complainant to fill that vacancy. No evidence was adduced to contradict the Respondent’s evidence on that point. Nonetheless, it seems to the Court that there was an inordinate delay in providing the Complainant with a transfer. It further seems to the Court that having regard to the nature of the occurrences giving rise to that settlement good employment practice would have dictated that far greater efforts would have been made to transfer the Complainant at an earlier date. However, the Court must decide this case by application of the appropriate legal principles and not by considerations of good employment practice.

Section 74(2) of the Act provides, in effect, that victimisation occurs where a person is subjected to adverse treatment as a reaction to,inter aliathe bringing of a complaint under the Act. That suggests that‘but for’the complaint the Complainant would not have suffered the detriment The determent relied upon by the Complainant was the failure of the Respondent to transfer her in accordance with the agreement. The Complainant did not have a free standing right to a transfer. Her only entitlement in that regards arose from the terms of the settlement agreement. In these circumstances it could not logically be said that ‘but for’ having made a complaint the Complainant would have been transferred earlier.

It follows that what is at issue here is the adequacy of the manner in which the Respondent set about implementing the settlement agreement rather than an act of victimisation within the statutory meaning of that term. The implementation of the settlement agreement of 2005 is a matter of contract between the parties and the Court has no jurisdiction to investigate any allegation that the contract was not properly implemented.

With regard to the transfer of the Complainant to various locations before her final transfer on foot of the settlement agreement, it is clear that each such transfer was in response to requests from the Complainant herself. In these circumstances these transfers could not be construed as acts of victimisation.

The Complainant did give evidence in relation to inappropriate conduct by work colleagues towards her in two of the locations to which she was assigned while awaiting transfer on foot of the settlement agreement. She contends that the conduct complained of constituted harassment and/or victimisation. It is noted that the Complainant did not make any formal complaint to the Respondent in relation to these incidents at the time of their occurrence. It is clear that these incidents occurred well over six months before her present complaint was referred to the Equality Tribunal. Consequently they are outside the time limit prescribed by Section 77 of the Act and cannot be investigated at this stage.

In these circumstances the Court is satisfied that the Complainant was not unlawfully victimised under the Act. Accordingly the Court must disallow her appeal and affirm the Decision of the Equality Tribunal.