DIR-E2013-008

DIR-E2013-008

EE/2013/307

Direction under Section 77(5) of the Employment Equality Acts 1998 to 2011

Complaint by A Civil Servant against A Government Department under the Employment Equality Acts 1998 to 2011

Background to the complaint:

1. The complainant referred a complaint to the Equality Tribunal on 28th June 2013, alleging that he was discriminated against on the disability ground by the respondent on and before 16th July 2012. The complainant alleges that lack of wheelchair accessibility contributed to a situation in which he was treated with a lack of dignity. The complainant was required by his employers to leave his building as he had been suspended from duty with immediate effect, on 16th July 2012, as a result of allegations made against him. The complainant claims that he was required to leave by the front door, “in a downpour of rain”, having encountered difficulties acquiring transport because of his disability, while “being watched by colleagues, friends and neighbours”. There was no rear or side entrance accessible to wheelchair users. He claims he was positively discriminated against in this instance for the above reasons.

Provisions of the legislation:

2. Section 77(5) of the Employment Equality Acts, 1998 to 2011 states -

(5) (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 case relates or, as the case may be, the date of its most recent occurrence

(b) On application by a complainant the Director 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 a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Referral of the complaint

3. The complaint was received in the Equality Tribunal on 28th June 2013. The date of the most recent occurrence of an alleged discriminatory act was 16th July 2012, which was outside the 6 month period stipulated in the Acts, but within the 12 month period for which an extension can be granted, for reasonable cause. The date of expiry for referral of the complaint was 28th December 2013.

Request for extension of time application

4.1 The complainant’s representative made an application for an extension of time for referral of the complaint in a letter dated 26th June 2013. In that letter, under a heading of “Reasonable cause” the representative stated that their client had mental difficulties related to the “allegations and an investigation which led to a recommendation of dismissal from his employment”. They stated that the complainant had “been attending his doctor on and off over the last 11 months”. They say that he “feels he is now in a position where he can give this claim his full attention and so recently instructed his union to lodge a claim on his behalf”.

4.2 The request was forwarded to the respondent for comments and a response was received. They do not agree to the granting of an extension.
They state that the difficulties claimed by the complainant were not made known to them, and claim the complainant used “obstructive tactics”.
They reject the suggestion that the complainant’s visits to the doctor would have affected his ability to seek his Union’s assistance.
They state that the complainant’s alleged difficulties in arranging a lift home were not indicated to them on the day in question.
They state that the complainant’s suspension took place “in a private room and was carried out with due regard to Mr Harrison’s dignity.” Further, they claim that it is “absolutely refuted” that he was “watched by colleagues, friends and neighbours” and that only officials who attended the meeting were aware of the circumstances of the complainant’s departure. 

Conclusions

5.1 I am conscious of the requirements imposed by section 77(5)(b) of the Employment Equality Acts 1998 to 2011. This provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.

Section 77(5)(b) of the Employment Equality Acts 1998 to 2011 provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal. In interpreting this in the instant case, I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows:

"The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".

I am also taking into account the Labour Court decision in the case of Elephant Haulage Ltd v Mindaugas Juska EET082 where the Court reiterated its view (expressed for example in the case of Cementation Skanska and a Worker (WTC/03/44 Determination No. 0426)), albeit under different legislation (Organisation of Working Time Act) that "That in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd." In this regard the Court held that there must be a causal link between the circumstances cited and the delay and that the claimant should satisfy the Court, as a matter of probability that had those circumstances not been present he would have initiated the claim in time. The Labour Court went on to state that the "length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time."

5.2 In this case the complaint was referred over 5 months outside the time limit. The complainant has stated that the delay was due to the fact that he was otherwise occupied with work related allegations and the investigation resulting from them. The complainant’s representative argues that this constitutes reasonable cause for the delay.

I accept that the combination of medical difficulties and involvement in internal investigations provide the complainant with reasonable cause for the delay in referring his complaint to this Tribunal. In the circumstances I am of the opinion that the complainant has shown reasonable cause for the delay.

Delegation of functions

6. The Director has duly delegated his functions to me under the Employment Equality Acts 1998 to 2011.

Direction under Section 77 of the Employment Equality Acts, 1998 to 2011

7.1 It is my opinion that the complainant has established reasonable cause for the delay in referring his complaint. I, therefore, am empowered to direct an extension of time in which to refer a complaint to twelve months in this case.

__________________________

Peter Healy

Equality Officer

20 December 2013