Employment Equality Acts 2000 to 2011
EQUALITY OFFICER’S DECISION
NO: DEC-E2014-075
Ann Hurley
v
Ballincollig Community School
(Represented by O’ Flynn, Exhams Solicitors)
Date of Issue: 4 November 2014 File No. EE/2011/300
Keywords
Employment Equality Acts - discriminatory treatment - age - access to employment - prima facie case - failure to attend the second day of hearing
1. Dispute
1.1 This dispute concerns a claim by Ms. Ann Hurley (hereafter “the complainant”)that she was discriminated against by Ballincollig Community School (hereafter “the respondent) on grounds of age, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts in relation to access to the position of resource teacher with English with the respondent school.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 23 February 2011 alleging that the respondent had discriminated against her on grounds of age.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008, the Director delegated the case on 8 July, 2013 to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. At the time of making the complaint, the complainant had also taken a case against a co-respondent together with Ballincollig Community School. A hearing into the matter was scheduled to take place on 17 July 2013. On the evening prior to the hearing the complainant forwarded a doctor’s certificate stating that she had gastroenteritis and requested an adjournment of the hearing on that basis. The complainant was granted an adjournment and the hearing was subsequently re-scheduled for 5 November 2013. At this hearing, submissions and evidence was taken on the issue of who the correct employer was. The complainant also gave some background information on her career to date and her qualifications and had commenced giving testimony on her interview with the selection committee when she fell sick. With the consent of all parties, the hearing was adjourned as the complainant was not in a position to proceed. A further hearing date was scheduled for 8 September 2014 and written notification in this regard was sent to the complainant’s solicitor and copied to the complainant for information by letter dated 23 July 2014. In early August, 2014, the respondent wrote to the Tribunal requesting an adjournment given that the hearing date coincided with the start of the school’s academic year and the fact that the majority of the members of the interview board would not be in a position to attend. I wrote to both parties stating that I was acceding to the respondent’s request for an adjournment on the basis of the unavailability of key witnesses and re-scheduled the hearing for 30 October 2014 and advised that the hearing was peremptory against all parties.
2.3 On the morning of 28 October, 2014 the Tribunal received an e-mail from the complainant advising that she wished to withdraw her complaint against the named co-respondent but wanted to proceed with complaint against Ballincollig Community School. On 29 October, the complainant requested an adjournment of the hearing scheduled for the following morning at 10.00 am on the basis that she needed more time to prepare further submissions and to consider a number of legal issues. Having considered the matter carefully and given the lengthy delays in hearing the case to date, the adjournments given and the ensuing costs involved, I made a decision that the hearing would proceed the following morning. The complainant was advised accordingly by letter which was sent to her by e-mail on 29 October. In this letter, the complainant was advised that she would have an opportunity to make any further submissions as necessary and that the Equality Officer would ensure fair procedures would be applied to both parties. The complainant was also advised that she could submit further legal submissions after the hearing, if necessary. On the morning of the hearing, Thursday 30 October, the Tribunal’s secretariat division received an e-mail from the complainant stating that she felt there was no point in attending the hearing as she did not get time to prepare her new submissions. Although the respondent and its witnesses were in attendance at 10.00 am, I held off commencing the hearing until 10.30 am, however the complainant did not attend and did not give any reasonable or adequate explanation for her non-attendance.
3. Decision
3.1 In light of the foregoing, and in accordance with Section 79(6) of the Employment Equality Acts, I issue the following decision. As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I am satisfied that the complainant was fully aware of the notification of the second day of hearing arrangements and was advised that the date of 30 October 2014 was peremptory against the parties. I find the complainant's failure to attend the second day of hearing unreasonable in the circumstances and that any obligation under Section 79 has ceased. I am satisfied that section 85A clearly places an onus on the complainant to establish a prima facie case of discrimination. I find that the complainant has failed to establish a prima facie case of discriminatory treatment on grounds of age. Based on these facts, together with the complainant’s non-attendance at the second day of hearing, I find that her claim fails for want of prosecution.
__________________
Valerie Murtagh
Equality Officer
4 November, 2014