THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC-E2015-017
PARTIES
Mr. Tom Barrett
and
Department of Defence
(represented by Ms Cathy Smith B.L.,
instructed by the Chief State Solicitor)
File Reference: EE/2005/289
Date of Issue: 27 March 2015
1 Claim
1.1 The case concerns a claim by Mr Tom Barrett (hereinafter referred to as “the complainant”) that the Department of Defence (hereinafter referred to as “the respondent”) subjected him to victimisation contrary to Section 74(2) of the Employment Equality Acts 1998 to 2008.
1.2 The complainant referred a complaint under the Employment Equality Acts (hereinafter referred to as “The Acts”) to the Director of the Equality Tribunal on 28 April 2011. On 21 June 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, a hearing was held on 2 October 2013 and final submissions received from the complainant on the 23 October 2013.
1.3 The complainant has previously submitted complaints against the respondent under the Acts (most recent being DEC-E2009 -053) and submits that he had been subject to victimisation since 8 November 2010 following a Labour Court appeal process in regards to the decision.
2. Summary of the Complainant’s Submission
2.1 The complainant was employed in the position of Assistant Principal Officer (APO) in the Department of Defence based in a Galway office. The complainant submits that he was “having idleness forced upon him” by the respondent in their failure to provide him with meaningful work.
2.2 The complainant submits that his victimisation primarily relates to the fact that he was not appointed to what he submits was a suitable position (in the pay-roll area). Instead another APO was appointed to that post. The complainant submits that he knows of no reasons for victimisation in this manner other than that he had previously taken a case against the respondent.
2.3 The complainant submits that the respondent generally excluded him from normal work matters and gave the following specific examples.
- • He was not introduced to the minister on the occasion of a Ministerial visit.
- • Not included in the circulation list for a specific E-Mail sent to all other managers.
2.4 The complainant submits that the victimisation was extremely detrimental to his personal wellbeing.
3. Summary of the Respondent’s Submission
3.1 The respondent rejects all aspects of the complaint.
3.2 The respondent submits that the complainant has instituted proceedings against an individual who is not his employer and therefore his claim must fail.
3.3 The respondent submits that the complainant is estopped from instituting this complaint as they relate to the same circumstances and same cause of action as already adjudicated on in the previous proceedings. In this regard the respondent relies on the doctrine of res judicata.
3.4 The respondent submits that nothing in the complainants written submissions establish that he has suffered from adverse treatment as the respondent submits that the complainants position had remained unchanged since previous proceedings.
4. Decision
4.1 The complainant originally named the Secretary General of the Department of Defence as the respondent however in his written submission it is clear that the complainant had previously named the Department of Defence as his employer. I find the Department of Defence to be the correct respondent and this was agreed by the complainant in his final submission.
4.2 The complainant states that his victimisation began following the publication of Labour Court recommendation EDA 1017 on the 30th September 2010 and specifically from on the 8th November 2010 onwards and I must therefore consider if events from that date onwards constitute victimisation under the Acts.
4.3 Section 74 (2) of the Employment Equality Acts states:
“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 complaint of discrimination made by the employee to the employer.”
As stated in by the Labour Court in EDA 1312, Frances Donnelly v National Gallery of Ireland:
“This section of the Acts is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.”
4.4 Section 85A (1) of the Employment Equality Acts, states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.5 It is agreed by both parties that the complainants working conditions were unchanged before and after the 8th November 2010 up to early 2012 when the complainant was assigned to a new role. I must consider if efforts to find another role for the complainant were not facilitated by the respondent due to previous complaints taken under the Acts and I have considered all evidence put forward by both parties in this regard.
4.6 The complainant has submitted that he was victimised as he was not placed in a number of available roles. At the hearing the complainant gave direct evidence that it was his practice to reject roles that he felt would not suit his abilities. I am satisfied the complainants practice in this regard is not usual and would have made accommodating his requirements difficult for the respondent. At the hearing the complainant stated that he was currently fully occupied in a role that he enjoyed and was making an active contribution to his Department. It was agreed at the hearing, that this new role had been moved to Galway from another regional office solely for the complainants benefit. I accept that this required some organisational reorganisation by the respondent and needed to be arranged over an extended period of time. I accept that the respondent acted in a strategic manner to accommodate the complainant. I find that the there is no evidence of victimisation in regards to the filling of suitable vacancies but rather evidence of more favourable treatment for the complainant in the efforts made by the respondent to provide a post which the complainant considered satisfactory.
4.7 In his short written submission and in his evidence at the hearing the complainant based the majority of his case of victimisation on the fact that he had not been appointed to and APO role in the pay-roll division in late 2010. I accept the respondent’s submission that it is not normal practice for APOs in the civil service to decide what role they wish to fill and then automatically be appointed to that post. I find that the appointment of another APO to the pay-role post is not evidence of less favourable treatment.
4.8 In addition to the issue of appointment to a suitable role, I have examined all evidence put forward by the complainant of less favourable treatment and find the following in relation to the specific examples provided,
- · In regards to the complainant not being introduced to the Minister. I find that this can only be speculation on the part of the complainant as he can not give evidence that all APOs had been introduced.
- · In regards to a number of E-Mails that were not circulated to the complainant, I have examined the E-mails in question and accept the respondents submission that they were simply not relevant to the complainant.
I therefore find that the complainant’s allegations in regard to his isolation by the respondent is mere assertion unsupported by any evidence that demonstrates that actions by the respondent were a reaction to any complaint under the Acts.
4.9 At the hearing the complainant submitted that he would still be idle if he had not made his previous complaints under the Acts. This submission by the complainant is entirely contrary to the case of victimisation being made. I am satisfied that the complainant believes that his position has improved due to the lodgement of previous complaints and therefore I can find no detriment to the complainant as a result of taking any complaint under the Acts.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts that:
The complainant has failed to establish a prima facie case of victimisation.
______________________
Peter Healy
Equality Officer
27 March 2015