DEC-E2016-120

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-120

PARTIES

A Lecturer

AND

A University

(Represented by Ronan Daly Jermyn Solicitors)

File reference: et-156852-ee-15

Date of issue: 23 August 2016

HEADNOTES: Employment Equality Acts – Gender –Family Status-Disability-Harassment-Victimisation-Conditions of Employment

1. Introduction

1.1 On the 28 May 2015, the complainant referred a complaint to the Director of the Equality Tribunal on the grounds that he was discriminated against by the respondent under the grounds of gender, civil status, family status, sexual orientation, religion, age, disability and race, in relation to promotion, conditions of employment, harassment, victimisation and other.

1.2 On the 30th March 2016 and in accordance with the powers under section 75 of the Employment Equality Act, the Director General of the Workplace Relations Commission referred the case to me, Louise Boyle, an Adjudication Officer/Equality Officer for investigation, hearing and decision. The parties made submissions in advance of the hearing. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 6th April 2016 and reconvened on 21st April 2016 owing to the amount of evidence presented.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015

1.4 At the hearing, the complainant was represented by himself and confirmed that he was happy to proceed in that regard as he had recently qualified as a barrister. The Respondent was represented by David McCarroe, Solicitor with Ronan Daly Jermyn Solicitors and had a number of witnesses from the University including HR in attendance.

2. Summary of the complainant’s case

2.1 On the day of the hearing, the complainant amended his form proceeding only with allegations in relation to discrimination in relation to gender, family status and disability specifically claiming that he was not promoted owing to gender and family status, that he was discriminated against in relation to his conditions of employment in relation to his gender, family status and disability, that he was harassed owing to his family status and gender and that he was victimised in relation to his gender and family status. He provided an amended submission on the day and a short adjournment took place to give the respondent opportunity to review same.

2.2 In his submission, the complainant provided an outline of the events since the commencement of his employment on the 1st September 1998 as a Temporary Teaching Appointment in Biochemistry on a contract which was renewed annually. On 1st September 2003 and 1st September 2004, his contract was renewed with the title of Contract Lecturer. When the Protection of Employees (Fixed-Term Work) Act 2003 was enacted, it brought certain rights and obligations in relation to fixed term contract holders. The complainant alleges that in 2005 he became concerned that his post might be made redundant and brought a case to the Rights Commissioner Services to assert his rights to an indefinite contract as a lecturer. On the advice of his representative at the time (SIPTU), he included other concerns he had including an allegation by the complainant that he was being bullied by a Professor at the University. At the Rights Commissioner hearing on 29th November 2005, the respondent argued that this was the first they became aware of this allegation and requested and were granted an adjournment. The complainant advised that he had been written to on 19th December 2005 by the respondent inviting him to make the allegations through the University’s procedure or withdraw them but he chose not to respond to that letter.

2.3 Around this time an issue arose over the advertisement of a post for a Senior Lecturer and upon representations made by the Complainant’s representative the respondent agreed to quash the advertised post and confirmed to the complainant that his contract was being extended until 30th September 2007.

2.4 On 6th February 2006 the complainant alleges that he was summoned to the HR Department where in attendance were SIPTU representatives as well as the HR Director, his own Head of Department and IBEC. He claims that around that time he was the primary carer for his mother who had suffered a stroke and that he did not wish to attend this meeting as his concerns were with his mother and he did not feel up to attending this meeting. He accepted that he did not advise the respondent of this at the meeting but claimed that SIPTU would have known that his mother was ill. He advised that at that meeting he was given a document to sign which retracted all allegations of bullying against the Professor and that in return he was offered a post as University Teacher. He claimed he signed the document not believing it to be a contract as he had been told that discussions/negotiations were ongoing with SIPTU and the respondent in relation to all University Teacher contracts. He had concerns about what the title of University “Teacher” might imply versus the job title University “Lecturer” but did not raise those concerns with anybody at the meeting or at any other time.

2.5 When a contract was issued to him in February 2006 he did not sign it and did not sign another contract issued in November 2007. He accepted that he never raised concerns regarding the contract or his dissatisfaction that he had withdrawn the allegations of bullying. It was alleged by the complainant that a position of University Teacher was a demotion and punishment for asking for an indefinite contract under the Fixed Term Workers Act 2003 and for his allegations of bullying against the Professor. He agreed that he never pursued such allegations under the Fixed Term Workers legislation or any other legislation. He alleged that the respondent took advantage of his personal circumstances under family status (him being the sole carer for his ill mother) albeit he accepted that he had never informed them of her illness.

2.6 He alleges that the title of University Teacher position was associated with mostly female employees of the respondent one of whom successfully pursued a case against the respondent. He argued that he was the’ token male’ under that job title in order to give some type of ‘protection’ to the respondent against another employee’s allegations (where he alleges he was cited as a comparator). He cited a female comparator to himself who had been promoted and was on a higher rate of pay than him. He also claimed that the respondent gave him that job title as they anticipated legal action by mostly female staff at another third level institution that were due to be amalgamated with the respondent.

2.7 In September 2011 the complainant found out that he was to become a parent and in September 2012 he became a lone parent which created much stress for him. He alleges that owing to this change in his family status as a lone parent, there should have been more reasonable accommodation made to him around time off to collect his child from the crèche and scheduling of labs that he needed to be available for. He acknowledged that he had never been refused flexibility when he needed to workaround his childcare commitments.

2.8 The compliant advised that he complained about victimisation bullying and his workload in 2013/2014 under the respondent’s Performance Management Development System (PMDS). Upon request he provided a copy of same which makes reference to his teaching load only and his wish to reduce this.

2.9 The complaint alleged further examples of discrimination as a result of his title of University Teacher post such that he was no longer considered to be an academic, no longer entitled to attend academic council etc or receive grant research funding, that he did not receive a private office unlike other staff members and that he was “lumped in with the women” in an older building of the Department and he was denied opportunity for promotion and improved pension and salary terms owing to his job title, that he had a much greater workload, including correcting of exams, than others who did not have his job title or others who did not have similar family status as him. The complainant also raised that the post of University Teacher could only progress to above the bar and no further and that such a job title meant he was denied paid sabbatical owing to his University “Teacher” title.

2.10 He expressed that he felt victimised in the way he has been portrayed to colleagues but confirmed that he had never raised any issue with regard to equality for which he could give an example of being victimised. He claimed he was discriminated by the respondent owing to his family status as he incurred greater financial costs owing to his mother being in a nursing home which somebody without an ill parent would not have to incur.

2.11 He provided details of a number of incidents which occurred between 2014/2015. These included: concerns he had around his work load which he expressed through a number of forums including at a Christmas Party; dissatisfaction with an examination board meeting where he claims the previously referred to Professor made a comment which the complainant felt was directed towards him as well as issues around the literature review of a student and the failure of the Professor to attend scheduled lectures. The complainant said how upset he was at the manner in which he was treated particularly by the Professor but when asked, did not know specifically in what way the incidents were examples of discrimination, victimisation and or harassment.

2.12 The complaint alleges that in May 2015 he attended his doctor and was advised that he showed a tendency to Type 2 diabetes which he controls with a low-glucose diet. He said that he is not a diabetic and a cert produced by him from his doctor outlined his “blood sugar levels” are “reduced to a non-diabetic level but he remains at risk of developing diabetes at some time in the future”. He confirmed that this was the first time that he had made the respondent aware of this.

2.13 In April 2015, the complainant advised that the respondent decided to abandon the title of University Teacher and convert all University Teachers to Lecturers. It was on foot of this decision that the claimant decided to refer his complaint to the Equality Tribunal and sought information under Freedom of Information Act but advised that he received little information from the respondent. In May 2015 the complainant applied to progress above the bar as a lecturer and was successful. It was his contention that if this uncertainty with regard to title and academic status had been decided back in 2005 he would not have been inhibited in his promotion opportunities.

3. Summary of the respondent’s case

3.1 In submissions the respondent outlined that the claims are statute barred and that the Complainant has not shown a chain of unbroken, connected treatment grounded on the same discriminatory strand and that as the complainant had been in litigation against the respondent through his representative SIPTU since June 2005, he had ample opportunity and knowledge to pursue an equality claim at that point but did not. Furthermore, the respondent highlighted that no “reasonable cause” justifying an extension of time to allow the complainant’s complaint to be investigated had been advanced.

3.2 Notwithstanding that, the Respondent confirmed that the complainant has been an employee of the third level institution since 1st September 1998 under numerous fixed terms contracts in Biochemistry. In 2003 and with the Fixed Term Workers legislation being enacted, the University reconsidered the nature of the temporary contracts such as the one the complainant was employed under. Newly introduced Lecturer (Fixed Term) Appointment Contracts came into being to remove perceived barrier which may have existed previously around other contracts. The complainant was offered one of these Lecturer FTA posts from 1st September 2003 to 31st August 2004 which was further renewed and extended to August 2005. The respondent claimed they were not in a position to offer the complainant a permanent contract as it was maintained that the complainant was filing some of the teaching duties for a member of staff who had been temporarily reassigned to another role. When it appeared in 2005 that the staff in question’s temporary position was to conclude the respondent advised that the Complainant’s role was to be made redundant and that a new position of “Senior Lecturer” would be established, but upon representations from SIPTU on behalf of the complainant the respondent decided to quash the advertised post and extended the complainant’s post to cover the assignment of another staff member to another role. It was the respondent’s claim that the complainant made no reference to equality issues and that it was and remains a fixed term worker issue and that that complainant was attempting to recategorise the matter a decade later.

3.3 The complainant referred a claim under the 2003 Act to a Rights Commissioner with no reference made to any discrimination issues. At the hearing itself, the Complainant made allegations of bullying and harassment against a Professor (albeit none of these allegations were made in relation to equality) and the Rights Commissioner Hearing adjourned to allow the University the opportunity to examine and address the issues. They later afforded the opportunity to the complainant to either make his allegations through the appropriate procedures or to withdraw them. The Complainant did not respond. It was for this reason that when a decision was made to offer the complainant a contract of indefinite duration that the university requested the withdrawal of his allegations of bullying as a condition as the Complainant had still pursued them and they wanted the matter closed to be fair to all concerned. This was done with the consultation and agreement of his SIPTU representative and with the agreement of the complainant himself as he signed the document agreeing to the withdrawal of the allegations.

3.4 The respondent at no stage expressed concerns during this meeting nor was the respondent ever aware of or made aware that the complainant’s mother was ill. While the Professor, who gave evidence at the hearing, did recall that the complainant did not engage in much conversation at the meeting and did not seem very happy, he did sign the document accepting the contract of indefinite duration and withdrawing his allegations in the presence of his trade union representation. The Respondent highlighted that the complainant had previously processed grievances through his trade union representative all the way to a Rights Commissioner Hearing and could have done so again if he was unhappy.

3.5 The respondent deny that they appointed the complainant as a University Teacher for the purpose of using him as a token male for a potential claim (that has since been through the courts) or that it was as punishment for him asking for an indefinite contract and making bullying allegations. While there were broader negotiations around the generic term or the University Teacher post, the respondent argued that they did not diminish or set aside what was signed by the complainant and his representative on 6th of February 2006. The respondent, in response to the complainant’s claim that a comparator was on a higher salary than himself owing to her career progression, highlighted that the only barrier to the complainant progressing in his career was his own failure to apply for promotion as he took a “principled” stance through his silence.

Legislation involved and requirements of legislation

4.1 In his amended complaint the complainant outlines that he was subject to discriminatory treatment by the respondent on the grounds of gender, family status and disability in relation to victimisation, harassment and conditions of employment.

4.2 Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

4.3 In his complaint, the complainant has raised a number of issues which prompted his referral to the Workplace Relations Commission. He also raises issues from some years before the referral of his complaint to the Equality Tribunal. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination or victimisation be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It can be possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, however, establish that a discriminatory act occurred within the limitation period (see the decisions of the Labour Court in Cork County VEC v. Hurley EDA 24/2011 and County Dublin VEC v. Dodo EDA1327/2013) which is the period that will be examined in the first instance.

4.4 In this case, the complainant referred to a number of incidents that occurred during the limitation period of 2014/2015 including his work load which he may have brought to the attention of his then head of department at a Christmas party. He felt he was discriminated against under family status and gender in relation to his workload as he is a lone parent and carried the job title of university ‘teacher’.

4.5 In Graham Anthony and Co Ltd v Mary Margretts, EDA 038, in an age discrimination case, the Labour Court remarked:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

4.6 The Complainant has made numerous assertions that do not meet the level required to raise a presumption of discrimination and upon which an inference of discrimination can be drawn and I find he is unable to establish a prima facie case of discrimination on the grounds of family status and gender.

4.7 With regards to allegations of discrimination on the basis of disability - Section 16(3b) of the Act sets out that “an employer shall do all that is reasonable to accommodate the needs of a person who has a disability. The Complainant referred to being ill in 2015 and produced a statement from his doctor on the date of the hearing which stated that the complainant “remains at risk of developing diabetes at some time in the future”. The complainant states that this letter from his doctor confirmed that he had a disability albeit no witness was produced to allow for cross examination of the statement. However, this aside, the respondent cannot be obliged to provide reasonable accommodation where it was unaware of an alleged disability (see the decision of Ms. Patricia Buckley and Ms. Catherine Buckley -v- Tullamore & District Youth Endeavour Ltd. Tullamore Community Training Workshop DEC-E2005-006 and this alleged disability, by the Complainants own admission, was only brought to the respondent’s attention for the first time at the hearing. I find the Complainant is unable to establish a prima facie case of discrimination on the grounds of disability.

4.8 The Complainant cited a number of incidents of harassment by a named Professor in 2015 including at an internal examination board meeting, an interaction regarding another student that the complainant was mentoring and the non-attendance by the Professor at scheduled lectures.

4.9 Section 14 A (7) of the Employment Equality Act defines what constitutes harassment as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, intimidating or offensive environment for the person.

4.10 The Complainant was unable to provide evidence of how the alleged conduct related to any of the discriminatory grounds. As referenced previously section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. I find the Complainant is unable to establish a prima facie case of harassment.

4.11 In relation to the claim of victimisation, it is defined in broad terms under the Employment Equality Acts 1998-2011. Section 74(2) provides:

‘(2) 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) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.’

4.12 In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows:“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts; (2) The Complainant was subjected to adverse treatment by the Respondent, and; (3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

4.13 Having found that no complaint of discrimination or harassment was made to the Respondent within the meaning of the Acts, this claim falls at the first hurdle and it therefore follows that the Complainant could not have been victimised within the meaning of the Acts.

5. Findings

5.1 On the basis of the above, I conclude that the complainant was not discriminated against on the grounds of gender, disability or family status in relation to victimisation, harassment and conditions of employment.

5.2 The other issues raised by the complainant cover the duration of his employment with the respondent, dating back to the commencement of his employment in 2008. They fall outside the limitation period provided in section 77(5) of the Employment Equality Act. Given that I have found that no discriminatory act occurred within the limitation period, it is not permissible for me to examine the older complaints as they are made out of time.

6. Decision

6.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Act that:

· the complainant has failed to establish a prima facie case of discrimination on the gender, family status and disability grounds, and I dismiss the complaint.

_________________________________

Louise Boyle

Equality Officer

23rd August 2016