EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-031
PARTIES
Kennedy
(Represented by Gearoid O’Bradaigh B.L instructed by O’Mara, Geraghty, McCourt, Solicitors)
AND
Ceist
(Represented by Brian Foley B.L. instructed by Mason Hayes Curran, Solicitors)
File reference: EE/2013/232
Date of issue: 17th February 2016
HEADNOTES: Employment Equality Acts Sections 6 (2) (a) as amended by section 4 the Employment Equality Act 2004 Discrimination-Victimisation-Conditions of Employment-Gender
1 DISPUTE
1.1 This dispute concerns a claim by Mr Kennedythat he was discriminated against by his employer on the grounds of gender contrary to section 6 (2) of the Employment Equality Acts in respect of access to promotion and grading under the terms of Section 8 (1) (d).
1.2 The complainant referred a claim to the Director of the Equality Tribunal on April 30th, 2013 under the Employment Equality Acts. On October 1st, 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Pat Brady an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on October 6th 2015.
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.
2 BACKGROUND
2.1 The Respondent is a Trustee Body established under the Education Act 1998 to act as a Trustee Body for a five religious congregations and is an acronym for ‘Catholic Education, an Irish School Trust’; thus, CEIST. It acts as Trustee and Patron of about one hundred and ten secondary schools.
2.2 It is a company limited by guarantee with charitable status and is a not for profit body.
2.3 Its ‘Education Office’ acts as an administrative resource of the organisation and the complainant was an employee in that office as a ‘School Relationship Co-Ordinator under a fixed term contract for five years commencing on November 1st 2007
3 COMPLAINANTS' SUBMISSION
3.1 The complainant started work for the respondent in 1995 as a ‘School Relationship Co-ordinator’. His employment terminated in July 2012. This followed his unsuccessful application for appointment to a new position which would have taken effect on the expiry of the earlier contract.
3.2 His complaints fall into two broad categories; one arises from the process related to the interview in June 2012 to ‘renew’ or extend his contract, the fact that he was not appointed and events arising from that process.
3.3 The second category comprises a large number of individual incidents which were opened in evidence to the Tribunal and dated back to July 2008 (three complaints), 2009 (seven complaints) 2010 (ten complaints) 2011 (six complaints) and 2012, (leaving aside those referred to at 3.2 above) two complaints. These were somewhat refined at the commencement of the hearing and the initial three submissions from the complainant revised for the purpose of the crystallising the issues at the hearing.
3.4 The complainant said that the initial recruitment process had placed him on ‘the back foot’, that the atmosphere in the workplace was degrading and contributed to a lack of respect for his right to dignity in the workplace. He says he was subjected to harassment and a ‘degrading atmosphere’.
3.5 Regarding the interviews held in June 2012 he complained that the interview Board was not gender balanced (there were three men and one women, although both successful candidates were women), that the decision had been made in advance of the interview, and that there were discriminatory aspects to the questions asked at the interview. He accepts that he was on a fixed term contract. It was also claimed that his role in an incident in Mallow adversely affected his chances at the interview.
3.6 Furthermore on completion of the interviews he complains about the manner he was treated. He was not provided with written notification of the outcome of the interview and was asked to leave some four months before the formal expiry of his contract, and that there were delays in relation to his pension and the provision of a reference. He also says that the respondent obstructed his efforts to find work following his departure from the organisation.
3.7 The items referred to at 3.3 above are too numerous to recite in detail and only a flavour is provided here (following refinement by the complainant). They ranged over alleged different treatment in the matter of remote working (i.e. away from the office base), granting of time off following industrial action, attendance at Board of Management meetings, access to offices ‘out of hours’. Several related to his attendance at conferences, (or in one case the provision of training), and the provision of a review of his work which was seen as effectively coaching for the June 2012 interviews.
4 RESPONDENT'S SUBMISSION
4.1 The respondent raised a preliminary objection to the complaint on the basis that the complaint was wholly or partly statute barred on the basis of the age of many of the claims and stated that only two of the complaints were within time, although occurring after the complainant ceased to be an employee of the respondent. It submitted that the complainant had not offered any reason for the delay in bringing his claim before the tribunal.
4.2 NP was the complainant’s line manager. In his direct evidence he said there were standard operating procedures for the granting of time off for employee who were not full time office-based and that no employee was favoured whether on the basis of gender or any other. In relation to the locking of offices NP said that this was a normal security response and that no actions had been taken in respect of the complainant that were different to other employees.
4.3 AK was CEO at the relevant time and mainly addressed the 2012 interview and post interview aspect of the complaint. She said that the practise in relation to references was no different in the complainant’s case than with any one else; if an employee had a specific need for a reference in a specific format it would be provided.
4.4 Regarding the alleged link between the ‘Mallow incident’ which the complainant said adversely affected the attitude of the interview Board to him, she said she was the only one who knew of that incident and it was not known to members of the Interview Board. That said, she said she was supportive of, and at one with the complainant’s view of that incident and did not regard it, or any aspect of his role in it adversely at all. She also said that the Interview Board used a marking system and that the Board of Ceist ratified the decisions, following which each candidate was notified in line with normal practice.
4.5 The situation following the interviews was that five incumbents in Ceist did not get a renewed contract and that of four appointments made three were women and one a man.
4.6 AK also said that there were no gender based policies or attitudes in relation to who would attend Board of Management meetings and likewise decision about attendance at courses or conferences which were based purely on policy and operational considerations
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the complainant was treated in a discriminatory manner on the grounds of gender, or victimised. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 Before that, I address the time limits issue. It is well established that a sequence of events may provide the nexus required to bring a matter within the time limits. Generally the sequence of actions and behaviour necessary to forge this connection will turn on the facts of the case, but at the very least it must meet the test of being a sequence, either in relation to the nature of the actions, its impact on the victim, the involvement of a common perpetrator or group of perpetrators etc.
5.3 I can find no such sequence here. Many of the acts complained of from 2008 on bear no relationship to each other, are often quite trivial and, perhaps most importantly almost without exception fail to identify a comparator against whom a case can be grounded under one of the prohibited grounds. Much of the complainant’s perception of these actions is fanciful and critically no evidence was provided that he raised any formal grievances or made them the subject of a complaint at the time.
5.4 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 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.
5.5 The issues raised here were, with one exception relatively low level administrative or workplace disagreements, and while some other matters of serious content were referred to on the general topic of child protection, for example (the ‘Mallow’ incident, no discriminatory act against the complainant arises from these.
5.6 It is clear that only the episode surrounding the interview in 2012 and its aftermath (including the matter of an alleged delay in the pension payment) fall within the time limits but I found no evidence of discriminatory acts against the complainant that would breach the Acts.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The complainant was not the subject of discriminatory treatment in the course of the 2012 interview and its aftermath and I dismiss the claim.
· No case of victimisation arises either and I also dismiss that claim
__________________
Pat Brady
Equality Officer
17th February 2016