EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-032
PARTIES
Margaret Stafford
AND
Ferns Diocesan Youth Service
(represented by IBEC)
File reference: EE/2012/513
Date of issue: 22 February 2016
HEADNOTES: Employment Equality Acts - Sections 6 & 8 – Traveller Community – Access to Employment – Promotion – Victimisation - Discriminatory Dismissal – jurisdiction under section 101
1. DISPUTE
1.1. This dispute concerns a claim by Ms Margaret Stafford that she was discriminated against by Ferns Diocesan Youth Service on the grounds of membership of the Traveller Community contrary to section 6 of the Employment Equality Acts in terms access to employment, promotion and discriminatory dismissal in accordance with section 8 of the Acts and that she was victimised in accordance with section 74 (2) of the Employment Equality Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 28 September 2012 under the Employment Equality Acts. On 12 March 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 22 April 2015 and final information was received on 3 July 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. COMPLAINANT’S SUBMISSION
2.1. The complainant started working for the respondent in June 2008 as a Youth Information Assistant on a Community Employment Scheme. She submits that she is well qualified as she holds a degree in Applied Social Care. A colleague was promoted but she thought nothing of it at the time, assuming the colleague was better qualified and more experienced.
2.2. She was on the Community Employment Scheme for 3 years, working 20 hours per week. When this finished she was offered 7 hours per week, which she accepted.
2.3. Subsequently a vacancy for 20 hours per week became available and these hours were divided evenly between the complainant and a colleague who started working for the respondent after her. This meant she would have been working a total of 17.5 hours.
2.4. The complainant submits she should have been offered all 20 hours as she was well qualified and had longer service than the colleague who was offered the other tem hours. No reason was given as to why she had not been given the 20 hours and the complainant submits it was because of her traveller background.
2.5. She was encouraged to take the hours but felt the offer and the encouragement were not meaningful, as she had made it known that it would not be financially feasible for her to continue on 17.5 hours. The complainant submits that 27.5 hours would have been acceptable and reasonable. She appealed the decision to divide the hours but the decision was upheld.
2.6. The complainant submits that she was subsequently dismissed in a discriminatory manner.
3. RESPONDENT’S SUBMISSION
3.1. The respondent submits that the complainant started working for them on 10 June 2008 on a Community Employment Scheme. They confirm she did obtain a degree in Applied Social Studies which was funded by the respondent.
3.2. When the Community Employment Scheme ended the complainant was given a one year extension on the CE scheme to allow her to complete the course. No further extension could be given
3.3. The respondent submits they subsequently secured funding for the complainant to continue to work with clients and she was given a fixed term contract of 7 hours per week to work as a Youth Information Worker from 29 August 2011 to 30 April 2012.
3.4. In November 2011 the respondent advertised a temporary part-time post of Youth Information Worker for 20 hours per week. This was to cover sick leave and as such was to be reviewed weekly. Interviews were held on 29 November 2011 and the complainant was offered 10 hours and the other 10 hours were offered to another applicant.
3.5. The respondent submits that the complainant met the CEO and said that the 7 hours together with the 10 hours were not financially viable. She needed 20 hours in addition to the 7 she was working and refused the 10 hours. The complainant requested the Board of Directors to review the decision.
3.6. Subsequently on 12 January 2012 the complainant met her supervisor and said she considered she was not offered the position due to her traveller background. Her supervisor was not aware of her background.
3.7. The respondent submits that the complainant worked 7 hours per week until the end of her contract.
3.8. In relation to the claim regarding promotion the respondent submits that they do not promote automatically; all posts are advertised. Furthermore the complainant has not named a comparator.
3.9. The respondent submits that it was not generally known that the complainant had a traveller background. Furthermore, they have an Equality Policy which clearly outlines their commitment to promoting equality of opportunity throughout the organisation and the prohibition of discrimination.
3.10. The respondent submits in relation to the dismissal claim that the complainant chose not to accept the hours because it was not financially convenient for her. On several occasions they encouraged her to accept the hours. Subsequently the fixed term contract came to a natural end.
3.11. The respondent submits that the complainant has offered no evidence of victimisation.
4. JURISDICTION
4.1. The complainant has made a claim in relation to discriminatory dismissal. The respondent submitted a copy of a Rights Commissioner recommendation dated 13 June 2013 issued in relation to a claim made by the complainant against the respondent under the Unfair Dismissals Acts, 1977 – 2001.
4.2. Section 101 (4) (b) of the Employment Equality Acts states:“an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if … in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal”. I have seen recommendation r-128519-ud-12 and I therefore find that I have no jurisdiction in relation to the claim of discriminatory dismissal.
5. FINDINGS AND CONCLUSIONS
5.1. Therefore, I have to decide if the complainant was discriminated against on the grounds of membership of the traveller community in relation to access to employment and promotion and if she was 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.
Access to Employment & Promotion
5.2. At the hearing the complainant referred to a post advertised in October 2010, she raised no issue at the time as she assumed the successful candidate was better qualified and more experienced but she contends this was not the case. The respondent contends the complainant and the successful candidate and the complainant had the same of level of service and the successful candidate had a more appropriate qualification and was appointed through a transparent recruitment process.
5.3. The main claim in relation to access to promotion and promotion relates to the Youth Information Worker post to cover an indefinite period of sickness that was advertised internally in November 2011. The respondent contends that the complainant and another person, also already working for the respondent, were given the same marks by the interview panel. Therefore, to suit their own interests, the two were each offered half of the available hours. The complainant, however, contends she had better experience for the post.
5.4. Clearly the complainant was very upset when she was not offered the whole of the twenty hours that were available. She was very keen to work for the respondent and contends the decision to not give her the full hours relates to membership of the traveller community.
5.5. The respondent’s evidence was that this post was to cover an indefinite period of sick leave, the complainant and the other person were marked equally by the interview board and they were both working part time for them. They therefore decided to split the hours. This suited them as they had better cover over the week.
5.6. I accept the evidence of the respondent that the decision to split the hours was made for pragmatic reasons to suit them and I conclude that this decision was not related to the ground cited by the complainant.
Victimisation
5.7. 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) 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 such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
5.8. During a supervision meeting on 12 January 2012 the complainant told her Supervisor that she considered that she was not offered the full hours because of her traveller background.
5.9. The complainant referred to a number of incidents but the only one that occurred after this meeting and whilst she was still employed by the respondent was not being shortlisted for a post that was advertised in February 2012. I have considered the evidence of both sides and I accept the respondent’s contention that the complainant was not shortlisted because she did not meet the criteria for the position and for no other reason.
5.10. The complainant also claims she was victimised when, after she had left the respondent’s employment, she obtained a reference for another position but did not receive an electronic version of the reference that she requested. I accept the evidence of the respondent that this was an administrative oversight that was not related to a claim of discrimination made by the complainant.
5.11. I therefore conclude that the complainant is unable to establish a prima facie case of victimisation.
6. DECISION
6.1. In accordance with section 101 (4) (b) of the Employment Equality Acts I have no jurisdiction in this claim of discriminatory dismissal as a Rights Commissioner has issued a recommendation in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993.
6.2. I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that:
· the complainant has failed to establish a prima facie case of discrimination on the grounds of membership of the traveller community in relation to access to employment and promotion, and
· the complainant has failed to establish a prima facie case of victimisation.
____________________
Hugh Lonsdale
Adjudication Officer/Equality Officer
22 February 2016