DEC-E2016-089

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-089

PARTIES

Catherine Nagle

(Represented by the Prison Officers Association)

AND

The Irish Prison Service

(Represented by Cathy Maguire BL instructed by the Chief State Solicitor’s Office)

File reference: EE/2013/124

Date of issue: 21st June 2016

HEADNOTES: Employment Equality Acts – Gender – Conditions of Employment-Preliminary Issue

1. DISPUTE

1.1. This dispute concerns a claim by Ms Catherine Nagle that she was discriminated against by the Irish Prison Service on the grounds of Gender contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.

1.2. The complainant referred a claim to the Director of the Equality Tribunal on 11th, March 2013 under the Employment Equality Acts. On 17th November 2015 in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred 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.

1.3.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 November 20th 2015. This was on a preliminary matter as to whether the claim was within jurisdiction due to the lapse of time.

1.4. 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 complainant joined the Prison Service on 29th November 1986 and currently holds the rank of Assistant Chief Officer.

2.2. On various occasions between September 2000 and June 2003 (of which full details were provided) she took periods of sick leave, some of which were related to her pregnancies. In accordance with the public service regulations her accumulated absences on sick leave resulted in the rate of sick leave payable to her being reduced or, ultimately, not being paid at all.

2.3. In 2006 the Labour Court issued a decision in the case of the North Western Health Board and Margaret McKenna, Determination no DEE061. This followed a decision of the then European Court of Justice which was a response to various matters which the Labour Court had previously referred to the ECJ.

2.4. The court ruled that sick pay was ‘pay’ within the meaning of Article 141 of the EC Treaty and Directive 75/117 but that a reduction in pay for women as a result of their pregnancy did not constitute discrimination ‘so long as the amount of payment made is not so low as to undermine the objective of protecting pregnant workers’.

2.5. The Labour Court concluded that the ‘objective of protecting pregnant workers required any provisions of the sick pay scheme to ensure;

‘That the offsetting of the absences on grounds of pregnancy related illness does not have the effect that during the absence affected by that offsetting after the maternity leave, Ms McKenna receives pay that is lower than the minimum amount to which she was entitled during the illness which arose while she was pregnant.’

2.6. The Labour Court also made an order to the parties to amend the terms of the sick eave scheme to give effect to its Determination and in due course this was done by means of Circular Letter 15/2009.

3. PRELIMINARY ISSUE

3.1. The complainant submitted her claim to the Equality Tribunal on March 11th 2013 as an equal pay claim. The date of the last incidence of her sick leave was in March 2004.

3.2. The respondent wrote to the Tribunal on September 16th 2015 saying that the last act complained of fell outside the time limits in the Employment Equality Acts. It also objected to the fact that no comparators had been identified.

3.3. The Tribunal agreed that a preliminary hearing would take place on this issue of jurisdiction related to time limits.

4. PRELIMINARY ISSUE-COMPLAINANT’S CASE

4.1. The complainant submitted that no time limits applied in an equal pay case. She relied on s.77 of the Employment Equality Act which deals with time limits. Subsections 5 (a) and 5(b) contain the normal requirements that a claim must be submitted within six months, which period may be extended ‘for reasonable cause’ to twelve months.

4.2. Subsection 5 (c) states that the subsection (i.e. 5) ‘does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term’ which it submitted was essentially saying that no time limits apply in respect of an equal pay claim.

4.3. In its letter of September 16th from the CSSO where it drew attention to the provisions of Section 29 of the Acts and the definition of the ‘relevant time’ in which an entitlement to equal pay may arise and which the respondent says determined the time period permissible in which to bring a valid complaint. That period is defined in subsection 2 as ‘’any time…which falls during the three years which precede, or the three years which follow the particular time’.

4.4. The complainant responded by saying that the quoted section above is in Part IV of the Act headed ‘Specific Provisions as to Equality between other categories of persons’ and that the issue of gender discrimination is governed by sections 19 and 20. However it notes that an identical provision is at section 19 (2) (b) but says that the intent of this is not to put a limit on when a claim might be made but exists to allow an applicant to use a comparator who has been employed to do like work at any time in that three year period and has nothing to do with the running of time in respect of an application to the Tribunal.

4.5. The complainant also said that the Statute of Limitations has no applications to the jurisprudence of the Tribunal and that she had been raising the principle at the centre of this issue for many years stretching back to the 1990’s.

5. RESPONDENT’S CASE

5.1. The respondent says that s11 of the Statute of Limitations provides that an action founded on simple contract ‘shall not be brought after the expiration of six years from the date on which the casus of action accrued’. ‘Action’ is defined in the act as any proceeding (other than a criminal proceeding) in a Court established by law.

5.2. Further, In McGivern v Trustees of TSB ESOP Limited DEC E-2004-007 the Equality Officer was called upon to determine whether the six month time limit applied to claims for equal pay claims. At that time there was no express provision in the Act excluding equal pay claims from the six month time limit. The Equality Officer held that the six month time limit did not apply to equal pay claims and continued as follows:

“I am of the view that the Statute [of Limitations] could be applied to proceedings other than court proceedings in appropriate circumstances given that Section 2 of that Act defines an action to which the time limits apply as “includes any proceeding (other than a criminal proceeding) in a Court established by law.” The use of the word “includes” suggest[s] that civil proceedings other than those in courts may also be covered. Furthermore the argument that the Statute is not itself applicable to non-Court proceedings does not establish that it is incorrect to apply the six-year time limit. If it is accepted that section 77(5) of the 1998 Act does not apply then the most reasonable course in the interests of legal certainty would be to analogously apply the six year time limit where an equal remuneration clause is breached.”

5.3. The Equality Officer appended to the determination the opinion of Senior Counsel on the point, Mary Finlay SC as she then was. The text preceding the opinion noted that Senior Counsel did not express a view on whether any other time limit applied to equal pay claims and stated that in the absence of specific advice from counsel on the point, the Office of the Director of Equality Investigation’s ‘working assumption’ was that a six year time limit applies, in accordance with general contract law, since the entitlement to equal pay is implied into the contract of employment under the 1998 Act.

5.4. The Respondent says that the time limit of six years laid down by section 11 of the Statute of Limitations applies to a claim for failure to comply with an equality clause as it falls under both (a) and (e) of that section, being founded on simple contract (since section 19 implies the equality clause into the contract of employment) and because it is recoverable by virtue of an enactment (since section 77(1) provides that a claim not to be receiving remuneration in accordance with an equal remuneration term may be referred to the Director).

5.5. The Complainant asserts that she did not receive remuneration in accordance with the equal remuneration term in her contract of employment on a series of dates concluding in 2003, i.e. concluding approximately 10 years before she referred her claim under the 1998 Act. The Respondent submits therefore that this claim is statute barred and should be dismissed.

5.6. The respondent also submitted (in its letter of September 16th 2013) that section 29 of the Employment Equality Acts defines a period of three years for the purposes of establishing a comparator in respect of whom a claim is being made and that this represents a limitation period placed on claims based on equal pay.

5.7. Other submissions were made in respect of aspects of the case but as the matter of the time limits is to be addressed as a preliminary issue these are not included here.

6. COMPLAINANT’S SUPPLEMENTARY SUBMISSION

6.1. The complainant sought and was given the opportunity to comment on the submission made at the hearing by the respondent and made a further written submission.

6.2. The complainant says that the Equality Tribunal is not ‘a court established by law’ for the purposes of the Statute of Limitations and is bound by the provisions of the Employment Equality Acts. It notes that the Respondent accepted, in its submission of September 16th 2013 that the Equality Tribunal was ‘not a civil court’ but a Tribunal established by statute.

6.3. It further says that the decision of the Tribunal in the case of Brady v TSB (erroneously referred to in the submission as ‘Irish Life and permanent PLC’) DEC E-2004-007 which was referred to in the respondent’s submission had no application in this case because it predated the amendment to the Employment Equality Act 2004 which removed the previous six month (extendable to twelve) with section 77(5) of that Act and stating that the time limit ‘does not apply to a claim not to be receiving remuneration in accordance with an equal remuneration term’.

6.4. The complainant also challenges an opinion of then SC, now Judge Mary Finlay-Geogheghan to the effect that the ODEI operated on the basis of a ‘working assumption‘ that a six year limit applies and says that guidelines issued by the Tribunal contain the statement that ‘The six month limit does not apply to equal pay cases’.

6.5. She further says that the only wording that can be relied on is that contained in section 77(5) (c) where there is no statutory time limit for an application such as in this case and that the Tribunal may not apply a time limit in the face of this and that the claim for an Order under section 81(1) is within time.

7. FINDINGS AND CONCLUSIONS

7.1. The first issue to determine is whether the Equality Tribunal may be considered to fall within the scope of the Statute of Limitations definition of a ‘Court established by law’. It should be noted that in 1957 when the Statute was enacted we were over ten years away from the first employment rights tribunal to be established in Ireland under the Redundancy Payments Act and twenty years before its remit was extended to unfair dismissals. Since then there has developed a very significant body of employment rights law and tribunals of one sort or another to determine legal rights under a wide range of legislation. It would be odd indeed if this significant sector of bodies dealing with the adjudication of legal rights should be excluded from the provisions applying within the courts.

7.2. I note the complainant’s submission regarding the amendment to the time limits provision in the 2004 Act and the timing of the Brady v TSB case. But it is not in doubt that the time limits referred to in section 77 (5) do not apply to the relevant cases. So the change occurring at that time has no bearing on the separate question as to whether there are any time limits. For the same reason in Brady v TSB the Equality Officer addressed the issue of the applicability of the Statute of Limitations and not just the six/twelve month position so the amended 2004 provision has no bearing on this point.

7.3. The complainant has submitted that ‘there is no provision for a time limit for an application related to a claim’. While this is one way to put it a more accurate rendering of what the statute says is that the specified time limits contained elsewhere in that section do not apply, which is a different thing. In other words the section does not explicitly say that there shall be no time limits which is the case being argued by the complainant and with which I am being asked to agree.

7.4. The respondent also submitted (in its letter of September 16th 2013) that section 29 of the Employment Equality Acts defines a period of three years for the purposes of establishing a comparator in respect of whom a claim is being made and that this represents a limitation period placed on claims based on equal pay.

7.5. It will also be noted that there is a limit of three years to the period of arrears of remuneration payable, section 81 (1) (a).

7.6. The Equality Tribunal (as it then was) dealt with this in the case of 248 Named Complainants v the HSE [DEC-E2012-009]. In that case the Equality officer referred to a Labour Court decision in the case of Midland Health Board and South Eastern Health Board v The Irish Nurses Organisation [DEP 051] in which the following appears

The Court takes the view that the discrimination must still have been continuing up to a period at least three years prior to the claim being made.

7.7. The Equality Officer continued;

Thus, in order to succeed a complainant should be able to prove that the alleged gender imbalance [the issue in that case]continued up to at least the three years in respect of which compensation might be awarded.

7.8. Similarly in A Hotel and A Worker [EDA 0915] cited by the Equality Officer in Hogan & Ors v Coillte Teoranta [EE-2006-461] the Court addressed time limit issues in a case where the complainant had not been employed by the respondent for the three years before making the complaint. It said;

In an equal pay claim the Court can only award arrears in respect of the three years prior to the date on which the claim was presented. In the three years prior to the presentation of her claim the complainant was not employed at the Respondent’s hotel and had no earnings. Consequently this aspect of her claim is now moot and was not further considered by the Court

7.9. There is therefore, both in the cases submitted by the respondent and in the cases referred to immediately above clear authority against the view that NO time limits apply. While not all of these cases are on all fours with the instant case there is only one conclusion one can reach on the existence of some time limit.

7.10. Accordingly I find that, even in the absence of a specified time limit for the submission of claims it can never have been intended that there would be absolutely no limit on the submission of claims. Whether one picks the Statute of Limitations on the basis that the Tribunal falls to be considered for the purposes of equality legislation as equivalent to a ‘court established by law’, and the ‘working assumption’ operated by the Director of Equality Investigations or the three year criterion to be found at section 29 of the Act, and the decisions of the Equality Tribunal and the Labour Court referred to above there are clear intimations of time limits and accordingly I find that the claim is out of time.

7.11. The complainant failed to identify a comparator but if she had done it would have to meet the eligibility criteria in Section 29 (2).

8. DECISION

I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015.

For the reasons given I find that the complaint is not within jurisdiction on the basis that it is ‘out of time’ and I dismiss it.

____________________

Pat Brady

Adjudication Officer/Equality Officer

21st June 2016