EDA1610

1.Appeal

This is an appeal under Section 83 of the Employment Equality Acts 1998 to 2011, by Mr David F. Matthews, (the Complainant) against a decision of the Equality Tribunal The Equality Officer issued the decision on 13/08/2015. The appeal was filed with the Labour Court on 10/09/2015.

The Equality Officer found that a complaint that ESB Networks (the Respondent) victimised the Complainant within the meaning of Section 74(2) of the Act was not well founded.

The Complainant appealed against that decision to this Court. The case came on for hearing on 15 March 2016 and again on the 12 May 2016.

2.Background

The Complainant worked for the Respondent for 43 years and 9 months until his retirement on 13 July 2012. He was initially employed as an electrician. Over time he progressed through the organisation and finally reached the grade of Engineering Officer which has a Grade G designation within the internal grading structure.

In 2010 the Complainant was unsuccessful in an internal competition for promotion. He complained to the Equality Tribunal that the Respondent discriminated against him in the competition on the age ground. That complaint was held not to be well founded.

On 10 October 2012 he submitted a complaint to the Tribunal in which he alleged that he had been penalised by the Respondent for taking the complaint referred to above.

3.Complainant’s Case

The Complainant contends that after he made a complaint under the Act in 2010 he was subjected to adverse behaviour by his management that amounts to penalisation within the meaning of the Act.. He cites the following examples

• His Corporate Procurement Card was taken off him in December 2010
• After the case all reports and requests from the Legal Department had to be routed through his line manager and vice versa making his job more difficult and his involvement in legal cases less inclusive.
• He was not contacted by his line manager when on sick leave undergoing major surgery in 2010. Neither was he interviewed on his return to work after that period of illness.

• After the case his line manager refused to authorise payments for some of his monthly mileage claims because they did not contain sufficient information regarding the locations he visited. This resulted in him being at a considerable financial loss.
• After his manager changed he was informed by his new manager that all of his outstanding expenses would be discharged in full but that his mileage claims would be reduced by 50%.

4.Respondent’s Case

The Respondent submits that some of the complaints listed above are out of time and cannot be pursued at this time. It relies on the statutory time limit of six months for the commencement of complaints under the Act.

The Respondent submits that following the financial crisis in the state the Respondent introduced strict financial controls on all payments. This included more strict controls on the payment of expenses.

Mr Michael Briscoe, the Complainant’s manager, told the Court that that he notified all staff by email of this change. He said that he applied it equally to all staff including the complainant. He said that all other staff provided the required details on their mileage claims and accordingly were paid on the basis of those claims. Where the Complainant supplied the relevant details he too was paid. Where he refused to provide the relevant details approval was withheld.

He said that he met with the Complainant to explain the difficulties he was having regarding the Complainant’s claims. He advised him that he was required to provide better details on his claim forms and that where he did so they would, following assessment, be paid. He said that the Complainant did not subsequently provide the required detail on all of his claim forms and accordingly he could not approve payment of those claims.

Mr Gerry Whelan, a Human Resources Manager, told the Court that following the financial crisis the Company’s finances were under severe pressure. All costs were under examination and all payments were subject to close scrutiny. He said that the payment of mileage claims was more rigorously examined. He said that he reviewed the disputed claims in this case and formed the view that the claim forms did not contain sufficient details to pass scrutiny.

Ms Helen Herskind told the Court that she took over as the Complainant’s Manager in January 2012. She said that she examined the outstanding expenses claims and prepared a spread sheet to aid her analysis. She said that there was nothing unusual in this as she tended to prepare spreadsheets in relation to all aspects of her work. She said that having reviewed the disputed expenses and having consulted with her predecessor in the post and with Human Resources she recalculated the mileage claims together with all other outstanding expense claims that totalled roughly 50% of the total amount claimed. She put this to the Human Resources Manager Mr Whelan for review. He requested that the mileage calculations be re-done using the AA route planner as the basis for assessing distances. She did so and a new but similar figure was arrived at.

She said that she told the Complainant of this calculation leading up to his retirement in July 2012. She said that otherwise she made every effort to ensure that all the Complainant’s outstanding claims were finalised before his retirement in July 2012. She acknowledged that there had been a delay in the final payment. However she said that she had no control over the payment of expenses after she approved them and submitted them to the Finance Department. She said that she did all in her power thereafter to ensure that the Complainant’s retirement from the Company was a memorable occasion for him.

5.The Law

Victimisation is defined by s.74(2) of the Act as follows: -

• For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
  • (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

    (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

    (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

    (d) given notice of an intention to do anything within paragraphs (a) to (c).

• a.The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

  b.The Complainant was subjected to adverse treatment by the Respondent, and,

  c.The adverse treatment was in reaction to the protected action having been taken by the Complainant.

• �Section 77 (5) of the Act states
  • •(5)Subject tosubsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under thissectionafter the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

In accordance with section 77(5) a complainant must bring a claim for redress in respect of victimisation under the Act within 6 months from the date of the occurrence or as the case may be the most recent occurrence of the act of victimisation to which the case relates.

The Complainant brought the complaint on 10 October 2012. Accordingly the Complainant may only relate to an occurrence of the act of victimisation that occurred within the six months ending on that date.

The Court accordingly finds that the only occurrence of an alleged act of victimisation that took place in the six months prior to the lodging of the claim relates to the withholding of the complainant’s mileage and expense claims and to the disconnection of his phone without notice.

In making out the case the Complainant must show that

• a.The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

  b.The Complainant was subjected to adverse treatment by the Respondent, and,

  c.The adverse treatment was in reaction to the protected action having been taken by the Complainant.

It is also self-evident that the complainant was subjected to adverse treatment by the Respondent when his expense and mileage claims were no longer paid in full after he took the case in 2010.

The issue before the Court therefore comes down to whether that action was taken in reaction to the protected action having been taken by the Complainant.

The Court has given careful consideration to the extensive written and oral evidence before it. On balance the Court finds that the contemporaneous documentation supports the evidence submitted by Mr Briscoe, Mr Whelan and Ms Herskind that the financial controls were tightened across the company in the wake of the financial crisis in 2010. The Court finds that this included a general tightening up of all procedures regarding the payment of mileage or other out of pocket expenses. The new procedures were explained to the Complainant. He was asked to comply with them but he declined to do so. As a result the claims he submitted could not be approved and payment was withheld. Several attempts were made to have him bring his claims into line with the new procedures. Where he did so they were paid. Where he did not do so they were not.

When Ms Herskind took over as his manager she made significant efforts to bring the matter to an end. She prepared a spreadsheet detailing all of the disputed amounts. She recalculated each of them albeit it using an unapproved database. However when she was instructed to recalculate the distances involved using the agreed database she did so and made a proposal to Human Resources based on her best estimate of what she could reasonably stand over with the auditors. This amount was approved for payment.

The Court therefore finds that the adverse treatment suffered by Complainant was not in reaction to the protected action he had taken. It was a reasonable response to the financial crisis that was universally applied within the Company. Had the Complainant complied with the new system he would have had his claims paid at an earlier time. However he refused to alter his historical practices and this led to the delay he experienced.

The Court is fully satisfied that the Respondent did not victimise the Complainant in this regard.

The Court has also considered the circumstances surrounding the disconnection of the Complainant’s mobile phone. The Court finds that the documents before it and the evidence of Ms Herskind is reliable in this regard. The Complainant was incurring phone bills on behalf of the Respondent after he retired from his post. The Respondent tried to contact him to regularise the position but those calls went unanswered. Ultimately the Respondent terminated the contract and disconnected the phone.

The Court finds that the Respondent did not victimise the Complainant within the meaning of the Act in this regard.

Determination

Having considered all of the evidence before it the Court determines that the complaint is not well founded. The appeal is not allowed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
19th May, 2016.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.