FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : WATERFORD INSTITUTE OF TECHNOLOGY (REPRESENTED BY WATERFORD INSTITUTE OF TECHNOLOGY) - AND - DR KATHLEEN MOORE WALSH DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Decision No: DEC-E2016-153 EE/2013/366.
BACKGROUND:
2. The complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 21 November 2017. The following is the Determination of the Court:
DETERMINATION:
This matter comes before the Court by way of an appeal brought by Ms Moore-Walsh (“the Complainant”) against a decision of an Equality Officer (DEC-E2016-153, dated 29 November 2016) under the Employment Equality Act 1998 (“the Act”). The Complainant’s Notice of Appeal was received by the Court on 6 January 2017. At first instance, the Complainant alleged that she had been discriminated against by her employer, Waterford Institute of Technology (“the Respondent”) on grounds of race and gender contrary to the Act. She also alleged that she had been victimised by the Respondent. The Equality Officer held that the complaints of discrimination were not well-founded but upheld the complaint of victimisation. The Respondent cross-appealed against the Equality Officer’s decision to uphold the complaint of victimisation and against the remedy she awarded in respect of that element of the original claim. The Respondent’s Notice of Appeal was received by the Court on 9 January 2017. The Court heard the appeal in Waterford on 21 November 2017.
The Complainant is an American citizen and has been employed as an assistant lecturer/lecturer in law by the Respondent since October 1997. The genesis of the within proceedings is a promotional competition for the position of Assistant Head of the Department of Humanities for which the Complainant was interviewed on 28 January 2013. The Complainant’s originating complaint form was received by the then Equality Tribunal on 29 July 2013. It follows that the relevant period which could have been encompassed by her complaint under the Act was the six-month period ending on the latter date. It is accepted that in circumstances where a complainant establishes that she was the subject of a discriminatory act within the relevant period encompassed by her complaint, she is then permitted to submit that the impugned discriminatory act is in a continuum with other such acts that may have occurred prior to the commencement of the relevant period. On the facts of this case, the impugned interview took place prior to the period encompassed by the claim referred by the Complainant and received by the Equality Tribunal on 29 July 2013. When asked by the Court at the outset of the hearing to indicate what act or acts of discrimination she had been subjected to by the Respondent in the relevant period, the Complainant was unable to identify any such act. She then withdrew her complaint of discrimination.
The Court then proceeded to take the Complainant’s evidence in relation to the victimisation she believes she was subject to as a consequence of raising her concerns that the Respondent may not have been compliant with its obligations under the Act in the manner in which the aforementioned promotional competition had been run. As the complaint of victimisation was received by the Equality Tribunal also on 29 July 2013 only acts of alleged victimisation that occurred up to that date (and on or after 29 January 2013) are encompassed by the complaint. The Complainant gave evidence to the Court in relation to her concerns about the composition of the panel that interviewed her on 28 January 2013. Those concerns, it appears, prompted the Complainant to request that an independent equality review of the selection process be undertaken. The Respondent agreed to this. Terms of Reference were drawn up by the Respondent’s then Head of HR and agreed to by the Complainant on 15 March 2013. The Respondent then commissioned Ms Bernadette Treanor of Beo Solutions to carry out the independent review. Ms Treanor issued her report to the Respondent on 28 May 2013. The Complainant was on vacation in the United States in June 2013 when it came to her attention that Ms Treanor’s report had been possibly received by the Respondent. She contacted the then President of the Respondent institute, Dr Ruairi Nevin, on 10 June 2013 requesting a copy of the report. Dr Nevin referred her request to Mr O’Sullivan, Head of HR. Mr O’Sullivan replied by email to the Complainant on 20 June 2013. In his email of that date he stated: “I hope to have the report very shortly”. In fact – as he confirmed in his direct evidence to the Court – Mr O’Sullivan was in possession of the report at that time but delayed sending it to the Complainant as he had requested legal advice from the Respondent’s solicitors in relation to its contents. On 24 June 2013, Mr O’Sullivan wrote to the Complainant requesting her consent to retrospectively insert a number of additional provisions into the Terms of Reference that had been agreed between the parties on 15 March 2013.
The following are the additional provisions to which the Complainant’s consent was sought:
“17. Those to whom the report has been circulated shall have 15 days from the date of circulation to present their comments to the Reviewer. The Reviewer will take account of those comments but she shall only amend the report where she accepts or agrees with the points made. The conclusions of the report are not subject to change and this will only be considered in exceptional circumstances such as a significant omission being shown to have occurred.18. The final report shall issue within 5 days following the deadline for responses or where significant time (3 weeks) has elapsed without circulation of the report.”
The Complaint did not consent to the proposed additional provisions and Mr O’Sullivan proceeded to issue her with a copy of the report on 1 July 2013.
The Complainant’s submission to the Court is that the Respondent’s delay from 28 May 2013 until 1 July 2013 when it finally issued her with a copy of Ms Treanor’s report, coupled with Mr O’Sullivan’s attempt to get her to consent to amend the Terms of Reference, constitutes victimisation within the meaning of the Act.
The Law
Section 74(2) defines ‘victimisation’ within the meaning of the Act as follows:
- “(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.”
- (a) a complaint of discrimination made by the employee to the employer,
The Court has carefully considered Mr O’Sullivan’s evidence in relation to his decision to withhold Ms Treanor’s report from the Complainant, his admission that he lied to her because he was awaiting legal advice from the Respondent’s solicitors in connection with the report, and his explanation for his request to the Complainant for her consent to the insertion of a number of additional paragraphs into the Terms of Reference. The Court considers Mr O’Sullivan’s above actions on behalf of the Respondent as being very far removed from what it considers to be best practice. However, it does not follow that because these events occurred subsequent in time to the Complainant raising issues with her employer in January 2013, that they can be automatically deemed to have occurred as a consequence of that complaint and thus constitute victimisation as defined by section 74(2).
Section 85(A) of the Act places the burden on the Complainant of establishing a prima facia case (in this instance) that the impugned acts constitute victimisation. That section provides:
- “85A.—(1) 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.
(2) This section is without prejudice to any other enactment or rule of law in relation
to the burden of proof in any proceedings which may be more favourable to a
complainant.
(3) Where, in any proceedings arising from a reference of a matter by the Authority
to the [Director General of the Workplace Relations Commission] under section 85(1),
facts are established by or on behalf of the Authority from which it may be presumed
that an action or a failure mentioned in a paragraph of that provision has occurred,
it is for the respondent to prove the contrary.
(4) In this section ‘discrimination’ includes—
- (a) indirect discrimination,
(b) victimisation,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which section 9 applies of a provision
which, by virtue of that section, is null and void.
Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under
this Act, are revoked.”
- (a) indirect discrimination,
The Court, accordingly, determines that the Complainant’s appeal fails and the Respondent’s cross-appeal succeeds. The decision of the Equality Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
JD______________________
18 December 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.