ADJ-00008350

Complainant

Respondent

Anonymised Parties

Administrative Assistant

A State Body

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011049-001

28/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011049-002

28/04/2017

The complainant is employed by the respondent as an administrative assistant since 6 August 2006. She is claiming that she has been discriminated against on the grounds of disability in relation to access to promotion and that she has been victimised contrary to the Employment Equality Act. She is also claiming that the respondent is in breach of the Payment of Wages Act, in that she is alleging that the respondent failed to give her incremental credit for a period she worked in another public body, and she is on the wrong rate of pay since the commencement of her employment.

The complainant submitted that she applied for promotion to executive officer in 2008. She was interviewed but she was unsuccessful. She said that in the feedback she was told that she was in a very good position should another vacancy arise in the area in the future.

In September 2015, a vacancy arose and the complainant applied for the post of executive officer. She said she was not called for interview even though she believed she was fully qualified to do the job. She was an informed that she did not meet the educational requirements for the post. She required a scientific qualification.

The complainant said that the educational qualifications for the post were changed since the 2008 application process. The educational requirements then included a scientific qualification or an honors degree in business studies and or any other relevant professional qualifications. The complainant said she qualified for this interview as she holds a bachelor’s degree in civil law.    

The complainant states that she suffers from a disability. She said she was formally diagnosed with chronic clinical depression in 2004. She made a confidential declaration to HR about her disability in 2008.   In September 2014, she made an informal declaration to her manager about her depression   and in October 2015 she made a formal declaration of her disability to HR. The complainant said that she believes the admission of having a disability played a part in the reason her application was refused. The respondent, by limiting of the educational requirements of the competition in 2015 to those with scientific degrees in comparison to the educational requirements for the 2008 competition, excluded her from the competition in 2015 and she believes that this was due to her admission that she suffers from depression.

The complainant also states that she was victimised contrary to the Act. She said that she was critical at meetings with HR of senior management’s treatment of another employee with a disability, who resigned and took a successful constructive dismissal case. She said that she was upset about the matter and took a couple of months off suffering from stress. She believes this intervention on behalf of another employee and the fact she was on sick leave were reasons HR and her director believed she was unsuitable for promotion and the job description was altered to exclude her.   She said that she also spoke to her director in relation to her line manager and she subsequently withdrew the issue raised. The complainant said that she also made a complaint to her director in relation to the alleged behavior of her manager towards other staff member. She contends that these complaints might have had an impact on her application for the post.

The respondent submitted that the referral of these complaints are outside the statutory time limits as set out in Section 77(5) of the Employment Equality Acts.

It was submitted that the complainant commenced employment on the 9^th of August 2016 as an administrative assistant in the service contracts division. She was provided with a contract of employment in which her conditions of employment and starting salary were set out.

It was submitted that the respondent is an equal opportunities employer and comply with all its obligations under the Disability Act 2005.

The complainant did not disclose her disability when she was recruited. The complainant made a reference to her depression in an email to her Director in September 2014, but the information was not passed on to the Access Officer.   The complainant formally notified her disability to the respondent on the 16^th of October 2015.

The complainant applied for the post of contracts executive in 2015, a post she had previously applied for unsuccessfully in 2008. In 2008 the role was open to applicants with an honors degree in the science fields, business studies, or other relevant professional qualifications. Therefore, the complainant’s degree in civil law met the qualification requirements.

In accordance with the respondent’s Recruitment, Selection & Appointment of Permanent Staff’ Policy the job specification was reviewed by the line manager and was approved by HR prior to advertising the post. In early 2015, when the contracts executive vacancy arose a decision was taken to remove reference to a non-scientific degree as a relevant qualification as it was deemed no longer sufficient to fulfil the role.

A vacancy arose for a contracts executive in February 2015, the revised educational qualifications applied and the complainant did not apply. Another vacancy arose in August 2015 and the complainant applied. The applications were screened by HR and the hiring manager and the complainant was not shortlisted for interview. She was notified by email dated 22^nd of October that she was not shortlisted as she did not meet the minimum requirements for the role, i.e. she did not have the relevant scientific degree. Other applicants did not have a scientific qualification were not shortlisted either. There were sixty applicants and one vacancy. An external candidate with a scientific qualification was appointed.

It was submitted that the complainant could not have been discriminated against on the disability ground as the complainant only disclosed her disability to HR after the recruitment process was completed.  

The complainant appealed the decision not to select her for interview. The respondent had a hearing into the grievance and the complainant was informed on the 31^st May 2016 that her appeal was unsuccessful. She was informed that management had decided that a scientific qualification was necessary for the role and that the decision that the decision to amend the job specification was made early in 2016 and was updated prior to the job being advertised. The complainant decided to appeal that decision under the grievance procedures and the initial findings were upheld by letter dated 29^th of November 2016.

The respondent submitted that the complainant had failed to establish a prima facie case of discriminatory treatment on the disability ground. The complainant applied for the job and was not short-listed because she did not meet the minimum requirement for the vacant post. The mere fact that she disclosed a disability does not in any way link such a disclosure to her unsuccessful application.

Victimisation

The respondent submitted that the nature of the alleged victimisation is unclear from her complaint. Section 74(2) provides:

“(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.”

The complainant has never, before the current claim, sought redress under the Equality Act for the purpose of subsection (a), opposed any unlawful act under the Act for the purposes of (b), given evidence in any proceedings for the purposes of (c), nor did she, during her employment, prior to the instant claim, give notice of any intention to do so for the purpose of subsection (d).

In her submission, the complainant alleges that she was involved in a separate third party complaint involving another member of staff in 2013. The complaint was under the Unfair Dismissals Acts and the complainant is of the view that this resulted in her not being shortlisted for the promotional post which she alleges amounts to victimization under the Equality Acts. The respondent denies the claim in its entirety as the complainant had not involvement in the complaint, the facts of that complaint were entirely different and unrelated to the facts of the instant case and that complaint was taken under the UD Acts and did not relate to disability in the workplace.

The respondent stated that the complainant has made a number of vague allegations in relation to informally raising concerns about managements treatment of other staff members, which she pursued through the appropriate internal channels. None of the other staff members allegedly mistreated pursued a complaint.

The respondent submitted that the complainant has failed to establish facts upon which victimization could have occurred within the meaning of the Act.

The matters for decision by me are (i) whether or not the complainant referred her complaints for adjudication within the statutory time limits of Section 77(5)(a) of the Employment Equality Acts, (ii) if not, whether or not the complainant has shown "reasonable cause" in terms of section 77(5)(b) of the Act which would enable her to avail of an extension of time to twelve months within the meaning of that subsection and (iii) if the complaints are within time and therefore properly before me, whether or not the respondent discriminated against the complainants on the disability ground in terms of section 6(2) of the Employment Equality Acts 1998 and contrary to section 8 of the Act, when it failed to shortlist her for interview.

Statutory Time Limits

The respondent has submitted that the complaint has been submitted outside the statutory time limit. The complainant submitted that the six months commenced on the date of the outcome of the final appeal and her referral was within six months of that date.

Section 77(5) provides:

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination

or victimisation may not be referred under this section after the end of the

period of 6 months from the date of occurrence of the discrimination or

victimisation to which the case relates or, as the case may be, the date of

its most recent occurrence.

(b) On application by a complainant the [Director General of the Workplace

Relations Commission] or Circuit Court, as the case may be, may, for

reasonable cause, direct that in relation to the complainant paragraph (a)

shall have effect as if for the reference to a period of 6 months there were

substituted a reference to such period not exceeding 12 months as is specified

in the direction; and, where such a direction is given, this Part shall have

effect accordingly.

Therefore, Section 77(5) of the Acts provides that the period within which a complainant must refer a complaint is 6 months and can be extended to a maximum period of twelve months from the date of the most recent occurrence of the alleged discrimination, where the complainant can show "reasonable cause" for the delay.

The following are the relevant dates: 22^nd October2015 the date the complainant was notified that she was not shortlisted for interview, the outcome of the first appeal on 31^st of May 2016, the outcome of the second appeal on the 29^th of November 2016 and the referral of the complaint on the 24^th of April 2017. The question is if the outcome of the appeal constitutes a new act of discrimination? In evaluating this question, I considered the caselaw in the Equality Officer’s decision in the case of MacCába & others v St. Patrick’s College, Dublin DEC-2011-122 where the complaints had not been referred within 6 months of the date of the outcome of interviews. The complainants in that case appealed the decision not to appoint them following an interview and the respondent reviewed all the documentation connected to the interview. The complainants referred the complaints within 6 months of the outcome of the appeal. In deciding if the referrals were within time, the Equality Officer applied the English case of Cast v Croydon College where the UK Court of Appeal held that "a decision in response to the repetition of an earlier request might amount to a new act of discrimination, even if made on the same facts, where it resulted from a new consideration of the request" and held that there was a new consideration of the decision of the interview panel and the 6 month time limit ran from the date of the outcome of the appeal.

The complainant initially sought an explanation of the reasons the educational criteria was changed to scientific qualifications for the 2015 competition from the educational qualifications which applied in the 2008 competition. The respondent did not respond and the complainant made a formal complaint under the grievance procedures on the 24^th of April 2016. The complainant received an apology about not getting a response. On the 31^st of May 2016, she also was provided with an explanation about the change in criteria and the complainant appealed that outcome on the 19^th of September 2016 and received a response 29^th of November 2016 again with an explanation for the reasons a scientific qualification was required.

In applying the Cast v Croyden College jurisprudence above, I considered whether the outcome of the appeal constituted a new act of discrimination. I am satisfied there was no re-consideration of the original decision not to short-list the complainant because she did not have scientific qualifications. The respondent merely provided an explanation for the reasons management believed a scientific was an essential requirement for the position. The outcome of the appeal was a reiteration of the original decision and did not amount to a new act of discrimination. For these reasons, I am satisfied that the 6 months’ time limit within which a complaint must be referred under S. 77(5), commenced on the 22^nd of October 2015 and ended on the 21^st of April 2016. The complaint was received by the WRC on the 24th of April 2017 and outside the statutory time limit for referring complaint. The extension of the time limit for reasonable cause for the delay under S. 77(5) does not arise as the complaint was referred outside the 12 months’ time limit.

The complainant also claims she was victimised.   She has not provided any evidence of alleged incidents occurring in the 12 months prior to the referral of her complaint on the 24^th of April 2017. All the incident of alleged victimisation referred to occurred either before or in or around October 2015. I find therefore the complaint of victimization was referred outside the statutory 6 months’ time limit.

I find that the complaints of discriminatory treatment and victimisation were referred outside the statutory time limits and I have no jurisdiction in the matter.

The complainant stated that she commenced working for the respondent in August 2006 and she was placed on point 1 of the salary scale. She said that she was 2.77 years working in another public body and the respondent did not give her any credit for that and placed her on the first point of the scale. However, she did gets credit for the pension contributions.

The complainant made complaint under the internal grievance procedures on the 12^th of April 2016. She queried why she was treated as a new entrant for pay purposes given the terms of the Public Service Superannuation (Miscellaneous) Act 2004. She was informed that she was not entitled to any credit for the service in the other public body because qualifying service is determined by the actual service minus 3 years. The complainant had only 2.77 years’ previous service and therefore point 1 of the scale was the correct commencing point. The complainant appealed internally and the decision was upheld.

The respondent submitted that the complaint has been referred outside the statutory 6 months’ time limit for referring the complaint. The complainant, in her complaint form, stated that the alleged contravention took place on the 6^th of August 2006, and this complaint is grossly outside the time limits.

The complainant commenced employment with the respondent as an administrative assistant (equivalent to a public sector clerical officer grade) in August 2006.

For positions, equivalent to clerical officer grade in non-commercial state bodies (such as the respondent) organisation), a candidate may be entitled to incremental credit for previous service within the public sector upon rejoining State employment. It is subject to strict criteria set out in Department of Finance Circular – 21/2004, which is implemented by the respondent via its parent Department of Health circular 02/2005. The complainant had 2 years and 9 months previous service with another public body.

Paragraph 3(a)(iii) of the 2005 circular states “Qualifying service means actual service less three years in the case of grades related to the clerical officer grade”. The complainant did not reach the threshold for qualifying service and could not be awarded incremental credit on her starting salary.

The information available to the respondent at the time the complainant was hired was that the complainant had not the required service to qualify for incremental credit. The staff member to whom the complainant has referred to joined the respondent in 2004 and before the Department of Finance Circular 21/2004 came into operation.    

The first matter I have to consider is whether the complaint was referred to the WRC within the six-month statutory timeframe as set out in section 41(6) of the Workplace Relations Act, 2015 which states:

“subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.“

I note that the complainant raised the issue of not having received incremental credit for the period she was employed in another public body in April 2016 and in October 2016 and her complaint was not upheld. She then referred a complaint under the Act on the 28^th of April 2017 stating that she should have received the payment on the 6^th of August 2006. Her point is that she was put on the wrong salary scale on that date and has ongoing consequences for the incremental scale she is now on.

The High Court in the case of the Health Service Executive [20014] IEHC 331 in relation to time limits under the Act held that every breach of the Act amounts to a “contravention” and the time limit runs from the date of the contravention “to which the complaint relates.” In that case the complainant, in his claim had referred to dates which were within the six months prior to the referral of the contravention to the EAT. Mr. Justice Hogan held that the complaint was referred within the statutory time limit.

The complainant did not refer in her complaint to any date in the 6 months prior to the referral in which she alleges the Act was contravened. The date she complained that the Act was contravened was the 6^th of August 2006. I find therefore, that the complaint about the contravention of the Act was referred to the WRC outside the statutory time limit. I have no jurisdiction in the matter.

The complaint was not referred within the statutory 6 months time limit and I have no jurisdiction in the matter.

Employment Equality Act, Discrimination, Disability, Payment of Wages Act, time limits, Date the Act was contravened.