Complainant

Respondent

Parties

Jill Loughrey

Department of Transport, Tourism & Sport

Complainant

Respondent

Anonymised Parties

A senior investigator

A government department

Representatives

None

Aoife Carroll, BL instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00005641-001

04/07/2016

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

CA-00005641-002

04/07/2016

The complainant is a senior investigator, based in an Investigation Unit. She claims gender discrimination and victimisation. The respondent denies the complaints.

In her opening statement, the complainant outlined that she commenced work at the investigation unit in 2009, at a time it operated within the safety authority. The investigation unit now operates within the parent Department. On her appointment as investigator, the complainant assumed the full range of duties of the more senior role of senior investigator. She continued in this acting role for six years, until her appointment as senior investigator. She said that her role and that of the comparator, a senior investigator, were interchangeable. The comparator would attest to the complainant carrying out the full range of duties of a senior investigator. The complainant submits that her performance of higher duties was not accounted for in remuneration, leading to an underpayment. This extended performance was not taken into account on her appointment to the senior investigator role, i.e. in incremental credit. The complainant refers to Circular 38/2007 which provides that an employee in the public service should be treated as if they have been promoted for pay and incremental progression. The complainant asserts that she has the greatest qualifications and experience, and has carried the greatest responsibility as investigator-in-charge. She receives pay of €65,000 per annum while two male comparators receive €75,000 and €79,000 respectively.

The complainant outlines that when she referred a complainant to a third party, the respondent attempted to end the acting up arrangement. Effectively, this would have demoted her. It also threatened to reassign her to a graduate position in the safety authority or to be redeployed to the Department. The respondent stated that a period of maternity leave she took was “unfortunate” in the light of the resignation of a senior investigator colleague. When she was successful in obtaining the senior investigator role, she was offered a lower salary then her current salary and informed that she had to sign the contract or it would be offered to someone else. Her salary had remained the same since 2013 and the respondent now indicates it can offer new recruits a higher entry point. The complainant states that she is the longest serving, most experienced, most qualified and by virtue of her gender, the lowest paid. She asks that she be properly paid for the years she performed higher duties and that these years be taken into account following her subsequent appointment as senior investigator.

The complainant said that she had been the only investigator in the Investigation Unit, but carried out the investigator-in-charge role. She led major investigations including the largest investigation undertaken by the respondent. This related to an incident in August 2009 with great potential for the loss of life. She also completed a wide-ranging investigation, incorporating many incidents where operators ran red lights. This was published in 2016. Investigations were assigned by the Chief Investigator. The complainant stated that as an engineer, her expertise was required in all investigations. She also wrote the manual for how investigations should be undertaken and this was issued in 2011.

The complainant outlined that the senior manager attempted to end the acting arrangement in the email of the 26th February 2014. In this email, the senior manager asked the chief investigator not to assign investigator-in-charge roles to the complainant or an investigator colleague until the Equality Tribunal process concluded. The issue of the removal of the graduate position in the safety authority was discussed at the meeting of the 20th March 2014 with the senior manager and Head of Governance & Regulation. They stated that there was no senior investigator position and so the Department would have to take the complainant back. The complainant stated that it had been the senior manager who made the comment of her maternity leave being “unfortunate”. The complainant stated that she would have been assigned her female colleague’s position, had she not been on maternity leave at the time.

The complainant outlined that she was not paid allowances while on maternity leave, but had been paid allowances in a previous period of maternity leave while working for the parent Department. The complainant stated that redeployment was mentioned in the letter from the Department Personnel Officer of the 20th April 2015.

The complainant said that HR Officer in the parent Department informed her that she was successful in her application for the senior investigator post. The complainant raised the outstanding issues and how they affected her increment. She should have started at the maximum point of the senior investigator scale. The HR Officer replied that this was not going to happen. The complainant was offered €3,000 less in the contract and informed that she was “marking time”. The complainant said that she asked what marking time meant as she did not know. She also did not know that €65,000 would be the starting rate of pay. The complainant said that she was to start at the bottom of the scale while her comparator was to start at the top of the scale. This was a new senior investigator role and allowances were allocated for qualifications.

In respect of her claim for victimisation, the complainant said that this arose on the 19th February 2016 when the Assistant Secretary emailed her about the non-payment of arrears due to her. The event of victimisation of the 30th June 2015 was the conversation with HR regarding the complainant’s starting pay on promotion. The complainant was told to take the job “pronto” or it would be offered elsewhere. The complainant said that she has not received an increment since January 2014, but was doing the same job as the comparator, who was paid €74,000.

The complainant outlined that a colleague was appointed in January 2016, during her maternity leave. He was paid €79,000, a car allowance and an on-call allowance of 7.5%. She stated that she was paid €3,500 on-call allowance. This colleague was less qualified and had no accident investigation experience. He had never performed the investigator-in-charge role. He was seconded from an operator. She referred to another appointment made in early 2016 and this person was also paid more. The complainant referred to another colleague who was part-time. She has worked in the role longer than others, except for one colleague. She had completed qualifications that others had not completed and also helped them in their role.

In cross-examination, the complainant agreed that the email of the 26th February 2014 was part of her first complaint and that this predated the current complaint by more than six months. She also agreed that the meeting of the 20th March 2014 pre-dated the current complaint by more than six months. It was put to the complainant that this had been dealt with in her first complaint; she replied that she had raised the issue of gender discrimination and asked for the position to be regularised. The respondent had asked for the meeting. The complainant was asked whether this related to re-grading; she replied that it related to her complaint. The complainant accepted that it related to her salary. She said that her first complaint related to pay.

It was put to the complainant that the letter of the 24th April 2014 pre-dated the current complaint by more than six months and was also part of the first complaint; she accepted how long ago the letter was sent and said that it had never been brought up in the course of the first complaint. This never proceeded to hearing. The letter had been provided to her in August 2014 by the Head of Governance & Regulation. She said that she would have not relied on it at the first hearing as it had not been supplied to her. It was put to the complainant that the relevant email from the Assistant Secretary was that of the 16th December 2015 and not the 19th February 2016; she replied that this was when she was on maternity leave and it was a difficult time. The complainant referred to the Assistant Secretary’s later email of the 19th February 2016.

The complainant was referred to a course of emails of April 2015 and said that she disputed that she was only owed €11,217. She disputed how this amount had been calculated. She raised the application of a circular and the Assistant Secretary said he would look into it. The complainant did not know if the Department’s position changed and she had asked a HR colleague to check. It was put to the complainant that the basis the amount of €11,217 was calculated had been explained to her; she referred to her correspondence with the senior manager where she asked whether the circular had been applied. It was put to the complainant that the letter of the 14th April 2014 explained the basis for the calculation and this was either part of the first complaint or settled at mediation. Commenting on the email from the Assistant Secretary of the 16th December 2015, the complainant said she wanted the issue resolved before the start of her maternity leave. She did not accept the email’s contents and replied to it. She said that the Department were dragging its heels. She wanted the Assistant Secretary to present her figures to the Department and did not think that the position was absolute. The reference to allowances not effecting starting pay were put to the complainant; she did not accept this.

In respect of the contents of the email of the 13th April 2014, the complainant accepted that following the mediated agreement, the Department had sought sanction for the new post and she was successful in applying for the role. She accepted that she had been paid the amount of €11,217 but was owed more. She commented that she had to chase the implementation of the agreement and there was no contact from the Department. It was put to the complainant that the pay function was restored to the Department in July 2015 so there was no need for sanction from D/PER; the payment was made on the 14th January 2016.

It was put to the complainant that the Department had complied with the agreement; she replied that it had not paid all the arrears. It was put to the complainant that the basis of how the arrears were calculated was always clear; she replied that the Department had wanted to pay the least amount possible. She sought the payment due under the Circulars and this was confirmed at mediation. It was put to the complainant that this payment was ex gratia; she replied that she had not asked to go back to mediation as she was expecting more.

The complainant accepted she had commenced in 2009 and had applied for an inspector role in the safety authority and the investigator role in the investigation unit. She did not recall whether she had applied for the senior investigator role. It was put to the complainant that she had been placed on the investigator scale, the equivalent of Grade II engineer. It was put to the complainant that her comparator had been placed on the senior investigator role, equivalent to Grade I engineer and had stayed on the scale. She commented that her comparator had earned his increments. It was put to the complainant that she was later formally appointed as senior investigator, following a competition; she replied that she had not been formally appointed to the senior investigator acting up role. The complainant confirmed that she had received increments since the commencement of her employment in 2009.

The complainant was referred to the senior manager’s email of the 26th February 2014 and the reply from the chief investigator that the complainant would not be removed from investigator-in-charge duties; she replied that she and the named colleague had not been doing like for like work and this colleague did not lead investigations. It was put to the complainant that the respondent had made considerable effort to resolve issues on the 20th March 2014; she replied that she was upset at the meeting and it had not been a pleasant experience. At the meeting, there was reference to making her senior investigator. She had not suggested going on the senior investigator scale. She would have challenged the basis of the arrears calculation set out in the letter of the 14th April 2014.

It was put to the complainant that the proper comparator for her gender claim was an investigator colleague; she referred in reply to her experience and qualifications. There was no one else on her salary scale. This colleague had been on secondment and did less work. The complainant commented on a meeting with a named HR colleague on the 14th August 2013 who stated that this was “discrimination”.

In respect of her placement on the salary scale for the senior investigator role, it was put to the complainant that the formula applied by the Public Appointments Service provided that civil servants would receive their existing salary; she was aware that she would not be on the lowest point on the scale. It was put to the complainant that the email of the 7th July 2015 explained the starting point of her salary; she agreed and commented that the advertisement for the role referred to a starting salary of €65,000. It was put to the complainant that it was clear that her salary was to be €65,000; she replied that she had not been happy to sign a contract for €61,698. The complainant said that she was sure that, after everything, she would be on a reduced salary. She had secured changes to her contract and was sure that she would get the next increment. The complainant was referred to the reply to the email of the 7th July 2015 and said that she met with named representatives of the respondent who said that her salary would be €65,000.

The complainant said that she had lost all her annual leave and her on-call allowance. This amounted to victimisation as they wanted to make her life difficult. These issues had started in March 2015 and would not have happened otherwise. She needed the money at this time.

It was put to the complainant that she had been first on the panel and there was a second person. This other person, a male, wanted to negotiate a higher salary and was not placed on a higher point than the complainant. She replied that this colleague was on a new contract so could not have got onto a higher point than €61,698. She commented that his then salary was €83,000.

It was put to the complainant that her dissatisfaction with her salary was not related to her gender. She was referred to the prospective investigator not being offered higher than the entry point and her comparator having worked through her increments. It was put to the complainant that there was no evidence of gender discrimination and in truth, this was a salary issue. The complainant replied that all the investigators, including those seconded, were male. They were all on a higher salary. She was the longest serving and paid less than everyone else. It was put to the complainant that a former senior investigator was a woman and had worked first as inspector and then as senior investigator; she replied that the respondent would have to ask this person. It was put to the complainant that one seconded comparator was entitled to the terms and conditions of his employer, an operator and not of civil servants. This explained the difference in salary. The complainant replied that under legislation, the respondent should not have seconded people from the operator. The complainant was referred to another seconded staff member, a woman, whose terms were set by the parent employer. It was put to the complainant that the new role had required 15 years’ experience and offered a salary of €68,707. This stemmed from a better economy and the need to attract candidates.

It was put to the complainant that at the meeting of the 20th March 2014, the senior manager and the Head of Governance & Regulation had not raised her maternity leave; she replied that they had and this was also mentioned in their follow-up letter of the 9th April 2014.

In re-examination, the complainant said that the mediation had been adjourned on the agreement that monies would be paid to her. Her calculations had taken the €11,217 into account and she was not looking for two bites of the apple. In setting her starting pay on promotion, there was no recognition that she had been doing the role for six years. She had understood from the circular that there was an increment paid on promotion. She was the only female member on the team and felt discriminated against. The respondent adhered to some rules but was willing to break others. It was a matter of “whatever suits”.

The complainant’s colleague gave evidence. He joined the respondent in 2009 as senior investigator, when there was the Chief Investigator role and three senior investigators. They had different skill sets so one of them would have been appointed to the lead role. He and the complainant had always done the same job and because of her additional skill set, she took the lead on more technical roles. They were all at the same level. After the female senior investigator left the respondent, either he or the complainant would be appointed to lead investigations. This remained the current position. In cross-examination, the colleague agreed that he had worked his way through the pay scale and was now on top of the scale. He did not think that his pay related to his gender.

On the second day of hearing, the complainant indicated that she had not been in touch with the Workplace Relations Commission in relation to the adjourned mediation. The complainant outlined that she had not been paid an increment in February 2017. It was paid in April and backdated to the 11th April 2017. She said that there was also an issue with her pension entitlements.

In her closing statement, the complainant outlined that she started in the investigation unit in 2009 and within four months, she took the lead on investigations. In 2009, she led three investigations, including the largest one then being carried out by the investigation unit. The Chief Investigator had requested a payment be made to the complainant for “acting” as Senior Investigator. By 2014, she had carried out 46% of the investigations of the investigation unit compared to 33% completed by her comparator. She also attended 76% of incidents and did so as investigator-in-charge. The complainant outlined that she then carried the principal duties of senior investigator, as set out in the recruitment advertisement issued by the respondent in December 2016.

The complainant outlined that after she obtained the senior investigator role, she submitted to the respondent her calculation of the monies due to her. There was no response and the Assistant Secretary informed her in February 2016 to pursue this with the WRC.

The complainant submitted that as it stands, she is the most qualified senior investigator in the investigation unit and the only staff member with particular engineering accreditations. She has completed a specialist Masters qualifications and the only staff member to have done so. She is the longest serving staff member.

The complainant said that even if she was placed on the top of the scale, she would still be below her comparator’s pay. He started at the second point of the scale. A staff member on secondment received recognition for performing higher duties but she did not. She submitted that the respondent had sought to minimise payments to her since 2009 (except for the ex gratia payment) up to her promotion in 2015. It ignored her continuous performance of higher duties and she was then placed at the bottom of the scale.

The complainant outlined that there have been the following incidents of victimisation: the efforts to effectively demote her in February 2014; the suggestion of redeploying her in April 2014; she was not paid for a time in early 2015 and a time she did not receive her on call allowance. The complainant also states that she was placed on a less favourable pension in 2015 and new issues have arisen in 2017. She lost annual leave in 2015 and was offered a lower salary than her current salary on promotion.

In reply to the respondent, the complainant outlined that she did not insult anyone, but had made the submission that she was the most experienced and qualified member of staff. She had trained in the seconded staff and compiled the training manual.

The respondent outlined that the complainant was employed as senior investigator/engineer grade I in the investigation unit. She commenced on the 5th January 2009 in the investigator/engineer grade II role at a time when the investigation unit was attached to the safety authority. On the 1st July 2014, the investigation unit transferred to the Department and its employees, including the complainant, also transferred. On the 1st August 2015, the complainant was promoted to the senior investigator post.

The respondent asserts that the complainant has sought in this complaint to re-open a previous complaint lodged to the Equality Tribunal on the 21st February 2014. This was made on the gender ground and referred to the complainant’s pay. This was subject to mediation on the 29th August 2014 and the 9th October 2014. In an email of the 13th October 2014, a mediation agreement was circulated in the following terms:

“It is confirmed that the Department will seek sanction from the Department of Expenditure and Public Affairs (sic) to fill a newly created post of Senior Investigator in the [investigation unit]. The post, when sanctioned, will be filled by way of an open competition run by PAS.

The Department has confirmed that it is seeking sanction for the payment of arrears due to [the complainant] in respect of senior investigator duties carried out by her.

Having regard to the above the Equality Mediation Process is adjourned by agreement.”

The respondent outlines that it sought sanction for the senior investigator post on the 28th October 2014 and obtained approval on the 7th January 2015. The Public Appointments Service ran the competition to fill the post and the complainant was successful in this competition. The respondent submits that it has complied with the agreement and notes that it was not a requirement of the agreement that the complainant be successful.

In respect of the second element of the agreement, the respondent notes that this required it to seek sanction for monies and not an agreement that the monies be paid. The respondent submits that the mediation proceeded on the basis set out in the letter of the 14th April 2014, which identifies a payment to be made to the complainant of €11,217. It submits that there was no basis for the complainant’s assertion that she is due back payment of €44,316.52.

The respondent outlines that it sought sanction for the payment of €11,217 and there were delays in obtaining this. It was paid on the 14th January 2016. It wrote to D/PER on four occasions: 27th September 2014, 20th April 2015, 2nd July 2015 and the 20th October 2015. It kept the complainant aware of this. In an email of the 16th December 2015, the Department wrote to the complainant to say that it was now in a position to pay the €11,217 “on the clear understanding that no further amounts are owing to you for the period of when you were employed as Grade II Engineer and that any acting up payments received by you will not have any bearing in determining your starting pay and promotion to Grade I Engineer.”

The respondent outlines that responsibility for pay and staff was restored to the Department in July 2015. The respondent submits that the matters relating to the first complaint are closed and as a matter of law cannot be re-opened in this adjudication. It refers to section 78 of the Employment Equality Act prior to its amendment by the Workplace Relations Act (an amendment which had not commenced as of the date of complaint). It is submitted that the complainant has not invoked section 78(7) and this is a mandatory requirement, without which the mediation cannot be re-opened.

In respect of the complaint regarding the complainant’s salary, the respondent refers to the terms and conditions of the sanctioned senior investigator post. The competition booklet referred to different pay and conditions applying where the appointee is a serving Civil or Public Servant. Following consultation with D/PER, an eight-point scale was agreed, starting at €65,000. The complainant was appointed to the role on the 1st August 2015 and on the minimum point on the scale, the same rate as her (then) grade II role.

The respondent refers to the contract sent to the complainant, which refers to starting pay of €61,698. It was, however, clear to the complainant that her salary would not be reduced. It refers to an email which stated “if an appointee is already a serving Civil Servant the entry point will be either the existing salary plus accrued increment or the minimum on the scale, whichever is greater.” The respondent submits that the discrimination/victimisation elements of her claim (as separate from equal pay) in relation to the equal remuneration issue are out of time.

The respondent submits that the complainant’s comparator has been employed as a senior investigator since April 2009, while the complainant was only appointed to this role in August 2015. The comparator has progressed through the salary scale and the difference in salary relates to his longer employment as senior investigator. The complainant did not apply for the senior investigator post when advertised in 2008. The respondent does not accept that the complainant has been carrying out all the duties of a senior investigator. It submits that while she carried out some duties of a senior investigator, she did not carry out all the duties of the full role of senior investigator. It is submitted that if a person acts up in the “civil and public service” such an appointment is made on a formal basis, with appropriate sanction having been obtained.

The respondent submits the following documentation. First is a letter of the 22nd September 2014 from the Department Personnel Officer to D/PER seeking approval for the payment of an “acting up allowance” for the complainant. It refers to the second senior investigator role not being filled following a resignation in September 2012. The letter refers to the complainant’s qualification as engineer and the “many incidents” where she has acted as investigator-in-charge. It refers to the safety authority using its discretion in the past to pay the complainant an acting-up allowance, set at the differential of her scale point on the grade II scale and the minimum point on the grade I scale. It refers to seeking sanction to further compensate the complainant for the period of the 1st January 2011 to the 21st September 2012, an amount of €11,217. A handwritten note from the Higher Executive Officer of the 3rd October 2014 records that the D/PER view was that there would not be retrospective sanction. The Personnel Officer follows up on this correspondence by letter of the 20th April 2015, stating that the complainant is an employee of the Department. Two further letters were issued by the Department on the 2nd July 2015 and the 20th October 2015, seeking a reply. The letter from the HR Department of the 23rd December 2015 states that as of the 1st August 2015, she was put on the first point of the Engineer Grade I scale. It states her annual salary is €65,000 and that she will move to the second point of the scale on the 1st November 2016. The respondent submitted letters from the Workplace Relations Commission of the 3rd November 2016 and the 22nd February 2017 regarding the mediation process. The first letter refers to the complainant being able to give notice within 42 days if she wishes for the hearing to resume. The second letter refers to the complainant not providing this notification.

At the adjudication, the respondent submitted that the complainant’s first complaint was now closed and the only issue before this adjudication was her current pay. It submitted that all historic issues, including the acting up pay, were closed.

The Head of Governance & Regulation outlined that she had been in the role since 2006. She explained that the body was the regulator of safety on the infrastructure network. There was also an Accident Investigation Unit. In July 2014, the unit moved to the parent Department and staff changed from being public servants to civil servants. She outlined that in 2009 a Chief Investigator and others were appointed. The level of staffing was determined by the Employment Control Framework and they had to liaise with D/PER via their parent Department. They ran their own recruitment competitions except for one in 2008 when they used a recruitment firm.

The Head of Governance & Regulation said that the senior investigator tends to lead an investigator. The complainant was successful in her application for the investigator role. This role was equivalent to Engineer grade II while the senior investigator role was equivalent to Engineer Grade I. She outlined that the complainant had moved up this pay scale in the ordinary way, as had the senior investigator. They had not been placed on their respective scales because of their gender. In the investigation unit, there had been a team of four, of which two were women, including the complainant. The female colleague was appointed to the investigator role in 2007 and moved to the Engineer grade I pay scale.

The Head of Governance & Regulation said that during the embargo, they could not appoint new staff. When the female colleague left, they had to fill a role by secondment. A colleague approached the senior manager to express his interest in the role. It was agreed that this colleague would be seconded from the safety authority to the investigation unit and would retain his terms and conditions. He was on the same salary scale as the complainant and was seconded at the same grade as the complainant, i.e. investigator. She outlined that they went to a professional body, so that they would employ a person and second him or her to the body. This was a 23-month contract where the professional body was the employer and the employee was seconded to the safety authority and then to the investigation unit. This role was given to a named individual who had not been either a civil or public servant. He was employed on the same salary scale, i.e. grade II but had no pension entitlement.

In reply to my question whether the complainant had been acting up, the Head of Governance & Regulation said that she had been employed as an investigator in 2009. She led the investigation into a high-profile incident involving a bridge. The Head of Governance & Regulation accepted that this was the most important investigation in the decade. In 2010, the complainant received a once-off payment of about €10,000 for this work. This payment had received Departmental sanction. She outlined that the complainant received further payments after the female colleague left, as the complainant had taken over her role and acted up. She said that the complainant did not receive a formal letter of appointment. There was no procedure as to when a letter of formal appointment would be issued.

The Head of Governance & Regulation said that she met the complainant in 2014, for example the 20th March 2014 to discuss her position and her wish to be appointed to the senior investigator role. She explained that they could not upgrade the complainant’s role and had to go through a competitive process. There was no guarantee that the complainant would be successful. The investigation unit then had three posts and informed the complainant that if she was not successful, she could return to the inspector role. This had not been an attempt to demote the complainant.

The Head of Governance & Regulation said that the graduate programme sought to train up engineers. In 2011, they had recruited two graduate engineers and the respondent devised a specialist programme to train network engineers. They recruited two engineers in 2011 and a further two in both 2012 and 2013. The programme was a success.

The Head of Governance & Regulation said that she had no recollection of any comment that it was unfortunate for the complainant to have been on maternity leave. She said that if it was commented upon at all, they may have discussed a time they had both been on maternity leave. She stated that the letter of the 9th April 2014 was sent to the complainant. She said that following the mediation of the first complaint, the Department was to seek sanction for the senior investigator role and to make a payment to the complainant. She did not think that an amount had been agreed. The €11,217 figure was the amount calculated by the respondent.

In cross-examination, the Head of Governance & Regulation agreed that the complainant attended an interview in 2007 and was placed at the first point of the scale. She did not know the point at which the complainant’s comparator had started. She accepted that the complainant had completed one week’s training at the safety authority but moved to a named location. She accepted that the complainant had led an important investigation in August 2009, but she was not aware of the other investigations the complainant had led. It was put to the Head of Governance & Regulation that the letter of the 14th April 2014 referred other investigations and that she had led more investigations than her comparator. It was put to the Head of Governance & Regulation that the complainant had acted up prior to her return from maternity leave on the 22nd March 2013 and she was not paid an acting up allowance after the 31st December 2013; she replied that this was because there was no difference between her scale and the acting up scale. It was put to the Head of Governance & Regulation that the Circular was applicable to the complainant; she replied that when they encountered the situation of the complainant’s increment being the same scale as the first point on the senior scale, they did not see any basis of paying the acting up allowance. They had not checked any Circular or other document to see what they should do. It was put to the Head of Governance & Regulation that she knew then that the complainant was on a zero acting up allowance; she replied that it was up to the complainant’s boss to instruct her.

In re-direction, the Head of Governance & Regulation said that employees of the safety authority were public servants and not civil servants. She was not informed whether Circular 38/2007 applied to employees of the safety authority There was no payment of acting up allowance in the safety authority and the circular was not applied to the role.

The HR manager outlined that she worked in HR in the Department and looked after the investigator competition. They ran the competition for the senior investigator role once they obtained sanction. The complainant applied and was successful. The pay scale was that of Engineer Grade I. They became aware that the pay scale used in the competition documentation was shortened so that the first point stated was €65,000. She said that the pay scale contained in the contract was also an error. She said that in the civil service, someone who is promoted moves to the minimum point on the new scale or if their existing salary is higher than this point, they go to the next increment. This ensures that a civil servant does not lose pay on promotion.

The HR Manager said that when the complainant was promoted, she was earning €65,000 per year and received this same salary when she transferred to the senior investigator scale. A civil servant generally receives an increment on the anniversary of their appointment but this had been deferred to a 15-month period as a result of the Haddington Road agreement. Under this agreement, the amount of €65,000 was also the cut-off point for higher pay cuts. She outlined that the respondent instructed PeoplePoint, who calculated pay.

The HR Manager outlined that the complainant transferred to the senior investigator role at the salary of €65,000. She denied saying to the complainant that she could get a reduction in salary. She did not recall speaking to the complainant about her salary and this was addressed in the booklet. The complainant proposed some changes to the contract, some of which the respondent accepted. The contract was clear that the complainant would be on her existing salary plus an accrued increment. She outlined that gender was not an issue in the complainant’s point on the pay scale and her terms and conditions.

The HR Manager said that no one had then been appointed to the new senior investigator role and there were negotiations in place. There was flexibility regarding pay in this competition. In 2014, they had only been able to recruit one post and pay had been an issue. She outlined that the respondent would not be appointing the new senior investigator at a higher point on the scale and this person would be appointed at the first point. In respect of secondments, the HR Manager said that the two named staff members retained their terms and conditions on secondment. They were seconded from an operator, which is not in the public service.

In cross-examination, the HR Manager said that she was not aware if the complainant had been written to regarding the mistake in the pay scale. This had come to light in a different case. It was put to the HR Manager that the seconded staff were more expensive; she replied that there were administrative charges on the body sending the seconded staff. She could not say what vetting or checks had been done on the skills of the seconded staff, but they had been identified by the Chief Investigator as appropriate. The HR Manager was not aware of the complainant’s issues regarding pension and annual leave as she had only dealt with her recruitment.

The HR Officer outlined that she contacted the complainant to offer her the post. The complainant raised the ongoing salary issues, which she did not know anything about. She explained that the complainant would assimilate across at the starting rate of pay. She said that different terms and conditions would apply as this was a civil service role. She denied saying to the complainant that she had to sign the contract.

In cross-examination, it was put to the HR Officer that following the email of the 16th June 2015, they spoke and confirmed the salary of €65,000. The HR Officer was asked whether she had told the complainant she needed to take the post or it would be offered to someone else. The HR Officer denied saying this. It was put to the HR Officer that the contract sent on the 7th July 2015 stated the salary as €61,698 but the email of the same date only refers to the start date. She replied that she was then not aware of the existing salary issues and they had no input into salary. The HR Officer said she told the complainant that she would not lose money.

At the outset of the Higher Executive Officer’s evidence, the respondent submitted that this was being tendered without prejudice to their jurisdiction submission regarding the closed mediation complaint.

The Higher Executive Officer said that he worked in HR and attended two days of mediation. They had to chase the result and had agreed to seek sanction for the senior investigator role. They also agreed to seek sanction for an amount of money to pay the complainant. He stated that the mediator’s email detailed the agreement. The letter of the 14th September 2014 set out the amount due. They sought sanction and the moratorium was then in place. They followed up with D/PER in 2014 and 2015, up to the 20th October 2015. In mid-2015, the Department was restored delegated sanction, allowing it to manage payroll, budget and recruitment up to AP level. The complainant’s payment was sanctioned in late 2015 and paid early the following year. He said that he had not been involved in seeking sanction for the senior investigator role and his colleagues had made the case for the appointment.

The Higher Executive Officer felt that they had fully complied with the mediated agreement and there was nothing outstanding from the 2014 complaint. In respect of Circular 38/2007, he said that this had come through the conciliation and arbitration process for the civil service. It applied to the civil service and there was a difference between this and the public service. He said that acting up applied when there was a vacant position and where someone could fill the role. This person must receive a letter of assignment and would receive payment for this. The Circular provides that this should be kept under review and should not be in place for more than 12 months.

In cross-examination, the Higher Executive Officer accepted that nothing had happened in the first day of the mediation as it adjourned. He also accepted that there had been no summing up at the end of the mediation. It was put to the Higher Executive Officer that the mediation agreement provided that the complainant would be paid in accordance with the circulars; he replied that they agreed to seek sanction from D/PER. The Higher Executive Officer was asked whether D/PER had asked how the amount of €11,217 was calculated; he replied that they took this at face value and did not pursue this with the safety authority to establish how they calculated this. The Higher Executive Officer said that a case is made to HR for acting up and if agreed, a letter of assignment is issued.

During the complainant’s evidence, the senior manager said that the formal acting up position was given to the complainant when the female senior investigator resigned and the complainant returned from maternity leave in March 2013.

In closing comments, the respondent objected to certain parts of the complainant’s closing, for example her reference to the comparator starting at the second point on the scale. It also objected to the statement relating to the Department Personnel Officer requesting the complainant for the basis of her calculation.

The respondent submitted that this was a claim of discrimination on the gender ground and victimisation, submitted under the Employment Equality Act and received by the Workplace Relations Commission on the 9th July 2016. The claim must remain within the framework of the complaint and the Act. The claim is also constrained by time limits, so that anything in the claims must have occurred within six months of the date of complaint. The complainant must also establish that there has been discrimination on the gender ground. This was not an Industrial Relations dispute and there was also a specific mechanism for civil servants.

The respondent submitted that there was no evidence to support the gender discrimination claim. This adjudication was precluded from considering matters arising from the first complaint, which had been dealt with under the 1998 Act. This matter had been determined and closed. The complainant had not invoked section 78(7) of the Employment Equality Act to seek re-investigation. It was not open for the complainant to now re-open this complaint.

The respondent submitted that this complaint was made against the Department but much of her complaint related to the safety authority, a separate legal entity. The safety authority was not the respondent to this complaint. The respondent referred to the statutory instrument which provided for the transfer of the investigation unit to the Department.

The respondent outlined that the complainant had been a public servant and became a civil servant following her transfer. There is a distinction in particular in the application of Circular 38/2007, which applies to the civil service. The Circular never applied to the safety authority and the complainant could not rely on the Circular. The terms of the Circular had not been complied with, for example no letter of appointment was issued and there was no review. This demonstrated that the Circular did not apply. The respondent submitted that the complainant must show that the reason the Circular was not applied was her gender. This had not been the case. Men had been employed on the same scale and there was also a male and a female senior investigator on this scale. There was no evidence to support the claim. The respondent submitted that this matter had been dealt with at mediation. There was some delay in making the payment and it acknowledged that this could have been paid at an earlier date. This, however, did not relate to gender, or to the complainant bringing the complaint. The Department was at all times seeking sanction for the payment but this was not provided until late in the day, following the return of delegated sanction. The respondent referred to this being a time of significant cut backs and a tightly controlled expenditure framework.

The respondent outlined that there was no evidence of any attempt to demote the complainant, as set out in evidence of the Head of Governance & Regulation who told the complainant that she had a “home” in the safety authority. The respondent outlined that the events of 2014 were out of time. There were a number of pay and pension issues following the transfer. They were not the fault of the Department and were errors of PeoplePoint. The comparator had said that he had similar issues following his transfer. The respondent had made efforts to rectify these issues.

The respondent submitted that there was no evidence to support the claim of the complainant being offered a lower salary. This claim was contradicted by the documentary evidence, for example the advertisement and emails as well as the evidence from the HR Manager and the HR Officer. The respondent had been explicit that the complainant would keep her existing salary, but the complainant maintained in cross-examination that she had not understood this. The complainant had also questioned the qualifications of others.

The respondent outlined that the complainant was paid on a particular scale and everyone else appointed to the role was on the same scale. They were all treated the same, irrespective of gender. Staff members seconded to the investigating unit retained their terms and conditions. It was submitted that the fact of the complainant’s grievances does not mean that she has been discriminated against on grounds of gender. The prima facie case has not been made out, and if it was made out, there was ample evidence to rebut the inference of discrimination. This was a regulated pay structure and the complainant was appointed to the scale in accordance with policy.

The complainant asserts that she has been the subject of victimisation and discrimination by the respondent Department. The last date for the former claim is stated as the 19th February 2016 and for the latter claim, the 30th June 2016. The complaints were referred to the Workplace Relations Commission on the 4th July 2016.

On the 21st February 2014, the complainant referred a previous complaint of gender discrimination that was dealt with by mediation within the ambit of the Employment Equality Act. In her initial submission to the first equality dispute, the complainant outlines that she has been performing the full range of senior investigator duties for almost five years, but only in receipt of the investigator salary rate. She refers to a re-formulation of roles, enacted by the Chief Investigator in 2009 and formalised by the safety authority in 2012 in a strategy submission, so that the investigator role would be eliminated. She sets out that she and her comparator report directly, and on the same basis, to the Chief Investigator. She refers to submissions made by the Chief Investigator on her behalf to have her “anomalous and discriminatory” position rectified. She outlines that the Department has not sought sanction for an additional senior investigator role.

The parties attended mediation sessions on the 29th August 2014 and the 9th October 2014. It led to the agreement, circulated by the mediator to the parties on the 13th October 2014. The mediation was adjourned. In the normal course, the conduct of mediation is confidential to the parties. In this case, however, both parties set out what had occurred at mediation and in implementing the terms of the agreement. The respondent submitted that it was necessary to set this out as certain matters could not be considered as part of this adjudication.

By letter of the 3rd November 2016, the mediation officer gave notice that, in accordance of 78(6) of the Employment Equality Act, the case could not be resolved by mediation. It gives 42 days for the complainant to apply for the hearing to resume. It states that if this application is not made within 42 days, the Commission has no further jurisdiction. It was a complicating factor that this process occurred in and around the first day of this adjudication. By further letter of the 22nd February 2017, the Workplace Relations Commission formally closed the complaint.

The respondent referred to the Equality Tribunal decision of A Male Complainant v A Bar and Restaurant (DEC-E2003-005) regarding the mandatory nature of the requirement of section 78(7) (which predated the amendment inserted by the Workplace Relations Act, 2015). It also referred to the High Court decision of Halley v Equality Tribunal (ex tempore decision of Feeney J., 25 June 2006) which approved the above approach. In Barska v Equality Tribunal [2011] IEHC 239, Kearns J. held that section 78 must be read in conformity with the Directive so that the Tribunal has discretion to extend time for a complainant to submit notification to resume their complaint outside of the statutory time period (then 28 days). In McKeever Rowan Solicitors v Clarke (EDA172), the Labour Court held that the decision in Barska had limited application where the complainant’s delay in notifying the Workplace Relations Commission was in excess of ten months.

The first equality complaint was not part of the complaint referred to this adjudication. The complainant indicated on the second day of this adjudication that she had not notified the Workplace Relations Commission, as set out in the letter of the 3rd November 2016. Any matter relating to the first equality complaint is not before this adjudication and it is a matter for the Director General of the Workplace Relations Commission whether this first complaint could be re-opened, should notification be sent. This means that the issues set out by the complainant in her initial submission to the first complaint cannot form part of this adjudication. I appreciate that the complainant is dissatisfied with the implementation of the mediated agreement. These, however, are matters that fall within the ambit of the first complaint and are not part of this adjudication. For clarity, I find that the matters against the safety authority as respondent relating to acting up pay and promotion are outside of the jurisdiction of this adjudication.

Another complicating factor in this dispute was the changing statutory framework in which the investigation unit operated. By statutory instrument, the Investigation Unit became a body established within the Department as of a date appointed by the Minister. The appointed day was the 1st July 2014, as set out in the 24th June 2014 edition of Iris Oifigúil. The statutory instrument refers to “investigator” and Regulation 4(5) and (6) provides as follows:

“(5) The Minister shall appoint such qualified persons to the staff of the Investigation Unit as Investigators of [infrastructure] accidents and incidents as the Minister thinks necessary for the purposes of these Regulations and shall nominate one of them to be the Chief Investigator who will be responsible for directing the work of the Investigation Unit in accordance with these Regulations.

(6) The Minister shall furnish an investigator with a warrant of his or her appointment and, when performing a function of an investigator under these Regulations the investigator shall, if so required by any person affected, produce the warrant or a copy of it to that person.”

The statutory instrument provides that the Chief Investigator assigns an investigator-in-charge to investigate accidents or incidents within the ambit of the Regulations. For the sake of completeness, the 2014 Regulations amended an Act of 2005. Section 55 of the 2005 Act originally provided that the Investigation Unit was independent in carrying out its functions within the safety authority.

At the adjudication, the respondent emphasised the difference between a public servant and a civil servant. In that regard, I note that the information booklets for both 2008 competitions (for the investigator and senior investigator roles) differ from the 2015 competition, in that the latter refers to “The appointment is subject to the Civil Service Regulation Acts etc”. Similar wording is included in the 2016 senior investigator booklet submitted by the complainant. This suggests that the 2008 roles were not subject to the Civil Service Regulations Acts, while the latter were. The respondent submitted that the complainant transferred as investigator from the safety authority to the Department on the 1st July 2014.

Whether the complainant was a civil servant or a public servant was important in considering whether Circular 38/2007 applied to her. The complainant asserted that she was entitled to rely on Circular 38/2007 in pursuing acting up pay and her increment on promotion to the senior role. The respondent did not accept this and asserted that employees of the safety authority were public servants and not civil servants. It also submitted that the complainant was not acting up within the ambit of the Circular. Whatever of the period prior to the 1st July 2014, the complainant became a civil servant on this date. The question that follows was whether the complainant was acting up within scope of the Circular and what effect, if any, this has following her promotion on the 1st August 2015.

The respondent presented evidence from the safety authority as well as from the HR function of the Department. Apart from the evidence given by the comparator (at the behest of the complainant), there was no evidence tendered by or on behalf of the Investigation Unit. There was no evidence given by the Chief Investigator or his colleagues. This is relevant as the Investigation Unit is statutorily independent in its functions, both before and after the enactment of the 2014 Regulations. This evidence is particularly relevant in assessing whether the complainant was acting up.

It is clear from the evidence tendered by the safety authority that it viewed the complainant as acting up for, at least, part of her time working under the auspices of the safety authority. The letter of the 14th April 2014, sent by the senior manager to the Department is a detailed and supportive account of the complainant’s contribution to the work of the Investigation Unit. I note that the designation of the investigator-in-charge is made by the Chief Investigator pursuant to Regulation 6(1)(b) of the transposing statutory instrument. I note that in February 2014, the senior manager asked that the complainant no longer be assigned investigator-in-charge roles. This request was made in the context of the complainant’s first equality complaint. The Chief Investigator declined to give this undertaking, stating that it would not be appropriate for operational reasons to no longer assign such roles to the complainant. I note that the respondent submission, at point 28, refers to the complainant not carrying out the full role of senior investigator. Evidence was not presented at the adjudication of what senior investigator duties the complainant did not fulfil. Her evidence, supplemented by the evidence of her comparator senior investigator, was that their roles were interchangeable. This proposition was not contradicted by the evidence tendered by the respondent witnesses.

I note that there is no reference in the information booklet for the investigator position filled by the complainant in 2009 to her acting as “investigator-in-charge”. While this statutory term is not used in the senior investigator booklet of 2009, the principal duties for the senior role include “overseeing the investigation of railway accidents/incidents by other staff of the Investigation Unit.” I further note that the information booklet for the 2015 senior investigator competition (where the complainant was successful) specifically refers to the investigator-in-charge role in the following terms: “act as investigator in charge of railway accidents/incidents.” This wording is replicated in the 2016 information booklet exhibited by the complainant. It follows that by performing the investigator-in-charge role, the complainant, when investigator, was acting up to the senior investigator role.

Some evidence was tendered by the parties as to the investigator-in-charge roles completed by the complainant between the 1st July 2014 and the 1st August 2015. She referred to completing a longstanding investigation in 2016 regarding operators persistently running red lights. The respondent did not put the case that the complainant had not undertaken the investigator-in-charge role in this period.

The evidence tendered on behalf of the respondent was that the application of Circular 38/2007 required a formal letter of assignment. I find that a designation made pursuant to Regulation 6(1)(b) of the 2014 Regulations amounts to assignment within the scope of the Circular. This interpretation correlates with the approach of the safety authority and in the wording of the information booklets for senior investigator roles over the three competitions. They show that the investigator-in-charge role is one undertaken by the senior investigator grade. The complainant’s evidence was that she was continually assigned this role and according to the Regulations, this requires formal assignment by the Chief Investigator.

It follows from this finding that Circular 38/2007 applies to the complainant as of the 1st July 2014. She was entitled to acting up pay for investigator-in-charge roles carried out after that date and until her promotion. She was also entitled to have this taken into account on her promotion to the senior investigator role, i.e. that she had completed 13 months in the acting up role by the time of her promotion.

I accept the respondent’s submission that Circular 38/2007 is not applicable to public servants and the complainant cannot include this time acting up in her incremental point on promotion.

Having made these findings and comments on the evidence, it falls to consider the two claims advanced by the complainant. It goes without saying that the respondent is correct in its assertion that these complaints are made pursuant to the Employment Equality Act. They are not disputes referred pursuant to the Industrial Relations Act. It is for the complainant to set out primary facts from which an inference of discrimination can be made. Once such a prima facie case is made out, it falls on the respondent to rebut the inference of discrimination. It follows that even if the complainant succeeds in showing that the respondent has acted unfairly or in breach of a Circular or other provision, she must also set out a basis for drawing an inference of discrimination. The same prima facie test applies to claims of victimisation.

In Valpeters v Melbury Developments Ltd [2010] E.L.R. 64, the Labour Court held as follows in respect of the burden of proof for claims of discrimination and victimisation:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” 

There were several issues raised by the complainant in submission or in evidence, which were not sufficiently particularised to making a finding. The first was that the complainant was not paid certain allowances in a period of maternity leave that had been paid to her in an earlier period of maternity leave. No information was provided as to what was not paid and the value of such payment. The second was her claim relating to lost allowances and annual leave following the transfer of the Investigation Unit. She also mentioned consequences to her pension entitlements. While the complainant referred to these matters, they were not particularised and no findings are made on these issues in this adjudication.

I have first set out specific findings on the gender discrimination claim, followed by findings in relation to the complaint of victimisation.

CA-00005641-002 Claim of gender discrimination

The complainant was clear regarding the basis of her gender discrimination claim. She is the longest serving, most qualified and most experienced member of the investigation unit, but, by some margin, the lowest paid and the only woman. While the respondent strongly challenged the assertion that discrimination had occurred, it did not challenge the complainant’s specific assertions regarding her qualifications, experience, length of service and pay, compared to others. It offered an explanation as to the pay differential (for example secondment or length of service in the senior investigator role). It follows that the essence of the case advanced by the complainant raises a prima facie case, in that her lower pay and seniority compared to colleagues, combined with her service, experience and qualifications, are facts of such significance that demand explanation.

A striking feature of this case is that very quickly on her appointment, the complainant undertook the most challenging investigations faced by the Investigation Unit. The safety authority’s letter of the 14th April 2014 points to investigations being assigned to the complainant on the basis of their significance and difficulty. The complainant did the most cases and did the hardest ones. While properly part of the first equality complaint, I note that the complainant was assigned the investigation of a bridge collapse, identified by the safety authority as the most important investigation of the decade. The complainant followed the same approach in accepting investigator-in-charge assignments when the investigation unit transferred to the Department (and within the scope of the adjudication). She could, of course, have declined such assignments as they were outside of her contracted role. Despite the ongoing issues of her pay and seniority, she adopted the same professional approach in fulfilling senior investigator and other functions, as assigned by the Chief Investigator. The public who use the infrastructure network are safer because of her approach.

Applying the test set out in section 85A and Valpeters, and having considered the evidence, I find that the respondent Department has rebutted the inference of discrimination. A prominent background feature of this case is the Employment Control Framework and other restrictions imposed by the country’s then constrained circumstances. This peppered the correspondence circulated within the respondent and the safety authority. It explains why vacant senior investigator roles were not filled by promotion, but were filled by secondment from an operator or via a professional body. The respondent explained why those seconded colleagues were on higher pay. It also explained how the comparator and others worked up their incremental scale, leading to the differential with the complainant.

The documentation submitted to the adjudication did not include the pay scale applicable to the senior investigator competition filled in 2009. The applicable pay scales to the 2015 and 2016 senior investigator roles were included. The pay scale applicable for the role to which the complainant was appointed was the least generous. It provides a ten-point increment scale (compared to eight points in the 2016 scale). Given the complainant’s salary on appointment was €65,000, the 2015 scale provided that a salary higher than this amount was the fourth point on the scale; it was the second point on the 2016 scale. I find that the application of the less generous pay scale to the senior investigator role filled by the complainant does not amount to discrimination. While the competition was sanctioned further to the complainant’s first equality complaint, I find that the pay scale was an applicable Grade I engineer scale and the one applied at the time. The respondent referred to having greater flexibility in framing the 2016 competition and outlined that any person appointed would commence at the bottom of the scale.

CA-00005641-001 Complaint of victimisation

The complainant asserts that she was subject to various acts of victimisation by the respondent and the safety authority. She refers to interactions with named members of staff, most of whom attended the adjudication to give replying evidence. The respondent denies the claim and asserts that many of the incident pre-date the six-month limitation period provided by the Employment Equality Act.

As set out above, it is for the complainant to set out primary facts from which an inference of victimisation can be made. Section 85A(4)(b) specifies that victimisation falls within the rubric of “discrimination” in that section.

Given the relative complexity of this case, and its protracted nature over a number of years, there are many issues that arose in the complaint of victimisation. They include not being assigned the senior investigator role following the resignation of a female senior investigator colleague. They include the threat of demotion or redeployment.   The complainant raises her interaction with colleagues, in particular the meeting of the 20th March 2014 and ensuing correspondence. She refers to interactions with HR staff from the Department. She refers to the delay in the payment of outstanding monies owed to her and her having to raise this with the Assistant Secretary on the eve of a period of maternity leave.

In Department of Defence v Barrett (EDA 1017), the Labour Court held as follows in respect of victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

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

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

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

Leaving aside the time point, there was significant divergence in the evidence of the complainant and the Head of Service & Regulation about the tenor and content of the meeting of the 20th March 2014. Even if the complainant’s account is correct (as set out in her follow-up letter of the 8th April 2014), I do not find that the failure to allow her move to the now-vacant senior investigator role was an act of victimisation. I base this finding on the existence of the Employment Control Framework and the embargo (as referenced in the contemporaneous correspondence of the respondent and the safety authority). I find that the complainant did not suffer adverse treatment as the respondent could not have promoted from within. I accept that the complainant was startled to read the senior manager’s email of the 26th February 2014. This asked the Chief Investigator not to assign the complainant any more investigator-in-charge roles. The complainant did not incur adverse treatment as the Chief Investigator declined to do as he was asked. He continued to assign the complainant investigation-in-charge roles. I do not find that the complainant’s contacts with the HR Manager and HR Officer are facts of such significance to raise the inference of victimisation. While it was not ideal that the contract sent to the complainant referred to a lower starting salary, this lack of clarity was addressed promptly by the HR Officer. Whatever the tenor of the conversation between the HR Officer and the complainant, I do not think any comment made about the importance of signing the contract can be equated to the respondent threatening to withdraw the offer.

Two elements of the claim of victimisation succeed. The first element to succeed relates to the delay in paying the complainant the amount of €11,217. I accept that the outcome of the mediated agreement was that the respondent would seek sanction for monies owed to the complainant. The safety authority calculated this as being €11,217 and in course, the Department took this amount at “face value”. The complainant does not accept that this is the full extent of what was owed to her or what had been agreed at mediation. This amount, however, is a matter for the first complaint. The respondent provided an explanation for why the amount of €11,217 was not paid before July 2015. It sought sanction from D/PER and this was not granted. It detailed that it re-acquired the basis to pay these monies in July 2015. No explanation is provided for the delay from July 2015 onwards and why it took the complainant raising this with the Assistant Secretary to have it resolved. I note that the Assistant Secretary had no previous involvement in this issue beforehand. I note that the complainant suffered adverse treatment in the delay in being made these monies. I note that this occurred on the eve of going on a period of maternity leave. I am satisfied that the protracted nature of the equality dispute between the complainant and the respondent was the substantial cause of the unexplained delay in paying the complainant what the respondent, itself, had determined was due. Taking account of the extent of this act, I award the complainant redress of €5,000.

The second element of the victimisation claims that succeeds arises from complainant’s promotion to the senior investigator role in August 2016. In the opening part of these findings, I have set out, in detail, the position relating to the complainant acting up within the statutorily independent Investigation Unit. I have accepted that the complainant was a public servant prior to the transfer of the Investigation Unit to the Department in July 2014. I have accepted that Circular 38/2007 applies only to civil servants and does not allow previous acting up as a public servant to be taken into account. This mirrors the conclusion of the Labour Court in the HSE v Four Workers (LCR20658). The complainant has not pointed to any other basis why she should have been able to count her pre-2014 service for incremental progression on promotion.

I have found that complainant was in an ongoing acting up role as senior investigator, as assigned, according to statute, by the Chief Investigator. This continued following the transfer of the Investigation Unit to the Department in July 2014 and the complainant becoming a civil servant. Circular 38/2007 applied to the complainant on the date of transfer. I find that the complainant was acting up to the senior investigator post after her date of transfer. This service in an acting up role was not taken into account in ascertaining the complainant’s incremental progression. On promotion, the complainant maintained her salary at €65,000 (the second and third incremental points on the senior investigator scale applicable to her post). My reading of the Circular is that the complainant is entitled to have acting-up service as a civil servant taken account of in determining her increment. The consequence is that the complainant ought to have commenced on the fourth point on the incremental scale on her promotion, i.e. €66,742. She should since have progressed to higher points on the incremental scale.

As outlined above, this is a claim of victimisation pursuant to the Employment Equality Acts. It is not an Industrial Relations dispute. It must therefore be shown that the setting of the incremental point following her acting up between July 2014 and August 2015 amounted to victimisation pursuant to the section 74 and the Barrett test. I am satisfied that this is the case. In reaching this finding, I note that the complainant had clearly signalled the issue of incremental progression at the time of her promotion, albeit to include all her time acting up as senior investigator. She pursued this in correspondence with various parties. It is striking that there was no substantive engagement from the respondent on these points and on the wider question of whether the complainant was acting up. This all took place against the background of the ongoing first equality complaint and the significant controversy on what monies were historically due to the complainant. There was no substantive engagement with the complainant and it appears no engagement with the Investigation Unit on whether the complainant was acting up. This lack of engagement raises a prima facie case, which has not been rebutted by the respondent. The three elements set out in Barrett have been met.

In respect of redress, I award compensation to the complainant of €7,000 for this element of the victimisation claim. I order that she be placed on the fourth point on the incremental scale (i.e. €66,742), as of the 1st August 2015, and that she progress through the pay scale in the normal way and be paid the outstanding arrears. The arrears will include the deficit for the first increment following her promotion on the 1st August 2015 (the respondent stated that this was a 15-month increment due to the Haddington Road agreement). For the sake of clarity, the total compensation owed to the complainant for the two elements is the sum of €5,000 and €7,000, i.e. €12,000.

For the sake of completeness, I find that these elements of the victimisation complaint are within time. Both elements refer to omissions on the part of the respondent. Section 77(6A) provides as follows:

“(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when the person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either —

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it”

I find that the first element is within time. The amount due was paid on the 14th January 2016. The non-payment was an ongoing omission that ended on this date. The complaint was lodged on the 4th July 2016, within six months of the last day of the omission (the 13th January 2016). If it were required, I am satisfied that the circumstances amount to reasonable cause for an extension of the limitation period. They include the complainant’s maternity leave and her having to make representations at senior management level for the respondent to pay her what it said was due. I find that the second element is within time as the period the respondent might reasonably be expected to address the issues arising from the complainant’s promotion and increment had not expired. Also, for the sake of completeness, I find that any claim for acting up pay for the period of the 1st July 2014 to the 1st August 2015 is out of time.

CA-00005641-001

I find that the complaint of victimisation made pursuant to the Employment Equality Act is, in part, well-founded and the respondent shall pay compensation to the complainant of €12,000. I order that the complainant be placed on the fourth point on the incremental scale (i.e. €66,742), as of the 1st August 2015, and that she progress through the pay scale in the normal way and that she be paid the outstanding arrears.

CA-00005641-002

I find that the complainant of discrimination made pursuant to the Employment Equality Act on the gender ground is not well founded.

Employment Equality Act

Section 78 / Barska v Equality Tribunal 2011 IEHC 239

Victimisation / Department of Defence v Barrett (EDA 1017)

Circular 38/2007