Complainant

Respondent

Anonymised Parties

Prison Officer

Prison Service

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-00018229-001

29/03/2018

The Complainant has been employed as a Prison Officer by the Respondent since 26 October 1999. 

The Complainant is alleging that, during his employment with the Respondent, he has been subjected to discrimination because of his age. 

The Respondent denies the claim. 

Prior to the hearing, the WRC raised an issue as to whether the complaint was submitted on time.  At the hearing, I established that the complaint was submitted on time.  Therefore, I have not explored this matter further in the context of my decision.

At the hearing, the Complainant withdrew the complaint of victimisation which had been lodged with the WRC. 

I have decided to anonymise the parties to this complaint based on the sensitivities of the issues involved.

The Complainant submits that he was employed as a Prison Officer by the Respondent since 26 October 1999. 

The Complainant submits that he was initially deployed in Prison A until February 2001 when he was transferred to Prison B.  The Complainant contents that he applied for, and was granted a transfer, from the Prison B back to Prison A in 2004. 

Following a promotion in 2013, the Complainant says that he was assigned to the Training Unit in Prison B before the Training Unit was closed in May 2017 at which point he was deployed to Prison A. 

The Complainant contends that on 29 June 2017 he applied for a transfer back to Prison B. 

The Complainant submitted a copy of the Respondent’s Revised Staff Transfer Policy 2013 which states:

“All transfers of prison staff … will be conducted in accordance with the protocol set out below …

2.1Seniority on the date of offer will determine who is entitled to a transfer.  Subsequent applications for transfer after that date by Officers with more seniority will not take precedence over transfers that have already been offered. (original emphasis) “

The Complainant submits that the procedure to be followed when making a transfer request is set-out in the appendix to the protocol and states, inter alia:

“3. A Governor’s signature will not be required on the application.  However, if any Governor of the prison has any comments to make on the application this should be forwarded directly to Staff & Corporate Services immediately.  (original emphasis)”

The Complainant submits that by email of 20th July 2017, he was informed that he was first on the transfer list to Prison B but that the Respondent was not yet in a position to set a date for the transfer. 

The Complainant contends that he was first on the transfer list because he was the most senior Prison Officer on the transfer panel and, therefore, when the transfer became operable he would have been selected for transfer. 

The Complainant submits that on 29 September 2017, he received an email from the Respondent which stated:

“Having regard to the exigencies of the Respondent your transfer to this location will not be progressed and your name will be removed from the transfer list to Prison B.  The Respondent will now progress to the next Officer on the transfer list for this grade.”

The Complainant maintains that he was shocked by this email and requested an explanation of what was meant by “the exigencies”. 

According to the Complainant, the Respondent has failed to provide such an explanation but has informed the Complainant that the position to which he had applied to transfer has now been filled. 

The Complainant submits that he subsequently learned that the Governor of Prison B had indicated in an email dated 19 September 2017 that they could not agree to the Complainant’s transfer.

The Complainant submits that the Governor was not required to approve a transfer request but could do so under the protocol. 

The Complainant submits that he was less favourably treated on the grounds of age in respect the conditions of his employment, in particular the Respondent’s refusal to permit him transfer to Prison B in accordance with the transfer policy. 

The Complainant submits that a hypothetical comparator being a younger person who was first on the transfer list is an appropriate comparator for the purposes of the herein case. 

The Complainant submits that a hypothetical comparator is necessary in this case for several reasons. 

Firstly, the use of the person actually transferred to the position is inappropriate.  Unlike most cases of discrimination where a person is selected for a position instead of the Complainant, in this case the person actually transferred was not so much chosen as assigned in default position.  The thrust of the Transfer Protocol is that applications to transfer are not determined personally but on a simple order of seniority.  Thus, this is not a case of a particular person being chosen ahead of the Complainant because they are younger but that the Complainant was removed from the transfer list in circumstances where he would not have been if he was younger.  In other words, the person actually appointed in this case was in a materially different circumstance because he was not first on the transfer list.

Secondly, the Complainant submits that it is evident from the email from the Governor that they made the decision to remove the Complainant from the transfer list because they had “become aware” that he had applied for a transfer. 

The Complainant maintains that the Transfer Protocol makes clear, the involvement of the Governor was not required and no evidence has been put forward to show that the Governor had any involvement with the person who actually transferred or was even aware that he was the relevant person. 

The Complainant suggests, therefore, that the involvement of the Governor as effective decision maker in this case puts the Complainant in a materially different position from the person actually transferred.  

The Complainant submits that it is overly simplistic to simply rely on the person transferred as a comparator in this case without more evidence.  The Complainant maintains that the Employment Equality Acts do not require that a protected characteristic is the sole or only reason for less favourable treatment. 

The Complainant contends that the fact that the person actually transferred was of a similar age does not mean that the decision not to transfer the Complainant was unrelated to his age. 

The Complainant contends that the salient fact is that 13 years previously the Complainant had been transferred to and from Prison B without issue yet when he was older and nearing the end of his service, his transfer was refused without explanation.

The Complainant maintains that the failure to offer any satisfactory or logical reason for the refusal to transfer the Complainant is particularly important in this case.  The transfer of prison officer has a definitive public law flavour and, as such, the Respondent must be reasonable in their decision making process.  Thus, as a matter of law, and in contradistinction to ‘ordinary’ employers, is must be presumed that there was some reason for the decision to remove the Complainant from the transfer list otherwise the decision would be completely unreasonable. 

The Complainant maintains that the Respondent has continually failed to provide a proper and reasonable explanation for the decision and this failure to provide a reason may found an inference or prima facie case for discrimination. 

The Complainant maintains that it is trite to say that once the Complainant has established a prima facie case of discrimination, the burden of proof shifts to the Respondent to prove any less favourable treatment was not because of a protected characteristic.

The Complainant submits that by identifying the less favourable treatment contended for and the appropriate comparator the Complainant has established a prima facie case of discrimination. 

The Complainant also submits that account should be taken of the total and absolute lack of any explanation for the less favourable treatment as dispositive of this case because the Respondent has not discharged the evidential burden upon it. 

The Complainant maintains that it is also trite to say that there is no justification for direct discrimination.  Furthermore, the Complainant submits that if the Respondent fails to prove that the treatment complained of was not because of the Complainant’s age, the Complainant’s case for discrimination is made out. 

The Complainant submits that it is of particular relevance in this case that without reason or explanation the Respondent’s Transfer Protocol was not applied to the Complainant in circumstances where it would have been applied to a younger employee and had been applied to the Complainant previously. 

The Complainant maintains that, during his employment with the Respondent, he has been subjected to discrimination because of his age. 

The Complainant has submitted the following precedents in support of his case:

·         Labour Court Case - A Catering Business and a Worker – EDA 1520

·         Equality Tribunal Case – Fagan and the Office of the Revenue Commissioners – DEC-E2008-004

·         UK Court of Appeal – Anya v Oxford University – [2001] WECA Civ 405

It is the Respondent's position that the Complainant has not in been discriminated against by the Respondent contrary to the provisions of the Employment Equality Acts.

The Respondent submits that the decision not to transfer the Complainant to a position at Prison B  was an administrative decision that was appropriately made in the circumstances.

The Respondent contends that the Complainant's claim is based on the following matters:

·         There was a flawed selection process;

·         The decision not to appoint him to the position in the Prison B was contrary to best practice;

·         The decision lacked probity;

·         That he had a legitimate expectation in accordance with the code of practice that he would get the position given that he was number one on the transfer list.

The Respondent submits that none of the above qualify as a ground of discrimination as provided for in Section 6(2) of the 1998 Act as amended.

The Respondent accepts that, in accordance with the Respondent’s Revised Staff Transfer Protocol, the principle of seniority is applicable in the facilitating of such transfers.

Accordingly, the Respondent accepts that where there are no other reasons why a transfer should not take place, the person who has seniority, or in the Complainant's case, the person who was number one on the list, should receive the first option of accepting a transfer, should such an option become available.

The Respondent contends, however, that it is the case that the protocol also provides that a Prison Officer who has applied for a transfer is not automatically entitled to that transfer and that other factors may arise which make such a transfer not possible. The Respondent maintains that this is set out clearly in the "General Provisions " section of the Protocol wherein it is stated:

" Where it is not possible for an officer's request for transfer to a particular location to be considered, the Officer shall be notified of same, and the reason, at the earliest possible opportunity.”

The Respondent maintains that it is clear from the above that the Respondent at all times retains the right to determine whether, in the pertaining circumstances, a serving Prison Officer's application for a transfer can be considered and is appropriate.

The Respondent submits that they are entitled to take decisions that are in the best interests of managing the Irish Prison Service and accordingly there is no requirement to affect a transfer within the prison system if management believe there are reasons why such a transfer is not in the best interests of the Irish Prison Service.

The Respondent further submits that they provided a reason why the transfer would not take place. They suggest that the reason which was provided is consistent with their policy and the effective management of the Irish Prison Service.

The Respondent contends that it is also the case that in a further act of transparency they clearly indicated that the next employee on the transfer list would be offered the position.

The Respondent also submits that the second person on the transfer list was a male Prison Officer of a similar age to the Complainant. 

The Respondent contends, therefore, no discrimination in terms of age took place in filling the vacant position at Prison B.

The issue for decision in this case is whether the Complainant was discriminated against on the ground of age.  In reaching my decision, I have taken into account the submissions, written and oral, made by parties.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. 

The Labour Court, in Southern Health Board v Mitchell [2001] ELR 201 determined that:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that:

 “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In order to make a valid prima facie case of discriminatory treatment on the ground of age, pursuant to Section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different age who received more favourable treatment than he did. This is specified in Section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”, which includes the ground of age.

I recognise that the Complainant is disappointed that his transfer request was refused and that he is unhappy with the Respondent’s explanation as to the reason why.  However, since neither disappointment nor unhappiness are grounds on which a claim for discrimination can be made, it appears that the Complainant has opted to make a claim for discrimination on the age ground.

It is common case that the Complainant is 52 years of age and the second individual on the transfer list who was actually transferred is 54 years of age.  However, rather than use this individual as a comparator, the Complainant has proposed that a hypothetical younger comparator would be more appropriate.

I find that, contrary to the Complainant’s assertion, a hypothetical younger comparator is not a valid comparator for the purposes of establishing less favourable treatment in terms of Section 19(1) of the Acts when an actual comparator is available.

I find that the Complainant was not subject to discrimination on the age ground as the Prison Officer who was transferred to Prison B was older than the Complainant.

Accordingly, I find that the Complainant has failed to establish facts from which an inference of discrimination can be drawn. I find, therefore, that the Complainant has failed to discharge the burden of proof as required by the legislation.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that the Complainant has failed to establish a prima facie case of discrimination and accordingly, the complaint is not well founded.

Discrimination on age ground; failure to establish a prima facia case