Complainant

Respondent

Parties

Garvan Harper

Dept. of Employment Affairs & Social Protection [DEASP]

Representatives

Solicitor

Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020737-001

18/07/2018

The Complaint is that during an interview for a promotion in November 2017, a discriminatory comment was made to the Complainant by a person on the interview panel and this comment constituted gender discrimination.

The Complaint was brought outside 6 months from the date of the offence. The offence occurred on 13 November 2017. The WRC complaint was issued on 18 July 2017.

The Complainant attended an interview for a job promotion on 13 November 2017

At the start of the interview, one of the interview panellists considered the photograph which accompanied the job application and said to him “you look like a convict.”

The Complainant was shocked at the time and the comment unnerved him. The day he raised a formal complaint about the conduct of the interviewer.

The Complainant did not get the job promotion (the decision of which issued on 19 December 2017) however he does not seek to argue that he should have got the position, rather that the comment constituted gender-based discrimination because the words “a convict” would only be said to a male applicant and not a woman applicant. As such this comment constitutes gender-based discrimination.

The Complaint accepts that the WRC complaint (which issued on 18 July 2018) was brought outside of 6 months following the offence and seeks to argue that there was reasonable cause for not bringing the complaint within time and seeks to extend time to 12 months.

The Complainant contends that the reason he did not bring the complaint within 6 months because on foot of advice that he received from his trade union adviser he attempted to invoke the Department grievance procedure but was not allowed. However, the delay in refusing him this remedy lasted until February 2017. Then in March 2017, again based on advice of his trade union advisor, he sought mediation. On 19 April he was told that mediation route was not available to him. The 6-month time limit ran out on 14 May 2017.

On 19 April 2017, three weeks before the 6 months elapsed, the Complainant’s trade union advisor informed him that civil servants have little access to the WRC and that his complaint does not fall under the WRC jurisdiction. After doing some research himself into the WRC the complainant thought that a possible route to the WRC was to bring an equality complaint. He instructed his trade union advisor to bring an equality complaint on 6 June 2017, three weeks after the time limit had elapsed. On 11 June 2017 the trade union advisor repeated his advice that, as a civil servant, he did not have access to the WRC and also that the time limit for bringing a WRC complaint had now elapsed.

On 11 June 2017 the trade union advisor, instructed by the Complainant, informed the Respondent that the matter would be referred to the WRC for a breach under the Equality Acts.

It was accepted by the Complainant at the Adjudication hearing that the offence was not considered by him to be discrimination until after the 6-month time limit had passed.

His extension of the time limit was therefore being on three bases;

Firstly, he complained about the comment the day following the interview but was told by his line manager to delay raising a grievance until after the position was filled (the Complainant was informed that he was unsuccessful on 19 December 2017)

Secondly, the delay by the Respondent to decide on whether or not he could invoke the internal grievance procedure (Complainant was refused this on 5 March 2018) or invoke a mediation process (Complainant was refused this on 19 April 2018) meant that time should start running from a later date.

Thirdly, that his trade union advisor did not advise him that he could have brought a claim to the WRC until after the time limit had elapsed.

For these reasons he contended that the reasons that he did not bring his complaint within 6 months was due to reasonable cause.

The Respondent contends that the complaint is outside of 6 months from the date of the offence and that there is no jurisdiction to hear this case.

The Respondent further contends that no reasonable cause to extend time has been demonstrated by the Complainant

The Respondent contends that the first time that equality or discrimination was raised was on 11 June 2017, nearly a month after the 6-month time limit had passed. At no stage did the Complainant make any reference to either discrimination or equality throughout his requests for a grievance process/ mediation services between January and June 2018.

The Respondent contends that the attempt now to make this complaint into an equality complaint is an attempt to shoe horn the grievance about the comment into a gender-based discrimination. Quite apart from the fact that while the comment made, whilst unfortunate, was a gender-neutral term and as such would not meet the test of prima facie discrimination, the first matter that must be addressed as a preliminary exercise is whether the complaint is within time.

If the complainant wished to bring an equality complaint, the obligation to do this within time is his responsibility. Ignorance of legal rights (namely the right to bring an equality complaint) cannot base a time extension for reasonable cause. The Complainant seeks to rely on three bases.

Firstly, he was told to delay raising a grievance until after the position was filled in 19 December 2017

Secondly the delays to decide on whether or not he could invoke the internal grievance procedure or mediation meant that time should run from a later date.

Thirdly his trade union advisor did not advise him that he could have brought a claim to the WRC until after the time limit had elapsed.

In response to these points the Respondent contends that the Complainant has confined the alleged offence to be the comment that was made on 13 November 2017. Under section 77 5 (a) of the 1977 Act the 6-month time limit runs from the date of the occurrence of the discrimination, namely 13 November 2017. The Acts do not permit an extension of the date of the occurrence of the event, to a later date.

In any event the Complainant still had time to bring the complaint from when he was refused mediation services in April 2017 to bring his case within the time limit, but he did not do so.

In relation to the reliance on poor advice of his trade union advisor the Respondent contends that the likely reason that he was not advised by his trade union to bring an equality complaint was because it was not and is not an equality complaint. The push to bring an equality complaint came from the Complainant himself, not his trade union advisor.

Furthermore, under Labour Court case law [Iarnroid Eireann v. Stephen Lynch (UD1825)] where the failure to institute a complaint within the 6 months statutory time limit is due to inadvertence on the part of a legal advisor, this has not been upheld as constituting reasonable cause.

In this case the trade union email advice to the Complainant in April 2017 was correct, the Complainant has very little right of access to the WRC.

It was only on foot of the Complainant’s own independent research that he thought that the comment might constitute discrimination and thereafter he instructed his trade union advisor to proceed along this route of action instead, one that the trade union official had never advocated himself.

This complaint, therefore, is an entirely artificial attempt to make a discrimination complaint out of an event that the Complainant himself did not believe to be discriminatory until after the time limit had passed. In these circumstances he cannot blame the trade union advisor for the failure to give him advice within a time frame when clearly the trade union advisor did not believe that such a cause of action existed before the time had passed.

In these circumstances no reasonable cause has been demonstrated to extend time

I do not find that reasonable cause for the delay has been demonstrated by the Complainant in order to extend time under section 77 of the Employment Equality Act 1998.

The Complainant accepts that the date of the offence was 13 November 2017. Time elapsed six months from that date, namely on 14 May 2018. The WRC was brought on 18 July 2018, two months out of time.

Under section 77 of the Employment Equality Act 1998 time runs from the date of the occurrence of the discrimination and there is nothing in the Act to extend the date of the occurrence. Time did not stop running during the January – April period when the Respondent was considering whether or not to permit the Complainant the right to utilise the internal grievance procedure mechanism and/or the internal mediation service. The decisions to refuse to apply these procedures to the Complainant, were issued in March and April 2017, respectively. Therefore, in April 2017 the Complainant still had time to institute the WRC complaint within time. No reason for not doing so has been provided.

In relation to reliance on bad legal advice to to extend time I am persuaded by the decisions of the Labour Court (most pertinently, Iarnroid Eireann v. Lynch).

This is not a case of an advisor inadvertently missing a time limit. It is clear from the emails between the Complainant and the trade union that the reason his trade union advisor did not consider that the comment constituted discrimination and the trade union advisor may have had cogent grounds to defend that position.

Ultimately it was the Complainant’s own independent research that led to him bringing the WRC complaint, not the advice of his advisor. It is significant that the Complainant conceded that he did not even consider the issue of discrimination until the time limit had passed. Had he wished to pursue a discrimination complaint his research could have been done at an earlier stage but certainly it should have been done between April (when all internal remedies had been refused) and May 2017 when the time ultimately elapsed. The contention that the trade union official (who did not accept the merits of an equality complaint) caused the delay by not advising the Complainant of time limits that in his view did not apply to the complainant, does not in my view, hold water sufficiently, in order to create grounds of reasonable cause.

The comment made during the interview was wrong. It must have unnerved the Complainant at a time that he was apprehensive anyway. It was unfortunate, inappropriate and an apology should have been immediately communicated to him. I am satisfied that the apology was eventually made during the Adjudication hearing, but there was no good reason why this could not have been done at a much earlier stage.

The issue of whether the use of, what is essentially, a gender-neutral term (because convicts – meaning persons who are convicted of criminal offences - can be male, female or non-binary) amounts to discrimination, either directly or indirectly, is not a matter that I need to decide at this stage. My preliminary finding is limited to whether I have jurisdiction or not on the time limit issue.

As this complaint was brought outside the 6-month time and no reasonable cause for the delay having been presented I find that I do not have jurisdiction to consider this complaint.