ADJ-00018997

Complainant

Respondent

Parties

Kevin  Stanley

Health Service ExecutiveHbs, Hr

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-00024546-001

02/01/2019

The complainant, who has a hearing disability, applied for a permanent position with the respondent, with whom he had been employed on a temporary basis.

It is common to facilitate people with a disability with extra time to complete the assessment, but he was denied this facility.

A preliminary issue arises in relation to whether the complaint was made to the WRC within the statutory time limits, or whether there is reasonable cause to extend them.

As is the general practice in the WRC, the parties were heard on the preliminary point first, and then also on the substantive complaint, on the basis that should the preliminary point be decided in the complainant’s favour the substantive decision would also issue.

If the preliminary point was decided against the complainant, then the complaint would not be within jurisdiction and that would end the matter.

The complaint was referred to the WRC on January 2^nd 2019.

The complainant says that the final breach of the Act which led to the complaint took place on September 14th 2018 and that therefore his complaint is within jurisdiction.

The event which gave rise to the complaint, the assessment about which he complains took place on August 9^th, (the respondent says August 3^rd) 2017.

The complainant scored poorly and was placed in a lower category than he would have achieved had he been facilitated with the accommodation he had sought.

This meant that he was not called to interview in due course.

He submitted an appeal through the respondent’s internal machinery against the refusal to grant him the extra time accommodation and this appeal was rejected on September 14^th, 2018; the date which he now says represents the breach of the Act (although stated on the complaint form to be September 12^th).

The respondent says that the date of the breach is either August 3^rd, 2017 when the assessment took place, or August 23^rd, when the complainant was notified of the outcome.

The respondent relied on a decision of the Equality Tribunal in Rafferty v National Education and Welfare Board DEC-E2014-013 where the Equality Officer referred to the UK case of Cast v Croydon College UK CA [1998] IRLR 318 which held that;

‘a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision’.

It submits therefore that to fall within the time limits the complaint should have been submitted no later than February 23^rd, 2018 and therefore does not comply with the time limits.

On the basis of the decision referred to in the respondent ‘s submission, and on my own assessment of the facts of the case I find that any alleged breach of the complainant’s rights occurred on one of the August 2017 dates.

There is no sensible basis for seeing anything in the appeal process that represented a fresh breach, or act of discrimination. The complainant did not appeal the decision internally until July 5^th, 2018 (described by the respondent as an ‘informal’ appeal) and he was notified of the outcome of this on August 14^th, 2018.

He then submitted a further appeal on August 17^th, the outcome of which was notified to him on September 14^th.

While the well established ‘explain and excuse’ test is the one which must be applied in the context of exercising the ‘reasonable cause’ extension even that is of no assistance to the complainant in this case on the basis of my finding above regarding the date of the alleged breach of the Act.

The complaint was submitted well outside even the twelve-month period and therefore no application of the ‘explain and excuse’ test would be of any benefit to the complainant.

Accordingly, I find that the complaint was not made within the time limits required by the Employment Equality Act, 1998 and it fails.

For the reason set out above I do not uphold complaint CA-00024546-001 and it is dismissed.

Time Limits