FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : BEAUMONT HOSPITAL (REPRESENTED BY BYRNE WALLACE) - AND - PETTY KAUNDA (REPRESENTED BY CYRIL & CO, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No ADJ-00012675
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 2 November 2018 in accordance withSection 83(1) of the Employment Equality Acts 1998 to 2015. A Labour Court hearing took place on 29 August 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Ms Petty Kaunda against the Decision of an Adjudication Officer ADJ-00012675 CA-00016623-002 under the Employment Equality Acts 1998 – 2015 (“the Acts”). The Complainant claimed to have been discriminated against by Beaumont Hospital on the grounds of gender and race contrary to section 6(2)(a) & (h) of the Acts in relation to access to a promotion.
The Adjudication Officer found that the Complainant’s claim was out of time.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Petty Kaunda will be referred to as “the Complainant” and Beaumont Hospital will be referred to as “the Respondent”.
The Complainant submitted her claim under the Acts to the Workplace Relations Commission on 4thJanuary 2018.
Background
The Complainant is an Irish national of South African origin. She commenced work with the Respondent as a Catering Supervisor on 31st July 2006 and progressed to the position of Catering Officer on 1stJune 2012. The Complainant applied for the advertised promotional position of Deputy Head of Catering and was interviewed for the post on 16thSeptember 2016. On 19th September 2016 she was informed that she was not the successful candidate. The Complainant lodged a complaint with the Workplace Relations Commission on 4th January 2018, arguing that she was discriminated against on the grounds of gender and race.
Preliminary Issue
Mr Loughlin Deegan, Solicitor, Byrne Wallace, Solicitors, on behalf of the Respondent submitted that the complaint herein was not properly before the Adjudication Officer and is not now properly before the Court as it was manifestly out of time. In support of this submission it was pointed out that the complaint was lodged with the Workplace Relations Commission on 4thJanuary 2018 whereas the Complainant’s complaint relates to her unsuccessful application for a promotion to Deputy Head of Catering which was verbally notified to her on 19thSeptember 2016 and later followed by formal written notification on 26thSeptember 2016. Thus, it was submitted, the act alleged to constitute discrimination had not occurred within the cognisable time period covered by Section 77 of the Acts. On that basis the Respondent contended that the complaint was out of time.
Ms Ashimedua Okonkwo, Solicitor, Cyril & Company, Solicitors, submitted that the most recent act of discrimination occurred on 8thSeptember 2017 when the Complainant received a letter from the Respondent and therefore was in time. She contended that this letter constituted a review of the decision taken by the interview board at her interview on 16th September 2017. Furthermore, she contended that the continuous delays caused by the Respondent in not responding to the Complainant’s requests for feedback on her interviewafter numerous emails and communications should be viewed as a continuum of discriminatory events.
Finally, she submitted that by not providing the Complainant with clarification and feedback in relation to her interview the Respondent was misrepresenting the situation which came to the Complainant’s notice on 8th September 2017 and that this misrepresentation was the operative cause of the delay in initiating her claim.
Mr Deegan refuted these assertions. He stated that on 8thSeptember 2017 the Complainant received a letter from the Respondent, in reply to an email from her dated 26th July 2017, in which she posed a number of questions. He said that the Respondent’s reply answered those questions and was nothing more than a reiteration of the initial decision notified to her on 19th September 2016. He said it was not a fresh reconsideration of the interview result. Secondly, Mr Deegan disputed the contention that because the Complainant continues to be aggrieved with the outcome of the interview process that there has been continuous discrimination by the Respondent. Finally, he disputed that there had been any misrepresentation by the Respondent.
The Law Applicable
Section 77 (5) of the Acts states:
- "(a) Subject to paragraph (b),aclaim for redress in respectof discrimination or victimisation may not bereferred under thissection after theend of the period of6months from thedate of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, thedate of its most recent occurrence.
(b) On application byacomplainanttheDirector General of the Workplace Relations Commission or Circuit Court, as the casemay be, may, for reasonablecause, direct that in relation tothe complainant paragraph (a) shall have effect as if forthereferencetoaperiod of6 months thereweresubstituted a referenceto such period notexceeding 12 monthsas is specified in the direction;and,wheresuchadirection is given,this part shall haveeffect accordingly.
(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.
Findings of the Court
There can be no doubt that the act of discrimination which the Complainant alleged occurred in September 2016 is outside the time limit provided under Section 77 (5)(a) and (b) of the Acts and is statute-barred unless it can be saved as being part of a continuum of discrimination.
The main thrust of the Complainant’s case is that the Respondent had delayed in giving her feedback on the outcome of her interview held on 16thSeptember 2016.
Ms Okonkwo, the Solicitor for the Complainant, submitted that what was in issue in this case is continuing discrimination arising from the Respondent’s failure to provide the Complainant with feedback on the outcome of her interview. It was submitted that the discrimination subsisted up to 8thSeptember 2017 which was within the cognisable period.
Both Ms Okonkwo and Mr Deegan relied upon the UK Supreme Court case ofCast v Croydon College[1998] ICR, where it was 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.”.
Having considered the facts as presented in the instance case, the Court cannot accept that a further decision was made on the Complainant’s application for the promotional position. The letter in question answers queries raised by the Complainant regarding the interview for the promotional position and provides her with a copy of the interview notes together with details of how she scored. The Court cannot accept that this letter forms any kind of reconsideration of the interview process and is of the view that it merely provides clarity on the matters raised by her. Therefore, the Court is satisfied that no further decision was made on 8thSeptember 2017 which could constitute an act of discrimination.
The Court has examined the Complainant’s assertion that the Respondent had in place a discriminatory regime, rule, practice or principle which discriminated against those of a particular gender or race. The circumstances in which these provisions are applicable were extensively considered by this Court in Determination EDA1124Ann Hurley v County Cork VEC.As was pointed out in that case, Subsection (5) and Subsection (6A) of Section 77 deal with different forms of continuing discrimination. Subsection (5) deals with situations where there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. Therefore, in order to take into account acts of discrimination outside the time limit there must be a finding that a related act of discrimination occurred within the time limit. Under Subsection (6A), an act will be regarded as extending over a period, and so treated as having been done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant,vizBarclays Bank plc v Kapur[1989] IRLR 387.
However, in the instant case the Court has found that the letter dated 8thSeptember 2016 does not constitute an act of discrimination by the Respondent and therefore Subsection (5) does not apply. Moreover, the Court is satisfied that no facts have been presented to substantiate the assertion that the Respondent had in place a discriminatory requirement for access to promotion within the meaning of Subsection (6A). The Court cannot accept that a delay in providing information, while not commendable, constituted a discriminatory regime, rule, practice or principle which had a clear and adverse discriminatory effect on the Complainant.
Finally, the Court has considered the Complainant’s contention that the Respondent misrepresented facts by its failure to provide her with feedback from her interview until 8thSeptember 2017 thereby causing a delay. The Court addressed this issue inBank of Ireland v A WorkerEDA104 where it held that the term ‘misrepresentation’ is generally understood as referring to a false statement of fact, intended to be acted upon, which actually misleads the person to whom it is addressed. In the context in which the term appears in section 77(6) of the Acts, operative misrepresentation can arise where: -
- a.The Respondent makes a false statement of fact in respect to some material particular affecting a cause of action under the Act;b.The Complainant believed the statement to be true; andc.In reliance on the truth of the statement the Complainant delayed in initiating a complaint under the Act.
Conclusions of the Court
The crux of the Complainant’s case appears to surround the fact that she did not submit her complaint under the Acts until January 2018 as she was processing an internal grievance. The Court addressed this issue inBrothers of Charity Services Galway v Kieran O’Toole[EDA 177] where it held:-
- “The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”
The Court also held that :-
“it is clear that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of discrimination (or victimisation) within the time limit. It held that there must be some reality in the claim that acts of discrimination actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”
Similarly, inBusiness Mobile Security Ltd t/a Senaca Limited v John McEvoyEDA 1621 the Court held that the claim was statute barred:-
- “The Court has examined the facts of the case as outlined in the submissions of both parties. The Court finds that the last act of discrimination occurred no later than August 2013. Thereafter the Complainant had a choice to make as to whether he would pursue the matter through the statutory remedies available to him or would avail of an internal grievance procedure in an effort to secure a resolution. He chose the latter.
There was a delay in processing the grievance which lasted for more than six months. In the meantime, the Complainant was out of work on sick leave. Again, he decided to allow that procedure take its course while time was running under the Act. When the matter was eventually brought to a conclusion under the grievance procedure the time limit for bringing a complaint under the Act had expired.
The Complainant seeks to describe the decision not to uphold his grievance as a further act of discrimination. The Respondent rejects that proposition. ……
The Court has considered the matter and has decided that, in this case, the decision by the Respondent not to uphold the grievance cannot amount to an act of discrimination under the Act.
The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”
The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent her from bringing her complaint within the statutory time limit. In line with its decision inBusiness Mobile Security Ltd t/a Senaca Limitedthe Court does not accept that the internal grievance process can take its course to extend the period for submitting a claim which in any event is limited by Section 77(5)(b) to a period of twelve months from the date of the occurrence of the event giving rise to the claim.Therefore, the Court must find that the within claim was out of time when it was presented to the Workplace Relations Commission on 4thJanuary 2018.
Determination
For all the reasons set out above, the Court finds that the complaint under the Acts is statute-barred and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.
Accordingly, the Complainant’s appeal is not allowed and the Decision of the Adjudication Officer is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
FMc______________________
3rd September 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.