Complainant

Respondent

Anonymised Parties

A School Secretary

A School

Representatives

Gerard Kennedy B.L. instructed by Hibernian Law Solicitors

Caoimhe Ruigrok B.L. instructed by Mason Hayes & Curran Solicitors

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-00024255-003

18/12/2018

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

CA-00024256-003

18/12/2018

The complainant is employed by the respondent as a School Secretary and works 30 hours per week. The complainant has been on certified Sick Leave since 19th June 2018. The complaints relate to allegations of discrimination on the Age and Family Status grounds. The complainant is also alleging that she was victimised by the respondent. The complaint was submitted to the Workplace Relations Commission (WRC) on 18th December 2018. The cognisable period of the complaint is therefore 19th June 2018 – 18th December 2018.

Complaint Application CA-00024256-003 above is a duplicate complaint of Complaint Application CA-00024255-003. The substantive complaints will be addressed under CA-00024255-003. The complainant’s grievances as submitted under the Industrial Relations Acts will not be addressed in this decision as the respondent has objected to an investigation by the WRC and in those circumstances, there is no further role for the Adjudication Officer in the matter. The decisions will instead focus on whether the complainant was discriminated against on the grounds of Age and Family Status and whether she was victimised by the respondent as claimed.

Naming of the parties

Given the sensitive nature of these complaints and the ongoing working relationship between the parties, I have decided to use my discretion and anonymise this decision.

The complainant stated that she was discriminated against on the age ground on the basis that prior to January 2017 the School Principal conducted a review of another School employee on the basis of her age and that it was suggested to the complainant that, as she had reached the age of 60, her contract would be reviewed unless she intended leaving her employment. The complainant stated that her contractual retirement age is 65 years of age, but the continued reference made by the School Principal that the complainant “did not need to work” as her husband had a good pension and she “did not need the money” amounted to discrimination.

The complainant also contends to have been discriminated against on the family status ground in January 2018, on the basis that when she queried the non-payment of a Christmas Bonus of €100, the School Principal stated that the complainant ”had enough” meaning that she did not need the money due to her having no dependent children and on the basis that her husband had a good job/pension. The complainant also stated that the School Principal passed comments in relation to the complainant’s grandson being an only child which the complainant perceived to be discriminatory. The complainant also contends that she was victimized by the respondent.

The complainant stated that the most recent date of discrimination was on 19th June 2018 when a grievance meeting failed to address the complainant’s concerns.

Preliminary Point -Time Limit

The respondent contends that the complainant must establish that acts of discrimination occurred within the cognisable period of the complaint (19th June 2018- 18th December 2018). The respondent contends that, as the issues raised by the complainant in her complaint relate to periods outside of the cognisable six-month period, the complaints are out of time and cannot be considered.

Nothwithstanding its preliminary point, the respondent contends that the complainant has failed to establish facts from which an inference of discrimination can be drawn. Accordingly, the respondent contends that the complainant has failed to discharge the burden of proof and that her complaints of discrimination on the Age and Family Status grounds and her claim of Victimisation are without merit and should fail. The respondent cited the cases of Mitchell v Southern Health Board (2001 ELR 201), in support of its contention in that regard.

Note:

Much of the complainant’s submissions at the adjudication hearing relate to grievances which the complainant has attempted to pursue in line with the internal grievance procedures and the Code of Practice on Grievance and Disciplinary procedures; S.I. 146 of 2000. It was clarified to the parties at the adjudication hearing that it would only be the allegations of discrimination and victimisation that would be addressed in this decision. It is a matter for the complainant and her representatives to consider the other available options in processing the Industrial Relations grievances that exist in the workplace.

Time Limits

Sections 77(5)(a) of the Employment Equality Act, 1998 to 2015 state as follows:

77(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

The complainant stated that the most recent act of discrimination occurred at a grievance meeting held on or about the 19th June 2018. However, having considered the complainants submission on the matter, I am not satisfied that any evidence has been put forward to substantiate the assertion.

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — (a) a person is 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) (in this Act referred to as the ‘ discriminatory grounds ’ ) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, ( b ) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

85A (1) Where in any proceeding’s 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. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes — (a) indirect discrimination, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Age Discrimination

The complainant outlined that the commencement of a retirement review of another employee in the School in late December 2016/early January 2017 constituted discrimination on the age ground. The other employee was due to retire in December 2016 at aged 65 which prompted a discussion with her on that issue at that time. The respondent acknowledged that the complainant had a contractual retirement age of 65 and that no review took place in relation to the complainants continued employment.

In all of the circumstances of this issue, I note that the timeframe of the contract review, such as it was, did not relate to the complainant and occurred outside of the six month cognisable period of the complaint. Accordingly, I find that this complaint is out of time.

Family Status

Family Status is defined under Section 2 of the Employment Equality Act, 1998 as follows:

“family status” means responsibility

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability.

The complainant contends that she was discriminated against on the basis of family status in contravention of Section 6 (2)(c) of the Employment Equality Acts, 1998-2015. However, it was clarified at the adjudication hearing that the complainant is not a parent of a child under the age of 18, is not in loco parentis and is not responsible for, or the primary carer of, a person of or over the age of 18 with a disability that requires care and support on an ongoing basis. Accordingly, I find that this complaint is misconceived.

Victimisation

Victimisation is defined under Section 74 (2) of the Employment Equality Act, 1998 as follows:

74(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

€ an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

(3) For the purposes of sections 77, 78, 83, 87and 90the date on which a case is referred, or an appeal made, under those provisions is the date on which the reference or appeal is received by the Director General of the Workplace Relations Commission, Labour Court or Circuit Court, as the case may be.

In order to succeed in a complaint of victimisation under the Employment Equality Acts, 1998-2015, the adverse treatment complained of must occur as a result of having committed a protected act within the meaning of the legislation. In this case, the difficulties being experienced by the complainant appear to have arisen as a result of interpersonal difficulties between the complainant and the School Principal.

In all of the circumstances of this complaint I do not find that the complainant was victimised within the meaning of the Employment Equality legislation as claimed. Accordingly, I find that this complaint is not well founded.

Having considered the submissions of both parties, I find that the complaint in relation to age discriminations is out of time, and therefore the complaint fails. The complaint of discrimination on the family status ground if misconceived and the Victimisation complaint is not well founded.

Discrimination, Victimisation