Complainant

Respondent

Anonymised Parties

Research Fellow

Funding & Application Body

Representatives

N/A 

N/A 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030199-001

12/08/2019

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

CA-00030199-002

12/08/2019

At the outset I made the decision to exercise my discretion to anonymise the parties accordingly as two cases have been taken.

There are two claims relevant to this case namely: 

CA-00030199-001: Complaint for adjudication pursuant to Section 8 of the Unfair Dismissals Acts,1977 – 2015

CA-00030199-002: Complaint for adjudication pursuant to Section 77 of the Employment Equality Act, 1998

CA-00030199-001 

The Complainant states that in breach of Section 8 of the Unfair Dismissals Acts, 1977 – 2015 he was unfairly dismissed however he does not have at least 12 months service. The Complainant states that the grounds of his complaint are based on exercising his right under the Protected Disclosure Act. The Complainant states the dismissal of his fellowship is unfair due to the following reasons:

On 23 October 2018, the Complainant was offered a research fellowship by the Respondent in conjunction with International selection committee to carry out research project. 

Time period between 24 October and 14 December 2018, all parties signed the research agreement.  However, he left a note of dissent with valid arguments indicating that sub-section 5.2.3. of the terms and conditions linked to section 4.3 of standard research agreement does not adhere with common EU guidelines for EU funded research programmes by presenting a valid reason from an academic mentor.

On 23 January 2019, prior to the date of commencement of fellowship he presented a legal document on his civil status (co-habitation) requesting the Respondent to recognize his civil status. 

On 1 February2019, the Respondent rejected the Complainant’s request only due to co-habiting dates and did not raise any further concern/issues regarding the legal documentation.  The deadline of 7 February 2019 was given to the Complainant to sign the employment contract with the host.

On 7 February 2019, within the deadline given by the Respondent to sign the contract and prior signing the work contract with the host, the Complainant disclosed important information, in the form of “whistleblowing” under Protected Disclosures Act 2014, among all parties/stakeholders (the mentor, host institution research office staffs as well as staff within the Funding and Application body) associated with the fellowship programme regarding significant deviation from the fellowship guidelines during the course of selection of his application with documented evidence. 

On the same day, the Complainant also asked the programme manager to provide a justified answer for processing deadline -crossed late ineligible application, indicating his right to have true-to-the-fact information based on transparency, accountability and credibility point of view.

As further evidences to this, the Terms and Conditions and that of guidelines associated to these terms and conditions, were not adhered to and thus irregularities took place during the course of selection as of following documented evidence:

·       (a) The email message from the programme manager to the Complainant on 1 May 2018 confirmed that the Complainant’s application was not submitted with the deadline of 30 May 2018 at 17:00 (CET). According to the guidelines, the application automatically deemed ineligible for processing regardless of any circumstances.

·       (b) The subsequent application received dated 1 May 2019, 09:09 A.M. clearly indicates that the Complainant’s application was received late by the manager through “forced submission” also recognised as “abnormal” and “irregular” submission. Thus, in the first event of timeline presented to the Respondent in ES2 form indicating the Complainant’s application accepted on 30 April 2019 is absolutely false and misleading information as there is no documentary evidence to support his event. The Complainant further assures that the validation is automatic and immediate through the online application system whenever the Complainant submits the application, otherwise solely remained as not submitted draft version within the system.

·       (c) This also indicated that the consent and then application declarations were made through “forced submission” also recognised as “irregular submission” by the programme manager. The Complainant considers this as a serious issue and is against the EU General Data Protection Regulation Act 2018.

·       (d) Simply edited version (draft) of application can no longer be considered as a submitted version according to the application guidelines.  The submit button was provided within the system.  While the Complainant could not submit within the deadline, regardless of any reasons and factors associated with this, the application automatically be deemed ineligible for processing and thus deviated from the guidelines.

·       (e) In addition, the guidelines, at any circumstances, do not consider any reasons and factors responsible for not submitting the application within the deadline by the Complainant, neither does it consider any sort of excused for this. Further, the first paragraph of the guidelines clearly indicates that it is the Complainant’s own responsibility to invite the mentors and let them accept the invitations within the deadline thereby the Complainant must submit the application before the deadline.  The Complainant also retained an email message from the programme manager from 27 April 2018 re-confirming this. Thus, the responses provided by the Respondent in ES2 form on this case are manipulated with misleading information and even not supported by the documented evidences.

·       (f) The Complainant re-assures that there was not any technical difficulty in the online application system. It is simply that the Complainant’s company mentor was not available (due to his own personal reason) for validation (within the application deadline) despite the Complainant and the supervisor (academic mentor) both tried to contact him before deadline. The Complainant’s academic mentor has attested to this in writing. This had led the Complainant’s application incomplete and thus could not submit nor did he consent as the system closed automatically after the deadline of 30 April 2018, 17:00 (CET) thereby application automatically deemed ineligible for processing.

On 14 February 2019, the programme manager unfairly dismissed the fellowship without providing any answer to the Complainant’s valid question.

The manager dismissed the fellowship before the deadline of 12 April 2019 set by the Respondent to deliver a host employment contract. Thus, the Complainant considers this totally unfair dismissal (Unfair Dismissals Acts 1977-2007) and lawfully demands for the reinstatement on his work through his fellowship.  At the same time, the Complainant lawfully asks for compensation for financial loss as well as compensation for the time and trouble taken in making and pursing the complaint.

The Complainant felt his fellowship simply got dismissed just because he exercised his right under the Protected Disclosure Act and not because he did not sign the contract with the host.  The signing of an employment contract with the host academic mentor and the Complainant so as to deliver the employment contract to the funding body (Respondent in this case) within the deadline of 12 April 2019 set by the Respondent as clearly mentioned in the documentation table and submissions deadlines.

CA-00030199-002

The Complainant states that in breach Complaint of Section 21 of the Employment Equality Act, 1998 he was unfairly dismissed under the grounds of reason of his Civil Status, reason of his Family Status, treated unlawfully against his Conditions of employment, treated unlawfully in dismissing him because of opposed discrimination and the most recent date of discrimination being 14 February 2019. 

The Complainant request to the Respondent to recognise his civil (family) status thereby eligibility for family allowance based on his legal documentation is valid and justifiable as of following reasons.

The supplied documentary evidence (Affidavit of Cohabitation) is provided to the Complainant who has been cohabitating but not married (no legal obstacle of marriage) with full recognition through legislation of the country where this relationship has been established, i.e. the Republic of the Philippines.

The valid legal certification from the regional court followed by authentication with an apostille seal from the Philippines Government (Department of Foreign Affairs) recognises its equivalence as formalised relationship through countries legislation (Complainant provides this document additionally as backup to previously submitted Affidavit dated 23 January 2019 prior to the date of commencement of his fellowship). A country’s Government official would authenticate the legal document with an apostille seal only in a condition after it is being recognized by the legislation of that particular country i.e. Republic of the Philippines.

On 1 February 2019, Respondent rejected Complainant’s request to recognise his civil status (co-habitation) and thereby eligibility for family allowance only due to co-habiting dates and did not raise any further concern/issues regarding the equivalence of the legal documentation. However, they have raised multiple concerns about the documentation in the ES2 form.  This indicated that both the programme manager as well as the division manager from the Respondent not being consistent with their own previous statement and thus creating further confusion as well as illusion to the fellow.

Complainant further clarifies that the deadlines set by the Respondent to present different legal documentations (certification) are not in adherence with the common EU guidelines/policy for the EU funded research programme. The Complainant’s academic member (Complainant’s representative for this case) has confirmed this through email communication as well as from his personal visit to the Research Executive Agency (European Commission, Brussels), indicating that any legal certification must precede the date of commencement of employment with the host institution and not like what the Respondent stated as before the deadline for application.  Complainant also retains the email message from the Irish National Contact Point (NCP) within Irish Universities Association for Marie Sklodowska Curie funded research fellowship programme dated 19 September 2018 re-confirming this. 

The Complainant considers it unfair to deny his request on family allowance based on his civil status (co-habitation) given the fact that fellow’s relationship with his partner had formed (established) since January 2017 which is prior application deadline of 30 April 2018 (and thus Complainant believes that this satisfies the sub-section 5.2.3. of Career-FIT Terms and Conditions), and he has presented the legal documentation prior date of commencement of fellowship, and that by simply looking into Complainant’s specific (chosen) cohabiting dates should not disqualify him for the Family Allowance.  Complainant again puts his valid argument saying foundation (establishment) of any relationship is key for cohabitation and that it is unfair to ignore his civil status only by simply categorising dates of cohabitation.

The sub-section 5.2.3. of Career-FIT Terms and Conditions determines (severely restricts) specific dates of family relationship only for the Complainant’s civil status as before the application deadline, while this condition does not apply for other legal documentations and certificates such as academic qualifications (PhD degree certificate), Language skill certificate etc. which are due prior recruitment with the host i.e. prior commencing the fellowship (sub-sections 4.3.1.1 and 4.3.2.2. respectively on page 6 of terms & conditions).  Complainant reasonably asked the programme manager, on dates between 18 September to 24 October 2018, to provide valid justification on this but no valid answers have been provided as of date.  Therefore, Complainant considers this inconsistent as well as unfair as this particular sub-section 5.2.3 severely undermines fellow’s family status and value simply because of date of family relationship.  There occurs a direct biasness due to this inconsistent policy.  The complainant also strongly believes that all fellows are treated equally and impartially only in a situation when same timelines (with respect to particular dates, either before or after the application deadlines, mentioned in the legal certificates), are put for all types of legal documents (PhD degree certificate, language certificate, certificate of civil status etc.) and not different time restrictions for different legal documentations.

Overall, as the programme manager considered “dead” (deadline-crossed) ineligible applications as eligible for processing by showing significant flexibility, therefore it is not uncommon nor to be it unfair that Complainant also expects the same degree of flexibility on his valid request to recognise his civil status based on legal document as both cases are equally associated with the application deadline and because Complainant asks with valid legal documentation permitted by law, and prior commencing his fellowship.  Hence, fellow seeks for equality, non-discrimination and rigorous justice permitted by Irish Law as well as via legislation of the country where Complainant’s relationship has been formalized.

The Funding and Application Body was established in July 1998 and is the government agency responsible for supporting the development of manufacturing and internationally traded services companies.  The Respondent provides funding and supports for companies – from entrepreneurs with business propositions for a high potential start-up through to large companies expanding their activities, improving efficiency and growing international sales. The Respondent also provides funding and supports for college-based researchers to assist in the development, protection and transfer of technologies into industry via licensing or spin-out companies. The Research & Innovation division is responsible for the engagement with the research community. The Respondent helps researchers based in third level institutions and Public Research Institutes to engage in research.  The aim is to facilitate collaborative links between enterprise and the research community that lead to the practical application of research in business, yielding benefits to both groups. In order to achieve this, the Respondent provides funding through a number of state and European programmes.

It is the Respondents view that the Complainant has never been an employee of the Respondent, nor has he been a potential employee to the organisation. The Respondents engagement with the Complainant has been directly related to application for funding a Co funded EU programme.  Had this funding proceeded the Complainant’s employment would have been directly with the University. At no time was there an expectation that the Respondent would employ the Complainant. On that basis the Respondent believes that the Complainant does not meet the criteria to bring forward a case under the two pieces of legislation.

CA-00030199-001 

The first complaint under Section 8 of the Unfair Dismissals Acts, 1977 – 2015 states the Complainant was unfairly dismissed (as he did not have at least 12 months service) on the grounds of his complaint based on exercising his right under the Protected Disclosure Act.   It is the Respondent’s assertion that at no time was the Complainant nor would have been an employee of the organisation.  This accords with clause 3.4.1 with the terms and conditions of the programme, and clause 5.1 of the standard research agreement to be entered into between the Respondent and the relevant university. The Complainant was party to an application for funding under one of those programmes which is a transnational scheme.  It was launched in 2017 and co funded by the Respondent and the European Union.  This particular scheme offers an opportunity for experienced researchers to develop their careers in market focused applied research in Irelands Technology Centres. Under the scheme the Technology centre is the employer of the ‘fellow’, and the Respondent pays the grand to the institution from a Respondent budget, and monies provided by the European Union.

The Respondent would like to particularly draw your attention to the following sections:

Section 3.  Description of Fellowships

3.1 Respondent has been awarded by the European Commission under the Horizon 2020 Marie Sklodowska-Curie Actions to co-fund (on a 50:50 basis) a research fellowship scheme with international and inter-sector mobility elements. The aims of the fellowships are to support suitable highly qualified experienced researchers in any discipline to:

-  conduct research relevant to the Technology Centres; -  engage in collaboration with suitable companies; -  experience and benefit from international mobility; -  avail of relevant training and career development opportunities; -  increase their chances of gaining a future senior research position, especially in the private sector.

3.3. All fellowships must commence on 1 February 2019.

3.4 Respondent Name offers one type of CAREER FIT fellowship: hosted and employed by a host institution in Ireland for three years (In this case the University of Name), with a secondment typically of between six and twelve months duration during this time to a company or companies.

3.4.1 Researchers awarded an Irish fellowship will be hosted by a host institution in Ireland for three years, with a secondment typically of between six and twelve months duration this time to a company career.

As part of the application process a proposal was received from the Complainant on 30 April 2018, in partnership with the Host institution/potential employer, which was approved for funding.  An industry sponsor was associated with the application but received no direct funding.  A conditional offer letter was issued to the Complainant on 23 October 2018 along with a research agreement, the terms of which required the Complainant, to enter into and furnish the Respondent with a copy of his employment contract with the University.

The Complainant signed the award acceptance form dated 24 October 2018 with a handwritten note marked on it by the Complainant, stated that the offer of his fellowship was conditional on his application family status being subject to review before signing the contract with the host University.  He also returned a signed research agreement, including a note of dissent where he states he does not agree with section 5.2.3 of the Career Fit terms and conditions. In order to get final acceptance under the terms of the scheme it was a requirement of the Complainant to furnish the Respondent with an employment contract between himself and the University. This was never furnished. The Respondent wrote to the Complainant on 14 February 2019 notifying him that as they had not been furnished with a signed employment contract, they had discontinued his fellowship opportunity and notified the company (Sponsor).

The Respondent also reiterated the following:

·       Approval of a grant under the scheme does not offer any sort of employment contract with Respondent.

·       The Complainant was never employed by the Respondent at any point nor was it ever envisaged that he ever would be.

·       Had the Complainant continued with the fellowship under the terms of the scheme the contract of employment would have been with the University, and the approval did not constitute a contract of employment with the Respondent.

·       On the basis of the above, as he was not and could never have been an employee of the Respondent no unfair dismissal has taken place by the Respondent.

CA-00030199-002 

The second complaint under the Employment Equality Act, 1988, relates to the matter eligibility for Family Allowance as per section 5.2.3 of the Career Fit development fellowships.  Attention was drawn to the follow:

“family is defined as persons linked to the research by (i) marriage, or (ii) a relationship with equivalent status to a marriage recognised by the legislation of the country where this relationship was formalise or (iii) dependent children… Family status of the fellow will be determined at the deadline for applications and will not be revised during the lifetime of the fellowship”.

Under the Terms and Conditions, the documentary evidence in our possession supports the decision to reject eligibility in this case for the following reasons.

·       The onus is on the applicant to provide documentary evidence of a relationship, equivalent to marriage, and recognised by legislation of the country where this relationship was formalised. This was confirmed by an email received by the Respondent from the European Commission on 21 February 2018 quoting legal advice received by the European Commission.

·       The only documentation provide by the Complainant was a self-sworn affidavit, which clearly stated that the first period of cohabitation between the Complainant and his partner commenced on the 21 November 2018 and ran until 21 December 2018, before the complainant returned to Italy and again for a short period in January 2019.  This cohabitation is after the deadline of 30 April 2018 for applicants to this Fellowship and therefore not consistent with section 5.2.3 of the terms and conditions of application.

·       It is the opinion of the Respondent the submission of a self-sworn affidavit by the Complainant does not meet his obligation to discharge the burden of proof that his family status was at the end of the deadline equivalent to marriage, and recognised by legislation in the complainant’s chosen country, the Republic of the Philippines.

·       The applicant supplied this document almost two months after the last applicable deadline for receipt of such supporting documentation.

·       The hand-written instructions on the signed Acceptance Form of 24 October 2018 informed us that his acceptance of the offer of a fellowship was conditional on his application qualifying for the Family Allowance.

·       An email from the applicant from Thursday 20 September 2018 reasserts this.

·       The necessary documentary evidence has not been supplied to support the payment of the Family Allowance. We therefore considered this application as closed.

This matter has already undergone further investigation since the decision.

Specifically, within the Respondents contract with the EU under the terms of the scheme a complaints process is set out.

·       The complete file has been examined by our Appeals Board (constituted in accordance with the requirements of the European Commission) as per our grant agreement with the Research Executive Agency and this decision has been upheld and the applicant informed on the 26 February 2019. 

·       Respondent has also consulted with the European Commission, the co-signatories of the Career-Fit scheme grant agreement, and they confirmed that the burden of the proof is on the beneficiary and that it is not the role of the Research Executive Agency to provide any assessment of the status of “equivalent to marriage” as organisation under national law.

·       All these issues above have additionally been the subject of an appeal by the applicant to the European Commission as they co fund the scheme.

·       The issues raised were also subject to an injury by the Public Service Ombudsman to the Respondent.  The Ombudsman has decided to discontinue the complaint as it is going through the WRC Mechanism.

The Complainant applied for funding under the terms of the Career fit Career Development Fellowships in the National Technology Centre Programme. The Terms and conditions associated with this co funded programme address the two areas of the Complainants complaint.

At no time does successful awarding of funding under the scheme result in employment with the Respondent.  The Complainant has never been, nor would he have been employed by the Respondent.  If his funding application had been processed as per the terms of the scheme the employment would have been directly with the University.

The decision around the Complainant’s family status is also covered under the terms of the scheme. The Complainant did not meet the criteria for this under section 5.2.3 of the terms and conditions of the application.

CA-00030199-001:

Section 6 (1), 6(2) and 6(2ba) of the Unfair Dismissals Act, 1977

(1)    Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2)    Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

the employee having made a protected disclosure

Section 1 of the Unfair Dismissals Act 1977 states:

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act, 1941 , shall be deemed to be employed by the local authority;

The Complainant has alleged that he has made a protected disclosure and that as a result he does not need to have 12 months service to take a claim under the Unfair Dismissals Act. The Respondent allege that the Complainant was not and would never be their employee and they were just administering the fund.  The Complainant refused to accept the terms and conditions of the scheme and confirmed the same due to a dispute regarding family allowance.

Under Section 8 of the Unfair Dismissals Acts, 1977 – 2015 of the protection disclosure, the Complainant was supposed to sign the contract in February. He had civil status documents, however the Respondent rejected it due to co-habiting dates.  He did not submit the application by the deadline. The deadline was 30 April 2018.  After 1 May 2018 he received an email from the Respondent confirming the application was filed out and they could push it through. His application was processed.  The Complainant stated that this is his protected disclosure i.e. that even though he had not submitted his application on time the Respondent still processed it after that date of submission. The Complainant stated he did not submit his application it was just in draft form.

The Company confirmed the fund is administered by the Respondent. The host University advertise the opportunity and the Respondent applies and they need a sponsored company to be involved.  All has to be in place prior to the application’s review.  The deadline was 30 April 2018 for applications.  The application review process occurs by an EU expert. The University is the employer and they offer the terms and conditions to the fellow.  The Complainant is not an employee of the Respondent and wouldn’t ever be even if the application progressed to full acceptance an employee of the Respondent.

Under the Protection Disclosure the deadline for application was 30 April 2018.  The programme manager noted an application was in the system but the company sponsor was not in place. The programme manager contacted the company on 1st May 2018 to ask what was the issue and the company explained they missed pressing the button to press accept and therefore the Respondent allowed the application through on 1st May 2018.  This was never hidden and this was reviewed by the EU fund via complaint already where they confirmed the position there also. The University would have been the employer if the process proceeded to conclusion. I conclude that the fact the Respondent allowed his draft application to be considered a day after the deadline does not meet the requirement of the protected disclosure legislation. 

I find that approval of a grant under the scheme does not offer any sort of employment contract with Respondent. The Complainant was never employed by the Respondent at any point nor was it ever envisaged that he ever would be. Had the Complainant continued with the fellowship under the terms of the scheme the contract of employment would have been with the University, and the approval did not constitute a contract of employment with the Respondent.  On the basis of the above, I find that the Complainant was not an employee of the Respondent no unfair dismissal has taken place by the Respondent.

CA-00030199-002:

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

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.

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.

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 he was discriminated against on the basis of family status and civil status in contravention of Section 6 (2)(c) and of the Employment Equality Acts, 1998-2015.

The Respondent in administering the scheme considered the terms and conditions and there is a package offered and a number of allowances and one of these was in dispute with the Complainant. 

The family allowance is the specific matter at issue. The Complainant was offered a fellowship excluding the family allowance as he did not meet the criteria as per the terms and conditions.  He accepted the offer outside of this and said he didn’t accept that the family allowance should not be paid. On 28 September 2018 the Complainant refused the overall offer via email as a result of the family allowance not being included. The Complaint under Section 77 of the Employment Equality Act, 1998 confirmed he was cohabiting and therefore should have received family allowance. The Respondent said on the 1st February they rejected his application for family allowance because he was not cohabiting for dates until after the application was made. The Complainant stated that cohabiting in the Philippines recognises the relationship the same as a married couple therefore he stated they undermined his country’s legal system. The family allowance was €3,000 per annum and this was a 3 year contract. This was what was disputed.   The Complainant accepts he was given full offer excluding the family allowance. The Respondent under Section 77 of the Employment Equality Act, 1998 stated in terms of the offer the allowance for family allowance is provided by the EU.  This is outlined in the terms as follows:

“5.2.3 Payment to the host institution for the fellow’s family allowance in the amount of €3,000 per annum, where applicable.  Family is defined as persons linked to the researcher by (i) marriage, or (ii) a relationship with equivalent status to a marriage recognised by the legislation of the country where this relationship was formalised; or (iii) dependent children who are actually being maintained by the fellow.  Family status of a fellow will be determined at the deadline for applicants and will not be revised during the lifetime of the fellowship.”

The Respondent requested some guidance from the EU to what satisfies these terms and conditions for which they state:

“Our Legal Officer confirmed that the burden of the proof is on the beneficiary and that it is not the role of the Research Executive Agency to provide any assessment of the status of “equivalent to marriage” as organised under national law.”

The Complainant is claiming he was discriminated due to the fact he was not given the family allowance remuneration associated with the terms and conditions of the offer.  He therefore needs to prove he was treated less favourably than a comparable applicant due to discrimination grounds.

The Respondent clearly outlined the criteria as set by the funding body to be eligible for the allowance.  He did not qualify based on this specific criteria.  The Complainant submitted an affidavit signed and sworn by a notary. This did not meet the criteria of the terms and conditions as it wasn’t a relationship recognised in national law equivalent to marriage.

All applicants have to provide all this information the applicant was treated no differently to any other applicant and the Respondent extended the timeline for him on two occasions. The clause is very specific to the evidence provided and he did not meet the terms and conditions required to get the family allowance. The funding administration of the scheme sought further written clarification regarding the criteria and the Complainant did not meet this criteria. 

CA-00030199-001:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.  Considering all the evidence presented I conclude that the Complainant is not an employee of the Respondent.  I also conclude that the fact the Respondent allowed his draft application to be considered a day after the deadline does not meet the requirement of the protected disclosure legislation.  I therefore find his claim of unfair dismissal fail.

CA-00030199-002:

Section 77 of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 77 of the Act. I find based on the details oral and written evidence presented by both parties the Complainant was not an employee nor was discriminated. I find that he was treated in line with all applications for the allowance and the related specific eligibility criteria was applied, therefore, his claim fails.