Complainant

Respondent

Anonymised Parties

A Local Authority Employee

A Local Authority

Representatives

Self 

The Local Government Management Agency

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-00034840-001

25/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00034840-002

25/02/2020

The complainant is a local authority employee who was recruited in 2018 as an Environmental Awareness Officer.

He says the manner in which a new post in which he was interested was filled was a discriminatory act on the Family Status ground.

It also represented unlawful penalisation for his application for Parental leave.

All local authorities were required to recruit a Climate Action Officer in line with the Government's Climate Action Plan.

The respondent sought specific funding to appoint a Climate Officer role and explicitly committed to using that funding increase to appoint additional personnel for climate action.

This was further confirmed in correspondence and in other similar employments a new additional Climate officer role was established and recruited externally.

The complainant applied for Parental leave on November 4th, 2019. There were delays in acceding to it and it was only finally agreed over a month later; it commenced just prior to Christmas 2019.

The complainant had developed a resource plan for his role and all climate change and energy efficiency work for the period of his reduced availability due to parental leave and he submitted it to line management on November 14th.

He made it clear that when a formal climate officer role might be advertised he would consider returning from leave early and applying for it.

In fact, the position was filled without advertising externally or internally or having any competitive process of any kind and an existing staff member was assigned to the post. The complainant has much greater experience than the person appointed and he had effectively fulfilled the de facto role of climate and energy officer with the respondent since his appointment.

The complainant submits that he is substantially better qualified for the position than the person appointed and believes he was discriminated against and not considered for the role because he had taken parental leave.

He submits that his version of events was confirmed in a meeting between a third party and a senior manager.

The respondent has also failed to comply with its own Grievance procedure.

There are two complaints, one of penalisation and the other under the Employment Equality Acts.

The respondent raises a preliminary point about this duplication of claims and submits that the complainant may not succeed under both statutes under the rule in Henderson v Henderson.

The first complaint relates to penalisation for having availed of parental leave.

This arises because the respondent did not fill a post in such a way that the complainant could have applied for it. However, there was no obligation on the respondent to fill it by means of an ‘open’ competition and the manner in which the position was assigned to an existing employee is not uncommon.

The essential ‘but for’ test set out in Tony and Guy Blackrock Limited v O’Neill HSD095 has not been met.

To do so the complainant would have to establish that ‘but for’ his parental leave he would have been appointed, and that the failure to appoint him was a detriment he suffered as a result of his having applied for parental leave.

In fact, no competition for the post of any sort took place nor was there any obligation on the respondent to fill it in that way. It chose to do it in a different way. The decision was impersonal and the criteria were related to budgetary, resources and other such considerations.

This is an entirely common practice in the respondent’s sector and new roles are often allocated to existing personnel where appropriate.

It was also done in accordance with all statutory obligations falling on the respondent.

The respondent also relies Melbury v Valpeters EDA/0917   where it was stated;

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The respondent says that the complainant has failed to establish a prima facie case.

The requirement is “that he/she has been subject to specific treatment”. The Complainant has not established what, if any specific treatment he has been subject to.

This equality claim relates to not being appointed to a post with no detail of the complaint has been provided.

The Complainant’s case under the Employment Equality Act appears to be totally grounded on an allegation that he was informed by a third party that a senior manager had advised that third party that the reason for not proceeding with advertising and filling the role through appointment was due to the Complainant’s parental leave.

The allegation is absolutely rejected by the respondent.

The allegation that there was any consideration given to the issue of parental leave as a criterion for the filling of the role of Climate Action Officer or the suggestion that this was spoken about or any action taken as a result of the complainant having taken parental leave is completely denied.

The complainant has made two complaints; the first (CA-0003480-001) of a breach of the Employment Equality Acts in that he was the subject of discriminatory treatment in either getting a job, or not being promoted on the family status ground, and the second, (CA-0003480-002)   that he was penalised for having exercised his entitlement to parental leave.

The facts stated under both grounds are identical; the complainant simply reproduced the same text for each complaint.

The essential facts are that he was appointed in 2018 to the position of Environmental Awareness Officer in 2018, a Grade 6 position in the Local Authority grading structure.

In due course, and as part of the enhanced work of public authorities to address climate change, an appointment was to be made of a Climate Officer at the Grade 7 level, for which the complainant considered himself to be a candidate.

However, the respondent did not create a new, free-standing position (as the complainant understandably had hoped) but assigned the relevant functions of the new position to a senior engineer already in its employment.

The complainant had applied for and was granted parental leave. He complained about the delay in acceding to his request but on the basis of information submitted by the respondent, while there was a delay it was not excessive, and nothing turns on that point.

So, turning to the complaint itself, what is the specific act or action giving rise to the complaints?

It can only be the decision of the respondent not to establish the position as a free-standing post, and, as a consequence, to deny the complainant of the opportunity to compete for it.

The respondent referred to the burden of proof that falls on a complainant in Section 85A of the Employment Equality Acts to make out a prima facie case, by establishing facts from which discrimination may be inferred.

In principle, of course, the action referred to here; the decision to assign the function to an existing employee could have been done as a retaliatory act to thwart the complainant.

Were this to have happened, that might assist with his complaint under the Parental Leave Act, as he might argue that it was a retaliatory act, but it does nothing to assist him in his complaint under the Employment Equality Acts, which requires him to establish that he was less favourably treated than a comparator on the ground selected; family status.

The complainant offered little in the way of submissions to support the equality element of his claim and as it happens the person to whom the role was assigned has the same family status as the complainant.

But turning to the unlikely thesis that the respondent might have acted as it did purely to thwart the complainant, it stretches credulity to breaking point to imagine that it would have done so and, more importantly the complainant could not muster any evidence to suggest that it had.

His allegation that a senior manager had made a statement (to a third party) to the effect that he had been excluded because of his taking parental leave was rejected by her (the senior manager) in direct evidence to the hearing.

The complainant sought to introduce the evidence of the third party without that person attending the hearing to present the evidence in person, and be subjected to cross examination, which is clearly not permissible.

On the other hand the respondent had relatively little difficulty establishing that it did not act in such a manner.

In making the appointment the respondent did what most others in the sector did by assimilating the role into an existing post. It did so having regard to the level at which it saw the responsibilities and the best use of its resources.

It was not obliged to create a new post and did nothing unlawful or irregular in not doing so.

The complainant says that he had made it clear on embarking on his parental leave that he wished to be a candidate for the position of Climate Officer when (as he saw it) it would be advertised.

Had there been a competition and had he been excluded; his complaints might have had a starting point. However, I can see no grounds in the essentially administrative decision of the respondent not to advertise it that provide a basis for either of the complaints made by the complainant.

Therefore, the connection required by the ‘but for’ test, set out in the respondent’s submission is absent.

The complainant has failed to make out a prima facie case in respect of his complaint under the Employment Equality Acts.

Likewise, for the reasons set out his complaint under the Parental Leave Act is not well-founded. He has failed to make any connection between the application for Parental leave and the decision to fill the position in the manner that was decided.

For the reasons set out I find complaints CA-00034840-001 and 002 not to be well-founded.

Parental Leave, penalisation. Equality; Family Status.