Complainant

Respondent

Parties

Bernadette  O'Driscoll

South Kerry Development Partnership CLG

Representatives

  Self-Represented

 The HR Suite

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-00044063-003

14/05/2021

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

CA-00044063-004

14/05/2021

The Complainant filed her complaint with the Workplace Relations Commission on 14 May 2021 as against her employer.

It was the Respondent’s objection that all claims relied upon the same set of facts.

The hearing was conducted remotely hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant and her witness together with two witnesses from the Respondent swore an affirmation and gave evidence at the hearing.

CA-00044063-003 – Discrimination

The Complainant complaints that she was discriminated by the Respondent on the grounds of gender and age in getting a job, getting training, being promoted and victimised with the most recent date of discrimination being 10 December 2020.

In particular, the Complainant gave evidence that she applied for 10 positions with the Respondent  but was unsuccessful in all her applications.

In relation to a Supervisor role she gave evidence that only men were employed and the feed back she received from the interview was her weakness was her lack of knowledge of general maintenance.  The Complainant undertook a supervisory management qualification in order to progress her employment.  These positions and interviews were pre-2017.

The Complainant referred to correspondence between her trade union representative and the Respondent in respect of the position of Social Farming Facilitator by letter dated 15 November 2016. There was ongoing correspondence between the trade union and the CEO in the first half of 2017. There was an issue around the panel which was formed following interview process. The Complainant sought to meet with the Respondent in June, July and August 2017 to no avail.    

In or around June 2012, she gave evidence that she sought a transfer to the Finance Department but was denied by the CEO as the Enterprise section was busy and there was a shortage of clerical staff.  

During an interview she attended on 10 December 2020 the Complainant gave evidence that she was discriminated against by Pat O’Brien, Interviewer and Board Member; “why at this stage would you want to go for this position, full time, driving to Kenmare?”. She was of the view this was an unfair question and felt the interviewer was questioning her age. The Complainant stated she noted this question down in her car immediately after the interview. 

On 23 December 2020, the Complainant was informed via letter that she was unsuccessful in obtaining the position of SICAP Enterprise Officer. The CEO went through the Complainant’s scoring with her via email in January 2021. The Complainant gave evidence that she worked along side the Enterprise Officer for 12 years and had a good working relationship with her. She stated she had detailed knowledge of the area as a result of this working relationship.

The Complainant relied on the Equal Opportunity policy in the Employee handbook of 11 January 2021.

Under cross examination the Respondent sought clarification as to the time line in which the complaint of discrimination on the grounds of gender from the Complainant. It was the Complainant’s evidence that the timeframe was between 2012 – 2018 when “males got the jobs”. The Complainant was further asked if the complaint of gender discrimination related to the role of Enterprise Officer in 2020 or to the previous roles, to which the Complainant confirmed it related to “previous roles”. The Complainant confirmed to the Respondent that the complaint in relation to age discrimination related to the interview for the role of Enterprise Office on 10 December 2020.

The Complainant was asked about the adverse treatment she complained of, to which she responded that she experienced it “each time I went for an interview, I was denied progression on weak arguments.” She explained that she always asked for feedback and took actions on the feed back such as undertaking a supervisory course.

CA-00044063-004- Penalisation

The Complainant complaints that she was penalised by the Respondent.  She stated she was treated less favourably and victimised since 2012 since she wrote a letter, dated 14 September 2012, to the then Chairperson wherein she raised issued of job vacancies , interview panels and her progression within the Respondent.

CA-00044063-003 – Discrimination

Following the cross examination of the Complainant the Respondent submitted that the complaint was limited to the claim of discrimination on the grounds of age due to the time limit set out in the Act.

Mr Pat O’Brien, Board Member of the Respondent, gave evidence around his role on the interview panel for the position of Enterprise Office in December 2020. He outlined his professional experience of conducting interviews. Upon cross examination by the Complainant, Mr O’Brien denied asking the question; “why at this stage would you want to go for this position, full time, driving to Kenmare?”.

Upon inquiry, Mr O’Brien confirmed that he made rough notes at the interview and retention period for interview notes was 1 year from the date of the interview. He also stated the position was based in Cahersiveen , Co Kerry covering South Kerry.

After the hearing date the Respondent submitted the Respondent’s Data Protection Policy which contains the retention policy for “cover letters, cvs , shortlisting & interview scoring records of unsuccessful job applicants – 1 year from completion of recruitment process”. There is no reference to the Interviewer’s own notes.

Mr Noel Spillane, CEO of the Respondent, gave evidence on the procedure for advertising and interviewing positions. He set out the time line of interviews for the position of Enterprise Officer took place on 10 and 18 December 2020 as they were operating under Covid19 restrictions on intercounty travel. There were 6 candidates shortlisted for the position.  He gave evidence that the Complainant was positioned in third position on the panel , with the successful candidate having a degree and diploma and experience in the practical areas of the role. The successful candidate was a female but he did not know what age she was.

In relation to the claim of discrimination on the ground of gender, Mr Spillane gave evidence that there were 7 female applicants for the position of Enterprise Officer and 3 males with 4 females and 2 males shortlisted. The general make up of Supervisors is 6 males and 6 females.

Upon cross examination the Complainant questioned Mr Spillane about the date of the interview and the need for an additional interview date on 18 December 2020. Mr Spillane repeated this evidence re restrictions around intercounty travel  and the requirement to accommodate a candidate who was travelling from outside of Co Kerry.

It was submitted that recruitment process was conducted in accordance with the Employment Equality Policy and the Respondent “does not discriminate against the employees”.

The Respondent submitted that the Complainant did not provided comparators to the unfavourable treatment to her complaints of age. The Respondent further submitted that the Complainant has failed to discharge the burden of proof of establishing a prima facie case of discrimination. The Respondent relied on the Labour Court decision in Mitchell -v- Southern Health Board, 2001 ELR 201 wherein it was held the Complainant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. The Labour Court decision in Melbury v. Valpeters, EDA/0917 focused on the requirement set out in Section 85A which; “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”

CA-00044063-004- Penalisation

The Respondent submitted that the Complainant was not subjected to penalisation in the workplace but was treated fairly at all times by the Respondent.

Employment Status of Complainant

The Respondent in its submissions raised an argument on the employment status of the Complainant. However, these arguments were not raised at the hearing, put to the Complainant in cross examination nor did the Respondent address them in it evidence in chief. Furthermore, upon review of the Complaint Form with the parties at the outset of the hearing, it was confirmed that the Respondent was correctly named as the employer. Consequently, where the matter was not properly before the hearing it cannot be taken into consideration in this decision.

Time

Section 77 (5) of the Employment Equality Act sets out the time limit for bring cases before the Workplace Relations Commission:

(5) Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

Age and Gender Discrimination

The Complainant stated in her Complaint Form and confirmed in her evidence that the most recent date of discrimination was 23 December 2020. The Complaint Form was received by the Workplace Relations Commission on 14 May 2021.

The Complainant gave evidence of her claim of discrimination on the grounds of age and gender in the 10 job applications she made to the Respondent.  9 of the 10 jobs listed by the Complainant in her complaint date from 2011, 2012, 2016 and 2017. The most recent job she applied for and was unsuccessful was the role of Enterprise Officer which was advertised in September 2020 with the interview taking place on 10 December 2020 and a regret letter dated on 23 December 2020.

No argument was put forward by the Complainant for the extension of time.

Consequently, I am limited in my jurisdiction to deciding this case on the role of Enterprise Officer advertised in September 2020 to 23 December 2020 only.

Furthermore, based on the Complainant’s evidence during cross examination the claims for discrimination on the grounds of gender fall outside this time period and therefore, I do not have the  jurisdiction to decide on this ground.

Penalisation

While Section 77 (5) of the Act does apply in this instance , the complaint in relation to penalisation arises from a letter, dated 14 September 2012 , to a former Chair of the Board raising issues about the Complainant’s ability to progress with the Respondent. This complaint continues the Complainant’s attempts to progress her career by virtue of the unsuccessful applications for positions with the Respondent as is evident from her correspondence in 2016, 2017, 2020 and 2021. Thereby, the complaint may be argued as arising in consequence of the same discriminatory disposition towards the Complainant. Relying on Section 77 (5) of the Act continuing discrimination can arise where there are a series of separate acts or omissions which, although not forming one single act or regime but are sufficiently connected to constitute a continuing act of discrimination.

The Labour Court in its decision of Ann Hurley v Cork VEC, EDA 1124 discusses this point in detail and held:

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as 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 (Barclays Bank plc v Kapur, IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued.

The Court endorsed the UK Court of Appeal in Arthur v London Eastern Railway Ltd[2007] IRLR 58 on the issue of where some acts fell inside the statutory time limit while others were outside that time limit:

“The provision in s.48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.

The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.”

The Labour Court was of the view that applying Arthur; “It is clear for the passage just quoted that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit”

With specific reference to the Hurley case but which also applies in the case before me, the issue of victimisation and filling posts was discussed by the Labour Court;

“The admissibility of Complainant’s claim of victimisation in the filling of posts in the period before 12th December, 2007, is dependent upon there having been an act of victimisation in the filling of posts after that date and before her claim was presented.”

Consequently, where it is the Complainant’s case that her the complaint of victimisation first arose in 2012, outside the statutory time limit , but continued in correspondence in 2016, 2017 and again in 2020 and 2021, both periods inside the statutory time lime, I am allowing the claim of victimisation to be decided upon as it is within time.

CA-00044063-003 – Discrimination  - Age

The Complainant’s complaint of age discrimination relates to a comment she alleges was made at the interview on 10 December 2020 by Mr O’Brien who sat on the interview panel. Mr O’Brien denied making the comment.

Before deciding on whether the evidence of the parties it is practical to first to decide whether the comment, namely;“why at this stage would you want to go for this position, full time, driving to Kenmare?” amounts to an act of age discrimination.

Section 6 of the Employment Equality Act defines age discrimination as:

“6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),”

Section 7 of the Act sets out the requirement on the Complainant to provide a comparator who carries out “like work” in order to ground a complaint of discrimination. A comparator must be employed by the same employer but need not be employed at the same time. In some instances, a hypothetical comparator may be relied upon to demonstrate how a person is treated less favourably than the Complainant.

Section 8 (8) of the Act addresses promotion in the context of discrimination:

“(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.”

InRevenue Commissioners v O'Mahony,EDA033 the Labour Court was prepared to draw an inference of discrimination from, among other factors, the fact that the claimant was asked at interview for an internal promotion; “What are you going for this job at this stage”.

In its decision as to whether the question referred to the candidates age, the Labour Court held; “Turning to the import of the question, the Court finds it difficult to accept than it could have any meaning other than that attributed to it by the second named complainant. The Court is satisfied that it did relate to his age.”

It is important to note that in the Revenue Commissioners case the Complainant produced statistical evidence presented by a Professor of Statistics of the significant disparity in the success rate of the candidates in the same age bracket as the complainants relative to those of younger age over a 10 year period which was accepted by the Court for the purposes of discharging the burden of proof to provide a comparator. No such evidence was produced by the Complainant in this case before me.

It is accepted following the decision of Revenue Commissioners v O'Mahony that in the first instance that the words the Complainant alleges Mr O’Brien uttered in the interview could amount discrimination on the grounds of age.

The next step is to decide on the balance of probabilities as to the evidence presented at the hearing as to whether Mr O’ Brien said the words ““why at this stage would you want to go for this position, full time, driving to Kenmare?” as alleged by the Complainant. Mr O’Brien denies asking this question. It is noted that upon inquiry Mr O’Brien stated the position was located in Cahersiveen , not Kenmare. This was not disputed by the Complainant in cross examination.  It is noted that from the Complaint Form and as accepted by both parties that the Complainant’s work address and the registered address is Main Street, Cahersiveen.

It is further noted the Complainant gave evidence that she recorded this question immediately after the interview but despite furnished numerous documents after the hearing , no such note or record was presented by the Complainant. However, what was presented was an undisputed letter from the Complainant, dated 18 January 2021, to the CEO in the form of a grievance letter following the interview for the Enterprise Officer on 10 December 2020. She specifically references Mr O’Brien in her letter where she states:

“Pat O’Brien commented very positively on my training, involvement with mental health and complimented me on dealing with a very extreme situation with a client – and I was weak in interpersonal skills!! I totally dispute this statement.”

It is noted that there no complaint of discrimination on the grounds of age against Mr O’Brien or otherwise in this letter. It is the Respondent’s argument that the first time it became aware of the complaint of discrimination was upon receipt of the WRC Complaint Form.

On the balance of probabilities based on the evidence before me, I prefer the evidence of Mr O’Brien and accept that this question was not asked in the interview on 10 December 2020.

For completeness it is noted that the Complainant did not provide a comparator in her evidence at the hearing despite being specifically questioned on this by the Respondent. Consequently, she has failed to discharge a key element for the establishment of any complaint of discrimination and therefore has failed to establish a prima facia case of discrimination. 

CA-00044063-004- Penalisation

Section 74 of the Employment Equality Act states:

“(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).”

In Public Appointments Services v Roddy, EDA1019, the Equality Tribunal held that in order to  meet the burden of proof required by s.85A of the Employment Equality Acts , the Complainant must demonstrate that there is a causal connection between their taking of proceedings, or protected act and the adverse treatment by the Respondent.

The Complainant gave evidence of her claim of victimisation that arose following a letter of complaint to the former Chairperson of the Board of Directors of the Respondent on 14 September 2012. The letter to the Chairperson raised issues with the interview process for a role as Enterprise Officer and Supervisor but does not make any reference to discrimination, an unlawful act, criminal proceedings or any notice of an intention to do anything in relation to the forgone complaints. While there is no requirement for the Complainant to succeed in a discrimination claim in order to invoke a claim of victimisation however, it is the fact that there was a complaint of discrimination was made in the first instance is the relevant factor. What is required is a protected action must be taken by the Complainant in order to succeed in a claim for victimisation.  In this case, the Complainant has not established that the letter of 14 September 2012 constituted a protect act for the purposes of the Act and therefore, the complaint does not fall within the definition of victimisation.

CA-00044063-003 – Discrimination

Having carefully  considered the evidence of the parties I find the Complainant was not discriminated against by the Respondent. 

CA-00044063-004- Penalisation

Having carefully  considered the evidence of the parties I find the Complainant was not victimised by the Respondent. 

Discrimination – victimisation - penalisation - time – continuing act of discrimination – protected act