ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023976
Parties:
| Complainant | Respondent |
Parties | Frank McGennis | Dublin City Council |
Complaint:
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-00030580-001 | 31/08/2019 |
Date of Adjudication Hearing: 29/10/2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on August 31st 2019 and, in accordance with Section 79 of the Employment Equality Acts 1998 - 2015, it was assigned to me by the Director General. Following the submission of the complaint, the parties engaged in mediation at the WRC, but they failed to reach an agreement and the matter was scheduled for adjudication on March 20th 2020. That hearing was cancelled due to the closure of the WRC at the start of the Covid 19 pandemic. Subsequent restrictions meant that a hearing was delayed until October 29th 2020. On that date, I conducted a hearing using remote video technology, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
In the form he submitted to the WRC, Mr McGennis said that he consulted with his solicitor about his complaint of discrimination; however, his solicitor did not represent him at the hearing. For Dublin City Council, the equality officer, Mr Donncha Ó Cathasaigh, attended the hearing accompanied by the executive officer with responsibility for human resources (HR), Mr Brendan Hayden.
For convenience in this document, I will refer to Mr McGennis as “the complainant” and to Dublin City Council as “DCC.”
Background:
Introduction The complainant is a wheelchair user and he commenced employment with DCC in 2006. For 11 years, he was a member of the frontline staff in the libraries, where the issue that led to this complaint occurred. He moved to a new role in the housing division in November 2017. In early 2017, in collaboration with the Public Affairs Institute (PAI), DCC libraries developed training for frontline employees under the heading, “Children and Young People in the Library – Challenges and Solutions.” The training was to be delivered by the PAI over a number of years to around 300 employees in groups of 10 to 12. On April 6th 2017, an email was sent to each branch library to inform staff that the first two training sessions would be delivered on April 28th and June 2nd 2017 in the PAI head office in Mountjoy Square, a building which is not accessible for wheelchairs. It is the complainant’s view that, by scheduling these two training sessions in the PAI office, he was discriminated against on the ground of his disability. He sought a resolution of his complaint through DCC’s Dignity at Work Policy, but he disagreed with the outcome of the investigation, and also with the findings of an independent facilitator. In August 2019, he said that his solicitor advised him to make a complaint to the WRC. Chronology In his submission to the WRC on August 31st 2019, the complainant said that “this discrimination saga has been ongoing now for more than two years, since April 2017.” The complainant sent another submission to the WRC on September 15th 2020 and, on October 16th, he sent a response to DCC’s submission. Using the complainant’s three submissions, DCC’s submission of September 7th 2020, the evidence of both sides at the hearing on October 29th 2020 and additional paperwork provided by DCC after the hearing, I have set out here the chronology of the events that led to this complaint. April 6th 2017 An email was sent by a staff officer in the headquarters of DCC libraries in Pearse Street, to senior librarians and managers in the branch libraries. A copy of the email was included in the respondent’s documents and it contained the following text: “Subject: Training - Children and Young People in the Library – Challenges and Solutions Training titled “Children and Young People in the Library – Challenges and Solutions” is being rolled out to all frontline staff. The first two sessions have been organised for Fri 28th April and Fri 2nd June. They will be held in Public Affairs Ireland (PAI), 25 Mountjoy Square East, Dublin 1. Staff only need to attend one session. Staff who attended a pilot session last year don’t need to attend again. Please let me know if you or any of your staff are available to attend on the dates above and let me know of any dietary requirements when booking. Further sessions will be organised. Thanks Regards etc.” At the hearing of this complaint, and in previous correspondence to DCC, the complainant argued that the scheduling of this training in a building that is not wheelchair accessible discriminates against him on the ground that he has a disability. April 12th 2017 The complainant sent an email to an assistant staff officer in DCC’s Equality Office, informing her that he is a wheelchair user and that training is available to frontline library staff in the PAI on Mountjoy Square. He said that he contacted the PAI and that the building is not wheelchair accessible. He said, “This type of training might be seen as enhancing promotion prospects. It is not acceptable that some staff can attend this training while I cannot.” In the same email, the complainant referred to a series of briefing sessions taking place in City Hall, Dame Street. He said that because of parking difficulties, the gradient of the footpath and the position of the pavement dishing, that venue was also not accessible. This issue was not included in the complaint submitted to the WRC in August 2019. April 13th 2017 The staff officer in the Equality Office contacted the PAI and was informed that the building was indeed not wheelchair accessible, although they also used a venue in Croke Park, which is accessible and could be used for the training. The staff officer then contacted the divisional librarian in the libraries HR department, who I will refer to as “DL,” informing her that the complainant had alerted the Equality Office to the fact that the PAI building is not accessible. DL replied saying that the roll-out of the training will continue into 2018 and that other venues will be used which are accessible for wheelchair users. April 25th 2017 The staff officer in the Equality Office wrote to the complainant in response to the two accessibility issues he raised on April 12th. Regarding the inaccessibility of the PAI building, she wrote: “…the “Children and Young People in the Library – Challenges and Solutions” course has only just been initiated and is likely to take some time to roll out to all frontline staff. It will involve using a number of venues other than the Public Affairs Institute including Libraries own conference room in Pearse Street which is accessible. The first of the courses that will take place in Pearse Street will be held on 27th of October 2017. If you can keep that date free, I have been advised by Libraries that you will be sent an official invitation to the course nearer to the time.” May 3rd 2017 The complainant attended a meeting with the staff officer from the Equality Office and the equality officer, who I will refer to as “EO.” DCC’s submission notes that, at this meeting, EO confirmed the arrangement of training on October 27th in Pearse Street Library and that action was taken to address the accessibility issue at City Hall. The complainant asked for consideration to be given to not using inaccessible venues for training, regardless of whether the attendees have mobility issues. June 6th 2017 Documents submitted by the complainant on September 22nd 2019 include a note of a meeting with the equality officer, EO, and the staff officer from the Equality Office, with DL and the divisional librarian with responsibility for equality in DCC libraries. The note records that DL said that the PAI was being used for some of the training sessions because of its city centre location, the fact that some staff expressed a preference to use an external location and because some of the meeting rooms in Pearse Street and the branch libraries were used for public events. The training was to be run in Pearse Street Library and in the PAI, for which there was no additional cost. The note records that EO concluded that these arrangements were “reasonable in the circumstances and would accordingly remain unchanged.” July 7th 2017 The complainant attended another meeting with EO. The use of inaccessible buildings was discussed again and the complainant was informed that, although not a legal requirement, this was being considered. July 27th 2017 Although there is no record of the discussion in the documents submitted to the WRC, the complainant said that he raised his complaint of discrimination with EO on July 27th 2017 and that EO advised him to raise the matter with DL. August 8th 2017 The complainant sent an email to DL in the libraries HR department and asked her if, on April 6th 2017, she was aware that the PAI venue in Mountjoy Square is not accessible, to which she replied that she is aware. The complainant clarified his question and asked DL if she was aware on April 6th 2017 that the venue was not accessible, to which she replied that she was aware. September 5th 2017 The complainant made a formal complaint under DCC’s Dignity at Work policy. He submitted this to his line manager, naming two respondents, DL and the head of the PAI’s Education and Training Division. In his submission to the WRC, the complainant said he got no response from the PAI, although he did not submit a complaint directly to the PAI. The complaint was referred for investigation to the deputy city librarian, who dealt with it as a grievance, rather than as a complaint of discrimination, under the Dignity at Work Policy. December 22nd 2017 The deputy city librarian concluded that the complainant’s allegations against DL could not be upheld and his complaint against the PAI was invalid.
February 9th 2018 The deputy librarian wrote to the complainant and apologised for considering his complaint of discrimination as a grievance rather than as an issue to be investigated under the Dignity at Work Policy. The complainant submitted a complaint to the city librarian concerning how the deputy librarian dealt with his complaint. The city librarian referred the complaint to the equality officer for investigation under the Dignity at Work Policy. May 21st 2018 EO wrote to the complainant, addressing his complaints under three headings: 1. The scheduling of training on April 28th and June 2nd 2017 in the PAI premises in Mountjoy Square; 2. The complainant’s allegation that, in responding to his query regarding the venue for the training, DL was “high handed, dismissive, uncooperative, disdainful, abusive and bullying.” 3. A complaint against the head of education and training in the PAI. EO concluded that the complainant’s allegations of discrimination and bullying did not meet the criteria for consideration under the Dignity at Work Policy. July 2018 DCC HR department assigned an external facilitator to examine the complainant’s allegations and to seek a resolution through a facilitated meeting with the parties. May 21st 2019 In his report, the facilitator wrote that while each party participated in the meeting and contributed meaningfully, the conclusions reached were not to the complainant’s satisfaction. In accordance with the terms of reference for his engagement, the facilitator moved to undertake the role of adjudicator. He concluded that the cause of the complainant’s allegation of discrimination was the failure to include a reference to access requirements, along with dietary requirements in the email notification of April 6th 2017. In his report, he commented that it was regrettable that the complainant incorrectly assumed that he would be disadvantaged if he had applied to attend one of the courses on April 28th or June 2nd 2017. The complainant said that the findings of the independent investigator in July 2019 were wrong, and he said that the investigator “simply does not understand the concept of equality.” July 22nd 2019 The Equality Office at DCC wrote to all managers to direct them to use only accessible venues for corporate events, launches and staff training. |
Preliminary Issue – Timeframe for Seeking Redress
Section 77(5)(a) of the Employment Equality Acts (“the Acts”) provides that, “…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.” Sub-section (b) provides for an extension of that time limit to 12 months, where there is reasonable cause for the failure to submit the complaint within six months. In April 2017, the complainant alleged that he was discriminated against when two training sessions were scheduled for frontline library staff in a building that is not wheelchair accessible. Explaining the delay of more than two years before he submitted this complaint to the WRC, the complainant said that the first investigation took 35 weeks and that it was dealt with as a grievance, rather than under the Dignity at Work Policy. The second investigation concluded in May 2018 and he was dissatisfied with the outcome. The third internal process, an investigation by an independent consultant, concluded in May 2019, after 44 weeks. Seeking an extension beyond the 12 months permitted under Section 77(5)(b) of the Act, the complainant argued that his complaint was still being investigated in the six months before he requested an adjudication hearing and that he was advised by his solicitor in August 2019 that it was not too late. I listened carefully to the complainant’s evidence at the hearing on October 29th 2020, and it is clear that he is convinced that he was discriminated against in April 2017 because of the scheduling of training in April and June that year in an inaccessible venue. On April 12th 2017, he made contact with DCC’s Equality Office and from then until May 2019, his allegation of discrimination was considered firstly, as a grievance, then by the equality officer under the Dignity at Work Policy and finally, by an independent facilitator, as a complaint of bullying and discrimination. In his submission, the complainant said that the first investigation took 35 weeks; however, the time from when he issued a formal complaint on September 5th 2017 and the date of the outcome of the investigation on December 22nd 2017, is 15 weeks. It was open to him to submit a complaint in December 2017 and to seek an extension of the time limit under Section 77(5)(b) of the Act, but he did not do so. As he had access to legal advice and, as he is employed in a unionised workplace, I find it difficult to understand why he did not submit a complaint while these investigations were continuing, before the expiry of six months and, at the latest, before the expiry of 12 months. The complainant said that his complaint is now “mostly” concerned with the report of the independent investigator, issued in May 2019, and he said that he wants that report withdrawn. Having given this some consideration, I am satisfied that my role is not to unpick the findings of the independent consultant, but rather, as long as the time limits permit, to inquire into the possibility that discrimination may have occurred when, in April and June 2017, training was scheduled in a building that is not wheelchair accessible. The time limit for submitting a complaint under the Employment Equality Acts was considered by the Labour Court in March 2017, in the case of Mr Kieran O’Toole and the Brothers of Charity Services Galway, EDA 177. Mr O’Toole submitted complaints to the WRC in 2015, about incidents that occurred in 2009 and 2011. He claimed that his complaints were within the six month time limit prescribed at Section 77 of the Acts, due to what he described as “a linked chain of events,” one of which was his engagement with his employer’s internal procedures for resolving grievances. The Court did not 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.” In its findings, the Court referred to an earlier decision of the Labour Court, that of Cork County VEC v Ann Hurley, EDA 1124, where, considering the implications of Section 77(5) of the Act, it held that, “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 [1989] IRLR 387).” For my purpose here, I am concerned with the time between the alleged discriminatory act in April and June 2017 and the submission of this complaint in August 2019. Having listened to the submissions of both sides, I am satisfied that, while he is extremely angry at the outcome of the three investigations into his complaints, no “discriminatory regime, rule, practice or principle” existed that impacted on the complainant in the 12 months prior to date on which he referred this matter to the WRC. It is evident that, after the training session on June 2nd 2017, DCC libraries ended its use of the PAI office and the remaining 20 or so sessions were scheduled for Pearse Street Library, an accessible venue. By moving all the training for frontline library staff to Pearse Street Library, in mid-2017, DCC acted to ensure that no discrimination would occur and, for completeness, I should state that I am satisfied that no discrimination occurred. Taking my authority from the Labour Court, I must conclude that this complaint was submitted outside the statutory time limit prescribed at Section 77(5) of the Employment Equality Acts and it is therefore, statute-barred. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have concluded that, contrary to the provisions of Section 77(5)(a) and (b) of the Employment Equality Acts, this complaint was submitted outside the legal time limit. I decide therefore, that I have no jurisdiction to adjudicate on the complaint. |
Dated: 19th May 2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Discrimination, disability, wheelchair-user |