EDA2234

1.Appeal of Adjudication Officer Decision No(s)ADJ-00016013 CA-00020759-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 10 July 2019. Labour Court hearings took place on 8 June 2022 & 15 December 2022. The following is the Court's Determination:


DETERMINATION:

Background.

Ms. Forde, ‘the Complainant’ was employed in the National Ambulance Service, part of the Health Service Executive, ‘the Respondent’, when, in 2015 she commenced studying for a law degree. She sought financial assistance from the Respondent, which was, initially, refused on 31 August 2016.

On 23 July 2018, the Complainant submitted a complaint of discrimination on gender grounds to the Workplace Relations Commission, ‘WRC’ under the Employment Equality Acts 1998-2015.

An Adjudication Officer, ‘AO’, found that the complaint had been submitted outside of the 6 months’ limit for submission of such complaints under the Acts.

The Complainant appealed to this Court.

The Court advised the parties that, as a preliminary issue, it would look at the question of the timing of the lodgement of the complaint, in order to determine if it had jurisdiction to hear the substantive appeal. At an initial hearing to determine this matter on 8 June 2022, the Complainant raised issues that the Respondent suggested to the Court had not been raised previously. The Court agreed to a request for an adjournment to allow the Respondent to make a submission in respect of the matters concerned. A further hearing took place on 15 December 2022.

Summary of Complainant submission on the preliminary issue.

The appropriate test for a continuing act, as occurred in the instant case, is highlighted inHendricks v Metropolitan Police Commissioner (2002) EWCA Civ 1686,so that the employer is responsible for an ongoing situation or a continuing state of affairs in which the discrimination occurred, as opposed to a series of unconnected or isolated incidents.

InHale v Brighton and Sussex University Hospitals NHS Trust UKEAT/0342/17,it was held that invoking the disciplinary procedure against the worker created a state of affairs that would continue until the conclusion of the disciplinary process.

A repeated refusal by the employer to address or do something may constitute a continuing act, as perCast v. Croydon College (1998) IRLR 318.In the instant case, each stage of the Grievance Procedure was a separate act where the Respondent reconsidered the Complainant’s application and the fact that no new material was taken into account is irrelevant.

The Court is provided with a full and detailed timeline of each stage of the procedure undertaken by the Complainant. On 1 February 2018, the Respondent stated that they were willing to refund Years 1 and 2 of the course fees with further discussion to take place regarding the third, then current, Year 3. The Complainant was advised to re-submit her application to her new line manager, though this was not the practice. In addition, the budget for same remained with her previous area of work in the National Ambulance Service, so her new management would not have been in a position to grant same.

The Complainant was informed in May 2018 that she would be refunded full costs for Year 4.

The complaint was submitted on 19 July 2018, within the required six months period.

Stage 4 of the Grievance Procedure states that if issues remain unresolved after Stage 3, they may be referred to a third party. The list of third parties includes ‘Equality Tribunal’.

The Grievance Procedure forms part of the Complainant’s contract of employment.

Part VII s. 77 ss.4(a)(i)ss.6 of the acts provide that where a delay in referring a case is due to misrepresentation by a respondent, ss. 5(a) shall be construed as if the date of occurrence of discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice. The misrepresentation in the instant case came from the Respondent not adhering to the prescribed elements of the Grievance Procedure.

There was no independent, thorough, impartial or objective process in order to reach a bona fide decision. The process was fundamentally flawed and there was a continuing discriminatory state of affairs until the grievance appeal was concluded.

InVeolia v Environmental Services UK v Gumbs UKEAT/0487/12two separate decisions over an extended period were linked by the common personality of the employee’s manager.

The failure by the Respondent to adhere to its own Grievance Procedure was an act of victimisation, contrary to the terms of the Acts.

Summary of Respondent arguments on the preliminary issue.

S. 77(5)(a) of the Acts provides that complaints may not be referred after the end of 6 months from the date of occurrence of discrimination or victimisation. There is provision in s.77(5)(b) for an application to be made by a complainant to extend this to 12 months. The Complainant made no such application.

The decision in February 2018 to grant funding to the Complainant cannot be an act of discrimination that extends the time allowed to make a complaint. The complaint in this case relates to a refusal in 2016 of an application for financial support for a course that the Complainant had commenced in 2015 without seeking advance approval for financial support.

The decision in the ‘Croydon College’ case, to which the Complainant refers, does not help her because there was no decision in 2018 that could amount to an act of discrimination. In fact, the decision set out in an email to the Complainant on 1 February 2018 confirmed that the Respondent would grant financial support for Years 1 and 2, upon proof of payment being produced. The Complainant failed to submit receipts to demonstrate that she had paid the fees.

In the same mail, the Complainant was told that the Respondent would discuss further with her the issue of the then current Year 3 of the course ‘on finalisation of the issues which remain outstanding invoices/confirmation of payments (sic) for academic fees for year 1 and year 2’. In Year 3 the Complainant had moved on secondment to another part of the Respondent employment. Nothing about this correspondence allows the Complainant to pursue a complaint of discrimination regarding a refusal of funding in 2016.

Utilising a grievance procedure does not justify delay in bringing proceedings. It should be noted that the grievance was lodged more than 12 months after the alleged discrimination., so that, even if the Court was to accept that using the procedure justified the delay in making a complaint, the grievance was lodged outside of the period within which the Court has jurisdiction.

The Court has made it clear repeatedly that utilising a grievance procedure does not provide reasonable cause for the submission of a late claim, seeBusiness Mobile Security Ltd. t/a Seneca Limited v. John McEvoy EDA 1621,in which the Court dealt with this matter at length.

InBrothers of Charity Services Galway v Kieran O’ Toole EDA 177,the Court determined that utilising internal procedures could not be accepted as preventing the initiation of a complaint within the statutory limits.

The Court has repeatedly referred with approval to the cases quoted.

There was no misrepresentation by the Respondent. InA Bank v A Worker EDA104,the Court analysed the meaning of ‘misrepresentation’ in s.77 (6) of the Acts and stated ‘The term ‘misrepresentation’ is generally understood as referring to a false statement of fact, intended to be acted upon, which actually misleads the person to whom it is addressed’. In this case the Respondent did not make any false statement of fact and there is no evidence that the Complainant believed, or relied upon, any such statement.

It is also relevant to note that, in April 2017, when the Complainant was engaged in the Grievance Procedure, that she argues prevented her from lodging a complaint under the Act, she sought, incorrectly, to initiate a complaint under the Equal Status Act by serving a form ES1, in which she made the same complaint of discrimination that is in issue in this case. It is clear that she was not relying on any statement by the Respondent for not bringing proceedings. She noted in her complaint to the WRC that she had notified the Respondent of her intention to seek external address.

The Complainant cannot make the argument that any alleged delay or shortcoming in the Grievance Procedure was victimisation as she did not make any complaint of victimisation in her complaint form submitted to the WRC and it did not form any part of the proceedings at first instance.

The relevant law.

Employment Equality Acts 1998-2015.

77.

(5) (a) Subject toparagraph (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.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainantparagraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent,subsection (5)(a)shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

Deliberation.

It is clear to the Court from a simple reading of the complaint documentation submitted by the Complainant to the WRC that there was no complaint of victimisation made. It is also clear that no such argument was made at first instance. While the instant proceedings are ‘de novo’, the Court dealt with the limitations on the arguments that it can consider inDawn Country Meats Ltd v HillDWT 141/2012 wherein it held that, in ade novoappeal, a party is entitled to adduce any evidence they wish “provided it is relevant and probative and so long as the nature of the claim remains the same as that dealt with at first instance”. The Court further held that it could not allow the appellant to pursue “an entirely new claim” as, were it to be entertained, the Court “would be purporting to exercise an original jurisdiction that it does not have”. Accordingly, that element of the Complainant’s arguments regarding the preliminary issue cannot be considered by the Court.

It is contended by the Complainant that she was prevented by the terms of the Respondent’s Grievance Procedure from lodging a complaint under the Acts as the procedure states that an employee ‘may’ do so after Stage 3 of the procedure, so that it was only when she reached that stage that she was entitled to seek to vindicate her rights under the Acts by lodging a complaint. While it is patently clear to the Court, and to practitioners of employment law, that internal processes within an employment cannot supersede an employee’s statutory rights, there is no doubt that a lay person with no knowledge of the law could be misled by the wording of the Respondent’s procedure into a mistaken belief that there is some requirement on them to complete the process before they can lodge a formal complaint under the Acts. While the Respondent’s representative laid heavy emphasis on the use of the permissive nature of the word ‘may’ , the Court is required to observe that the wording is most unsatisfactory and could act to prevent employees of the Respondent from seeking to vindicate their rights on time. However, even if the Court was to accept that this terminology inhibited the Complainant from acting more speedily, the Court’s ability to rectify any such misunderstanding is confined to the possibility of extending the 6 months’ limitation to 12 months, in accordance with s. 77(5)(b) of the Acts. No such application was made by the Complainant in the first instance proceedings. In any event, any such extension would have no value in the circumstances of the instant case as the point in contention is whether or not there was an act that could be considered potentially to have been discriminatory within the 6 months prior to the complaint being lodged on 19 July 2018. Even extending that period for consideration to 12 months would not change the issue for the Court as it is contended by the Respondent that the alleged act of discrimination occurred in 2016.

The Complainant argues that the correspondence received by her within the 6 months cognisable period was discriminatory and that each stage of the Grievance Procedure was a separate act of discrimination where the Respondent reconsidered her application.

In examining the case ofCork City VEC v Hurley (2011) EDA1124,this Court noted that ‘it is clear….that in order for acts or omissions outside of the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.’

In the case ofOccipital Ltd v Hayes (2018) EDA 184, the Court stated that ‘It is settled law that in order for alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Acts for the making of a complaint’.

The Supreme Court inCounty Louth VEC v Equality Tribunal (2016) IESC 40,approved of the Labour Court approach in ‘Hurley’ and noted that ‘..once such a complaint is made within six months from the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time’

Therefore, if the Complainant can show evidence that an act of discrimination occurred in the cognisable period of 6 months prior to her lodging her complaint, it is open to the Court to consider matters that arose prior to that period and to consider if there was a continuum of discriminatory acts.

The decision by the Respondent not to refund course fees to the Complainant was a decision taken in August 2016, well outside the cognisable period. The question for the Court is whether anything occurred in the cognisable period that could give rise to a complaint of discrimination under the Acts? It is clear to the Court that a decision within the cognisable period to pay fees that had, by that point, been incurred, subject to the perfectly reasonable and usual requirement to provide evidence of payment, with a further undertaking to look further at the question of fees for the then current year, could not by any reasonable understanding of language be said to be either a discriminatory act or a continuation of any previous pattern of discrimination, even if such had occurred. On the contrary, even if there had been prior discrimination, and the Court makes no observation on this either way, the correspondence sent to the Complainant must be said to have brought any such discrimination, if it occurred, to an end. For this reason, the Court concurs with the Respondent argument that the ‘Croydon’ case is of no assistance to the Complainant as it is evident that the correspondence concerned could not, by any standard, be interpreted as discriminatory.

As the Respondent noted, the Court has dealt extensively in the ‘McEvoy’ and the ‘Brothers of Charity’ cases, see case references above, with the argument that a worker was delayed in lodging a complaint due to the fact of them pursuing internal processes. It is not necessary to reiterate at length here the Court’s view other than noting that, ordinarily, of itself and unless there are circumstances that could warrant an exception, the utilisation of an internal process does not justify delay in bringing proceedings. The only possible exception applicable to the facts of the instant case is the wording of the Respondent’s Grievance Procedure, in respect of which the Court’s position is set out above.

The Court had some difficulty in considering what ‘misrepresentation’ the Complainant seeks to rely on for the delay in her submitting a complaint. Insofar as the Court can understand the point, it appears that the Complainant is arguing that the delays in processing her grievance and what she says were additional stages imposed on her that do not form part of that process, amount to ‘misrepresentation’. The Court is not in a position to judge if there is, or is not, any validity in the Complainant’s complaints about the exercise of that procedure, in the context of its consideration of the preliminary matter. However, it is clear to the Court that any delays or shortcomings in the process do not amount to ‘misrepresentation’ within the normal meaning of the word as explored by the Court in ‘A Bank v A Worker’, see summary of Respondent arguments above. Therefore, it is not possible for the Court to determine some date within the cognisable period, in accordance with s.77(6), to substitute for the date of refusal to refund fees in 2016.

In view of the above, it is not necessary for the Court to consider at any length the facts that the original grievance was lodged outside of 12 months from the date of its alleged occurrence and also that the Complainant sought to initiate, mistakenly, proceedings under the Equal Status Act while engaging in the Grievance Procedure, other than to note that neither fact supports the position of the Complainant in respect of the preliminary issue.

Having considered all arguments, the Court is satisfied that the alleged act of discrimination occurred outside of the cognisable period, that nothing occurred within the cognisable period that could be construed as a part of a continuum of discriminatory behaviour or, potentially, as an act of discrimination, of itself, and, accordingly, the Court does not have jurisdiction to consider the substantive case.

Determination.

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
DC	______________________
22 December 2022	Deputy Chairman