Complainant

Respondent

Parties

Austin  Cox

The Commissioner Of An Garda Síochána

Complainant

Respondent

Anonymised Parties

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Representatives

Maureen Black M. P. Black & Co. Solicitors

Joseph Dolan Chief State Solicitor's Office

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-00015830-001

16/11/2017

The Complainant was employed with the Respondent for thirty-four years until he resigned on 19th May 2017.

The Complainant alleges discrimination on the grounds of age and gender by the Respondent in or about his promotion prospects, conditions of employment and dismissal for discriminatory reasons/dismissed for opposing discrimination where due to the actions and inaction of the Respondent he was forced to resign his position as Sergeant after 34 years of exemplary service.

The complaint of discrimination on the family status ground has been withdrawn.

The Complainant’s request for information set out in S76 questionnaires are unanswered. As a result, the Complainant cannot fully make out his case. He has sought information regarding whether a policy of positive discrimination or affirmative action applied, and reason for the absence of scoring plan for service, experience, responsibilities and educational qualifications. This is substantively and procedurally unfair. The Complainant’s lack of evidence was used against him in his appeal to bolster the Respondent’s case.

The Complainant says his retirement date is 19th May 2017 which is the last date of discrimination, not 2nd April 2017 which is a notification of intention to retire. His complaint of discrimination was received by the Workplace Relations Commission on 16th November 2017 within 6 months of his resignation. His letter of resignation set out his complaints regarding non-promotion. It is unreasonable to expect the Complainant to stay in employment where other colleagues who are less qualified and less experienced with family contacts are fast tracked to balance gender numbers.

The Complainant was forced to resign and retire as he had unsuccessfully exhausted the internal options open, and due to the long delay by the Respondent in coming to the decision adverse to his right to equal treatment. The operative date is the date of termination not notice (W. Cummins Plasterer’s Ltd v Nowakowski EDA 086) and the date of the most recent act of occurrence of discrimination is within the statutory 6 month time-limit. (Byrne v Minaguchi EDA 034).

Under S77 (6A) of the Employment Equality Act 1998-2015 discrimination occurs if the act constituting it extends over a period, at the end of the period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has a clear and adverse impact on the Complainant (Barclays Bank plc v Kaput [1989] IRLR 387).

Without prejudice to the foregoing, for the purposes of S77 (5) of the Employment Equality Act 1998-2015 the Respondent’s decision not to promote from 12 August 2016 up to the Complainant’s resignation are sufficiently connected so as to constitute a continuum (Arthur v London Eastern Railway Ltd [2007] IRLR 58).

The Complainant was more senior than 2 of the successful male candidates and all the female candidates. The Complainant relies on a CPSA audit of the Respondents recruitment and selection policies and practices carried out in 2015, and his record, educational qualifications, experience, responsibility and competencies against the other female candidates, and the absence of a transparent and equitable performance appraisal system which facilitated discrimination against him. The Complainant is dissatisfied with the appeal process, and in particular the failure to conduct a comparison of his application with the female candidates, and to provide information of the age, service and sex of all candidates. The CPSA appeal decision is dated 26th April 2017 and was given to the Complainant on 5th May 2017. The Complainant was forced to tender his resignation due to the delay in obtaining a response to this appeal.

The Respondent has not suffered any prejudice due to delay. The Complainant relies on the decision of the High Court in County Louth VEC v The Equality Tribunal [2009] IEHC 370.

The Respondent has raised preliminary objections to the complaint of discrimination which was received by the Workplace Relations Commission on 16th November 2017.

The interviews took place in 2016, and the Complainant was informed he was not successful on 12th August 2016. The Complainant resigned on 2nd April 2017. On 26th April 2017 he was informed his appeal of the competition outcome was not upheld. The complaint was received by the Workplace Relations Commission on 16th November 2017.

The Complainant has not complied with the procedures of the Workplace Relations Commission to set out the facts, the link between the grounds and the alleged discrimination, and any legal points.

The Complainant refers to an unidentified comparator and other comparators and fails to provide any evidence sufficient for the Respondent to be able to respond to the Complainant’s claim. The Complainant must establish facts from which discrimination may be inferred in accordance with S85A of the Employment Equality Acts 1998-2016, submissions requested by the Respondent have not been received.

The Complainant applied for promotion in 2010 and 2013 and was unsuccessful in the first round. The Complainant applied for promotion in 2014 by an application form. The selection was carried out in accordance with the guidelines for internal appointment and promotional competition which are aligned with the Public Service Commission’s code of practice. All candidates were subject to the same competency based criteria. Experience and qualifications are not assessed. The age of the candidates is not known. The selection board received training for the interviews. 203 candidates were interviewed with 172 male candidates, and 31 female candidates. There were 18 successful female candidates and 84 successful male candidates suitable for promotion. The success rate of the female candidates against the male candidates is 58% to 49 %, but is insufficient for discrimination to be established.

The Complainant was informed that he was not successful and feedback was provided that he needed to consider the examples used to demonstrate skills and abilities appropriate to an Inspector and would benefit from a more thoughtful approach including listening before answering. An appeal under S8 of the Civil PSA Code of practice by the Complainant alleging gender discrimination in relation to non-appointment was not well founded. The Complainant performed inadequately at interview.

On 2nd April 2017 the Complainant notified the Respondent of his intention to retire voluntarily from 19th May 2017 saying he was increasingly distressed having been passed over again for promotion by individuals who have significantly less service, experience, responsibilities and qualifications than himself. The Complainant was concerned at the absence of a performance appraisal system.

The Respondent says the resignation of the Complainant is not a discriminatory act as the competition was not tainted by discrimination. It was unreasonable, disproportionate and premature as it pre-dated review of the competition on 10th November 2017.

Discrimination is denied by the Respondent. The Complainant has failed to demonstrate this and provide details.

The Complainant was informed by letter of 12th August 2016 that he was unsuccessful in the competition. In relation to the complaint of alleged discriminatory treatment arising from the competition that is the last alleged discriminatory act for the purposes of S77 (5) of the Employment Equality Acts 1998-2015 (discrimination is denied). The complaint of the Complainant was not lodged to the Workplace Relations Commission until 16th November 2017 which is in excess of the maximum period of 12 months even if an extension of time is granted. It is submitted the alleged discrimination in relation to the promotion is statute-barred.

In relation to the constructive discriminatory dismissal complaint, as the Complainant resigned from his employment, the last act of alleged discrimination is 2nd April 2017 when the Complainant submitted his resignation. This claim was lodged outside of a 6 month period from the alleged act.

The Respondent relies on the Labour Court decision in Hurley v County Cork VEC (EDA 1124) which held in respect of S77 (5) and S 77 (6A) of the Employment Equality Acts 1998-2015:

“Subsection (5) and subsection (6A) of S77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), and act will be regarded as extending over a period, and so done at the end of a 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 v Kapur [1989] 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.  Hence an aggrieved party could maintain a claim in respect of acts of omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.”

The Court set out the test to determine whether the acts of discrimination or victimisation complained come within the 6 month time-limit prescribed by S77 (5) Employment Equality Acts 1998-2015. There is a two stage test:

1 In order for acts or omissions outside the time-limit to be taken into account there must have been acts or omissions of discrimination within the time-limit. There must be some reality in the claim that acts of discrimination occurred within the limitation period, otherwise a Complainant could revive a claim which had been extinguished by the time-limit by raising an additional related claim, no matter how tenuous within the time-limit.

2 If (i) is satisfied, then the Tribunal or Court must consider whether there is sufficient link between the occurrences outside the time-limit and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act on which the Complainant may rely.

The test was approved by the Supreme Court in Louth VEC v The Equality Tribunal [2016] IESC 40.

The complaint was delegated to me by the Director General.

Mr. Cox alleges he has been discriminated against by the Respondent (1) in his conditions of employment in terms of S6 (2) (a) and (f) of the Employment Equality Acts 1998-2015 due to his gender and age in failure to promote the Complainant and (2) his dismissal and forced resignation for discriminatory reasons from his position as Sergeant. His complaint of discrimination on the grounds of family status has been withdrawn.

In reaching my decision I have taken into account written and oral submissions, and sworn evidence given in the course of the hearing.

Preliminary Applications

The Respondent has raised preliminary objections to the complaints.

Mr. Cox was a Garda Sergeant and was notified on 12th August 2016 that he was unsuccessful in a competition to be promoted to Inspector. His complaint form was received by the Workplace Relations Commission on 16th November 2017. Discrimination is denied by the Respondent.

The Respondent says 12th August 2016 is the date of the last alleged discriminatory act for the purposes of S77 (5) of the Employment Equality Acts 1998-2015. The complaint was not received by the Workplace Relations Commission until 16th November 2017 which is in excess of the statutory maximum period of 12 months for the complaint (if an extension of time is granted) and the complaint of discrimination in relation to the promotion is statute-barred.

Mr. Cox’s representatives say the last date of discrimination is 19th May 2017 when he resigned, his complaint was received by the Workplace Relations Commission on 16th November 2017 which is within the statutory 6 months time-limit (Byrne v Minaguchi EDA 034).

Mr. Cox relies on the provisions of S77 (6A) of the Employment Equality Act 1998-2015 that discrimination occurs if the act constituting it extends over a period, at the end of the period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has a clear and adverse impact on Mr. Cox (Barclays Bank plc v Kaput [1989] IRLR 387).

Without prejudice to the foregoing, for the purposes of S77 (5) of the Employment Equality Act 1998-2015 the Respondent’s decision not to promote from 12 August 2016 up to Mr. Cox’s resignation are sufficiently connected so as to constitute a continuum (Arthur v London Eastern Railway Ltd [2007] IRLR 58). Following the outcome of the competition, the Mr. Cox appealed the decision internally in accordance with the Commission for Public Service Appointments code of practice but had not received a response to his appeal. He then decided to resign.

S 77 (5) of the Employment Equality Act 1998-2015 provides:

(5) (a) Subject to paragraph (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 or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (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)……..

(6) …………..

(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,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.

………………….

Mr. Cox was informed he was unsuccessful in the competition on 16th August 2016. S77 (5) of the Employment Equality Act 1998-2015 requires a complaint of discrimination to be made within a period of 6 months from the latest occurrence which can be extended to 12 months where there is reasonable cause. Mr. Cox’s complaint of discrimination was received by the Workplace Relations Commission on 17th November 2017 which is over 12 months from the date he was informed of the outcome of the competition. Following the decision in Hurley v Cork VEC (EDA 1124) and the two stage test outlined by the Labour Court, I am satisfied Mr. Cox’s complaint of alleged discrimination arising from the competition for promotion falls within the provisions of S77 (5) of the Employment Equality Act 1998-2015 and not within the provisions of S77(6A) of the Act. I accept the Respondent’s objection to the complaint and find Mr. Cox’s complaint of alleged discrimination in relation to the competition was not made within the statutory time-limit, and consequently is statute-barred.

The Respondent raises a second preliminary objection in relation to Mr. Cox’s constructive discriminatory dismissal complaint. The Respondent says Mr. Cox resigned from his employment on 2nd April 2017. His complaint was lodged to the Workplace Relations Commission on 17th November 2017, which is outside of a 6 month period from the alleged act.

Mr. Cox’s representatives say he was forced to resign and retire as he had unsuccessfully exhausted the internal options open, and due to the long delay by the Respondent in coming to the decision. I find the operative date is the date of termination on 19th May 2017 not notice (W. Cummins Plasterer’s Ltd v Nowakowski EDA 086). The complaint of discriminatory dismissal is in time and can proceed.

Complaint of Discriminatory Dismissal

Mr. Cox had long service of thirty-four years with the Respondent prior to his resignation. He gave evidence he was promoted to Sergeant in 1995 and passed exams for Inspector grade in 1997. He is qualified with an Arts Degree, Masters in public sector analysis, Masters in Human Resources strategies, and Diploma in employment law. He was successful in the first round of the competition, but unsuccessful on the second round.

Mr. Cox alleges younger female candidates selected for promotion, had less service, responsibility and qualifications than him. He alleges direct discrimination and indirect discrimination as the competition resulted in the promotion of a greater number of females 58% to 49% males. He alleges the absence of a transparent and equitable performance appraisal system in An Garda Siochana amounts to a practice which resulted in and facilitated discrimination against him.  He says the discrimination ultimately led to his resignation from the force.

The Respondent refused to provide redacted documents requested on eighteen successful candidates sex, service and age pursuant to S76 of the Employment Equality Acts 1998-2015. Mr. Cox has provided details of a comparator promoted to Inspector in the competition who is a much younger female candidate, whom he alleges has carried out mostly ceremonial duties and is a close relative of a senior member of the Gardai.

A member of the interview panel gave evidence that the interview panel members received  training prior to carrying out the interviews, which included information on the Employment Equality Acts 1998-2015. He said the panel asked identical questions of each candidate based on six key competencies set out by An Garda Siochana required for the role. The decision to promote was based on performance at interview on the day. Experience and qualification of candidates are not scored as part of the assessment process but are merely background. The interview panel are unaware of ages of applicants.

Mr. Cox was rated as a giving very good performance on six key competencies required for Inspector at his second interview, but was unsuccessful. Feedback provided by the panel to the Complainant following his application said “while the Board were impressed with the enthusiasm and commitment displayed at interview they recommend that the candidate assesses the examples used and ensure they demonstrate skills and abilities as appropriate to the rank of Inspector”. Further comments were “the Board were of the opinion that you would benefit from the adoption of a more thoughtful approach and would advise that you listen carefully to the question being asked before formulating an answer”.

The panel member said Mr. Cox had not performed as well at interview. The panel member stated he was not canvassed by any party about the interviews and does not know the senior Garda member. The panel member was aware of criticisms of the promotion system in an audit report carried out in 2015 and he received additional training. The 2015 audit report said there were elements of the promotion process which do not reflect best practice, appointment of candidates in merit and conspire to diminish confidence in the promotion system.

Mr. Cox lodged an appeal against his unsuccessful application for promotion to rank of Inspector pursuant to S8.9 of the Commission for Public Service Appointments code of practice on 13th September 2016. Mr. Cox had two interviews with the Chief Superintendent regarding his appeal on 26th October and 28th November 2016. The code of practice provides a decision on an appeal should be issued within twenty working days. Despite reminders from Mr. Cox, the decision on the appeal did not issue. Mr. Cox gave notice of resignation from his post on 2nd April 2017. He was notified of the decision on his appeal which was unsuccessful on 5th May 2017. Mr. Cox left the force on 19th May 2017. Mr. Cox sought a further review to the Commission for Public Service Appointments, the outcome of which was also unsuccessful in October 2017.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “gender ground” is where one is a man and one is a woman and “age ground” is where individuals are of different ages.

The burden of proof is set out in Section 85A (1) of the 1998-2016 Acts which provides:

“Where in any proceedings 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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

Mr. Cox alleges his dismissal and forced resignation for discriminatory reasons from his position as Sergeant. He complains he has greater educational qualifications, experience and responsibility than a younger successful female candidate. 58% of females were successful in their application for promotion to Inspector as against 49% of males, I find the difference in promotion between the genders is not significant and does not give rise to an inference of discrimination.

In order to establish discrimination has occurred Mr. Cox must show that he was treated less favourably than a named comparator in a comparable situation. Evidence has been given that all candidates were treated in the same manner at interview with identical questions asked of them, their educational qualifications, and experience were background information only. The key competencies for promotion to Inspector, application of criteria, and interview process have not been impugned. There is no evidence of difference in treatment of males and females and candidates of different ages.

My role as Adjudication Office is to consider if the promotional process is tainted by discrimination and if Mr. Cox was dismissed and resigned for discriminatory reasons. The Labour Court in Galway City Partnership v O’Halloran said:

“….the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”

Mr. Cox alleges he was indirectly discriminated against in the promotion competition as the Respondent does not have a transparent and equitable performance appraisal system. Whereas the absence of any performance appraisal system may be unsatisfactory, this applies to all applicants for promotion both male and female and no evidence has been adduced as to how this gives rise to indirect discrimination on the gender or age grounds. Mr. Cox places reliance on the failure of the Respondent to provide information and redacted documents relating to the successful candidates for promotion, but there are reasons why Mr. Cox was not selected for promotion. Consequently, I find no inference of discrimination has been raised by the failure of the Respondent to provide this information.

The Labour Court in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

I find no evidence has been adduced by Mr. Cox which raises a prima facie case of direct or indirect discrimination. In those circumstances, Mr. Cox’s complaint of dismissal and forced resignation due to discrimination from the promotion fails.

The complaint of discrimination from the competition is statute-barred.

The complaint of discriminatory dismissal fails.

Statute-barred, indirect discrimination, age discrimination, gender discrimination in promotion