ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00030976

Parties:

Complaint:

Date of Adjudication Hearing:  24/03/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 77 of the Employment Equality Acts 1998-2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 17th May 2020.  The Complainant was self-represented whilst the Respondent was represented by Arthur Cox Solicitors.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I heard this complaint by remote hearing on 24th March 2022 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020.  This hearing was held in public pursuant to Section 79(2) of the Employment Equality Act 1998, as substituted by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Parties were made aware that their names would be published within this decision.  The Respondent’s Solicitor had provided comprehensive submissions and documentation pertaining to this complaint.  All of the evidence, documentation and submissions proffered by both Parties have been fully considered.

Preliminary Issue:  Whether complaint is Statute-barred / Jurisdiction

The Respondent raised a preliminary objection to the jurisdiction of the WRC to hear this complaint on the basis that it was statute-barred under Section 77(5) of the Employment Equality Act 1998.  The Complainant was asked to submit her reasons for the delay and/or for seeking an extension of time and ultimately this issue was left for an Adjudication Officer to determine.  Having scoped the complaint and outlined the relevant legal provisions in lay terms, I deemed it appropriate to deal with this issue under Section 79(3A) of the Act.  This provides for a preliminary determination where a question arises relating to the entitlement of any party to bring or contest proceedings under Section 77, including whether a complainant has complied with the statutory requirements relating to such referrals.  A determination in favour of the Respondent would determine the substantive complaint whilst a substantive hearing would follow a determination in favour of the Complainant.

Summary of Complainant’s Case:

The Complainant referred a complaint of discrimination and/or victimisation on the grounds of gender and family status under Section 77 of the Employment Equality Act 1998 to the WRC on 17th May 2020.  She had been employed by the Respondent since 2013 and held the position of Sponsorship Campaign Planner.  She confirmed that this complaint arose from the Respondent’s decision to change her role and team upon her return to work in January 2019 following maternity leave.  She felt that this change only arose because she had been on maternity leave and was regressive and detrimental to her career.  She tendered a letter of resignation on 21st February 2019 expressing her disquiet and giving a month’s notice.  This was accepted and her employment terminated on 19th March 2019.  Her last day of work was 19th February 2019 and she took her outstanding annual leave for the notice period.  On 1st March 2019, she submitted a grievance under the Respondent’s internal process.  This process continued after the termination of her employment taking almost a year to complete.  Albeit acknowledging that her return to work could have been better handled, her grievance was not upheld in a final appeal outcome on 20th January 2020.

The Complainant confirmed that she had obtained legal advice although she did not recall receiving specific advice in relation to the time limits for referral to the WRC.  In correspondence with the WRC, she sought to rely upon her duty to exhaust the ongoing internal process as the reason for not referring this complaint earlier.  At the hearing she cited personal difficulties for not referring this complaint immediately after completion of the internal process in January 2020.  Although she had entered “19/02/2019” as being the most recent date of discrimination in her complaint form, at the hearing she contended that the grievance process had taken too long to complete and that the Respondent’s position regarding the change in her role was disingenuous and thus constituted a continuation of the same discriminatory treatment alleged.  However, she agreed that she had not been prevented from partaking in the internal process and had not attended the final appeal hearing on 16th January 2020 citing a personal difficulty.  She had also taken up better-remunerated employment in January 2020.  She was still pursuing this complaint so as not to let the Respondent away with what she perceived as unfair treatment.  The Complainant sought to have her substantive complaint heard by the WRC including any extension of time required for the purposes of same.

Summary of Respondent’s Case:

On behalf of the Respondent, it was submitted that with a date of 21st February 2019 given as the last date of discrimination and a date of referral of 17th May 2020, this complaint was outside of both the 6-month statutory time limit for referral and the 12-month time limit for granting an extension of time pursuant to Section 77(5) of the Employment Equality Act 1998 and is therefore statute-barred.  The Respondent had continued the Complainant’s grievance process after she had terminated her employment as a gesture of goodwill and to demonstrate how seriously it had taken her concerns.  There was no evidence of less favourable treatment from the manner in which the internal grievance process had been conducted.  The Respondent had maintained its position that the restructuring of the Complainant’s role was for operational reasons unrelated to her maternity leave and the assertion that this was disingenuous was wholly refuted.  Reliance was placed on the Labour Court’s determinations in Brothers of Charity Services -v- Kieran O’Toole EWA 177 and Ervia -v- Healy PW/19/55,holding that deploying the employer’s internal grievance procedure did not operate to prevent an employee from referring a complaint within the requisite statutory time limit.  Accordingly, this complaint is statute-barred and the WRC does not have jurisdiction to hear same.

Findings and Conclusions:

In order to determine whether this complaint is statute-barred and hence the jurisdiction of the WRC to hear same same, it is necessary to firstly set out the relevant statutory provisions as follows: 

“Section 79(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 of the Workplace Relations Commission 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)  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, (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 operates over a period, throughout the period,

(b)  a deliberate omission by a person to do something occurs when the 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.”

In summary, Section 79(5)(a) of the 1998 Act requires a complaint to be referred to the WRC within 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.  Section 79(5)(b) provides for an extension of time of up to 12 months if reasonable cause is shown.  Section 79(6) provides that where a delay arises owing to the Respondent’s misrepresentation, time begins to run from the date of the employee becoming aware of that misrepresentation.  Section 79(7) further defines the timelines as to when an act of discrimination or victimisation arises for the purposes of this Section. 

In the instant case, the Complainant referred this complaint of discrimination and/or victimisation on the grounds of gender and family status under Section 77 of the Employment Equality Act 1998 to the WRC on 17th May 2020.  This complaint arose from a change in her role upon her return to work in January 2019 following maternity leave.  She tendered her resignation on 21st February 2019, raised a grievance on 1st March 2019, her last day of work was 19th February 2019 and her employment terminated on 19th March 2019.  The Respondent maintains that the WRC does not have jurisdiction to hear this complaint as being statute-barred whilst the Complainant seeks to rely upon a continuation of discrimination alleged within the grievance process to bring it within time.

It is noted that some 14 months have elapsed between the ending of the employment relationship and referral of this complaint to the WRC.  In relation to complaints arising from the employment relationship referred under Section 77 of the 1998 Act, the discrimination complained of usually ceases upon the termination of the employment relationship and the parties’ contractual rights and obligations towards each other (noting that instances of victimisation may exceptionally arise).

I have considered the factual matrix and am satisfied on the balance of probabilities that the Complainant has not identified any continuum of or further acts of discrimination or victimisation that might bring her within either the 6-month time limit or 12-month extension of time limit, such that an application to extend time could be considered.  The Respondent’s legal obligations towards the Complainant ceased upon the ending of the employment relationship on 19th March 2019.  The Complainant has not identified any aspect of the grievance process that could give rise to further potential discrimination or victimisation and I have also examined the documentation to satisfy myself as to same.  The Respondent has simply maintained its position that any restructuring of the Complainant’s role was for operational reasons unrelated to her maternity leave.  Although the Complainant takes issue with the length of time taken to complete the process no issue is taken with her access to the process before her employment ended.  There is no assertion that the Respondent impeded the Complainant in securing alternative employment in any way or that her delay in referring this complaint was due to any misrepresentation by the Respondent.  Therefore, the last conceivable date that the alleged discrimination / victimisation could have occurred owing to any change in the Complainant’s role upon returning from maternity leave was the last date of her employment being 19th March 2019.  As this complaint has been referred some 14 months after that date, it falls outside of both the 6 month time limit and the 12-month time limit for considering whether there is reasonable cause for extending time and hence it is unnecessary to consider the reasons proffered.  Finally, it should be noted that this finding does not detract from the bone fides of the Complainant or her sense of grievance and reasons for referring this complaint to the WRC.

Decision:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint.  For the aforesaid reasons, pursuant to Section 79(3A) of the Employment Equality Act 1998, I find that this complaint is both outside of the 6-month time limit for referral of a complaint and the 12-month time limit for the grant of an extension of time.  Accordingly, this complaint is statute-barred and the WRC does not have jurisdiction to hear this complaint.

Dated:   26 April 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Preliminary issue as to statutory time limits – Sections 77 & 79(3A) of the EEA 1998