Complainant

Respondent

Parties

Colm  Costello

Technical University Of Dublin

Representatives

  Self-represented

Ruth Heenan, IBEC

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-00049781-001

20/04/2022

The complainant and two witnesses for the respondent gave their evidence under affirmation. The parties were facilitated in cross-examining the witnesses.

The complainant submitted that In mi-October 2021, he was approached by the respondent to be part of a project team.  He submitted that the following day, he was told that it was not possible to employ him as he was a retired individual, and it would take too long to get the appropriate approval to employ him as part of this project.

Witness Testimony:

The complainant stated that he was approached by the project co-ordinator for the industry centre in relation to coming on board for a short-term project to last for 5 to 6 weeks.  He stated that it was all but agreed that he would take part in the project.  The following day, while he was in a coffee shop, her received a phone call from the co-ordinator to indicated that it would not be possible to retain him for the project as he had been informed that due to the restrictions placed upon the employer by the Control Framework in place, it would take too long to process his recruitment. 

The complainant noted that although he thought that this approach was pragmatic from the Co-ordinators perspective, he believed that the this amounted to discrimination contrary to the Employment Equality Act.  He outlined that he felt discriminated against on the basis of his age and cited Sections 6 and 8 of the Employment Equality Act in support of his claim.

In response to cross examination, the complainant noted that he did not avail of the opportunity to appeal this decision as he was only available from October to January but not free from February to May which was the only possible timeframe for the respondent to approach the client again to see if they still had a need for his services.  He also noted that under the Framework, the respondent would not be in a position to pay him to undertake the work.

The respondent submitted that although the complainant had been identified as a suitable candidate to undertake work in relation to a specific project, it became apparent that further approval would be required from a Statutory Body under the Employment Control Framework.

The respondent noted that in a previous similar situation, the approval process took two months to complete.  It noted that the innovation project that they envisaged the complainant working on was time bound and there would not be enough time to wait to recruit the complainant.  Accordingly, the respondent returned to the complainant to indicate that they could recruit him for the project given the time-frame.

The respondent submitted that the complainant sought to appeal the decision in early November and that following internal discussions, the respondent reverted to the complainant in early December to enquire whether he would agree to them approaching the client with a view to seeing whether there was an available window to process his recruitment for the project and getting it completed withing a reasonable timeframe.  The respondent submitted that the complainant rejected the offer.  Notwithstanding this the respondent sought the checklist for rehiring its retired employees and received an updated checklist towards the end of December, which it submitted showed that there was still a need to go through the process to recruit its former employees who were retired.

The complainant submitted that he was discriminated against when an offer of employment was withdrawn on the basis that he was a retired former member of staff with the respondent.  He confirmed in his evidence that following his appeal of this decision, that the respondent engaged with him and offered him the opportunity to be considered, if the client still needed the project to continue.  He also confirmed that he instructed the respondent not to revert to the client, as he would no longer be available.

In his evidence, the complainant also noted that the rehiring process only related to him as a former member of staff of the respondent and confirmed that if he had worked with a different education provider and retired therefrom, there would be no difficulty in hiring him.  In effect, the complainant confirmed that there was no difficulty hiring someone of any age into the project but rather the difficulty arose as a result of his status as a former employee of this specific educational institute.

Section 85A of the Employment Equality Act states as follows:

(1) 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.

Section 6 (1) and (2) of the Act states as follows:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

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

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

Although the complainant has not demonstrated that he was treated differently to any comparator, his contention is that he was treated differently on the basis that he is a retired member of staff of the respondent.  The complainant confirmed that another person of a similar age would have been treated differently and could have been recruited into the position by the respondent without delay.  Therefore, the only characteristic that delayed the complainant’s engagement was his status as a retired former staff member.  Effectively this suggestion puts the complainant into a “retired member of staff ground” which is not covered by the Act.

Additionally, following the complainants appeal of the decision not to engage him, the respondent attempted to rectify matters and sought to engage with the client to ascertain if they still needed the project to be completed.  Prior to this, they contacted the complainant who instructed them not to do so as he was not available anymore to complete the project.

Having regard to the circumstances surrounding the interactions between the parties, and to the attempt by the respondent to rectify matters, I am not satisfied that the complainant has established facts from which it could be inferred that discrimination, as outlined in the Employment Equality Act, has taken place.  Accordingly, I find that the complaint is not well founded.

Having regard to all the written and oral evidence submitted in relation to this matter, my decision is that the complaint is not well founded.

Employment Equality Act – discriminatory grounds – ground not included in the Act – complaint not well founded.