ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027349

Parties:

	Complainant	Respondent
Anonymised Parties	A Professional	Pharmaceutical Company

Representatives

Don McGann Alastair Purdy & Co

John Casey Matheson

Complaint(s):

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-00035011-001	04/03/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00035165-001	10/03/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016	CA-00035165-002	10/03/2020

Date of Adjudication Hearing: 12/04/2022

Workplace Relations Commission Adjudication Officer: Emer O'Shea

This decision is anonymised owing to the fact that it references a child with a disability.

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 16 of the Protection of Employees (Part-Time Work)Act 2011 and/or Section 27 of the Paternity Leave & Benefit Act 2016 and or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Final correspondence was received from the parties on the 5thMay 2022.

The complaint under the Protection of Employees (Part- Time Work Act) 2001 was withdrawn

Employment Equality Act 1998

Summary of Background to the complaints

The complainant commenced employment with the respondent on the 2nd.January 2000.In her first complaint under the Employment Equality Acts which was received on the 4th.March 2020 , the complainant alleged that she was discriminated against by her employer by reason of her family status , by reason of her disability , by discriminating against her in getting a job, by discriminating against her in giving her training , by discriminating against her in victimising her, by discriminating against her in failing to give her reasonable accommodation for a disability, by discriminating against her in conditions of employment and by discriminating against her in harassing her. In an addendum submission received on the 27th.Jan 2022, the complainant submitted that she was discriminated against on the grounds of association with her daughter who suffers from a disability.

The complainant commenced employment initially with Pharmaceutical Company A which became 2 companies in 2013 – at that time the complainant transferred her work to the Pharmaceutical Company B side of operations. The complainant was assigned to the position of Operations Accountant in 2008 on a part time basis and her representative chronicled her career with the company over the years. The claimant’s line manager changed in 2015. It was submitted that the complainant availed of the company’s flexible working policy, and it was advanced that that this was given to accommodate the complainant in meeting her family responsibilities and in particular the needs of her disabled daughter. It was submitted that up to 2015 /2016, the complainant had consistently achieved a 3-performance rating. It was submitted that in 2017, the complainant ‘s manager changed - Ms.X was assigned as plant controller, and it was contended that at this point in time the complainant was the recipient of adverse treatment from Ms.X. The complainant gave evidence of what she described as adverse treatment including pressure to take annual leave – the complainant had enjoyed flexibility around retaining holidays to avail of paid leave for her daughter’s surgeries. It was submitted that on the 30th.Nov. 2017, the complainant advised Ms.X that she felt she was being harassed. It was submitted that the claimant was the only staff member subjected to this treatment. The complainant gave evidence of her subsequent interactions with Ms.X in relation to the matter of TOIL i.e time off in lieu and work breaks. She asserted in her evidence that the company was devoid of empathy and understanding in relation to her flexible working arrangements.

It was contended that the flexibility afforded to the complainant with respect to working from home was abruptly removed from her on the 2nd.Jan.2018 and the complainant gave evidence of the ensuing interactions with Ms.X on this matter. The complainant contacted her former manager Mr.A - now European Financial Director about her treatment by Ms.X and asserted that she – the complainant was being bullied by Ms.X. It was submitted that the complainant endeavoured to engage with her manager in an informal process with a view to resolving these issues and reverting to the former flexible arrangements afforded to her, but no agreement could be reached. The complainant’s reporting relationship changed in October 2018 to Ms.Y and the claimant sought to have her former flexible working arrangements restored to her but this was refused. The claimant gave evidence of the ensuing interactions with Ms.Y but the dispute re her working arrangements remained unresolved .It was submitted that the claimant was subjected to excessive monitoring of her attendance by Ms.Y and that this level of monitoring e.g. clocking out 1 min early , was not extended to other employees.

In November 2018, the claimant formalised a complaint to a number of managers about the distress arising from the lack of flexibility afforded to her by the respondent but received no response. On the same date the claimant was summoned to a meeting by Ms. X & Ms. Y and according to her direct evidence was accused of putting her family first and being disrespectful to her manager. It was submitted that owing to the ongoing stress, the claimant was compelled to take sick leave for work related stress on the 16th.Nov. 2018. It was submitted that on her return to work, the claimant received a draft letter from Ms.Y to the effect that she could have up to 30 mins flexi time either side of her start time but as far as the claimant was concerned this did not address the outstanding flexible arrangements required to cater for her family care responsibilities.

It was submitted that matters continued to deteriorate when the claimant received a poor performance review conducted by Ms. X and Ms. Y in Feb. 2019 – the claimant asserted that she had never before received a negative review. The claimant gave evidence of detailed challenges she made to the performance review and it was submitted that the report had failed to take account of the 6 months the claimant had been absent due to carers leave, holiday leave, parental leave as well as sick leave arising from work related stress. It was submitted that at a meeting between the complainant and Ms. X, Ms. X asserted that the goals set for the complainant had taken account of the claimant’s daughters surgery. It was submitted that this caused the claimant great distress as she felt Ms. X was using her daughter’s medical condition to justify a vindictive review. The claimant believed that the poor review was related to the grievance letter she had circulated to managers in Nov. 2018.The claimant argued that the respondent could not have known the dates of her daughter’s surgery when the goals were drawn up and consequently could not factor in said absence at the time of writing up the goals. On the 1stMarch 2019, the complainant commenced sick leave and remains out sick since that time.

In her direct evidence the claimant asserted that she had been given no indication from Ms. X or indeed Ms. Y of concerns about performance deficits – this was refuted by the respondent and diary entries of Ms. X were furnished to the WRC post the hearing - which it was submitted supported the respondent’s position on the matter.

Detailed submissions were presented of the ensuing exchanges between the claimant and various managers with respect to the claimant’s grievance regarding the performance review rating. The grievances were not upheld and were rejected at final appeal. The result of the appeal was communicated to the claimant on the 24thSept 2019.

It was submitted that the claimant was directly discriminated against as a consequence of her family status and the disability her daughter is subject to as protected under Section 2(1)(b) of the Act. It was contended that the respondent attempted to reprimand the complainant by virtue of her daughter’s disability:

1.By removing the flexibility that had been afforded to the claimant for managing her disabled daughter’s schedule

2.Requiring her to use annual leave in lieu of previous flexibility;

3.Failing to deal with the claimant’s grievance of the 12th.Nov. 2018

4.Reprimanding the claimant after submitting her grievance of the 12th.Nov.2018 , accusing her of putting her family first , telling her that she showed no respect or manners towards her manager because she left work after getting a call from school to say her child was sick even though she had sent an email to her manager to inform her and making unnecessary comparison to another part time worker who had no dependent children;

5.Providing the claimant with a low review rating whilst failing to take account of her family related absences;

6.Putting the claimant through a fundamentally flawed investigatory process;

7.Requiring the claimant to submit her daughter’s medical reports to prove her disability and that her surgeries did in fact take place and then loosing same.

It was submitted that the foregoing points represent a causal link between the claimant’s family status and the subsequent discriminatory acts .It was submitted that the complainant was treated less favourably as a result of her family status than that of her comparative part time workers .It was contended that without prejudice to the foregoing , in the event that the criteria used to examine the claimant’s performance in Feb. 2019 , was deemed to take account of her family related absence , it was contended that this still constitutes direct discrimination due to the lack of transparency of same. It was submitted that if it was deemed that the criteria failed to take account of her family related absences, then such constitutes direct discrimination.

It was submitted that pursuant to Section 14A of EEA, the respondent engaged in such conduct that is categorised as harassment. It was advanced that while the conduct may not have been intentional, it had the effect of undermining the claimant’s dignity. The provisions of Moonsar v Fiveways Express Transport Ltd. [2005] IRLR and Allen v Dunnes Stores were invoked in support of this contention.

It was submitted that following receipt of concerns of discrimination within the workplace raised by the claimant’s solicitors in January 2020, the adverse treatment of the claimant continued -the respondent refused to engage with the claimant while she was out sick for work related stress. Failure to disclose certain documentation including her daughter’s medical reports was also referenced.

The claimant further contended that she was discriminated against by the respondent by virtue of her disability. It was submitted that the claimant had a recognisable disability (work related stress) so as to be afforded legislative protection. It was submitted that the respondent discriminated against the complainant on the basis of her disability “by virtue of the fact that they were aware of her underlying stress and failed to properly manage the claimant’s complaint on the 12th.Nov. 2018”. It was contended that at that point the employer should have dealt with the claimant’s concerns and made the appropriate accommodations – allowing her resumption of flexible working – but failed to do so – resulting in the aggravation of the claimant’s disability. It was argued that the respondent then proceeded with a flawed examination of the claimant’s performance. It was submitted that the employer treated the complainant less favourably by virtue of her underlying disability.

With respect to the matter of reasonable accommodation , it was submitted that the respondent was aware of the claimant’s disability from the 12thNov 2018 and on notice of the source of the stress – lack of flexible arrangements- the respondent had an opportunity on her return from sick leave on the 3rd.January 2019 to restore the former flexible arrangements but failed to do so and maintained her on a rigid regime – leading to the further deterioration of the claimant’s mental health. As no such accommodations were afforded to the claimant to facilitate her with every opportunity to participate in employment, it was advanced that the respondent failed to afford her reasonable accommodation and were in breach of Section 16 of the Act.

The respondent refuted the complaints in their entirety and asserted that the claimant was never subjected to less favourable treatment to that of her colleagues, “still less on the basis of any protected grounds”.

The respondent referenced the statutory limitation period covered by the complaints as limited to the period of the 5th.September 2019 to the date of receipt by the WRC the 4th.March 2020.It was advanced that all matters which fall outside this period are statute barred and excluded from the scope of the complaints.

The respondent set out the background to the claimant’s career in the employment and asserted that the part time status and the permission to work from home were not commonplace for the respondent’s workforce. It was submitted that the claimant’s managers observed a dip in the claimant’s performance, in time – this was leading to a requirement for additional support from management and colleagues to ensure projects were completed and it was advanced that this put an additional burden on colleagues. The respondent set out a detailed account of the lead up to the imposition of restrictions on the claimant’s flexible working arrangements and submitted that the claimant was still permitted to take Wednesday’s off to accommodate her family commitments – it was contended that this was special privilege granted to the claimant and not afforded to her colleagues. It was submitted that additionally the claimant was permitted to avail of flexitime in circumstances where it did not apply to part time workers. The respondent referenced the exchange between the claimant and Ms.X with respect to her daughters impending operations in 2017 – it was submitted that a second conversation took place between the parties on the 14th.Nov. 2017 and the claimant was questioned by Ms.X about her outstanding annual leave balance. Ms.X gave evidence of her recollection of this exchange and advised that the claimant planned to take the summer of 2018 off work and would utilise her Parental Leave. The complainant also advised of her intention to avail of Carer’s Leave to look after her daughter post-surgery. It was submitted that Ms.X took it that the surgery would take place at some point in 2018. The notes of the meeting were submitted into evidence. After discussing the matter with the HR Manager, it was decided that when the claimant was informed of the specific date of the surgery, she could utilise her accumulated annual leave and apply for Carer’s leave. It was submitted by the representative and repeated by Ms.X in her direct evidence that when the complainant’s performance target goals were set up in January 2018, they were drawn up taking into account the extended period of anticipated leave. This was vehemently disputed by the complainant in her direct evidence. In the event, the claimant was graded at Level 2 in her performance review –“indicating that she had met some but not all expectations”. This was conveyed to the claimant at a meeting with Ms.X and Ms Y on the 12th.Feb. 2019 and the complainant was asked to take part in a performance improvement plan. The claimant took exception to the review process and outcome and the employer submitted that even if there had been a further amelioration of the complainant’s goals for 2018, she still would not have been graded above level 2. It was submitted that the complainant was dissatisfied and commenced sick leave on the 1st.March 2019 and did not return. The claimant thereafter pursued a formal grievance – the respondent submitted that at no stage did the claimant allege discrimination during the grievance process.

The respondent charted the various stages of the grievance process – throughout the process the complainant and Ms.X remained in dispute about the matter of whether or not the goals had been written up lighter in view of the impending period of extended leave. Ms.X asserted that she had referenced the complainant’s underperformance at the monthly review meetings and submitted extracts from her diaries post the final hearing – which she contended supported those assertions. Ultimately the grievance was not upheld and the claimant was advised of her right to appeal the outcome to Ms.Z – a HR Manager at a commercial affiliate of the respondent. It was submitted that at her final outcome meeting on the 19th.July 2019 the claimant made unspecified allegations of bullying and harassment for the first time and she was directed to the company policy on same. The appeal proceeded with Ms.Z and it was submitted that the complainant made no allegations whatsoever of any sort of discrimination during the appeal hearing. The appeal was not upheld – Ms.Z found that the pro-rating or otherwise of the complainant’s goals did not affect the fact that the goals for 2018 , as they were written were achievable during the time the complainant was at work that year.

The respondent referenced the burden of proof on the claimant. It was contended that the complainant would have to establish the primary facts upon which she relies and establish that those facts are of sufficient significance to raise an inference of discrimination. It was submitted that the respondent was not on notice of any disability on the part of the claimant and that the complainant had not adduced any prima facie evidence that she was subject to any treatment less favourable than her colleagues, “still less that any such treatment was motivated by discriminatory intent on the basis of family status”. It was submitted that if anything, the claimant was treated more favourably than her colleagues.

It was submitted that while the claimant may disagree with the grievance and appeal decisions, she had not adduced a shred of evidence that links any decision in relation to her grievance to either family status or disability. It was advanced that no claim of discrimination was made during the grievance or appeal process. It was argued that this together with the absence of evidence undermined the complainant’s complaints and that it was clear that the claimant had failed to make out any prima facie case of discrimination within the relevant statutory limitation period and that consequently the complaint must fail.

Preliminary Matter of Jurisdiction and Time Limits.

The claimant’s complaint was received by the WRC on the 4th.March 2020.In the complaint form the claimant asserted that the most recent date of discrimination was the 24th./26th.Sept. 2019 when the complainant was informed of the outcome of her grievance appeal.

The following submissions were made with respect to the matter of time limits on the claimant’s behalf.

it was advanced that the first act of discrimination occurred when Ms.X was appointed to the role of line manager in 2017 and the complainant’s flexi time was removed from her. It was contended that the act of discrimination continued against the claimant until the conclusion of the complainant’s appeal which found against the claimant’s grievance. It was contended that the discrimination continues in circumstances where the complainant continues to be prejudiced by the respondent’s refusal to take account of their shortcomings. It was submitted that the complainant remains on sick leave as a result of said shortcomings. It was contended that the respondent’s mistreatment towards the complainant remains ongoing, thus forming part of a continuum of discrimination. It was submitted that this was consistent with the principles set out in Brothers of Charity Services, Galway v Kieran O’Toole [2017] EDA 177 which referenced a previous decision of the Labour Court in the case of County Cork VEC v Anne Hurley where it held

“Sub-Section (5) and Sub-Section 6(A) of S77 deal with different forms of continuing discrimination or victimisation. Under Sub-Section 6 (A) 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.

This Sub-Section would apply where for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimization, 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 or omissions which occurred in pursuance of the Policy or Practice regardless of which the Act or omission occurred”.

The provisions of Mary Dempsey v NUIG was also referenced by the complainants representative where the Tribunal held :

“Having regard to my findings below, I find that this was a related Act of discriminatory treatment in relation to her conditions. I am also satisfied that the claimant has established a satisfactory link between all incidents , and that they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing Act or a continuum of discrimination within the meaning of Section 77.I find therefore that the complaints were referred to within the 6-month time limits provided for in Section 77(5)(a) of the Acts and I have jurisdiction in the matter “.

The respondent’s representative referenced the statutory limitation period covered by the complaints as limited to the period of the 5th.September 2019 to the date of receipt by the WRC the 4th.March 2020.It was advanced that all matters which fall outside this period are statute barred and excluded from the scope of the complaints - the following submissions were presented in respect to time limits and jurisdiction :

Section 77(5) of the 1998 Act provides as follows:

“(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.”

In addition, section 41(6) of the Workplace Relations Act 2015 provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint

referred to him or her under this section if it has been presented to the Director

General after the expiration of the period of 6 months beginning on the date of the

contravention to which the complaint relates.”

The Labour Court examined the operation of the time limits at issue in claims under the EEA in the decision of County Cork VEC v Hurley EDA1124. Hurley firmly

established the position that, in order for acts or omissions outside section 77(5)’s six month

time limit to be considered, there must have been actual acts of discrimination within the six-month time limit. It is clear from subsequent case law that Hurley represents the appropriate approach as to the application of the statutory time limit:

“It is clear... that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (ordiscrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise, a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit… On the evidence adduced there is no basis whatsoever upon which the Court could conclude that the either of the incidents relied upon by the Complainant within the time limit were acts of victimisation. Accordingly, the Court must conclude that no acts capable of constituting victimisation occurred in the period of six-months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly, even if the Complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limit prescribed by s.77(5) and are statute barred.”

In the more recent decision of Occipital Ltd v Hayes EDA 184 (2018) the Labour

Court endorsed the Hurley reasoning, at paragraph 119 of its determination:

“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 in County Louth VEC v Equality Tribunal [2016] IESC 40 also

expressly approved of the approach adopted by the Labour Court in Hurley at

paragraph 24 of the judgment of McKechnie J:

“Section 77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions on the part of, say, an employer, which, whilst not forming part of a regime, rule, practice or principle (‘regime or practice’), are sufficiently connected so as to constitute a continuum of discrimination. In effect, this deals with a situation whereby there are separate manifestations of the same disposition to discriminate (Bolger, Bruton and Kimber, Employment Equality Law (Dublin, 2012) at para. 16–47). In such a case, once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time.”

In the first place the respondent stressed that it has not at any stage, either within the six-month limitation period, or before, or after, ever treated the complainant in any way less favourably than any of her colleagues. According to the respondent’s representative still less has the Respondent ever been motivated by any desire to discriminate against the Complainant because she is a mother, or for any reason connected to disability.” In fact, as outlined above, the respondent has treated the Complainant with more flexibility than her colleagues due to her family commitments. It is clear, however, that within the six-months covered by this claim there has been no instance whatsoever of any act of discrimination or victimisation. Ms Z, who is not employed by the Respondent (but rather works for another corporate affiliate) conducted the appeal process with fairness and rigour.

She was chosen to conduct the appeal due to her impartiality, having no prior involvement in the matter. The Complainant may disagree with her findings, but there can be no question that those findings were based in any way on a desire to discriminate against her due to her family status (or any other protected ground)”.

It was further contended that as the Supreme Court noted in County Louth VEC v Equality Tribunal, establishing an act of discrimination within the six-month limitation period acts “as a condition

precedent to the exercise of the Tribunal's jurisdiction and cannot be stood down,

save in accordance with the provisions of the Act”.

The Respondent submits that no such act of discrimination within the six-month limitation period has been established, to any degree, and thus the condition precedent to the exercise of the WRC’s jurisdiction to determine the within claim has not been fulfilled.

Given the lack of any stateable instance of discrimination within the six-month limitation period of this claim, and the fact that everything which precedes 5 September 2019 is outside of the scope of these proceedings and is statute barred, the claim under the EEA should be dismissed.

Findings:

I have reviewed the evidence presented at the hearings and taken account of the submissions and authorities relied upon by the parties. The time limits which govern the referral of complaints under the legislation is set out in Section 77 of the Acts.

The Complainant contends that she was subjected to various acts of discriminatory treatment over the period from 2017 when Ms.X was appointed as her line manager to the 24th/26.Sept. 2019 when she was advised of the outcome of her grievance appeal and that these acts constitute a continuum of discrimination within the meaning of Section 77(5) and/or Section 77(6A) of the Acts. The Complainant contends that the alleged acts of discrimination which occurred prior to the cognisable period of this complaint i.e., 5th.Sept. 2019 – to the 4th.March 2020 should be considered as part of a continuum of discriminatory events.

The time limits which govern the referral of complaints under the legislation as set out in Section 77 of the Acts.

Section 77(5)(a) of the Acts provides: -

“(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.”

Section 77(6A) provides: -

“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”.

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events. In considering this matter, I have taken note of the case of County Cork VEC –v- Ann Hurley EDA1124 where the Labour Court considered the issue as to whether events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. It was held by the Labour Court 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 hashad a clear and adverse effect on the complainant (Barclays Bank plc v Kapur IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”. The Labour Court also held in this decision that: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum …… in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit…… their admissibility is dependent upon some link being established between the occurrences outside of 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 upon which the Complainant can rely. ”

It is clear from the foregoing that the Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. In the circumstances, it is necessary for me consider if the incidents of alleged discrimination relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) or Section 77(6A) of the Acts. In that regard, applying the principles identified above to the instant case, it appears that the admissibility of the claim in so far as it relates to alleged acts of discrimination in the period before the 5th.Sept. 2019, depends upon the validity of the claim of discrimination which allegedly occurred within the six-month period after that date. Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

Therefore, in accordance with the consistent approach applied by the Labour Court in circumstances such as those that prevail in the instant case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before I can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction. It is only in circumstances where such a conclusion was to be reached that I would have the jurisdiction to consider events which occurred prior to the cognisable period.

The Complainant indicated on her complaint form that the last occurrence of a discriminatory act was the 26th.Sept.2019 when she was advised of the outcome of the grievance process. This was the only alleged act of discriminatory treatment that took place within the cognisable period. Ms.Z was appointed to conduct the appeal of the claimant’s grievance relating to her performance reviews. It is clear from the evidence presented and the submissions made by the parties the complainant did not raise allegations of discriminatory treatment in the course of the grievance process. Additionally and significantly, the claimant clarified under cross examination that she was not making allegations of discriminatory treatment against Ms.Z . While the complainant was unhappy with the outcome of the appeal process and expressed her reservations with respect to the appeal process in her evidence, she did not allege or claim that she was the subject of discriminatory treatment by Ms.Z .Consequently I am obliged to find against the assertions of a continuum of discrimination in circumstances where a discriminatory act did not take place within the cognisable period.

Having regard to the foregoing, I find that the Complainant has failed to establish that she was subjected to any act or acts of discriminatory treatment contrary to Section 8 of the Acts in relation to her family status or disability within the six-month period immediately prior to the referral of the instant complaint.The claimant did not apply for an extension of the time limit in accordance with the provisions of Section 77(5)(b) of the Acts.

On the basis of my findings that the event occurring within the cognisable period did not constitute an act of discrimination, I do not have jurisdiction to consider the complaints made by the Complainant relating to events outside the six-month period set out in the Acts for the making of a complaint of discrimination. Accordingly, the complaints are statute barred.

I further find that the complaint received by way of an addendum submission on the 27th.Jan 2022 regarding discrimination by association is statute barred.

Paternity Leave and Benefit Act , 2016.

Summary of Background to the Complaint

In her complaint form which was received on the 10.03.2020 , the claimant complained that she was penalised or threatened with penalisation for “ having exercised or proposing to exercise my entitlement to paternity leave”. The claimant’s representative submitted that this complaint was incorrectly lodged under Section 27 of the Paternity Leave and Benefit Act, 2016 and stated that the complaint should have been lodged under Section 16A of the Parental Leave Act 1998 – 2018 and sought leave to amend the complaint. It was submitted that the complainant was penalised for taking parental leave between the 3nd.July 2018 and the second of September 2018 when she received a poor performance review on the 12th.Feb.2019 , which failed to take account of the claimant’s parental leave pursuant to Section 16 A of the Parental Leave Act , 1998.

The respondent argued that the complaint never availed of paternity leave and that consequently the complaint was misconceived. It was submitted that the fact that claimant had availed of carer’s leave and parental leave during 2018 did not negatively affect the manner in which the respondent treated the claimant at all. It was submitted that the respondent was extremely sensitive to the claimant’s familial obligations and had worked with her to structure her leave to accommodate such reservations. It was submitted that the claimant’s assertions that her performance rating in 2018 constituted victimisation for having taken carer’s leave failed to take account of the determinations of Mr.E and Ms.Z that there was abundant factual basis for the level 2 rating .It was further submitted that the complaint was out of time as the time frame for consideration of the complaint was 6 months prior to the lodgement of the complaint on the 10th.March 2020.

Preliminary Matter of Jurisdiction.

In the body of the complaint form, the claimant referred to penalisation for having exercised or proposing to exercise my entitlement to paternity leave.

I note that the WRC complaint forms are not prescribed and further accept the claimant’s representative’s assertion that this was an administrative error and should have referenced the Parental Leave Act 1998 as opposed to the Paternity Leave and Benefit Act, 2016.

In light of the fact that the respondent company were aware that the claimant was a female worker who had availed of parental leave, I cannot accept that the respondent would be prejudiced by acceding to the request to amend the form to reclassify this as a complaint under the Parental Leave Act 1998.

Notwithstanding my finding with regard to the administrative error, I am obliged to consider if the complaint was lodged within the statutory time limits. The complaint was received by the WRC on the 10th.March 2020. The cognisable period for consideration of the complaint is the 11th.Sept.2019 to the 10thMarch 2020.The alleged act of penalisation referenced a poor performance review on the 12th.Feb. 2019. Consequently, the complaint is out of time and I have no jurisdiction on the matter.

Dated: 18-08- 22

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words:

Time Limits /Jurisdiction /Cognisable Period