ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045394
Parties:
| Complainant | Respondent |
Parties | Harvey Allen | Tipperary ETB |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Self-Represented | Shane Crossan O'Flynn Exhams Solicitors LLP |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00056219-001 | 21/04/2023 |
Date of Adjudication Hearing: 14/09/2023
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. The complainant and two witnesses for the respondent undertook to give evidence under affirmation. |
Summary of Complainant’s Case:
The complainant submitted that he was unfairly treated when the respondent refused to give him credit for some of his previous service as a public servant in the UK. He noted that they gave him incremental credit for his time served as a Grade 3 but not for his time served at Grade 5 and 6. The complainant submitted that he was discriminated against for being ‘too experienced’. The complainant confirmed in evidence that he was not discriminated against under any of the grounds cited in the Employment Equality Act. |
Summary of Respondent’s Case:
The respondent submitted that it was not responsible for making the decision regarding incremental credit which falls within the remit of the relevant government Department. The respondent also noted that no ground, as outlined in the Employment Equality Act, was cited in the complainant’s submissions. |
Findings and Conclusions:
In relation to Public Service workers, the Employment Equality Act considers them to be employees under Section 2(3)(b) of the Act which states as follows: (3) For the purposes of this Act— (a) a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service, (b) an officer or servant of a local authority for the purposes of the Local Government Act, 1941, a harbour authority, a health board or a member of staff of an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be, under a contract of service, … (c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer. (d) in the case of a contract mentioned in paragraph (b)(i) of the definition of "contract of employment"— (i) references in this Act to an employee shall be construed as references to the party to the contract who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed, (ii) any comparisons to be made for any of those purposes shall be between persons personally executing work or service for the same person or an associated person under such a contract or contracts, and (iii) in particular, and without prejudice to the generality of the foregoing, references in sections 19(4)(a) and 22(1)(a) to employees shall be construed as references to those persons. The complainant confirmed in evidence that he was not treated less favourably on the basis of one of the grounds cited in the Act but was treated unfairly because he was “too experienced”. Discrimination for the purposes of the Act is set out in Section 6 which states (amongst other things) as follows: 6.—(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”). The complainant has not linked the unfair treatment complained of to one of the grounds set out in 6(2). Accordingly, has not established the existence of discrimination under the Act. Section 85A(1) of the Act states as follows: 85A.—(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. The complainant has not established facts from which it may be presumed that there has been discrimination (for the purposes of this Act) in relation to him. On the basis of the foregoing, I find that the complainant is not well founded. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Having regard to all the written and oral submissions made in relation to this complaint, my decision is that the complaint is not well founded. |
Dated: 15/9/23
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Employment Equality – discrimination for the purposes of the Act not established – not well founded |