Complainant

Respondent

Anonymised Parties

Medic

Health Service

Representatives

Ms. Shonagh Byrne, SIPTU

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00045458-001

29/07/2021

The Complainant commenced employment with the Respondent on 7th October 2013. At all relevant times, the Complainant was engaged as a “medic” with the Respondent. The Complainant remains a permanent, full-time member of staff, in receipt of an average weekly payment of €604.71.

On 29th July 2021, the Complainant referred the present complaint to the Commission. Herein, she alleged that a former line manager engaged in a series of inappropriate actions, including allegations of sexual harassment. In denying this complaint, the Respondent denied the allegations raised by the Respondent, eventually submitting that the matter had been internally investigated with no inappropriate behavior discovered.

The matter was initially listed for hearing on 20th June 2022. On this date both parties submitted that the substantive issues were still under formal investigation by the Respondent and applied for an adjournment of the proceedings until such a time as the internal report is finalised and exchanged. While an adjournment was granted on this basis, the hearing date was used as a case-management conference whereby the Adjudicator raised issues regarding the complaint being referred in time and invited submission on this point. During a further case management conference on 24th March 2023, the Respondent confirmed that the initial draft of the report had been finalised and would be exchanged with the Complainant in the coming days. On foot of the same, a substantive hearing date was set for 31st July 2023, with the matter being finalised in that session. It is understood the that delay in issuing said report is the subject of proceedings under alternative legislation.

Both parties issued submissions in relation to the preliminary point raised by the Adjudicator in addition to the substantive matter itself. The Complainant gave evidence in support of her complaint, while the Respondent called the Complainant’s former line manager and an additional manager to give evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side. Given the nature of the preliminary issue raised, the substantive matter was heard in full, with the position regarding the same being reserved.

No additional issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Respondent submitted that in circumstances whereby the last allegation of harassment arose on 15th November 2020, and the complaint was not lodged until 29th July 2021, the matter was statute barred for the purposes of the present Act. They denied that there was any continuum of discrimination within the cognisant period of the purposes of the present Act.

The Complainant via, her representative submitted that a “continuum” of harassment existed within the cognisant period for the purposes of the present Act. In this regard it was submitted that further inappropriate action took place on 15th January 2021, 11th February 2021 & 22nd February 2021, rendering the complaint in time for the purposes of the present Act.

At the outset of the proceedings, the Adjudicator raised a preliminary issue as to jurisdiction. Therein, it was queried whether any allegations of harassment, as defined and actionable under the present Act, occurred within the relevant cognisant period.

In this regard, Section 77 (5A) of the Acts provides that,

“…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.”

Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                              if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated 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 has had a clear and adverse effect on the complainant…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.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

Regarding Subsection 5, the Court held that in considering a contention that events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum,

“…that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences were found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.”

By submission, the Respondent sought to rely on subsection 5 of section 77, in submitting that a series of separate acts constitutes a continuum that might render the earlier complaints in time for the purposes of the present Act. Having regard to the foregoing, the individual allegations must be examined in order to determine whether the same are “sufficiently connected”. In this respect, it should be noted that no finding is being made as to the allegations themselves (at this point), rather the nature of the same are being examined to determine whether they might comply with the requirements of subsection 5 and may form a continuum of discrimination.

The first allegation raised by the Complainant related to an incident that occurred on 3rd November 2020. Here, the Complainant alleged that her then line manager made a comment about her breasts prior to a function during working time. This is clearly and unambiguously and allegation of sexual harassment.

Thereafter, the Complainant alleged that on 15th January 2021, her then line manager made a lewd gesture to her, just outside their place of work. Again, this allegation clearly relates to one of sexual harassment.  The Complainant further submitted that her line manager singled her out for criticism regarding a vehicle bonnet being open while she was undertaking certain standard checks on the vehicle.

The Complainant further alleged that on 11th February 2021, the line manager in question made unwarranted and unnecessary accusations of poor performance on the part of her team and suggested that the same would be spilt in due course.  

The Complainant alleged that on 22nd February 2021, the line manager tampered with her vehicle’s internal recording device and unnecessarily criticised her work performance.

Finally, the issues above, particularly the issues regarding the splitting of the team and the tampering with the Complainant’s on-vehicle recording system were discussed with management on 1st April 2021.

In circumstances whereby the complaint was referred to the Commission on 29th July 2021, the cognisant period for the purposes of the complaint is 29th January 2021 to the date of lodgement. Having regard to the allegations raised by the Complainant, it is apparent that the two express allegations of sexual harassment occurred outside the cognisant period for the purposes of the present complaint. In this regard, to render these matters in time the Complainant must demonstrate that the later allegations, specifically those of 11th February & 22nd February, are sufficiently connected to the earlier allegations so as to create an ongoing continuum of harassment.

 In this regard, it can be noted that the complaint raised by the complaint has two distinct elements, she alleged that her former line manager engaged in sexual harassment and, separately, she took issue with her former line manager’s method of management, in particular his decision to split her team and the alleged unwarranted criticism. When directly asked, the Complainant candidly accepted that the latter set of allegations did not have an component of sexual harassment, rather the same could be more properly characterised as an interpersonal dispute and workplace grievance. This position is further evidenced by the Complainant’s initial letter of complaint, which contains two distinct headings. The first such heading, “Harassment, Inappropriate Comments and behaviour” outlines the incidents above and ceases on 15th January 2021. Thereafter, the next heading, “Unfair, undermining behaviour and intimidation” outlines the further issues experienced by the Complainant up to 1st April 2021 and does not contain any overt allegation of sexual harassment.

On 1st April the Complainant expressly raised allegations of her former line manager’s inappropriate behaviour with management. Thereafter, on 13th April 2021, the Complainant issued a formal letter of complaint outlining the allegations referred to above. Following receipt of the same, the Respondent engaged in a formal internal investigation in accordance with their internal policies.

In the matter of Cast v Croydon College [1998] ICR the UK Supreme Court held that,

“…a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.”

This case was cited with approval by the Labour Court in the matter of Beaumont Hospital -v- Petty Kaunda EDA 1930. Here, the Court held that the presentation of interview notes after the fact did not constitute a further act of discrimination as there was no such “further consideration” of the alleged discriminatory act as outlined above.

In the matter of Margaret Hannigan -v- HSE EDA2013, the Court found that an ongoing review of a potential reasonable accommodation for the Complainant constituted a further act of discrimination for the purposes of the present Act.

Having considered the above authorities, I find that the present matter may be distinguished from the above. The initial complaints raised by the Complainant related to sexual harassment by her former line manager, with the latter complaints relating to alleged unfair and undermining treatment. While the Respondent engaged in a lengthy internal investigation thereafter, no allegation of discrimination or harassment arises as a consequence of the investigation itself. In the authorities cited above, the “further consideration” by the Respondent was itself an allegation of discrimination which served to create a continuum of discrimination for the purposes of subsection 5.

Having regard to the foregoing, I find that no act which could be considered a continuum of discrimination or harassment occurred between the dates of 29th January to the date of referral, the cognisable period for the purposes of this complaint. In such circumstances, and in the absence of any “reasonable cause” to extent the same, I find that the impleaded Act does not provide jurisdiction for consideration of complaints prior to this date.

I find that the Respondent did not discriminate against or harass the Complainant during the cognisable period.

Harassment, Continuum, Cognisable Period