Complainant

Respondent

Anonymised Parties

A Complainant

A Financial Services Company

Representatives

  Self – represented

Represented by Kiwana Ennis BL, instructed by Addleshaw Goddard (Ireland) LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00056555-001

08/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00056555-002

08/05/2023

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

CA-00056555-003

08/05/2023

Employment Equality Act

Preliminary Issue – Time limits

The complainant submitted his complaint form on 8 May 2023; he refers to the most recent date of alleged discrimination occurred on 29 April 2022. The complainant maintains that as he was living outside Ireland, he experienced significant difficulties completing the online complaint form and hence the late lodgement of same.

Substantive Complaint

The complainant is a Cypriot national. He states that having passed the interview process, he was offered a job with the respondent.  He states that he had originally disclosed his past criminal conviction to the recruitment agency prior to the arranging of interviews with potential employers including the respondent. The complainant states that after passing his interviews successfully and been offered employment by the respondent company, the respondent initiated background checks which the complainant states that he welcomed and volunteered to provide further disclosures and assistance when requested during the onboarding process. The complainant maintains that the respondent had proceeded with the onboarding process and that 4 days after the employment date, the respondent noticed tabloid publications about him. The complainant contends that his criminal conviction was due to be spent/expunged in less than 8 weeks from his starting date and that he would have a clean criminal record again. The complainant maintains that the respondent discontinued the complainant’s employment when it became aware of information in the public domain with regard to his past conviction.

The complainant states that having regard to the Irish Criminal Justice (Rehabilitative Periods) Bill 2018, amendment Part 4 endorsed by the Employment Equality Act 1998, the respondent has acted against personal characteristics and impeded the complainant from securing employment by treating him less favourably than any person with no past conviction and/or with Irish nationals with similar backgrounds during the onboarding process and probation period of his employment with the respondent. The complainant also states that the respondent has stereotyped him and shared data about him with the recruitment agency, potential employers and with the Gardai.    

The complainant also cites the Criminal Justice (Spent Convictions and Certain Disclosures) Act, 2016 (2016 Act) in advancing his claim of discrimination against the respondent.  The complainant claims that he was discriminated against by the respondent in terms of the Employment Equality Act, 1998.

Industrial Relations Act

The complainant has lodged a dispute under the Industrial Relations Act. In this regard, he outlined that he had been unfairly dismissed. He also lodged a dispute stating that he was constructively dismissed by the respondent.

The respondent states that the complainant received a job offer from the respondent by letter dated 31 March 2022 which was subject to suitable references. On 29 April 2022, prior to the complainant having commenced employment with the respondent, this job offer was revoked. It was submitted that this occurred because (a) the respondent discovered that the complainant had a criminal conviction which he had withheld on his application form and because (b) his references were not contactable and therefore could not be confirmed.

The respondent submits that in relation to the complainant’s criminal conviction in July 2019, the complainant pleaded guilty before a Named Crown Court in England to charges of attempting to communicate sexually with a 12 year old girl; attempting to incite that child to engage in sexual activity, attempting to cause that child to look at images of sexual activity and attempting to meet that child after sexual grooming. The respondent states that the complainant was sentenced to 16 months in prison, placed on the sex offenders’ register for 10 years and made the subject of sexual harm prevention order for 10 years.

Preliminary Issues

Employment Equality Act

The respondent submits that in relation to the Employment Equality Acts, the claim is out of time as it was lodged over 12 months after the most recent date of discrimination identified by the complainant as 29 April 2022. It was submitted that in such circumstances the WRC has no jurisdiction to hear the within claim. The respondent states that secondly, the complainant has not identified any protected ground under which he is claiming he was discriminated against. It was submitted that as no such ground applies in this case, the complainant’s claim under the Employment Equality Acts, as well as being out of time is also misconceived.

Industrial Relations Act

In relation to the claims under the Industrial Relations Act 1969, the respondent states that the complainant never commenced employment with the respondent and therefore does not come within the remit of the 1969 Act not being a “worker” as defined in the 1946 Industrial Relations Act. The respondent states that the complainant’s offer of employment was revoked prior to any commencement. It was submitted that the complainant did not enter a contract of employment with the respondent because that agreement was conditional on him providing suitable references which the complainant failed to do. The respondent states that the complainant had not commenced employment with the respondent when he met representatives of the respondent on 29 April 2022. It was submitted that a dismissal did not occur because the complainant was never employed by the respondent. The respondent submits that the complainant does not fall within the definition of “worker” under the Industrial Relations Act and therefore the WRC has no jurisdiction to hear this complaint.  

Substantive Complaint

The respondent company offers financial and advisory services across various sectors. It was submitted that between September 2021 and February 2022, it received many applications from the complainant for various roles. As part of the recruitment process, the complainant was required to complete a questionnaire which sought information on a range of issues such as the complainant’s notice period, salary expectations and his visa status. One of the questions also dealt with criminal records and in responding to this, the complainant confirmed that he had not been convicted of or charged with any offence or subjected to an investigation in Ireland or any other jurisdiction within the last 7 years pertaining to any such offence that attracts a prison term of six months or more and/or a fine of €500 or more. The respondent states that the complainant completed the questionnaire on 17 separate occasions between September 2021 and February 2022. It was submitted that on 17 separate occasions, the complainant confirmed that he had not been convicted of or charged with any offence or subjected to an investigation in Ireland or any other jurisdiction within the last 7 years pertaining to any such offence that attracts a prison term of six months or more and/or a fine of €500 or more.

The respondent states that the complainant’s applications were not successful. However, in or around March 2022, the complainant applied for a role in one of the respondent’s departments in a Named location. On that occasion, rather than applying directly to the respondent again, he submitted his application for this position through a recruitment agency. It was submitted that by letter dated 31 March 2022, the complainant was offered a managerial position in one of the respondent’s departments situated at its office in the Named location. His employment was subject to suitable references and his commencement date was to be agreed between the parties.

It was submitted that the complainant was residing in Cyprus when he accepted the offer of employment. Both parties exchanged emails in April 2022 about the complainant relocating to Ireland. The respondent states that in order to minimise his travel time and for cost efficiency, the respondent’s internal recruitment consultant recommended to the complainant that he fly from Cyprus into A Named Airport via Heathrow London. However, the complainant told the respondent that he had already informed the Cypriot authorities of his flight path to Ireland which did not include a layover in the UK. The respondent states that the complainant expressed a reluctance to change his flight path to Ireland which did not include a layover in the UK. It was submitted that the complainant expressed a reluctance to change his flight path as it “may raise further questions” from the authorities. As a result of this, the respondent agreed to the complainant’s preferred travel route. The respondent states that it had attempted to contact the referees provided by the complainant but all attempts failed. This was brought to the complainant’s attention via emails and telephone conversations. It was submitted that the complainant reassured the respondent that the references would be forthcoming. The respondent submits that in good faith, it instructed their travel company to book the complainant’s preferred airline route and he arrived in Dublin Airport on 27 April 2022 before travelling by bus to the Named location.

The respondent states that while the complainant was on route to Ireland on 27 April 2022, the respondent discovered that contrary to what the complainant had confirmed previously to the respondent, the complainant had a criminal record. The respondent submitted documentation with regard to the relevant extract from the UK sex offenders’ register. The respondent states that on 29 April 2022 and prior to the complainant commencing employment, the respondent’s internal HR business partner and a divisional partner within the respondent met with the complainant on MS Teams and disclosed their findings to him in relation to his conviction in 2019. The respondent states that it was explained to the complainant during that meeting that due to his criminal record and in circumstances where he had not provided a suitable referee, the complainant could not commence employment with the respondent and a follow up letter issued to the complainant on 29 April in this regard. The respondent states that it arranged and covered to cost of the complainant’s return bus journey to Dublin Airport and flight to Cyprus on 30 April 2022. His hotel accommodation costs in the Named location were also paid for by the respondent.

The respondent submits that its position is that the complainant’s complaint under the employment equality legislation is not covered by any of the relevant discriminatory grounds and that the complaints under the Employment Equality Acts are out of time. It was submitted that by the complainant’s own admission, the most recent date of alleged discrimination occurred on 29 April 2022, whereas he only submitted his complaint form to the WRC on 8 May 2023. The respondent asserts that the test for deciding if an extension should be granted for reasonable cause pursuant to section 77 (5) (b) of the Employment Equality Acts is immaterial and the complaint is statute barred. The respondent states that in those circumstances, the WRC has no jurisdiction to hear the within complaint.               

The respondent requests that the Adjudication Officer deal with the preliminary matter first and foremost and reach a conclusion on same before deciding whether the substantive complaint be heard. It was submitted that the case law firmly supports such an approach. In Bus Eireann v. SIPTU PTD048/2004 the Labour Court, relying upon the judgment of O’Higgins CJ in Tara Exploration and Development Company Limited v. Minister for Industry and Commerce [1975] IR 242 stated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required”. In Becton Dickinson Penal Limited v. Goring UDD213, the Labour Court held that complying with the statutory time limit goes to jurisdiction and that in circumstances where the claim was statute barred (on the basis that no reasonable cause to permit an extension of time between six and 12 months had been identified), the Labour Court could not proceed to hear the substantive matter. In Donegal Meat Processors v. Donal Gillespie (UDD2114) the Labour Court followed the same approach by dealing with the time limit issue as a preliminary matter that grounded jurisdiction. In Stapleton v. Acushla Ltd v. The Embassy Rooms ADJ-00037399, the Adjudication Officer again dealt with the jurisdictional issue without referring to the substantive matter finding that there was no jurisdiction to investigate the claim in circumstances where the complainant lodged his claim over 12 months after he had resigned.

 The respondent states that without prejudice to the foregoing, in respect to the substantive complaint, section 85A of the Employment Equality Act 1998 as amended sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In the case of Eileen Owens v. Guinness Storehouse Limited (ADJ-00014909), the Adjudication Officer held that in order to ascertain if a complainant “has established a prima facie case, a three-tier test is employed: “First, the complainant must establish that s/he is covered by the relevant discriminatory ground. Second, s/he must establish that the specific treatment alleged has actually occurred. Third, it must be shown that the treatment was less favourable than the treatment which was or would have been offered to another person in similar circumstances not covered by the relevant discriminatory ground.”

It was submitted that in his complaint form, the complainant did not choose any of the protected grounds on which his claim of discrimination against the respondent is based. Instead, he argues that his 2019 conviction was due to be expunged in July 2022 which he would appear to be arguing somehow nullified his obligation to bring the conviction to the respondent's attention during the application process. The respondent asserts that the complainant seeks to rely upon the Irish Human Rights and Equality Act 2014 which is a piece of legislation that is centered around public sector bodies and is not relevant to the complainant’s discrimination claim. It was submitted that the complainant also cites the Criminal Justice (Spent Convictions and Certain Disclosures) Act, 2016 (2016 Act) in advancing his claim of discrimination against the respondent but that Act does not apply to any conviction for a sexual offence.

The respondent states that the complainant refers in his complaint form and in his email to the WRC on 15 June 2023 to the Criminal Justice (Rehabilitative Periods) Bill 2018 which is proposed to amend and extend the 2016 Act. However, the Bill has yet to be enacted and is currently before the Houses of the Oireachtas. The respondent submits that therefore, it has no legal effect. The respondent states that the complainant has not identified any protected ground on which basis he is claiming he was discriminated against. The respondent submits that the complainant has not made out a prima facie case of discrimination and his claim under the Employment Equality Acts is therefore misconceived.

The respondent states that the complainant was never an employee of the respondent as his job offer was revoked prior to his commencement on the basis of his failure to disclose his criminal conviction and failure to satisfy the references requirement.

The preliminary issue to be determined is whether or not I have jurisdiction to hear the complaints.

Industrial Relations Act

Section 13(1) of the Industrial Relations Act, 1969 provides that the WRC may investigate an existing or anticipated trade dispute involving “workers within the meaning of Part VI of the Principal Act” save as to any dispute concerning rates of pay, annual leave, or working hours. The Principal Act is the Industrial Relations Act, 1946 and “worker” under Section 4 of that Act is defined as: “…any person…who has entered into or works under a contract with an employer…”

In relation to the Industrial Relations Act, 1969, the complainant has argued that he was both unfairly dismissed and constructively dismissed by the respondent. Having carefully examined the claims, I find that the complainant’s offer of employment was revoked prior to any commencement. I note that the offer of employment was conditional on the complainant providing suitable references which he failed to do. In the circumstances, I am satisfied that the complainant does not fall within the definition of “worker” under the Industrial Relations Act. In those circumstances I find that I have no jurisdiction to hear these complaints. 

Employment Equality Act

The complainant lodged a complaint of discrimination against the respondent on 8 May 2023 under the Employment Equality Act 1998. In the complaint form, he stated that the most recent date of alleged discrimination occurred on 29 April 2022. 

Section 77(5) of the Employment Equality Act 1998 states “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.”

“Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech, the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.” 

“It is the Court’s view that in considering if reasonable cause exists it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Claimant at the material time.  The Claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability that had those circumstances not been present he would have initiated the claim on time. In the context in which the expression reasonable appears in the statute it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In the case of A Bank v A Worker EDA104, the Labour Court stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay was an “irreducible minimum requirement”.

It is clear from the authorities that the test places the onus on the complainant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  

In the within matter, the complainant lodged his complaint form on 8 May 2023 wherein he refers to the most recent date of alleged discrimination occurred on 29 April 2022. The complainant states that at the material time, he was living outside Ireland and had difficulties completing the online complaint form and hence the late lodgement of same.

Having carefully examined the matter, I find that the complaint was not lodged within the 12 month period from the date of the alleged contravention therefore even If I was to extend the time pursuant to Section 77(5), the complaint would still be a further week out of time.  Consequently, I find that the within complaint under the Employment Equality Act, 1998 is statute barred and in those circumstances, I do not have jurisdiction to hear the complaint.

I find that I have no jurisdiction to hear the within complaint as the claim is statute barred. 

Employment Equality Act, Time-limits, Industrial Relations Act