Complainant

Respondent

Parties

Nice Marie  Tarugo

St Vincents University Hospital

Representatives

Peter Leonard BL instructed by Chris Dowley, Solicitor  

Mark Comerford 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-00061826-001

27/02/2024

The Complainant stated in her complaint form to the WRC that the Respondent gave her a poor reference which affected her prospects of future employment. She asserted that this was discriminatory.

In her written submissions to the WRC, the Complainant stated that although her employment with the Respondent ceased on 8 March 2023, she was not made aware that she was discriminated against until 28 August 2023 when she learned that the Respondent provided details, that she said were discriminatory, as part of a reference to a perspective employer.

At the hearing, her legal representative sought to amend the name of the Respondent from that of her former employer listed on the complaint form to that of the government body who allegedly funds the Respondent.

The Respondent stated that the Complainant had resigned from her position effective 8 March 2023 and denied that they discriminated against her on any ground.

The Law

The Act sets out the definition of “employer” and “employee” as follows:

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

employee", subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons   

The Act further states:

Discrimination by employers etc.

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be F19[offered,]

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not F19[materially different, or]

F20[(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.]

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

Preliminary Points:

1.       

In deciding if I can amend the name of the Employer listed on the complaint form to that of the government body that funds them, as requested by the Complainant’s legal representative, I note that the Act outlines the definition of employer and employee above.

It is evident from a review of the Complainant’s contract of employment that she was an employee, and that the Respondent was the employer for the purposes of the Act. Given that, in accordance with the legislation set out above, a complaint can only be taken by an employee against his or her employer, I find that the Complainant can only take a case against the named Respondent.

2.       

It is also clear from the legislation set out above that I cannot consider any acts of discrimination alleged by a former employee against a former employer that occurred after the end of the employment relationship. I cannot therefore consider the alleged acts of discrimination surrounding the reference that was provided by her former employer after the Complainant’s employment relationship ended on 8 March 2023.

In relation to any acts of alleged discrimination that may have occurred during the employment period, namely on or prior to 8 March 2023, I have regard to section 41(6) and section 41(8) of the Workplace Relations Act, 2015 which provides as follows in respect of time limits: 

“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.” 

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

Considering the foregoing, I find that this complaint was presented out of time and note that no reasonable cause was presented to explain why an extension of time should be allowed.

Overall, I find that I do not have jurisdiction to hear this complaint because it concerned allegations around acts that occurred after the employment relationship ended. I should also highlight that the complaint was referred outside of the cognisable period in respect of any acts that may have occurred during the Complainant’s employment. 

I find that I do not have jurisdiction to hear this complaint against the named Respondent for the reasons set out above.