Complainant

Respondent

Anonymised Parties

A Clinical Psychologist

A Healthcare Provider

Representatives

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-00049286-001

22/03/2022

The Complainant is a clinical psychologist, in August 2021 the Complainant was working in an acute hospital and applied for a job with the Respondent who operates community-based services.

This role was in as Senior Clinical Psychologist involved in the rollout of a new team and service. It would have been a promotion for the Complainant.  

The Complainant applied for the role and was interviewed. Post interview she was told that she had been the best candidate and that she needed to organise a series of references. In particular she was told she needed to have a reference from a particular consultant psychiatrist, Dr A, in her current employer.

After a period of 6 weeks passed the Complainant was told by the Respondent’s HR Manager that the references were insufficient. At this point she had been asked to seek and had received references from her current manager. She was told that she was not successful in securing the post. The Complainant found this to be professional embarrassing and personally upsetting. She was entirely at a loss as to what had happened.

The Complainant submitted FOI and DSAR requests, which the Respondent initially refused. She then retained a firm of solicitors who wrote to the Respondent on these issues and the Respondent provided the references.  This information was provided towards the end of January 2022. On the 22nd of March the Complainant submitted complaints under these acts alleging discrimination in getting a job on the basis of family and gender.

Unfortunately, not long after these events the Respondent’s HR Manager became unwell and was unable to work for a matter of years while she received extensive treatment. The Respondent successfully sought a number of adjournments on this basis. The WRC ultimately decided to list the case for hearing in 2025 and refused the Respondent’s continued request for postponement.

It the course of the hearing it was accepted that the Respondent’s HR Manager was not the decision maker when it came to the recruitment process and that these decisions are made primarily by clinical management and not by HR. As such I am at a loss as to why these adjournments were ever necessary and why the Respondent sought them.

The Complainant gave evidence under affirmation.

She points to the fact that the Respondent’s standard reference forms require a current employer to identify how much parental leave has been taken and that had identified her as a parent in the course of the pre-employment checks. She also notes that Dr A who she was required to get a reference from voluntarily wrote in that the Complainant had taken maternity leave even though that wasn’t a requirement of the form. She was given a negative reference in some respects by that Dr A who was not her line manager.

She was successful in a competitive application and interview process but after her family status came to light, she was told she was not going to be considered further. She does not accept the reason given by the Respondent that she has “vague references” and in any event this could have been remedied by way of further enquiries or references. She submits that she has established a prima facia case of discrimination, and the Respondent has failed to offer any evidence to rebut that.

The Respondent disputes discriminating against the Complainant. She was never offered a role and was only ever considered for a role.

After she was not offered the role, a different clinical psychologist applied for and was successfully appointed following an interview and a reference check. This was also a woman who had young children and actively took parental leave for a number of days each week, post her appointment.

Preliminary Issue Time Limits

Section 77 of the Employment Equality Act provides that:

(5) (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.

The Respondent has submitted that the complaint is outside of the above time limit in that she was told on the 22nd of September 2021 that she was not successful in applying for the role. She submitted this complaint on the 22nd of March 2022, and this was one day outside the above limit.

The Complainant submits that she only received notification in writing on the 23rd of September and this is when time should run from. I disagree. The alleged breach of the act which I am considering arose when she was told she had been refused the role. This occurred on the 22nd  of September 2021.  

The Complainant has sought an extension of time. While she had sought legal advice she was not in receipt of legal advice at the time of the submission. She had retained a solicitor to progress her DSAR and FOI requests in late 2021/early 2022 rather than progress an Employment Equality Act claim. She was busy with a new role at the time as she had succeeded in getting promoted but with a different organisation to the Respondent. She also points out that she had not received the relevant references and other documents from the Respondent until late January 2022.

The Respondent submits that there is no reasonable cause for delay identified by the Complainant. She simply made a mistake regarding time limits she was clearly aware of. They refer to Ryanair DAC and Jarosalv Strand UD/18/149 which similarly considers a delay of one day in circumstances where the Complainant is fully briefed of the relevant facts and has no actual reason for the delay. The Respondent further refers to the test set out in the decision of Cementation Skanska and Carroll.

In the circumstances I must agree with the Respondent. While a delay of one day is slight, I can see no reason which objectively affords an excuse for that delay and therefore cannot extend the time period. The delay in the Respondent providing the reference documents had ceased to be relevant as a number of weeks had passed since they had complied with the DSAR.   

I find that the complaint was submitted outside the time limit required by Section 77.5.a and as such I do not have jurisdiction to consider it further and dismiss it.