O'CONNOR AND NORTH TIPPERARY COUNTY COUNCIL (REPRESENTED BY LGMSB)
This dispute involves a claim by Mr. Fergus O'Connor that his complaint of discriminatory treatment against North Tipperary County Council was referred within the time limits prescribed at section 77 of the Employment Equality Act, 1998 on the basis that the last act of alleged discrimination took place on 21 December, 2001.
2.1 The complainant applied for a post at Senior Executive Engineer level in North Tipperary County Council and was interviewed for the post on 21 June, 2001. The complainant was unsuccessful and formed the view that he had been discriminated against on grounds of age contrary to the Employment Equality Act, 1998. However, he did not refer a complaint of discrimination to the Office of the Director of Equality Investigations (the Equality Tribunal) until 18 June, 2002. The respondent submits that the claim is out of time as it was referred outside of the six month time limit prescribed at section 77(5) of the Employment Equality Act, 1998.
2.2 The posts which were the subject of the interview in June, 2001 were filled immediately after the interview by those candidates recommended by the Interview Panel. However, formal appointment to the posts was not made until 21 December, 2001, when the same personnel were appointed. The complainant submits that this constitutes a new act of discrimination on the part of the respondent and that his claim is therefore within time.
2.3 In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under the Act. The Equality Officer decided to dispose of the question of the correct date of discrimination for the purposes of the claim as a preliminary issue. Written submissions were received from both parties and a hearing took place on 16 December, 2003. A number of issues emerged at the hearing which required clarification and gave rise to further submissions and correspondence from the parties subsequent to the hearing. Final confirmation that the parties were satisfied that the Equality Officer was in possession of all relevant information from their perspective was received on 19 March, 2004.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant applied for a post at Senior Executive Engineer level in North Tipperary County Council and was interviewed for the post on 21 June, 2001. The posts resulted from the Local Government Restructuring Agreement "Better Local Government". The complainant was advised by telephone that same afternoon by the County Manager that he was unsuccessful. The Interview Panel recommended seven candidates for appointment and these candidates were assigned to the posts. Subsequently, on 21 December, 2001 these appointments were formalised and they were backdated with effect from the June date. The complainant argues that as the appointments were not formalised until 21 December, 2001 - when the necessary Manager's Orders to give legal effect to the appointments were completed - the actions of the respondent on that date constitutes the most recent occurrence of the discrimination, thus bringing referral of him claim within time. In support of his contention on this issue he refers to the decision of the Equality Officer in Reynolds v Limerick City Council1 in which the Equality Officer set out a number of possible dates of possible discrimination.
3.2 The complainant contends that the respondent did not conduct the selection and appointment process in accordance with the mechanisms agreed under "Better Local Government" (BLG) and that the posts which were eventually filled by the candidates selected at interview were not posts which formed part of the BLG package. He argues that this raises issues surrounding the legality of the appointments. The complainant states that shortly before the interviews took place in June, 2001 some discussions took place (within staff and union circles) about the BLG posts and how they might be filled, although priority seemed to be focused on the number of posts to be extracted from the process. The complainant states that the personnel who were selected from the interviews were effectively acting as Senior Executive Engineers between June, 2001 and December, 2001 when their appointments were formalised and these arrangements were not legal.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent notes that the complainant referred his claim to the Equality Tribunal on 18 June, 2002. It states that interviews for the posts at Senior Executive Engineer were held on 21 June, 2001 and that the complainant, along with the other candidates, were advised of the outcome of that process by the County Manager that afternoon. This information was subsequently confirmed in writing to the unsuccessful candidates, including the complainant, on 9 July, 2001. On foot of the interviews seven candidates were considered suitable for appointment. These personnel were assigned to duties at Senior Executive Engineer level shortly after the interviews. The respondent submits that this process was consistent with the approach outlined at paragraph 7.4 of Department of Environment and Local Government Circular Letter LG(P) 9/00 of 10 August, 2000 which governed implementation of staff issues under BLG. The appointments were not regularised at that time as the respondent was awaiting confirmation from the local trades unions that the BLG package was acceptable to its members. This confirmation was received by the respondent on 6 December, 2001 and the appointments were ratified on 21 December, 2001, with retrospective effect to 21 June, 2001. The respondent adds that no further consideration of the interview process or its outcome was conducted in December, 2001 and the same seven personnel who had been assigned in June were appointed to the posts on 21 December. It submits that any alleged act of discrimination on its part could only have arisen on either of two dates - 21 June, 2001 in respect of the outcome of the interview process, or 9 July, 2001 when the complainant was formally notified in writing of the results of the selection process. In either event, referral of the complainant's claim exceeds the six month time limit prescribed in the Act and consequently this Tribunal does not have jurisdiction to investigate the substantive issue.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me in this case is what date might constitute the occurrence, or the most recent occurrence, of any alleged act of discrimination, so as to facilitate calculation of the six month time limit prescribed at section 77(5) of the Employment Equality Act, 1998 and thus determine whether or not Mr. O'Connor's claim was referred within time. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties.
5.2 Section 77(5) of the Act provides that:
" .... a claim for redress in respect of discrimination or victimisation may not be referred .....after the end of the period of six months from the date of the occurrence, or as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.".
Therefore a claim of discrimination must be referred to the Equality Tribunal within six months of the most recent alleged incident of discrimination. In the instant case the complainant presented for interview on 21 June, 2001 in respect of posts at Senior Executive Engineer level. In the course of the hearing he confirmed that this was the only occasion he presented for interview during the selection process which ultimately resulted in seven other employees being appointed to posts at that level. The complainant confirmed that on the afternoon of 21 June, 2001 he was advised by telephone by the County Manager that he had been unsuccessful. The complainant seeks to rely on the decision of the Equality Officer in Reynolds v Limerick City Council2 in which the Equality Officer set out four alternatives as possible dates of discrimination in that case as follows:
(i) Date of interview when the decision was made as to which candidates were suitable;
(ii) Date of letter to complainant informing him that he was unsuccessful in his application;
(iii) Date of receipt of letter at (ii) above by complainant
(iv) Date of appointment of the successful candidates.
5.3 In the instant case the Interview Panel made its decision on 21 June, 2001. This is the first possible date of discrimination. Whilst the complainant cannot recall receiving written confirmation of the outcome of the process, the respondent furnished the Equality Officer with a copy of a letter it issued to unsuccessful candidates on 9 July, 2001 in that regard. I am satisfied, on balance, such a letter issued to the complainant on that date which provides the second possible date of discrimination as suggested in Reynolds. Consequently, it appears reasonable to conclude that the third possible date of discrimination (the date of receipt of the letter by the complainant) would be 10 or 11 July, 2001.
5.4 The final possibility, the date of appointment of the successful candidates, is most relevant in this case, for if it constitutes the last occurrence of any alleged act of discrimination, then the complainant's case was referred within time. The respondent states that the candidates selected by the Interview Panel were assigned to Senior Executive Engineer duties almost immediately - it furnished the Equality Officer with a copy the Interview Panel's Recommendations, signed by all three members of the Panel and dated 21 June, 2001. This document also contains an instruction from the County Manager (also dated 21 June, 2001) to proceed with the appointments. The evidence of the complainant is that the successful candidates were operating at Senior Executive Engineers from shortly after the interviews until 21 December, 2001. I am satisfied therefore that the respondent acted on foot of the outcome of the interviews very shortly after the results were known.
5.5 The respondent states that the appointments were only ratified on 21 December, 2001 because it was awaiting formal agreement from the local trades unions that the BLG package was acceptable to their members. It adds that the appointments made in June were therefore temporary in nature pending receipt of this agreement. During the course of the hearing the complainant stated that his own trades union balloted members around 19 October, 2001 on the issue. The respondent furnished a copy of a Memorandum dated 6 December, 2001 from the local trades union confirming acceptance of its members to the BLG package. A copy of Department of Environment and Local Government Circular Letter LG(P) 9/00 of 10 August, 2000 was also furnished to the Equality Officer. I am satisfied that the respondent was not in a position to formally appoint personnel to the posts until after 6 December, 2001. It did so on 21 December, 2001 and the question to be answered is whether or not the actions of the respondent on that day constitute an act of unlawful discrimination.
5.6 In Cast v Croyden College3 the UK Court of Appeal held that ".... a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a further consideration of the matter and is not merely a reference back to a previous decision.". Applying this rationale to the instant case the decision of the Interview Panel was taken on 21 June, 2001 and seven candidates were considered suitable for appointment. Shortly afterwards these personnel were appointed to the grade of Senior Executive Engineer on a temporary basis and were carrying out the duties appropriate to that grade. The respondent states (and it is confirmed by the complainant) that the appointments of these same seven personnel were ratified on 21 December, 2001, with retrospective effect to 21 June, 2001. The complainant confirmed at the hearing that neither he nor these seven employees competed in another interview for the posts. I am satisfied that the actions of the respondent on 21 December, 2001 did not involve any new
consideration or re-consideration of the selection process or its outcome and it was merely a formalisation or regularisation of the decision taken on 21 June, 2001. It follows that the events of 21 December, 2001 do not constitute the "most recent occurrence"4 of any alleged act of discrimination on the respondent's part.
5.7 In light of my comments in the preceding paragraphs I find that the date of the most recent occurrence of any alleged act of discrimination which might be argued in this case to be 10 or 11 July, 2001. The complainant's case was referred to this Tribunal on 18 June, 2002 and is therefore referred outside of the six month time limit prescribed at section 77(5) of the Act. Consequently, this Tribunal has no jurisdiction to investigate the claim. Before concluding I note the complainant's comments in relation to the procedures used by the respondent in the selection process and the resultant impact of those procedures on the legality of the appointments. These issues are not relevant to his claim in the instant case, which concerns the most recent occurrence of discrimination for the purposes of the Act and are, in my view, more appropriate to an industrial relations forum.
6. DECISION OF THE EQUALITY OFFICER
I find that:
(i) the actions of the respondent on 21 December, 2001 do not constitute the most recent occurrence of any alleged act of discrimination on its part;
(ii) the most recent occurrence of any alleged act of discrimination on the respondent's part would be the date on which the complainant received formal written confirmation that he was unsuccessful in the interview process (10 or 11 July, 2001);
(iii) in light of (ii) above the six month time limit prescribed at section 77(5) of the Employment Equality Act, 1998 would expire on 10 January, 2002 at latest and as the complainant did not refer his complaint to the Office of the Director of Equality Investigations until 18 June, 2002, his complaint is out of time.
21 June, 2004
4 section 77(5) of the Employment Equality Act, 1998.
3  ICR 500