NATIONAL EDUCATION WELFARE BOARD
(REPRESENTED BY IBEC)
This dispute involves a claim by Mr. Eric Plunkett that he was discriminated against by the National Education Welfare Board on grounds of family status, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when it failed to appoint him to the position of Regional Manager following a selection process in September/October, 2003.
2.1 The complainant was notified on 15 October, 2003 that he was successful in his application for the post of Regional Manager following interview. He met with officials from the respondent on 22 October, 2003 during which he raised issues about the post and his family circumstances. He alleges that following this meeting the respondent engaged in a process which constitutes discrimination of him on grounds of family status, which ultimately resulted in it withdrawing its offer of employment to him on 31 October, 2003. The respondent rejects the allegations that it treated the complainant less favourably on grounds of family status contrary to the Act and states that it withdrew its offer of employment because the complainant was not in a position to commence employment with the Board on the date required and under the terms offered.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 2 March, 2004. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Submissions were received from both parties and a Hearing of the complaint took place on 20 June, 2006. A small number of points arose at the final hearing which required further clarification and this information was furnished by the complainant on 21 July, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant applied for the post of Regional Manager with the respondent in response to advertisements in the national newspapers in early June, 2003. He completed an aptitude test and interview for the post in September, 2003. On 15 October, 2003 he was informed (by telephone) by Ms. C, an employee of the respondent, that his application had been successful - subject to a satisfactory medical report, references and security (Garda) clearance. He states that in the course of this discussion a number of issues emerged which, in his view, required further examination/discussion and he subsequently arranged to meet with officials from the respondent on 22 October, 2003 when he was in Dublin to undergo the necessary medical examination. The complainant states that in the course of this meeting specific issues relating to the start date for the post, relocation matters and salary were discussed.
3.2 The complainant states in the course of the meeting he confirmed his previous comment to Ms. C that his preference would be to take up the post in January, 2004 in light of the fact he was required to furnish one months notice to his current employer and the time he estimated it would take the respondent to obtain the necessary clearances (especially Garda clearance). He accepts that the respondent was anxious to have him commence as soon as possible and he agreed to attend induction training on 14/15 November, 2003 and to do all he could to facilitate an early start following acceptance of the contract. The complainant adds that he enquired of the respondent whether or not relocation expenses were available as his son was doing his Leaving Certificate the following summer and he would be unable to move his family to Galway until then and he would incur considerable expense in that regard. He states that he was informed emphatically that no such expenses were available. Finally, the complainant states that he was informed his salary would be the 3rd point from the top of the Regional Manager Incremental Payscale - which was the same as Assistant Principal Officer (Standard) scale in the civil service. He adds that he enquired of the respondent what the salary would be with the impact of "benchmarking" to it and the respondent replied it was unable to do so as increases under "benchmarking" were not guaranteed and were subject to approval by external sources. The complainant states that his understanding of the situation following this meeting was that the respondent would furnish him with a draft contract setting out the terms of the post and an indication of what his salary would be with the benchmarking increases included.
3.3 The complainant states that a considerable number of e-mails between him and the respondent followed. The first of these attached a draft contract of employment in respect of another individual, although this was subsequently rectified and a draft in his own name issued. He states however, that despite constant requests the respondent failed to clarify to his satisfaction, his starting salary (inclusive of benchmarking awards), issues around transfer of his pension entitlements and confirmation that his application had been successful so as to enable him give the one months' notice he was required to give his current employer. He states that these circumstances prevailed until the respondent withdrew the offer of employment to him on 31 October, 2003. He contends that the respondent's continued failure to clarify issues for him was a deliberate attempt on its part to place obstructions in his way following the meeting of 22 October, 2003 when he raised his personal circumstances and constitute less favourable treatment of him on grounds of family status.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against him on grounds of family status. It accepts that it made a verbal offer of employment to him on 15 October, 2003. It further accepts that the complainant raised the issues stated by him in the course of the meeting of 22 October, 2003 but contends that it addressed each and all of his concerns as they arose. It states that the complainant was unwilling to accept the post on the terms and conditions clarified and it therefore withdrew the offer of employment to him on 31 October, 2003. It submits that its actions in this regard were reasonable in the circumstances and do not constitute discrimination of the complainant on the ground of family status contrary to the Act.
4.2 The respondent states that the post for which the complainant was interviewed was Regional Manager for its West/North West region. This post was based in Galway and the complainant resides in Sligo. It adds that at the meeting of 22 October, 2003 the complainant stated he would be unable to relocate his family to Galway until summer 2004 as his son was doing his Leaving Cert and he asked the respondent to allow him to work from his home for a period and defer his move to Galway. The respondent states it advised the complainant it was unable to accede to his request because the respondent was a newly established body and it was important that the Regional Manager was located in the regional office from the outset to (i) lead the development of the service, (ii) establish the necessary structures and supports to plan and deliver the service, (iii) to manage and oversee the work and staff within the region (the vast majority of whom were newly appointed) and (iv) ensure that the overall strategic goals of the organisation were pursued from the outset. The respondent's Board had decided operations should commence on 17 November, 2003 and all activities, including the complainant's appointment, were working towards that date. It adds that it further advised him that relocation expenses were not available for any staff members. The respondent submits that its decision not pay the complainant relocation expenses or accede to his request to defer his starting date were based on factors unconnected with his family status and do not therefore constitute unlawful discrimination of him.
4.3 The respondent accepts that it sent the complainant a draft contact of employment in the name of another employee and submits that this was regrettable and was rectified as soon as possible. It argues however, that this error could not be construed as less favourable treatment of the complainant. It further accepts that a subsequent draft contract contained an inaccurate rate of pay (which had been referred to at the meeting of 22 October) and submits that this administrative error, whilst again regrettable, also cannot be regarded as less favourable treatment of the complainant. It states that three subsequent and separate e-mails from the Director of Corporate Services (dated 28, 29 and 30 October) to the complainant make it clear what the starting rate of pay is. The respondent adds that it was unable to indicate the relevant incremental pay scale for the complainant inclusive of the future "benchmarking" increases as those awards were not automatically applied and were subject to independent external verification under Sustaining Progress. It states that it endeavoured to respond to the complainant's queries as they arose and when he failed to accept the position on the terms offered by the deadline of 30 October, 2003, it withdrew the offer of employment on 31 October and offered the position to the next person on the Panel. It submits therefore that the manner in which it handled the complainant's offer of employment does not constitute discrimination of him on grounds on grounds of family status.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the National Education Welfare Board discriminated against Mr. Eric Plunkett on grounds of family status in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when it failed to appoint the position of Regional Manager following a selection process in September/October, 2003. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 It is the well settled practice of both this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination which occurred before the coming into force of the Equality Act, 2004 (18 July, 2004) similar to that applied in gender based claims. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the ground cited. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 It is common case between the parties the complainant was informed, in the course of a telephone conversation with Ms. C on 15 October, 2003, that the post was his subject to suitable references, a satisfactory medical and security clearance. I note the complainant's evidence that in the course of these discussions Ms. C advised him the respondent was anxious to have him commence before January, 2004 - a date he had suggested as realistic having regard to his assessment of how long it would take the respondent to dispose of the preliminary issues (set out above) and the need on his part to furnish his current employer a months' notice. The meeting of 22 October, 2003 was then arranged to examine this and the other issues detailed by the complainant i.e. salary, transfer of pension and removal/relocation expenses. It is accepted by the parties that these issues were discussed at that meeting - the removal/relocation expenses were not available and the complainant was informed accordingly, the respondent re-iterated its position that an early start date was necessary, although this remained an issue for the complainant, the respondent (Ms. N) indicated a starting rate of pay which was subsequently changed by the Director of Corporate Services to the first point on the relevant incremental payscale and the respondent refused to calculate the relevant payscale applying future rounds of the benchmarking awards. An erroneous draft contract of employment issued to the complainant on 24 October, 2003 and this prompted further communication between the parties. Having examined the documentary evidence submitted by the parties I am satisfied that the respondent had replied to each of the queries raised by the complainant by 30 October, 2003, although it is clear that the content of those responses was not agreeable to the complainant. When he failed to accept the position on the terms indicated the respondent withdrew the offer of employment on 31 October, 2003, which in my opinion it was quite entitled to do.
5.4 The post in question was situated in Galway and the complainant accepted in the course of the hearing that he was aware of this. The complainant states he was required to give his current employer a months' notice and in any event he wished to "wind up" a number of issues for his successor before leaving and this would take some time. The respondent set out its reasons as to why it required the new Regional Manager to take up the post by 17 November, 2003 and I am satisfied that it was reasonable for it to expect the incumbent to comply with the deadline in those circumstances. The fact that the complainant was required to give his current employer a months' notice was a contractual matter between him and it and it was unreasonable on his part to expect the respondent to accommodate him on this issue. The fact it chose not to do so was not connected, in my opinion, to the complainant's family status, rather it was based on a business imperative to commence the service on 17 November, 2003. In my view it was open to the complainant to seek the agreement of his current employer to a shorter notice period and I note his comment at the hearing when asked this question that he hadn't done so "because he didn't think it was reasonable to expect him to do so".
5.5 Section 16 of the Employment Equality Acts, 1998 and 2004 provides as follows:
"(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position......, if the individual --
(a) will not undertake.... the duties attached to that position or will not accept ..... the conditions under which those duties are, or may be required to be, performed,...."
It is clear that the respondent offered the complainant the post and that it made every effort to clarify those issues which were of concern to him. It is also clear that the conditions under which the post was originally and indeed finally offered were not agreeable to the complainant. He therefore exercised his right not to confirm acceptance of the terms before the deadline of 31 October, 2003 after which the respondent exercised its right to withdraw the offer. Having evaluated the evidence submitted by the parties I am not satisfied that the respondent's treatment of Mr. Plunkett was connected in any way with his family status. I note that the eventual appointee to the position also had the same family status as the complainant (she had children) and took up the position on the same terms and conditions as offered to the complainant except in one area - she was appointed on the 3rd point of the incremental payscale. This is consistent with the situation which was originally communicated to the complainant by Ms. N at the meeting of 22 October, 2003 but was subsequently altered by the Director of Corporate Services in the course of her dealings with him. The respondent stated that this confusion arose as a result of an erroneous interpretation of the relevant Circulars by the Director and I accept this as the case. The fact that Ms. N subsequently corrected this error cannot be construed as less favourable treatment of the complainant on family status. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination and his claim cannot therefore succeed.
6. DECISION OF THE EQUALITY OFFICER
6.1 I find that the complainant has failed to establish a prima facie case of discrimination and his claim cannot therefore succeed.
2 August, 2006