FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : PUBLIC APPOINTMENTS SERVICE (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - KEVIN RODDY DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Complainant appealed a decision of an Equality Officer No. DEC-E2010/024 to the Labour Court on the 13th April 2010 in accordance with Section 83 of the Employment Equality Acts 1998 to 2008. A Labour Court hearing took place on the 6th October, 2010. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Mr. Kevin Roddy (“the Complainant”) against the decision of an Equality Officer in a claim alleging he was subjected to victimisation by the Public Appointments Service (“the Respondent”) contrary to Section 74 (2) of the Employment Equality Act 1998 and 2008 (The Acts).
At the outset of the Equality Officer’s hearing an issue arose over whether the Complainant has submitted his complaint within the time limit provided for under Section 77(5) of the Acts and proceeded to hold a preliminary hearing on that matter. However, in the course of his investigation the Equality Officer held that the Complainant had failed to establish aprima faciecase of victimisation and consequently held that the issue of timeliness became moot. It was against that decision that the Complainant appealed to the Court.
Background
The Complainant applied for a position as Senior Executive Planner with Donegal County Council in July 2006. The Public Appointments Service undertook the recruitment and selection process. On 8th September 2006 he was informed that he was not among those candidates short-listed to attend for interview. As the Complainant was dissatisfied with the outcome, he sought to challenge the Respondent’s decision. On 13th September 2006 he submitted a series of question under the Freedom of Information (FOI) Acts, 1997 and 2003 to the Respondent, one of which specifically sought information on the composition of the Selection Board. By letter dated 13th October 2006, the Respondent supplied details of the names and positions held by all four persons on the Selection Board. One of the names gave the Complainant serious cause of concern (hereinafter referred to as “Ms. A”) and he sought further information on details of any contacts made between Donegal County Council (in particular Ms. A) and the Respondent concerning the criteria for selection.
After he received full details of such contacts, he wrote to the Respondent to inform them that the presence of Ms. A on the Selection Board may have given rise to a conflict of interest which he submitted may not have been made known to the Respondent. In his letter he said:
- “I have had issues in the past with both [Ms. A] and Donegal County Council.”
In his letter he proceeded to recount details of a case he took in Northern Ireland where he had previously worked with Ms. A and“matters of equality and fair treatment resulted in a case to the Equality Commission”,which he subsequently withdrew for financial reasons.
Matters with Donegal County Council seemed to have related to “staffing levels and treatment of staff arising from over working”.
Summary of The Complainant’s case:
The Complainant submitted that he had been victimised by the Respondent in that included in the composition of the Selection Board was a person whom he had made a previous complaint against to the Equality Commission in Northern Ireland. He submitted that the manner in which Donegal County Council nominated Ms. A onto the Selection Board suggested a strategy to favour candidates already in employment or at least to influence the outcome and given the history between himself and Ms. A and separately with Donegal County Council, the fact that none of this was declared meant that his application was at an unfair advantage which amounted to victimisation by the Respondent.
He submitted that had he not been subjected to prejudice against him he would have been successfully short-listed for interview due to the level of his qualifications, experience and skills. This contention he submits is further strengthened by the lack of evidence on the methodology used to assess candidates for the short-list.
Summary of The Respondent’s Case
Ms. Kathy Smith B.L on behalf of the Respondent submitted that the Equality Officer was correct in holding that the Complainant had failed to make out aprima facieclaim of victimisation.
The Respondent held that in accordance with normal practice, it set up a selection panel comprising of individuals external to the client body - Donegal County Council, and of a member nominated by the client itself. It stated that it is normal practice when notifying panel members of a date for short-listing candidates, to bring to their attention the following element of caution:
- “It is always possible that having agreed to assist, you may subsequently become aware of an issue which could be seen to cause a conflict of interest for you in your role in this competition. The Public Appointments Service fully accepts that such occurrences are inevitable from time to time. To ensure that the selection process remains independent, objective and fair you should advise this Office of any such matters at an early stage, so that alternative arrangements can be put in place should that prove necessary. Your co-operation in this matter is greatly appreciated.”
In this case, no possible conflicts were drawn to the Respondent’s attention by any members of the Board.
The Respondent disputed the claim of victimisation, holding that in order for there to be such a claim there must be adverse treatment of an employee by his or her employer. It argued that there was no relationship of employer/employee between the Respondent and the Complainant and in such circumstances the allegation of victimisation made cannot be sustained. Secondly, it held that it cannot be held accountable if it was not even aware of the facts grounding such a claim and therefore could not be held to be “a reaction”by the Respondent. It held that it took all reasonable steps to advise members of the possibility of any conflicts of interest and the course of action they should take in the event of such a conflict.
The Law Applicable
- Victimisation is defined by Section 74(2) of the Acts, as follows:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
- (a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act ,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
- (a) a complaint of discrimination made by the employee to the employer,
(a) The Complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),
(b) The Complainant was subjected to adverse treatment by an employer and,
(c) The adverse treatment was in reaction to the protected action having been taken by the Complainant.
The Law enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such“measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”
The question the Court must first examine is whether the Complainant has taken an action of a type referred to at Section 74(2) of the Acts (a protected act).
The Complainant informed the Court that a number of years previously he had taken a complaint of discrimination on grounds of gender against his employer at the time in Northern Ireland. Ms. A, referred to above, was named in these proceedings as she also worked for the Northern Irish employer at the time. Subsequently he withdrew the proceedings, for financial reasons. The Complainant submitted that this action - the initiations of proceedings - comes within the definition of “victimisation” as contained in Section 74(2)(b “ any proceedings by a complainant,”.
To be encompassed within the ambit of section 74(2)(b)“proceedings” must come within the definition asdefined by Section 2 under Interpretations:
- “proceedings” means—
- (a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and
(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference,
- (a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and
Under the Act the Complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts. The Court is being asked to accept that the initiation of proceedings of a complaint of discrimination against a distinctly separate employer in another jurisdiction could constitute a “protected act” and be combined with his alleged adverse treatment by the Respondent in this case. There clearly is no causal connection between the taking of proceedings against another employer and his non-selection in a job competition conducted by the Respondent in this case. Therefore, in the Court’s view the facts as presented do not come within the ambit of a protected act and consequently do not come within the intendment of Section 74(2) of the Acts.
Conflict of Interest
Based on the undisputed facts of this case the Court accepts the Complainant’s contention that the presence of Ms. A on the Selection Board clearly constituted a conflict of interest, however this of itself does not amount to victimisation within the statutory meaning of the Acts.
Determination.
For all of the reasons referred to above the Court is satisfied that the within complaint of victimisation is unsustainable in law. The decision of the Equality Tribunal is varied and substituted with a determination that the Complainant was not subjected to victimisation within the meaning of the Acts.
However, while the Court accepts that the Respondent had procedures in place designed to safeguard against a conflict of interest arising they clearly were not effective in this case, therefore the Court is of the view that the procedures should be reviewed to ensure that a similar situation to one described above does not happen in the future.
The Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th October, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.