THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013-090
A Prison Officer
(represented by Sophie Carglin B.L. instructed by Brennan & Co. Solicitors)
Irish Prison Service
(represented by Aoife Carroll B.L. instructed by the Chief State Solicitors)
File Reference: EE/2010/876
Date of Issue: 8th August 2013
Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment, 6(2)(f) - age, Section 6(2)(g) - disability Section 8(1)(d) - promotion- acting up, Section 74(2) - victimisation, Time Limits Section 77(5), Section 85A - prima facie case.
This dispute involves a claim by a complainant that he was discriminated against by the above named respondent on the age and disability grounds, in terms of section 6(1) & 6(2)(f) and (g), contrary to section 8 of the Employment Equality Acts in relation to selection for an acting panel.
The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 19th November 2010, alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on the 28th January 2013 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 5th July 2011 and from the respondent on the 19th August 2011. A hearing on the complaint was held on the 19th of April 2013, the 4th and the 14th of June 2013.
2 Summary of the Complainant's case
2.1 The complainant is claiming that he was discriminated against when the respondent failed to place him on a panel for the position of acting Assistant Chief Officer. The complainant said he is employed as a prison officer since 1998. He initially worked as a Clerk in Wheatfield Prison and acted up as a clerk 11 there for almost 18 months. He was then transferred to Mountjoy Prison. On the 18th of June 2010 a staff notice was posted inviting applications from the staff to form a panel to act up to Assistant Chief Officer (ACO). The complainant applied by letter dated 1st July 2010 setting out his career in the in the Prison Service. The selection was made by a selection panel without interview. The 17 staff selected for the panel was notified on the 5th of August 2010 and the complainant was unsuccessful. The panel was withdrawn pending appeals from the unsuccessful candidates. The complainant said that he could not understand why his name was not on the panel as he was one of the more senior officers and he believed he would get one of the posts given his experience. At that stage he was in the prison service for 12 years and had never received a negative report. He spoke to Deputy Governor A, who was chair of the selection panel, to find out why he was not placed on the panel. He said that Deputy Governor A told him that he should have asked a couple of months ago for a move from the Medical Unit. He went on to say that he did not know why the complainant expressed an interest in the post as he was working in the Medical Unit with the 'dinosaurs' and that he was no 'spring chicken' himself. Deputy Governor A also told the complainant that his health had been a factor in the selection panel decision not to put him on the panel. The complainant had a malignant melanoma cancer in 2009 and on his return to work following treatment he requested to be put in the Medical Unit so he would not have to climb stairs. He was on sick leave from May 2009 and returned to work on the 15th of September 2009. The complainant told Deputy Governor A that he had been cleared by his doctor to return to work and had acted up as an ACO since returning to work following his treatment when detailed to do so.
2.2 The complainant submitted a formal written appeal to the Governor on the same day, which is the 5th of August 2010. In that letter, he stated he wished to appeal the decision to exclude him from the position on health grounds, he went on to outline that he had been asked to supervise on numerous occasions since his return to work. He said that he has supervised in the Main Prison as well as the medical and separation unit and the general office. He pointed out that he had worked in the prison service for 12 years and that he had worked in virtually every role and post as an officer and as a supervisor in Mountjoy. He said that he had demonstrated his commitment to the job and the ability to be innovative in to the introduction of new procedures. Up to this he said that he had never a bad assessment. In the most recent competitive competition for ACO in 2008 he had scored 41/45 in the performance assessment and he got through to the final interview. While recovering from his illness he completed his degree and graduated with a Bachelor of Science Degree in Psychology and Introduction to Law and he was now studying for a Law Degree.
2.3 The complainant said that Deputy Governor A told him that he reviewed his application but that he was not successful and he was not given any reason for this decision. He was then informed by letter dated 7th of September 2010 that his appeal was heard on the 6th of September and it was not successful. The panel of the successful applicants was published again on the 15th of September 2010 and there was one other successful applicant added to the panel. The complainant wrote to the Governor on the 22nd of September 2010 expressing concern that he was excluded from the panel because of his health and asking that the decision be reviewed. He also requested the names of the selection board and the names of the appeal board, the criteria and guidelines used in the selection process, the minutes of all the meetings in relation to the selection and appeals process and the reasons for the omission from the panel. The complainant states he did not receive a response to this letter and he wrote again on the 17th of November 2010 seeking the same information. He said that he was never provided with any information in relation to the selection process. In evidence he said that Deputy Governor A nor the Governor gave him reasons other than the one for the exclusion from the panel.
2.4 The complainant subsequently applied for the position of Assistant Industrial Supervisor (AIS). The assessment provided stated that he was not qualified and that he only merited a satisfactory rating. The complainant appealed the rating. He was subsequently interviewed for the position and was placed 13 on the panel and he was eventually appointed in May 2013.
2.5 The complainant submits in relation to the acting ACO panel that all of the successful applicants were younger than him some as much as 20 years. The majority of the successful candidates had much less service than he had and a number had only 4 years service. He said that the successful applicants were placed on the panel in order of seniority and if he had been placed on the panel he said that he would have been number 1. He pointed out that the candidates placed 3rd and 4th on the panel had failed the examination component of the most recent competitive ACO competition in 2008. In that competition he scored 106 out of possible 120 in relation to service and relevant experience and he got through to the final interview. From his discussions with Deputy Governor A, the complainant said that he formed the view that working in the medical unit was considered to be something of a backwater for promotional purposes. It was submitted that acting up in a supervisory role gives a person valuable training and experience in the role of ACO and it gives a clear competitive advantage to officers who have been selected in promotional competitions. It was further submitted that the respondent appears to have used the consistory process to make the selection and this process has been criticised by the Labour Court in the past. In this competition the respondent has failed to provide any documentation relating to the selection criteria or feedback to the complainant which is in stark contrast to the feedback and interview notes normally provided after promotional interviews. The respondent has failed to provide objective justification for the decision and there was a complete lack of transparency in the process.
2.6 The complainant also submits that he was victimised following the referral to the Equality Tribunal. He referred to a number of incidents which he says constitute victimisation. He said that he was no longer asked to act up. Up to the mediation on the case he said that he was called on to act up for full days but since then he has been asked on an hoc basis for an hour or two. He also submits that he was micro managed following the referral of the complaint of discrimination. He said that on the 26th of November 2010 he was on escort duty at the Connolly Hospital Blanchardstown and on the 19th of December 2010 he got a letter from the Governor seeking an operational report on the prisoners behaviour and movement within the hospital, the names of the staff who relieved for meal breaks and the names of the prison officers who relieved him from the post the following day. He provided the report as requested as did the other 2 officers who accompanied him. He does not accept that he did not telephone the prison staff to update them on the escort duty. He said that he telephoned on 4 occasions during the night and early morning. He said in the past he was never requested for such a report.
2.7 On the 14th of January 2011 the complainant was detailed to escort the Inspector of Prisons around the prison. He was informed that the Inspector had expressed concern about the abusive behaviour directed at him and his assistants by some prisoners. The complainant said that she was asked to write a report to the Governor about the visit which he did. The complainant said that he did not hear the abusive behaviour because he was asked to stay out of earshot when the Inspector spoke to the prisoners. He said that his primary role was to ensure the personal safety of the Team.
2.8 On the 2nd of March 2011 he attended a prearranged medical appointment with his consultant in relation to the ongoing treatment for the cancer. He said he felt unwell following this treatment and he telephoned the detail office to let the respondent know. He said that as a result he was reported to the Governor for failing to report for duty. Despite the fact that he had provided a report to the Governor explaining in detail the medical reason for his absence he was required to forfeit 3 hours accumulated leave. He was told that his explanation was noted but that he should have contacted the Chief Officer on duty to inform him of his illness and to request time off.
2.9 On 3rd of March 2011 the complainant's rostered shift was 10am to 10pm. For the period 8pm to 10pm he was detailed to escort a prisoner in the Mater Hospital and he was due to finish work at 10pm. On arrival he was told that it was unlikely that the prisoner would be seen before 6am the following morning. The complainant had an early appointment for a medical procedure the following morning and was required to fast beforehand and for this reason he had not volunteered for night duty. He said that around 20:40 he telephoned the ACO on duty to inform him that he was scheduled to finish at 10pm and he needed to be released from duty at that time as he had a medical appointment the following morning. The ACO informed him that he had nobody to relieve him. The complainant said that he telephoned a number of occasions and he eventually told the ACO that he would have to go off duty sick if there were no staff to relieve him because of the need to eat something before he commenced his fast at midnight for the medical procedure the following morning. The complainant said that he was relieved by another staff member at 11.30 and he returned to the prison and clocked out at 11.40. The complainant had his medical procedure the following day and he spoke to the officer on duty after the procedure and discussed in detail what happened the previous evening. When he reported for work on Monday the 7th of March he was not listed for duty. He reported to the detail office and he was informed that he was reported off sick. On further investigation he discovered that it was reported that he had gone off duty sick from his escort duty in the Mater on the 3rd of March. The complainant said that he was upset that he had been reported off sick and he wrote a letter to the Governor. In that letter he pointed out that he was recovering from cancer and was undergoing a procedure the following morning which he needed to fast for and had requested that he finish at 10pm on completion of his rostered shift. There was no response from the Governor.
2.10 On the 8th of October 2011 he was asked by an acting supervisor who was standing in for an ACO to supervise in the medical unit while he went for his breakfast. About 20 minutes later the ACO returned from his breakfast and the complainant handed over to him. The complainant said that he was asked to explain why he was in the office. On the 26th of October 2011 a report was sent to the Governor stating that the ACO had given charge of the medical unit to a prison officer (not the complainant) and the complainant had made an entry in the report book that he taken charge of the medical unit for 20 minutes . The ACO entry stated that the complainant was not the ACO's replacement. The complainant said that he had to make a report about it and that he was upset that he was reported to the Governor for acting up as supervisor when he was asked to do so. There was no further action about the incident.
2.11 In 2012 the complainant applied to work in the detail office. There were two panels formed (an odd and even side) to work on a week on and a week off basis. The complainant was the first on the even side but staff lower down the panel were called ahead of him and he was never called. He said that he spoke to the Chief Officer and requested an opportunity to be placed in the detail office when it was his turn because he wanted experience and training in the area. He said that he had not been placed on any occasion and all the other staff on the list got an opportunity. The complainant felt it was a specialist area and a good area to get for promotion purposes. In April 2013 he was detailed to take charge of the separation unit from 8pm to 10pm. He said that he took up the duty at around 7:30 to allow the officer on duty to go home. At about 7.45 he was taken off that duty by the ACO and sent back to the medical unit in a non supervisory role without any explanation.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against in the selection process. It was stated that age was never a criteria or part of the selection process for the Acting ACO position. The respondent did not seek dates of birth and it was not considered by the selection group established to select the successful applicants.
Due to shortages of officers at ACO grade, which is a supervising officer grade in Mountjoy, management advertised on the 18th of June 2010 seeking applications from staff in order to set up a panel to act up as ACOs as required. It was not a promotion but a temporary acting up position until the competition for promotion for ACO could be held. As part of the selection process staff were asked to apply in writing and state relevant experience or other information. There was no mention of age and neither was the applicants asked to provide their date of birth. The Governor established the selection group consisting of 2 Deputy Governors, 1 Chief Officer Class 1, and 2 Chief Officers Class 2 to select the successful applicants. There was a discussion among the group on the merits of each candidate. The criteria considered were attendance record, punctuality, length of service, duty performance and suitability. There were no notes taken or scores used. Forty six members of staff applied and seventeen staff were found suitable and placed on the panel to act up as required. The staff placed highest on the panel were acting up as ACOs full time with the remainder acting up as required.
3.2 The complainant spoke to Deputy Governor A on the 5th of August 2010 regarding his omission from the panel. DGA told him that the decision was based on the general consensus of the selection group. He was also told that one of the issues which informed the selection group's decision was the fact that he had looked to perform his duties in one part of the prison (the medical unit) which is considered as a less challenging environment. The complainant told DGA that he looked to work in this area because of his health problem. DGA said that he was not aware of this and advised him that the role of acting ACO might be detrimental to his recovery. The complainant assured DGA that he was fully recovered and capable of performing all his duties. He then advised the complainant that he could appeal the decision to the Governor.
3.3 The complainant lodged an appeal on the basis he was excluded from the panel on health grounds. The Governor asked the selection panel to reconvene and to reconsider his application. The selection board considered the appeal and came to the conclusion that he was not excluded from the panel on health grounds. The complainant was issued with a letter on the 7th of September 2010 informing him that his appeal was not successful. On the 22nd of September the complainant submitted an appeal to the Governor in relation to his exclusion from the published panel where he again raised issues about his health. The appeal was reviewed by the Governor who affirmed the decision of the selection group. DGA said that he spoke to the complainant on the 18th of October 2010 and informed him of the outcome of the appeal, the names of the selection panel, the criteria used in the selection process and the reasons for his omission from the panel. He also advised him that he could speak to the Governor in relation to the omission from the panel but the complainant did not avail of the opportunity to do so. On the 17th of November the complainant notified the respondent by letter that he believed he was discriminated against on the age ground. He enclosed form EE2 and requested a response.
3.4 The respondent denies that the complainant was discriminated against on the age ground. They accept that all of the successful candidates were younger than him but they do not accept that this is evidence of age discrimination as age was not a criterion in the selection process. The respondent denies that there were any remarks made to the complainant in relation to "dinosaurs" working in the medical unit and that he was no "spring chicken" himself. They further deny that working in the medical unit was viewed as a backwater for promotional purposes and staff working there has been successful in competitions in the past. It was also denied that DGA raised the issue of health when spoke to him about his omission from the panel. And furthermore they deny that it was a factor taken into account by the selection panel. Two of the selection board gave evidence Deputy Governor A and Governor B in relation to the selection process applied.
3.5 The consensus of the selection board was that the complainant was not suitable for appointment to the role of acting ACO on this occasion having considered his candidature in comparison to other candidates and the selection criteria. It was also pointed out that previous performance assessments or ratings in other competitions were not considered as relevant by the selection board as part of the selection process. The fact that the complainant had acted for 18months as clerk 2 and was placed on a panel for promotion to Clerk 2 in 2006 was not significant as this is an administrative role and the ACO role is significantly different and more challenging role. Also the role of Assistant Industrial Supervisor (AIS) where there had been competition for assignments and the complainant was placed on the panel, is a specialist post and is concerned with training prisoners and is also a significantly different role to that of ACO.
It was accepted that the complainant had acted up as an ACO on a number of occasions during 2010 before the selection of the panel. In response the respondent submitted that there was an agreement with the union following the expiry of the last ACO panel that acting up positions were given out on the basis of seniority and the complainant qualified to act up only on that basis. He was not suitable to act up as an ACO and he could not be left in charge of the prison as he did not have the experience.
3.6 In relation to the complainant's claim that he was victimised for making the complaint the respondent submitted that the complainant was not required to act up once the panel was formed. Staff acting up are drawn from the panel and they deny that the complainant acted up on an ad hoc basis until the mediation on the complaint took place and after that he was not called on. The respondent also states that it is normal procedure to requests reports on prisoners who are taken outside the prison. It was submitted that the complaint of victimisation is outside the statutory time limit that the complainant has failed to establish a prima facie case.
4. Conclusions of the Equality Officer
4.1 The matter for consideration is whether the respondent directly discriminated against the complainant her on the age and disability grounds in terms of sections 6(1) and 6(2)(f) and (g)of the Employment Equality Acts 1998 and 2011, in contravention of 8(1) of that Act. The complainant further submits that he was victimised contrary to Section 74 of the Acts. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.
4.2 The first matter I have to consider is whether the complaints in relation to disability and victimisation are validly before me and if the complaints were referred within the statutory time limits. At the first hearing of this case on the 19th of April 2013, in clarifying the case before me, I asked if there were complaints of discrimination on the age and disability ground before me. Having read the submissions, it appeared to me that the complainant was complaining of discrimination on both grounds even though the disability box was not ticked. The complainant's barrister submitted that the case related to discrimination on the age and disability grounds and that a complaint of victimisation was also before me and further submissions were also provided. Counsel for the complainant said that while the disability box was not ticked on Form EE1, but the complainant had raised his disability as the reason he was not placed on the panel in correspondence with the respondent. His health issues were also referred to in his submission to the Tribunal and victimisation was also referred in that submission. It was also submitted the victimisation only occurred as a consequence of referring his complaint of discriminatory treatment and therefore could not have been included in the form EE1. The respondent's barrister objected and stated that the respondent was only required to meet the complaint of discriminatory treatment on the age ground. Any complaint that the complainant may have had in relation to disability or victimisation is now outside the statutory time limit.
I made a ruling that I would proceed to hear the evidence and I would ask the respondent to put in further submissions in relation to the time limits issue in respect of disability and victimisation and to also address the substantive issue of discriminatory treatment on the disability ground and victimisation.
4.3 Section 77(5)(a) of the Acts provides as follows:
"Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case 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 substitutes a reference to such period not exceeding 12 months as is specified in the direction".
Section 77(6A) of the Acts provides as follows:
"For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. The referral Form EEI was received by the Tribunal on the 19th of November 2010 and the complainant was complaining about ongoing discrimination. The complainant stated in evidence that he never got a response to his appeal to the Governor despite having written to him on two occasions. It was the respondent's case that the complainant was informed verbally of the outcome of the appeal by Deputy Governor A on the 18th of October 2010. Therefore it would appear that the 6 month time for referring a complaint would have expired on the 17th of April 2011.
4.4 Further hearings of this case took place on the 4th and the 14th of June and further submissions were made on time limit issue. In a further submission from the complainant's barrister on the time limit issue for the complaint of disability and victimisation, I was referred to the decision of an Equality Officer in the case of McGinn v Board of Management St. Anthony's Boys National School DEC-2004-032 where the Equality Officer considered a complaint of victimisation where the box on form EE1 was not ticked. It was submitted that in that case the respondent submitted that the complaint was not referred on EE1 and therefore it was not referred within the statutory time limit and the Equality Officer found that it was. I was also asked to apply the jurisprudence of the High Court in the case of County Louth VEC and the Equality Tribunal  IEHC 370. It was submitted that the complainant raised the issue of his health in the appeal letters. He ticked the age box on Form EE1 and also the promotion, conditions of employment, and training and the box marked other believing that this covered his health issue. The issue of the complainant's health was also raised in the submission as was the complaint about victimisation and in the respondent's response the issue of the complainant's health was responded to and also the victimisation complaint was responded to. Counsel further submitted that the broad nature of the complaint was outlined in the form EE1 and further particulars were provided in the submission and this complies with High Court judgment in the Co. Louth VEC case.
4.5 The respondent's barrister submitted that neither the disability claims nor a victimisation claim were properly before me, in that the complainant had only claimed age discrimination on EE 1 form in respect of the failure of the respondent to appoint him to an acting ACO panel. Counsel submitted that it is very clear from the subsequent submission that age was the only matter being put before the Tribunal by the complainant and that the first time that disability or the victimisation complaints were mentioned was on the morning of the first hearing. At no stage was there a claim that the complainant was discriminated against on the grounds of disability put before the Tribunal prior to the morning of the hearing. Counsel submitted that the mere reference to disability or victimisation in the complainant's submissions is not sufficient there must be something more in the submissions to say that he was discriminated against on the disability ground in relation to the panel. She submitted that he appealed the decision of the respondent not to place him on the panel on health grounds. He subsequently made his complaint to the Tribunal and complained of age discrimination in relation to promotion and no mention was made of his health. It was submitted that the complainant has a Bachelor of Science Degree and was at the time studying for a Law Degree and given his level of knowledge he has provided no explanation for not ticking the disability box. Furthermore the complainant had the benefit of legal advice when the submissions were made to the Tribunal and no claim has been made in respect of disability. Counsel submitted that the claim on the disability ground has not been properly made and is outside the statutory time limit. It was submitted that there was no claim of discrimination on the grounds of disability or victimisation in the complainant's submissions of the 4th of July 2011 and in the further legal submission of the 24th of February 2012. In relation to victimisation it was submitted that the complainant sought to expand the nature of his claim on the morning of the hearing in a written submission and by way of oral evidence. Notwithstanding the fact the complainant had put in a number of submissions no claim of victimisation was made prior to this. These submissions only dealt with the failure to appoint him to the acting panel. The complainant has submitted no evidence as to why an extension of time should be granted and no "reasonable cause" exists to grant such an extension of time.
4.6 I was referred to the case of:
McGinn v Board of Management St. Anthony's Boys National School (DEC-E2004-032), which the complainant seeks to rely on also. Counsel submitted that this case supported the respondent's submission that the complaint of victimisation was out of time. In that case the victimisation complaint was not referenced on the EE1 Form but the Equality Officer accepted that while the word victimisation was not mentioned, the description of the incidents in the submission indicated that there was a victimisation before her which was within the statutory time limit. It was submitted that no such reference was made in the numerous submissions made in the case herein and applying the standard I could not come to such a conclusion in this case because no mention of victimisation was made in the EE1 form within the statutory time limit and the complainant has failed in his submissions to particularise the complaint in any way in the legal submissions.
4.6 Counsel for the respondent referred me to:
County Louth Vocational Educational Committee v the Equality Tribunal  IEHC 370, where Mr. Justice McGovern considered whether the Equality Officer had acted correctly in allowing a complainant to expand the complaints he had outlined in the EE1 form. It was submitted that in applying the legal principles set out in that case to the case herein, I can only have jurisdiction to hear a victimisation and disability claim "so long as the general nature of the complaint remains the same" In this case the complainant is seeking to expand the complaint beyond the age discrimination case referred on Form EE1 and therefore beyond the proper application of these principles set out by McGovern J.
4.7 I was also referred to the Labour Court Decision in the case of Department of Foreign Affairs v Patricia Cullen Det. No. EDA116 where the Court considered whether the complainant ought to be permitted to make a claim of victimisation in circumstances where no reference had been made on the complaint form and I was asked to follow the following passage from the decision:
"In the instant case the complaint made by the Complainant was one of discrimination on grounds of her sexual orientation. The new complaint was of victimisation for having brought her original complaint. That, in the Court's view, is an entirely different complaint than that which had been made originally. Furthermore, if the complaint was first made in the course of the hearing on 12th January 2010, and it related to events which occurred in or about September 2008, it was, at that point, statute-barred by operation of s.77(5) of the Act. The decision of the Supreme Court in Bank of Ireland v Connell  IR 1 is authority for the proposition that an amendment to pleadings cannot be allowed if its effect would be to permit a party to pursue a cause of action which would otherwise be excluded by the Statute of Limitations."
4.8 I was also referred to the interpretation of the Louth VEC decision in the text of Employment Equality Law (Bolger, Bruton and Kimber, Round Hall 2013) at paragraph 16-35 where it was stated:
"The decision of the Equality Officer to assume jurisdiction to investigate complaints of an employee over a lengthy period of time was upheld as lawful by McGovern J in Louth VEC on the basis that the respondent was aware of these allegations a considerable period in advance of the hearing, as the complainant referred to these in his written submissions and although the allegations were not referred to in the complaint form, they were part of the same complaint being discrimination on the grounds of sexual orientation. The inference from these comments is that if the respondent is entirely unaware of the allegations which are subsequently made at the hearing and is prejudiced by this by being unable to deal adequately with these, the Equality Tribunal or Labour Court should not assume jurisdication over such allegations.
Counsel for the respondent submitted that in applying the above dicta of McGovern J to the case herein, the complainant should not be permitted to expand the case, which he originally made, to include a claim of victimisation. The complaint made on EE1 form and in subsequent submissions was one of discrimination on the age ground. Applying the reasoning of the Labour Court in Cullen above the complainant is not entitle to raise additional allegations for the first time at the hearing. These allegations are clearly outside the statutory time limits.
4.9 I note that the complainant is complaining that he did not get on a panel for the post of acting ACO. Following the publication of the panel with 16 names on it the complainant spoke to management and as a result of that conversation he submitted a written appeal in which he stated inter alia "I wish to appeal the decision to exclude me from the panel on health grounds" The complainant again raised his omission from the panel because of concerns about his health in another letter of the 22nd of September 2010. On the 17th of November 2010 he wrote again to the Governor and referred to his letter of the 22nd of September and he said that he had received no response and again requested that the decision be reviewed. He indicated in that letter that he was discriminated against on the age ground and enclosed form EE2. The complainant then referred a complaint to the Equality Tribunal on the 19th of November 2010 on form EE1 he ticked the age box and stating that he believed he was discriminated against on the age ground as all the other officers placed on the panel were younger than him. In the complainant's submission to the Tribunal dated the 26th of June 2011 and received by the Tribunal on the 5th of July 2013, in the 3rd paragraph the complainant stated that he requested a meeting with Deputy Governor A to discuss his omission from the panel. He states that DGA expressed the view that the complainant's health had been a factor in the decision. The submission states that the complainant told DGA that he was cleared to return to work following successful treatment for malignant cancer. At the penultimate paragraph of the submission it states: "In addition the complainant since application to the Equality Tribunal has not been required to "act up" and feels that he has been informally excluded from any opportunities to "act up" and has therefore been victimised as a result of his decision to make a complaint to the Equality Tribunal."
4.10 The issues about the complainant's health raised by him in the submission dated the 26th of June 2011 were addressed by the respondent in the replying submission of received by the Tribunal on the 26th of August 2011. At page 2 of the submission the respondent stated "The Irish Prison Services denies that .....health was a factor in consideration of his candidature in this competition."
In considering whether all the incidents are properly before the Tribunal, I have applied the jurisprudence of High Court in the case of County Louth VEC v The Equality Tribunal  IEHC 370 to the facts of the case herein. Mc Govern J. stated at para. 6.2:
"I accept the submission on behalf of the respondent the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case discrimination on the grounds of sexual orientation) remains the same. What is at issue is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say, that complaints going back over a very lengthy period would have to be considered, as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
I further note that in his Judgment in Clare County Council v Director of Equality Tribunal  IEHC 303 Hedigan J. in applying the above cited paragraph stated that:-
"It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein."
4.11 In applying the above mentioned jurisprudence it cannot be said that the respondent was taken by surprise given that they had already responded to both disability and victimisation complaints raised by the complainant in the submissions. In relation to the disability complaint, I am satisfied that the generality of the complaint which was about discrimination relating to the acting panel remained the same as set out in Form EE1 and the complainant expanded on this complaint and provided further and better particulars in the submission of the 5th of July 2011. In form EE1 he refers to the failure of the respondent to put him on an acting panel for ACO and he believes it was for discriminatory reasons connected to his age. In his submission of the 5th of July 2011, he expanded on the reasons he believed he was discriminated against on the age ground and submitted that he was also told that his health was an issued when he was being considered by the selection panel. I note that the Labour Court in the Cullen case cited above accepted that the Equality Officer was entitled to investigate a complaint of victimisation in circumstances where a letter which was sent to the Tribunal by the complainant outlining an issue she had with the respondent concerning the conduct of her PMDS, but in that letter did not allege victimisation by the respondent nor did it say that she was amending her original complaint form to include victimisation. The Labour Court stated:
"Nevertheless, although not formally referred in those terms, the Court is satisfied that the facts alleged in this letter are capable of being understood as an allegation of victimisation within the meaning of s.74(2) of the Acts. The Equality Tribunal copied the letter of 26th September 2008 to the Respondent on 30th September 2008. Consequently the Respondent was on notice of the allegations contained therein and could have sought clarification from the Complainant as to the import of her letter and the purpose for which it had been sent to the Equality Tribunal.
In County Louth Vocational Education Committee v The Equality Tribunal McGovern J accepted that the Equality Tribunal was entitled to adopt relatively informal procedures in the conduct of its investigations provided that they are consistent with the requirements of natural justice. It is clear that the Equality Officer accepted that the letter of 26th September 2008 contained a complaint of victimisation which he was entitled to investigate. Moreover, it is clear that the Respondent now fully understands the gravamen of the complaint of victimisation and in the context of a de novo hearing of the matter any prejudice which the Respondent may have suffered at first instance is now cured.
Having regard to all the circumstances of this case the Court is prepared to accept that the claim of victimisation is properly before it and can be investigated de novo."
4.12 In applying this reasoning to the complaint herein, I am satisfied that the nature of the complaint of discrimination was merely expanded in the submission of the 5th of July to include disability as the reason he was not placed on the panel and this complies with the Louth VEC judgment. It is also clear that the respondent knew that the complainant believed that his health was a factor in him not being placed on the panel and this was clearly communicated to the respondent in a number of letters prior to the referral to the Tribunal. It is not factual to say that the disability complaint was first raised on the morning of the hearing on the 19th of April 2013; it is clear from the submission of the respondent that they responded to the issue of disability and victimisation in their submission of 26th of August. As per the Cullen case I am satisfied that any prejudice the respondent may have suffered as a result of believing that they were not meeting a disability or victimisation complaint has been cured as the respondent was given an opportunity to put in further submissions in relation to the issue of victimisation and disability and to call witnesses to two further hearings of the matter. I am satisfied therefore, that the complaint of discrimination on the disability ground is validly before me.
4.13 Notwithstanding my finding above and for the avoidance of any doubt in relation to whether the disability discrimination complaint has been referred within the six month statutory time limit in accordance with Section 77, I have considered whether it is appropriate to grant an extension of the time limit under section 77(5)(b). The submission of the 5th of July, which included the details of the discrimination on the disability, was received more than 6 months after the complainant learned of the outcome of his appeal which appears to be in or about the 18th of October 2010. In response to why the complainant had not ticked the disability box the complainant submitted that he believed that his health issues were included within the box marked "other". I am satisfied that the complainant has shown reasonable cause for not mentioning disability in his original referral form and as I have found above the respondent was aware that the complainant had raised the issue of his health in relation to the panel and as I have stated above the respondent could not have been prejudiced in relation to the complaint or taken by surprise by a complaint of discrimination on the disability ground in relation to the panel. Therefore an extension of time is warranted in the circumstances. I therefore grant an extension of time for referring the disability complaint under Section 77 of the Acts.
4.14 In relation to the victimisation complaint, I note that the complainant is complaining about ongoing incidents of victimisation which occurred, in particular after the matter failed to resolve at mediation, and was first raised in the submission received by the Tribunal on 5th July 2011 from the complainant. It is the complainant's case that he could not have included a victimisation complaint in the EE1 form because the alleged victimisation did not take place until after the complaint was referred on the 19th of November 2010. The complainant is complaining about a number of incidents of alleged victimisation including the failure of the respondent to ask him to act up since May 2011 and in evidence to the Tribunal the complainant said he had been removed from acting up in the Separation Unit as recently as Monday the 15th of April 2013. As the Form EE1 is not a statutory form there is no requirement for a complainant to use it to refer a complaint it is sufficient to refer to the nature of the complaint in a submission. I note that a complaint of victimisation was made by the complainant in the submission to the Tribunal of 5th July 2011 where he complained about not being allowed to act up and this was within the 6 month time limit of an alleged incident of victimisation. I find therefore that the complaint of victimisation is validly before me.
5. Discrimination in relation to the panel
5.1 I will proceed now to consider the complaint of discrimination on the age and disability grounds in relation to the acting ACO panel. It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that he was discriminated against on the above mentioned grounds. 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.
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
"(1) Where in any proceedings facts are established by or
on behalf of a complainant from which it may be presumed that
there has been discrimination in relation to her or her, it is for the
respondent to prove the contrary."
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
5.3 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts provides:
6. -- (1) For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where --
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ''discriminatory grounds'')
Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, but subject to subsection (3)
(in this Act referred to as ''the age ground''),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
Section 8 provides:
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,
Section 8(6)(c) provides
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
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.
The definition of disability in Section 2(1) of the Acts is as follows:
''disability'' means --
(a) the total or partial absence of a person's bodily or mental
functions, including the absence of a part of a person's
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of
a person's body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
(e) a condition, illness or disease which affects a person's
thought processes, perception of reality, emotions or
judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or
which previously existed but no longer exists, or which may exist in
the future or which is imputed to a person;
I am satisfied from the evidence that the complainant's medical condition comes within the above definition of disability and therefore he is covered by the disability ground.
5.4 I will now examine the manner in which the selection processes in relation to the competition was conducted by the respondent in order to establish if there is any evidence to suggest that these processes were applied in a less favourable or discriminatory manner towards the complainant on the age and disability grounds. The complainant has claimed as set out at paragraphs 2.1 to 2.5 above, the matters which he believes constituted discriminatory treatment. The respondent case is as set out at paragraphs 3.1 to 3.5 above and they deny that the selection process was discriminatory against the complainant.
5.5 The complainant stated that he had acted up as an ACO on a number of occasions prior to the competition and he was selected on the basis he was the most senior officer. He said that given his experience he could not understand why he was not put on the panel. When he requested the reasons he said that he was told that he was working with the "dinosaurs" and that he was no "spring chicken" himself. Having considered the evidence I note that one of the criteria considered by the selection board was seniority and the complainant was the most senior officer and of the 17 applicants put on the panel they all were younger than the complainant some up to 20 year. The respondent submitted that age was not a criterion in the selection process. It was submitted in the respondent's submission that the criteria applied by the selection panel were attendance record, punctuality, length of service, duty performance and suitability. Two of the selection panel also gave evidence. Deputy Governor A said that a minimum of 3 years experience was required and the successful candidates met that requirement. He said that the panel had a brief discussion on each of the candidates under the criteria above. He said that he knew the complainant and there was no issue in relation to his punctuality or attendance record. He said that the complainant seemed to work in less challenging area of the prison in the medical unit. He only took into consideration the complainant's experience in the medical unit and not his overall experience in the prison. He said that the position of ACO was a supervisory role dealing with difficult situations within the prison as well as supervising staff and he considered that the complainant was not assertive he did not excel within the prison and was hard to get to know. The other member of the selection board who gave evidence was a Chief Officer at the time and he is now a Governor (Governor B) in another prison. He submitted that the ACO role is a very responsible role within the prison. During the day there are 8 ACOs on duty one in charge of each of the 4 wings in the main prison, one in the medical unit, one in the separation unit, one in committal and discharges and one in the key room. At night one ACO is in charge of the main prison and is a key holder and there is one ACO in the medical and another in the separation units. Governor B said that they need people for the position who had experience working in the main prison as an ACO is in charge of the main prison at night, and working in the medical unit the complainant would not have gained this experience. He said that the criteria he applied in the selection process were: would the person selected be able to deal with the main prison? The selection panel believed that the complainant was not capable of doing the job and for this reason he did not get past the first hurdle and it was not necessary to discuss his application any further. In response to a question from me he was surprised to learn that the complainant had worked on the landing in the main prison in 2005.
5.6 It is clear from the evidence that the only document in front of the selection panel were the applicants written applications. In the advertisement for the post, interested staff were requested to apply in writing outlining any relevant experience or other information. The complainant's application was an A 4 typed page setting out his experience. He said that he was working for 12 years in the prison service and had acted in a supervisory capacity as a clerk 2 for over 18 months in Cloverhill and he had been successful in a recent competition and place on a panel for clerk grade 2. He also stated he had acted as a supervising officer as and when required over the past 12 months. He also stated that he had recently obtained a Bachelor of Science Degree in Psychology and Introduction to Law and he was currently studying for a Law Degree. I note that most of the other successful applicants provided much shorter letters and less detail of their experiences. It is difficult to know how the selection board would have been able to discuss the merits of each of the applicants without having each of the applicants CVs in front of them. Deputy Governor A, who was chair of the selection board, said that he knew the complainant but he admitted in evidence that he was unaware until after the selection that he had acted up as an ACO. Governor B returned to Mountjoy in May 2010 and he said that he did not know the complainant.
5.7 I note that the respondent states that there was a selection criteria as outlined above. It is surprising if there were criteria which had to be applied by each member of the selection board that there was no written record of it. It is difficult to know how it was applied by the selection board given the conflicting evidence of Deputy Governor A and Governor B and the fact that there were no notes taken or marks awarded under any of the headings. I further note that the complainant sought information (by letters dated the 22nd of September 2010 and 17th of November 2010) including the selection criteria which applied, very shortly after the selection process was completed and he was not provided with it. The selection criteria was contained in the respondent's response submission of the 18th of August 2011. I not this was a year after the selection panel met and almost a year after the complainant requested it. I will now examine those criteria as it applied to the complainant by the selection board. I note under the heading attendance record and punctuality that Deputy Governor A said that there was no problem in relation to the complainant's record in relation to these 2 headings. However Governor B said that the complainant's record in this regard was not discussed as he was eliminated at the first stage of the process, that is he did not work on the landings in the main prison. The next criterion is length of service Deputy Governor A said in evidence that he went on seniority in making the panel. I note that the complainant had over 12 year's service and 9 of the successful applicants had 4 years service or less. Therefore the complainant cannot have been ruled out under this heading. The next criteria are duty performance and suitability. I note that both members of the selection board stated in evidence that the complainant worked in the medical unit and he was not considered because that part of the prison is not considered a challenging environment. It was the respondent's case that they were only selecting applicants who had worked on the landings in any of the 4 wings of the main prison as these were the only applicants they considered suitable. I note the complainant and the successful applicants worked in the following areas:
2005 2006 2007 2008 2009 2010
compt B pool School school Library Library Library/Medical Unit
1 Welfare Welfare Showers Showers Showers Showers
2 Showers Reception Reception D2 Class
(Wing M.P) Main Gate Main Gate
3 School School D3 Class Fingerprints NUM (medical unit) fingerprints fingerprints
4 B2 class B2 class grounds Kardex B1/E1 B1class
5 D1 class D1 class D3class D2 class Kitchen & Bakery relief Kitchen & Bakery relief
6 E1 E1 D Shops relief D shops relief Base Class Base Class
7 Docas Docas Docas D1 Class Waiting Room D1 Class
8 D pool D pool D 2 class D3 class
/fingerprints Reception /fingerprints Reception/fingerprints
9 D1 class D1 class D 2 class D 2 class
10 C 3 class C 3 Class C 2 Class c 2 Class
11 B1 class A3 class/driving A3calss Reception
12 B1 class B1 class Base Class Base class
13 E1 class B3 class Reception Reception
14 B2 class A2 class Shedding Shedding
15 C3 class C3 Class C2 class C2 class
16 C Pool C1 class C1 class C1 class
17 A3 class Library A3 class A3 class
5.8 It was submitted that the reason the complainant was not placed on the panel was because he had chosen to work in less challenging areas of the prison that is he did not work on the landings in the main prison. It was submitted that the medical unit which is separate from the main prison with 60 prisoners has less challenging prisoners as they had opted for the medical unit. The prisoners would not have been sent there if they had challenging behaviour. The complainant submitted that it can be one of the most dangerous areas of the prison given that the prisoners usually have drug addiction problems and they can be quiet volatile and dangerous given that they are trying to come off drugs. He also submitted that he had worked on the landings in the main prison, he worked there in 2005 and while he worked in the school and library he had to work on the landings as these area are only open for limited hours during the day and if there is a shortage of staff in the prison the library is the first place closed. I note out of the 17 appointments made 7 were working on the landings of the main prison in either A, B, C or D wing in 2010. Deputy Governor A said that the selection board considered that people interested in promotion would be "in the thick of it" and when I asked him to explain what this meant he said that staff working on the landings would meet this requirement. Staff working in other areas such as showers, welfare, reception, the main gate, shedding the medical unit etc. would not have as a difficult a job as dealing with 60 prisoners on a landing and he would not consider staff working in these areas were "in the thick of it". I note that the person placed at No 1 on the panel worked in welfare and showers for the previous 5 years whereas the complainant had similar type of experience working in the school prison, library and medical unit for 4 years and previous to that he worked on the landings. The person at No 2 worked in showers reception the main gate and he spent one year on the landings and the person at number 3 had a similar work pattern. Applicants placed at no 5 and 8 worked in the kitchen/bakery and reception/fingerprints and those placed at no 13 and 14 were in reception and shedding respectively for the 2 years prior to being placed on the panel. Therefore I cannot accept the respondent's contention that in order to get selected to the panel a candidate had to have worked or be working on the landings in the main prison at the time of the selection.
5.9 I note the respondent's contention that no 1 on the panel had come no 80 in the ACO competition held 2008 and had not been called and this was the reason he was placed first on this panel as he was deemed suitable in that competition. The complainant stated that he passed the written part of this competition and was called for interview whereas the applicants placed on the panel at no 3 and 4 did not pass the written examination. The complainant also submitted in evidence his performance assessment rating for that competition and the Governor gave him ratings of 4 and 5 under the various headings and recommended that he was highly suitable for promotion to the grade of ACO. I note that one of the reasons Deputy Governor A gave for not selecting the complainant is that he lacked assertiveness and under this heading of the performance assessment he scored 5. I note that between March 2010 and July 2010 the complainant acted up as an ACO on at least 9 occasions in a number of units including the medical unit, keys office and the separation unit. I have not been provided with any evidence that the complainant carried out his duties of acting up other than in a satisfactory manner. Neither have I been provided with any evidence that the complainant's performance as a prison officer deteriorated to such an extent since his performance assessment in 2008 that would deem him as unsuitable for placement on the panel. I note also that three of the successful applicants had no experience of acting up as a supervisor. I am of the opinion that the selection panel has not provided any substantive reasons to support their contention that they found the complainant unsuitable for appointment to the panel. It seems to me that the merits of the complainant's application were given little consideration, given the selection panel was not aware of the salient fact that the complainant had acted up as an ACO despite the fact that it was clearly stated in his letter of application which was before them.
5.10 The complainant claims that he was discriminated against because of his age and in his evidence he states that all the candidates were younger than him and some by as much as 20 years. He also submits that there were discriminatory remarks made about his age, Deputy Governor A referred to the staff in the medical unit as "dinosaurs" and referred to him as "no spring chicken" which the respondent denies. The complainant was 48. The ages of the successful applicants ranged from 29 to 46: 1 was 46; 6 in the age range 40 - 44; 9 in the age range 35 - 39; and 1 was 29. The age range of the 35 applicants were as follows:
Age Range No of Applicants No of successful applicants % of successful applicants within age range No. of successful candidates within age range as a % of no of applicants
45 -49 4 1 25% 3%
40 - 44 9 6 67% 17%
35 - 39 14 9 64% 26%
30 - 34 5 0 0 0
25 - 29 3 1 33 3
I am satisfied that the ages of the successful applicants reflect a tendency to appoint younger applicants. If you were in the age bracket of 40 to 44 you had a 17% chance of success compared with a 3% chance in the age bracket of 45 to 49 and in the bracket 35 to 39 you had a 26% chance of success. Therefore if a candidate was in the age bracket of 35 to 44 a person had a 65% chance of success compared with a 54% chance of success if you were in the age bracket of 40 to 49.
My function is to consider whether the criteria set for the selection process was in any way discriminatory and if the process was tainted by discriminatory treatment of the complainant. I am satisfied that there is evidence to support such a contention. I am not satisfied that the complainant's application was appropriately considered against the criteria. The complainant who was the oldest candidate was required by the criteria to have been working on the landings in the main prison at the time of the selection process in order to get on to the acting panel and no such requirement was made of 10 other applicants who were not. In O'Halloran v Galway City Partnership EDA077, the Labour Court stated:
"Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board  NI 38 ;  IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise."
I am satisfied that the criteria as applied to the complainant were applied inconsistently in comparison to how it applied to the successful applicants. His experience was not given the same weight as the experience of other applicants and his experience in acting up as an ACO was completely ignored. The Labour Court in considering whether there was age discrimination in the filling of posts in the case of Portroe Stevedores and Nevins, Murphy, Flood Det. No. EDA051 stated:
"Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a "significant influence" (see Nagarajan v London Regional Transport  IRLR 572, per Lord Nicholls at 576)."
The Labour Court went on to say:
Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.
In considering the selection I have also taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill EDA0817 where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result".
5.11 It is clear that the selection process was not transparent and it is difficult to know what process was followed. I note the complainant submitted that if a proper selection process was applied as happened in the ACO competition in 2008 he would have gained an extra 50 marks for having a degree. It is clear given the total lack of regard for where the complainant worked and for his experience and qualifications, that "an adequate appraisal or fair assessment" of the complainant's "attributes" was not undertaken. In applying the above principles I am satisfied that there is evidence of unfairness in the selection process and a "manifest irrationality" in the result. I am satisfied therefore from the surrounding circumstances that the complainant was discriminated against on the age grounds. Having assessed the evidence carefully, I have found the complainant's evidence more consistent than the evidence given by the two witness of the respondent. For this reason I have concluded that the discriminatory remarks in relation to age were made to the complainant when he raised the fact that he did not get on the panel. I find therefore that the complainant has established a prima facie case of discrimination on the age ground which the respondent has failed to rebut.
5.12 The next matter I have to consider is whether the complainant was discriminated against on the disability ground. The complainant states that Deputy Governor A told him that the selection panel had concerns regarding his health. Deputy Governor A said that he did not know the complainant had cancer and neither did any member of the selection board. He said that the complainant told him about the cancer on the day he discussed the outcome of the panel with him which was the 5th of August 2010. He accepted that he said to the complainant that he was surprised that he was applying for the ACO post because it is a stressful position which could impact on his recovery. I note the complainant appealed in writing to the Governor the outcome of the competition on that same day on the basis that he was excluded from the panel on health ground. I accept this letter as corroboration of the complainant's evidence in relation to the conversation he had with Deputy Governor A in that inter alia he was not considered for the position because of his health. I note that the published panel was withdrawn. The respondent's evidence is that the selection board met on the 6th of September 2010 to hear the complainant's appeal on the health grounds but his appeal was not successful. A new panel was published on the 7th of September and one new name was added. It was submitted that this person was successful originally but his name was omitted from the panel in error. Deputy Governor A said that the new information about the complainant's health was not put to the selection panel. He said that the same information that the panel had originally was reconsidered. I note the complainant put in a 3 page appeal. He said that he was appealing the decision to exclude him from the panel on health grounds and he outlined that he was cleared to return to work following treatment for cancer and set out that he has been required to supervise on numerous occasions since his return and he also set out his career and achievements in the prison service. It is clear that this letter was not put in front of the selection panel and also the information that Deputy Governor A had in his possession concerning the reason the complainant was working in the medical unit. It is also evident from Deputy Governor A testimony that he had concerns about the complainant's health and it is clear from this even if he had known when the selection panel met first he would not be recommending him for the panel because of these concerns. It is also clear that he did not make any enquires from Chief Officer C in the Detail Office, who was in charge of the detail office and a member of the selection panel, about the status of the complainant's health and the reason he worked in the medical unit.
5.13 There is a conflict of evidence in relation to when the selection board became aware of the complainant's health issues. I found the evidence of the complainant far more consistent than the evidence of the two members of the selection board who gave evidence. They both gave different evidence in relation to some vital matter in relation to the selection process to how the selection was made one said that the complainant was considered under all the criteria and the other stated that he was ruled out at the first hurdle because he was working in the medical unit. Also there was a difference in relation to whether the selection board met again to reconsider the complainant's appeal. On the other hand, the complainant gave cogent evidence in relation to the feedback he received from Deputy Governor A and I note he immediately raised the issue of his health as the reason he was not selected in a letter to the Governor which I have accepted above as corroborative evidence. From the evidence I cannot accept that the selection board did not know of the complainant's illness particularly given that Chief Officer C who was on the selection board was in charge of the attendance and sick leave records. Having accepted the complainant's evidence as being more consistent, I am of the view that the complainant's disability was a factor in the selection process and this was communicated to him in the feedback he got on the reasons he was not selected. I am satisfied therefore that the complainant has established that he was treated less favourably in the selection process than another person who did not have a disability was treated in similar circumstances. I find that the complainant has established a prima facie case discriminatory treatment on the disability ground which the respondent has failed to rebut.
5.14 The next matter I have to consider is victimisation. Section 74(2) provides:
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
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a
(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
(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 under such repealed enactment, or
(g) an employee having given notice of an intention to take any
of the actions mentioned in the preceding paragraphs.
5.15 After the complainant presented his case the respondent's barrister requested that I dismiss the complaint of victimisation under Section 77A as frivolous and vexatious. I ruled against the respondent on this application as I wanted to hear the respondent's response on the matters raised by the complainant in relation to victimisation before coming to any decision.
5.16 The complainant submits that he was victimised as set out above. In relation to the escort duty at Blanchardstown Hospital, I am satisfied that the complainant was not victimised when he was asked to give a written report on the duty particularly given that an attempt was made to pass drugs to the prisoner. I note that the other staff on duty with him were asked for reports also. It is clear that it is standard operation procedures that if a prisoner is out of the prison for the staff escorting him to make a written report in particular if a prisoner has broken prison rules. In relation to the Inspector of Prison's visit and the issue the Inspector raised about the behaviour of some prisoner, it is clear that in asking the complainant to make a report on it was again standard procedure and cannot be construed as victimisation. The complainant was not in any trouble over the way he handled the visit of the Inspector.
5.17 On the 2nd of March 2011 the complainant attended his medical consultant and he said that he felt unwell afterwards. He reported sick to the detail office and said that he would not be back in the afternoon. I note the complainant was reported to the Governor by his supervisor for not reporting for duty and he was requested to provide an explanation. The respondent said that he should have reported to the Chief Officer and requested time-off if he was not returning to work and he was required to forfeit 3 hours leave for being in breach of the rules. He also needed to provide a medical certificate. The complainant said that he always reported to the detail office and this was the first time he was disciplined for not reporting his absence due to illness to a Chief Officer. I note that the sanction was imposed by Deputy Governor A and that in evidence he said that the complainant was going off duty sick and in such circumstances he required a medical certificate but the only certificate he supplied was one which covered his consultant appointment and the hours he was absent had to be accounted for. I note that the complainant said in his account to the Governor that he was being treated for cancer and that he felt unwell after the treatment with his consultant. It is clear that Deputy Governor A did not accept the absence was bona fide as he stated in evidence that his absence was not accounted for and that the complainant decided for whatever reason that he was not coming back to work. I cannot accept that the complainant did not account for his absence in his response letter to the Governor. I am of the view that the imposition of the 3 hour forfeiture of leave in the circumstances was excessive and unwarranted and constituted adverse treatment of the complainant.
5.18 In relation to the Mater Hospital detail on the on the 3rd of March 2011 the complainant said that he had a medical appointment the following morning and he needed to fast from midnight and had not made himself for the night shift and his rostered shift finished at 10pm. I note that even though the complainant had informed the detail office of the medical tests and the need to leave his detailed duty in the Mater at 10pm he was not replaced until 11:30pm which gave him very little time to eat before he was required to fast. I note that following his request for a replacement he was reported sick in the night report and was not rostered for duty when he reported for work on the 7th of March 2011, his next working day. The complainant said that even though he was paid for the overtime, he was upset at the way he was treated and wrote a report about the matter to the Governor because he believed he was portrayed in a bad light. I am satisfied that it was not a mistake on behalf of the detail office to say the complainant went off duty sick given the number of times the complainant explained to them the reason he needed to go off duty at the end of his normal shift at 10pm. I am satisfied this constituted adverse treatment in relation to this aspect of his complaint.
5.19 The complainant submitted that he was victimised in relation to acting up to ACO particularly since the mediation on the case in May 2011. He said that he was no longer asked to do it for a full day. In response to the respondent's contention that he was not needed for this task following the creation of the acting up panel, the complainant submitted evidence that on least 30 occasions that other prison officers who were not on the panel were asked to act up for full shifts. I am satisfied therefore the complainant has established he was treated adversely in relation to acting up as an ACO. In relation to the complaint about not being given an opportunity to get experience in the detail office, I note that the complainant was no 1 on the panel in 2012 and he was never called to work there. At the commencement of the year prison officers are asked to fill out a document called Application Form Placement Policy where they have an opportunity to list in order of preference where they would like to work in the coming year. All of the other staff who gave a preference for the detail office were called to work there except the complainant. The respondent submitted that evidence would be given that the complainant was not considered because training for the detail office was prioritised for staff working there and also the complainant was not available when he was asked to work there. I cannot accept that this was the case as no evidence was provided to contradict the complainant's assertion that he was the only one not given his preference. I am satisfied that the failure of the respondent to place the complainant in the detail office was adverse treatment of him contrary to the Act.
5.20 The complainant went on to outline two further incidents which he considered victimisation as a result of taking the case. He stated that he was asked to act up as a supervisor for a short period in the medical unit on the 8th of October 2011 and he was reported to the Governor for taking charge of the unit as a supervising officer for 20 minutes. He said that he was upset about being reported to the Governor and while he had acted up previously on an ad hoc basis when requested he had never previously been reported to the Governor in these circumstances. The respondent said that the complainant was not detailed to act up on that occasion. I note in the report to the Governor, the officer who asked the complainant to take charge confirmed that he did so. I cannot accept that it was necessary to report the complainant in the circumstances and I find that it constitutes adverse treatment
On the 15th of April 2013 the complainant said that he was detailed to act up as a supervisor in the Separation Unit for 2 hours. He was looking for the report books shortly after taking up the duty and he was told to return to the medical unit to take up duty there in a non supervising capacity. The complainant should have been told the reason he was not needed and in fact no explanation was given for this treatment. I also find that this constitutes adverse treatment of the complainant.
5.21 In considering the complaint of victimisation, I have applied the reasoning in the case of Monaghan County Council and Roy Mackarel Det. No. EDA1213 where the Labour Court stated:
It is, in the Court's view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors.  IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).
Moreover, in a case such as the instant case, the Court must be alert to the possibility of subconscious or unrecognised influence by surrounding events operating on the mind of the decision maker (see Nevens, Murphy Flood v Portroe Stevedores  16 ELR 282). Hence seemingly honest evidence denying any connection between a protected act and the decision to impose a detriment must, in the absence of corroboration, be approached with caution.
In this case the burden of proving the absence of victimisation rests with the Respondent in accordance with s.85A of the Act. That burden can only be discharged if it is establish, on credible evidence, that the making of complaints by the Complainant was in no sense, beyond the trivial, an influencing or reactive factor in the decision leading to his dismissal.
Applying the above jurisprudence to the complaint herein, I am satisfied that the complaint of discriminatory treatment was more than a trivial influence on the respondent as regards the above matters which I have found to be adverse treatment of the complainant. In accordance with the Labour Court in the above cited case the burden of proving the absence of victimisation rests with the respondent and I am not satisfied this has happened. I have not been provided with any evidence to disprove the complainant's documented evidence that other staff were asked to act up after the formation of the panel and the complainant was not. While some of the matters complained about may be less significant than others, taking the totality of them into consideration, I am satisfied that the complainant has established adverse treatment in the workplace as a result of taking a complaint of discriminatory treatment under the Acts. I find therefore that he has established a prima facie case of victimisation which the respondent has failed to rebut.
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent discriminated against the complainant on the age and disability grounds pursuant to section 6(2)(f) and (g) and in terms of section 8 of the Acts in relation to selection for the panel;
(ii) that the complainant was victimised pursuant to section 74 of the Acts.
6.2 Section 82-(i)(c) of the Act provides that I can make an order for redress for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay for discriminatory treatment and a further two years pay in respect of victimisation. The complainant's basic yearly pay is €43,580 and including allowances and overtime is approximately €62,500. In considering the amount of compensation I should award I, have noted the respondent's evidence that the highest placed successful applicants on the panel acted up as ACO's on a fulltime basis following the formation of the panel and that the EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. Therefore in calculating the redress and taking into account all the circumstance of the case, I consider that an award in the amount of €33,000 is appropriate in relation to the discriminatory treatment and €47,000 in respect of victimisation. In accordance with my powers under section 82 of the Employment Equality Acts, I order the respondent to pay the complainant €80,000 in compensation for the effects of the discriminatory treatment and victimisation. This figure represents compensation for the infringement of his rights under equality legislation in relation to discrimination and victimisation and does not include any element relating to remuneration, and therefore it is not taxable.
6.3 I found above that the respondent's selection process for the acting up panel was clearly deficient and did not comply with equality legislation. Under Section 82(e) of the Acts, I order that the respondent to ensure that a transparent fair selection process is adopted in all future competitions and to ensure that the selection panel is trained in the process and sets down in writing the criteria before embarking on the selection process, to adopt a marking scheme and the weighting given under each element and to ensure that notes are retained.
8th August 2013