THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Preliminary Decision DEC – E2014 – 083
A Bank (represented by Mr Seamus Clarke, B.L., instructed by Ms Teresa Kelly, solicitor with the respondent)
File References: EE/2012/067
Date of Issue: 2 December 2014
Keywords: Preliminary decision pursuant to S. 79(3A) of the Employment Equality Acts – time limits – S. 77(5) – no statutory powers to extend time limits beyond 12 months – equal pay – complaint about alleged discriminatory performance assessment leading to difference in pay with comparators – no allegation of discriminatory pay rates – complaint also statute-barred pursuant to S. 77(5)
1.1. The case concerns a claim by Mr A. that the Bank who is his employer discriminated against him on the grounds of gender, age and disability contrary to Sections 6(2)(a), (f) and (g) of the Employment Equality Acts 1998 to 2011, in terms of access to promotion, training, conditions of employment, including harassment, equal pay and victimisation.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 30 January 2012. A submission was received from the complainant on 14 May 2012. A submission was received from the respondent on 19 December 2012. Additional submissions were then received from the complainant on 12 April and 6 December 2013, and from the respondent on 7 April 2014. On 3 July 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. From a study of the papers on file, it became apparent that large portions of the complainant’s complaint may be statute-barred pursuant to the provisions of S. 77(5) of the Acts, since the last alleged discriminatory act described by the complainant occurred in 2010. In addition, counsel for the respondent made an application to the Tribunal to this effect in his submission. The complainant subsequently applied to “dispense with all conditions for notification in my case and list hereunder exceptional circumstances for doing so”. Furthermore, the facts on which the complainant based his complaint of equal pay were not entirely clear from his submissions. Accordingly, I held a preliminary hearing on these questions pursuant to the provisions of S. 79(3A) of the Acts, on 30 July 2014. The final correspondence in this matter was received on 24 September 2014.
2. Conclusions of the Equality Officer
2.1. The preliminary issue for decision in this case are which portions of the complainant’s complaint are statute-barred pursuant to the provisions of S. 77(5) of the Acts, and what facts ground his complaint of equal pay, and whether, therefore, his complaint of equal pay was brought in time pursuant to the provisions of S. 77(5)(c) of the Acts, or whether this part of his complaint might be considered as being alleged discriminatory treatment with remunerative consequences and therefore also be time-barred.
2.2. At the beginning of the hearing, I clarified to the complainant that his written application to dispense with notification periods referred to provisions of the Equal Status Acts 2000 to 2011 and that S. 77(5) of the Employment Equality Acts does not permit an extension of time beyond a maximum of 12 months from the last occurrence of an alleged discriminatory act.
2.3. According to the complainant’s written submissions, the last act by the respondent which may ground a complaint of discrimination occurred on 4 June 2010, when the complainant was refused a loan facility open to employees of the respondent. That is some 18 months before the complainant lodged his complaint with the Tribunal.
2.4. The complainant also confirmed that the last date on which he reported for work with the respondent was 15 September 2006, whereas his complaint was lodged on 30 January 2012. However, at the preliminary hearing of the matter, the complainant stated that he felt that his application in November 2011 to return to full-time work with the respondent after having worked part-time for a number of years, which the respondent did not respond to, constituted a discriminatory act. At the time, the complainant was suspended from work with pay following a number of grievances both by the complainant, other staff in his branch, and another branch of the respondent organisation, which the respondent was trying to investigate. He stated that he applied three times to the respondent in this matter, but never received a reply. He did not adduce any evidence that this lack of response was in any way related to gender, age or disability.
2.5. The complainant further stated that he felt that the respondent’s suggestion that he undergo a medical evaluation with a consultant psychiatrist working at, as the complainant put it, “a facility for the criminally insane” meant that the respondent was discriminating against him on the basis of his disability, by implying that the complainant, too, was “criminally insane”. The complainant stated that the respondent “threatened” him with this. He did not state, however, that the assessment actually happened, or that the respondent was even in a position to force him to undergo it.
2.6. There was agreement between the parties that the suggestion, such as it was, was brought forward by the respondent in late 2011 (neither party had the exact date on hand), and that, if it was found to raise an inference of discrimination, would bring the complaint in time. The respondent accepted that the suggested psychiatrist in question was Dr. Harry Kennedy, Clinical Director of the Central Mental Hospital, but vigorously contested the notion that this meant that the respondent considered the complainant to be in any way “criminally insane”.
2.7. The respondent further clarified that the suggestion of an evaluation by Dr. Kennedy arose in early 2011 in the context of both an internal investigation process, as well as personal injury proceedings between the parties, and efforts made to agree with the complainant’s then solicitor on an independent assessor for the complainant’s mental health. The complainant’s GP had said that the complainant was not fit to participate in the investigation, whereas the respondent’s own occupational health expert thought him fit to do so. Dr Kennedy’s name was brought up to find a way forward in this.
2.8. I accept the respondent’s explanation in this matter. I also note that the complainant submitted, and confirmed during the preliminary hearing, that the drawn out dispute had indeed taken a toll on his mental health and that he was suffering from stress and anxiety, in addition to high blood pressure and kidney damage. These facts do, in fact, form the basis of his complaint of discrimination on the ground of disability. Therefore, I am satisfied that the respondent did not attempt to impute a psychiatric disability on him. In terms of the situation complained of, I am unable to accept that a referral to one specialist consultant in the relevant discipline over another, for the purposes of a third-party expert assessment when it is needed, constitutes less favourable treatment on the ground of disability. In such a situation, only a person with another psychiatric disability could potentially be treated more favourably than the complainant by having another consultant psychiatrist suggested to them, but a person with another psychiatric disability does not constitute a valid comparator within the meaning of the Acts, which in S. 6(2)(g) expressly state that a comparator must be a person without a disability or a person with a different disability (emphasis added).
2.9. I am therefore satisfied that the complainant’s complaint of discrimination is statute-barred by the provisions of S. 77(5) of the Acts, as all incidents complained of which could ground a complaint of discrimination on the grounds of age, disability or gender occurred more than 12 months before the complaint was lodged, and that I have no jurisdiction to investigate.
2.10. In terms of his victimisation complaint, the complainant did not adduce any evidence beyond what is stated in his submission, where he dates experiences he considers victimisatory to the years 1999/2000. He stated in evidence that he considered the events leading to his complaint of equal pay to be victimisatory, however, these are more usefully analysed with regard to the provisions for equal pay as set out in the Acts. I am satisfied that no evidence was adduced by the complainant that the respondent victimised him within the meaning of the Acts between 30 January 2011 and the lodging of the complaint on 30 January 2012. Accordingly, I also find that the complainant’s complaint of victimisation is statute-barred in the same way as his discrimination complaint, and that I have no jurisdiction to investigate it.
2.11. With regard to the complainant’s complaint of equal pay, the complainant did not state that he alleged that the respondent had different pay scales for men and women. Rather, he bases his complaint on the fact that he received a poor performance review in May 2004, the first in his career, and that two women who performed the same work as him did receive satisfactory performance ratings and received a pay increase under the respondent’s pay policies, whereas the complainant did not.
2.12. I am not satisfied, having learned of these details, that this complaint can be properly classified as one of equal pay. As the complainant himself alleges, gender-biased perceptions of his performance and that of his two female colleagues may have led to a situation where their performance was rated as satisfactory and his was not, and that this process had a knock-on effect on his pay and theirs. However, as per the evidence given by the complainant, he and his female colleagues started out on the same pay, and it was the event of their respective performance reviews, rather than anyone’s gender, which opened up a differential in their remuneration. Similarly, one might argue that a person with a protected characteristic missing out on a promotion, possibly for reasons of unlawful bias, has pay implications for that person, and potentially quite significant ones.
2.13. The available law on this point supports my interpretation of the facts in this case. The Labour Court, in its recent decision Services Industrial Professional Technical Union v. Catherine McDonnell, Bridget O’Donoghue, Sharon McConnell, Noeleen Noone and Annette Glass [EDA1429] drew attention to the decision of the CJEU in case C-19/81, Burton v. British Railway Board, in which the European Court held, in the context of gender-differentiated age limits having been set by the respondent employer for access to a voluntary redundancy scheme, that potentially discriminatory conditions of access to a scheme or provision involving pay are a matter of equal treatment rather than equal pay and are to be treated as such. Similarly, the CJEU held in case C-1/95, Gerster v. Freistaat Bayern, that the rules governing the calculation of service for the purpose of promotion, thus indirectly affecting access to higher levels of pay, were a matter of equal treatment.
2.14. Accordingly, while discriminatory treatment on the ground of gender may have occurred in the assessment process which led to the complainant not moving up the respondent’s pay scale, whereas two named female colleagues did so, this event, having occurred in 2004, is also statute-barred pursuant to S. 77(5) and I do not have jurisdiction to investigate it.
2.15. The question therefore now arises whether the within complaint is misconceived in law.
2.16. A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In my view, this complaint is similarly misconceived because all events complained of which can be classified as being potentially either discriminatory treatment or victimisation are all statute-barred pursuant to S. 77(5) of the Acts. The Tribunal therefore has no jurisdiction to investigate the complaints.
3.1. Based on all of the foregoing, I make the following preliminary decision pursuant to S. 79(3A) of the Acts: That I dismiss the within complaint pursuant to S. 77(5) of the Acts, on the ground that it was brought outside of the statutory time limits in its entirety, and that this includes the complainant’s complaint of equal pay, which upon hearing the facts turned out to be a complaint of alleged discriminatory treatment which had consequences in terms of remuneration, rather than the setting of a discriminatory pay rate. Given that the entire complaint was brought outside the statutory time limits, I have no jurisdiction to investigate this matter.
2 December 2014