Employment Equality Acts 2000 to 2011
EQUALITY OFFICER’S DECISION
NO: DEC-E2014-079
A Complainant
(Represented by Civil and Public Service Union)
v
An Garda Siochana
(Represented by Cliona Kimber BL, instructed by CSSO)
Date of Issue: 25 November 2014 File No.EE/2011/779
Keywords
Employment Equality Acts - discriminatory treatment - disability - age - gender - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment by the respondent in her working conditions in relation to (i) non-provision of training (ii) being moved from the Divisional office and (iii) access to acting-up posts on the gender ground - (2) (a) the age ground - 2 (f) and the disability ground 2 (g) in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 23 November 2011 under the Employment Equality Acts. On 14 May, 2014, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 3 September 2014.
2. Summary of Complainant’s case
2.1 The complainant is a Clerical Officer employed by the respondent since 26 April 1982. She has 32 years service with the respondent. The complainant contends that in July 2011, Clerical Officers in the station were informed that one of their colleagues would be acting-up into the duties of Executive Officer while the EO was on maternity leave. This post is a promotional outlet and is a higher grade. The complainant’s representative contends that the complainant was discriminated against on grounds of age as she was not offered the same opportunities as her younger colleague who was offered the acting-up position. Her colleague, Ms. G was more junior in years and in service by many years. The complainant’s union is aware from discussions with the respondent that the reason the complainant’s colleague was offered the acting-up position is due to the fact that she was the only one with the training necessary to do the duties. The complainant’s union submits that this compounds its argument. The union has identified the courses that would be necessary to perform the higher duty of Executive Officer and has requested information from the employer as to when these courses took place and if the complainant was offered any opportunity to attend same. The union claims that the complainant has never been offered a course in this regard. HR advised the union that the Chief in each Garda Station nominates a member of staff. The union maintain that this process enables any Chief in any station to nominate any member of staff with no transparency. The union stated that the complainant has sought training but has never been offered the training while her colleague who is more junior and younger has been chosen to attend the training, thereby becoming eligible to be assigned to higher duties.The training in question relates to HRMS, SAMS, Corepay and Oracle systems and is carried out by the Centre for Management, Organisation & Development (CMOD). The complainant’s representative submits that the complainant’s colleague had been provided with all the required training necessary to perform the acting-up duties, by contrast the complainant has not been afforded the same opportunities for career progression as her younger colleague and therefore was discriminated against on grounds of age.
2.2 The complainant states that she was also discriminated against on grounds of age and disability in relation to an acting-up post in August 2008 on the basis of two days per week while a colleague in the Finance Office went on part-time work. The complainant states that when she raised the issue with the former Superintendant who is now retired, he advised the complainant that Ms. G was already being trained for the post. The complainant also gave evidence on the day of the hearing that at the time, she had a conversation with Ms. K in the Finance unit who advised her that she had trained someone into the job and indicated it was Ms. G. The complainant submits that both of these pieces of evidence lead to the fact that the post was not advertised in the first instance and that Ms. G was already being trained on the job before it was advertised. The union representative states that it was only after it raised the issue with local management that the post was actually advertised. The complainant submits that her experience was not taken into consideration on this occasion and that she was not afforded the same opportunities as her younger colleague. The complainant states that this was the second occasion where the complainant was not given access to training which would have afforded her the necessary qualifications to gain advancement in her career. In March 2008, an acting up Staff Officer position for term time during the Summer months became available and Ms. P was given an acting- up allowance.
2.3 The complainant’s representative submits that the respondent is fully aware that the complainant suffers from mental health issues from time to time. She has suffered from depression and has during the course of her employment had a nervous breakdown and been admitted to a psychiatric hospital. On occasion, in reports and correspondence held on the complainant’s file, her ‘state of mind’ and/or mental health is referred to by one of her manager’s without the benefit of medical support at the time and/or reasonable cause for such comment. One of the complainant’s managers stated on one occasion in correspondence that there is a ‘fear that she is on the verge of a mental breakdown’. The complainant’s legal representative contends that as a result of the complainant’s disability, certain opinions are held by management which has led to a lack of opportunity for progression and therefore she has been indirectly discriminated against on grounds of disability. The complainant’s representative submits that it is custom and practice across the Civil Service including An Garda Siochana that acting-up positions to higher grades are awarded based on seniority/suitability. The suitability element is based mainly on performance and experience although in some offices, sick leave is taken into account. The complainant’s representative contends that in order for staff to be eligible for promotion it is custom and practice that all staff would be offered the same training necessary for the promotional posts should they arise to ensure everyone eligible has an equal opportunity to be considered. As acting-up positions then arise, all staff are trained and the most senior Clerical Officer is considered first for the acting-up position. It is acknowledged that the same training cannot be provided to everyone at the same time but custom and practice again is that a course would be identified as being necessary for a specific role; Human Resources would invite all staff across the country to express an interest in the course or not (depending on where the courses are being held) and then staff would be given training in most incidences based on seniority within the grade.
2.4 In October, 2007 the complainant lodged a complaint against a male colleague informally and in March, 2008 formal allegations of bullying and harassment were made by the complainant. The complainant’s representative contends that following these allegations, the respondent treated her in a less favourable manner than her male colleague. The complainant attended a meeting with her trade union representative where she was informed that her male colleague had advised that he could not work with her in the circumstances. At this meeting, the complainant claims she felt she had no other choice but to be transferred from the Divisional Office (Chief Superintendent’s Office) to another office within the building while matters were being resolved. The complainant asked why was it not possible to move her colleague and she was advised that they had nowhere to put him. On the day of the hearing, the complainant gave direct evidence stating that the Chief Superintendant stated to her “you are in your forties and will be retiring in 10 years”. She submitted that she felt she had no other choice but to co-operate and move having been advised that her male colleague could not be facilitated in any other location in the station. The complainant contends that she transferred from the Divisional Office on the understanding that she was going back there at some stage. The complainant’s representative submits that there are over 100 Gardai in the equivalent rank in the station so it does not accept that the complainant had to be the one to move. The complainant submits that the work in the Chief Superintendant’s office has a higher profile by its nature and the administrative role is a sought after post among Clerical Officers. The complainant contends that her colleague’s working environment did not change during the course of this investigation, however the complainant’s duties and working environment changed. Therefore, the union claims in this instance the complainant was indirectly discriminated against on grounds of gender and disability and that this treatment is still on-going as her duties and working environment remain changed to the present day.
2.5 The complainant submitted that she has suffered from depression over many years and has over the course of her employment been prescribed medication for her illness. The complainant contends that as a result of her disability, there is evidence in correspondence to suggest that the views held by senior management appear to have led to a lack of opportunity for progression in her career. In August, 2009 the Superintendent wrote to the Executive Officer in the station advising that he had concerns in relation to the complainant’s health and welfare. In this correspondence, he refers to a period of time in the complainant’s working life and he states “she suffered several episodes of unfitness to work due to mental health issues”. The union submits that this was wholly inappropriate as any information in relation to a person’s illness should remain absolutely confidential and secondly the evidence cited in this correspondence is subjective and totally disputed. The correspondence goes on to state “I fear that she is on a verge of a mental breakdown”. The union contends that this comment is completely inappropriate, is not supported by any medical evidence and clearly demonstrates a complete lack of understanding of the complainant’s disability and a prejudice towards her illness. The second example is contained in a response to being named as a witness into allegations of bullying and harassment by the complainant whereby the Inspector in the station submitted a report in March, 2009which displays evidence of a formed opinion without basis which shows prejudice towards the complainant’s illness. The first four pages of his report refers to the complainant’s illness and ‘observed behaviour’ as opposed to responding to the complaints made by the complainant in those allegations. The complainant’s union representative states that in 2008 at interview, the complainant received 100 marks out of 150 for a promotional opportunity to the District Finance Officer post in ‘interpersonal skills and effectiveness’; yet comments referred to in the Inspector’s report would lead one to think that the complainant had no interpersonal skills. In the same competition, the complainant received 80 marks out of 150 for ‘relevant experience’ and the union claims that the complainant’s disability has led to her being indirectly discriminated against. The union submits that as it is senior management who makes the decision in relation to staff being nominated for training, it contends that the complainant could have received a higher mark for ‘relevant experience’ in this instance for example had she been nominated for training. The union maintains that this issue is on-going as the complainant has not had an opportunity to progress in her career. The complainant’s union states that management held a biased, unsubstantiated view of her mental state in the knowledge that she had been diagnosed with depression some years before. In conclusion, the complainant alleges that she has been indirectly discriminated against on the grounds of age, gender and disability in relation to her conditions of employment.
3. Summary of the respondent’s case
3.1 The respondent makes a number of preliminary objections to the complaint. The respondent contends that all of the matters which are referred to by the complainant occurred some considerable time prior to the six month period terminating on 22 November 2011, the date on which the complaint to the Equality Tribunal was submitted. The respondent submits that the job-sharing vacancy of assistant to the Finance Officer was advertised on 14 August 2008. With regard to the complainant’s move from the divisional office to the Sergeant’s office, this move was undertaken on 2 November 2007 as a result of the direct request of the complainant. The position in the Divisional Office was consequently filled by reorganising staff in the station and again this occurred well outside the six month time limit within the meaning of the Act. The respondent therefore submits that in circumstances where the complainant was represented by her union throughout that she is required to comply with the statutory time limits under the Act. The respondent submits that as a consequence, the Tribunal has no jurisdiction to investigate matters which occurred earlier than six months prior to 22 November 2011, the date on which the complaint form was lodged. The respondent further submits that there is a difference between a continuing act and an act which has continuing consequences. The respondent contends that it has been made clear in Anwes v Inner London Education Authority [1977] 2 All ER 100 and Sougrin v Haringey Health Authority [2003] IRLR 96 that simply because the consequences of an act, such as promotion, regrading or refusal, continue to have consequences, this does not make them a continuing act. In these cases, the complainants complained under UK equality legislation that decisions not to promote (Amies) and not to regrade (Sougrin) were continuing acts as they continued to be on lower wages. The English Court of Appeal held that this was insufficient to make it a continuing act. The respondent also cites a decision of the Equality Tribunal in DEC-E2002-037, A Complainant v National Training and Development Institute in support of its arguments that the claim is statute barred.
3.2 The respondent submits that the complainant has not got a declared disability and that while there are sick certificates provided to the respondent in the late 80’s relating to depression, the complainant did not declare a disability nor did she seek medical assessment or the assistance of the disability liaison services. In relation to the acting- up post in late August 2008, the respondent states that on 11 August, Ms. K, Finance Officer received confirmation that she was being allowed job share from the coming September 1st. On 14 August, the Chief Superintendant commenced a process to fill this vacancy by advertising for applicants for the role and it was clearly pointed out that the position was for two days each week and that no acting-up allowance or travel and subsistence would be paid to the successful candidate. The respondent refutes the notion that Ms. G was already being trained up for the post. The respondent submits that an independent interview board was set up by Civilian HR Directorate comprising Mr. G, Finance department as chairperson and Mr. M, an Executive Officer based at the Central Vetting Unit, Thurles. Two persons applied, the complainant and Ms. G and Ms. G was advised by letter following interview that she was successful. On 16 October 2008, the complainant wrote to management and placed on record her dissatisfaction in relation to the filling of the vacancy. Management requested the Executive Officer in the division to discuss the matter with the complainant but when it became apparent that the decision could not be changed, the complainant stated that she felt there was little point discussing the matter. The respondent submits that the complainant was successful at interview for the post of Finance Officer (Executive Officer) in 2007 in a national competition and was in fact offered a post in a station 10 miles from her current location but she turned down the post. The respondent states that this issue goes against the complainant’s argument that she was discriminated against on grounds of age and disability in relation to access to promotion as she was successful in getting on a panel in 2007. The respondent submits that the candidate who was successful in getting the acting-up Executive Officer role in July 2011, got that post on the basis of having done the HRMS and SAMS training one year earlier. The respondent states that it got word on Friday lunchtime of a space becoming available on a training programme in CMOD for the following Monday. It was a case of who can go. Ms. G was in work that day and available for the following Monday and consequently her name was put forward for the course. The respondent submits that the complainant was not in work at this time. Management submit that there was no element of discriminatory treatment and it was on the basis of who was available at very short notice on a Friday afternoon.
3.3 The respondent submits that many of the issues raised in this equality complaint have already been adjudicated upon by the Rights Commissioner and internally by the respondent. The complainant made a formal complaint of bullying and harassment in late 2007 against a colleague. The complaint was investigated internally and was not upheld; the internal investigation found that the complainant had not been bullied or harassed by her colleague. The complainant then made a complaint to the Rights Commissioner under section 27 of the Safety, Health & Welfare at Work Act. She alleged that she was penalised by her employer after making a complaint of bullying and harassment. She stated that the penalisation consisted inter alia of (i) failure to be selected to District Finance Officer vacancy in August 2008 and to another position in 2008 and (ii) moving her from the Chief Superintendant’s office (the Divisional Office). The respondent submits that the Rights Commissioner issued a decision to the parties on 17 February 2011 and found that the complainant had not been penalised by her employer and that her complaints were not well-founded. The respondent refutes the allegation made by the complainant stating that the Chief Superintendent made the comment “you are in your forties, you have only 10 years to go”. Chief Superintendent S stated under no circumstances would he make such a comment and refuted same and submitted that he was of the view that the retirement age is 65. Inspector C stated that he was requested by the lead investigator carrying out the inquiry into the bullying and harassment complaint to do out a comprehensive report to the Assistant Commissioner on issues arising as he was manager of the complainant and her colleague and had worked with the complainant over a ten year period. He stated that he typed up the letter on his laptop in his home as he was conscious that it was a sensitive document and that the report included expressing concerns for her mental health, given that he was the complainant’s direct line supervisor over the former 10 year period. However, he advised that he had no prejudice towards her illness and that while he was concerned for her health based on her behaviour and demeanour in the office, there was no element of discrimination on grounds of disability. He was requested by the Assistant Commissioner to give him a full report in connection with the formal allegations of bullying and harassment against a Garda colleague and the report was strictly private and confidential. Inspector Cashen states that during this time, he had assessed the complainant as suitable for promotion and indeed the complainant was successful in 2007 for promotion to the Finance Officer post but turned it down as the location was 10 miles from her current station.
3.4 The respondent states that there is no prima facie evidence whatsoever on behalf of the complainant to establish a case of discrimination on grounds of age, gender or disability. Counsel for the respondent submits that there is no linkage between the three specific instances cited as being discriminatory and that different parties were involved in the decision making process with regard to the each of the incidents. The respondent states that the complainant was indeed successful at interview for Finance Officer in 2007 and turned down the position in another station. The respondent contends that in relation to the acting-up post in August 2008, interviews were conducted by an independent interview board and the complainant stated at the hearing that she has no issues with the decision of the interview board. The respondent states that the complainant is required to establish a prima facie case and cites the High Court case of Mulcahy v Minister for Justice, Equality & Law Reform and Waterford Leader Partnership Ltd.[2002] 13 ELR 12 where it was accepted that maternity leave that coincides with a suspicious dismissal does not automatically render that dismissal unlawful as having been on grounds of pregnancy, rather something objective and independent is required.
4. Conclusions of Equality Officer
Preliminary Issue
4.1 The respondent makes a preliminary objection to the complaint, in that, it contends that all of the matters which are referred to by the complainant occurred some considerable time prior to the six month period terminating on 22 November 2011. Having taken the evidence, I note that the complainant’s representative states that there is a continuing act of discrimination and there are three specific instances cited where it is alleged that the incidents are separate manifestations of the same disposition to discriminate. On examination of all the documentation, I note that the last incident of alleged discrimination took place in July 2011 which brings the claim within the timeframe. Therefore, I find I have jurisdiction to examine the claim and in light of the complainant’s representative strong contention that each of the incidents relate to a continuing act of discrimination, I will examine the three incidents of alleged discrimination.
4.2 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
4.3 The complainant has alleged that she was discriminated against on the grounds of her disability by the respondent. Disability” is defined in Section 2 of the Acts as meaning –
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(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 malfunction, 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”.
It was accepted by both parties that the complainant had submitted sick certs in the past which gave details of stress due to depression. Therefore, I am satisfied this condition comes within the meaning of the definition of disability as above.
Discrimination on gender ground in relation to complainant’s move to the Sergeants office in November 2007
4.4 The complainant’s representative contends that following allegations of a bullying and harassment claim against a colleague, the respondent treated her in a less favourable manner on grounds of her gender. On the day of the hearing, the complainant stated that she was forced to move from the Chief Superintendant’s office (Divisional office) in November 2007 as she was informed that her male colleague had advised that he could not work with her in the circumstances. The complainant submits that she was of the view that she would be placed back there at some stage in the future and that it was only a temporary move. The complainant states that she asked why was it not possible to move her colleague and management informed her that they had nowhere to put him. On the day of the hearing, the complainant gave direct evidence stating that the Chief Superintendant stated to her at a meeting on 19 January 2008 “you are in your forties and will be retiring in 10 years”. She submitted that she felt she had no other choice but to co-operate and move having been advised that her male colleague could not be facilitated in any other location in the station. The Chief Superintendant refuted the suggestion that he made such comments and vehemently denied same. As an aside, he stated that in any event he would generally assume that an employee could only retire at 65 years of age and therefore states that the complainant’s evidence in this regard does not stack up. The complainant submits that the work in the Chief Superintendant’s office has a higher profile by its nature and the administrative role is a sought after post among Clerical Officers. The complainant contends that her colleague’s working environment did not change during the course of this investigation, however the complainant’s duties and working environment changed. Therefore, the union claims in this instance the complainant was indirectly discriminated against on grounds of gender and that this treatment is still on-going as her duties and working environment remain changed to the present day.
4.5 Having taken all the evidence on this issue, I consider that the complainant made a claim of bullying and harassment against a colleague, an independent investigation was set up by Garda management and an inquiry was set up was set up and it was found that there was no basis to the allegations. Subsequently, the complainant brought the same issue to the Rights Commissioner who also examined the evidence and concluded that the complaint was not well founded. I consider any complaint of bullying and harassment to be a very serious complaint. Having examined all the evidence, I am satisfied that her complaint was taken seriously. In relation to the issue of the complainant’s move to the Sergeants office, I note that the complainant’s evidence at hearing was in contradiction to the letters she wrote at the material time to her union representative stating “I moved on 12 /11/2007 to the Sergeant’s office of my own accord”. Having taken evidence from the complainant and Chief Superintendant S, I find his version of events more cogent and credible. There were inconsistencies in the complainants evidence i.e. stating in a letter to her union representative that she moved “of her own accord” and at the hearing stating she was forced to move. In addition, the complainant stated on the day of the hearing that Chief Superintendant S said to her that “you are in your forties and will be retiring in 10 years”. This information was not submitted in any submissions referred to the Tribunal and only came to light on the day of the hearing, notwithstanding the fact that at all times, the complainant was represented by her trade union. In November 2007, the complainant would have, by my calculations, circa 25 years service but would not be eligible for retirement for another 15 years. Having taken evidence from Chief Supertintendant S, I found his version of events more credible and consistent with events. I am also of the view that it would be unfair to move an employee from his/her office simply because he/she was the subject of a complaint of bullying. Having carefully considered all the evidence on this issue, I find that given the history within the office and the evidence as presented, management had to weigh up the issues and find a delicate balance and made a reasoned decision in good faith on the basis of the best interests of the various staff members involved. On balance, I can find no prima facie case of discrimination on grounds of gender either direct or indirect in relation to the complainant’s move to the Sergeant’s Office in November 2007. The move came about as a result of parties not getting on in the office and in the letter referred to by the complainant to her union representative, she stated that she moved of her accord. The complainant’s representative made the point that the work in the Chief Superintendant’s office was of a more high profile nature than the other posts in the station. Having examined the nature of the various Clerical posts within the location, while there may be perceptions that one are is more high profile than another, there were no lesser or greater roles and all the roles were that of Clerical Officer.
Discrimination on grounds of age and disability re an acting-up post in August 2008
4.6 The complainant maintains that Garda management, were in the process of training Ms. G who is considerably junior in years to the complainant, for the acting-up post in August 2008. The complainant states that when she raised the issue with Superintendant L, who is now retired, he advised the complainant that Ms. G was already being trained for the post. The complainant also gave evidence on the day of the hearing that at the time, she had a conversation with Ms. K in the Finance office who advised her that she had trained someone into the job and indicated it was Ms. G. The complainant submits that both of these pieces of evidence lead to the fact that the post was not advertised in the first instance and that Ms. G was already being trained on the job before it was advertised. The union representative states that it was only after it raised the issue with local management that the post was actually advertised. Evidence was given by the new incoming Chief Superintendant S that as soon as he became aware of the position becoming vacant, he advertised the position and that an independent interview board was set up. I note that the complainant has no issue with the interview board or the outcome of the interview process; the issue the complainant has is that management had Ms. G in mind for the role and only advertised the position after the complainant’s union representative expressed concerns. Having examined the evidence, I note that Ms. G had only been employed by the respondent for about 6 weeks at the material time. Consequently, I find it dubious to contend that in that short time she had been singled out and trained for a job which was advertised and interviewed by external and independent parties. It is for the complainant to produce credible evidence from which the existence of such an allegation could be inferred. No witnesses were produced for the Tribunal on these allegations in relation to Ms. K and former Superintendant L and the complainant offered no evidence from which the Tribunal could draw such an inference. I note that there was no mention of these claims in either the EE 1 form submitted or the earlier written submissions furnished. The complainant submitted this information on the day of the hearing. I note the inconsistencies in relation to the complainant’s claims in her submissions vis a vis evidence she gave on the day of the hearing. On balance, I find no basis from which to draw an inference of discriminatory treatment regarding these allegations. In any event, even if the former Superintendant L had Ms. G in mind for the role, the fact the incoming Chief Superintendant S advertised for the post and an independent interview process was set up and the fact the complainant stated she has no issue with the interview board or the outcome of same, i.e. Ms. G getting the acting-up on merit and based on her performance at interview; I find that the complainant has not established a prima facie case of discriminatory treatment on the age and disability ground regarding the acting-up post in August 2008.
Discrimination on grounds of age and disability re an acting-up post in July 2011
4.7 The complainant states that her colleague was given an acting-up position while another employee was going on maternity leave. Her colleague is more junior in years and in service by many years. The complainant submits that the reason her colleague was offered the acting-up position was because she was the only one with the training (HRMS, SAMS, Corepay and Oracle systems) necessary to do the duties. The respondent maintains that the training was provided to her comparator in April 2010. In that regard, the respondent submits that there was no element of discriminatory treatment and it was on the basis of who was available at very short notice on a Friday afternoon for the training commencing the following Monday. The respondent submits that the complainant was not in work at this time. Having examined the evidence on this issue, I can find no prima facie case of discriminatory treatment on this issue, I find that the employee who was given the acting-up in July 2011 was the only person with the necessary financial training which was a requirement for the post and this specific training was undertaken by the complainant’s colleague over a year earlier in April 2010 on the basis of a space becoming available at the Centre for Management, Organisation & Development (CMOD) at short notice on a Friday afternoon for the following Monday. Ms. G put her name forward for same on a Friday afternoon based on her availability for the training the following week. On balance, given the evidence, I am satisfied that the complainant has not established a nexus to the alleged treatment and her age and/or disability in relation to the acting-up post in July 2011. In that regard, the complainant has not established a prima facie case of discrimination.
4.8 Having taken all the evidence in relation to the claims of discriminatory treatment, I am satisfied that even taking these incidents at their height, the complainant did not establish a linkage between the three specific instances cited as being discriminatory. I find that different parties were involved in the decision making process with regard to each of the incidents. I also note that the complainant was successful in her application for promotion in 2007 but turned down the post at that time. I find that while the complainant alleges a perceived bias by Garda management regarding her disability in terms of career progression based on comments by Inspector C in his confidential report to the Assistant Commissioner following on from the bullying and harassment complaint; I am satisfied that he was requested to give his views on the issues and while he did refer to the complainant’s illness and her behaviour and demeanour in the office, it was in the context of a request by Garda management into the very serious complaint of bullying and harassment against a colleague. During the hearing, I found Inspector C to be considerate to the complainant and her needs and I found that he was a cogent witness and gave credible evidence. Having examined all the evidence, I cannot find a link between the complainant not getting the acting-up positions and allegations of perceived bias by Garda management on the basis of the complainant’s disability. Indeed, I note that Inspector C had recommended the complainant suitable for promotion but had no input into the interview process in August 2008 nor the decision in relation to the acting–up position in July 2011 regarding maternity cover which I understand no allowance was paid for either positions. I also note that the complainant was recommended for promotion to the Finance Officer post (Executive Officer level) in 2007 and was successful for same and placed on a panel but turned down this offer. Overall, based on all the evidence taken in this case, I find that the complainant has not established a prima facie case of direct or indirect discrimination on the gender, age or disability ground in relation to the three specific instances cited.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. 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 did not discriminate against the complainant on the disability ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment;
(ii) the respondent did not discriminate against the complainant on the age ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment;
(iii) the respondent did not discriminate against the complainant on the gender ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment.
____________
Valerie Murtagh
Equality Officer
25th November, 2014
'Footnote'
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.