INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
A FINANCIAL INSTITUTION
(REPRESENTED BY MR. SEAMUS CLARKE, B.L., INSTRUCTED BY THE RESPONDENT'S SOLICITOR)
- AND -
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal under Section 77(12) of the Employment Equality Acts, 1998 to 2011.
2. The Worker appealed the decision of the Equality Officer to the Labour Court on the 23rd December, 2014. A Labour Court hearing took place on the 24th April, 2015. The following is the Court's Determination:
The matter comes before the Court pursuant to an appeal by the Complainant against a preliminary decision of an Equality Officer made pursuant to Section 79(3A) of the Employment Equality Acts 1998 to 2011 (the Acts). The application is made pursuant to Section 77(12) of the Acts.
The Worker submitted a claim of discrimination on gender, age and disability grounds against his employer Bank of Ireland, contrary to Sections 6(2) (a), (f) and (g) of the Acts. For ease of reference the parties are referred to as they were at first instance. Hence, the Worker is referred to as the Complainant and Bank of Ireland is referred to as the Respondent. The Equality Officer dismissed his claims under Section 77A (1) on the grounds that they were misconceived in law as all events complained of were statute-barred pursuant to Section 77(5) of the Acts as they were brought outside of the statutory time limit. The Court notes that the Complainant has separate proceedings under the Pensions Acts 1999 - 2004 relating to a complaint concerning his occupational pension.
The Complainant has been employed with the Respondent since January 1971, he worked full time until 19thFebruary 2004 when he commenced a job-sharing arrangement and thereby worked part-time until he was placed on special paid leave from his employment on 15thSeptember 2006.
The Complainant referred a complaint to the Equality Tribunal on 31stJanuary 2012 alleging that he had been discriminated/victimised against on the following occasions:-
- •Alleged discrimination on the gender ground resulting in a negative performance appraisal review by the Respondent in May 2004.
- •Refusal by the Respondent on 4thJune 2010 of his application for a loan to purchase Bank of Ireland stocks made under the terms of the Company’s Enhanced Benefit Package for employees. He also alleged that this treatment constituted victimisation by the Respondent.
- •Alleged discrimination and victimisation on the disability ground due to the Respondent referring him to a Psychiatrist in June 2011. He also alleged that this treatment constituted victimisation by the Respondent.
- •Equal pay claim on the gender ground, pursuant to different rates of pay existing since May 2004 when he allegedly claimed that a female comparator received satisfactory ratings in 2004 and had been paid 8% more in pay than him since then. He also alleged that this treatment constituted victimisation by the Respondent.
- •Alleged discrimination by the Respondent in November 2011 when he was required to retire at age 60. In his written submission to the Court the Complainant stated that this alleged discrimination was on the age ground, whereas in his presentation to the Court he advised that it was on the disability ground. He also alleged that this treatment constituted victimisation by the Respondent.
•Alleged discrimination on the age ground by the Respondent in November 2011 when he applied to return to work on a full time basis. He alleged that this was in breach of the Respondent’s agreed part time contract. He also alleged that this treatment constituted victimisation by the Respondent.
The time-limit prescribed by Section 77(5) of the Act is in the nature of a statutory limitation period. Where a complaint is presented outside that period the statutory limitation can be pleaded by the respondent and, as a matter of law, provides a complete defence to the complaint. The Court is satisfied that the acts alleged to constitute discrimination in this case prior to 31stJuly 2011 occurred more than six months before the complaints herein were initiated and are accordingly statute barred under the Acts.
The Law Applicable
Section 77(5) of the Acts provides as follows:
- (a) 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 cause 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(5) (b) of the Act provides that where reasonable cause is shown for a delay in presenting a claim under the Act the 6 month time limit at subsection (5)(a) of that section may be extended to a period not exceeding 12 months. In this case even if such an extension were granted it could not have availed the Complainant in bringing his complaints which he alleged occurred prior to 12 months of the date of his claim inside the time limit, i.e. complaints alleging discrimination which occurred prior to 31stJanuary 2011.
Extension of Time
The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination WTC0338 (October 28, 2003)CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -
- It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.
The Complainant submitted that the reason for the delay in referring his complaints under the Acts was due to his lack of understanding of the legal process and the fact that he was no longer represented by legal counsel.
Mr. Séamus Clarke, B.L. instructed by the Respondent’s Solicitor, on behalf of the Respondent submitted that there were no grounds to extend the time. He stated that since 2007 the Complainant had had the benefit of professional legal advice and in 2008 he had initiated legal proceedings before the High Court in relation to a personal injury claim.
The Court notes that the Complainant had the benefit of legal advice from 2007 until October 2010. While he was no longer legally represented in June 2011 when the Respondent referred him to a Psychiatrist, he did not institute proceedings under the Acts in respect of that alleged discriminatory/victimisory act until nineteen months later. The only excuse for the delay in bringing his claim submitted by the Complainant relates to his lack of knowledge of the law. In considering the application of this test the Court must follow the dictum of Laffoy J inMinister for Finance v CPSUand Ors  18 ELR 36 to the effect that ignorance of one’s legal rights cannot in law constitute reasonable cause for the Claimant’s failure to lodge his claim in time.
Therefore the Court cannot accept that the reason proffered by the Complainant for the delay in presenting his claim both explains the delay and provides a justifiable excuse for the delay, therefore his application for an extension of the time allowed under Section 77(6) of the Acts fails.
Equal Pay Claim
The Complainant submitted a claim for equal pay and maintained that since 2004 when he was given a negative appraisal he was paid less than a female comparator, which he claimed continued to the present day.
The Court notes that the Complainant has not worked since September 2006, he is currently on sick pay and he told the Court that he does not know whether or not the female comparator he relies upon continues to work in the Company. At the hearing before the Equality Officer he accepted that the Respondent did not have different pay scales for men and women.
Bases on these facts the Court is of the view that, an examination of the facts required to ground a claim of unequal pay would be purely hypothetical and accordingly finds this complaint misconceived in law.
Section 74 (2) of the Act states that victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction:-
- •to a complaint of discrimination made by the employee to the employer,
•any proceedings by a complainant,
•an employee having represented or otherwise supported a complainant,
•the work of an employee having been compared with that of another employee for any of the purposes of this Act,
•an employee having been a witness in any proceedings under this Act,
•an employee having opposed by lawful means an act which is unlawful under this Act,
•or an employee having given notice of an intention to take any of the above actions.
This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimisation within the statutory meaning.
In support of his case, the Complainant referred to a complaint under the Acts made on his behalf by his Union, IBOA, circa, 2004 when he contested a disciplinary action threatened by the Respondent at the time. Mr. Clarke stated that no complaint or any form of proceedings under the Acts were initiated by IBOA on his behalf at this time or prior to the referral of his complaint on 31stJanuary 2012, which is the subject of this claim.
Post the hearing, the Complainant submitted a letter dated 17thFebruary 2005 from the General Secretary of IBOA to the Respondent’s Head of Group Industrial Relations concerning threatened disciplinary action against the Complainant.
Having considered the arguments made the Court notes that there is no reference to an alleged complaint or reference to initiating proceeding under the Acts in that letter. The Court is of the view that the grievances raised by IBOA on his behalf were more in the nature of industrial relations issues than complaints under equality legislation.
In any event the Court is satisfied that the victimisation complained of does not come within the statutory definition provided for under Section 74 of the Acts and furthermore that any causal connection between the events of 2004/2005 and alleged incidents which the Court finds are within the statutory time limits are not sustainable. Therefore the Court finds that the complaints of victimisation are misconceived in law.
Requirement to Retire at Age 60
The Court finds that the Complainant’s complaint alleging discrimination on the age and disability grounds by the Respondent that he was required to retire at age 60 in November 2011 is in timeand should be remitted to the Equality Tribunal for an investigation of the issue.
Request to Return to Work on a Full Time Basis
The Court finds that the Complainant’s complaint alleging discrimination on the age ground by the Respondent when he applied to return to work on a full time basis in November 2011 is in timeand should be remitted to the Equality Tribunal for an investigation of the issue.
In all the circumstances, the Court finds that apart from the Complainant’s complaints concerning the requirement to retire at age 60 and his request to return to work on a full time basis, both of which the Court finds were presented to the Equality Tribunal in time, all of the remaining complaints made by the Complainant are out of time and are therefore statute barred or are misconceived in law and the Court finds that they cannot succeed. Accordingly those complaints must be dismissed.
The Decision of the Equality Officer is varied and substituted with this Determination.
This is the Determination of the Court.
Signed on behalf of the Labour Court
30th April, 2015______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.