SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
THE HEALTH SERVICE EXECUTIVE
- AND -
DR KEVIN BROGAN
(REPRESENTED BY THE IRISH MEDICAL ORGANISATION)
Chairman: Mr Hayes
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. Appeal Of Adjudication Officer Decision No DEC-E2016-078/EM.
2. The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on the 28th June 2016. A Labour Court hearing took place on the 24th November 2016. The following is the Court's Determination:
Dr Kevin Brogan (the Complainant) made a complaint under the Employment Equality Acts (the Acts) to the Equality Tribunal on 3 October 2014. In it he stated that the HSE (the Respondent), his employer, discriminated against him on the Age ground contrary section 6(20(f) of the Acts. The Equality Officer decided as follows
I find that the present complaint fails to comply with the time limits prescribed in section 77(5) of the Employment Equality Acts. Accordingly, I do not have jurisdiction to investigate the present complaint.”
The complainant appealed against that decision to this Court. The appeal came on for hearing before the Court on 24 November 2016.
The Complainant has been employed by the Respondent as an Area Medical Officer by the HSE since 1997. That was, at the time, the relevant entry level grade in the field of Public Health management within the HSE.
In 2003 this grade was replaced with a new grade entry grade of Senior Medical Officer, appointment to which required a candidate to hold a Master’s Degree in Public Health or an equivalent qualification. Thereafter the HSE no longer recruited staff at the Area Medical Officer grade.
The Complainant did not hold such a qualification and was ineligible for appointment to the post.
The Complainant submits that this new qualification requirement discriminated against him on the age ground arguing that younger doctors could more easily acquire the qualification than longer serving older doctors. At the time he had worked for the respondent for 10 years and held Diplomas in Child Health and Obstetrics. However he did not hold a Masters qualification in Public Health and would experience considerable difficulty in acquiring one.
He submits that this policy of requiring a Masters qualification had the effect of discriminating against him on the age ground.
The Respondent submits that the Complaint was submitted outside of the statutory time limit for bringing such cases. It submits that no incidence of discrimination occurred in the six months prior to the commencement of the Complaint. The qualification requirements had changed in 2004 and the Complainant was required to bring a complaint within six months of the date on which the act of discrimination against him took place. It submits that as the Complaint was not submitted until October 2014 it was out of time and statute barred.
The Equality Officer decided that the Complaint was submitted outside of the statutory time limit and as a consequence he did not have jurisdiction to hear the matter.
Section 77(5)(a) of the Acts provides: -
(a) Subject to paragraph (b) , 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 of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77(6A) provides: -
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 period,
(ii) [not relevant]
(iii) [not relevant]
The Court in County Cork VEC v Ann Hurley interpreted the relevant sections as follows: -
Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur  IRLR 387).
The Court adopts this line of reasoning.
Applying it to this case the Court finds that the HSE introduced a new qualification requirement in 2004 and has maintained it in place since that date. The Court finds that this new qualification is, in the Court’s view, a regime, rule or practice within the meaning of the Act. The Court further finds that the HSE has maintained it in force since that date.
In accordance with section 77(6A) (i) above the Court finds that it extended over a period of time that has not yet ended. Accordingly the Court finds that the Complainant is entitled to bring a complaint and to have the substantive matter heard and decided. The Court has formed no view on the substantive matter to be decided. The Court takes the view that both parties are entitled to have the substantive complaint decided at first instance and to have the option of having any decision heard again by this Court on appeal. To do otherwise is to deprive the parties of access to the full set of procedures provided for in the Act. Accordingly the Court takes the view that it should remit the matter to the Equality Officer for consideration and decision.
In light of these findings the Court upholds the appeal. The Court sets aside the decision of the Equality Officer and refers the matter back to the WRC for a substantive hearing of the complaint.
The Court so decides.
Signed on behalf of the Labour Court
2nd December 2016______________________
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.