EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-058
Represented by Peter Somers B.L instructed by Patrick P O’Sullivan, Solicitors,
Marcus Dowling B.L. instructed by William Fry, Solicitors
File reference: et-158467-ee-15
Date of issue: 28th July 2017
HEADNOTES: Discrimination-Family Status-Gender-Conditions of Employment-Training-discriminatory dismissal-harassment-victimisation-time limits
1.1.This dispute concerns a claim by Ciara Mulrooney that she was discriminated against by Elavon Financial Services Ltd t/a Elavo Merchant Services on the grounds of her gender and family status contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2.The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts on July 31st, 2015.
1.3.In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Pat Brady an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on June 7th, 2017.
1.4.This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2.1. The complainant began working for the respondent on February 14th 2004. I early 2012 and while on maternity leave she was advised of a significant changes in the organisation of her workplace; including the redundancy of four colleagues, the transfer of their functions elsewhere and certain other changes.
2.2.On her return to work there were changes to her role which she challenged but unsuccessfully.
2.3.In January 2013 she went on a four day week and for various reasons she was not able to meet performance targets that had been set for her and she had an adverse performance review.
2.4.Around the end of April she was diagnosed as being unfit for work and went on sick leave until her resignation on April 3rd 2015.
3. PRELIMINARY MATTER
3.1.The respondent drew attention to the fact that the complaint was submitted to the then Equality Tribunal on July 31st 2015.
3.2.In accordance with section 77 of the Employment Equality Acts a complaint must be submitted within six months of the date of the most recent occurrence of alleged discrimination, or victimisation. This would mean that the relevant period for investigation in this case is from February 1st, 2015 until the date of the submission of the complaint on the following July 31st.
3.3. This means, the respondent says that all the complaints relating to 2012, 2013 and 2014 are not within jurisdiction save for those which might be brought within the extended period of twelve months (in total) where ’reasonable cause’ can be established. The respondent contends that even an extension to twelve months would not bring the complaints within the time limits provided for in the legislation. The last date of an incident of alleged discrimination was in April 2014.
3.4.In accordance with normal practise I advised the parties that I would hear argument on the preliminary issue and reserve my decision on that point. I then proceeded to hear the substantive complaints making it clear that in the event of a finding in favour of the respondent on the preliminary matter, that would dispose of the complaint. Otherwise I would issue a decision on those complaints.
3.5.On behalf of the complainant it was submitted that the complaint was not ‘out of time’ and that the effect of the discrimination represented a ‘continuum’ with effects which would last until the complainant’s retirement.
4. Conclusions and Findings on Preliminary Issue
4.1.The complainant in this case had a very substantial grievance whose origins lay in the period just before and immediately after her return to work in January 2013. At that time she went on a four-day week at her own request. She raised issues about how her workload and her performance assessment were handled in the course of that year. This continued in 2014.
4.2.While the issue of whether the complaint falls within the time limits will be the sole determinant on this, taking into account the submission by the complainant that there was some continuity of discriminatory treatment, it is also worth referring to the respondent’s submission that no comparator has been identified for the purpose of establishing any complaint under the Employment Equality Acts.
4.3.Specifically, the complaint under the family status ground related to the alleged failure by the respondent to accommodate the complainant in January 2013, although the respondent accommodated the complainant with a four day week on her return from maternity leave, although I accept the complainant has raised an issue about her workload.
4.4.I was invited to consider the case of Gardiner v Mercer Human Resource consulting DEC-E2006-007. In that case an issue arose as to whether the Equality Officer had jurisdiction under the Employment Equality Acts to hear a case related to a woman’s return to work to her previous position following pregnancy, which in most circumstances would be heard under the Maternity Protection Acts, 1994 and 2004.
4.5.The Equality officer concluded that he did have jurisdiction to hear the case as there was no restriction on a claimant referring any case of discriminatory treatment, however arising under the Equality legislation, and even ‘if the issues in question might also be appropriate to the maternity protection legislation. While this is noted it does no assist the current complainant in respect of the time limits.
4.6.This dispute about workload and its impact on her performance review continued up to January 2014 but I cannot see in it any element of any prima facie complaint to ground a case under the Employment Equality Acts, nor any nexus which would carry it into the time period which would bring it within the jurisdiction of the adjudication.
5. FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
5.1.I have to decide, as a preliminary matter whether the complaint is within the jurisdiction of the Employment Equality Acts having regard to the time limits requirement of the Acts.
5.2. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation and specifically in respect of the preliminary point the oral evidence evidence presented at the hearing.
6.1.I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts that:
The complaint was not lodged within the time limits required by the Employment Equality Acts and accordingly the complaint is not within jurisdiction and is not upheld.
Adjudication Officer/Equality Officer
28th July 2017