EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-021
Department of Justice and Equality
File reference: et-155701-ee-15
Date of issue: 24 October 2018
This dispute involves claims by the Luke Murphy (the complainant) that he was discriminated against by the Department of Justice and Equality (the respondent) on the grounds of age in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts in relation to conditions of employment and other.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts to the Equality Tribunal on 27 April 2015.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts the Director General delegated the case on 23 October 2018 to me, Hugh Lonsdale, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission (WRC) on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.
2.4 Following the postponement of a hearing scheduled for 6 April 2016 the complainant wrote to the WRC and asked that the WRC complete the investigation and issue a decision on the basis of written submissions.
2.5 Section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 inserted a new subsection 2A in section 79 of the Employment Equality Acts which provides:
“(a) Where the Director considers that the case may be dealt with on the basis of written submissions only, the Director shall notify the parties in writing of his or her proposal to do so.
(b) A notification under paragraph (a) shall inform the parties of the right to make representations to the Director in accordance with paragraph (c).
(c) A person who receives a notification under paragraph (a) may, within 28 days from the issue of the notification, make representations to the Director as to why the case should not be dealt with on the basis of written submissions only.
(d) Where, in representations made pursuant to paragraph (c), objection is made to the Director dealing with the matter on the basis of written submissions only, the Director shall not determine the matter in that manner.”
2.6 Having read the written submissions the WRC considered that the case could be dealt with on the basis of these submissions. Accordingly, the WRC gave notification of this to both parties and asked them to respond within 28 days. The respondent confirmed that they had no objection to the matter being dealt with on the basis of the written submissions. The complainant did not respond; the letter was returned “gone away”, but in the absence of an objection I proceeded.
- Time Limits
3.1 Section 77(5) of the Employment Equality Acts, 1998 to 2011 states -
“(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 case relates or, as the case may be, the date of its most recent occurrence
(b) On application by a complainant the Director 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 substituted a reference to such a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
3.2 The complainant submits that he was discriminated against on grounds of age in relation to a position he applied for on 18 June 2013. He was informed that he had been unsuccessful on 25 July 2013. He requested feedback which he obtained on 25 July 2013. He then requested further feedback and received a response on 2 October 2013.
3.3 The complainant initiated further correspondence on 31 July 2014. He subsequently submitted a Freedom of Information request to the respondent. In December 2014 he raised the issue with the head of personnel.
3.4 The respondent submits that as the alleged discriminatory act took place on 25 July 2013, when he was informed of the outcome of his application, and the claim was not made until 27 April 2015 it is outside the time limits.
3.5 In this case, the complainant was informed of the outcome of his interview on 25 July 2013. He looked for feedback and correspondence followed until 2 October 2013. Then nothing happened for 9 months until the complainant looked for more information. This claim was not submitted until 27 April 2015.
3.6 When the complainant was asked about the time limits he stated that the discrimination continued but provided no further incidents.
3.7 Section 77 (5) (a) of the Employment Equality Acts states that the six-month time limit starts from the “date of occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence”. In this case the alleged discrimination took place when the complainant was informed he was unsuccessful on 25 July 2013. However, case law has confirmed that the time limit can start from the date that a further decision regarding an alleged act of discriminatory treatment is made by a respondent. However, in this case although there was correspondence between the parties no further decision was made. Therefore, the alleged date of discrimination is 25 July 2013 and this is outside the time limits of section 77.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that this claim was not lodged in accordance with the time limits provided for in section 77 of the Acts and I therefore have no jurisdiction to investigate the claims.
Adjudicator Officer/Equality Officer
24 October 2018