ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019670
Barry O’Mahony BL
David Ivers DAS
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 14/11/2019
Workplace Relations Commission Adjudication Officer: Brian Dalton
In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
On or about the 31st May 2018 the complainant attended for interview for the position of Activity Day Facilitator. About the 14th June 2018 she rang to see if her application for employment was successful. By phone she was informed that she had been “successful from my interview”. The complainant then states that during this phone conversation she was informed that the contracts were not sorted as there were 3 different contracts to be offered to the successful candidates at interview. She informed the recruitment officer that she would be happy to take any of the contracts. On that basis she subsequently resigned her position with her then employer. After resigning the complainant received a letter from the charity stating that she had been unsuccessful at interview. The complainant was upset and followed up with the Charity who apologised for issuing that letter and that it was a mistake. She had been successful at interview but no job offer or contract had been sent on the basis of that interview. The charity stated that she had been placed on a panel. The complainant sought a recording of the relevant telephone conversation, allegedly offering the role to her. In a letter dated 31st July 2018 the complainant received a letter from the head of quality and governance that the charity doesn’t record telephone calls. The complaint made under Section 77 of the Employment Equality Act, 1998 as amended was received by the Workplace Relations Commission on the 7th February 2019.
Summary of Complainant’s Case:
The complainant believes that she was offered a job by the Charity, relied on that representation and as a result resigned from her role with her then employer. It is alleged that the Charity then subsequently reneged on that promise or offer and because of that action the claimant was out of work for close to 9 months. The complainant by phone, email, registered post attempted to retrieve relevant records of the phone call and interview to support her contention of being offered the role.
Summary of Respondent’s Case:
The respondent apologises for any breakdown in communication between the charity and the complainant. The charity clearly in error caused upset to the complainant when they sent a letter stating that the complainant had been unsuccessful at interview. The complainant was in fact successful at interview; however, a job offer, or contract would only be sent when the charity had certainty over funding and was in a position to proceed. The charity is sensitive to the consequences that have flowed from the miscommunication; however, that must be distinguished from a claim of discrimination under the Equality Act on a ground of Civil Status. The charity denies that it has discriminated in any way on the basis of civil status and in fact no grounds whatsoever have been pleaded by the complainant to substantiate such a claim. It is also the Charity’s contention that the claim is time barred as it was not made within 6 months of the matter becoming clearly one of contention between both parties which arose during July 2018.
Findings and Conclusions:
This complaint is referred under Section 77:
77.—(1) A person who claims—
(a) to have been discriminated against or subjected to victimisation,
(b) to have been dismissed in circumstances amounting to discrimination or
(c) not to be receiving remuneration in accordance with an equal remuneration
(d) not to be receiving a benefit under an equality clause
in contravention of this Act may, subject to subsections (3) to (9), seek redress by
referring the case to the Director General of the Workplace Relations Commission
However, a claim must be made within 6 months as detailed or maybe extended not exceeding 12 months for reasonable cause:
(5) (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.
(b) On application by a complainant the Director General of the Workplace
Relations Commissionor Circuit Court, as the case may be, 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 period not exceeding 12 months as is specified
in the direction; and, where such a direction is given, this Part shall have
(c) This subsection does not apply in relation to a claim not to be receiving
remuneration in accordance with an equal remuneration term.
(6) Where a delay by a complainant in referring a case under this section is due to
any misrepresentation by the respondent, subsection (5)(a) shall be construed as if
the references to the date of occurrence of the discrimination or victimisation were
references to the date on which the misrepresentation came to the complainant
The complaint has not been made within 6 months having been received on the 7th February 2019 when the matters complained off continued until the end of July 2018 and that raises the question of extending time based on reasonable cause. The complainant states that she was requesting information both relating to phone recordings and written records to throw light on what occurred and to support her position that she had in fact been offered that role. Subsequently she then sought legal advice about her complaint. These interactions delayed the submission of the complaint.
The respondent states that having regard to legal advice having been sought and received; the complaint should have been submitted on time. The respondent argues the application to extend time on that basis should not be granted.
Another matter arises relating to the facts to ground the claim. The claimant is alleging discrimination on the ground of Civil Status yet provides no facts or evidence to ground that allegation as is required:
6.— For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring circumstances discrimination shall be taken to occur where —
( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
( b ) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),
( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),
The complainant acknowledged that the complaint as detailed in the form and also in verbal submissions at the hearing had not met the requirements as set out in the Acts to ground an complaint alleging discrimination on the basis of her civil status with relevant facts and comparators. Her primary motive was to ensure that nobody else would have to go through what she had experienced when she left her job based on the promise of a new role that subsequently was withdrawn.
Clearly the Act prohibits discriminatory recruitment:
8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and
a provider of agency work shall not discriminate against an agency worker.
However, the complainant carries the burden of proof to establish a prima facie case of discrimination based on her civil status, grounded on relevant facts, by her prospective employer as detailed below:
85A.— (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
The complainant has not fulfilled this burden of proof; as shown by the absence of any facts in the submission or at the hearing that could make out a presumption of discrimination on the ground of civil status and acknowledges the difficulty of doing so.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have investigated the above complaint and make the following decision in accordance with Section 79 of the Acts; the complainant has failed to make her complaint on time, no arguable case has been made out of alleged discrimination based on her civil status and at a prima facie level; the burden of proof required by the Acts, has not been established by her, regarding discrimination on the ground of civil status; therefore,the complaint is not well founded and fails.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer: Brian Dalton
Discriminatory Recruitment-Burden of Proof-