ADJUDICATION OFFICER DECISION
Loughlin Deegan, Byrne Wallace,
Graham Finlay, HSE
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 79 of theEmployment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant contends that she was discriminated against on gender grounds as she was denied access to qualification support.
Summary of Complainant’s Case:
The Complainant was employed in the National Ambulance Service from 1995. In July 2015 she approached her management enquiring about assistance which was available to employees seeking further educational development. The Manager advised her that there was no assistance available except for a Masters in Healthcare Management, and that she would not be eligible. She commenced a BA (Hons) Law degree with Athlone I.T. in September 2015. She then discovered, when speaking to other employees, that assistance was available in the form of Study / Exam leave. She applied for same and was refused. She progressed the matter through the internal grievance procedure, and the original decision was overturned.
When sitting her exams at the end of Year 1, the Complainant met a male colleague who advised that there was assistance for further education and that the employer was providing both study/exam leave and financial assistance in respect of the Law course being undertaken. The Complainant then went through 5 stages of submissions and appeals in order to have her application for educational support approved. The Complainant had a number of meetings with the Assistant National Director of Human Resources who advised her that her application for educational support was being dealt with as an addendum to another issue she had with the section of work she was in at the time. The Assistant National Director told the Complainant that the employer would refund fees in respect of years 1 and 2 but would not address years 3 and 4 until the refund issued for years 1 and 2. The Complainant wishes it to be noted that in 2014 she made a complaint against the Director of the Service. She subsequently applied for study leave which was refused with the decision being overturned on appeal noting the benefit the degree would have to the NAS and wider employment. As she believed she was not being treated in an equal manner, by being asked to accept a settlement which would have required her to be treated in a less favourable manner to her male colleague, the Complainant completed form E.S. 1 and sent it to the Director of the National Ambulance Service on 17th April 2017. The Director replied noting that he felt the allegations were vexatious. This, the Complainant contends defamed her.
It is argued that the employer discriminated against the Complainant by acting contrary to Section 6 ss.1 and ss.2(a) together with Section 8 ss.1(c) of the Employment Equality Act 1998.
The Complainant submits that when she made her enquiry about educational support and made an application she was assigned to the National Ambulance Service which is a male dominated service. Of the members of the senior management team, 11 were male and 1 female.
It is argued that Circular 21 – 1978 predetermined the categories of degrees which are applicable to an application. Law is one such degree. The Circular sets out the terms and conditions of recoupment, with paragraph 7 identifying the effective dates as being “… in respect of the academic year or course period 1972 – 73 and subsequent years or periods…” It is argued that by affording a male employee participation pursuant to Circular 21 – 1978, the Respondent has effectively given the aforementioned employee an opportunity to progress further in his career pathway through promotion and associated benefits. The Complainant also states that it is important to note that in addition to the offer to pay for 2 years college fees she has received a commitment in writing from the Respondent that in respect of year 4 of the degree, she meets all the terms and conditions set out in the Circular and she will be reimbursed all costs. The Complainant requests that her complaint of discrimination be upheld and that the employer be instructed to approve years 1 – 3 of her application under Circular 21 – 1978 as they have already approved year 4. Further, she requests that the Respondent be instructed to issue a letter of apology from the Director of the NAS withdrawing his insinuation that her application under the Equality legislation was vindictive in nature, thus injuring her reputation in the eyes of reasonable members of society. She requests that the employer be instructed to adequately compensate her for the distress caused by the employer for treating her in a less favourable manner to male colleagues.
Summary of Respondent’s Case:
This complaint, which was submitted to the WRC on 23 July 2018 relates to the refusal of the Respondent to retrospectively agree to refund course fees and travelling expenses expended by the Complainant in respect of a Batchelor of Arts (in Law) degree. The Complainant commenced the course in her own time, without seeking or receiving any prior agreement from the Respondent for any form of support for the course. The course was unrelated to the work that the Complainant was doing at the time that she commenced the course. She was at the time working in the National Ambulance Service (NAS) where she was working from 13 May 2015 to 27 March 2017. She is now employed in the Office of the National Director of Audit from 14 May 2018 to date.
Each operational unit has different roles, functions and budgets. Each take different approaches to educational and development opportunities for staff. Each approach is informed by the role and function of each unit. The Complainant commenced the course in September 2015. She did not notify the Respondent prior to commencing the course. She did not seek any financial or other support prior to commencing the course. She submitted an application for study leave on 28 January 2016. This was initially refused by the Respondent but was granted on 8 April 2016 following a grievance hearing on 7 April 2016. The Complainant submitted a request on 15 June 2016 for funding for fees and travelling expenses in respect of the course. This was refused on 31 August 2016. It is this refusal to which the current complaint of discrimination on the basis of gender relates. It is argued that as the complaint was submitted on 23 July 2018, relating to the refusal of funding on 31 August 2016, the complaint must be deemed to be out of time.
Without prejudice to the fact that the complaint is out of time, for completeness the following is submitted:
The NAS in common with all other units, regularly makes decisions about whether to accept or reject applications from staff to support academic courses. Some applications are accepted and some are rejected. The criteria for acceptance or rejection have nothing to do with gender. For example, a significant number of paramedic staff – the majority of them male apply for funding to pursue the Bachelor of Science in Paramedic Studies in U.L. Many applicants – the majority of them male – are rejected each year. An applicant’s gender is not relevant to the success or failure of any application. If the Complainant had wanted the Respondent to make payments in respect of the course, she should have applied for such payments prior to commencing the course. When the Complainant lodged a grievance in respect of the issue, the Respondent, as a gesture of goodwill without any admission of liability, offered to pay for the first two years of the fees if receipts were produced and was open to discussion in respect of fees for the remaining years. The Complainant rejected this offer.
It is submitted that the Complainant may not bring a complaint of gender discrimination without identifying a valid male comparator. Case law was submitted in support of this argument, (Darguzis v Lough Corrib Engineering Ltd DEC-E2009-038, Eupat Ltd v Businkas, EDA103).
It is submitted that the comparator cited at hearing is not a valid comparator being 5 grades above the Complainant.
It is submitted even if the Complainant identifies a valid comparator, doing so will not shift the burden of proof which is not shifted to the Respondent unless the Complainant establishes a prima facie case.
It is argued that Civil Service Circular 21/1978 does not create an entitlement for any civil servant to recoup third level course fees or travelling expenses. The Circular, which in any case, does not on its face apply to employees of the Respondent, merely permits – but does not oblige employers to make payments under the scheme.
Findings and Conclusions:
This complaint, that the Respondent discriminated against the Complainant on grounds of gender, was submitted to the WRC on 23 July 2018. It relates to the refusal of the Respondent to approve refund of fees and recoupment of travelling expenses in relation to a third level degree which the Complainant undertook in September 2015. The Respondent refused her application on 31st August 2016. The Complainant relies on the considerable amount of time it took to go through the grievance process and contends that the most recent date of alleged discrimination was 2nd February 2018. This was the point where the Complainant was offered a solution to her various grievances by email dated 1 February 2018 which identified among other issues potential for placement / re-location options and a solution to the course fees issue. The Complainant is now employed in the Office of the National Director of Audit from 14 May 2018 to date and the Respondent has indicated that she meets the criteria in the Circular 21/1978 and full fees refund and travel expenses apply for the last year of her course. I note that the Respondent has made clear arguments that the employee cannot rely on Circular 21/1978 to claim automatic right to payment of fees and travelling expenses. I find that the Complainant did not make out a prima facie case whereby the probative burden is with the Complainant. Notwithstanding this, in considering whether the complaint is out of time, I note that her complaint was lodged some two years after the refusal of her application for refund of fees and travel expenses. It has long been established that to avail of protective legislation, the complainant must lodge the complaint in time after the alleged act of transgression. I find that the point of alleged discrimination was the refusal of her application on 31st August 2016 and I deem the complaint to be out of time.
This complaint is out of time.
Dated: 4th June 2019
Workplace Relations Commission Adjudication Officer: