Complainant

Respondent

Parties

Patricia  Nolan

CIE

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 Sharon O’Rourke and Cormac Costello

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039436-001

16/04/2020

The complainant’s claim is that she was discriminated against in relation to access to employment on the grounds of family status contrary to section 6 of the Employment Equality Act, 1998.

The respondent made submissions on two preliminary points.

First, the respondent submitted that this complaint had already been adjudicated upon by an Adjudication Officer of the WRC.  The Adjudication Officer in the earlier decision, ADJ-00028865, decided as follows: “The complainant was not discriminated against on the grounds of family status in relation to access to employment with the respondent organisation.” The respondent in that case was Iarnrod Eireann.  The respondent submits that this complaint cannot be considered a new claim.

Second, the respondent in this complainant, CIE, submits that it was not her prospective employer and therefore could not have discriminated against her in relation to access to employment.  The respondent named in this complaint is not the correct respondent.

The complainant made five applications for posts that were advertised by Iarnrod Eireann between September and December 2019.  She met all the entry requirements advertised but was not considered in the recruitment process because she had availed herself of a voluntary severance payment from Iarnrod Eireann in 2012.  The complainant contends that she was discriminated against because of her decision to avail herself of the voluntary severance in 2012 to raise her young family.

The complainant asserts that when she applied for the voluntary severance package in 2012, she was not provided with a copy of a policy about re-employment or re-engagement.  She only received a copy of such policy in 2019, after she queried why her applications for the advertised posts were not considered.  She was taken aback that the policy provided to her in 2019 was a CIE policy and not an Iarnrod Eireann policy.   The complainant stated that she was not trying to have a second hearing, she had wanted a hearing against the two companies.

CA-00039436-001

Complaint submitted pursuant to section 77 of the Employment Equality Act, 1998.

The respondent made a submission to have the preliminary issues heard before any hearing on the substantive issue of alleged discrimination.  Section 79 (3A) of the Act makes provision for investigation of preliminary issues. 

Background

The complainant was an employee of Iarnrod Eireann between 1999 and 2012.  She left Iarnrod Eireann on a voluntary severance package effective 19 December 2012. 

Between September and December 2019, the complainant made five applications for posts that were advertised externally by Iarnrod Eireann.  The complainant was not considered in the recruitment process because she had received a voluntary severance payment from Iarnrod Eireann in 2012.  Following requests to Iarnrod Eireann the complainant was provided with a copy of the policy dealing with re-employment of former employees.  The policy states that “Staff whose positions are identified as surplus and who retire on Voluntary Severance should not be considered for re-employment and/or re-engagement under normal circumstances.”

The complainant submitted a complaint to the WRC against her former and prospective employer, Iarnrod Eireann, claiming she had been discriminated against on the grounds of family status when not considered for re-employment for the posts advertised by Iarnrod Eireann.  That complaint was adjudicated upon in ADJ-00028865.  The Adjudicator decided that “The complainant was not discriminated against on grounds of family status in relation to access to employment with the respondent organisation.”

The complainant submitted the instant complaint naming CIE as the respondent.  The complainant claims she was discriminated against on the grounds of Family Status because of her decision to avail of the voluntary severance offer to raise her young family. 

Preliminary Issues

The respondent named in this complaint is CIE.  The preliminary issues raised by the respondent are that the complaint has already been decided upon in a case against Iarnrod Eireann, who were the complainant’s prospective employers, and that CIE was not at any time the complainant’s prospective employer.

Legislation

Section 8 of the Act provides to following:

Discrimination by employers etc.

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.

 The Act provides that an employer shall not discriminate against a prospective employee in relation to access to employment.  It follows that if a prospective employee believes they have been discriminated against, on any of the nine discriminatory grounds, by a prospective employer when accessing employment their complaint lies with that prospective employer. 

The complainant submitted five applications for employment to Iarnrod Eireann.  She formed the view that she was discriminated against on the grounds of her family status when she was not considered for re-employment.  The complainant correctly submitted her complaint against her prospective employer, Iarnrod Eireann.  That complaint was heard, and the adjudication decision was issued as ADJ-00028865.  The Adjudicator decided that the complainant was not discriminated against on grounds of family status in relation to access to employment with Iarnrod Eireann. The complaint against the complainant’s prospective employer has therefore been decided.

The respondent named in the instant complaint is CIE.  The complainant acknowledged that she did not make any application for employment to CIE, nor had she been an employee of CIE.  In circumstances where the respondent was not the complainant’s prospective employer, the complainant has no standing to submit a complaint of discriminatory treatment concerning access to employment against that respondent.  A complaint against the correct prospective employer has already been decided in ADJ-00028865.  The complainant has named the wrong respondent in the instant complaint.  Therefore, I do not have jurisdiction to adjudicate on this complaint.

CA-00039436-001

Complaint submitted pursuant to section 77 of the Employment Equality Act, 1998.

Having carefully considered the submissions on the preliminary issues I am satisfied that the respondent named in this complaint was not the complainant’s prospective employer.  The complainant acknowledged she did not make any application for employment to the respondent named in this complaint.  Consequently, the complainant has no standing to submit a complaint of discriminatory treatment concerning access to employment against the respondent named in this complaint.  Therefore, I do not have jurisdiction to adjudicate on this complaint.

Discrimination

Access to Employment

Preliminary Issue

Incorrect Respondent