Complainant

Respondent

Parties

Gerard  McGrath

An Garda Siochana

Representatives

 Molloy and Evans Solicitors

Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00062630-001

06/04/2024

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

CA-00062630-002

06/04/2024

The Complainant commenced employment with the Respondent on 26th January 1983. The Complainant was a permanent, full-time member of staff. The Complainant’s employment terminated with his retirement on 4th January 2021.

On 6th April 2024, the Complainant referred the present complaints to the Commission. Herein, he alleged that the Respondent had discriminated against him on the grounds of disability by a failure to provide equal pay and a failure to provide reasonable accommodation. While the Respondent denied these allegations on a substantive basis, they submitted that the same were clearly referred outside of the timeframe permitted by the Act, and that the Complainant did not enjoy standing to bring the present complaints.

A hearing in relation to this matter was convened for, and finalised on, 25th April 2025. This hearing was initially adjourned to permit the parties to engage in an internal process related to the subject matter of the disputes. On foot of the Complainant’s subsequent instructions in this regard, the matter was then listed for hearing on the date listed above.

As set out above, the Complainant raised a preliminary issue as to jurisdiction. In circumstances whereby this matter may be determinative of the entire set of proceedings, the matter will be considered in advance of the substantive matter.

By submission, the Complainant stated that he was formerly engaged as an instructor in the Garda training college. During the period of restriction arising from the Covid-19 pandemic, the Complainant was placed on alternative duties for a period of time, while the activities of the Garda college were temporarily suspended. By submission, the Complainant submitted that he was obliged to remove himself from the workplace due to a pre-existing medical condition, and that this caused him to incur a significant loss of earnings, in particular certain allowances related to his role as an instructor.

By submission, the Complainant accepted that his final date of employment was 4th January 2021, and that the present complaints were referred on 6th April 2024, over three year later. In this regard, the Complainant submitted that he made an application under a circular issued by the Respondent in respect to the non-payment of allowances during the period of restriction referenced above. On 29th January 2024, the Complainant received notification that the allowances in question would not be paid by the Respondent. He further submitted that he became aware that other instructors had received a payment of such allowances in later 2023. In this regard, the Complainant submitted that the final date of discrimination fell within the cognisable period for the purposes of the present Act, and that the matter is in time for the purposes of that legislation.

At the outset of the hearing, the Respondent submitted that the complaint as constituted is clearly and unambiguously out of time. In this regard, the Respondent submitted that the Complainant’s employment ended in excess of three years prior to the referral of the present complaint. In circumstances whereby allegations of discrimination may only be entertained within six or twelve months following the breach in question, the Respondent submitted that the present complaint is statue barred for the purposes of the impleaded legislation.

Regarding the issue of the application for the payment of allowances raised by the Complainant, the Respondent submitted that this represented a fundamental misunderstanding of the relevant circular. In this regard, they submitted that this circular represented an invitation to reconcile payments arising from the transfer of duties from the normal Garda roster to the roster imposed on foot of the restrictions arising from the Covid-19 pandemic. This application did not relate to a consideration of allowances for the period cited by the Complainant. This was communicated to the Complainant at the relevant time.

Having regard to the foregoing, the Respondent submitted that the complaints are expressly out of time for the purposes of the impleaded legislation.

Regarding the present complaints, the Complainant has alleged that he was discriminated against on the grounds of disability. He submitted that as a vulnerable person during the period of restriction arising from the Covid-19 pandemic, he was obliged to remove himself from his normal duties within the workplace. This had the consequence of causing him a substantial loss of earnings, most notably through the non-payment of certain allowances associated with his former duties. By submission, the Complainant stated that the non-payment of such allowances constituted discrimination on the grounds of disability, and that the Respondent’s failure to provide adequately compensated alternative duties constituted a breach of their obligation to make reasonable accommodation for his disability.

While the Respondent was prepared to defend these complaints on their merits, they submitted that in circumstances whereby the complaints were referred in excess of three years following  the Complainant’s retirement, that the same are statute barred for the purposes of the present complaint or, more accurately, that no discrimination occurred within the cognisable period for the purposes of the present Act.

In this regard, Section 77 (5A) of the Acts provides that,

“…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.”

Section 77(5)(b) of the Acts provides that,

“On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, 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 period not exceeding 12 months as is specified in the direction and where such a direction is given , this part shall have effect accordingly.”

Thereafter, Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

Regarding the complaint relating to a failure to provide reasonable accommodation, in the matter of Occupantal Limited -v- Joseph Hayes EDA 184, the Labour Court examined the specific application of the Section 6(A) to such matters. Here the Court found that,

“…the claimed failure of the Respondent to accommodate the Complainant in respect to his disability can constitute a practice within the meaning ascribed to that notion by section 77(6A) of the Act in Ann Hurley v Co Cork VEC. Consequently, the cognisable period for this aspect of the within complaint extends up to the date on which the Complainant’s employment came to an end.”

In circumstances whereby the date on which the Complainant’s employment came to an end was a date some three years prior to the referral of the complaint, I find that this alleged breach did not occur within the cognisable period for the purposes of the present Act.

Regarding the complaints in respect of alleged discrimination, the Complainant’s application was two-fold. Firstly, he submitted that the matter was considered anew by Respondent within the cognisable period of the purposes of the present Act. Secondly, the Complainant submitted that he became aware of other members of the Respondent receiving such allowances during the relevant period.

Regarding the initial point, in the matter of Cast v Croydon College [1998] ICR, the UK Supreme Court held that,

“…a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.”

This case was cited with approval by the Labour Court in the matter of Beaumont Hospital -v- Petty Kaunda EDA 1930. Here, the Court held that the presentation of interview notes after the fact did not constitute a further act of discrimination as there was no such “further consideration” of the alleged discriminatory act as outlined above.

In the matter of Margaret Hannigan -v- HSE EDA2013, the Court found that an ongoing review of a potential reasonable accommodation for the Complainant constituted a further act of discrimination for the purposes of the present Act.

Regarding the fact that the Complainant’s employment had terminated on the date of purported review, this does not present a barrier to a complaint of discrimination. In this regard, Section 2 of the Acts, as amended, defines “employee” in a manner that clearly incorporates former employees. The relevant Section is as follows,  

“…a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment…”

In the matter of Coote v Granada Hospitality ltd [1999] ICR 00, the ECJ held that,

1. “The principle of effective judicial control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.
2. In those circumstances, it is not possible to accept the United Kingdom Government's argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the Directive if they are taken after the employment relationship has ended.”

In consideration of the foregoing authorities, it is possible that an employer may discriminate against a former employee by entering into a “further consideration” of an alleged discriminatory practice. In these circumstances, the date of discrimination for the present Act will be date of the renewed consideration, with a complainant then having to demonstrate a continuum of alleged discrimination in order to bring the previous matters into consideration.

Regarding the present case, it is not at all apparent that the Respondent engaged in such a “further consideration” as referenced in Croydon College, cited above. The circular referenced by the Complainant in this regard invited members to compare income between rosters to determine whether they were at a loss of earnings. The position of the Respondent was that this circular did not refence the payment or non-payment of allowances during this period of restriction and, on that basis, they refused to assess the Complainant’s application. While the Complainant takes issue with this position, it is clearly the case that the Respondent did not engage in any “further consideration” of the alleged discriminatory practices and certainly did not engage in a further act of discrimination on that date.

Regarding the final point raised by the Complainant, the fact that he came into knowledge regarding the alleged payment of the allowance to other members cannot be deemed to be a further act of discrimination on the part of the Respondent. In this respect, it is apparent that the Complainant was aware of the nature of the alleged breach at the relevant time and raised the same locally with the Respondent. The fact that his case may or may not be strengthened by the Respondent’s purported inconsistency in their response to such matters cannot serve as an act of discrimination of itself.

Having regard to the accumulation of the foregoing points, I find that no act of discrimination occurred within the cognisable period for the purposes of the present complaint.

CA-00062630-001 Complaint under the Employment Equality Acts

I find that the Complainant was not discriminated against in the cognisable period for the purposes of the present Act.

CA-00062630-001 Complaint under the Employment Equality Acts

I find that the Complainant was not discriminated against in the cognisable period for the purposes of the present Act.

Statute barred, further consideration, post-employment