The complainant was employed by the respondent since 1992.  Mr. A was appointed his line manager in 2006 and in 2008 unfair treatment of him by Mr. A allegedly began.  The complainant lodged two complaints with the Tribunal on 29 July 2011 and on 8 May 2012.  The complainant was on sick leave from 12 January 2011 until 7 November 2011.

When looking at harassment the Equality Officer found that the last possible date an act of harassment by Mr. A could have occurred was 12 January 2011, the date the complainant went on sick leave, and on that basis the Equality Officer found that the claim in so far as it related to harassment was out of time.  It is presumed that this latest date relates to the complaint lodged in July 2011.

The complainant returned from sick leave on 7 November 2011, having lodged his first complaint while on leave. When he returned he did two things. He made what appears to be a new application for parental leave in respect of a new child and he appealed the decision of his bullying complaint against Mr. A which had not been upheld.

The complainant asserted that in 2010 he had to do five days work in three days and the Equality Officer was critical of the failure of the employer to make appropriate arrangements to cover the complainant’s work while he was on parental leave.  Following a comment from Mr. A that the complainant would have to give up his parental leave because the sales team complained about not getting orders completed on Thursday or Friday when the complainant was off.  He felt under pressure to give up one day of his parental leave. The respondent stated that the complainant agreed when asked to give up one day per week.

A total of 12 females and 13 males had applied for and been granted parental leave and the majority of those seeking broken parental leave patterns were male.  The complainant contended that females took their parental leave without any issues arising.  In respect of the parental leave applicants as a whole the Equality Officer stated “No evidence was given by the respondent that anyone else had been requested to change or curtail their parental leave arrangements”.   Therefore, no other male or female was asked to change their pattern.

The Equality Officer concluded that the employer did not make appropriate arrangements for the complainant’s parental leave, that this would not have occurred to a female taking parental leave and found this to be discriminatory treatment on grounds of gender in relation to conditions of employment.  The complainant was awarded €7,000 for this.  It is interesting that a hypothetical comparator was used when actual female comparators existed.

The employer’s failure to make appropriate arrangements to cover the complainant’s work could certainly be viewed as creating a very difficult environment for the complainant.  As always, it may be that evidence was presented that is not included in the Decision. However, the 12 other male employees who availed of parental leave raise the question that if they were treated in the same manner as the women, then how can the complainant’s situation have arisen because he is a man?

The complainant asserts that the incident where he changed his parental leave pattern took place in July or August of 2010.  He lodged his first complaint on 29 July 2011.  Therefore, by any test the incident was out of time, possibly by over a year if it occurred in July 2010 as suggested.  The Equality Officer appears to use the Louth VEC v Equality Tribunal (2009 IEHC 370) case to bring the incident in time, saying that he considered it to be the “furnishing of further and better particulars”.

The upshot of this is that an out-of-time incident has been found to be discriminatory even though nothing was found to be discriminatory in the six months immediately prior to the claim made in July 2011 as might be required by the Hurley v Cork VEC case, EDA1124.

The Equality Officer went on to consider disability and found that as the respondent was not aware of the disability at the relevant time it could not be required to provide reasonable accommodation.  In relation to the claim of victimisation the Equality Officer found that the alleged adverse treatment relating to the repayment of a loan had no connection to his complaint to the Tribunal.  Where the complainant was asked by the employer if he would withdraw his claim given that he had a new position the Equality Officer found that the complainant had only provided evidence that the question had been asked and not that he had suffered any adverse treatment.

Why is this case of interest?

• Although other non-harassment incidents occurring after the last alleged incident of harassment were complained of (though not upheld) the Equality Officer found the harassment allegations to be out of time.  This suggests that each type of alleged unlawful treatment will have the deadline applied to it individually.
• The claim was upheld on the gender ground even though there were 12 other men who, as far as is known, were not treated the same way as the complainant.
• The Equality Officer did not apply the reasoning contained in the Hurley decision by ascertaining if something in the six months prior to the lodgement of the first claim was discriminatory before going back to look at the earlier incident found to be discriminatory.