1. ADJ – 00000107 - This is the first review of an equality decision submitted since the establishment of the WRC being lodged on 8 October 2015. The case considers an interview process and the respondent’s apparently robust interview procedures won the day.

2. DEC-E2016-037 – Victimisation was the focus of this case in respect of treatment following the lodgement of a previous claim to the Equality Tribunal. The complainant was awarded €48,750 because of a delay of 4 years and 7 months in addressing the complainant’s grievance in circumstances where the respondent had explicitly stated the grievance was inextricably linked with the earlier claim.

1. ADJ-00000107

Issues: Race ground (nationality)

The complainant is an Irish national who worked for the respondent on a casual basis since 2001 as an Orchestral Assistant. Three competitions were held for the post of Senior Orchestral Assistant for which the complainant applied. The complainant was unsuccessful in all three. Two of the appointees were Irish and the third of Latvian nationality.

The respondent presented evidence as to its method of selection including objective selection criteria, scoring system and interview board set up. It also stated that the complainant scores (during the second interview process) were significantly lower than other candidates in that he scored 2 out of 20 for Supervising and Problem Solving. Under another heading (not listed) he scored 46 out of 100 when two other candidates achieved 91 out a hundred.

Evidence was presented by the employer in respect of the final impugned interview process including the scoring of the candidates. The person appointed was of Latvian nationality. The complainant believed he was overlooked as a result of discrimination based on his nationality. He also claimed indirect victimisation.

The Adjudicator found that the complainant had failed to establish a prima facie case of discrimination, that the respondent had conducted the interview processes in 2015 to the highest standard and he dismissed the complaints.

No finding was made in respect of the victimisation but of course there is no such concept as indirect victimisation as one is required to show adverse treatment of oneself and link it to some form of protected act. This is addressed in more detail in the second case below.

Why is this case of interest?

• This is a timely reminder that employers should have objective selection criteria in place and methods to collect the relevant information. The employer in this case was in a position to show all the appropriate records and to justify decisions made to the satisfaction of the Adjudicator.
  
  

2. DEC-E2016-037, M Higgins v Permanent TSB PLC

Issues: Victimisation, previous equality complaint, part-time working, change of role on return from career break, handling of grievance

This decision relates to events (2008 – 2013) that occurred in the period following an earlier referral to the Equality Tribunal (2005). This later complaint was lodged on 6 February 2014. The original case resulted in the complaint being upheld. This was appealed to the Labour Court but settled.

Following a return from parental leave and career break in 2008 the complainant was not returned to her previous role or unit and was instead offered a post in an area she considered less technical with a consequential detriment to her career. She sought part-time working and while others in her new area were given permanent part time working arrangements she was required to reapply each year. She raised a grievance to address these issues which concluded in September 2013, some 4 years and 7 months later.

The respondent argued that the issues arose in 2008 and were out of time. The Equality Officer found that the transfer and part-time working issues were out of time as no new review of these matters took place. However, on the 9th September 2013 the Respondent decided that, without demonstrating any intent to fairly consider her concerns about the [external grievance] report, the matter was at an end”.

Fundamental to the conclusions in this case is whether or not the complainant could indicate a causal link between any adverse treatment and a protected act. In this case the protected act was the complainant’s earlier complaint to the Tribunal. In terms of a causal link the complainant was told in April 2010 (predating the Tribunal decision of the first process) by the respondent that the matters were inextricably linked, thereby linking the two processes.

The Equality Officer found that the protracted handling of the complainant’s grievance, in addition to not considering her concerns about the independent May 2013 report, amounted to adverse treatment where she was victimised for progressing a previous complaint to the Equality Tribunal. The complainant was awarded €48,750 not subject to PAYE.

The issues in this case were separated into three perhaps to facilitate the various arguments. One might argue however, as the first two issues formed the basis of the grievance and the handling of the grievance was upheld as victimisation, that the first two were also in time. However, it is a significant award based on the one item and reflects the normal robust stance taken by the Tribunal when victimisation is upheld.

This is a lengthy decision but one worth reading to understand how the situation evolved. In particular, the issues arising from the use of an external person to undertake the grievance appeal is worthy of note particularly as the fact that he took instruction from the person in HR against whom the complainant had laid the blame for the matters being addressed by the grievance process contributed to the findings and award in this case. The external person’s evidence was that he met with the individual (MB) to deal with procedural matters in circumstances where he was not aware of the nature of the work at that point.

Why is this case of interest?

• The association by an employer of any process with an earlier complaint of discrimination is always likely to cause difficulties when victimisation is being considered later. In this case the employer created that link explicitly
• Ensure that any independent person engaged to conduct a grievance or disciplinary process is briefed by someone other than the focus of the process, although it is generally accepted this may not be possible in very small businesses.