At the first hearing of this case the complainant’s representative wished to introduce incidents that had occurred after the submission of the complaint.  Following the hearing another complaint was lodged in respect of those later incidents and this was delegated to the same Equality Officer.  The second complaint related to two issues, the suspension of the complainant by the respondent following an incident on 26 October 2010 until August 2011 and to the complainant’s assertion that the respondent had applied the disciplinary policy to him.  He asserted that he only became aware that no disciplinary action was pending against him at the first hearing of the complaints before the Tribunal and therefore this constituted ongoing discrimination until the date of the hearing.  The Equality Officer found that any discriminatory treatment of the complainant in respect of the first issue, the suspension, ceased when he returned to work.  As this was more than 12 months prior to the submission of this second complaint it was out of time.  In relation to the second issue, the assertion that the disciplinary policy had been applied to the complainant, the Equality Officer was very critical of the respondent and its procedures, or lack thereof, but found that while these may have been inadequate in terms of best practice, he did not find that it was a continuous act or a chain of connected acts that could amount to discrimination of the complainant until the lodgment of the second complaint.  The Equality Officer found that this second complaint was out of time and that he had no jurisdiction to deal with it further.

Looking at the first complaint, the Equality Officer found that the actions of the employer in referring the complainant to its Occupational Health Department were reasonable in the circumstances where they held genuine concerns as to the complainant’s medical fitness to carry out his contracted duties.  However, in considering the complainant’s removal from the overtime roster, the Equality Officer noted that when such concerns had existed previously the complainant had not been removed from the roster but rather his overtime had been limited.  The Equality Officer found that removing the complainant from the overtime roster altogether would not have been applied in the same manner to another employee in the same role who had no disability or a different disability.

The complainant was awarded €2,800 by way of loss of earnings (liable to PAYE/PRSI) and to €12,000 by way of compensation.

Why is this case of interest?

• It contains a useful consideration of the identification of when discrimination could have occurred when considering the timeliness of a complaint.

Read the full case here:

http://www.labourcourt.ie/en/Equality_Tribunal_Import/Database-of-Decisions/Temp_Files/DEC-E2014-009.pdf