O'Byrne v The Department of Public Enterprise
| Jurisdiction | Ireland |
| Judgment Date | 04 September 2002 |
| Date | 04 September 2002 |
| Docket Number | Case No. EE/2000/111 |
| Court | Employment Appeal Tribunal (Ireland) |
Case No. EE/2000/111
EMPLOYMENT APPEALS TRIBUNAL
Equality - Discrimination on grounds of age - Employment Equality Act 1998
Facts: The claimant stated that he was entitled to be awarded promotion from the Civil Servant scale he was currently on and such discrimination was due to his age. He also claimed that he was victimised by his employer when he sought, by legitimate means, to highlight these alleged discriminations contrary to the provisions of The Employment Equality Act, 1998. The Department refuted that he had been discriminated stating that Department advised the claimant in a letter that he was not being assigned to the higher scales because the marks he had received were not sufficiently high for him to be so assigned.
Held The Equality Officer ruled that the Department had discriminated against the claimant on the age grounds contrary to Section 6(2) of the Act in refusing to place him on the higher pay scale. Also the Department victimised the claimant in a series of incidents subsequent to his claim under the Act in January 1999 and culminating with the refusal to place him on the higher scale in May 2000. The claimant was awarded EUR3000 in compensation.
EQUALITY OFFICER’S DECISION DEC-E2002-040
PARTIES
O’BYRNE
AND
THE DEPARTMENT OF PUBLIC ENTERPRISE
BRIAN O’BYRNE
V
DEPARTMENT OF PUBLIC ENTERPRISE
1 Dispute
1.1 This dispute concerns claims made by the claimant that he was discriminated against on grounds of age when he was not awarded a Higher Executive Officer Higher Scale Assignment and also when he was not appointed to acting up positions at Assistant Principal Officer level contrary to the provisions of the Equality Employment Act, 1998. He also claims that he was victimized by his employer when he sought, by legitimate means, to highlight these alleged discriminations contrary to the provisions of The Employment Equality Act, 1977.
2 Background
2.1 The claimant commenced work in the Department of Communications/Transport (the Department) in 1985 on promotion to the Higher Executive Grade (HEO). In 1991 he was assigned to the Department of Transport & Tourism when the Departments were realigned.
2.2 He claims that following agreement between the PSEU (the trade union representing HEOs among others) and the Department of Finance a circular outlining revised salary scales for HEOs in return for more flexible working arrangements was issued by that Department in 1995. This circular provided for new standard scales, long service increments and a Higher Salary Scale. The claimant says that he was not selected for placement on the Higher Scale when these were awarded to his colleagues in the Department. He alleges that he was eligible for inclusion in these scales and that he was discriminated against on the grounds of age. He claims that he was further discriminated against when he was not assigned to the higher salary scale in May 2000 when the Department made further backdated assignments under the terms of this circular.
2.3 He also claims that he was further discriminated against when he was not promoted to the grade of Assistant Principal Officer (APO) on a number of occasions between May 1997 and May 2000. He alleges that this occurred as a direct result of his attempts to redress his non inclusion in the higher scales.
2.4 The claimant claims that the Department discriminated against him contrary to section 6, of The Employment Equality Act,1998 (hereafter referred to as the 1998 Act).
Section 6 (1) of that Act provides that
For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2)…one person is treated less favourably than another is, has been or would be treated.
subsection (2) (f) provides
that they are of different ages,
2.5 In 1995 the Department was the Department of Transport, Energy and Communications. It is now known as the Department of Public Enterprise.
2.6 The complainant referred a claim to the Director of Equality Investigations on the 8th November 2000 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case to me, Mary Solan Avison, an Equality Officer temporarily appointed to her for the purposes of this case with the consent of the Minister for Finance and of the Minister of Justice, Equality and Law Reform, and by consent of the parties, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. In her investigations into this claim the equality officer has used the written submissions made by the parties as well as conducting joint oral hearings in which both parties participated.
3 Summary of the Claimant’s Submission
3.1 The claimant says that the allegation of discrimination is on the ground of Age and he says that in May 2000 he was informed by the Department that it would not put him on the higher pay scale for Higher Executive Officers. He further alleges that he was victimized by a series of incidents perpetrated against him culminating in this final incident in May 2000. These incidents occurred between May 1997 and May 2000. He claims that during this period he believes that he was passed over for the Higher Salary Scale
Assignments and Assistant Principal Acting-up positions because of his age. He also argues that because he utilized the legitimate means of the Employment Equality Act, 1977 and the Freedom of Information Act, 1997, to highlight the alleged discrimination, he received treatment from the Department of Public Enterprise which he considers amounted to victimization.
3.2 The claimant outlined his career since his promotion to HEO in 1985 by the Civil Service Commissioners. Following this promotion he spent almost six years working in the then Department of Communications. He spent two of those years working as private secretary to the Minister. Following the realignment of Departments in 1991, he was assigned to the Department of Transport & Tourism. He says that he worked for 3.5 years in the Road Passenger Section and 6 months assisting the National Minerals Policy Review Group prepare recommendations on future minerals policy in Ireland. He also worked in the Department’s Co-ordination Unit and following that he was assigned to Public Transport Division where he was responsible for granting route licences to bus operators.
3.3 The claimant says that, in July 1999 he was promoted to Assistant Principal Officer in the Department of Justice Equality and Law Reform on foot of an inter-Departmental Assistant Principal Officer competition conducted by the Civil Service Commission.
3.4 The claimant refers to the Circular E107/3/95 of 1 September 1995 issued by the Department of Finance following agreement between that Department and the PSEU on restructuring of the executive grades represented by that union. He says that in return for more flexible working arrangements the following revised structures were agreed
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I. the introduction of new standard scales for all PSEU grades
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II. the introduction of long service increments for staff on the new standard scale
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III. 30% of HEOs to be assigned to a higher scale for their grades
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IV. an agreed Appraisal Performance Scheme to be introduced no later than October 1997.
3.5 The claimant says that this award of the Higher Scales was due to be implemented as follows:
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I. 50% of assignments to be backdated to 1 October 1995, the balance from 1 October 1996
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II. 50% of initial assignments to be based on seniority, the remainder on the basis of a selection procedure devised following consultation with local interests,
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III. All future assignments to replace an initial assignee to be made in accordance with performance appraisal procedures to be agreed with the PSEU.
3.6 The claimant says that in May 1997 the first batch 17 HEO assignments came to be filled. He says that in accordance with the relevant circular one half of these fell to be filled strictly on the basis of seniority and the other half on the basis of a selection process overseen by the internal Principal Officer (PO) network. He claims that on the basis of seniority, assignments were awarded to HEOs in the age range 37 to 62 years of age. He claims that the remainder of the assignments were made on the basis of the PO assessments and these were made to HEOs in the age range 29 to 41. The claimant was not awarded an assignment but he claims that he was told that he had missed a seniority appointment by just one place. He states that he was 42 in May 1997.
3.7 The claimant also states that he was told, in response to a recent FOI request, that he was 8th on the seniority list in 1997. He says that he asked the current personnel officer whether this meant that he should have been given an assignment on seniority in 1997 but he says he got no response to his query. The claimant says that he also sought information from the Department in a “Right to Information Request” under the Employment Equality Act, 1998 regarding the exact age of each of those given assignments but this request was refused.
3.8 The claimant alleges that the Department failed to develop the proposed Performance Appraisal Scheme which he claims was to have been established by October 1997. He says that representatives of the PSEU approached the Personnel Unit with a view to agreeing interim procedures to award assignments to fill those vacated by the initial assignees who had either left the Department or who had been promoted since May 1997. The...
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