Case Number: DEC-E2016-100. Workplace Relations Commission

• Judgment Date: 01 July 2016
• Year: 2016
• Docket Number: DEC-E2016-100
• Court: Workplace Relations Commission
• Parties: Aleksandra Kotarzewska -v- Department of Justice and Equality

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-100 PARTIES Aleksandra Kotarzewska AND Department of Justice and Equality
(Represented by ClionaKimber B.L. instructed by Chief State Solicitors Office) File reference: EE/2013/639 Date of issue: 7th July 2016

HEADNOTES: Employment Equality Acts – Race – Access to Employment

1. Dispute

1.1. The Complainant alleges that she had been discriminated against by reason of her race and that she had been treated unlawfully by the Respondent in discriminating against her getting a job.

1.2. This complaint, under the Employment Equality Acts, was received in the Equality Tribunal on 6th December 2013.On 5 May 2016 in accordance with his powersunder section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Roger McGrath an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 18 May 2016.

1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2. Complainant's Written Submission

2.1. The Complainant submitted a written submission outlining her case.

2.2. The Complainant is a Polish national who has worked in the Dept. of Justice and Equality since July 2008.

2.3. The Complainant submitted that on 4th June 2013 an Office Notice was issued by the Dept. in relation to a competition for assignment to posts at HEO/AO/Head of Visa Section, EO/Visa Officer and CO Assistant Visa Officer in Visa Sections at Irish Embassies abroad. Under paragraph 2. Eligibility the notice stated:

2.4. "It is usual for civil servants being posted abroad to be issued with Irish diplomatic or official passports and, for some locations, for the Department of Foreign Affairs and Trade would regard that as practically essential for the purposes of residence in the foreign state and recognition by and interaction with the various authorities of the host government. Similar considerations would apply with regard to members of the immediate family of officers. Under the 2008 Passport Act, Irish passports, whether standard, official or diplomatic, may only be issued to Irish citizens. It is a matter for the individual staff member to obtain an Irish passport in advance of any posting, the commencement of same cannot be delayed on this basis."

2.5. In the Complainant's view this advertisement appeared to be in breach of the Employment Equality Act, 1998 and 2004 and the Equal Status Act, 200 and 2004, in that it was discriminatory with regard to employment and access to employment and advertising.

2.6. The Complainant referenced section 1.10 of the Equal Status Acts which, she said, states that a person shall not publish or display, or cause to be published or displayed, an advertisement which indicates an intention to discriminate, harass, sexually harass, or might reasonably be understood as indicating such an intention.

2.7. The Complainant acknowledged that section 36 of the Employment Equality Act allows for certain restrictions, including restrictions in relation to citizenship, to be imposed on civil servants. However, she submitted that it was her understanding that European law takes precedence over any norms of national law and that under the European directive 2004/38 and the European Communities (Free Movement of Persons) Regulations 2006-2008 European citizens residing in the State should be treated in all respects concerning employment in the like manner as Irish citizens.

2.8. It was the Complainant's contention that the department advertisement clearly indicated an intention to discriminate against any employee who was not an Irish citizen, moreover that it indicated an intention to discriminate against an employee whose immediate family members were not Irish citizens.

2.9. The Complainant went on to propose that the positions advertised for were not diplomatic posts and therefore an Irish passport is not essential in order to carry out the duties required by Visa Officers. The Complainant stated that she had previously worked as a Visa Officer in the Irish Naturalisation and Immigration Service as an Assistant Visa officer, and that colleagues of the same grade have been posted abroad, access to these postings seemed to be restricted to only those in possession of Irish passports.

2.10. In June 2013 the Complainant sought clarification from the Department's HR Division however as an adequate response was not forthcoming the Complainant lodged a complaint with the Equality Tribunal on 6 December 2013. The Complainant stated that at the time she submitted her complaint to the Equality Tribunal she put the date of the publication of the office notice (04/06/2013) as the most recent date of discrimination, however it was her view now that this was incorrect and in fact the discrimination stretched to July 2015 as the panel established as a result of the competition remained in place until that time. In any case on 25 August 2015 a new completion for assignment to posts in Visa Sections of Irish embassies abroad was announced by way of another office notice. This later office notice contained the same wording relating to eligibility that the Complainant had found objectionable previously.

2.11. In questioning the Complainant stated that when she applied for the position in 2013 she did get an interview, that the "selection process was not a problem", that she had "no concerns about not being selected". She went on to say that the procedures used in the selection process were fair, that her difficulty lay solely with the advertisement and the wording used which she believed indicated...