Murphy v Dublin City Council

• Jurisdiction: Ireland
• Judgment Date: 24 July 2002
• Docket Number: DEC-E/2002/31 File No: CDEE2000/91
• Date: 24 July 2002
• Court: Equality Tribunal

Employment Equality act, 1977 and Employment Equality Act, 1998

Murphy (Represented by Impact)

And

Dublin City Council (Formerly Dublin Corporation (Represented by Mr. Alex White BL)

DEC-E/2002/31

File No: CDEE2000/91

Office of the Director of Equality Investigations

Abstract:

Equality - Discrimination - Previous claim - Whether previous claim influenced the respondents in their treatment of her - Whether claimant was victimised

This dispute concerns a claim that an employee of Dublin City Council (formerly Dublin Corporation) discriminated against her contrary to section 74(2)

(a)

of the Employment Equality Act, 1998, when it penalised her for having in good faith previously referred a claim under the Employment Equality Act, 1977.

Held The Equality Officer found that the complainant failed to establish a prima facie case of victimisation in respect of her complaint and therefore her case failed.

1. DISPUTE

1 This dispute concerns a claim by Ms. Breege Murphy that Dublin City Council (formerly Dublin Corporation) and hereafter called “the Council”, discriminated against her contrary to section 74(2)

1. (a)

   of the Employment Equality Act, 1998, when it penalised her for having in good faith previously referred a claim under the Employment Equality Act, 1977.

   2. BACKGROUND

   2.1 In June, 1998 the complainant referred a complaint under the Employment Equality Act, 1977 alleging that the respondent discriminated against her in a competition for the position of Rates Collector in the Council. In March, 2000 the Equality Officer issued his Recommendation and found that the respondent had discriminated against her. He recommended that the respondent pay the complainant £2,000 in compensation for the distress suffered as a result of the discrimination.

   2.2 The complainant referred a case to the Director of Equality Investigations on 1 September, 2000 (under the Employment Equality Act, 1988) alleging that as a direct result of referring this previous case, she has been subjected to systematic and deliberate victimisation within the meaning of 74(2)

2. (a)

   of the Employment Equality Act, 1988. In accordance with her powers under the Employment Equality Act, 1988, the Director of Equality Investigations assigned the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Written submissions were received from both parties. For a variety of reasons a hearing in relation to the complaint was not held until 7 November, 2001. A number of issues emerged at the hearing which required further clarification and gave rise to a considerable amount of correspondence subsequent to the hearing. The final correspondence in this regard was received by the Equality Officer on 9 March, 2002.

   3. SUMMARY OF THE COMPLAINANT’S CASE

   3.1 In June, 1998 the complaint referred a complaint under the Employment Equality Act, 1977 alleging gender discrimination in respect of a competition for Rates Collector which the respondent held during 1997. The Equality Officer issued his written Recommendation in respect of the complaint in March, 2000 and found that the respondent had discriminated against the complainant and awarded her £2,000 for the distress suffered. The respondent did not appeal the Recommendation. The complainant alleges that since she took her case under the 1977 Act she has been subjected to a systematic array of incidents by her employer which constitute victimisation of her within the meaning of section 74(2)

3. (a)

   of the Employment Equality Act, 1988. The complainant states that she has worked for the respondent for twenty-four years prior to her taking her first case in June, 1998 and she has never experienced such treatment prior to referring her complaint.

   3.2 The complainant states that she was assigned Acting Administrative Officer (Grade VII) in the Rates Office from May, 1998 to July, 1999. About one month after the acting assignment had commenced the complainant approached the Assistant Principal Officer in the Rates Office, Mr. Ayton, to seek payment of a car allowance which she considered she was entitled to as a result of her duties as a Grade VII. The complainant states Mr. Ayton informed her that he would carry out the duties which attracted the car allowance and her application was denied. The complainant further states that this allowance had been granted to her predecessor in the post and was also granted to her successor in the post, when she returned to her substantive grade in July, 1999 following completion of her acting up assignment. The complainant’s union representative wrote to the respondent in February, 2000 (Appendix A) seeking retrospective payment of the allowance. The Council’s response at that time prompted the complainant to refer the matter to a rights commissioner. The respondent offered an alternative to the rights commissioner investigation and proposed assigning the complainant duties which would involve use of her car for a period equivalent to the period of time she had acted up to Grade VII (see Appendix B). The complainant considered this offer unacceptable as it would have required her to carry out duties appropriate to a Grade VII while being remunerated at Grade VI level in order to qualify for an allowance which she considered she should have been paid while in the higher grade. The complainant subsequently withdrew the rights commissioner referral in favour of having the matter investigated as part of this complaint. The complainant submits that the respondent’s behaviour in respect of this matter constitutes victimisation of her contrary to the Employment Equality Act, 1998.

   3.3 The complainant states that she had been nominated for a position of Staff Support Advisor in the Council in 1998. This was a voluntary position which was established to assist and support staff (at the initial stage) who were experiencing problems. The position requires a close working relationship with the Council’s equality officer In the interests of clarity I feel it necessary to state that this particular officer has no connection with ODEI- the equality tribunal. Equality Officers of that body are statutory officers with specific powers and functions under the Acts.

   . In June, 1998 a new person was appointed to the position of equality officer in the Council following a competition for the post. The complainant was of the view that a perception existed among staff in the Council that the new equality officer may have difficulty performing her role and she wrote to Mr. Kelly, Human Resource Manager on 7 June, 2000 seeking clarification of a number of points, advising that unless these issues were addressed to her satisfaction, she felt she could not continue with her role as Staff Support Officer. The complainant marked this correspondence “private and confidential”. Some days later she received a telephone call about the correspondence from Mr. Kavanagh, Personnel Officer. She states that she was surprised at this, in light of the fact that she had addressed the envelope to Mr. Kelly as “private and confidential” and adds that when she indicated to Mr. Kavanagh that she did not wish to deal with him on the matter, he became aggressive, stating that she had no choice in the matter. The complainant felt threatened by his attitude and the conversation terminated. The complainant contends that some minutes later Mr. Kavanagh telephoned her again. This time his attitude seemed calmer and less threatening, although the complainant still refused to discuss the contents of her letter with him. The complainants alleges that during the course of this second conversation, Mr. Kavanagh made reference to her case and said “For you it like a girl who has been raped going into Court. It is far harder on her than it is on anyone else. For us it is routine”. The complainant states that she was extremely shocked by this comment and submits that as it was made from a senior official in the Personnel Department, which has responsibility for enforcing the Council’s Equal Opportunities Policy, it clearly displays that its behaviour towards her was motivated by the fact that she had previously referred a complaint under employment equality legislation.

   3.4 The complainant states that on 15 June, 2000 she informed Ms. Williamson, Staff Welfare Officer, of the content of the conversations with Mr. Kavanagh and that she also reported them to the Human Resources Manager (in writing) on 22 June, 2000. The complainant submits that (i) the respondent did not deal with her correspondence in an appropriate manner and (ii) Mr. Kavanagh’s comments were unwarranted and hurtful. She contends that these actions clearly demonstrate that the Council was penalising her contrary to section 74(2) of the Employment Equality Act, 1998.

   3.5 The complainant had been awarded £2,000 compensation by the Equality Officer in respect of her previous claim under the Employment Equality Act, 1977. The respondent paid her this compensation on 16 June, 2000. However, the payment was made as part of her salary and as a result income tax (PAYE) and social insurance (PRSI) deductions were applied to it. The complainant enquired of the Salaries Section why the payment had been made as part of her salary and was informed that it was operating on an instruction from the Human Resources Department. On making an enquiry of the Human Resources Department she was advised that tax and social insurance were applied to the compensation on foot of advice from the Revenue Commissioners, which the complainant contends was only received by the Council on 22 or 23 June, 2000. The complainant states that the written instruction to pay the compensation was authorised on 6 June, 2000. This instruction clearly states that tax and social insurance is to apply to the payment (See...