Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Discrimination on the Gender, Marital Status and Family Status grounds, sections 3(2)(a), (b) and (c) - Supply of goods and services, section 5(1)
1. Dispute
This dispute concerns a complaint by a father that he was discriminated against, contrary to sections 3(2)(a), (b) and (c) of the Equal Status Acts 2000-2004, by the Health Service Executive on the grounds of gender, marital status and family status. The complainant maintains that the discrimination occurred over a period of years between 1995 and 2003.
Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
2. Evidence of Parties
The complainant and his wife separated in 1995 and the complainant moved out of the family home. As the complainant was out of work at the time, he says that he became the prime carer for their two children after the separation, culminating in him being awarded a One Parent Family Allowance by the Dept of Social Community and Family Affairs in 1999.
Between 1995 and 1999, the couple's son experienced difficulties at school after which the complainant wrote to the Health Board seeking a psychological assessment for his son. The complainant says that psychological assessments were subsequently carried out but that he was not consulted about them as, without his consent, the Health Board arranged them in conjunction with his wife.
The complainant says that the Health Board continued to deal with his wife in the matter of his son's assessments over the next few years and that he was not kept informed of developments.
The Health Board explained that, when the consultations were arranged, the appointment details were sent to the parents at the family home. The Health Board say that when the wife brought the child for the assessment they presumed that it was with both parent's consent. At that time, they say that there was no requirement on the Health Board to verify that both parents' had agreed to a child seeing a Health Board specialist, before conducting an assessment.
At the Hearing on 21 March 2006, the complainant said that he believed that the treatment he received in the 1990s constituted discrimination on the gender, marital status and family status grounds. The complainant also maintains that this discrimination extended up until 2003 with the Health Service Executive's continued refusal to apologise to him for what happened in the 1990s or to release to him copies of internal documents relating to his son's assessments dating back to the 1990s.
The complainant identified 3 March 2003 as the latest incident of discrimination. This was the date he received a response to his appeal under the Freedom of Information Act for access to documentation held by HSE relating to events that had occurred in the 1990s.
In response, the HSE argued that the complainant could not ground his claim of discrimination on the contents of the FOI response as the response merely constituted an Internal Review of his earlier FOI request. The HSE maintained that the actual alleged incidents of discrimination all occurred before the Equal Status Act 2000 came into force and therefore his complaint was not admissible.
3. Conclusions of the Equality Officer
In this case, the respondents maintain that the complaint is inadmissible because it relates to events that occurred prior to the Equal Status Act coming into force. The complainant, for his part, maintains that the alleged discrimination continued over a period of time from 1995 until 2003 and that all the incidents in that period fall for consideration under the Equal Status Acts.
In considering whether the events between 1995 and 1999 come under the provisions of the Equal Status Acts 2000-2004, I have had regard to a previous Equal Status decision, Green v Quinn Direct Insurance Limited (DEC-S2001-024) where the complainant entered into a motor insurance contract in July 2000 and was furnished with an insurance premium which he believed was excessive and constituted discrimination on the age ground.
In the Green v Quinn Direct decision, the Equality Officer concluded that
"Statutes generally do not have a retrospective effect unless there is a clear provision to the contrary and no such provision is contained in the Equal Status Act, 2000. I have considered a Supreme Court Judgement in an employment case under the Employment Equality Act, 1977, Aer Lingus Teo v. The Labour Court [1990] ELR 113 and 125., on the seniority of air hostesses, who were obliged to retire on marriage and who were subsequently re-employed, initially on short-term contracts and in 1980 under a collective agreement, were given permanent employment. Under the agreement neither their pre-marriage permanent service or their post marriage temporary service was credited to them for the purposes of seniority or pensions. The Supreme Court stated:
"This discrimination occurred when it was not illegal and occurred many years before the coming into force of the statute. ...... The compulsory retirement of the applicants was a discriminatory act relating to marital status but it was not illegal. The Act of 1977 does not have retrospective effect."
While this particular case relates to employment law, and in the absence of a clear statutory provision to that effect, the Supreme Court is a clear authority that a contractual provision which is discriminatory but lawful at the date of its conclusion should not be invalidated retrospectively. "
Based on the aforementioned case law, the Equality Officer concluded in Green v Quinn Direct that the alleged act of discrimination was "a once-off act" which occurred in July, 2000, before the Equal Status Act came into operation and, therefore did not fall for consideration under the Equal Status Act 2000.
The Green v Quinn Direct case is, in my opinion, very similar to the case under consideration in that the incidents referred to by the complainant, involving the HSE, himself and his son, all occurred in the 1990s prior to the Equal Status Act 2000 coming into force. Accordingly, I consider that the incidents concerned cannot be dealt with retrospectively under the Equal Status Acts.
The complainant also argues that the HSE discriminated against him after the Equal Status Act came into force in the manner in which they dealt with his requests for access to documentation relating to the events that occurred in the 1990s. In this regard, I note that the complainant refers to the requests he made to the HSE under the Freedom of Information Act.
Having considered the evidence before me as to how the HSE dealt with The complainant's applications for access to information under the Freedom of Information Act 1997, I can find no evidence to show that the complainant's applications were dealt with less favourably because of his gender, marital status or family status. Accordingly, I find that discrimination was not a factor in the manner in which the complainants' FOI requests were handled.
Finally, the complainant argues that he was discriminated against in not being provided with an apology by the HSE for its failure to consult directly with him in the 1990s. He claims that a woman would not have been treated the same in similar circumstances. Having considered this matter, I can understand why the complainant feels aggrieved over the events that occurred and the fact that he has not kept informed of developments in relation to his son. However, there is no evidence before me to suggest that, if an apology was due, that the HSE would have apologised more readily to a woman in similar circumstances, if the parents roles had been reversed. Accordingly, I find that there is insufficient evidence to uphold the allegation of discrimination.
4. Decision
I find that the incidents referred to by the complainant, involving the HSE, himself and his son, all occurred in the 1990s prior to the Equal Status Act 2000 coming into force and that the incidents concerned cannot be dealt with retrospectively under the Equal Status Acts.
I also find that the complainant has not established a prima facie case of discrimination under the Equal Status Acts 2000-2004 in relation to any event that occurred since the Equal Status Act came into force in 2000.
Accordingly, find in favour of the respondents in the matter.
Brian O'Byrne
Equality Officer
28 April 2006