Equality Officer Decision
DEC-S2008-092
Martin Delaney & Diana Delaney (nee Doherty)
(represented by Heather Rosen)
v
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
Delegation under Equal Status Acts, 2000-2004
The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On 12th October 2006, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2004, the Director delegated the case to me, Marian Duffy, 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 Acts, 2000-2004, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 28th and 29th May 2007.
1. Dispute
1.1 The dispute concerns a claim by Martin and Diana Delaney that they were discriminated against on the Traveller community and race grounds. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) and 3(2)(h) of the Equal Status Acts, 2000 - 2004 contrary to Section 6(1)(c) of that Act. They also allege that they were harassed contrary to section 11 of the Act. The complaints were lodged over a period in 2004 and were dealt with as one case surrounding the service provided by the respondent arising from the complainants’ application for housing and related accommodation needs and linked issues.
The full reasons for the decisions in this case are set out in the case of John & Angela Mongans and children (DEC-S2008-039 attached) which should be read in conjunction with this decision.
2. I am addressing two matters at the outset of this decision. The first concerns the named respondent and whether the complaint should proceed against named officials and Clare County Council. I find, given the provisions of section 42 of the Equal Status Act 2000 concerning vicarious liability, that the named respondent should be Clare County Council and the complaint herein should proceed against this respondent only and not against the named individuals.
2.1 The second matter is, whether the complaints have been referred within the statutory time limits. Having regard to the provisions of sections 21(1) and 21(11) of the Act, I find that the notifications served under section 21(1) and the referrals of the complaints to the Tribunal comply with the statutory time limits set out in the Equal Status Acts, 2000-2004.
3. Summary of the Case
3.1 This case is one of a number of complaints referred to the Equality Tribunal during the period 2004-2006, on behalf of a large number of complainants, against the same respondents alleging discrimination in relation to housing, accommodation needs and related matters. Several complaint forms with a list of complainants attached were lodged with the Tribunal on behalf of each individual complainant. I commenced my investigation when the cases were assigned to me in October 2006. I decided to associate the complaint forms by family groups so that each complainant family would have a separate hearing before the Equality Officer, as the same set of circumstances pertained to each family group. I also decided in the interest of the efficient management of the cases to arrange an initial hearing (hereinafter called a callover/hearing/ as appropriate) of all the cases, because some complainants in other cases concerning similar issues had not attended the hearings at the appointed time resulting in wasted time for both the Tribunal and the respondent. This callover /hearing were arranged for 28th May 2007 and I accordingly notified the representatives of the date. The purpose of the callover/hearing was to continue the investigation and open the hearing and establish some further and additional information.
3.2 The complainants did not attend the hearing on the appointed date. Their representative, Ms Rosen, said that they were not present as she was unable to contact them. I opened the hearing again on the 29th of May 2007 and the complainants were not present.
The respondent’s representative requested that the complaints be struck out and dismissed under Section 38 of the Equal Status Acts.
4. Conclusion of Equality Officer
4.1 I concluded the investigation and the hearing and my finding under section 25(4) is not in favour of the complainants as no evidence of discrimination was presented in support of the allegation of discrimination at the hearing.
5. Section 37 Obstructing and Impeding the Investigation
5.1 A number of issues have arisen in relation to the conduct of these cases by the complainants’ representative, Ms Rosen. As a result of the intervention of Ms. Rosen a number of complainants did not turn up for the callover/hearing. For the reasons outlined in the case of John & Angela Mongans v Clare County Council attached, I find that Ms. Rosen’s behaviour and actions have obstructed and impeded my investigation of this case and an award of expenses to the respondent is warranted. Having regard to the factors outlined in the case of the Mongans attached, which I have taken into account in relation to expenses, I have concluded that an award of €200 expenses to the respondents would be appropriate in the circumstances.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 – 2004, I issue the following decision: as part of my investigation under Section 25 of the Act, I am obliged to hear all interested persons, I find that the complainants (Martin Delaney and Diana Delaney (nee Doherty), ES/2006/0199) failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. As no evidence was presented in support of the allegation of discrimination at the hearing, I conclude the investigation and I find against the complainants.
6.2 For the reasons set out in the case of John & Angela Mongans & others DEC-S2008-039, I order Ms. Heather Rosen, in accordance with section 37A of the Equal Status Acts 2000-2004, to pay to Clare County Council the sum of €200 (two hundred euro) for obstructing and impeding the investigation of this case.
___________________
Marian Duffy
Equality Officer
6th November, 2008