Equal Status Act 2000
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-064
Woodhead and Sparkes
V
Swinford Garda Station
(Represented by Hugh Sheridan, State Solicitor for County Sligo)
File Nos. ES/2003/0298 and 0299
Date of Issue October 2008
Keywords
Equal Status Act 2000 – Discrimination, section 3(1)(a) – Harassment (other than sexual), section 11(1) (a) - Sexual orientation ground, section 3(2)(d), Ground of race, section 3(2)(h) – Provision of goods and services, section 5(1) - Interpretation “service”, section2(1) – Jurisdiction of the Tribunal
1. Delegation
1.1. Mr. Wayne Woodhead and Mr. Andrew Sparkes (“complainants”) referred claims to the then Director of Equality Investigations under the Equal Status Act on 13 March 2003 . In accordance with her powers under section 75 of the Employment Equality Act, 1998 and 2004, the Director then delegated the case to me, Tara Coogan, 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. The investigation in accordance with section 25 commenced on 11 April 2008. An oral hearing, as part of the investigation, was held in Sligo on 28 July 2008.
2. Dispute
2.1. The dispute concerns two complaints of discrimination and harassment contrary to the provisions of the Equal Status Act on the grounds of sexual orientation and race. The complainants, Mr. Woodhead and Mr. Sparkes, claim that they were treated less favourably contrary to section 5(1) and section 11(1) (a)between 29 August 2002 and 10 March 2003 by the Garda Siochana (“respondent”) when a named member of the Garda Siochana, responding to a complaint made by the complainants’ named neighbour, refused to view the complainant’s CCTV footage. This treatment, the complainants claim, is on-going. The respondent was notified on 28 April 2003.
3. Case for the complainants
3.1. The complainants maintain that they were treated less favourably by a named member of the Garda Siochana when they asked him to view CCTV footage of an incident involving the complainant’s neighbour. They further maintain that the Garda have continued to treat them less favourably and to harass them on the grounds of their sexual orientation and race on a number of subsequent incidents.
4. Case for the Respondents
4.1. The respondent denies any claims of discrimination and/or harassment. It submits that a detailed internal investigation was carried out by a senior member of the organisation and that it had revealed no less favourable treatment. The respondent submits that it does not condone harassment and/or intimidation by any of its members. Any such allegation will be taken seriously and investigated.
4.2. The respondent submits that the Tribunal has no jurisdiction to investigate the above complaints as the cases refer to the Garda investigating crime or alleged crime, and that under the delegated authority of the Director of the Public Prosecutors (DPP), a District Officer is precluded by statute from giving reasons for his or her decisions.
5. Conclusion of the Equality Officer
5.1. The first issue that I must determine is whether the investigation and prosecution of crime by the Garda Siochana are services within the meaning of “service” defined in section 2(1) of the Act:
“Service means a service or facility of any nature which is available to the public generally or a section of the public, and, without prejudice to the generality of the foregoing, includes-
(a) access to and the use of any place,
(b) facilities for –
i. banking, insurance, grants, loans, credit and financing,
ii. entertainment, recreation or refreshment,
iii. cultural activities, or
iv. transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
but does not include pensions rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies”.
5.2. Having heard the direct evidence presented at the hearing, I am satisfied that the all of the incidents complained of refer to incidents involving the Gardai carrying out their policing duties and/or making decisions under the delegated authority of the DPP. I am therefore satisfied that the Equality Tribunal has no jurisdiction to investigate the above complaints. I concur with decision DEC-2001-011 that states:
“I am satisfied that the intention of the Oireachtas was not to include the investigation and prosecution of crime as services within the scope if the Act when it enacted the legislation…It is my view that the drafting of the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Siochana, including those of the investigation and prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope”.
6. Decision
6.1. In accordance with section 25(4) I conclude this investigation into the above complainants and issue the following decision:
I decide that the complaint is outside the scope of the Act because the investigation and prosecution of crime are not services within the meaning of section 2(1) of the Act.
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Tara Coogan
Equality Officer
October 2008