THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 - 2008
Decision DEC–S2009-024
PARTIES
Dr. Raymond Chawla
and
Irish Wheelchair Association
(Represented by Mr. Anthony Kerr B.L. on the
instructions of Doyle Solicitors)
File References: ES/2007/0055
and ES/2007/0107
Date of Issue: 15th April, 2009
Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) – Family Status, Section 3(2)(c) – Race Ground, Section 3(2)(h) – Victimisation Ground, Section 3(2)(j) – Harassment, Section 11(5) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
These complaints were referred to the Director of the Equality Tribunal on 5th June, 2007 and 9th October, 2007 under the Equal Status Acts, 2000 to 2004. On 18th November, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 to 2008. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 12thMarch, 2009.
1. Dispute
1.1 This dispute concerns a complaint by the complainant, Dr. Raymond Chawla, that he was discriminated against by the respondent, the Irish Wheelchair Association, on the Family Status and Race grounds in terms of Sections 3(1)(a), 3(2)(c) and 3(2)(h) of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 in terms of the manner in which the respondent processed his request for information under the Freedom of Information Act, 1997 (as amended) (hereinafter referred to as the FOI Acts). The complainant also claims that he was subjected to victimisation and harassment by the respondent in terms of Sections 3(2)(j) and 11(5) of the Equal Status Acts, 2000 to 2008.
2. Summary of the Complainant’s Case
2.1 The complainant’s mother suffered from Multiple Sclerosis and she was in receipt of the care services that were provided by the respondent. The complainant, Dr. Raymond Chawla, sent a request to the respondent under the FOI Acts on 12 October, 2006 for information that it held on its files in relation to both himself and his mother. The complainant did not receive the information requested and he subsequently contacted the respondent by e-mail on 13 November, 2006 seeking an internal review in relation to his initial request. The complainant received a response from the respondent on 16 November, 2006 which included the information he had requested in relation to himself; however, the respondent indicated that it could not provide any information in relation to his mother as this request related to information belonging to another individual who was not the requester. The complainant submitted that the respondent was fully aware that his mother could not sign the request for information pertaining to herself as a result of her disability and he claims that the respondent should have released the information to him as he was acting in the capacity as her resident primary carer. The complainant claims that the respondent was acting in breach of its obligations under the FOI Acts and he submitted that it should have contacted his mother in order to obtain her consent to the release of the information that he had sought on her behalf. The complainant claims that the reason the respondent refused to provide the information he had requested under the FOI Acts in relation to his mother was motivated by discrimination on the grounds of his family status and race.
2.2 The complainant also claims that he was subjected to victimisation and harassment as a result of correspondence that he received from the respondent subsequent to the referral of the present complaint to the Tribunal. The complainant received a letter from the respondent on 31 July, 2007 in which reference was made to a voicemail message he had left on the mobile phone of one of the respondent’s employees and this letter contained an instruction that he desist from any further communication with any of the respondent’s employees. This letter also contained a reference to a previous letter which the respondent claims was sent to him on 27 July, 2007 and which referred to a threatening voicemail message which it was alleged the complainant left on the mobile phone of another of the respondent’s employees. The letter of 27 July, 2007 included instructions that any further communications which the complainant wished to engage in with the respondent should be directed to its Human Resources Manager, Mr. A. The complainant stated that he did not receive the initial letter of 27 July and therefore, when he left the second voicemail he was not aware of the respondent’s initial instruction that he should desist from contacting its employees. The complainant stated that the voicemail message he left on the second occasion was in no way threatening or abusive and he claims that the respondent was fully aware he hadn’t received the first letter when it issued the subsequent letter on 31 July, 2007. The complainant also claims that he was subjected to further harassment and victimisation by the respondent when it omitted to address him by his correct title i.e. Dr. Chawla in further correspondence that was exchanged between the parties.
3. Summary of the Respondent’s Case
3.1 The respondent accepts that it received a request from the complainant on 12 October, 2006 for information under the FOI Acts pertaining to both himself and his mother. The complainant sent this initial request by e-mail to Ms. X, Assisted Living Co-ordinator, who had responsibility for providing care services to the complainant’s mother. The complainant’s request for information was acknowledged by Ms. X who instructed him that the request was being forwarded to the respondent’s Human Resources Department to be processed. Ms. X did not have any role within the organisation in relation to requests for information under the FOI Acts. The respondent received a further e-mail from the complainant on 13 November, 2006 in which he requested an internal review as he had not received a decision in relation to his initial request. The respondent responded to this e-mail the following day and sought certain details from the complainant regarding the request.
3.2 The respondent’s Freedom of Information Officer, Ms. Y, wrote to the complainant on 16 November, 2006 enclosing a copy of the records he had sought in relation to himself. The complainant was also informed that access to records in relation to his mother was denied on the basis that the respondent was prohibited from providing information in relation to an individual who was not the requester. The respondent stated that it was not made aware that the complainant’s mother was unable to make such a request on her own behalf nor was it furnished with her consent to release the requested information to the complainant. The respondent stated that its Code of Practice in respect of assisted living conditions (i.e. the service which it was providing to the complainant’s mother) operates on the principle of respecting the individual’s independence and dignity and treating all personal information in the strictest confidence. The respondent submitted that in light of the Association’s obligations under its own Code of Conduct in relation to personal information and by virtue of its statutory obligations under the FOI Acts that it was not in a position to release the records which the complainant was seeking in relation to his mother. The respondent submitted that the complainant’s request was dealt with in accordance with its normal procedures and in compliance with its obligations under the FOI Acts. The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of his race or family status in terms of the manner in which it dealt with his request for information under the FOI Acts.
3.3 The respondent wrote a letter to the complainant on 27 July, 2007 in response to a voicemail message which he had left on the mobile phone of one of its employees, Ms. X, on 25 July, 2007. Ms. X stated that she was extremely upset and distressed with the content of this message and consequently, the respondent informed the complainant in this letter that any further communications he may wish to have with the Association should be made in writing and addressed to its Human Resources Director, Mr. A. This letter was delivered to the complainant’s address by courier on 27 July, 2007 and the respondent claims that it has no reason to believe that this letter was not delivered to the complainant. The respondent stated that the complainant subsequently left a further voicemail message on the mobile phone of another of its employees, and in response the respondent wrote a further letter to the complainant on 31 July, 2007 and requested him to immediately desist from making any further direct contact with any of its employees. The respondent also referred to the previous letter of 27 July, 2007 and reminded the complainant that any further communications he wished to have with the Association should be directed to the HR Director. The respondent submitted that it has a duty to protect its employees and it does not accept that its actions in writing, the aforementioned letters to the complainant, constitute victimisation or harassment. The respondent submitted that the aforementioned letters were sent to the complainant in response to the inappropriate contact that he had initiated with its employees and it has adopted a similar approach on previous occasions when its employees have received inappropriate communications from an individual.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 I also wish to note at this juncture that the complainant made a number of allegations during the course of written correspondence and at the hearing of this complaint regarding the manner in which the care services that the respondent provided for his mother were discharged. I am satisfied that these issues are entirely outside of the scope of the present complaint under the Equal Status Acts and accordingly, I do not have jurisdiction to investigate any such matters which do not fall within the remit of the Acts. I must make it clear from the outset that the only jurisdiction I have in this matter is to decide whether or not the complainant was subjected to less favourable treatment by the respondent, in the circumstances of this case, within the meaning of the Equal Status Acts, 2000 to 2008.
Discrimination on the Family Status and Race Grounds
4.3 In the present case, the complainant claims that he has been subjected to discrimination by the respondent on the grounds of his family status and race in terms of the manner in which the respondent processed his request for information under the FOI Acts. The respondent denies that it discriminated against the complainant on either of the grounds claimed and it states that the complainant’s request was dealt with in accordance with its normal procedures and in compliance with its obligations under the FOI Acts. Therefore, the question that I must decide in the present case is whether the complainant’s request for information under the FOI Acts was dealt with in a discriminatory manner by the respondent on the grounds of his family status and/or race.
4.4 In considering this issue, I am satisfied that the complainant is covered by both the race and family status grounds within the meaning of the Equal Status Acts i.e. that he is of a different ethnic origin than a white Irish person and that he was the resident primary carer of a person over the age of 18 years with a disability (namely his mother). I note that the complainant sought information from the respondent under the FOI Acts in relation to both himself and his mother. It was not disputed by the parties that following the processing of this request the respondent released the information to the complainant which related to himself but refused to release the information relating to his mother. I note the respondent claims that it refused to release the information to the complainant in relation to his mother on the basis that it was prohibited from doing so in accordance with its obligations under its own Code of Conduct in relation to personal information and in compliance with its statutory obligations under the FOI Acts (i.e. it was prohibited from releasing personal information about an individual who is not the requester).
4.5 It is clear that a public body such as the respondent is obliged to act in accordance with the provisions of the FOI Acts in terms of the manner in which it deals with such a request (i.e. to that made by the complainant) for information under those Acts. In considering this issue I have taken cognisance of sections 28(1) and 28(2)(b) of the Freedom of Information Acts which provide that:
“28 (1) - Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual)”
“28(2) – Subsection (1) does not apply if –
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure”
Having regard to the foregoing provisions, I am satisfied that the respondent was prohibited from releasing the information to the complainant that he had sought in relation to his mother and I also accept the respondent’s evidence that it had not been furnished with her consent to release the requested information to the complainant. Having regard to the provisions of Section 14(1)(a)(i) of the Equal Status Acts, it is clear that the taking of an action required under an enactment shall not be construed as being prohibited conduct. I accept the respondent’s evidence that it dealt with the complainant’s request for information (both in relation to himself and his mother) in the normal manner and in accordance with it obligations under the FOI Acts. I am satisfied that I have not been presented with any evidence from which I could conclude that the respondent acted in a discriminatory manner in terms of the way that it dealt with complainant’s request for information under the FOI Acts. Having regard to the foregoing, I am satisfied that the complainant was not subjected to less favourable treatment by the respondent on the grounds of his family status or race in terms of the manner in which it dealt with his request for information under the FOI Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status and race grounds.
5. Harassment
5.1 The complainant claims that he was subjected to harassment by the respondent contrary to the provisions of Section 11(5) of the Equal Status Acts, 2000 to 2008. I note the complainant claims that the alleged harassment arose on the basis of correspondence he received from the respondent subsequent to the referral of the present complaint to the Tribunal. The complainant claims that the respondent sent him two letters (on 27 July, 2007 and 31 July, 2007) in which he was instructed to desist from contacting employees of the Association as a result of two separate messages that he had left on the telephone voicemail of the individual employees. The complainant claims that he did not receive the first letter on 27 July and therefore, when he left the second voicemail he was not aware of the respondent’s initial instruction that he should desist from contacting its employees. The respondent claims that it issued these letters to the complainant in response to the inappropriate contact that he had initiated with two of its employees. The respondent submitted that the initial letter of 27 July was delivered to the complainant’s residence by courier and the second letter was issued on 31 July after it appeared that the complainant had disregarded the instruction (contained in the initial letter) to desist from further communications with its employees.
5.2 In considering this issue, I have taken note of the evidence of Ms. X who stated that she was very upset and distressed by the voicemail message she received from the complainant and that she subsequently reported this matter to her supervisor. I am satisfied that the respondent issued the first letter to the complainant (on 27 July) in response to this contact which he had made with Ms. X and I note that this letter contained clear instructions that any further communication the complainant wished to engage in with the respondent should be addressed to its HR Director. I am satisfied that the respondent issued the second letter on 31 July in the belief that the complainant had disregarded this instruction and had subsequently engaged in further direct contact with another of its employees. Having regard to the evidence adduced, I am satisfied that the actions of the respondent were reasonable in the circumstances, especially in light of the distress which the complainant’s initial contact caused to Ms. X and the resultant obligation that it had to protect the welfare of its employees. Accordingly, I find that the respondent’s actions did not amount to harassment of the complainant within the meaning of Section 11(5) of the Equal Status Acts, 2000 to 2008.
6. Victimisation
6.1 The complainant has also claimed that he was subjected to victimisation as a result of the aforementioned correspondence he received from the respondent subsequent to the referral of the present complaint to the Tribunal. Having regard to the evidence adduced, I find that I have not been presented with any evidence from which I could conclude that the complainant has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts, 2000 to 2008. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the family status, race and victimisation grounds in terms of Sections 3(1), 3(2)(c), 3(2)(h) and 3(2)(f) of the Equal Status Acts, 2000 to 2008. I also find that the complainant has failed to establish a prima facie case of harassment contrary to Section 11(5) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
15th April, 2009