The Equality Tribunal
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ADublin 2.
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Equal Status Acts 2000-2008
Decision No: DEC-S2009- 087
Mike Fogarty
v.
Employment Appeals Tribunal
(represented by Cathy Maguire BL instructed by the Chief State Solicitor's Office)
File Reference: ES/2003/585
Date of Issue: 21st December 2009
Key words
Equal Status Act, 2000 - misconceived, Section 22 - definition of service or facility available to the public or a section of the public - Direct discrimination, Section 3(1) - Disability, Section 2 (1) and 3(2)(g) - special treatment or facilities to accommodate the needs of a person with a disability - Section 4(1), Section 4(2) - nominal cost, Section 27(1) - redress for the effect of discrimination, Section 27(2) - specific course of action.
Delegation under Equal Status Acts, 2000-2008
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On the 10th June 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000 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, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 10th June 2009. The final submissions were received on 28th September 2009.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated on the disability ground. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 and contrary to Section 4 of that Act by failing to provide him with reasonable accommodation.
2. Summary of Complainant's case
2.1 The complainant is deaf and he cannot speak His primary mode of communication is sign language. He appealed a decision of the Right's Commissioner to the respondent under the Unfair Dismissals Acts 1977 to 2001. The appeal concerned a decision by the Rights Commissioner that the claim was submitted outside the statutory time limits. The complainant said that he attended an Employment Appeals Tribunal hearing on the 22nd of November 2002. He was represented by Mr. John O'Connell a union shop steward who was also a work colleague. The complainant submitted that Mr. O'Connell does not use sign language and there was no sign language interpreter provided for the hearing. He said that Mr. O'Connell spoke to the respondent at the hearing and he communicated with Mr. O'Connell by writing notes to one another. The complainant said that he understood Mr. O'Connell but he did not understand the hearing and that he had no opportunity to tell the respondent the reason his complaint was submitted outside the statutory time limits.
2.2 In a written submission to the Tribunal prepared by the complainant's solicitor the complainant submitted that the respondent failed to properly accommodate his disability for the purposes of a hearing before it. It was submitted that the respondent knew of his disability about five months before the hearing. They were again made aware by Mr. O'Connell at the commencement of the hearing that the complainant was deaf and cannot speak and that he (Mr. O Connell) did not know sign language nor could he lip read. The complainant submits that the respondent made no attempt to communicate with him directly nor did they write down any questions and allow him to answer in writing. He submits that he was denied an opportunity to address the respondent and to outline the reasons why he believed that exceptional circumstances applied to his claim and that the time limit should be extended. He believes that his claim for an extension of the time limit failed because he was unable to put his case before the respondent
2.3 In the written submission, the complainant also submitted that the functions of the Employment Appeals Tribunal fall within the definition of a service as set out in Section 5 of the Equal Status Acts.
3 Respondent's Case
3.1 In the respondent's submissions to the Tribunal, they requested that the complaint should be dismissed under Section 22 of the Acts on the grounds that it is misconceived. They submitted that the complainant was attempting to re-argue the merits of his claim for an extension of time under the Unfair Dismissals Act before the Equality Tribunal and that it was for this reason the complaint herein was misconceived.
3.2 The respondent submitted that the making of a determination on appeal from a Rights Commissioner in discharge of its statutory functions under section 9 of the Unfair Dismissals Acts does not constitute the provision of a service or facility under the Equal Status Acts. The respondent accepts that the definition of a service is wide enough to include services provided by the State and said that it is also clear that commercial services provided by public bodies or local authorities are within the remit of the Equal Status Acts. The respondent submitted that it was not clear from the Act the extent to which non-commercial activities, major policy and administrative functions of government are brought within the scope of the Act. The respondent referred the Tribunal to the case of Donovan V. Donnellan (DEC-SS2001-011, 17th October 2001) and submitted that the decision in this case is applicable to the complaint herein. They submit that while some limited aspects of its functions may fall within the definition of a service or facility under the ES Acts, the duty of the respondent to adjudicate upon appeals referred to it under section 9 of the 1977 Act does not come within the scope of the Equal Status Acts. The respondent further submitted that if the respondent discriminated on one of the prohibited grounds in the conduct of its statutory duty, the complainant is not left without a remedy in that the public law decisions of the respondent remain susceptible to the supervision of the High Court by way of an application for Judicial Review.
3.3 The respondent stated that the determination it made under the Unfair Dismissals Acts, 1977 to 2001 was subject to an appeal to the Circuit Court and High Court and an appeal on a point of law to the Supreme Court. It submitted that these remedies are exhaustive and are not supplemented by the Equal Status Acts and that if the Equality Tribunal were to accept jurisdiction in the complaint it would in effect usurp the statutory functions of the respondent.
3.4 The Chairman of the Employment Appeals Tribunal, Mr. Jeremiah Sheedy, Solicitor and Dr. Anne Clune Ordinary Member gave evidence that they heard the case and that the complainant never requested a sign language interpreter. Mr. Sheedy stated that he was aware that the complainant was unable to hear or speak He understood that Mr. O' Connell was an experienced union person and had appeared before the respondent on a number of occasions and he was satisfied that he could represent the complainant. Mr Sheedy said that at the commencement of the hearing he asked Mr. O'Connell about how the hearing was going to proceed given that the complainant's disability. It was agreed that the questions for the complainant would be written down by Mr. O'Connor and that the complainant would write down the answers which would be related back to the respondent by Mr. O'Connor.
The respondent witnesses stated that, while they were made aware of the complainants disability by the secretary to the Employment Appeals before the hearing commenced, they did not consider adjourning. They further submitted that no request was made by the complainant for a sign language interpreter. If a request had been made for an interpreter Mr. Sheedy said that he would have adjourned the case. He said he did not know if the complainant understood the hearing. The Tribunal itself did not write down any questions for the him. They relied on Mr. O'Connor to communicate with the complainant. Mr. Justin Corcoran who was the secretary for the hearing gave evidence that he took notes of the hearing and he provided a handwritten copy of the notes taken to the hearing herein.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against contrary to Section 4 of the Equal Status Acts. The complainant alleges that the respondent failed to provide reasonable accommodation for him contrary to Section 4(1) of the Act.
In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 The first issue which I have to consider is the respondent's submission that I have no jurisdiction to hear the complaint and therefore the referral should be dismissed under Section 22 as misconceived. The application is based on their submission that the Act is not applicable as the respondent was not engaged in the provision of a service within the meaning of the Equal Status Acts. Therefore I have to first consider is whether the functions of the respondent is a service within the meaning of section 2(1) of the Equal Status Acts. The Act provides:
''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 or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
It is clear to me having examined the wording of section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or a section of the public. It is also clear that the facilities mentioned in section 2(1)(b) is not an exhaustive list of matters covered by the Act. Therefore I need to examine the statutory functions of the respondent to determine whether they can be regarded as a service or facility within the meaning of section 2(1) which are available to the public or a section of the public.
4.3 The Employment Appeals Tribunal was set up under the Redundancy Payments Act, 1967 to hear disputes about redundancy between employers and employees. Its functions were expanded further on the introduction of the Unfair Dismissals Act 1977 which included hearing disputes about inter alia dismissals and hearing appeals from the Rights Commissioner's. Over time there were several other Acts of the Oireachtas were included in the remit of the EAT. A sitting division of the EAT comprises of a chairman and two ordinary members who hears the claim or the appeal and issues a decision. Section 8 and 9 of the 1977 Act provides:
8. -- "(1) A claim by an employee against an employer for redress under this Act for unfair dismissal may be brought by the employee before a rights commissioner or the Tribunal and the commissioner or Tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the Tribunal, shall make a determination in relation to the claim.
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.
9. -- (1) A party concerned may appeal to the Tribunal from a recommendation of a rights commissioner in relation to a claim for redress under this Act and the Tribunal shall hear the parties and any evidence relevant to the appeal tendered by them and shall make a determination in relation to the appeal.
(2) An appeal under this section shall be initiated by a party by giving, within 6 weeks of the date on which the recommendation to which it relates was given to the parties concerned, a notice in writing (containing such particulars (if any) as way be specified in regulations under section 17 of this Act for the purposes of section 8 (8) thereof) to the Tribunal and stating the intention of the party concerned to appeal against the recommendation and a copy of the notice shall be given to the other party concerned within the said period of 6 weeks."
4.4 The procedures of the respondent's are governed by regulations S.I. No. 24/1968 - Redundancy (Redundancy Appeals Tribunal) Regulations, 1968 and S.I. No. 286/1977 - Unfair Dismissals (Claims and Appeals) Regulations, 1977. These procedures also set out the administrative functions of the EAT in relation to the reception of claims and appeals. These functions are carried out by the administrative staff in the office of the Secretary of the Tribunal. In support of the contention that the functions of the EAT do not fall within the definition of a service or facility, the respondent referred me to the Equality Tribunal's decision in the case of Donovan v. Donnellan (DEC-S2001-011). The Equality Officer in that case concluded that the investigation and the prosecution of crime by a member of the Gardaí does not constitute the provision of a service or a facility to the public. The respondent further submitted that while they accepted that some limited aspects of their function may fall within the definition of a service or facility, the duty of the respondent to adjudicate upon appeals referred to it under Section of the of the Unfair Dismissals Acts does not.
4.5 I note that in the Donovan case that the Equality Officer, who considered the jurisprudence in the English case of Farah v. Commissioner of Police of the Metropolis (1997) 2 W.L.R. 824, differentiated between the duty of the Gardaí to investigate and prosecute the commission of a crime and other functions of an Garda Síochana such as witnessing a passport application, giving directions or taking a complaint. The Equality Officer stated : " the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Síochana, including those of the investigation and the prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope."
4.6 I have also considered the jurisprudence in other jurisdictions which has similar anti discrimination legislation to the Equal Status Acts which I believe to be of persuasive to my reasoning in the case herein. I note that the High Court of Australia considered the meaning of "service" under the Equal Opportunity Act 1984 in a number of cases. Section 4(1) of that Act has similar definition of "service" to the definition in the Equal Status Acts. The case of IW v City of Perth and others- (1997) 146 ALR 696 concerned the Council of the city of Pert's refusal to grant planning permission. The question which arose was whether the Council provided a service of giving approval for planning permission. In their High Court Judgment Brennan C.J. and McHugh J. referred to the remedial purpose of the statute and stated that while a court or tribunal cannot give a statutory provision a meaning which is unreasonable or unnatural, "if the term "service" read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal should hold that that activity is a service for the purpose of the Act." The Act was not necessarily inapplicable to the Council just because the refusal of service was made in the exercise of a statutory power or duty. In this case, the complainant did not succeed as the Council had not refused to properly consider the application. The High Court held that the Council did not provide a service of refusing or approving applications, but they had a duty to consider the application and had a discretionary power to grant or refuse it.
4.7 In applying the jurisprudence of the Donovan case and taking into consideration the persuasive value of the above mentioned Australian case I am of the view that some of the functions of the respondent are services within the meaning of the Equal Status Acts. These functions, which can be distinguished from the decision making functions, are the reception and processing of complaints and the organising and hearing of complaints. I note that the respondent is obliged to receive the claim and then they are obliged to hear the parties and any evidence relevant to the appeal. I am of the view, that this part of the functions i.e. the administrative matters in relation to receiving the claim or appeal and the organising and hearing of the claim or appeal, is a service or a facility under the ES Acts. The respondent has a statutory function to provide a mechanism to enable a person, who believes that they have been unfairly dismissed, to seek redress or to appeal a recommendation of the Right's Commissioner. For this reason, I find that these functions are a service or facility for a person who finds themselves in such a position.
I am also satisfied that the service or the facility the respondent provides is a available to the public or a section of the public i.e. to a people who want to inter alia dispute their dismissal or to a person who wants to appeal a recommendation of a Rights Commissioner. Therefore I find for the above reasons that the complaint, in so far as it relates to the administrative matters of organising and hearing of the appeal, is not misconceived under section 22.
4.8 I also find that the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.
5 Reasonable Accommodation
5.1 I am now going to consider the evidence to see if the complainant, who cannot hear or speak, was provided with reasonable accommodation under section 4 of the Equal Status Acts. A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof shifts to the respondent to rebut the presumption of discrimination.
There are three tests which the complainant must satisfy to establish a prima facie case
(i) Is the complainant covered by the discriminatory ground? (in this case has the complainant a disability?)
(ii) is there evidence that he has been subject to a specific treatment by the respondent?
(iii) did the respondent's actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainant's needs as a person with a disability, which made it impossible or unduly difficult for him to seek a service or a facility from the respondent?
It is accepted that the complainant has a disability and that his primary mode of communication is by sign language and that no sign language interpreter was provided.
Section 4 of the Equal Status Act provides that, inter alia:
"(1) For the purposes of this Act discrimination includes a refusal or failure
by the provider of a service to do all that is reasonable to accommodate the
needs of a person with a disability by providing special treatment or facilities,
if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.
5.2 In considering reasonable accommodation, I note that the section of the Act requires the respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". This means that the Act requires the respondent to show that it did everything it could reasonably do to accommodate the needs of the complainant. The complainants case is that he could not take part in the hearing because of his disability and he believes that he had no opportunity to put his case directly to the respondent and for this reason he believes there could have been a different outcome to his appeal to the respondent. The respondent's case is that the complainant suffered no discrimination because he was represented both before the Right's Commissioner and the EAT by Mr. O'Connell who they believed was an experienced representative. Neither the complainant or his representative requested any accommodation at the hearing and had they done so, or if the EAT of its own motion identified a need for an interpreter, they would have adjourned the hearing for that reason.
In considering reasonable accommodation under Section 4 of the Act, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council, Judge Hunt considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: " ...reasonableness must be judged according to the context of the individual case........ The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations ...... and they are indeed relevant to the decision as to what is reasonable in the particular case.... The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities..... All that it is commanded to do by the equality legislation is to devise a "reasonable" solution to a problem, not to achieve perfection and not to give in to every demand that is made of it,"
5.3 In applying the above mentioned reasoning to the case in hand, and having considered whether the facilities put in place to accommodate the complainant's right to pursue his appeal, and to fully participate in the hearing of that appeal were reasonable, I am not satisfied that the respondent devised "a reasonable solution to a problem". I note that the complainant in his appeal documentation to the EAT stated that he could not speak or hear. The respondent, who said that they had been only made aware of the complainant's disability shortly before the hearing commenced, asked Mr. O'Connell who could not speak sign language to devise a solution. It was agreed that the questions for the complainant would be written down and that the complainant would provide written answers. The respondent in evidence stated that they did not address any questions or have any direct verbal communication even by the agreed written method through Mr. O'Connell. He could not speak or address the respondent during the course of the hearing.
In my view it was the duty of the respondent to ensure that there was no impediment to the complainant's full participation and understanding of the hearing. From the evidence of both parties it would appear that the complainant was not asked if he required the services of a sign language interpreter. The non-availability of a sign language interpreter was an impediment to the complainants participation in the hearing and was in breach of his right to a fair procedures and natural justice and his right to be heard. As sign language is the complainant's first language and his primary means of verbal communication, I am satisfied that without the special facilities of a sign language interpreter it was both impossible and unduly difficult for him to fully participate in his appeal hearing before the respondent.
In the above mentioned case, Hunt J. stated that reasonable accommodation must be considered in the context of the individual case. I am of the view that a reasonable solution in the context of this case would have been for the respondent to adjourn the EAT hearing to a new date and to provide the facilities of a sign language interpreter for the complainant. For the above reasons I find that the complainant has established a prima facie case of discrimination. I find also that the respondent, by the failure to provide reasonable accommodation in accordance with Section 4(1) of the Act to the complainant, has failed to rebut the prima facie case of discrimination.
5.4 I am now going to consider nominal cost in accordance with Section 4(2) of the Equal Status Acts which provides:
(2) "A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question".
There were no submissions made by either party in relation to nominal costs. I am satisfied however that the provision of a sign language interpreter for the complainant by the respondent would given rise to no more than a nominal cost in the context of the respondent's overall budget.
6. Decision
6.1 I find that the complainant was discriminated against in terms of section 4 of the Equal Status Act.
Under section 27(1) of that Act redress may be ordered where a
finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
6.2 Under Section 27 the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effect the discrimination had on the complainant and the fact that sign language is his first language and primary mode of communication so a sign language interpreter was essential for him to engage with and to fully participate and understand the proceedings. The fact that the complainant could not communication with the respondent to put the evidence in relation to his appeal and to understand or participate in the proceedings caused him great distress. In the circumstances I order The Employment Appeals Tribunal, to pay to the complainant the sum of €3,000 to compensate him for the distress, embarrassment and inconvenience suffered by him.
6.3 I requested the respondent to provide me with their procedures and I note that the respondent has procedures in place for persons requiring language interpretation services whereby an application has to be made in person before the EAT for such services. There appears to be no procedure in place for persons with disabilities or for persons who require a sign language interpreter. It is not possible for an unrepresented complainant who is deaf and cannot speak to appear in person before the respondent seeking language interpretation services for their hearing.
Under Section 27(1)(b) of the Act, I order the respondent to provide special facilities at the hearings for people with disabilities, these special facilities should include the provision of a sign language interpreter. I also order the respondent to notify parties in advance of a hearing that these special facilities are available.
___________________
Marian Duffy
Equality Officer
21st December 2009