DEC-S2009-009 - Full Case Report - Workplace Relations Commission

The complainant referred a claim of discrimination and harassment on the Traveller ground and of victimisation to the Director of the Equality Tribunal under the Equal Status Acts 2000 - 2004. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, 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.

Background

The complainant’s daughter died in 2004 in truly tragic circumstances. He alleges that shortly after her death the Traveller Liaison Officer (TLO) for the respondent County Council called to his home and behaved in a manner that was unacceptable and amounted to discriminatory treatment and harassment. He alleges that the TLO victimised him by refusing to sign a form relating to homelessness. He also alleges that the County Council continued to insist that he deal with the TLO only when non-Travellers can deal with Housing Officers. He alleges that this continued insistence constitutes discriminatory treatment.

The County Council state that there was a long and relatively satisfactory relationship between themselves and the complainant and that the difficulties arising were just a glitch. It is clear that the complainant was devastated by the death of his daughter as was his family. They argue that the TLO has been specially designated to assist Travellers and that appointing him to deal with Traveller issues only in fact provides a better service than that received by non-Travellers as the TLO has a smaller caseload and can attend to their needs in a speedier manner. They argue that there are only two aspects to this claim, one relating to the TLO’s behaviour and the other to the requirement to deal with one designated person.

My investigation began on the assignment of the case to me on 11^th January 2008. The hearing of the claim was opened on 13^th February 2008. There was considerable correspondence following that and the hearing was reconvened on 11^th and 12^th September 2008. Evidence was presented orally at hearing and in correspondence concluding in December 2008.

Summary of the Complainant’s case

The complainant was a tenant of the County Council until 3/12/2003 when he signed a tenancy agreement with a Town Council within the county for a site in their Halting Site (HS). On 23/3/2004 he requested another transfer back to where they had moved from. In September 2004 his daughter died in tragic circumstances and her body was found in the river adjacent to the HS. Due to this proximity the complainant’s wife left HS, along with two of their children, and was unable to return. The complainant was told he had to stay to retain his tenancy. On 8/10/04 the respondent’s Traveller Liaison Officer, (TLO), came to the complainant’s home. The complainant told him that he needed a transfer to the town where he had previously lived, and that his daughter had died. He alleges that the TLO told him that that was water under the bridge and that he made a number of other disturbing and upsetting comments before being asked to leave. Another daughter of the complainant gave evidence that the TLO behaved inappropriately and without sensitivity during that visit and that he was ultimately asked to leave. She stated that she telephoned the County Council subsequently and asked that the family deal with a different housing officer and that they not deal with the TLO again. The complainant stated that his wife stayed with various friends after that time and alleges that the TLO made remarks to his wife while she was living with others that her son deserved a bullet in the head. One lady she was staying with was told by the TLO, in front of the complainant’s wife, that she would not get her new house if she allowed the complainant’s wife to continue to stay. The TLO also refused to sign a document stating that the complainant’s wife was homeless, arguing that she had a tenancy in HS that she could go back to. This was subsequently signed by an official in the Town Council. The Town Council, unlike the other councils in county, do not use the services of the TLO although he visits the HS on a regular basis. The Town Council official decided to sign the form on compassionate grounds which allowed the complainant’s wife to obtain private rented accommodation until a transfer from HS could be arranged. The Town Council ultimately rehoused the family on 14^th September 2006. A number of Traveller support people presented evidence in relation to the requirement to deal only with the TLO and the effects of that requirement. The HSE Family Support Unit providing support to the family for a three month period after the death of the complainant’s daughter and made representations to the County Council about rehousing on the complainant’s behalf. The HSE Officer was not aware of any offers of alternative accommodation and the Housing SEO, the respondent official with whom he corresponded, did not indicate at that time that any had been offered. The Tribunal is requested to uphold the right of Travellers to avail of services available to non-Travellers. In conclusion, the complainant stated that the respondent treated him fairly always and let him down just that one time in his life.

Summary of the Respondent’s Case

The respondent denies that any inappropriate behavior took place during the visit to the complainant’s home in October 2004. It also denies that that there has been any less favourable treatment of the complainant based on his membership of the Traveller community. The respondent contends that the TLO’s “job is to deal with traveller families and in particular their accommodation needs. It has been government policy for many years, that each local authority would have a dedicated worker to deal with traveller issues, in order to ensure, that these issues have a dedicated spokesperspon within the local authority system”. The TLO stated in evidence on 13^th February 2008 that he did not accept that he was asked by the complainant to leave and not to return. Subsequently he stated that he did not think it was a serious request. He stated that he did not call on 8^th October 2004 as the complainant suggests but on 11^th October 2004 and this call was a sympathy call. Another Housing Investigating Officer (a housing officer dealing with non-Travellers) attended with him. The TLO stated in evidence that he did not make the comments accredited to him. The Housing Investigating Officer stated in evidence that they drove to the HS and walked into the complainant’s home. He could not recall any inappropriate comments or other inappropriate behavior on the part of the TLO during that visit. He also could not recall the manner in which they left so was unable to verify or deny whether the TLO was asked to leave. He stated that the raw grief of the complainant was evident, that he was overcome, finding it difficult to talk and visibly distraught. (The complainant stated at the hearing that he wished to commend the Housing Investigating Officer.) The TLO returned on 14^th October 2004 and offered three alternative accommodation options to the complainant which he asserts they refused. No evidence supporting these offers was presented other than the TLO’s report apparently required in response to the complainant’s notification under the Act and subsequent correspondence based on that report. In addition, the TLO’s diaries for the period are not now available. The TLO refused to sign a document stating that the complainant’s wife was homeless as she had adequate housing to return to at the HS. The respondent is of the opinion that there are only two aspects to this claim relating to the alleged remarks and the requirement to use a designated officer. It was argued that while the remarks, if found to have been made, may have been inappropriate they do not constitute discrimination. Similarly, the requirement to use a designated officer does not constitute discrimination.

Conclusions of the Equality Officer

It is common case that the complainant is a member of the Traveller community and that there is a lengthy history of interaction between himself and the respondent. What has to be decided is whether or not:

any harassment of the complainant relating to that membership took place, (Section 11),
the complainant was victimised in terms of the Act, (Sections 3(1), 3(2)(j) and 6(1)(c)), and
the complainant was treated less favourably based on that membership of the Traveller community, Sections 3(1), 3(2)(i) and 6(1)(c).

In making my decision I have taken account of all evidence presented.

Section 38A provides for the burden of proof as follows:

38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

……

Harassment.

For the purposes of the Act harassment is defined in Section 11(5) as follows:

(5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

There is disagreement surrounding the details of the various visits undertaken by the TLO. The complainant alleges that the first visit following his daughter’s death took place on 8^th October 2004 and this is recorded in his notification form sent to the respondent, signed on 18^th October 2004, as follows:

On the 8^th of October 2004 you sent your Traveller Liaison Officer to visit me. I told him that I needed a transfer out of the site to [Town X]. I told him that my daughter had just died and he replied “that’s water under the bridge”. I was very upset by this remark as my daughter was found in the river. He went on to say “I know you all my life you’re a rogue”. On Monday 11^th he indicated to my wife that my other son needed a bullet in the head.

The notification form is a relatively contemporaneous note. The TLO stated in evidence that the first call was on 11^th October 2004 and with another on 14^th October 2004. The TLO has no records in support of this other than a report submitted to his superiors which appears to have been required to facilitate a response to the notification, being dated 29^th October 2004. The report states, inter alia,:

“Following the unfortunate death of [the complainant’s] daughter I visited [the complainant] accompanied by Mr. [A], Investigating Officer. As [the complainant] was not in a fit state to hold a conversation on that day we left and as I was leaving I told [the complainant] I would call back again.

I called to the [complainant’s] family on a number of occasions after that day. I spoke to [the complainant] about the options that were open to him as regards a transfer from the [HS]. As the death of [the complainant’s] daughter was a very unfortunate incident and the fact that the body was found in the river adjacent to the site I was very concerned that the [the complainant’s] family would be transferred. On 14^th October 2004 I visited the[ complainant’s] family offering them a site in the [another halting site] and also a bay in the [ ]Site, [in the town council area]. [The complainant] refused both of these offers. I also offered a house, which was vacant in [ ]. [The complainant’s] family again refused this offer.

I did meet with the [the complainant’s] family on Monday, 11^th October and discussed with the complainant’s wife about a transfer. Regarding a meeting with the [the complainant’s] family on 8^th October, I did not meet with the [the complainant’s] family on that day.”

There is agreement that the TLO spoke with the complainant’s wife on 11^th October 2004. Overall, I find the complainant’s version of events more compelling and I am satisfied that there was a meeting during which the comments were made, that he was asked to leave, and that when he returned he took another officer with him. During the hearing the complainant repeated the comment in respect of water under the bridge and it was clear that this comment had greatly disturbed him. While it is, at best, an unfortunate and inappropriate choice of words in the circumstances it does not constitute harassment on the Traveller ground in my view. The ‘rogue’ comment is of course a comment that might be said to Travellers and non-Travellers alike. However, in the circumstances of this case, uttered by the TLO who is a person in a specialized role sealing with only Travellers I am satisfied that the comment affronted the complainant’s dignity and created an offensive environment for him leading to the TLO being asked to leave. I am satisfied that a high standard of conduct is required of any individual holding that position and that in this instance such a comment amounts to harassment on the Traveller ground. The alleged comment made to the complainant’s wife about her son is not relevant as she is not the complainant in this case. No defence in relation to harassment was presented by the respondent other than that the comments were never made.

One further issue to be considered relates to the number of visits in such a short time, despite being asked to leave and a call being made to the respondent requesting a different contact. Added to this, the HS is in the Town Council district. While the TLO assisted with the site when it was being set up the Town council does not use the TLO service. There is a conflict of evidence in relation to these visits. The raw grief displayed by the complainant was described above and it is unclear if this was given sufficient weight by the TLO. In addition, I have found that he was asked to leave. In contrast, the complainant stated in evidence that during one of the TLO’s visits he requested a transfer to an area outside the Town Council but within the TLO’s area. This request would necessarily require the involvement of the TLO given the manner in which this work is allocated by the respondent. All visits by the TLO are by definition related to the recipient’s membership of the Traveller community.

While I am satisfied that some of the visits may have been unnecessary and some of the behaviour inappropriate, I am not satisfied that the complainant has established, on the balance of probabilities, that the number of visits constituted harassment on the Traveller ground.

Victimisation

Victimisation in terms of the Act is defined in Section 3(2)(j). The complainant sent his notification to the respondent having signed it on 18^th October 2004. In early 2005 the complainant’s wife requested that a form be signed indicating that she was homeless. This would then have allowed her to secure private rented accommodation. The TLO refused to sign the form. It is alleged that he was acting out of vengeance and once again was showing a Traveller family who was in charge. It is argued that this constitutes victimisation. In support of this the HSE Family Support Officer indicated that in their opinion she was homeless and he was aware of this refusal. In his experience this was the first time there was a refusal to sign this form for anyone when appropriately required. He indicated that normally a reasonable approach is taken but this time the respondent applied the letter of the law. While the refusal may or may not constitute victimisation it relates to the complainant’s wife and not the complainant and therefore is not relevant to this claim.

Discrimination

Section 6 of the Act provides as follows:

6.—(1) A person shall not discriminate in—

………

(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

I am satisfied that the respondent in handling the complainant’s housing needs was providing a service related to accommodation.

The respondent position was at all times that there were two issues to be addressed in this complaint, that remarks were made and whether or not having to deal with a designated officer is discriminatory. I have dealt with the remarks above and while I have found that they were made I have not found that they constitute harassment. In order to assess whether or not the requirement to deal with only the designated officer constitutes discrimination I must look at the effects of that requirement and compare it to how non-Travellers are treated in similar circumstances.

I asked the respondent to submit a list of all clients who requested housing transfers during 2004 and 2005. I selected two cases from the non-Traveller list for the purposes of my investigation. One application was based on disability and one on overcrowding. In general the respondent appears to operate a record keeping system comprising files containing hard copy papers such as application forms and a computerised case management system. The respondent was requested to submit a copy of the files relating to the two comparator applicants chosen redacted by the removal of names and other identifying information. The respondent submitted the information in accordance with Section 34 but raised Data Protection issues in connection with it. While the information was redacted, I was aware that it had been provided to the respondent for a specific purpose and therefore account was taken of the concerns raised by the respondent. A list of the documents contained in the files was made by administrative staff in the Tribunal and this was provided to me and to the complainant’s representative.

Effects of Requirementto Use TLO

The respondent stated that the TLO’s “job is to deal with traveller families and in particular their accommodation needs. It has been government policy for many years, that each local authority would have a dedicated worker to deal with traveller issues, in order to ensure, that these issues have a dedicated spokesperspon within the local authority system”. In practice this appears to require all Travellers to work with the TLO in relation to housing matters. Although there is a unit dealing with the homeless in the Council area, homeless Travellers must also work with the TLO. A number of Traveller support workers presented evidence of cases where they had requested to deal with someone other than the TLO but were told that the TLO must be involved. One indicated that she attempted to contact the TLO and when this was finally achieved and a meeting arranged, she thought it odd that the Traveller Liaison Officer had to ask directions to the Travellers Development Project, the only Traveller representative group in the county. Allegations of having to be ‘in’ with the TLO were made and that if you did not play ball with him he would not, for example, sign a form giving proof of address, required for Social Welfare claims. In the instant case the complainant asked the TLO to leave his home and the family subsequently requested not to work with him again. The TLO’s diary is not available. The respondent has no record of the call requesting a different contact. When asked for details of all complaints received in relation to the TLO this formal complaint was not included indicating that the respondent’s record keeping relating to complaints is not entirely reliable. The respondent’s response to the complainant’s notification included the following:

[The TLO] would deal with a relatively small number of families and is, therefore, able to give a quite a large amount of attention and time to these families. This is in contrast to the position of the settled families, where [the] County Council have 3 Housing Officers to deal with over 1,200 applicants for housing. As a result, the settled applicants may not receive a visit from an Investigating Officer for period in excess of 12 months at a time.

If any particular traveller family does not wish to have dealings with [the TLO], and would prefer to be dealt with by one of the Housing Investigating Officers, then there is no difficulty with implementing this. However, the family must realise, that the time which will be available by the Housing Investigating Officer will be limited.” [1]

When asked how often this had happened in practice, where a Traveller family was allocated to one of the Housing Investigating officers the respondent stated that it had never happened. One official stated that he was not aware of any Traveller cases being dealt with by another officer as these were the TLO’s specific duties within the Council. I am satisfied that in practice the complainant was required to work with the TLO in all housing matters other than those relating to the Town Council.

The complainant’s representative presented a Tribunal Decision DEC-S2007-059 in support of his case. In that case the complainant, a Traveller, was required to collect his social welfare payments in a centralised office for Travellers. This was found to be discriminatory.

In the instant case the complainant was, and is, required to work with the TLO in all housing matters outside the Tralee Town Council area.

Comparison with Treatment of non-Travellers – Prima Facie Case

The TLO stated that he told the complainant that he would have to complete an application for a transfer before it could be considered. In a report with an 18-month reference period May 2004 to November 2005, submitted on 8^th November 2005, the TLO says that shortly after the complainant moved to the HS he requested a transfer. He was told that he would need to complete an application form. The report states “[The complainant] did this and he was qualified for a transfer”. The respondent was asked to submit copies of the form completed by the complainant and any connected responses issued by the respondent. These were not presented.

On request the respondent submitted a timeline of events relating to the complainant during the relevant period. Some of the items listed relate to actions undertaken by the Town Council and many are undated. During questioning on this timeline the respondent indicated that perhaps they were made aware of the request for a transfer by phone call from the Town Council and did not consider it due to the short time since the complainant’s last transfer. This appears to indicate that the TLO did not take any action in relation to the approaches from the complainant for a transfer, either in March 2004 or after his daughter’s death in September 2004.

The lists of papers detailing the respondent’s treatment of the non-Traveller files indicate a clear path in relation to the processing of their applications for transfer, including the application form, letters from respondent, memo requesting a report from the housing administration unit, memo from the respondent’s engineer, letters from councilors and TDs, etc. The applications and their progress are traceable with dates available for each step. For example, one of the applicants was told on 5/4/05 that an extension was not financially feasible but they were still under consideration for a transfer. No such traceability exists in respect of the complainant’s application to the respondent. Indeed nothing was presented to me, other than the TLO’s report mentioned above and a memo closing the file when the family were rehoused in 2006, indicating that an application was made, approved or granted.

As a contrast, though not relevant to the claim, the Town Council records indicate that

a transfer request was received from the complainant on 23/3/2004
The complainant’s wife surrendered her tenancy on 10/1/05
The family were placed on TTC transfer list on 9/2/2005
A letter issued to the complainant indicating that they were eligible and on the list was issued on 10/2/2005
Various other letters and notices were issued
The family was rehoused on 14/9/2006.

In addition there is a dispute over whether other accommodations were offered to the complainant and his family. The complainant’s position is that these alleged offers were never made and this is supported by the evidence of the Family Support Officer. The TLO states that he made the offers and that they were refused. There is no supporting evidence for this assertion other than the TLO’s report written after the notification relating to this complaint was received by the respondent. One of the homes offered was a HS in the Town Council Area, that is in an area where the services of the TLo are not used. One wonders how he had authority to make this offer and indeed there was no clarity surrounding the demarcation lines relating to these issues. I find the complainant’s evidence more compelling overall and that these offers were not made at the relevant time.

I am satisfied that this represents a clear difference in how the complainant was treated by the respondent council in comparison to how non-Travellers were treated in similar circumstances. On the whole the records presented by the respondent and maintained by the TLO in relation to the complainant’s case compare unfavourably with those relating to the non-Traveller cases selected. Therefore the impact of the requirement on the complainant to deal with the TLO exclusively, in comparison with the treatment received by non-Travellers, is one of less favourable treatment. I find that the complainant has established a prima facie case of discrimination on the Traveller ground.

Rebuttal by Respondent

The respondent did not accept at any stage that there was any less favourable treatment and therefore did not present any evidence rebutting it. Indeed the respondent’s Director of Services (Housing) was so aggressive in his presentation relating to the professionalism of the respondent generally that I requested his in-house legal representative to speak to him. He responded “Tell him yourself”. However, I am in no doubt that there are many employees of the respondent who are professional and who also bring humanity to their work.

At the hearing, as above, there was no rebuttal of the evidence. The last correspondence received from the respondent was dated 17^th September 2008, following the hearing (11^th and 12^th September 2008), and there was no response to any subsequent correspondence.

It could be argued that disadvantaged groups such as those who are illiterate should be provided with facilities that alleviate the pressures on them in respect of form filling etc. While this is always an admirable customer service objective, it does not remove the necessity for keeping records from the service provider altogether. The TLO was unable to produce records comprehensive or otherwise other than two unsupported reports. His supervisors were likewise unable to address the matter.

One example of this record-keeping relates to a report, written and submitted by the TLO on 8^th November 2005, which states that the complainant approached him in early 2004 asking for a transfer. He told the complainant that he would need to complete an application form and states “[The complainant] did this and he was qualified for a transfer”. However, records relating to a transfer application dated 23^rd March 2004 are only available from the Town Council. On 10^th January 2005, following an indication of the circumstances of the complainant and his family, the relevant official in the Town Council signed the form indicating that the complainant’s wife was homeless on compassionate grounds and on 9^th February 2005 the application for housing transfer was approved and the complainant was placed on the qualified transfer list. The TLO’s report does not indicate whether or not he recorded the complainant’s transfer request in any way. Nor does it indicate whether or not he is referring to the work of the Town Council when he states that the application for a transfer was approved, bearing in mind that the Town council does not use the services of the TLO. In other words the report does not indicate whether or not the TLO is referring to a transfer application submitted to the respondent, to the Town Council, or both. In addition he states that the transfer was approved in a manner that does not indicate the lapse in time between the application and its approval by the Town Council in February 2005and again there is no reference to who approved it. Given the lack of clarity above and the total lack of accuracy particularly relating to dates this report is misleading at best and as it was written in November 2005 it is not contemporaneous. The quantity and standard of records presented in this case should be a major cause for concern for the respondent.

I find that the respondent has failed to rebut the prima facie case of discrimination and that complainant was discriminated against in the manner in which his housing requirements were handled by the respondent. The defense included in Section 6(6) was not raised by the respondent and in any event cannot be availed of in this case.

Vicarious Liability

Section 42 provides:

42.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

………

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

I am satisfied that any action or inaction by the TLO in his dealings with the complainant were in the course of his employment. I am also satisfied that the respondent did not present any information in relation to Section 42(3) above. I find the respondent vicariously liable in this case.

Decision DEC-S2009-009

In accordance with section 25(4) of the Acts, I conclude my investigation and issue the following decision. I find that the complainant was not victimised in terms of the Act but that he was harassed and discriminated against on the Traveller ground in terms of Sections 2 and 6 in the manner in which his housing requirements were handled by the respondent.

In accordance with Section 27 I hereby order the respondent to:

Pay the complainant €6348.69 for the effects of the discrimination; this represents the maximum that can be awarded;
Separate the liaison and decision-making roles currently undertaken by one person, the TLO; the liaison and representation role should not be undertaken by a deciding officer;
Provide access for Travellers to the same services as non-Travellers and in particular that decisions relating to the housing of Travellers are handled by Housing Investigation Officers who also deal with non-Travellers;
Provide comprehensive training in awareness of Traveller culture to all staff dealing with housing, including administrative staff and any Traveller liaison person regardless of their experience;
Record-keeping relating to Travellers is to be at least of the same standard as that relating to non-Travellers.
Within 6 months of this Decision the respondent is to have and use an agreed policy relating to visits to client’s homes following consultations with client groups including Traveller representative groups.

Bernadette Treanor

Equality Officer

30^th January 2009

[1] It appears that the term ‘settled families’ refers to non-Travellers and does not include settled Travellers. Housing Officers, Investigating Officers and Housing Investigating Officers appear to be terms that are interchangeable.