The Equality Tribunal
3 Clonmel Street
Dublin2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Website: www.@equalitytribunal.ie
Equal Status Acts 2000-2008
Decision Number
DEC-S2009-018
Marie Jackson
V.
Ann’s Hot Bread Shop
Case ref ES/2007/0040
Issued 13 March 2009
DECISION NUMBER DEC-2009-018
Keywords:
Equal Status Acts 2000 to 2008 – Discrimination, section 3(1)(a) – Disability ground, section 3(2)(d)- Harassment other than sexual, section 11 – Victimisation, section 3(2)(j) - Provision of Goods and Services, section 5(1) – Vicarious liability, section 42(1)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms. Marie Jackson referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 11 May 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Act, 2000, 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 Acts. An investigation in accordance with section 25(1) of the Acts commenced on 17 October 2008. An oral hearing, as part of the investigation, was held in Dublin on 12 February 2009. Final communication was received on 2 March 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination and harassment on the disability ground. Ms. Jackson (“the complainant”) maintains that Ann’s Hot Bread Shop (“the respondent”) treated her less favourably contrary to section 5(1) when it allegedly refused her access to their café on Mary Street, Dublin on 23 March 2007. She also claims victimisation. The complainant submits that the respondent was notified on 27 March 2007.
3. Notification
3.1. The complainant stated that the respondent was notified on 27 March 2007. Section 21, subsection (2)(a) of the Acts sets out the notification requirements that a complainant must comply with prior to seeking redress under the Acts. Under the Act the notification must do all of the following:
(1) Be in writing;
(2) Give details of the nature of the complaint;
(3) State the complainant’s intention to seek redress under the Equal Status Acts if there is no satisfactory response.
3.2. The complainant stated in direct evidence that she had personally delivered the notification form to the respondent. She stated that she had given it to a woman in the coffee shop but that due to the treatment she had allegedly previously experienced outside the premises she was too nervous to ask for a receipt for the notification. She stated that she was even too flustered to enquire what the woman’s name was. She also stated that she may have mailed the notification form and had submitted a photocopied proof of postage. The complainant also stated that she had poor literacy skills and that she had help from the Citizen’s Advise Bureau in relation to making the complaint.
3.3. The respondent stated in direct evidence that they had not received any notification in accordance with section 21(2) until the Equality Tribunal contacted them to inform them that a complaint had been lodged. It was also submitted that the certificate of posting was very unclear and that on the face of that it is only proof of a record of a document sent to the complainant herself. On that basis, the respondent has objected on the grounds that proof of delivery is absent in respect of the requirement to serve notification to the respondent.
3.4. The file contained a photocopied proof of postage. I have examined this and have noted that the form is blank except for the complainant’s name which has been inserted where the addressee’s details are supposed to be. It appears that the form was not filled in by a post office official but by the complainant herself. The photocopy also contains a date stamp that does not correspond with the date that the complainant has submitted as the date for when notification was sent.
3.5. I also requested evidence from the complainant that she had informed the respondent that she intended to make a complaint under the Acts. Subsequent to the hearing, the complainant issued the Tribunal with a photocopied ES.1 form (which can be used for notification). It was stated that the Citizen’s Advise Bureau probably gave the complainant two copies of the ES.1 form, one to forward to the respondent and the other for her own records.
3.6. The Acts are very specific in relation to the notification requirement before the complaint can proceed. Section 21(2)(a) proceeds with the word ‘shall, within 2 months of the prohibited conduct is alleged to have occurred …notify the respondent in writing’. Shall is a word that involves a command or obligation. It is not a suggestion. The reason why such notification is required under the Acts is to ensure fairness and that the principles of natural justice can be afforded to both parties involved in the complaint. While the Acts have granted the Director the power to grant - in exceptional circumstances – a direction that subsection 21(2) shall not apply – the circumstances of this case do not give raise to such an exceptional case.
Decision
I have not been satisfied, on the balance of probabilities, that the complainant has complied with the statutory notification requirements. In accordance with section 21(4), I find that I have no jurisdiction to investigate this complaint.
______________________
Tara Coogan
Equality Officer
13 March 2009