The Equality Tribunal
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Equal Status Acts 2000-2008
Decision
DEC-S2009- 035
Elizabeth Galbraith & James Galbraith
(represented by Heather Rosen)
v.
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
File Reference: ES/2003/583-584
Date of Issue: 28th May 2009
Decision
DEC-S2009- 035
Elizabeth Galbraith & James Galbraith
(represented by Heather Rosen)
v.
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
Key Words
Equal Status Acts, 2000 –2004 – Direct discrimination, Section 3(1) – Traveller community, Section 3(2)(i) – provision of accommodation or services or amenities, Section 6(1)(c) – statutory time limits, Section 21 – named respondent, vicarious liability, Section 42(1) – failure to attend hearing – failure to establish discriminatory treatment – finding not in favour of complainant - failure to pursue complaint, Section 38
Delegation under Equal Status Acts, 2000-2008
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts. On 4th June 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts 2000 the Director delegated the cases 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, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 18th May 2009.
Dispute
1.1 The dispute concerns a claim by Elizabeth and James Galbraith that they were discriminated against on the Traveller community and race grounds. They allege that the respondent discriminated against them in terms of section 3(1)(a), and 3(2)(h) and (i) of the Equal Status Act 2000 contrary to Section 6(1)(c) of that Act.
The complainants, in their referral to the Tribunal, state that, following the allocation of a house to them by the respondent they signed a tenancy agreement and arranged to have a new wooden floor laid, because in the agreement they were responsible for decorating the house. They allege that the respondent removed the floor and it was never returned to them and they were never reimbursed the price of the floor. They also state that they were discriminated against by the respondent because he employed security on the Traveller Accommodation site and it is not the policy of the respondent to employ security for non-Traveller housing schemes.
1.2 In a response the respondent in a submission stated that the complaint was inadmissible and it was ultra vires the powers of the Tribunal to proceed to investigate the complaint. They further submitted that before the Tribunal can investigate the complaint it must be satisfied that there is evidence of a prima facie case of unlawful discrimination.
The Tribunal deemed that the complaint was valid and admissible under the Act.
I am addressing two matters at the outset of this decision, the named respondent and the statutory time limits.
Named Respondent
2.1 The complainants referred their complaints against two named officials of Clare County Council, Mr. Tom Coughlan and Ms. Madeleine McCarthy and the County Council itself. During the course of other hearings of complaints against the same respondent where the named officials were named as respondents an application was made by the solicitor for Clare County Council to have the named respondent changed. Having considered the matter and given the provisions of Section 42 of the Equal Status Acts concerning vicarious liability, I find that the named respondent should be Clare County Council only and the case herein should proceed against this respondent only and not against the named individuals
2.2 Statutory Time Limits
The other matter for consideration is, whether the complaints have been notified to the respondent within two months of the occurrence of the prohibited conduct and if the complaint was referred to the Tribunal within six months of the occurrence of the prohibited conduct. Section 21 provides:
“21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.
(2) Before seeking redress under this section the complainant—
(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—
(6) Subject to subsection (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.”
The complainants served the notification on the respondent in accordance with Section 21(2) of the Act on the 27th of May 2003 alleging that discriminatory acts concerning the removal of the flooring and the placing of security around the new houses provided by the respondent took place in or about the 28th March 2003. The complainants were not satisfied with the response and referred a complaint to the Director of the Equality Tribunal seeking redress. The complaint was referred to the Tribunal on 26th September 2003. I am satisfied therefore that the notification of the complaint to the respondent, in accordance with Section 21(1), was within two months of the alleged act of discrimination. I am also satisfied that the referral was made to the Tribunal within six months of the date of the alleged act of discrimination in accordance with section 21(6) of the Act. I find therefore that the complaint is admissible as it is within the time limits set out in the Act.
3. Summary of Case
3.1 I commenced the investigation of this complaint when it was assigned to me on 4th June 2008. On 18th May 2009, as part of the investigation of the complaint, I arranged a callover/hearing. The purpose was to continue the investigation, to open the hearing, to establish some further and additional information about the complaints and to inform the parties that the hearing would continue on 19th June 2009. The complainants failed to attend. Their representative, Ms. Heather Rosen, said that the complainant confirmed to her that they were attending and she was surprised that they had not turned up. She requested an adjournment so that she could contact the parties to ascertain what happened.
The respondent’s solicitor submitted that the complainants have ceased to pursue their complaints. She requested that I strike out the complaints in accordance with section 38 of the Equal Status Act 2000.
4 Conclusions of the Equality Officer
4.1 I am satisfied from the complainants’ representative that the complainants were aware that the Tribunal callover/hearing was scheduled to take place on the 18th of May 2009. Likewise I am satisfied that they were aware that they were required to attend. The complainants did not attend the hearing and their representative requested an adjournment. The Tribunal only grants adjournments in exceptional circumstances supported by relevant documentation.
4.2 As the complainants provided no satisfactory reasons supported by the relevant documentation for their non-attendance at the Tribunal hearing no further adjournment was granted. I find therefore that the complainants’ failure to attend was unreasonable in the circumstances and I concluded the investigation and hearing of the case under section 25 of the Act.
4.3 The solicitor for the respondent requested me to strike out the case under Section 38 of the Act because the complainants have failed to pursue their complaints. I have no power under the Act to strike out a case. However, I have power under Section 38 of the Act to dismiss a complaint for non-pursuit. Section 38 of the Equal Status Acts provides:
“(1) Where a case is referred to the Director and, at any time after the expiry of one year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may dismiss the reference.”
4.4 In considering whether the complainants have failed to pursue the reference, I note the complainant’s representative attended the hearing on their behalf and submitted that they were pursuing their case. She said that she had spoken to them the previous day about the case and that she was expecting them to attend because they had told her they would be there. She requested an adjournment when they failed to appear. Therefore, I am not satisfied they have ceased to pursue their complaints. Therefore, I find I cannot dismiss the complaints under section 38 of the Acts as it does not appear to me that they have ceased to pursue their reference to the Tribunal.
5. Decision
In accordance with Section 25(4) of the Equal Status Act 2000, I issue the following decision: as part of my investigation under Section 25 of the Act, I am obliged to hear all interested persons, I find that the complainants failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. As no evidence was presented in support of the allegation of discrimination at the hearing, I conclude the investigation and I find against the complainants.
_________________
Marian Duffy
Equality Officer
28th May 2009