The Equality Tribunal
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Equal Status Acts 2000-2008
Decision
DEC-S2009- 037
Kathleen Maughan & daughter
(represented by Heather Rosen)
v.
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
File Reference: ES/2004/0351-352
Date of Issue: 29th May 2009
Decision
DEC-S2009- 037
Kathleen Maughan & daughter
(represented by Heather Rosen)
v.
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
Key Words
Equal Status Acts, 2000 – Direct discrimination, Section 3(1) – Traveller community, Section 3(2)(i) - provision of accommodation or services or amenities, Section 6(1)(c) – Harassment, Section 11 – Time Limits, Section 21 – named respondent, vicarious liability, Section 42(1) – failure to attend hearing – failure to establish discriminatory treatment – failure to establish a prima facie case of discrimination - finding not in favour of complainant – Section 22, frivolous, vexatious, misconceived, trivial matter – failure to pursue complaint, Section 38 – Section 37A, award of expenses for obstruction or impeding the investigation.
Delegation under Equal Status Acts, 2000-2008
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Act, 2000. On 23rd December 2004, 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 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 Act, 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 on the 28th February and 1st March 2007 and 5th February 2009.
Dispute
The dispute concerns a claim by Kathleen Maughan and her daughter Kelly that they were discriminated against on the Traveller community ground. They allege that the respondent discriminated against them in terms of section 3(1)(a), and 3(2)(i) of the Equal Status Act 2000 contrary to Section 6(1)(c) of that Act. They also alleged that they were harassed contrary to section 11 of that Act. Ms. Kelly Maughan is a minor and is represented by her mother. I will refer to Mrs. Kathleen Maughan as the complainant in the decision herein.
1. Complaint Referred
1.1 An issue arose during the hearing of this complaint on the 28th February 2007 concerning the referral of the complaints to the Tribunal. The respondent submitted that the only complaint referred was a complaint about discrimination on the harassment ground and that I could not investigate or hear any further evidence in relation to the complainant’s claim that she was discriminated against in relation to her accommodation needs. The complaint was part of a large number of complaints referred to the Director of the Equality Tribunal on the 14th and 15th January 2004. The Maughan family was included in the list of names attached to two referral forms, one claiming discrimination on the Traveller community ground in relation to accommodation needs and the other claiming harassment.
1.2 I am satisfied from, both the notification served on the respondent in accordance with Section 21(2) of the Equal Status Act, and the referrals to the Tribunal accompanied by a large volume of material concerning accommodation/housing issues, that the referrals encompassed both alleged discriminatory treatment in relation to accommodation needs and alleged harassment. I informed the parties during the course of the hearing that I would consider evidence in relation to both matters as I was satisfied that these matters had been referred for investigation.
2. I am addressing two other matters at the outset of this decision, the named respondent and the statutory time limits. The full reasons for my decision in these matters are set out in the following decisions: Michael Mongans & others v. Clare County Council DEC-S2006-084, Jim Mongans & others v. Clare County Council DEC-S2007-012 and John & Angela Mongans & others v. Clare County Council DEC-2008-039
2.1 Named Respondent
The complainant’s representative referred the complaints against four named officials of Clare County Council and the County Council itself. At a procedural hearing on the 24th May 2006 an application was made by the solicitor for Clare County Council to have the named respondent changed to Clare County Council only. 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 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.”
Section 21(11) as amended by the Equality Act 2004 provides:
“(11) For the purposes of this section prohibited conduct occurs—
(a) if the act constituting it extends over a period, at the end of the period,
(b) if it arises by virtue of a provision which operates over a period, throughout the period.”
2.3 The referrals to the Tribunal complained about a specific incident of alleged discrimination which occurred on 7th November 2003. The referrals also refer to ongoing discrimination in relation to accommodation needs, the adoption of Traveller Accommodation Programme, the failure to provide emergency accommodation. They also complained about being moved on from areas where they were parked on the side of the road or other public areas. They claim that they were prosecuted for parking there when they had no other place to go.
The respondent in a submission to the Tribunal requested that the various complaints referred to the Tribunal should be heard together. They also submitted that the complaints as referred to the Tribunal do not comply with the statutory time limits and that each specific act of alleged discrimination referred against the respondent concerning issues relating to housing/accommodation needs have to come within the statutory time limits.
2.4 The complainant stated in evidence that she signed up for accommodation with the Council in 2002 and that she was seeking accommodation from them for over four years. She was then offered a bay in a halting site in September 2006 on the basis that she would provide a caravan from her own resources. She submitted that the refusal of the respondent to provide her with accommodation on the bay was further act of discrimination.
2.5 I am satisfied from the documentation submitted on behalf of the complainant and her daughter that they were seeking housing/ accommodation and related services from the respondent over a period of time. I note that two Traveller Accommodation Programmes, one in 2000 and the other in 2005, were adopted by the respondent in accordance with their statutory obligations under Section 7 of The Housing (Traveller Accommodation) Act 1998, and the complainant herein applied under these Programmes for housing /accommodation. The complaints relate to issues arising from these applications and issues arising from their complaints that they were moved from place to place because they had no place to park their caravan. I am satisfied that the alleged prohibited conduct extended over a period of time and was ongoing when the notifications were served on the respondent and referred to the Equality Tribunal continued afterwards. The complainant’s claim is that her accommodation needs had not been met by the respondent.
2.6 I also note that the Traveller Accommodation Programmes to which the complainants refer in their notification has been operating over a 4 year period starting in 2000 and was therefore in operation during the relevant period in October 2003 when the complainant served the notifications on the respondent and referred her complaints to the Tribunal. The Act clearly provides that where the alleged prohibited conduct extends over a period of time that the 2 month time limit for serving the notification in accordance with section 21(1) runs from the end of that period. In my opinion it is clear from Section 21(1) and 21(6) of the Act envisages ongoing discrimination. In these cases, at the time the notifications were served on the respondent and subsequently referred to the Equality Tribunal, the complainants were seeking and were continuing to seek the services of the respondent in relation to housing/accommodation and related issues, matters which were the basis of their complaints about discrimination.
2.7 In relation to time limits under the Act, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Grace Deans v Dublin City Council, Judge Hunt considered Section 21(2) of the Act. In this particular case Ms. Deans, due to a medical condition, was seeking a larger apartment from the Council over a period of time. It was argued on behalf of the Council that her complaint was out of time in that the date the alleged discrimination occurred was fixed in time and nothing new occurred after that date to bring the complaint within the time limits. Judge Hunt stated: “Ms. Deans’ housing and medical situation was ongoing and developing and indeed appeared to me, on the basis of the evidence, to become worse after 2005 rather than better.” He went on the state “So the situation, to my mind, was open and evolving at all times and I take the view that, having considered and applied the relevant provisions of section 21, that Ms. Deans’ complaint is within the time and is admissible.”
2.8 In applying this rationale to the case herein, I am of the view that the complainant’s complaints concerning her housing/accommodation needs were ongoing and developing and evolving from 2002onwards when she first sought accommodation from the respondent. The complaints were about a number of issues but they were all interlinked with her accommodation needs.
Having regard to the provisions of sections 21(1) and 21(11) of the Act, I find that the notifications served under section 21(1) and the referrals of the complaints to the Tribunal comply with the statutory time limits set out in the Equal Status Acts and are therefore admissible.
3. Summary of the Case
I held hearings in this case in accordance with Section 25(1) of the Acts on the 28th February and 1st March 2007 and the above named complainant attended and gave evidence at these hearings. The complainant also attended on the 5th February 2009 to hear a witness called by the Tribunal in relation to the case. As it was not possible to complete the hearing on that day, the case was listed again on the 21st April 2009. The complainant was due to complete her evidence and she failed to appear. On the day prior to the hearing her representative, Ms. Heather Rosen, said that the complainant would attend and she would explain to the Tribunal the reason she could not remain for the duration of the hearing. Ms. Rosen said that the complainant was suffering from stress due to family circumstances.However, the complainant did not appear.
3.1 The respondent’s solicitor submitted that the complainant have ceased to pursue their complaints and that they should be dismissed in accordance with section 38 of the Equal Status Acts. The respondent ‘s solicitor further submitted that, in the alternative the complaints should be dismissed under section 22 of the Act on the grounds that the complaints were made in bad faith and /or are frivolous and /or vexatious and /or relate to a trivial matter. The solicitor also submitted that in the alternative the complaints should be dismissed.
4 Conclusions of the Equality Officer
4.1 I am satisfied from the complainant’s representative that the complainant, Mrs. Kathleen Maughan, was aware that the Tribunal hearing was scheduled to take place on the 21st April 2009. Likewise I am satisfied that she was aware that she was required to attend. It is the responsibility of the representative to inform her client of the date of the hearing. Once a representative is notified of the hearing the Tribunal deems that the clients are also on notice of the hearing and on notice of the requirement to attend. The complainant did not attend the hearing and her representative, Ms. Rosen, requested an adjournment. The Tribunal only grants adjournments in exceptional circumstances supported by relevant documentation.
4.2 Ms. Rosen has not provided any documentation to support her contention that the complainant was unfit to attend the hearing because she was suffering from stress. In the circumstances no adjournment was granted. I find therefore that the complainant’s failure to attend was unreasonable in the circumstances and I concluded the hearing of the case under section 25 of the Act.
4.3 A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discrimination treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. The complainant’s representative submitted that the complainant who had given evidence over two days had established a prima facie case of discrimination.
The complainant in this case gave evidence over two days to the Tribunal but she had not completed their evidence and neither had the respondent completed their evidence nor had the solicitor for the respondent completed the cross examination of the complainant. The complainant failed to attend the scheduled hearing on 21st April 2009 and to complete her evidence and as I have found above, the failure to attend was unreasonable in the circumstances. Therefore I concluded the investigation under Section 25(1) of the Act.
I find, on the evidence presented, that the complainant has not established a prima facie case of discriminatory treatment and my finding is not in her favour.
4.4 The solicitor for the respondent submitted that the case should be dismissed because the complainant has failed to pursue the complaints. Section 38 of the Equal Status Acts 2000 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.
The complainant’s representative attended the hearing on her behalf and requested an adjournment because Mrs. Maughan was suffering from stress. Ms. Rosen wrote to the Tribunal stating that the complainants wished to continue with their case and she requested that the hearing be rescheduled.
4.5 Given that the complainant’s representative attended the hearing and requested an adjournment and the fact that the complainant attended the Tribunal on the 5th February 2009 and gave every indication she was continuing to pursue the case, I am not satisfied that she has ceased to pursue the case on behalf of herself and her daughter. Therefore, I find I cannot dismiss the complaints under section 38 of the Act as it does not appear to me that the complainant has ceased to pursue the reference on behalf of herself and her daughter to the Tribunal.
4.6 I have also considered the respondents request to dismiss the case under section 22 of the Act. I find that the complaints have not been made in bad faith and also I find that the complaints are not frivolous, vexatious, or misconceived nor do they relate to a trivial matter. I cannot therefore dismiss the case under section 22 of the Acts. The full reasons for my decision in this matter are set out in the case of John & Angela Mongans v Clare County Council DEC-S2008-039.
4.7 The respondent’s solicitor submitted that the complainants’ representative handling of the case amounted to obstruction of the investigation contrary to Section 37 of the Acts and they requested that an award of expenses should be made in the respondent’s favour in accordance with section 37A of the Acts. They submitted that the event which led to Mrs. Maughan’s stress happened two weeks ago and that the application for an adjournment should have been made earlier to avoid the waste of the Tribunal and their client’s time and this amounts to obstruction of the investigation.
4.8 Section 37A of the Equal Status Act, 2000 as amended by the Equality Act, 2004 empowers the Director to award expenses. Section 37A provides that:
(1) “the Director may, if of the opinion that a person is obstructing or impeding an investigation, order that the person pay to another person a specified amount in respect of travelling or other expenses incurred by that other person in connection with the investigation.”
(2) Notwithstanding subsection (1), expenses shall not be payable in respect of the attendance at the investigation of any person representing a complainant or respondent.”
4.9 I am not satisfied that the respondent has provided any evidence to support the contention that the complainant or her representative obstructed or impeded this investigation. The complainant’s failure to attend the hearing, in my opinion, did not amount obstruction nor was it an attempt by her to impede my investigation. While I have found above that it was unreasonable for Mrs. Maughan not to attend, I made this finding in the context of her failure to provide satisfactory supporting documentation in relation to the reasons put forward by her representative for not attending, but this does amount to obstructing or impeding my investigation.
The complainant’s representative attended the hearing and, in my opinion, she did not impede or obstruct the investigation. I find therefore, that an award of expenses against either the complainant or her representative under section 37A is not warranted.
4.10 I also want to address issues in relation to the initiation of complaints by the complainant’s representative against Clare County Council. The respondent’s solicitor has made a number of submissions stating that Ms. Rosen initiated this complaint among a number of other complaints against Clare County Council without the knowledge of the complainant and therefore the complaints are inadmissible. The respondent further submitted that Ms. Rosen is receiving funding from a voluntary body for referring the cases and that she is funding in some manner the complainants to attend the hearing of these cases and that the Tribunal should investigate the matter. At the hearing on 5th February 2009 this submission was repeated.
I have already addressed these issues in the Decision of John & Angela Mongans v Clare County Council (DEC-2008-039) and which should be read in conjunction with this decision. For greater certainty and clarity I must say that the functions of an Equality Officer are confined to those in the relevant equality legislation and an Equality Officer has no other investigatory function other than to investigate the complaint lodged by a person alleging discriminatory treatment on one of the statutory grounds of discrimination. I have no evidence that the complaint before me is inadmissible. It is my sole function to investigate the complaint lodged with the Equality Tribunal by the complainant herein and to make a finding in that complaint. Any other matters are outside my functions or the powers of an Equality Officer.
5. Decision
On the basis of the foregoing at paragraph 4.3, I find that Mrs. Kathleen Maughan and her daughter Kelly have not established a prima facie case of discrimination. In accordance with Section 25(4) of the Equal Status Acts, 2000 – 2008, 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 complainant’s failure to attend the hearing on the 21st April 2009 was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. I conclude the investigation and I find under Section 25(4) of the Equal Status Acts 2000-2008 against the complainants.
_________________
Marian Duffy
Equality Officer
29th May 2009