THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS, 2000 to 2008
Decision No. DEC-S2009- 078
PARTIES
Two Complainants, Mr A and Ms B
-v-
Mr C
and the HSE
File Reference: ES/2007/112
Date of Issue: 9 November 2009
Key words
Equal Status Acts - Section 3(2)(c), Family Status ground - Section 3(2)(h), Race ground - no less favourable treatment - more favourable treatment - no prima facie case - CD presented as evidence
1. Delegation under the relevant legislation
1.1. On 17 October, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On the 12th December, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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.
1.2. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Galway on 30 September, 2009. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainants that they were discriminated against by the respondent on the race and family status grounds contrary to the Equal Status Acts in terms of Sections 3(1)(a), Section 3(2)(c) and Section 3(2)(h) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated them less favourably, inter alia in the course of a meeting with the first-named respondent on 30 August, 2007.
3. Summary of the Complainants' case
3.1. The complainants are Polish and married to each other. The substance of their complaint relates to a meeting they had on 30 August, 2007 with Mr C, an investigating officer for the second-named respondent. This meeting took place as part of the complainants application for supplementary welfare allowance (SWA) for which they applied as Mr A was only working part-time at the time in question. The complainants submitted that Mr C's attitude towards them at that meeting was hostile and generally inappropriate and that Mr C made them feel humiliated. They submit that the attitude of Mr C towards them was thereby discriminatory on the race and family status grounds.
3.2. Mr A gave a number of specific examples of statements Mr C allegedly made in that regard, for example that he said "you have left your family with nothing". Mr A also said that Mr C alleged that he had deceived the system. Mr A said that there was an error in the system of operation of the second-named respondent that may explain this statement by Mr C. He also said that when he told Mr C that Ms B was pregnant, in the hope of having that taken into account in his assessment of their application, that Mr C said "stop!stop!stop!" in a dismissive fashion. Mr A disputed the totality of the information provided to Mr C by Mr Y, Mr A's former employer, (see par. 4.1 below) and said that these allegations were proven to be false in a court of law.
3.3. Mr A also took issue with the contents of a letter written by Mr C's supervisor, Ms Z, on 21 November 2007, to the relevant Appeals Officer (in relation to the application in question), when she wrote "Mr C advised Mr A to apply to the Department of Social and Family Affairs for an appropriate payment and to submit documentation from his employer in relation to the change in his employment status." The complainants disputed that Mr C had told them to go to their local unemployment office to sign on and submitted that Mr C never advised them of anything. Mr A said that he had paid his PRSI contributions and was therefore entitled to receive SWA, which was not provided to him by Mr C in this particular instance.
3.4. The complainants also submitted that they were treated less favourably in relation to a letter from Ms Z dated 10 October 2007, which provided further details about the procedure for making an SWA application and had the effect of preventing them from availing of the allowance in question for the six weeks between their receipt of it and their meeting with Mr C, as information provided in the letter was critical to their application and had not been provided by Mr C. It submitted that this was discrimination because Mr C had not properly advised them and because the letter arrived almost two months after their meeting with him.
3.5. Ms B confirmed the evidence of Mr A and said that she was surprised by the attitude of Mr C. She said that somebody working in a state office should not talk in such a manner and that his behaviour on the day in question was unacceptable.
3.6. The complainants stated that they did not think that Mr C would have treated an Irish person in the same manner. In that regard, they referred to an unnamed Irish person who had worked with Mr A in the same company and received the assistance in question. They were unable to provide any further details for this alleged comparator.
4. Summary of the Respondent's case
4.1. Mr C, who gave evidence at the hearing, confirmed he met with Mr A and Ms B on the day in question. He said that he had some concerns about their employment status at the time, in terms of the salary that Mr A was receiving from his employer. He also stated that he had spoken with Mr Y, who had provided him with certain information that appeared to call into question the accuracy and bona fides of the information being provided to Mr C by Mr A. Mr A asked for, and received, this information in writing, which included an accusation that Mr A had not returned a van that had been given to him by Mr Y.
4.2. Mr C confirmed that this information was to hand when he met with Mr A and Ms B on the day in question. However, he said that he simply asked the complainants for information regarding their employment status and for documentation in that regard, as well as a completed application form. He said that he cannot assess anyone without the relevant documentation and that all applicants for the SWA were always asked for the documentation in question. He was therefore not treating the complainants differently to anyone else in doing so. He said that neither complainant had the relevant documentation with them and said that, in that event, there was very little he could do. However, he said that he did tell the complainants to sign on in their local unemployment office, which was a condition of the SWA application, and that he would be sending their file to Ms Z, who was the deciding officer in relation to the application.
4.3. Mr C said he suggested to Mr A that, in his current financial circumstances, he could not afford to send €50 per week to his son in Poland, but said that this was merely a comment on their financial situation and was by way of advice on that situation. He also said that when Mr A pointed out his wife was pregnant, he asked for a letter from her doctor to that effect. He said he asked this as the respondent might have taken it into account in assessing the complainants' application, in the sense that it might look more favourably on the application if her pregnancy could be confirmed. However, he denied making any of the other statements alleged by the complainant to be discriminatory.
4.4. Ms Z, who was also present at the hearing, stated that the reason why her letter dated 10 October 2007 was so late in arriving was because an earlier similar letter, dated 10 September 2007, had been incorrectly addressed. The Tribunal was provided with a copy of both letters, as well as the envelope in which the first letter was sent and the notice from An Post returning the letter to the respondent.
4.5. The respondent submitted that Mr C treated the complainants the same as he would treat anyone coming into his office. It submitted that it had a relationship with the complainants going back to February 2007, that there have been many interactions with the complainants in that regard, including by Mr C, and that it had taken many decisions with regard to various applications on the complainants' part, most of which were in their favour. It submitted that it was illogical for the respondent to change this approach in dealing with the complainants in relation to the SWA application in question. It therefore could not see how there was any discrimination on either ground, either in the course of Mr C's interview with the complainants or in the procedure it followed and/or the decisions it made with regard to the relevant application.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. The complaint was made against Mr C. However, Section 42 of the Acts provides that the complaint is also being made against the second-named respondent, as Mr C's employer.
Race Ground
5.3. I note that the respondent, including Mr C, had dealt with a number of other applications by the complainants and that it was agreed by Mr A that there was no less favourable treatment in relation to any of these other applications. It would therefore be inconsistent and out of character for Mr C, or anyone else on behalf of the respondent for that matter, to give any consideration to the complainants' nationality on the day in question. Furthermore, I am satisfied that Mr C's request for further documentation was a normal part of the process in question and it is clear that the complainants did not have their documentation complete as they returned later with further documentation. I am also satisfied that the time gap between the meeting and the letter from Ms Z was caused by a clerical error in sending the letter in question to the wrong address in the first instance. The complainants also submitted that this was an attempt to treat them less favourably as the letter was the first time they became aware of information that was critical to the success of their SWA application. However, they had made at least one previous application for SWA and, in any event, it is clear that the information in question is readily available. I do not accept that they could not have known of it prior to receipt of the letter in question.
5.4. In any event, it is clear to me that there is nothing in the evidence of either complainant to indicate that whatever was said by Mr C to the complainants, and whatever way it was said, that Mr C was motivated by the nationality of either of the complainants. If, as is alleged, Mr C did say anything inappropriate or insulting, it appears to me that any such statements were motivated primarily by the fact that he believed that Mr A was attempting to engage in illegal activity and/or attempting to defraud social welfare. Even if that belief later proved to be unfounded, it was honestly held at the time. I also note that Mr A himself explained that Mr C's attitude may have been caused by an error in the respondent's system.
5.5. Therefore, while I accept the substance of the complainants evidence regarding the conversation with Mr C to be, in general, more compelling as regards what was actually said, I nonetheless find that there is no evidence of less favourable treatment on the ground of race on the part of the respondent. In that regard, I would add that I do not accept the existence of the comparator referred to by Mr A, not least because he did not even know the alleged comparators name. Even if such a comparator existed, I am satisfied that the circumstances in which his application would have been considered were substantially different from those of Mr A and Ms B, irrespective of the nationality of any of the parties concerned, and would therefore be irrelevant in any event.
Family Status Ground
5.6. As regards the complaint of less favourable treatment on the ground of family status, I am satisfied that the statement made by Mr C with regard to money sent to the complainants' child in Poland was not discriminatory as it was merely a comment on their financial situation and had no bearing on Mr C's consideration of their application. Therefore, the only relevant evidence in this regard surrounds the statement made by the complainant regarding the pregnancy of Ms B. I note that Mr A raised the matter only in order to obtain more favourable treatment for the complainant's application than would otherwise have been the case. What was said by either party is therefore irrelevant, as whatever was said could not have resulted in less favourable treatment because of Ms B's pregnancy. It was therefore not discriminatory and the complainants have failed to establish a prima facie case of discrimination in relation to the family status ground. As the complainants have failed to establish a prima facie case in regard to either ground complained of, it would be inappropriate for me to make any further comment on the conversation between Mr C and the complainants.
Issue of CD presented in evidence
5.7. The complainants had provided to the Tribunal a CD which, they said, was a recording of the meeting in question. They submitted that I should hear this evidence as it would prove their allegations against Mr C. As already stated, I accept the oral evidence of the complainants to be, in general, more compelling as regards what was actually said between the parties during that meeting. Given this, and in light also of what I have already stated in paragraph 5.4 above, I am satisfied that listening to the CD in question could not have been of any assistance to my investigation. I also note that the respondent objected to the hearing of this evidence on a number of grounds, including that the recording was not made by an independent source and was obtained without Mr C's knowledge, that a copy had not been made available to it by the complainants, and that the transcript that was provided was incomplete and unreliable. In all the circumstances of the present case, then, I indicated at the hearing that I was satisfied that I could make my decision based on the oral and written evidence already provided and that I did not need to hear, nor would I listen to, the CD in question.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that, further to Section 38A of the Equal Status Acts, the complainants have failed to establish facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to them. The complainants have therefore failed to establish a prima facie case of discrimination on the Race and Family Status ground in terms of sections 3(1), 3(2)(c) and 3(2)(h) of those Acts.
6.3. Accordingly, the complainants' cases fail.
_____________
Gary O'Doherty
Equality Officer
9 November 2009