The Equality Tribunal
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Dublin 2.
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Equal Status Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2009-063
Lennon
v.
Health Service Executive
(Represented by Mr. Conor Power BL on the instructions of McCann Fitzgerald Solicitors)
File No. ES/2007/0161
Keywords
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1) - Disability ground, section 3(2)(g) - Disposal of goods and provision of services, section 5(1) - Notification requirements, section 21.
1. Delegation under the Equal Status Acts
1.1. Mr. Michael Lennon referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 4 December 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998, 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 Act on 12 December 2008. A hearing, in accordance with section 25, was scheduled for 1 September 2009.
2. Dispute
2.1. The dispute concerns a complaint by Mr. Lennon ("the complainant") that he was treated less favourably in relation to the provision of goods and services on the ground of his disability contrary to sections 3(1) by the Health Service Executive on 28 May 2007 and 17 August 2007 ("the respondent"). The complainant submitted that he was not granted a Primary Medical Certificate by the respondent. The complainant submitted that by denying him such a certificate - which is required for the Drivers and Passengers with Disabilities Scheme - the respondent is denying his disability and treating him less favourably. The respondent was notified on 11 October 2007.
3. Notification
3.1. Section 21 of the acts sets out the statutory notification requirements that the complainant must comply with before he has the right to seek redress in respect of any alleged prohibited conduct. The respondent submitted that in his ES3 form the complainant claimed that the first date of discrimination was 28 May 2007. This form is dated 29 November 2007 and was received by this Tribunal 4 December 2007. The ES1 form -notifying the respondent of an intention to seek redress under the acts - was received by the respondent on 11 October 2007 (the form itself is not dated by the complainant).
3.2. Having heard the full facts pertaining to the chronology of this complaint, I am satisfied that the date of alleged unlawful conduct by the respondent took place on 28 May 2007. That is, I am satisfied that this is the date that the complainant was informed of the respondent's decision concerning the Primary Medical Certificate. While I note that there was an alleged further incident I am satisfied that this incident did not involve the respondent.
3.3. In accordance with the acts, the complainant then had two months to notify the respondent in writing of the nature of the alleged unlawful conduct and of his intention to seek redress under the acts. I am satisfied that he failed to do so. In accordance of section 21(6)(a) the complainant must have referred the claim to this Tribunal within 6 month period from the date of the occurrence of the prohibited conduct. The claim was lodged outside this time limit.
3.4. I appreciate that the complainant believes that because he engaged in an appeal process - which I am satisfied is carried out by an independent body with no vicarious liability issues arising concerning this respondent - he is entitled to claim that the second refusal to grant him a Primary Medical Certificate was second incident of alleged discrimination and therefore, his time limit should have only started on 17 August 2007. The law, however, is clear in this matter. In Minister for Finance v. CPSU (2006) IEHC 145, Laffoy J. stated in her conclusions that:
"Although not directly in point here, the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in a medical negligence case, Hegarty v. O'Loughran 1 I.R. 148, which is referred to in the judgment of Morris J. in McDonald v. McBane"
While I note that the above judgement concerned the 6 month statutory time limit to lodge a complaint under the Employment Equality Act, it is, in my opinion equally applicable in the instant case. The time limits for notification are set out in section 21 of the Equal Status Acts 2000 to 2008 and the acts are clear in relation to the requirements.
4. Decision
4.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
4.2. The complainant has failed to comply with the statutory notification limits as set out in section 21 of the acts. Therefore, I find I have no jurisdiction to investigate this complaint.
________________
Tara Coogan
Equality Officer
9 September 2009