EQUALITY OFFICER'S DECISION NO: DEC-E/2010/118
PARTIES
HORGAN
AND
(1) HEALTH SERVICE EXECUTIVE AND
(2) CONNOLLY HOSPITAL BLANCHARDSTOWN
(REPRESENTED BY MCCANN, FITZGERALD - SOLICITORS)
File No: EE/2006/277
Date of issue: 2 July, 2010
Headnotes: Employment Equality Acts, 1998&200 - sections 6,8,16 and 77 - disability-- discriminatory treatment- reasonable accommodation - non attendance at Hearing - prima facie case
1. BACKGROUND
1.1 The complainant referred a complaint under the Employment Equality Acts, 1998 & 2004 to the Equality Tribunal on 1 August, 2006 alleging that either or both of the respondents had (i) discriminated against him on grounds of disability, family status and sexual orientation, in terms of section 6(2) of the Employment Equality Acts, 1998 & 2004 and contrary to section 8 of those Acts, (ii) dismissed him in circumstances amounting to discrimination on grounds of disability, family status and sexual orientation, in terms of section 6(2) of the Employment Equality Acts, 1998 & 2004 and contrary to section 77 of those Acts, (iii) dismissed him in circumstances amounting to victimisation contrary to section 77 of the Employment Equality Acts, 1998 & 2004 and (iv) failed to provide him with reasonable accommodation to take account of his disability in accordance with section 16 of the Employment Equality Acts, 1998 & 2004. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 13 November, 2009, the date the complaint was delegated to me.
1.2 At the date of delegation submissions had been received by the Tribunal and exchanged between the parties and the complaint was ready for Hearing. In accordance with the normal procedures of the Tribunal I notified the parties in writing on 16 November, 2009 that a Hearing on the complaint would take place at the Tribunal's Office on 25 February, 2010 commencing at 10:30am. This notification was sent by recorded delivery. The letter to the respondent of 16 November, 2009 also requested that it provide additional information in respect of certain matters referred to in its submission. This information was furnished by the respondent on 21 January, 2010 and it was copied to the complainant on the same day. The respondent also advised on that day the names of those persons who would comprise its party at the Hearing and this correspondence was also copied to the complainant at the time.
1.3 The complainant e-mailed the Tribunal on 11 January, 2010 seeking a postponement of the Hearing scheduled for 25 February, 2010. He cited the following reasons for the request - (i) he had only received my letter of 16 November, 2009 on 9 January, 2010, (ii) he had been hospitalised for two weeks due to a broken leg and (iii) he had no legal representation organised and given his mobility problems he would be unable to instruct a solicitor properly prior to the Hearing. In accordance with the internal practice of the Tribunal at that time the Director wrote to the complainant on 18 January, 2010 refusing the application for an adjournment, stating that the reasons advanced were not sufficient to warrant same. The complainant e-mailed the Tribunal on 28 January, 2010 asking that the Director review her decision about the adjournment, stating that there were other medical reasons - in particular a new medication regime for his medical condition - which resulted in him being medically unfit to attend the Hearing. The complainant was requested to furnish relevant evidence of his medical condition and did so. In light of his "current medical circumstances" the Director reviewed her original decision and granted the adjournment sought. This was communicated to the complainant (and the respondent) by letter dated 15 February, 2010.
1.4 I wrote to the parties on 15 February, 2010 (by recorded delivery) advising that the Hearing was rescheduled for the Tribunal's Offices on 30 June, 2010 commencing at 10:30am. The letters also (i) asked the parties to advise the Tribunal if any person attending the Hearing required any special facilities to participate on the day and (ii) advised that requests for adjournment must be made in writing as soon as possible and would be granted only in exceptional circumstances. I am satisfied that both parties received this correspondence within days of it issuing from the Tribunal. Nothing further was heard from the parties until the complainant's e-mail of 23 June, 2010 in which he sought clarification on a small number of points, including whether or not a particular legal representative (details supplied) had contacted the Tribunal on his behalf about the complaint. I replied by e-mail on the morning of 25 June, 2010 advising that the Tribunal had had no communication from the solicitor named.
1.5 I received an e-mail from the complainant on 29 June, 2010 seeking an adjournment of the Hearing scheduled for the next day. The complainant cited problems which he had encountered with his solicitor as the sole reason for his application. He added that in the circumstances he was unprepared for the Hearing. I carefully considered the arguments advanced by the complainant in respect of the adjournment. I noted in particular that he had in excess of four months within which to instruct a solicitor in the matter and had failed to ensure it followed his instructions, bearing in mind he confirmed in his e-mail that he had instructed a solicitor in matter in March, 2010. The application for the adjournment was made only days before the Hearing date and the complainant had previously been granted an adjournment - part of the reasons for which was his inability to engage and instruct legal representation at that time due to his mobility as a result of breaking his leg. In the circumstances I decided that the reasons advanced were insufficient to warrant an adjournment and declined the request. I advised the complainant of my decision in this regard by e-mail at noon on 29 June, 2010. The complainant e-mailed the Tribunal on 30 June, 2010 (which was accessed by staff at 9:21am) stating, inter alia, that he was awaiting the Director's decision on his adjournment application. I responded to this e-mail by return advising that I had the authority to make the decision on his application and re-affirmed this decision - in light of the fact that no new material was advanced by him - and stated that the Hearing would proceed as scheduled. The respondent attended the Hearing as scheduled. The complainant was not in attendance at 10:30am and in accordance with the Tribunal's normal procedure the complainant was given thirty minutes grace to appear. The complainant did not arrive by 11oc and I proceeded with the Hearing.
2. DECISION OF THE EQUALITY OFFICER.
Section 79(1) of the Employment Equality Acts, 1998-2008 requires me, as part of my investigation, to hold a Hearing. The parties were notified of the arrangements for the Hearing in writing, by recorded delivery, on 15 February, 2010. I am satisfied that the complainant received this notification within days of it issuing from this Tribunal. The complainant's was advised by e-mailed on 29 June, 2010 that his request for an adjournment was refused. This decision was re-affirmed to the complainant early on the morning of the Hearing - 30 June, 2010 in response to a further e-mail received from him that day. I am satisfied that the complainant was always on notice that the Hearing would proceed as scheduled and he failed to attend. In the circumstances I find that the complainant's failure to attend the Hearing is unreasonable and that any obligation under section 79(1) has ceased. As no evidence was presented by the complainant in support of his complaint I conclude my investigation in the matter and find against the complainant.
_____________________________________
Vivian Jackson
Equality Officer
2 July, 2010