Decision
DEC-S2010- 037
Peter O'Neill
v.
Garda Síochána Ombudsman Commission
(represented by Catherine Pierse, Solicitor GSOC)
Key Words
Equal Status Acts, 2000 -2004 - Direct discrimination, Section 3(1) - Disability, Section 3(2)(g), - definition of service section 2(1), quasi judicial functions outside the scope of the Act., Section 22(1) - misconceived.
Delegation under Equal Status Acts, 2000-2008
The complainant referred complaints to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008 on the 17th November 2008. On the 28th April 2010, 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 case 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. The investigation concluded on 11th June 2010.
1. Dispute
1.1 The dispute concerns claims by the complainant that he was discriminated against by Garda Síochána Ombudsman Commission on the disability ground contrary to Section 5 of the Equal Status Act, 2000-2008.
2. Summary of the Case
2.1 The complainant's case is that he was discriminated against by the respondent on the disability ground when they refused to extend the six month time limit for referring a complaint to the respondent. The complainant referred a complaint to the respondent on the 6th of December 2007 making allegations about members of an Garda Síochána in relation to matters which occurred in 1997. The respondent sought clarification of the complaint and sought reasons from the complainant about the delay in referring the complaint. Having considered further correspondence from the complainant the respondent determined that the complaint was inadmissible because it was referred outside the 6 month statutory period for referring such a complaint. The Commission decided that there were no good reason provided by the complainant for the delay which would enable them to extend the time limit as provided for in the statute
3. Conclusions of the Equality Officer
3.1 The matter referred for investigation was whether or not the complainant was discriminated against on the disability ground contrary the Equal Status Acts. In reaching my decision I have taken into account all the written submissions, made to me by the parties in the course of my investigation into the complaint.
The complainant referred a complaint to Tribunal on the 17th November 2008.
On the basis of the complaint referred and the submissions received from both parties I have considered whether the complaint is misconceived under Section 22 of the Equal Status Acts.
3.2 The issue I have consider is whether the function of the respondent in relation to the extension of time limits for referring complaints is a service within the meaning of section 2(1) of the Equal Status Acts. The Act provides:
''service'' means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes --
(a) access to and the use of any place,
(b) facilities for --
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
It is clear to me having examined the wording of section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or a section of the public. It is also clear that the services or facilities mentioned in section 2(1)(b) is not an exhaustive list of matters covered by the Act. Therefore I need to examine the statutory functions of the respondent to determine whether all their functions can be regarded as a service or facility within the meaning of section 2(1).
3.3 The Garda Síochána Ombudsman Commission was set up under the Garda Síochána Act, 2005 to investigate complaints made against members of the Garda Síochána. Section 84 (1)of the above mentioned Act provides that a complaint about conduct of a member of the Gardaí must be referred to the Ombudsman Commission within 6 months of the incident. Section 82(2) provides that the Ombudsman Commission may extend the period for referring a complaint if they consider there are good reasons for doing so. In this case the complainant referred a complaint outside that 6 month period and the respondent did not extend the time limit. In the complaint referred under the Equal Status Acts, complainant contends that the respondent's refusal to extend the time limit was discriminatory on the disability ground.
3.4 It clear to me that the complainant is attempting to appeal the decision of the respondent to this Tribunal. While I am satisfied that some of the services provided by the respondent to members of the public would come within the scope of the Act, the decision making function is not a service as defined under Section 2 of the Equal Status Acts. There is a statutory duty on the respondent to investigate and make decisions including decisions about the admissibility of complaints in accordance with the Garda Síochána Act, 2005. It is a quasi-judicial decision making function and is not amenable to review by this Tribunal.
3.5 In considering this case I have followed the Equality Tribunal's decision in the case of Donovan v. Donnellan (DEC-S2001-011) and which was considered and followed in Fogarty v The Employment Appeals Tribunal (DEC-S2009-087). The Equality Officer in Donovan case concluded that the investigation and the prosecution of crime by a member of the Gardaí does not constitute the provision of a service or a facility to the public. I also note that in the Donovan case that the Equality Officer, who considered the jurisprudence in the English case of Farah v. Commissioner of Police of the Metropolis (1997) 2 W.L.R. 824, differentiated between the duty of the Gardaí to investigate and prosecute the commission of a crime and other functions of an Garda Síochána such as witnessing a passport application, giving directions or taking a complaint. The Equality Officer stated : " the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Síochána, including those of the investigation and the prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope."
In the Fogarty case the Equality Officer differentiated between the administrative functions of the EAT and their decision making functions and held that the decision making functions was not a service within the meaning of the ES Acts.
3.6 Taking into consideration the reasoning in the above mentioned cases, I find that the respondent is exercising a quasi judicial decision making function, and this decision making function is not a service and therefore is not subject to the terms of the Equal Status Acts.
3.7 Section 22(1) of the Act provides: " The Director may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter."
A claim is misconceived if it is incorrectly based in law. I am satisfied this complaint is incorrectly based in law. I find therefore that the complaint is misconceived and I dismiss it in accordance with Section 22(1) of the Equal Status Acts.
_________________
Marian Duffy
Equality Officer
30th July 2010