The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Website: www.@equalitytribunal.ie
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2011-048
Andrzej Selenke
(With Mr. Blazej Nowak)
V
Social Welfare Local Office
Case ref: ES/2010/0107
Issued: November 2011
DECISION NUMBER DEC-S2011-048 CASE REFERENCE ES/2010/0107
Keywords:
Equal Status Acts 2000 to 2008- Discrimination -Race - Provision of good and services - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Andrzej Selonke (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 26 November 2010. The respondent was notified of this complaint in accordance with the Acts on 26 October 2010. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, 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 Acts on 25 July 2011. An oral hearing, as part of the investigation was held in Dublin on 25 October 2011.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the race ground. The complainant submitted that the local Social Welfare office ("the respondent") discriminated against him by not extending his Jobseekers's Benefit to 12 months in or about August/September 2010. The complainant maintains that the contributions he had made in Poland were ignored and that the discrimination is ongoing. The complainant submitted that he was also not notified of the status of his claim.
3. Case for the complainant
3.1. The complainant is a Polish national. He had worked in Ireland prior to becoming unemployed in or about 19 September 2009. At that time, he had made a number of required contributions to qualify for Jobseeker's Benefit. While he had worked in Ireland for a number of years, he also has substantial equivalent contributions that he had made in Poland. The complainant understood that he had acquired over 5 years' contributions and thus expected to qualify for the maximum amount under the Jobseeker's benefit, 12 months. He received a decision from the respondent on 11 January 2010 informing him that he was entitled to 234 days. On or about July 2010 the complainant was informed that his benefit would cease in September 2010 and that he may be entitled to Jobseeker's allowance provided he satisfied the required tests.
3.2. The complainant submitted that the failure to take his Polish contributions into consideration amounts to discrimination as an Irish person would not have such difficulty.
3.3. The complainant submitted that the respondent failed to take appropriate steps to provide positive measures for the complainant who speaks limited English. The complainant was not told that the benefit system operates on a 6 day week basis or about EIU2 form. His letter that he personally submitted to the office with details of his Polish PRSI number had been ignored and he had not been told this.
3.4. It was submitted that after the complainant had submitted his notification under these Acts he was called to a meeting with the respondent on 1 November 2010. The complainant, who was accompanied by his witness, understood that he had two weeks to seek documentation concerning his Polish employment. However, after this meeting, on or about 4 November at approximately 3.15 pm, the complainant received two phone calls from a male (or possibly two different males) demanding that the complainant present himself at the social welfare office with the requested documents. It was explained to this person that this was not possible to do so as it would take some time to obtain the documents from Poland (as explained at the meeting) and that the complainant was not in the locality and would be unable to make it into the office before 4 pm. The caller then simply hung up. On or about 6 November 2010, a further call was received from the same number and the complainant's witness who listened to the call on speaker phone said that the caller said that the complainant should not bother with the documents as the claim would not be extended.
3.5. The complainant submitted that these phone calls amounted to victimisation in that the complainant was adversely treated by this misinformation provided over the phone.
4. Case for the respondent
4.1. The respondent provides social welfare services in Ireland, through a number of local offices. Jobseeker's Benefit is a weekly payment from the Department of Social Protection (DSP) to people who are out of work and are covered by social insurance (PRSI). Since 15 October 2008, Jobseeker's Benefit is paid for a maximum of 12 months (312 days) to people who have at least 260 paid contributions. Jobseeker's Benefit is paid for a maximum of 9 months (234 days) to people who have less than 260 paid contributions. In order for a person to qualify for the Jobseeker's Benefit they must have made a minimum of 104 week of contributions since they have started work and; have 39 weeks PRSI paid or credited in the relevant tax year (a minimum of 13 weeks must be paid contributions or have 26 weeks PRSI paid in the relevant tax year and 26 weeks PRSI paid in the tax year immediately before the relevant tax year. Contributions a person has paid in other member states of the EU/EEA will be added to Irish contributions. If a person is applying for Jobseeker's Benefit and need the contributions paid in another EU/EEA country to help him/her qualify, then the last contribution must have been in Ireland.
4.2. It was submitted that due to the fact that the complainant had not provided the required information in his claim the accrued benefits simply could not be assessed. Two named employees of the respondent met with the complainant on 1 November 2010 and explained the procedure to him. It was stated that every effort was taken to ensure that the complainant, who was accompanied by his witness and interpreter, fully understood that he needed to provide work certificates from Poland in order for total contributions to be calculated. As the complainant kept filling in the wrong information concerning the EIU2 form, it was agreed that the complainant would have any documentary evidence sent in to the respondent within 2 weeks.
4.3. The respondent could not explain the alleged phone conversations. A witness for the respondent said that while she could not deny such calls had taken place, she could not see any rationale for such. It was submitted that it would be highly inappropriate and incorrect for an officer to state that a claim could not be extended or that a payment would not be made regardless. Furthermore, the respondent is not in the habit of chasing people who have submitted their claims as their simply do not have the resources to do so. No record exists confirming that such calls were made but it was accepted that this could simply mean that no note was placed on file.
4.4. The respondent does not accept that the complainant was treated any differently from any other person seeking benefits. It was accepted that a mistake had occurred in relation to staff member who had accepted the note concerning the Polish PRSI equivalent as this was not the required information.
4.5. The respondent has requested the information from the complainant twice and has now accepted alternative documentation. The matter is being looked at currently and the complainant ought to have a decision soon concerning the extra three months entitlement that he is seeking.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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. During the hearing it became apparent that the complainant is not arguing that the requirement that he provide proof of the contributions made outside Ireland is discriminatory. It is accepted that such requirements are pursuant to Social Welfare legislation and not discriminatory pursuant section 14(1) of the Acts. It was accepted that an Irish person who had worked abroad before accruing contributions in Ireland would similarly have to satisfy the test. What the complainant is arguing then is that the less favourable treatment was the fact that the complainant with limited English, was not provided with positive measures. Failure to provide these positive measures, it is alleged, amounts to discrimination. It ought to be clear that positive action measures, which are dealt with under section 14(1)(b) of the Acts, will not be deemed to be discrimination in circumstances where there is a bona fide intention to:
(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or
(ii) cater for the special needs of persons, or category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.
5.3. While I accept that the complainant has limited English, I am satisfied that he was often accompanied by a friend with better fluency. I do not accept that the complainant had any reason to doubt - when the matter had been explained to him - that a mistake had been made by an inexperienced staff member when she had accepted his letter containing his Polish PRSI number. The information in this letter did not contain the required information and should therefore not have been accepted. The information is requested from everyone seeking to have their EU/EEA contributions recognised regardless of nationality. I do not accept that the complainant has the entitlement to merely presume that he, as a Polish person, was being asked to provide more information than other persons wishing to avail of their EU/EEA contributions or that he is entitled to provide such information differently from everyone else. In my view, section 14(1)(b) arises only in circumstances where a respondent requires as a defence concerning action that has been undertaken in relation to a person who is particularly disadvantaged or who had special needs in relation to the protected grounds. Positive action is not a requirement or an obligation in law. It is an action, facility, service or arrangement which may be allowed in specific circumstances. This means that while it may be advisable for a service provider to take positive action in certain circumstances, no requirement to provide services in other than the official languages of the state exist per se.
5.4. It is clear that the complainant was perfectly capable of availing of the service provided by the respondent and he had obtained his Jobseeker's Benefit in a timely fashion in reliance of his Irish contributions. I accept that the complainant had understood that the decision to make payments for 234 days amounted to a year's payment as he had understood the benefit week to be based on a 5 day week. I also accept on the evidence presented that the complainant had not fully completed his form and had not made any reference to the contributions that he had accumulated in Poland.
5.5. I am satisfied that the respondent was providing a service in accordance with the statutory regime that governs it. I accept that while doing so mistakes will occur and documents may go astray. The respondent has accepted that an incorrect document was received from the complainant by an inexperienced staff member and sent to the Unit dealing with EU claims. It was also accepted that the person dealing with the claim there did not inform the local office that the information was not correct and not in the correct form. I do not accept that this mistake occurred as a result of the complainant's nationality and I am satisfied, bearing in mind the volume of claims and the ongoing organisational challenges that the respondent is facing with, that such situations are likely to occur from time to time with persons of all nationalities seeking benefits in Ireland.
5.6. I note that the complainant - who had had the opportunity two meet with two members of the respondent staff on 1 November 2010 and had agreed to a certain course of action in relation to his claim being progressed - did not pursue the agreed course of action. I note that the complainant and his witness claim that the reason for this is that the complainant and his witness - who was at earshot at both times - received two calls within days of the above meeting from an anonymous caller claiming to be with the respondent and instructing the complainant not to pursue his claim. Having checked the dates I note that one of this calls was allegedly on Thursday and the other, on Saturday. While I accept that the complainant may have made a mistake in relation to the dates I also must bear in mind that it is a possibility that the message - and I note that there is no record of such calls in the respondent files - could have been misheard. In any case, I find that in such circumstances, it would have been prudent of the complainant to seek to speak with the identifiable people the complainant had met a mere few days earlier or, in the alternative, simply to complete the agreed course action ignoring the call. I do not accept that these calls were in any way linked with the complainant's nationality.
5.7. It ought to be noted that a claim for victimisation was raised at the hearing. It was submitted that the alleged phone calls were as a direct result of the complainant having made a claim under these Acts. I dismissed this claim outright as it is clearly out of time and I therefore am satisfied that I had no jurisdiction to deal with such a claim. While I note that the complainant's representative claimed that the victimisation was ongoing, I find that such a claim is rather disingenuous on a number of grounds. Firstly; the respondent was never given any notification claiming such facts and these facts were only put forward at the hearing; secondly, it is clear that the respondent was prevented from taking any steps concerning the complainant claim as the matter had been referred by the complainant to Ombudsman; Third, no compelling explanation was forthcoming as to why the complainant who had the opportunity to have a face-to-face meeting with two named respondent representatives did not query the content of the alleged phone calls made by an unnamed person who appears to have contradicted the advise given to him at the meeting; and finally, the complainant has only in the last couple of weeks provided the documentation requested from him by the respondent. In such circumstances it is obvious that the complainant's claim is yet to be processed. I am also satisfied, having heard the facts of this case, that the respondent has made some allowances in relation to complainant and are doing all they can to have his claim assessed.
5.8. I am therefore satisfied that the complainant who finally provided the required documentation a couple of weeks ago - provided that said documentation is in order - is likely to receive the remainder of his entitlement concerning the Jobseeker's Benefit. I have found no evidence that the complainant was treated any less favourably that any other person of a different nationality would have been treated in similar circumstances.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has not established a prima facie case of less favourable treatment on race ground. His complaint therefore fails.
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Tara Coogan
Equality Officer
8 November 2011