The Equality Tribunal
Equal Status Acts 2000 to 2011
DECISION NO: DEC-S2013-008
Sally Boland
(Represented by James O'Sullivan Solicitors)
V
Irish College of Traditional Chinese Medicine
(Represented by O'Mara Geraghty McCourt Solicitors
File No. ES/2012/0051
Date of Issue: 10 September 2013
Keywords: Equal Status Acts 2000 to 2011 - Discrimination, section 3 - Marital Staus, section 3(2)(b) - Victimisation, section 3(2)(j) - Harassment, section 11 - Period of notification & referral of claim, section 21(2), (3) & (6) - Jurisdiction
1 Delegation under the Equal Status Acts 2000 to 2004
1.1 The complainant referred her claim against the Irish College of Traditional Chinese Medicine (ICTCM) to the Director of the Equality Tribunal under the Equal Status Acts on 8 May 2012. On 28 January 2013 in accordance with his powers under section 75 of the Employment Equality Acts, 1998 - 2011, the Director then delegated the case to me, Hugh Lonsdale, 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 the investigation under section 25 commenced.
1.2 A written submission was received from the complainant on 23 November 2012. The respondent replied on 24 December 2012 and raised a preliminary issue that the complainant had issued notification of the complaint to the respondent outside the time limits set out in section 21 (2) of the Acts and also that she had referred her complaint to the Equality Tribunal outside the time limits set out in section 21 (6) of the Acts. I then sought a written response from the complainant's representative in relation to the issue time limits and this was received on 27 February 2013. Having assessed the written submissions I decided to hold a preliminary hearing to deal with the time limits issues only and this took place on 18 June 2013.
2 Outline of Events
2.1 The complainant enrolled on a licentiate course in professional acupuncture with the respondent which started on 18 October 2008. The complainant set out a number of events which she submits amount to discrimination under the Equal Status Acts. I will not be dealing these issues at this stage as I am now investigating if the claim was made within the prescribed time limits.
2.2 On 5 January 2011 the complainant received a formal written warning from the respondent. Then on 5 February 2011 she was removed from the course by the respondent. Her legal representative wrote to the respondent on 10 February 2011 and there followed correspondence between the legal representatives of the complainant and the respondent until 20 June 2011.
2.3 In October 2011 the complainant made a complaint against the head of the college to the Professional Register of Traditional Chinese Medicine (PRTCM). She received the outcome of this complaint on 12 February 2012. The complainant notified the respondent of her complaint under the Equal Status Acts on 3 April 2012 and referred her complaint to the Equality Tribunal on 8 May 2012.
2.2 The complainant submits that the last act of prohibited conduct was 12 February 2012 when she received the outcome of her complainant to the PRTCM and that both the notification to the respondent and referral to the Equality Tribunal were therefore made within the statutory time limits.
2.3 The respondent submits that the ICTCM is the respondent named by the complainant in this claim and the PRTCM is not a named respondent. They further submit that the respondent and the PRCTM are entirely separate organisations. In these circumstances the alleged last act of prohibited conduct against the respondent could only have taken place on 5 February 2011 at the latest and the claim is therefore outside the time limits in relation to both notification to the respondent and submission of the claim to the Equality Tribunal.
3 Statutory Provisions
3.1 In relation to notification Section 21 (2) of the Equal Status Acts states:
Before seeking redress under this section the complainant --
(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of --
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act,
and
(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.
(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent."
Subsection (3) allows that this period may be extended to four months if there is reasonable cause.
In relation to the referral of a complaint to the Equality Tribunal Subsection (6) states:
"(a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly."
4 Findings
4.1 Firstly I must consider if the PRTCM is the correct respondent. They were not named as a respondent on the complainant's ES.3 complaint form and were not named in her written submission as a respondent. The complainant contends that the PRTCM is inextricably linked and affiliated to the named respondent (ICTCM). She claims that Mr A, who was the then Ethical Officer of the PRTCM, and dealt with her complaint to them, is also associated with the ICTCM as a lecturer and could not be deemed to be independent. Also, the PRTCM shared the ICTCM's offices.
4.2 The respondent gave evidence that they are a separate organisation from the PRTCM, with separate functions and responsibilities. They accept that the PRTCM did share their premises for a period of time but contend this does not show they have any links.
4.3 Mr A gave evidence at the hearing that at the time the complainant was attending the respondent as a student he had just graduated and was observing the teaching. He states he was never employed by the respondent. He also stated that the PRTCM is a separate organisation from the respondent and he submitted documentary evidence which set out the roles and purposes of the PRTCM. His evidence and the documents state that it has no teaching role. Its main function is to act a professional register and within that role it requires its members strictly adhere to its Code of Ethics and Code of Practice. It was in this role that it looked into the complaint made by the complainant.
4.4 From the evidence given I conclude that the respondent and the PRTCM are separate bodies. Therefore the PRTCM cannot be taken to be the respondent in this claim. I must therefore now consider when could have been the last date of prohibited conduct by the respondent (ICTCM). The respondent contends this could have been 5 February 2011 when the complainant was removed from the course. The complainant refers to subsequent correspondence between the legal representatives of the parties which continued until 20 June 2011. The initial letter from the complainant's representative on 10 February 2011 refers to 'unfair and improper treatment by the staff of the ICTCM' and makes a reference to bullying and intimidation and a later letter of 13 May 2011 states 'please note that our client has all of the incidents of abuse and bullying on tape'. However, this correspondence does not refer to a claim of discrimination and makes no reference at all to the complainant's marital status; which is the ground on which her claim was made to the Equality Tribunal.
4.5 I conclude that 5 February 2011 was the last date on which the prohibited conduct could have occurred. Accordingly I find that both the notification to the respondent and referral to the Equality Tribunal are out of date in accordance with section 21, subsections (2), (3) and (6) of the Equal Status Acts.
5 Decision
5.1 Section 21 (2) and (3) set out the obligations with regards to notification periods under the Acts. In this instance these obligations have not been met and accordingly the Tribunal has no jurisdiction to consider the matter further. Therefore, under section 25(4) of the Acts, I conclude this investigation and find in favour of the respondent.
____________________
Hugh Lonsdale
Equality Officer
10 September 2013