EQUAL STATUS ACTS
DECISION NO. DEC-S2016-008
PARTIES
Mr. Stephen Dunbar
-v-
Kildare County Council
(Represented by Regan McEntee & Partners Solicitors)
FILE NO: ES/2013/0082
Date of issue: 29th of January, 2016
1. Dispute
This dispute involves a claim by the complainant
that he was discriminated against by the respondent, on grounds of grounds of family status and marital status in relation to his application for planning permission.
2. Background
2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 29th of July, 2013. The complainant submits that he was refused planning permission on the family status ground due to the fact that he was the stepson of the landowner in circumstances where the sons and daughters of landowners were granted permission. In addition he submits that the refusal was due to marital status on the basis of his mother’s marital status.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 7th of May, 2015 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 13th of November, 2015. Final correspondence in relation to this matter was received on the 9th of December, 2015.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainant submits that
- · he made four applications for planning permission to the respondent over a five year period but was refused planning permission on each occasion,
- · the reasons given for refusal of planning permission were that the complainant was not part of the indigenous population and that there was excessive housing density in the rural area,
- · others were granted permission where the same or higher densities exist,
- · the complaint alleges that refusal of planning permission was due to the fact that he was the stepson of the landowner in circumstances where the sons and daughters of landowners were granted permission,
- · the refusal was also due to his mother’s marital status as she was not married to the landowner at the time of the complainant’s birth,
- · the refusal was appealed to An Bord Pleanala who granted the complainant planning permission in July, 2013,
- · the complainant is seeking compensation for the distress and expense endured by him over the five year period where he repeatedly sought and was refused planning permission.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant was refused planning permission for a number of reasons outlined to him by the respondent in these refusals,
the reasons for refusing planning permission to the complainant were related to housing density and services and were not related to the complainant’s family status or marital status,
the complainant’s applications were considered in accordance with the County Development Plan for the area which comprehends national and regional policy documents as they relate to rural housing provision,
The Tribunal has no jurisdiction to investigate the complaint as the respondent is a Statutory Body exercising statutory functions.
5. Preliminary Jurisdictional Issue –Grounds
5.1 Marital Status ground
5.1.1 The complainant submits that his treatment in being refused planning permission was due to the fact that he was the stepson of a landowner and also due to the fact that his mother was not married to the landowner at the time of the complainant’s birth. The complainant stated that his mother’s marital status at the time of his birth was ‘unmarried’. The complainant is advancing his claim on the grounds of his mother’s marital status and is relying on the ground of marital status ‘by association’. Thus is he is asserting that he was treated less favourably due to his association with his mother whose marital status at the time of his birth was ‘unmarried’.
Section 3(1)(a) of the Equal Status Acts provides, inter alia, that discrimination shall be taken to occur where:“On any of the grounds specified in subsection (2)....... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(1)(b) provides for discrimination by association whereby “a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated, is, has been or would be treated in a comparable situation.”
Section 3(2) provides that: as between any two persons, the discriminatory ground of marital status is,
(b) that they are of different marital status (the ‘‘marital status ground’’),
5.1.2 It is clear from the wording of Section (3)(2) that in order for a discriminatory ground to exist in relation to ‘marital status’ a complainant must be the subject of less favourable treatment on the grounds of having a different marital status to a comparator. In the present case the complainant is seeking to rely on his mother’s marital status as the ground and so ‘by association’ he must be must be the subject of less favourable treatment to a comparator on the grounds of his mother having a particular marital status.
5.1.3 The complainant advised the hearing that his mother married Mr. M when the complainant was about 18 years old. The complainant when questioned at the hearing stated that his mother had been married to Mr. M at the time of submitting his first planning application and that her marital status was ‘married’ during the time period relevant to the events which are the subject matter of the complaint. It is clear that the complainant’s allegations of discrimination by association, are made on grounds of his mothers marital status however it is also clear that his mother’s marital status was ‘married’ at the time the complainant submitted his first planning application and thus the ground relied upon was no longer in existence at the time of the alleged less favourable treatment. Thus given that the ground relied upon was not in existence at the time of the alleged less favourable treatment, the complainant cannot rely on that ground as a reason for his less favourable treatment and cannot attribute his treatment to that ground. Accordingly I am satisfied that the complainant has no ‘locus standi’ in relation to his claim of discrimination on grounds of marital status by association. Therefore this aspect of the complaint fails.
5.2 Family Status ground
5.2.1 The complainant has submitted his claim on grounds of family status on the basis that he has been treated less favourably than a person with a different family status. The complainant submits that he has been treated less favourably due to the fact that he is the stepson of a landowner rather than the biological son of the landowner. In this regard he has submitted that planning permission has been granted in cases where the applicant is the biological child of the land owner.
Section 3(1)(a) of the Equal Status Acts provides, inter alia, that discrimination shall be taken to occur where:“On any of the grounds specified in subsection (2)....... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(2) provides that: as between any two persons, the discriminatory ground of family status is,
(c) that one has family status and the other does not or that one has a different family status from the other (the ‘‘family status ground’’),
Section 2 of the Equal Status Act sets out the definition of ‘family status’ as follows:
‘‘family status’’ means being pregnant or having responsibility —
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support
on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
5.2.3 It is clear from the wording of Section (3)(2) that in order for a discriminatory ground to exist in relation to ‘family status’ a complainant must be the subject of less favourable treatment on the grounds of having a different family status to a comparator or of having or not having a family status. In the present case according to the definition contained with the Equal Status Acts, the complainant does not have a different ‘family status’ to others cited as comparators. Thus the complaint cannot be grounded on the complainant’s status as a ‘stepson’ of a landowner and does not fall under the definition of ‘family status’ under the Acts. Accordingly I am satisfied that I do not have jurisdiction to examine the complaint on the basis of the complainant allegedly being treated less favourably due to the fact that he is a ‘stepson’ of a landowner and this aspect of the complaint must fail.
6. DECISION OF THE EQUALITY OFFICER.
6.1 The issue for decision by me is, whether or not the respondent discriminated against the complainant on the grounds of family status and marital status by association in terms of sections 3(2)(b) & (c) of the Equal Status Acts, 2000-2012 . In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
(i) the complainant has failed to establish a prima facie case of discrimination on grounds of family status and/or marital status contrary to section 3(2)(b) & (c) of the Equal Status Acts, 2000-2015 .
___________________
Orla Jones
Adjudication Officer/Equality Officer
29th of January, 2016