EQUAL STATUS ACTS
DECISION NO. DEC-S2016-042
PARTIES
A Complainant
-v-
A County Council
File Reference: et-158374-es-15
Date of issue: 10 June 2016
1. Dispute
This dispute involves a claim by the complainant
that he was discriminated against by the respondent, on grounds of disability and victimisation contrary to section 3(2) of the Equal Status Acts 2000-2015. There is also a claim of failure to provide reasonable accommodation.
2. Background
2.1 The complainant, referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 4th of August, 2015. The complainant, who is deaf, applied for and was refused a grant for home improvement by the respondent. The complainant alleges that the respondent did not honour their word after indicating that they would help him with a grant for home improvement. The complainant submits that he had difficulty contacting and communicating with the respondent due to his deafness and that he was discriminated against by the respondent in this regard. He also submits that the respondent did not provide him with reasonable accommodation for his deafness and that he was victimised by the respondent.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 26th of February, 2016 to me Orla Jones, an Adjudication/Equality Officer, 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 30th of March, 2016.
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 is deaf and has difficulty communicating with people,
- he applied to the respondent for a home improvement loan and a visiting officer attended his home in February 2014 and advised that he would help the complainant,
- it was indicated that he would receive a letter within two weeks which he did not receive,
- his application for the grant was unsuccessful,
- he experienced difficulty in trying to make contact with the respondent during and after the grant application process,
- the respondent did not respond to his queries/communications in a timely manner,
- due to his deafness he could not get an answer from the respondent.
4. Summary of Respondent’s case
4.1 The respondent submits that
- the complainant applied for and was refused a home improvement grant in July 2014,
- every effort was made to keep the complainant informed during and after the grant application process,
- following the complainant’s failure to be awarded the home improvement grant the respondent sought to provide him with the grant under another route, but was unsuccessful
- the respondent kept the complainant informed of this.
5. Preliminary issue – Notification
5.1 This complaint relates to the respondent’s failure to award the complaint with a grant for home improvement and to the alleged failure of the respondent to respond to the complainant’s queries and correspondence in a timely manner. This complaint is taken on the disability ground, there is also a complaint on the victimisation ground and in respect of the alleged failure by the respondent to provide the complainant with reasonable accommodation for his disability in respect of such communications. The respondent at the hearing submitted that the ES1 notification was submitted outside of the prescribed time limits.
5.2 Under Section 21(2) of the Equal Status Acts, it is required that a complainant must notify the respondent in writing of the nature of the complaint within 2 months after the prohibited conduct is alleged to have occurred. Under the Acts the notification must do all of the following:
(i) be in writing
(ii) give details of the nature of the complaint
(iii) state the complainant's intention to seek redress under the Equal Status Acts if there is no satisfactory response.
5.3 Section 21(3) of the Acts provides that, on application by a complainant, the Director of the Equality Tribunal may for reasonable cause, direct that the notification period of 2 months be extended to not more than 4 months. Exceptionally, where satisfied it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction.
5.4 Section 21 (2)(a) of the Equal Status Acts, 2000 - 2015, states that
"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.”
5.5 Section 21(3)(a) of the Equal Status Acts, 2000 - 2015, states that:
"On application by a complainant the Director may-
(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or
(ii) exceptionally, where satisfied that it is just and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,
and where such a direction is given, this Part shall have effect accordingly."
5.6 The respondent submits that the complainant was advised on the 9th of July 2014 that his application for the grant had been refused as the complainant did not meet the qualifying criteria for the Housing Aid for Older Persons Scheme. It is clear from the evidence adduced and the documentation submitted that the communications and correspondence between the complainant and the respondent in relation to the complainant’s grant application and in relation to how the communications surrounding this application, were treated by the respondent, were ongoing until 3rd of October, 2014. The notification in this case was signed by the complainant on the 26th of February, 2015 and acknowledged to have been received by the respondent on 2nd of March 2015.
5.7 Thus the notification (taking the date of notification as the 26th of February, 2015) did not comply with the notification time limits as set out in the Acts. However, Section 21(3) of the Acts provides that, on application by a complainant, the Director may for ‘reasonable cause’ direct that the notification period of 2 months be extended to not more than 4 months or ‘exceptionally’ where satisfied it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction.
5.8 The notification in this case was sent more than 4 months after the most recent date on which the Complainant alleges the discriminatory conduct occurred. In accordance with Section 21(3)(a)(ii) the Complainant must show exceptionally, that it is fair and reasonable to disapply the time limit.
5.9 The complainant in advancing the reasons as to why the notification requirement should be dispensed with in the present case advised the hearing that he was, during the relevant time period, on a lot of heavy medication and that he was depressed and that this had prevented him from complying with the time limits. He added that he would not have deliberately failed to comply with something that he was supposed to do.
5.10 The phrase in Section 21(3)(a)(ii) "exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so ..." sets a higher test than would be set by phrases such as "with reasonable cause" or "in exceptional circumstances".
Therefore I must be satisfied that the case is an exceptional one and that it is fair and reasonable to dispense with the notification requirements made by the Acts. In coming to that decision I am required by section 21(3)(b) to take into account the extent to which the respondent is or is likely to be aware of the circumstances and the extent of any risk of prejudice to the respondent's ability to deal adequately with the complaint.
5.11 In this case the complainant has stated that the reason for the delay in his notifying the respondent was due to the fact that he was on heavy medication and that he was depressed. The complainant has not identified any specific incident or time period which was affected by the medication or by his depression or which prevented him from complying with the time limits for notification. It is clear from the evidence adduced that the complainant engaged in correspondence with the respondent up to October 2014. It is clear from the information and documentation submitted that the complainant also corresponded with a councillor Ms. T, during the period from November 2014 up to January 2015, whom the complainant indicates he had contacted due to the fact that she was a solicitor who was involved in a huge advertising campaign seeking nomination to the council. The reasons given by the complainant for failing to comply with the notification requirements are that ‘he was on heavy medication and was depressed’ however this does not seem to have prevented him from corresponding with Ms. T during the relevant period.
5.12 Taking all of the foregoing into consideration I cannot justify dispensing with the notification requirement in the present circumstances. The complainant in this case has not provided detailed exceptional circumstances that both justify and explain the delay in notifying the respondent of the alleged discrimination and in the circumstances the reasons provided cannot be considered exceptional. I am satisfied that the circumstances surrounding the serving of notification on the respondent do not amount to ‘exceptional’ circumstances.
I am, therefore, not empowered under the Acts to accede to the complainant's request to dispense with the notification requirement. Furthermore, I am satisfied that the notification requirements set out in S. 21 (2) of the Acts, were not complied with, and accordingly, I find that the Commission has no jurisdiction to investigate the within complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 In reaching my decision, I have taken into account all of the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that
(i) the complaint of discriminatory treatment on grounds of disability, on grounds of victimisation and of failure to provide reasonable accommodation was notified outside of the statutory time limits, and
(ii) the Commission lacks jurisdiction to investigate this matter as the notification requirements set out in S. 21(2) of the Acts were not properly complied with.
___________________
Orla Jones
Adjudication Officer/Equality Officer
10 June, 2016