EQUAL STATUS ACTS 2000-2015
DECISION NO. DEC-S2016-045
PARTIES
A Separated Father
-v-
Health Service Executive
(Represented by Barry O’Donnell BL, instructed by the Eversheds)
File Reference: ES/2014/0078
Date of Issue: 27th June 2016
1. DISPUTE
This dispute concerns a claim by the Complainant, that as a separated father, he was discriminated against by the Respondent on the grounds of gender and marital status (now civil status), contrary to Sections 3(2)(a), 3(2)(b) and 5(1) of the Equal Status Acts 2000-2015 (hereinafter also referred to as ‘the Acts’). At the outset, the Complainant confirmed that he is not pursuing his complaint on the ground of family status or pursuing a separate complaint of victimisation as indicated on his complaint form.
This complaint was lodged with the Director of the Equality Tribunal on 28th April 2014, an ES1 Notification having been sent to the Respondent on 2nd January 2014. On 5th May 2016, in accordance with his powers under Section 75 of the Employment Equality Acts and under these Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated this case to me, Aideen Collard, an Adjudication Officer / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 16th May 2016. The Complainant represented himself and was familiar with the relevant procedures whilst the Respondent was legally represented. Additional documentation was received from the Parties and all evidence presented and submissions and documentation submitted have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.
This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. BACKGROUND
At the outset, it was agreed between the Parties that the decision herein should be anonymised owing to the extremely sensitive nature of this complaint and contents of the documentation submitted. It was also agreed that the name of a Doctor originally named as the Respondent should be replaced with the Health Service Executive (HSE). I note and appreciate that the named Doctor attended at the hearing to confirm that his only involvement in relation to this complaint was that he had signed the standard letter circulated to local schools on behalf of the Respondent in relation to an MMR Catch-up Campaign.
The Complainant was married and has two children. He separated from his wife in or around 2002. As he was married he is automatically the joint legal guardian of his children. Over the years, he has brought a number of claims to the Equality Tribunal arising from the various difficulties he has experienced as a separated father against the Respondent and other service providers. He has also actively campaigned against what he perceives to be ongoing discrimination against separated fathers. Specifically, the Complainant confirmed that he has an ongoing complaint against the Respondent, being that the consent of both parents/legal guardians is not sought or required in relation to the medical/other treatment of minors and contrary to the Respondent’s Policy which he was instrumental in bringing about. As a separated father without primary custody of his daughter, he contends that he is discriminated against directly and/or indirectly on the grounds of gender and/or marital/civil status as a result. In support of his complaint, he outlined four sets of facts and/or examples of such alleged acts of discrimination as set out in his complaint form, numbered for the sake of convenience as follows:
The Respondent’s consent form received by the Complainant from his daughter’s school requiring a parent/legal guardian’s consent for the MMR Catch-up Programme only had a place for one person to sign their consent, contrary to Section 6(1) of the Guardianship of Infants Act 1964 providing: “The father and mother of an infant shall be guardians of the infant jointly.” As the current arrangement with his daughter’s school was for his estranged wife to receive the form first for her signature before it was sent onto the Complainant, this resulted in him having to squeeze his name and signature into the remaining space on the form making him feel like a second class parent. In any event, only one parent/legal guardian’s consent was required for the MMR Catch-up Programme. This aspect of his complaint arose on 5th November 2013 when he had received and signed the form.
This discrimination by the Respondent is ongoing as previously the Complainant’s consent was not required for the referral of his child to an Early Intervention Service in May 2003 and on numerous other occasions his consent was not sought/required despite his status as a legal guardian, contrary to the decision of the Equality Tribunal in A Father -v- A Health Service Provider DEC-S2013-009.
The Complainant was subjected to discrimination and victimisation when he was excluded from an enquiry into the welfare of his children at the behest of his estranged wife in or around 2008-2009.
The Complainant’s consent was not sought or required for various dental examinations and eye tests for his daughter contrary to the Respondent’s Policy arising from an internal complaint he made.
3. PRELIMINARY ISSUES
Complaint Statute-barred and/or Res Judicata (previously determined)
Counsel for the Respondent raised a number of preliminary objections to this complaint. Firstly he submitted that the Equality Tribunal (now WRC) has no jurisdiction to hear this complaint as the four separate sets of facts and/or examples of alleged acts of discrimination as outlined above are out of time and/or have already been disposed of by the Equality Tribunal (now WRC) and in particular that:
The Complainant had previously raised but not pursued an identical complaint regarding the Respondent’s consent forms only having a place for one parent/legal guardian to sign their consent, save that the previous complaint referred to a consent form in respect of his daughter’s dental treatment and the instant complaint refers to a form in respect of her MMR Catch-up Programme. The Complainant had previously submitted an ES1 Notification dated 6th February 2012 in respect of a dental treatment form using similar wording to that contained in the ES1 Notification in relation to this complaint. The Respondent had sent an ES2 response in respect of same dated 20th March 2012 but the Complainant did not pursue this complaint to the Equality Tribunal. In this respect, Counsel for the Respondent submitted that the Complainant had been well aware of this issue at that time but had not pursued same until the instant complaint lodged on 28th April 2014. It was therefore out of time and as such the Equality Tribunal (now WRC) had no jurisdiction to hear same. Although the consent form giving rise to the instant complaint is different, it raises the same issue and in this respect, there is an artificiality to this complaint which is an attempt to rehash a prior complaint.
The Complainant’s complaint that his consent was not required for the referral to an Early Intervention Service in May 2003 had previously been determined by the Equality Tribunal (now WRC) and was found to be out of time with no jurisdiction to hear the matter in DEC-S2008-111.
This complaint that the Complainant was subjected to discrimination and victimisation when he was excluded from an enquiry into the welfare of his children at the behest of his estranged wife has also previously been determined by the Equality Tribunal (now WRC) and found to be out of time with no jurisdiction to hear the matter in DIR-S2010-004. In any event, the Respondent no longer has statutory responsibility for such matters which are now governed by another statutory body.
This is the same complaint as referred to above whereby the Complainant sent a ES1 Notification dated 6th February 2012 to the Respondent but did not pursue same. It arose from a dental treatment consent form signed and dated by the Complainant on 14th December 2011 and as such, this alleged act of discrimination is out of time. Likewise a consent form for the visual and hearing tests referred to was signed and dated on 29th April 2013 by the Complainant and is therefore also out of time.
The Complainant submitted that the first alleged act of discrimination arose on 11th November 2013 and was therefore within time, a notification having been sent on 2nd December 2014 and complaint lodged on 28th April 2014. In respect of the second and third alleged acts of discrimination, he accepted that determinations had been made by the Equality Tribunal deeming same to be out of time and therefore not having jurisdiction to hear same. He had not appealed these decisions to the Circuit Court. He submitted that I should not be bound by the previous decisions of the Equality Tribunal but provided no legal basis for same. He also indicated that he wished to reserve his position to another forum in respect of the third alleged act of discrimination and withdrew same. In relation to the fourth alleged act of discrimination, he accepted that he had not pursued a complaint in relation to a dental treatment form after sending an ES1 Notification to the Respondent. However, he submitted that the issue of the Respondent’s forms not requiring the consent of both parents/legal guardians and hence not containing a place for both names/signatures was an ongoing act of discrimination under the Acts and therefore all of the instances of same from the earliest date onwards are relevant and should be considered.
In relation to the applicable time limits, Section 21(2)(a) of the Acts provides that before seeking redress under the Acts, a complainant 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 the nature of the allegations and of the complainant’s intention, if not satisfied with the response, to seek redress under the Acts. Section (3)(a) provides that this may be extended for reasonable cause up to a period of four months or exceptionally, the notification requirement may be dispensed with where fair and reasonable. Section 21(6) then requires a complaint to be brought within six 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.” Having considered the submissions of both Parties in relation to this preliminary issue, I am satisfied that the four sets of facts and/or examples of alleged acts of discrimination outlined by the Complainant are separate and distinct and as such could not conceivably constitute a continuum of discrimination. Having assessed each one individually in relation to this objection, I find as follows:
The complaint regarding the Respondent’s MMR Catch-up Programme consent form containing a place for the consent of only one parent/legal guardian is within time notwithstanding that the Complainant had previously raised but not pursued the same issue in relation to a different form. I am satisfied that when this issue arose again, it could give rise to a new and separate cause of action. As this complaint was notified and lodged within the requisite time limits, I will consider same.
I am bound by DEC-S2008-111 of the Equality Tribunal in respect of the second alleged act of discrimination and have no jurisdiction to hear this complaint which was deemed out of time. I am particularly influenced by the Equality Officer’s conclusion in this respect that: “Having heard the complainant’s arguments in relation to why he considers that he has been discriminated against by the respondent on an on-going basis I am satisfied that the complainant’s dissatisfaction with subsequent events cannot be construed as prohibited conduct within the meaning of the Acts.”
I note that the third alleged act of discrimination is withdrawn and requires no further comment.
As this complaint was subject to an ES1 Notification dated 6th February 2012 and the complaint herein was referred to the Equality Tribunal some eighteen months later on 28th April 2014, having determined that the matter is separate and distinct from the MMR Catch-up Programme consent form, I am satisfied that particular complaint is out of time including any possible extension of time. I am also satisfied that any complaint arising from the consent form for a vision and hearing screening, signed and dated on 29th April 2013 by the Complainant is also out of time both in relation to the two month notification requirement and six month period for submitting a complaint. No reasons have been proffered for dispensing with the notification requirement or extending time.
Complaint Misconceived and/or an Abuse of Process
Having found that I have jurisdiction to hear only the first act of alleged discrimination, I proceeded to hear the Parties’ evidence in relation to this aspect of the complaint and consider the Respondent’s objections in relation to same, primarily being that this claim is misconceived and/or an abuse of process.
The Complainant confirmed that he is separated and lives apart from his estranged wife and the mother of his children. He confirmed that arising from previous difficulties and litigation against his daughter’s school, he came to an arrangement with the school to have any forms requiring consent of a parent/legal guardian sent home in her schoolbag to her mother first and once completed, it was returned in her schoolbag to the school, who would then send it onto the Complainant for signing. In this instance, an MMR Catch-up Programme consent form had been sent out by the school using this arrangement. After his estranged wife had included her name, date and signature in the space provided, the form had been forwarded onto him. As there was no space for a second name, date and signature of a parent/legal guardian, he had to squeeze his name, date and signature into the form making him feel like a second class parent. He also submitted that this is contrary to the Respondent’s Policy entitled: ‘HSE Children and Family Services - Staff Guidelines for Obtaining Consent for Non Emergency Treatment/Services from Parents of Children and Young People Under the Age of 18 Years’ which he had been instrumental in bringing about. This Policy contained guidance for health service providers in relation to obtaining the consent from parents/legal guardians for non-emergency treatment or services to children and had a sample draft blank form attached allowing for the signatures of both parents/legal guardians.
When questioned, the Complainant confirmed that he had no issue with his daughter receiving the MMR vaccine, that his consent had been sought in advance of same and she had received the vaccine on the scheduled date without any issue. He also agreed that he could have attended at the school when the vaccines were being administered had there been any issue with his consent. When pressed as to precisely what service he was alleging he had been discriminated in relation to as a recipient, he confirmed that although his consent had been sought and given in this instance, he was taking issue with the fact that the Respondent did not as a matter of policy require the consent of both parents/legal guardians for the purposes of medical/other treatment to minors and this was discriminatory against separated fathers who were less likely to have primary custody of their children. Under the Respondent’s current policy, his daughter would have received the vaccine on her mother’s consent alone even if he had not consented. Specifically, he contended that the consent form was discriminatory against him as a separated father who was unlikely to receive the form first, as it only contained a place for the signature of one parent/legal guardian making him feel like a second class parent. He provided no evidence as to why such a practice could be discriminatory on the gender ground. He also confirmed that he was acting on behalf of his daughter in accessing the service in question.
In response, Counsel for the Respondent submitted that the facts giving rise to this complaint were not such that could give rise to a complaint of discrimination in relation to accessing a service under the Acts. Firstly, there had been no impediment to the Complainant’s daughter receiving the service, being the MMR vaccine where his consent had been sought and obtained in respect of same and which was duly administered as scheduled. Secondly, in A Separated Complainant -v- A Hospital DEC-S2010-046, obtaining the consent of the mother only for the purposes of a child undergoing a medical procedure was not found to constitute less favourable treatment on the grounds of marital/civil status and rather it depended upon the particular custodial arrangements in place. Similar arguments were also aired and rejected in A Complainant -v- A School DEC-S2012-003. (In the course of the hearing, it materialised that this Complainant was also the Complainant in those matters.) In this respect, Counsel pointed out that it was the school in question who distributed letters on behalf of the Respondent in accordance with the arrangements it had in place with parents and the Respondent was unaware of the marital/civil status of the parents. Therefore this issue is also res judicata (already determined) and constitutes an attempt to re-visit matters previously determined. It is also misconceived and constitutes an abuse of process.
Various other related grounds of objection and legal arguments were made on behalf of the Respondent. Counsel submitted that the Respondent was not providing a service to the Complainant and in fact the service was to his daughter who is not named in this complaint. Nor does the provision of the consent form in question amount to a service to the Complainant and therefore the Respondent is not a service provider within the meaning of the Acts. There are good sound practical and legal reasons for its current Policy requiring the consent of one parent/legal guardian in relation to the medical/other treatment of minors. In any event, it was submitted that a determination of the issue of whether the consent of both parents/legal guardians should be obtained was beyond the remit of the Equality Tribunal/WRC. Overall, it was submitted that this complaint lacked clarity and the Complainant was effectively seeking to ventilate multiple and shifting grounds of complaint, some of which had already been determined.
4. FINDINGS & CONCLUSIONS
Section 38A of the Equal Status Acts sets out the burden of proof which applies to all claims of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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.
Having considered the Complainant’s evidence and the arguments of both Parties in relation to the alleged act of discrimination deemed admissible, I am of the view that the Complainant is seeking to revisit matters previously determined by this Forum and in particular his complaint that the Respondent’s policy of not requiring the consent of both parents/legal guardians in relation to the medical/other treatment of minors is discriminatory against separated fathers. Notwithstanding that the policy of obtaining the consent of only one parent/legal guardian for medical/other treatment was found not to be discriminatory on the grounds of marital/civil status in DEC-S2010-046, I am satisfied that the Complainant’s evidence cannot support such a complaint on any of the nine discriminatory grounds. The service in question was the provision of the MMR vaccine by the Respondent to the Complainant’s daughter. It is currently a legal requirement for the Respondent to seek the consent of one parent/legal guardian before administering same. I note that the Respondent’s current National Policy also provides that where both parents/legal guardians indicate a wish and willingness to participate fully in the decision making for their child, this must be accommodated as far as possible by the service provider. This was facilitated in the instant case and the Complainant’s consent was obtained via his daughter’s school in accordance with the Complainant’s own arrangements in place for notifying him of any consent required. In accordance with this arrangement, the Complainant’s consent was sought and obtained and the vaccine was duly administered on the scheduled date without any impediment or delay. As such there was no denial of a service to either the Complainant’s daughter or to the Complainant on her behalf.
Therefore and notwithstanding that the same issue on the grounds of marital/civil status has previously been decided by this Forum, I find that substantively, there are no facts to mount a general complaint regarding the Respondent’s current policy of seeking the consent of just one parent/legal guardian for the medical/other treatment of minors. Consequently in the instant case, I find that the Complainant’s complaint regarding the format of the consent form not containing a place for both parents/legal guardians to indicate their consent could not conceivably constitute discrimination on any grounds. Having found that the admissible facts in this case simply cannot support the Complainant’s arguments, it is unnecessary to consider further any of the other arguments made on behalf of the Respondent.
5. DECISION
I have concluded my investigation of this complaint and based on the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has not established a prima facie case of discrimination by the Respondent on the grounds of either gender and/or civil status and accordingly dismiss same.
__________________________
Aideen Collard
Adjudication / Equality Officer
27th June 2016