DEC-S2016-070

EQUAL STATUS ACTS

DEC- S2016-070

A Family Law Client

versus

A Solicitor

File reference: et-150049-es-14

Date of issue: 4 November 2016

Keywords: Equal Status Acts, Disability, access to services

Dispute

1.1 The case concerns a claim by A Family Law Client, (hereinafter referred to as ‘the complainant’) that he was subjected to discrimination by A Solicitor (hereinafter referred to as ‘the Respondent’) on disability ground contrary to section 3 of the of the equal status Acts 2000 to 2011 (hereinafter referred to as ‘the Acts’) when the respondent withdrew his services. The respondent came off record for the complainant in 2014 regarding Family Law matters. The complainant also submitted that treatment of him by the respondent amounted to victimisation under section 3 of the Acts. One specific element of the complaint relates an allegation of discrimination and victimisation on the basis of his gender and marital status.

1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 23 October 2014. On 29 September 2015, in accordance with her powers under S. 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a hearing was held on 17th October 2016 at the offices of the WRC, Davitt House, as required by Section 25(1) of the Acts. The complainant wrote to the Tribunal in a letter received on the 14th October to state that he intended to record the hearing digitally as he has difficulty in concentration and recall. Due to the late notification by the complainant, no written response to this letter was possible. On the day of the hearing the complainant entered the hearing room with an active recording device and was instructed to switch it off, as it is not the practice to allow a recording in this manner. The complainant complied with this instruction.

1.3 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 83.3 of the Workplace Relations Act 2015.

Summary of the complainant’s submission

2.1 The complainant submits that the respondent had been representing him in family law matters. The nature of the issues and the duration of the case had a very serious effect on the complaints wellbeing and he organised counselling. The complainant submits that his medical counsellor wrote to the respondent informing him that the complainant was suffering from reactive depression and that concern over an upcoming court appearance was being exacerbated by a lack of correspondence from the respondent.

2.2 The complainant submits that following this, he met with the respondent in May 2014, in a hotel, at which he informed the respondent that it was his intention to lodge an Equal Status complaint against a Barrister who had refused to represent him, due to what the complainant characterises as a conflict of interest. The complainant says that the respondent had dissuaded him from lodging such a complaint.

2.3 The complainant says that on the 22nd May 2014 that he received a registered mail from the respondent which included a Notice of Motion and supporting affidavit to allow him to come of record from the family law case. The complainant submits that the respondent applied to and came off record due to his disability of reactive depression.

2.4 The complainant submits that the respondent’s action of coming off record is victimisation under the Acts due to notification to the respondent of the intended complaint against the Barrister as at 2.2 above.

2.5 The complainant submits that that the respondent colluded with a Barrister on the morning of 23rd May 2014 to prevent her providing representation and that this was an act of discrimination and victimisation on the basis of his gender and marital status as he does not believe that the respondent would have treated a female client or a client who was not separated or divorced in such a way. It is the complainant’s submission that his act left him unable to obtain legal representation.

2.6 The complainant submits that on the 19th May 2014, respondent prevented him from recording their meeting and that this represents discrimination on the grounds of his disability. The complainant submits that he respondent should have provided reasonable accommodation.

Summary of the respondent’s submission

3.1 The respondent submits that the complainant has retained his legal services since 2008 and he engaged his offices with respect to defending him in Family Law proceedings. The respondent submits that he was required to come off record for the complainant as all trust and confidence had broken down between the parties.

3.2 The respondent submits that an application to come of record was made through the proper procedure in May 2014 and granted in June 2014. The respondent submits that the complaint was present in court for the decision and had no objection with him coming of record.

3.3 The respondent rejects all aspects of the complaint. The respondent rejects any allegations of collusion especially where the allegation is made in respect of discussions he had with the Barrister that had been retained to act for the complainant.

3.4 The respondent rejects any allegation of persuading the complainant not to lodge an equality complaint.

3.5 In relation to the recording of the meeting the respondent submits that he simply asked the complainant not to record the meeting as it was not normal practice.

Conclusions of the Equality Officer

4.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the age and disability grounds).... 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 grounds are,

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),.,”

In the instant case it was agreed at the hearing that the disability in question is reactive depression and this was not contested by the respondent.

4.2 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

4.3 In Melbury Developments v Arturs Valpetters (EDA 0917) the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd (EDA103) that one of the facts which a complainant must establish is that there was a difference in treatment between him/his and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)

Disability.

4.4 At the hearing of this complaint it was clarified that the disability which is the subject of this complaint is reactive depression, although the complainant inquired if he could introduce the disability of Multiple Sclerosis (on the day of the hearing) it was not part of the written complaint and the respondent was not given relevant notice.

4.5 It is the respondent’s position that all trust and confidence had broken down between himself and his client (the complainant). The complainant in his evidence made in clear that he is resentful of the fact that he must employ a solicitor in order to obtain the services of a barrister and distrustful of the legal system which has been a significant financial burden to him. The complainant has a long history of engagement of services from the legal profession which he has been forced to do due to his a prolonged family law matter of the most serious nature. The complainant has stated that it was his approach to Barristers that he would arrange consultations with them and then decide to pay them or not based on his agreeing with their advice. He has engaged numerous counsels over the last number of years and has been dissatisfied with all of them, as in his own estimation he knows better than they do, how his legal case should be advanced. It is clear based entirely on the complainants own verbal evidence that he has been any extremely difficult client as he simply refuses to take advice.

4.6 Taking into account the above, I am satisfied that the respondent wished to come of the record as the complainant simply refused to take any advice and that no trust or confidence existed between the parties. I find no evidence that the respondent was motivated by the fact of complainants disability.

4.7 Further, at the hearing of the complaint the complainant stated that he “did not know why the respondent had come of record for him” and stated that he was “speculating” as to the reasons. I cannot elevate such speculation to a factual basis upon which an inference of discrimination can be drawn.

4.8 Victimisation is defined in section 3(2),

(j) that one—

(i) has in good faith applied for any determination or redress provided for in

Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court

in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in

subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

4.9 I accept the account put forward by the respondent that he was not “colluding” with any Barrister who was representing or intended to represent the complainant, that he did not dissuade the complainant from lodging a complaint. I find no evidence of victimisation and that the complainant is again simply speculating.

Gender and Marital Status

4.10 At the hearing of this complaint the complainant was requested to present any evidence relating to this element of the complaint as detailed at 2.5 above. The complaint presented no evidence or even a detailed explanation linking the grounds to the behaviour and he again stated that he was simply speculating. I cannot elevate such speculation to a factual basis upon which an inference of discrimination can be drawn.

Reasonable Accommodation.

4.11 The entirety of the complainant case relates to one occasion on which the respondent requested that the complainant cease recording a meeting. Having heard the entirety of the evidence of this case, I am satisfied that following are the salient points,

· There was a long period of unreasonable behaviour by the complainant towards the respondent

· The complainant at all times had been happy to engage the services of the respondent for a number of years without recording their meetings.

· The complainant sought to alter the nature of his interaction with the respondent without any notification or explanation of the form of reasonable accommodation.

· Ultimately, in the absence of any evidence from the complainant regarding the notification of or the need for such recordings and taking regard of the manner of the complainants behaviour at the relevant meeting, I am satisfied that in this case the complainant was simply using the recording as another tactic to frustrate the respondent.

Decision

5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. I hereby make the following decision in accordance with section 25 of the Equal Status Acts. Having investigated the above complaint, I conclude the investigation and hold that

(a) the complainant has not established facts upon which it can be presumed that he was subject to discriminatory treatment on the disability ground.

(b) the complainant has not established facts upon which it can be presumed that he was subject to discriminatory treatment on grounds of gender or marital status

(c) a prima facie case of failure to provide reasonable accommodation has not been established and the complaint fails.

(d) a prima facie case of victimisation has not been established and the complaint fails.

______________

Peter Healy

Equality Officer

4th November 2016