EQUAL STATUS ACTS
DECISION NO. DEC-2017-050
PARTIES:
A TRAINEE
V
TRAINING FACILITY
File Reference: ES/2013/0098 & ES/2013/0103
Date of issue: 21 December, 2017
HEADNOTES: Equal Status Act – Discrimination in provision of services- disability/deafness
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that she was discriminated against by the respondent on the grounds of her disability contrary to section 3 of the Equal Status Acts 2000 to 2004 in relation to the provision of services in terms of section 5 of the Act.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on September 13th 2013 under the Equal Status Act. On30 August 2017, in accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Pat Brady, an Adjudication Officer/Equality Officer), for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced.
1.3 Submissions were received from both sides. In accordance with Section 25 (4) of the Equal Status Acts and as part of my investigation I proceeded to a hearing on September 6th 2017.
1.4 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.
1.5 The complainant had cited two respondent names. The name of the correct respondent following corporate re-organisation, was clarified at the hearing.
2. COMPLAINANT’S SUBMISSION
2.1 The complainant suffers from a deafness disability and was engaged on a training course with the respondent in January 2012.
2.2 She says however that she was not able to learn anything on the course because of her positioning in the classroom and because she was unfamiliar with the computer which she had been assigned. She was unhappy also with the Tutor’s attitude to her.
2.3 She had a number of consultations with her Rehabilitation Officer, (RO) the first in March or April 2012 but she did not report any of her dissatisfaction regarding difficulties in the classroom to the RO. However, in the course of the second consultation in September she alleged that the tutor was ‘constantly shouting and bullying’. She also referred to a fellow student (Student A) whom she felt needed intervention as, in her opinion, he was a suicide risk.
2.4 Following this she says she became a target for bullying by staff, one of whom made a complaint against her.
2.5 In September she raised Student A’s position again with her RO and said that part of his difficulty related to where he was sitting in the classroom. He had been placed in a seat formerly occupied by a student who had committed suicide.
2.6 On September 17th she asked for the respondent’s ‘anti-bullying’ policy and its Health and Safety statement. It did not have an anti-bullying policy but she was offered facilitation in relation to any issues she was having with a named person. At this stage she asked for a copy of the grievance procedure. She was given three different versions of it.
2.7 There were further exchanges in relation to the prosecution of a grievance and eventually she was given a meeting on October 30th at which she was invited to make a formal complaint. She declined to do so.
2.8 A further informal meeting was suggested but no progress was made and the complainant felt at that stage that an external investigation was required.
2.9 She reported an alleged sexual attack on a student and sought a meeting with the Director of the college eight times. The Director delegated the meeting to the RO. An investigation was offered but the complainant insisted it be an external investigation.
2.10 In December the complainant had an accident that resulted in serious injury. She was invited to a number of meetings on days that did not suit her. In due course she became unable to attend the course after mid-December 2012 as a result of her injury.
2.11 There were further exchanges about an alleged sexual assault (on a third party) which were subsequently passed to the Gardai. The complainant met the RO on March 16th in a public area in a hotel and also says this was an act of discrimination.
2.12 The complainant describes the ‘last act of discrimination’ as being in a letter of March 22nd 2013 from the RO in which it was stated that a member of the College staff had ‘inadvertently’ given her the wrong grievance procedure. She sees this as an attempt to ‘exploit [her] compromised hearing’.
2.13 Her complaint is that she was treated less favourably than a person without her disability, and that her hearing disability was used as a means to bully her. Specifically, her disability was ‘laughed at and scoffed’ frequently.
2.14 Also she says her hearing disability was used to confuse her regarding the various policies she sought and the ongoing difficulty regarding the Grievance procedure, and in failing to formulate an action plan for her and various other matters.
2.15 In summary the complainant says that in respect of the delivery of the service she was treated less favourably than a person without a disability and that the respondent failed to provide reasonable accommodation for her.
3. RESPONDENT’S SUBMISSION
3.1 The respondent raises two preliminary issues.
3.2 The first concerns whether the complaint has been submitted within the time limits prescribed in the legislation. The ES 1 form, service of which is a requirement under the Equal Status Acts, was served on the respondent on April 30th 2013. Therefore those complaints which occurred before February 28th (the two month period prescribed in the Act) are, it submits, outside the time limit of two months within which a complainant must notify a respondent.
3.3 The respondent further submits that the complainant has not established a prima facie case of discrimination. She has relied on ‘bald assertions’ and failed to produce facts from which a presumption of discrimination may be inferred.
3.4 The respondent also says that in seeking to establish a continuum or nexus there must have been a discriminatory act within the earlier sequence of episodes of alleged discrimination.
3.5 The respondent denies that any of the complaints represent discriminatory treatment under the Act.
4. CONCLUSIONS AND FINDINGS
4.1 It is the normal practise of the WRC, and before that of the Equality Tribunal, to hear the full case even where a preliminary issue arises. In this hearing, which lasted for over two hours a comprehensive investigation of the complaint took place and all aspects of the complaint were fully ventilated.
4.2 I adjourned the hearing on the basis that I would consider three issues;
4.2.1 The application of the time limits,
4.2.2 Whether a prima facie case had been made out,
4.2.3 The request by the complainant for an extension of time.
The Time Limits
4.3 The respondent appears to have a misunderstanding about the time limits and the relevance of the ES 1 form. A complaint must be made to the WRC within six months of an alleged breach. The complaint was submitted to the WRC on September 13th 2013.
4.4 Section 16 of the Equal Status Act specifies what the time limits are, at subsection 6.
Subject to subsection (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.
4.5 The notification requirements are an entirely separate matter that do not impact on time limits and jurisdiction although compliance with them, as a separate matter, is mandatory before a complaint can be investigated. If they are not fully complied with the complaint will not be referred for adjudication.
4.6 The only issue is whether the complaint is made within six months of the occurrence of prohibited conduct. That means the cognisable period goes to March 9th, subject to the normal rules about a nexus and any application for an extension of time.
4.7 So while the ES1 Requirement was complied with on April 30th the complainant waited until September 13th to submit her complaint. The ES1 procedure has no relevance for the time limit requirements for submitting a complaint.
4.8 It does mean that a complainant who waits the full two months to submit an ES1, and then has to wait a further month for a reply is narrowing the window for their complaint but that is what the Act requires and complainants need to keep a careful eye on the time limits. There is only the provision to seek the extension to twelve months where submission of the complaint is delayed.
4.9 The question of whether a nexus existed is to some extent bound up with the issue of the whether a prima facie case has been made out. If no prima facie case has been made out specifically in respect of events before March 9th then they cannot form part of a continuum and only those incidents arising between March 9th and the date of the complaint are within jurisdiction.
The Prima Facie Case
4.10 The standard required to establish a prima facie case is relatively low. It is not the same as having to establish that the complaint is likely to succeed; merely that facts have been presented that are of sufficient significance to raise a presumption of discrimination.
4.11 Section 38A of the Equal Status Act deals with the burden of proof in discrimination complaints as follows;
(1) 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
4.12 A prima facie case establishes three things
1. That the complainant is covered by the relevant discriminatory grounds,
2. There was specific treatment by the respondent,
3. The treatment was less favourable that treatment that was or would have been afforded to another person (the comparator) in similar circumstances.
4.13 Equality Officers have held, for example in Mr Marcin Wilcocki v Alliance PLC (DEC-S2016-032), relied on by the respondent, that there must be facts of ‘sufficient significance’ to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or the acts are transparently attributable to a non-discriminatory cause.
4.14 Under the heading ‘The complaint’ in her initial written submission the complainant stated that she needed help with the computer but her request for assistance was ignored, even sneered at. This falls within the general category of ‘reasonable accommodation’. The respondent notes that these issues were not raised until after she left the facility, and in some cases only for the first time in her submission for the WRC hearing.
4.15 There appears to be only one incident cited although there is a general reference to the tutor ‘shouting and bullying’. No evidence was offered in relation to these allegations.
4.16 The complainant was engaged in a continuing dispute with the college authorities on a number of issues, some of which related to her own position in the class and some of which were being pursued on behalf of fellow students. The respondent says it was at all times willing to process her grievances but she declined to avail of the opportunity to do so.
4.17 This is the second spine of the complaint and relates to the respondent’s reaction to her request to process a grievance and her attempts to secure copies of various documentation and meet persons in authority. She asserts, and the word is important, that the difficulties she experienced in this regard related to her disability. She said her disability was used to ‘confuse’ her. The respondent counters that the complainant refused to cooperate with their efforts to process the issues and there is some verification of that position in the complainant’s own submission; her insistence on an external investigation for example, which seems unwarranted. It seems that the grievance, at least in part, related to a third party (see 2.9 above).
4.18 This claim relating to her being confused is not persuasive. It is not even credible. The complainant is an articulate and highly literate person; she is a qualified barrister. She participated effectively and communicated coherently in a two hour hearing of this complaint, unaided in any way, and had no difficulty following the proceedings and participating in them.
4.19 She did not give the impression of a person who would be ‘confused’ by such a minor matter, much less that it would be attributable to her disability. Subsequent to the hearing she made an additional almost fifty page submission with extensive legal references and argument.
4.20 Her suggestion that the use of the word ‘inadvertently’ in correspondence to her was an act of discrimination smacks of desperation to connect the fact of her disability to a sequence of events to which it was not related in any way. This is in the category of mere assertion, it does not establish facts necessary to bring it within the concept of a prima facie case. It is hardly even an ‘act’, much less one of less favourable treatment.
4.21 It is not the only one. The respondent submitted that at all times it was willing to resolve any grievances raised by the complainant and pointed out that, in her initial application she had not sought a special seating arrangement, for example, saying that ‘if I can see, I can hear’. It should be borne in mind that the respondent is a specialist facility for those with various disabilities. Indeed she engaged in a degree of specious legalistic argument about the relevant stage of the procedure totally disproportionate to the matter in hand, which offers a more probable explanation for the difficulty in activating the grievance procedure. In other words it was attributable to the complainant’s unreasonable demands.
4.22 In respect of other complaints she represents them as follows,
‘As a student with a hearing disability, I was entitled to have my travel expenses processed,
‘As a student with a hearing disability I was entitled to have [an investigation]’.
'As a student with a hearing disability I was entitled to a meeting with [the college Director]’.
‘My hearing disability was used to obstruct my attempts to have the grievance procedure invoked.’
4.23 These are is mere assertions; the complainant has failed to adduce any facts to support that these alleged failings related to her disability or that they represented ‘less favourable ‘ treatment. There could be many reasons why travel expenses were delayed, or an external investigation refused, or a meeting with the college Director declined, and there is no basis for concluding that the explanation for these events was related to the complainant’s disability. The test is not that the complainant may have been subjected to poor or inadequate treatment (and I make no finding on that point), but that this be related to their disability, and represent less favourable treatment. She has not met that test
4.24 Further insight into how the complainant presented her case is the following;
‘From then on I became a target for bullying among a group of staff members. It was incessant, debilitating, undermining and my deafness was used as the tool to terrorise me.
No evidence was provided to support these assertions; the reference to her disability being tacked on to the complaint, it seems just for the sake of it.
4.25 None of these represent facts of ‘sufficient significance’ to raise even a presumption of discrimination.
4.26 Therefore, in relation to the cognisable period I discount the events before the complainant left the college in mid-December 2012. She had not made out any case that the events give rise to a presumption that they were either linked to her disability or to each other, and/or that they represented less favourable treatment.
4.27 The only events falling within the time limits therefore are those that fell after March 9th 2012. Strictly speaking this excludes the meeting at a Dublin Hotel of March 6th but includes the ‘inadvertently’ correspondence of March 22nd. Both of these episodes are referred to on the ES1 form.
4.28 In any event, the basis advanced that there are facts here to ground an inference of discrimination are even flimsier. Her complaint about the hotel meeting is that the RO positioned herself in such a way as to inhibit her comprehension of what was going on. In respect of the letter of March 22nd, it is the use of the word ‘inadvertently’ which constitutes the last of the acts of alleged discrimination.
4.29 To suggest that the use of the word ‘inadvertently’ in correspondence could give rise to a complaint under statute lies at the outer reaches of the complainant’s efforts to draw her case within jurisdiction. However, there is again insufficient factual base to ground a prima facie case. I do not detect any act of less favourable treatment.
4.30 Whereas I eventually adjourned the hearing to consider the preliminary points, as noted above, this was only after I continued to hear submissions from both parties for about two hours.
4.31 In summary, this complaint fails on all grounds. In relation to the time limits I find as follows;
4.31.1 Only those events occurring within six months fall within jurisdiction i.e. from March 9th on.
4.31.2 This therefore leaves only the letter of March 22nd. I find nothing here to meet the standard necessary to establish a prima facie case. There are, again no facts of such ‘sufficient significance’ to enable even a prima facie inference of discrimination. There is no comparator.
4.32 Finally, the application for an extension to twelve months is somewhat academic given the foregoing. Any such extension would only bring her back to September 14th 2012. I have fully reviewed the episodes within that period in respect of whether they represent prima facie discrimination and have concluded that they do not.
4.33 The legislation provides, at section 16 (7), that where a complainant demonstrates that ‘exceptional circumstances’ prevented the complaint being referred the period may be extended to twelve months. In summary the general principles which apply are that something must be advanced which will both explain and excuse the delay.
The Labour Court has set out the test (in respect of the lower standard of ‘reasonable cause) in Cementation Skanska v Carroll, DWT 38/2003 as follows;
It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
4.34 The complainant was given the opportunity to make a supplementary submission on this and the other preliminary issues.
4.35 Under the section headed ‘Time Limits’ (pages 4 to 18) she argued at very great length in that supplementary submission about the continuity of the acts complained of, which I have addressed above but she totally failed to address why she waited until September 13th 2012, over nine months after she left the college, to submit her complaint.
4.36 She has failed therefore to provide either an explanation or an excuse for this delay and her application for an extension of time fails.
5. DECISION
5.1 In accordance with Section 25 (4) of the Equal Status Acts I conclude this investigation and issue the following decision.
5.2 Only the complained of correspondence on March 22nd is within time. I find there is no act of less favourable treatment of the complainant on the grounds of her disability.
5.3 The complainant has failed to establish a prima facie case in respect of any earlier incidents that might bring them within jurisdiction as part of a continuum of acts of less favourable treatment.
5.4 Her claim for an extension of time fails for the reasons set out above.
5.5 Accordingly, I dismiss the complaints. While the correct respondent was clarified at the hearing in respect of events after November 12th 2012, for the avoidance of doubt, and for the reasons fully set out above I dismiss the complaints against both named respondents.
__________________
Pat Brady
Adjudication Officer/Equality Officer
21st December 2017