EQUAL STATUS ACTS 2000-2015
Decision DEC-S2017-012
PARTIES
Sally Ann Berry
(Represented by Colin Brophy, Solicitor)
-v-
Dublin City Council
(Represented by Karen Denning BL, instructed by in-house Solicitor
for Dublin City Council)
File reference: et-155867-es-15
Date of issue: 15 March 2017
1. Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 8 May, 2015. On 9 November 2016, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 30 November, 2016.
1.2 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(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant that she was discriminated against by the above named respondent on the Traveller status ground in terms of Section 3 and contrary to Section 5 of the Equal Status Acts in relation to access to a service. The complainant submits that Dublin City Council (hereafter “the respondent”) discriminated against her, in that, she was treated less favourably than a person residing in standard local authority housing in relation to access to a service.
3. Summary of the Complainant's Case
3.1 The complainant is a member of the Traveller Community and is resident in a mobile accommodation unit. The complainant submits that the respondent failed, refused or neglected to provide maintenance services to a damaged sanitation unit following a request for same on the grounds that the complainant was a member of the Traveller community. The complainant states that she was treated less favourably by the respondent than another person would have been treated in a comparable situation and that the failure of the respondent to provide the specified maintenance services in the instant case amounts to the type of discrimination prohibited by section 5 of the Equal Status Acts. The complainant submits that in November, 2011she entered into a service level agreement with the respondent for the provision of a free standing sanitation unit in the yard opposite her mobile unit. The sanitation unit contained running water, toileting, washing and cooking facilities and was connected to an electrical supply. The said agreement contained the following terms;
(a) that the respondent, its servants or agents would supply and fit the unit
(b) that the respondent, its servants or agents would supply and fit the unit using due skill, care and diligence
(c) that the respondent, its servants or agents would conduct all maintenance services associated with the unit including its upkeep and repair
(d) that only the respondent, its servants or agents were authorised and permitted to carry out maintenance services on the unit
(e ) the complainant would pay the respondent for any electricity supplied to the sanitation unit
3.2 The complainant submits that on 29 January 2015, she and her husband were alerted to a fire which had broken out in the sanitation unit adjacent to their mobile accommodation unit and she rang the fire services. Prior to the arrival of the fire services and with the assistance of neighbours, the complainant’s husband took action and extinguished the fire fearing that it would spread to their accommodation unit which was located just two metres away. The complainant contends that at 11 pm the fire services arrived but the fire had already been extinguished. Officers from the fire services proceeded to inspect the sanitation unit. The unit and its contents were badly damaged by the fire and it had been rendered inoperable as a sanitation unit. The complainant states that on 30 January, 2015, she telephoned the respondent to report the incident and to request access to services such as emergency or maintenance services to restore the unit to good working order. The complainant also requested that the respondent dispatch personnel to examine the unit and to ensure that the electricity supply which was connected via an electrical cable between the unit and the accommodation unit was safe. The complainant also notified the respondent that she had young children and was pregnant and was in immediate need of functioning sanitation facilities.
3.3 The complainant states that she was subsequently advised that no services would be provided. During the course of the telephone organisation the complainant was advised that due to a previous “incident” of anti-social behaviour by other persons on site, the respondent would not dispatch any personnel to the site to conduct maintenance or repairs to the unit under any circumstances. The complainant submits that on or about 30 January 2015, the complainant contacted a local Traveller advocacy group to seek advice and to request the project to act as agent for the complainant in the matter. Subsequently, the Action Group contacted the respondent to request that maintenance and/or emergency facilities be provided to the complainant in lieu of repairs. The Action Group was also informed by the respondent that due to an incident of anti-social behaviour on site, no services would be provided by the respondent. On 3 February, a copy of the fire report by the fire services was requested by the Action Group on behalf of the complainant but they were informed by the respondent that a fire report was not available. On 9 February, the complainant instructed the Action Group to request the respondent to conduct a full investigation into the safety of the electrical supply in the unit. On this date, the complainant notified the respondent that they were lodging a complaint with the WRC.
3.4 On 24 February 2015, a fire officer assessed the fire safety standards at the unit. The cause of the fire in the complainant’s unit was never identified. In its report to the respondent, the fire officer recommended that all units at the site be checked for electrical compliance. The complainant was never informed by the respondent if this check was ever carried out. In late May 2015, the complainant’s unit was finally removed and refurbished. A refurbished unit was restored to the site in July 2015. The complainant submits that no replacement facilities were provided from the time the unit was rendered useless on 29 January 2015 to the date of delivery of the refurbished unit circa 6 months later. The complainant states that during the period prior to the restoration of the refurbished unit, the complainant maintained significant safety concerns in relation to the state of the damaged unit and its operation after the fire. The complainant contends that photographs of lights operating in the unit taken following the fire showed that electricity continued to be supplied to the damaged unit despite the damage caused and that the supply continued to be attached to the complainant’s accommodation unit. The continuing connection of the damaged unit to an electrical supply and its corresponding connection to the complainant’s accommodation unit gave rise to concern that any subsequent malfunction as a result of the damage, for example, any electrical fault could have resulted in further damage to property or risk to life.
3.5 The complainant submits that information provided by the respondent in its Reply to Notification dated 5 March 2015 indicated that the complainant’s membership of the Traveller community, perceived association with other members of the Traveller community at the site or both was a factor in the decision of the respondent to withhold services. The complainant contends that in its Reply to Notification, the respondent notes that the specified health and safety risk arising from the incident of anti-social behaviour which prompted its investigation and review of risk to staff in relation to the site was “not located in any specific part of the site” and that “therefore the risk was not localised and applied to the site as a whole.” The complainant submits that as a result of this blanket policy, all service users at the site, almost exclusively members of the Traveller Community including the complainant appear to have been subject to withdrawal of services regardless of existing service level agreements or perceived association with the alleged perpetrators of anti-social behaviour.
3.6The complainant states that the Reply to Notification also notes that despite no formal complaint of criminal behaviour being made by the respondent to the Gardaí in relation to anti-social behaviour at the site; the respondent should assess any risks to staff or personnel posed by one individual on the site on the basis that families resident on the site are likely to be related. The complainant contends that this infers that an assessment of increased risk to the health and safety of personnel should be based on the status of persons residing at the site, namely that they are members of the Traveller community. The complainant submits that the policy appears to make a generalisation about the nature of members of the Traveller community and the approach that should be taken by service providers when providing services to them. The complainant submits that it was 6 months before the unit was replaced which is totally unacceptable. The complainant submits this would not have been the case had they not been members of the Traveller community. The complainant states that at the instant time, she had two children and was pregnant with her third child and that she had to go to her mother-in-law’s which was across the yard from her to use her sanitation facilities or to Bray which was a huge inconvenience to them.
4. Summary of the Respondent's Case.
4.1 The respondent states that the complainant and her family live in an unauthorised encampment and that the site is not a tenant of Dublin City Council. The respondent states that it is the Housing Authority for the City of Dublin and performs its statutory functions under the Housing Acts 1966-2014. The respondent submits that there is no relationship between the withdrawal of staff and membership of the Travelling community. The incidents which prompted the investigation and the review of risk to staff related to theHousing Authority’s obligations as set out under section 8 and 11 of the Safety Health and Welfare at Work Act, 2005. The respondent states that the removal of staff from the risk situation is the standard control measure in cases where serious threats are made and it concludes that staff safety is compromised. The respondent maintains that this happens also in standard housing where risk cannot be localised e.g. a senior citizen complex or a block of flats. The respondent asserts that Housing Health and Safety Office confirms that this would be their advice irrespective of housing type in this type of situation. The respondent submits that the 2005 Act specifically states that prior to undertaking work that the employer must risk assess the work activity, identify the hazards, assess the risk and determine and implement adequate control measures to mitigate the risk to staff and only then can the work progress. The respondent denies that it adopted a blanket policy and states that the removal of staff from the risk situation is the standard control measure in cases where serious threats are made. The respondent submits that the critical factor which determined the withdrawal of staff was that the risk could not be localised (based on two incidents concerning the same individual at different locations on the site) and not on the direct family relationship between that individual and the complainant or any other persons on the site.
4.2 The respondent refutes the allegation of discrimination and submits that the complainant has not suffered as alleged as she was offered emergency accommodation and use of an alternative sanitation facility which was at the far end of the site but the complainant advised that it did not wish to avail of either of those options. The respondent states that on 9 February following the resolution of the health and safety incidents, the unit was inspected. The respondent maintains that it requested an inspection of all units by Dublin Fire Brigade. The request to check compliance standards went to Electrical Services and a report was completed and all snags were sent to the relevant contractor. The respondent contends that the time period covers a period of negotiation with the sanitation unit providers, purchase of the units to enable a full refurbishment programme, procurement and award of tender. The respondent states that the complainant was offered placement in homeless services and use of an alternative unit but both offers were refused. The respondent states that it wanted to return the sanitation unit to the porto-cabin company it is under contract with but it would take 10/12 weeks for a replacement unit. Due to the fact the respondent was under a rental contract and did not have ownership, it did not have a get-out clause. The respondent maintains that there was a protracted litigation process with supplier of the units and this also resulted in the delay in getting the sanitation unit refurbished. Subsequently, the respondent bought out the units from the porto-cabin company and entered into contract with a new company following tender and proceeded to get refurbishments carried out on all the units and this was completed in late May 2015.
5. Conclusions of the Equality Officer
5.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 Having examined all the evidence in relation to the instant case, I find that the respondent was providing a service to the complainant as there is documentation on file regarding Agreement For Sanitary Units signed by both the complainant and a representative of the respondent. The sanitation unit comprised basic kitchen facilities and shower and toilet facilities. I note that the various tenants of the site paid costs in relation to the supply of electricity for their units. Having adduced all of the evidence from both sides, while the respondent argues that due to two unsavoury alleged incidents on site one of which related to a child pointing a toy gun at one of the contractors and another where a person was allegedly seen brandishing a knife, I note that no formal complaint was made regarding these incidents. I accept the respondent’s point that where an element of risk is involved, it is required to assess same and put adequate provisions in place. In this regard, I note that services to the site ceased pending a health and safety review. However, subsequently following a meeting of all the relevant stakeholders, matters were resolved and in mid-February, 2015 services of the contractors were restored on site. At this juncture, the respondent maintains that it requested the fire services to carry out an inspection of all the units on site grounds and a request to check compliance standards went to Electrical services and all snags were sent to the relevant contractor.
5.3 I note that the complainant had two children and was pregnant at the time of the incident. Having carefully examined the evidence, I find that the offer of the respondent to use a sanitation unit at the other end of the site was not adequate to the complainant’s needs given the time of year in Winter and the distance to the other unit in particular with her being pregnant at the time. The respondent gave reasons for the delay in providing the refurbished sanitation unit (which was restored to the site in July 2015) as a result of difficulties with contractual arrangements and tendering process etc., in that, the time lag covers a period of negotiation with the sanitation unit providers, purchase of the units to enable a full refurbishment programme, procurement issues and an award for tender. I am of the view, in the circumstances that this response was neither reasonable nor adequate. While I am aware that the complainant was offered alternative accommodation by the respondent as it would do in the case of someone becoming homeless, in this case, the complainant was not homeless but did not have adequate access to a sanitation unit and washing facilities. Having adduced all of the evidence, I am satisfied that the delay in providing proper access to a sanitation unit was discriminatory against the complainant and would not have occurred in similar circumstances had it happened to a person of the settled community. For this reason, I find in favour of the complainant.
6. Decision
6.1 Inreaching my decision, I have taken into account all 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.
6.2 I find that the complainant has established a prima facie case of direct discrimination on the Traveller status ground.
6.3 In accordance with Section 27 of the Acts, I order the respondent to pay the complainant €6,000 in compensation for the distress caused.
_________________
Valerie Murtagh
Equality Officer/Adjudication Officer
15 March, 2017