Complainant

Respondent

Anonymised Parties

Complainant

Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00012985-001

05/08/2017

The Complainant has alleged that the Respondent as a service provider discriminated, harassed and failed to provide reasonable accommodation to him because of his disabilities.

So the Complainant made a complaint against a Member of the Respondent. He had been referred to this Member by his employer. He discovered that this Member had a professional relationship with his employer that he was not told about. He has claimed that Sec 10 of their Constitution was not followed. He stated that the Investigatory Pair referred to by the Respondent is a preliminary process. They failed to comply with their own constitution because no hearing was ever convened. He believes that he was treated differently because no hearing took place. The Investigatory Pair arrangement dealt with documentation only. No contact was made with him. He believes that there was a wilful action to discriminate against him because he had a social deficit and he had told them that he had such a deficit. He supplied information on a USB peg as this was the most convenient for him given his deficit. He received a letter from the Respondent dated 18th April returning the USB and seeking a paper only submission. This is clearly a refusal to provide reasonable accommodation as to do so would be of considerable inconvenience and cost. He was seeking a comparator but the Respondent declined to answer and this deprived him from suppling one. He made a data request but it was not honoured. He then learned that the investigation into his complaint against their Member was paused when he submitted a complaint to the Workplace Relations Commission. He argued that the non-provision of accommodation is an ongoing breach and therefore the time limit does not apply. The investigation is on hold and continues to be which is also a continuous breach. He stated that taping a meeting is admissible as decided by the Bar Council. Regarding the time limit argument made by the Respondent he stated that the non-accommodation is an ongoing breach and so the time limit does not apply. The fact that the investigation into his complaint is on hold pending this referral to the Workplace Relations is also a continuous breach. He cited DE8/2004 in support. He has stated that he a disability and no cognizance was taken therefore he was discriminated against and he has claimed compensation.

The Respondent is a voluntary body and a registered charity which is regulated by the Charities Regulator. Of the approximately 100 staff, only six are employed with the remainder being volunteers and the Society relies solely on donations and subscriptions from members.

The genesis of this case is the Complainant was seeking some sort of accommodation with his employers who engaged a Member Consultant with a view to assessing whether the Complainant required such accommodation. It is not known what that accommodation was and it is, in any event, immaterial to this case. The Complainant seeks to make out a case in discrimination, arising from the form of a complaint furnished by the Complainant to the Respondent on the 29th December 2016, which said complaint was received by the Respondent on 3rd January 2017.

Without going into the minutiae of the actual complaint, essentially the Complainant perceived a difficulty with a member with the manner in which he perceived he was treated.   The Complainant initially addressed his complaints directly to the Member in question which culminated in the Complainant stating that he would be referring the matter to this professional body. The Complainant goes on to allege that the Member has behaved in “the most unethical behaviour possible” and stated that “as someone with a social deficit, I have been harmed many times in the past”. He goes on to list a number (14) of breaches by the Member of ethical principles. These principles also appear to be listed in the Respondent’s own Code of Professional Ethics Document of 2011.

Furthermore, the Complainant also attached a USB key/memory stick to his complaint which in large part appears to be the basis of his claim in discrimination. Essentially, the Complainant is asserting that because the Respondent would not upload the content of a USB stick which he had attached to his complaint, for reasons set out below, that this constituted some sort of discrimination. There is also a complaint regarding the purported failure by the Respondent to listen to and/or type up an illicit recording of a conversation of a session with the Member in question.

By letter dated 13th January 2017, the Vice Chairperson of the Respondent’s Board of Professional Conduct wrote to the Complainant and indicated, inter alia, that she would bring the complaint to the Board of Professional Conduct but that the Respondent would not be accepting the USB key and that only written correspondence in acceptable. It is important to understand the basis for this positon adopted by the Respondent. The Respondent did not wish to install a memory stick into one of their computers in circumstances where they had no idea what was on it and in circumstances where it might corrupt their own files. Furthermore, it is submitted that there is no obligation on the Respondent to print off documentation from a USB key and that the Complainant should have, at that point, simply submitted his complaint in hard copy.   That would have solved his problem.   The Complainant responded by letter dated 8th February 2017 seeking an update.

The Vice Chair wrote both to the Member in question and the Complainant by letters dated 14th February 2017 stating that the complaint was being processed and that an “Investigatory Pair” was being assigned to the complaint to deal with the allegations of breaches of the Code of Ethics. An Investigatory Pair is simply two people who are assigned to deal with the investigation and report to the Board of the Respondent entity.  

The Complainant wrote to the Investigatory Pair by letter dated 27th February once again enclosing the USB stick and asking for the matter to be moved on. He again wrote on the 22nd March seeking an update and on this occasion the Complainant also provided what purported to be an index of what the memory stick contained. Included in the index was apparently a recording of one of the sessions the Complainant had with the Member in question. This recording was made by the Complainant secretly and unknown to the Member.

It should be noted that the Respondent never had any intention of firstly uploading a USB key, the provenance of which they did not know, and secondly they had concerns including Data Protection concerns in relation to the illicitly made recording of one of the sessions as mentioned above. The Respondent was also concerned that there might be some illegality around how the recording came into being and in general were disturbed and uncomfortable with the fact that the Complainant had seen fit to secretly record a session with the Memebr in question. A decision was reached that it was wholly inappropriate to even listen to that recording. It is submitted that if the Complainant wanted to set out his complaint, he should simply have printed off whatever documentation was on the USB stick and if he wanted to type up the content of the recording, he could have done so.   The question of cost is not a matter for the Respondent and it is submitted that it is up to the Complainant to put forward his complaint as wholly as he can. The idea that the Respondent has been discriminatory in not uploading a USB stick or typing up an illicit recording is simply not understood. The fact that the Complainant indicated in his complaint against a Member that he had a social deficit is, it is submitted, immaterial.

By letter dated 4th May 2017, the Investigatory Pair wrote to the Complainant setting out the fact that they had carefully considered his complaint and sought clarity in relation to specific articles set out in the Code of Professional Conduct.

The next document/exchange received by the Respondent was an Equal Status Notification Form ES1.   That form alleges discrimination, harassment and a failure to provide reasonable accommodation. In any event, the central allegation was that the Complainant had been discriminated against on the disability ground. The specific complaint recites a brief chronology of the events leading up to its’ issuance however, at paragraph 4, the Complainant sets out various medical conditions including autism and dyslexia as well as citing financial impediments to producing a transcript of the recording of the session (above). He also refers to the Respondent’s attempts to agree the parameters of his complaint as connoting some sort of discrimination. It is emphatically submitted that this is nonsensical. He concludes by listing a number of questions in his Form ES1.

The Respondent replied to Form ES1 on Form ES2 and goes through the specific chronology of events as previously set out herein. It also points out that no mention whatsoever of his disability was made to the Respondent or to the Investigatory Pair until the complaint form ES1 issuing.   It also goes on to assert that the questions raised in Form ES1 were not relevant or necessarily appropriate.

The Complaint Form filed with the WRC in August 2017 again alleges discrimination and specifically asserts that the first date of so-called discrimination is the 21st April 2017 and that the most recent date of discrimination was the 30th June 2017. The Complainant asserts, inter alia, that he had put the Respondent on notice that he was an individual with disability since his first complaint against the Member in question on the 29th December 2016. Whilst this assertion is rejected by the Respondent, it is submitted that even if the Respondent were specifically on notice of the fact that the Complainant had a disability, it would not have treated the Complainant any differently. The Complainant relies on the Respondent’s refusal to answer the questions contained in Form ES1 somehow as evidence that he has been either a victim of direct discrimination or that the Respondent’s procedures disproportionately impact on individuals with disabilities and are therefore in direct discrimination. It is submitted at this juncture that the idea that the Respondent’s own internal procedures can be regarded as evidence itself of discrimination against the Complainant is frankly preposterous and the Complainant does not explain how this is the case. The Complainant goes on to cite the European Convention on Human Rights which, it is submitted, is not relevant in all of the circumstances. He also refers to dates of discrimination of the 21st April and 30th June 2017. It is presumed that the 21st April is when he received the letter of the 18th April and the 30th June is the letter which emphatically states that the recording will not be used. All of this conveniently ignores the fact that the USB key was returned in January. It is submitted that the Complainant is seeking to didge the statute by asserting the dates above.

Preliminary Submission – Statute Barred

Section 21 (2) of the Equal Status Acts 2000 – 2015 (as amended) (“the Act”) states:-

“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 once 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)           he Complainant’s intention, if not satisfied with the Respondent’s response to the

allegation, to seek redress by referring the case to the Director;

(b)          may in that notification, with a view to assisting the Complainant in deciding whether to refer the case to the Director, question the Respondent in writing so as to obtain material information and the Respondent may, if the Respondent so wishes, reply to any such questions.”

The Complaint’s case is that he was somehow treated differently than others or that he was somehow discriminated against appears to centre around the Respondent refusing to upload a USB key and typing the recording of a consultation. In those circumstances, it is submitted that whilst it is denied that any prohibited conduct occurred at all, any prohibited conduct as envisaged by the Act occurred on the 13th January when he was written to and, in those circumstances, it is submitted that the conduct falls well before the Form ES1 is provided to the Respondent in May 2017. It may be argued that the Respondent is guilty of repeated conduct by sending back the memory stick on three occasions but this is wholly rejected.   The Complainant had an obligation, if he felt he was discriminated against, to set out his complaint of discrimination within two months of it occurring. Leaving aside the Respondent’s submission that the refusal to upload a USB key and type up a transcript cannot constitute discrimination, the Complainant did not act on the supposed prohibited conduct in sufficient time and it is therefore submitted that the Complainant’s claim should fail on this basis, ab initio. However, the Act also states where more than one incident of prohibited conduct is alleged to have occurred that the complaint must be made within two months. In the first instance, it is rejected that more than one incident (or any incident) of discrimination occurred as the Respondent’s position regarding the memory stick was the same and consistent since January 2017 and, in those circumstances, it is rejected that sending the memory stick back more than once constitutes more than once incident. It is exactly the same thing and the Complainant failed to raise any issue of discrimination until his Form ES1 in May 2017 and indeed he did not raise any issues regarding any of his medical conditions until the Form ES1, some five months after he first issued the USB key and said stick was returned to him.

The case of Dona Sfar v. Abbey Court Hostel[ET-158894-es-15, Decision No. DEC-S2017-029] considered Section 21.2 of the Act. In that case the Form ES1 was delivered outside the 2 month time limit. The complainant argued that an earlier letter satisfied the obligations imposed by Section 21.2 of the Act. The Complainant’s earlier letter did not refer to discrimination and the Respondent submitted that the first notification of any such allegation was the later ES1 notification. Ultimately the complaint was found to fall outside the statutory time limits as no reasonable case could be put forward to explain the issue.

It is submitted that nowhere in the Complainant’s correspondence is there any reference to discrimination and the first reference is the Form ES1. Any earlier letter could not, it is submitted, therefore be construed to be a complaint that satisfies the legislation and that therefore the Complainant is time barred.

Burden of Proof

Section 38A.1 of the Equal Status Acts 2000-2015 (as amended) states, “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.”

In the case between an Accommodation Seeker and an Estate Agent (ADJ-00006661) the adjudication officer considered the issue of the burden of proof. The officer considered the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) wherein the Labour Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246 and stated that

“…the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent.”

In the case of Alexander Sokolov Grant v. The Department of Arts Heritage and the Gaeltacht [Et/156802-es-15] the Adjudicator/Equality officer considered the burden of proof and confirmed that it is for the Complainant to 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.

The Respondent submits that in this case, even if the Complainant is not found to be statute barred, and without prejudice to any argument previously made, the onus is on the Complainant to prove that the facts establish discrimination on the grounds of disability and it is submitted that no such evidence exists at all.

The Respondents simply rejected a USB key as it did not want to install same and it also had concerns in relation to Data Protection legislation not to mention concerns over the illicitly made recording. Those concerns are valid, and it is respectfully submitted that no evidence of discrimination whatsoever exists. Indeed, Form ES1 fails to outline the nature and extent of any prohibited conduct. It merely alleges that the Complainant was the recipient of discriminatory treatment which is not at all particularised. Indeed, the WRC complaint seeks to expand the bases of the Complainant’s issues by introducing postal legislation and European Law. Whilst the Respondent is not particularly bothered by the attempt by the Complainant to expand his case some eight months after his initial complaint against a Member, it is noteworthy that the Complainant feels the need to do so in that he is obviously concerned about the validity and strength of his case.   It should be noted that the Complainant’s complaint against the Member was, in some way, upheld to the extent that a reprimand was issued and whilst the Complainant appealed the decision overall, this was rejected. It is also understood that Data Access issues continued to this day and that the Complainant has ongoing issues with his employers.

It is the Respondent’s submission that the Complainant has failed to establish any prima facie facts that would give rise to the presumption of prohibited conduct in the form of disability discrimination on the part of the Respondent.

1)Time Limit

I note that the Respondent has claimed that the complaint was out of time based on the fact that the Complainant has alleged that he was discriminated against on 13th January 2017 when the USB peg was first returned. The complaint to the Workplace Relations Commission (WRC) was received on 5th August 2017.

I note that the Complainant on the Form ES1 states that the USB peg was returned for the second time on 21st April 2017. It was also returned on 30th June 2017.

On the acceptance of the last alleged breach then I find that this complaint was presented to the WRC within the allowable six-month period. Therefore, I have decided that this claim is within time.

2)Complaint

Discrimination and victimisation because of his disability.