Complainant

Respondent

Parties

Des Coffey

Liz Keane T/A Los Molinos B&B (amended on consent)

Representatives

Appeared in Person

John Mc Coy. B.L Instructed by Paul Kelly, Solicitor.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022157-001

21/09/2018

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

CA-00022157-002

21/09/2018

The Complainant submitted two complaints to the WRC on 21 September 2018 in respect of a booked accommodation at the Respondent B and B on 13 August 2018. The Legal title of the Respondent was amended at hearing on consent.

A Preliminary issues arose on three issues:

1. Whether the Complainant had the locus standi (standing) to ground a claim under the Employment Equality Acts?

2 Whether Notification in accordance with Section 21 of The Equal Status Act had been properly complied with?

3 Whether the Complainant was correctly identified?

The Complainant submitted a handwritten account of his experience at the B and B in the company of his Daughter, aged 23. He also attached the response outlined in the ES2 form received by him, while he exhibited proof of postage of the primary notification of the ES1, he had not retained the ES1 Form

CA -00022157-001 Complaint under Employment Equality Legislation.

The Complainant is lay litigant and Father to a 23-year-old Daughter who is disabled. He outlined that he and his daughter had been discriminated against by the respondent whom he termed his employer on grounds of disability on 13 August 2018. He outlined a period of an overnight stay at the B and B where he and his daughter were both asked to leave by the Owner, thus cutting his five-day booked stay short. The Complainant contended that the actions of the Respondent needed close examination by The Equality/ Adjudication Officer.

He submitted that his daughter was unable to state her case and he was representing her interests.

CA -00022157-002 Complaint Under Equal Status Acts

The Complainant confirmed that he had submitted an ES1 to the Respondent on August 20, 2018. He had received an ES 2 form in response during the first week of September before submitting his complaint to WRC dated 17 September 2018.

He submitted that as a lay litigant he had struggled in his completion of the complaint form and relied on the advice of external agencies as well as the WRC. His complaint rested on being denied reasonable accommodation by the Respondent on 13 August 2018. He submitted a six-page narrative on his and his daughters experience at the B and B and his residual unease that the matter remains unresolved.

The Complainant responded to the Preliminary issue by confirming that he was employed by the Respondent believed that he had grounds on which to action CA -00022157-001.

He submitted that he had sent the ES1 notification in full to the respondent within the required period. He had not retained a copy or furnished the WRC with a copy. In commenting on the 3-page copy of the ES1 form provided at the hearing by the Respondent, the complainant submitted that he had furnished the respondent with a 13-page document as reflected in the expense indicated on proof of postage. He confirmed that the writing was his own.

The Compliant confirmed that he had submitted the ES1 in the name of his daughter as “complainant “and he had received the ES2 in the name of his daughter “as complainant “He confirmed that he had deviated from this practice when he named himself as the complainant on the WRC Complaint form. It was his stated intention to make the complainant in his daughter’s name following which he would be her advocate at the hearing. This was reflected in his 6-page narrative of the events of the case.

The Complainant concluded by stating that he was totally opposed to the Respondents bid to secure a dismissal of the case and indicated that he would give thought to re submission.

The Respondent was represented by Counsel and made oral arguments in the case. The Respondent was accompanied by one witness.

CA -00022157-001 Complaint under Employment Equality Legislation

The Respondent confirmed that the Owner present at hearing operated a Bed and Breakfast. Counsel proposed that the claim be dismissed as the complainant did not work for the Respondent and did not possess the locus standi to advance the complaint.

In addition, the Respondent argued that the complainant was incorrectly named on the documentation as it was clear to them that the Complainant wished to advance the case in his daughter’s name rather than his own name.

CA -00022157-002 Complaint Under Equal Status Acts

The Respondent submitted that the ES1 Form had not been fully completed by the Complainant and did not comply with the notification requirements under the Act.

The Respondent sought that the case be dismissed because of the complainant being incorrectly named.

The Respondent submitted a 3-page (3 of 13) ES1 form which was unsigned. The Respondent confirmed that the ES2 form was written by the owner and was a composite document comprised of the ES 2 components and a written narrative which denied discrimination.

I have considered the written and oral submissions before me. I am mindful that the complainant is a lay litigant and sought to explain the procedures surrounding both pieces of legislation to both parties present at hearing . I have decided to address the Preliminary issues raised by Counsel for the Respondent and by myself.

CA -00022157-001 Complaint under Employment Equality Legislation.

Firstly, I have found that the Complainant was not employed by the Respondent for the purposes of the Employment Equality act 1998. While the definition of employee is an expansive definition, I am satisfied that the complainant does not possess the locus standi (standing) to proceed with this aspect of his complaint. He did not establish that an employment relationship was in being. I find the claim to be misconceived and I dismiss the complainant in accordance with my powers under Section Section 77 ( A) (1) of the Act.

 CA -00022157-002 Complaint Under Equal Status Acts

ES1 Form.

Section 21 (1) of The Equal Status Act provides that a person who claims that prohibited conduct has been directed against him may subject to this section seek redress by referring the case to the WRC.

Section 21(2)(a) of the Act provides that within two months after the prohibited conduct is alleged to have occurred, the complainant is obliged to notify the respondent in writing of

1.       The nature of the allegation

2.       The complainant’s intention, if not satisfied with the respondent’s responses to the allegation to seek redress under the Equal Status Acts.

The date of notification is listed as the date the notification is sent.

The Complainant was clear when he confirmed that he had submitted an ES1 form to the Respondent in the name of his daughter. He did not retain a copy of this form and disputed that the sent version had been reduced to the three pages pro-offered by the Respondent at hearing. He believed that he had complied with an 11-page version. He exhibited proof of postage. The Respondent disputed this and confirmed that the three-page version was the sole remnant of that process.

I asked the complainant whether he had read the WRC booklet on “Guide to the Equal Status Acts for the Complainant “? He confirmed that he had read it post submission of his complaint.

While the requirements of Section 21 are not necessarily bound for insertion on an ES1 form, to process the complaint, I must be satisfied that the terms of Section 21(2) have been satisfied.

On careful examination of the ES1 provided at hearing, the complaint is made in the name of the complainant’s daughter. The Response by way of ES2 is framed in the same name. I read out the contents of Section 20 of the Act for the parties which defines a “complainant “under the Act. I asked from submissions from the parties on this point.

Regretfully I have to conclude that the ES1 and ES2 named complainant is distinguished from the WRC complainant name and while I accept that the Complainant in the instant case fully intended to make the complaint in his daughters name and then avail of Section 20(b) of the Act , by speaking for her during the investigation, he confirmed that he had erred in not completing the WRC form in her name . I do not accept that blame can be attributed to external parties or indeed the WRC in this regard.

I drew both party’s attention to the WRC Guidance documents for both parties in the case of an Equal Status complaint. I note the Section on page 6 which states:

“Along with the complaint form, you should send us a copy of the letter you sent to the respondent, proof of purchase and a copy of any reply you received “

The Complainant emphasised that he had difficulty in filing his complaint and missed this requirement. It is perfectly acceptable to file a hard copy complaint, but it is vital that the primary notification features in that despatch. In this case, it did not.

I have found that the complaint is incorrectly framed in the wrong persona. In addition, the notification requirements of the ES1 form have not been satisfied. I appreciate that the complainant believes that he has an arguable and compelling case. I also appreciate that the Respondent travelled many miles to the hearing and had the added expense of securing counsel to aid the response.

This is a very regrettable situation, but I find that I must dismiss this case as misconceived in accordance with my powers under Section 22(1) of The Act.

I ensured that both parties had access to the collective WRC Guidance documents on leaving the hearing for information purposes .

I have concluded my investigation and have found that I must dismiss the complaint as misconceived .

Discrimination , Reasonable Accomodation .

Employment Equality, Equal Status