EQUAL STATUS ACTS 2000-2015 

Decision DEC–S2018–030

PARTIES

Mr Stephen McDevitt (represented by Ms Eithne Reid O’Doherty, B.L., as a friend) 

V 

The Labour Relations Commission, now the Workplace Relations Commission (represented by Ms Kiwana Ennis, B.L., instructed by Mr Adrian Brennan, in-house Solicitor) 

File References: ES/2014/0167

Date of Issue: 12th December 2018

Table of Contents

1. Claim..........................................................3.
2. Summary of the Complainant’s Case.........3.
3. Summary of the Respondent’s Case..........4.
4. Conclusions of the Equality Officer ............5.

Preliminary issue I: Vicarious Liability..............5

Preliminary issue II: Jurisdiction. .....................6.

Substantive Case............................................ 8

5. Decision....................................................12

Keywords: Equal Status Acts – vicarious liability –DEC-S2008-039, John and Angela Mongan and Children v. Clare County Council – judicial immunity – service provision – DEC-S2009-087, Fogarty v. Employment Appeals Tribunal – no request for reasonable accommodation made – impairment related to reasonable accommodation request not proven – less favourable treatment – harassment – victimisation – no jurisdiction – nemo iudex in causa sua.

1.   Claim 

1. 1.1  The case concerns a claim by Mr Stephen McDevitt, that the Labour Relations Commission discriminated against him on the ground of disability contrary to Section 3(2)(g) of the Equal Status Acts 2000 to 2015, in terms of failure to provide reasonable accommodation, and harassment. The complainant subsequently also complained of less favourable treatment and victimisation.

1.2  The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 23 July 2014. The complainant then engaged in copious correspondence first with the Tribunal, and later with the Commission, over the subsequent years. On 29 May 2018, in accordance with his powers under S. 25 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 26 October 2018. A written submission was received from the complainant at the day of the hearing. A written response by letter to the complainant’s case was received from the respondent on 7 November 2018, post-hearing and after additional documents sought from the complainant were received.    The last piece of correspondence relating to the complaint was received on 6 December 2018.

2.   Summary of the Complainant’s Case 

1. 2.1  The complainant named Ms Freda Nolan, the former, now retired, manager of the Labour Relations Commission’s Rights Commissioner Service in his complaint. However, it is clear from the substance of his complaint that his complaint is against a named Rights Commissioner, Ms O’Shea, who he alleges failed to provide him with reasonable accommodation for his disability in a hearing of a complaint she conducted.

   2.2  In terms of disabilities, the complainant suffers from high blood pressure, and in terms of mental health, stated in evidence that he suffers from post-traumatic stress disorder (PTSD) and related to this, depression and anxiety. He also stated that his PTSD causes him cognitive impairment.

   2.3  His complaint is essentially that he found the proceedings in his complaint difficult to follow, and that Ms O’Shea, the Rights Commissioner, should have made reasonable accommodation for his cognitive impairment, in terms of explaining matters to him so he could better understand what was happening. The complainant was not represented in the proceedings before the Rights Commissioner.

     2.4   No allegations of discriminatory conduct were raised in respect of Ms Nolan, except that the complainant said in his written submission that she was responsible for her own actions as well as those of Ms O’Shea.

3.   Summary of the Respondent’s Case

3.1  The respondent did not make a written submission before the hearing. At the hearing, counsel for the respondent stated that the complainant had not identified his disability and, not disclosed his mental health difficulties or any cognitive impairment. Counsel therefore submitted that the complainant had not established a prima facie case.

3.2  In a post-hearing written comment on additional evidence submitted by the complainant, the respondent reiterated this position.

4.   Conclusions of the Equality Officer 

Preliminary issue I: Vicarious Liability 

1. 4.1  Pursuant to the provisions of section 59 of the Workplace Relations Act 2015, the Workplace Relations Commission became the respondent in the above matter, it being the legal successor of the Labour Relations Commission on the dissolution of that body.

   4.2  The first preliminary issue for decision in this case is whether the respondent is vicariously liable for the actions of the named staff or not. This issue came up in preliminary correspondence with the complainant, who objected to my re-naming of the case as above. In support of this position, he pointed out that Ms Nolan responded to his notification letter, sent to her pursuant his obligations under S. 21(2) of the Equal Status Acts, and that this amounted to an acceptance of personal liability on the part of Ms Nolan I am, however, satisfied that the respondent is vicariously liable for the actions of both Ms Nolan and Ms O’Shea, insofar as they do not fall into the area of Ms O’Shea’s exercise of her office and are therefore not covered by judicial immunity, which I will address in the next section. As regards the issue of vicarious liability for actions taken by persons who are employed by a particular respondent organisation, the matter has been set out exhaustively and cogently by the Equality Officer in DEC-S2008-039, John and Angela Mongan and Children v. Clare County Council. The respondent accepted this position and its legal liability throughout the proceedings. The complainant raised the point that a decision from one Equality Officer is not binding on another Equality Officer or Adjudication Officer.   However, as I pointed out to counsel during the hearing, it has been followed in hundreds, if not thousands of cases brought under the Equal Status Acts due to the quality of its reasoning.

    4.3  Counsel accepted my reasoning during the hearing but then proceeded to argue that if the Workplace Relations Commission was the appropriate respondent, the within complaint should be enlarged to cover some actions of its former legal adviser and its former Director General in connection with it, as well as my own handling of the within investigation. Counsel cited County Louth VEC v Equality Tribunal [2016] IESC 40 in support of this contention. I strongly reject this notion. I cannot see how a judicial officer’s discretion to hear “further and better particulars” with respect to the complaint before him or her could possibly stretch to include the very proceedings he or she is conducting. If the complainant is dissatisfied with my handling of the within complaint, then strong supervisory mechanisms exist in the superior courts through which he can seek to assert his rights. Furthermore, no specific complaint about the actions of either the respondent’s former legal advisor, Ms Larkin, nor its former Director General, Ms Buckley, in respect of their treatment of the within complaint, is either extant or has been delegated to me, which pursuant to S. 25 of the Equal Status Acts, and S. 75(4B) of the Employment Equality Acts, is the legal precondition for me to hear and decide any particular case. I am also satisfied that County Louth VEC v Equality Tribunal [2016] IESC 40 is not authority for collapsing both a complaint, and the complaint about the complaint, into a single set of legal proceedings. For all of these reasons, I will limit myself to considering whether Ms Nolan or Ms O’Shea discriminated against the complainant on the ground of disability, in not providing him with reasonable accommodation.

Preliminary issue II: Jurisdiction 

4.4  The second preliminary issue concerns the potential judicial immunity of Ms O’Shea.

4.5  The issue of judicial immunity is one which the former Equality Tribunal had to grapple with repeatedly over the years, predominantly regarding complaints about Rights Commissioners and the Employment Appeals Tribunal, but also in other contexts, for example, in the case of DEC-S2015-012, Niese v. An Bord Pleanala. To assist Equality Officers in their work, the then legal adviser of the Equality Tribunal commissioned a legal opinion from Ms Claire Bruton, B.L., on the situations in which the issue of judicial immunity of office holders could arise, and which parts of the service provision of statutory tribunals were not so covered and could therefore attract valid complaints under the Equal Status Acts. Ms Bruton provided her opinion on 11 March 2013. In the context of the within complaint, it was first sent to the complainant, by the legal advisor for the Equality Tribunal, on 6 February 2015 in line with the principle enunciated in The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987 ILRM 36]. The complainant responded with a detailed counter-opinion, under his own signature, on 18 March 2015. The matter was subsequently left for an Equality Officer/Adjudication Officer to decide.

4.6   When the within case was delegated to me, I sent the complainant my earlier decision DEC-S2017-027, Olumide Smith v. Labour Relations Commission, now Workplace Relations Commission, for his information, and told him that I would examine at the hearing of his complaint whether it was possibly misconceived.

4.7   Both the complainant and his counsel took great exception to this step. Counsel alleged that this meant I had fettered my own discretion and that it showed bias and prejudgement on my part.

4.8   I cannot accept that considering legal guidance which was provided to Equality Officers to aid their work and clarify unusual legal points for them amounts to bias, prejudgement, or to fettering my own discretion, provided it has been shared with the parties and they have had an opportunity to comment on it in line with the precedent cited above. I am satisfied that this happened in the within case. Likewise, I reject counsel’s notion that alerting parties to a complaint to my own previous decisions where they are undisturbed and have not been subject to judicial review, amounts to bias or prejudice.   Sending these cases to the complainant in advance of the hearing for him to consider was done in line with fair procedures, since prior to the actual hearing of the complaint he appeared to be an unrepresented litigant. In that situation, I felt it would be unfair to presuppose such knowledge on his part. The fact that the complainant was aware of the cases which informed my thinking in advance meant that he had an opportunity to argue against them. This is in fact what counsel did, and what the complainant would have been free to do.

4.9   Nothing turns on this matter, however. The evidence adduced during the hearing of the complaint shows that the alleged acts of discrimination are capable of being understood as the provision of a service. I am satisfied that the conduct complained of falls, in principle, within the parameters identified by the Equality Officer in DEC-S2009-087, Fogarty v. Employment Appeals Tribunal. I accept counsel’s argument that a cognitive impairment which makes it difficult for a party to follow quasi-judicial proceedings can give rise to an entitlement for reasonable accommodation within the meaning of Section 4 of the Equal Status Acts. The respondent did not seek to dispute this. Accordingly, I am satisfied that the within complaint does not fall within the scope of Ms O’Shea’s judicial immunity and that I have jurisdiction to investigate the matter.

Substantive Case

4.10   The main issue for decision in this case is whether the complainant was discriminated against on the ground of disability because the respondent failed to take appropriate account of, and provide reasonable accommodation for, his disability in the conduct of quasi-judicial proceedings.

4.11   In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. 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.

1. 4.12  Two issues arise regarding the respondent’s obligation to provide reasonable accommodation to the complainant: Do the complainant’s mental health problems cause him cognitive impairment to the extent that he is less able to follow a quasi-judicial process than someone of average intelligence? And was the respondent on notice of this fact?

   4.13  To consider the second point first, counsel for the complainant argued that the respondent has a duty to make detailed enquiries about a party’s disability as soon as a complaint on the ground of disability is filed. I cannot accept this. Not every disability might need reasonable accommodation regarding the services the Commission provides, and not all employment-related complaints of people with disabilities concern discrimination. It is for this reason that the standard complaint form contains a field for complainants in which needed accommodations can be specified. Counsel originally stated that the complainant had indicated the need for accommodation on the form but retracted this statement when I gave her sight of the original complaint to the Rights Commissioner Service which the complainant had previously submitted to the Equality Tribunal. She then sought to argue that there would have been no need for such a request, since Ms O’Shea knew the complainant personally and would have been aware of his disability.

   4.14  I cannot accept this argument. The Rights Commissioner Service of the Labour Relations Commission had several Rights Commissioners working in Donegal, and there was no way the complainant could have expected that his complaint would have been delegated to Ms O’Shea. Furthermore, no firm evidence was adduced of Ms O’Shea’s alleged familiarity with the complainant’s disability. The complainant’s case as stated by counsel did not go beyond rather vague assertions on this point.

   4.15  This leads to the question of the extent, if any, of the complainant’s alleged cognitive impairment, and whether it should have been obvious to Ms O’Shea in the course of the hearing, in the manner in which Mr Fogarty’s deafness would have been obvious to the members of the Employment Appeals Tribunal in Fogarty v. Employment Appeals Tribunal. The complainant gave direct evidence of his mental health disabilities, including PTSD, anxiety and depression, which I accept, and which the respondent did not dispute. I am also prepared to accept that these disabilities mean that the complainant can suffer from problems concentrating. However, the whole manner of his evidence did not indicate any impairment in intelligence. As stated in evidence, the Rights Commissioner proceedings which Ms O’Shea directed had been confusing, a fact for which she later apologised at some length to the complainant. This is also obvious from the correspondence opened in evidence. But I am not convinced that they would have been any less confusing to another unrepresented litigant who did not suffer the complainant’s mental health problems. Furthermore, as counsel for the complainant pointed out during the hearing, her client had navigated the appeals process to the Employment Appeals Tribunal with no problems, a process which, prior to the employment law bodies reform programme, has been known to confound seasoned legal professionals. All of this militates against the assumption that the complainant was either in need of the reasonable accommodation he was seeking, or that it should have been obvious to Ms O’Shea that he was in such need.

   4.16  As against that, counsel for the complainant argued that he had worked in sheltered employment, and that this proved his cognitive impairment. She also stated that a previous decision of the Employment Appeals Tribunal referred to this, and I requested sight of this decision, which was emailed to me post-hearing on 31 October 2018. The decision does mention sheltered employment but does not identify in any way a cognitive impairment of the complainant, either generally, or regarding the ability to follow legal proceedings.

   4.17  I am therefore, on the balance of probabilities, not satisfied that the specific impairment in respect of which the complainant alleges he received no reasonable accommodation actually exists, even though I am satisfied that he is a person with a disability for the purpose of having legal standing under the Equal Status Acts.  I am satisfied that the Labour Relations Commission, at the time the original complaint was lodged, was not on notice of such an impairment. I am further fortified in these views by the extremely articulate correspondence in which the complainant engaged, under his own hand, with the Equality Tribunal and later with me directly, from the filing of the within complaint from 2014 onwards.

   4.18  Accordingly, the complainant’s complaint regarding the provision of reasonable accommodation fails for lack of evidence of the existence of the specific alleged impairment which would have given rise to the reasonable accommodation sought.

   4.19  About the complainant’s complaints of less favourable treatment, compared to a non-disabled person, I note that counsel for the respondent accepted that the handling of the complainant’s original complaint had been messy. It would of course be difficult for the complainant to point to an actual comparator, given that he is not privy to the proceedings of other parties. Counsel for the complainant accepted this. However, even granting the complainant the use of a hypothetical comparator, as S. 3(a) of the Equal Status Acts allows me to do, there is simply no evidence before me that the misunderstandings which arose in the handling of the complainant’s complaint are in any way connected to his disability, and that a non-disabled complainant would not be at risk of a similar experience. When a complainant is allowed the use of a hypothetical comparator, it is still up to them to establish facts which support this contention and the complainant in the within case did not do so. Misunderstandings, miscommunications and errors can arise in any legal proceedings, and there is nothing to indicate that they arose in the complainant’s case because of his disability. This part of the complainant’s complaint must therefore also fail. 

2. 4.20  As regards the complainant’s complaint of harassment,    it is important to note that S. 11(5)(a) of the Equal Status Acts defines harassment as “any form of unwanted conduct related to any of the discriminatory grounds”. [Emphasis added.] That is, the unwanted conduct must have a discernible connection to the ground cited. None of the communications between the Rights Commissioner and the complainant which were opened in evidence can be called in any way harassing with reference to the complainant’s disability. The complainant again takes issue here with the confusions which prevailed in the handling of his complaint, but I am satisfied that this cannot be defined as harassment within the meaning of the Acts. This part of the complaint must therefore also fail.

   4.21  The complainant’s complaint of victimisation arises from the fact that in the within complaint, further miscommunications and delays arose. The complainant did not identify victimisation in his original complaint form, that is, related to the original complaint. In terms of the complainant’s dissatisfaction with the handling of the within complaint, and as I note in paragraph 4.3 above, no such distinct complaint was ever filed by the complainant. Furthermore, considering the complaint would be wholly inappropriate for me to do, based on the principle nemo iudex in causa sua. The complainant did indeed seek just such an assurance from me in writing post-hearing. For all these reasons, I must decline jurisdiction for this part of the complaint.

5.   Decision

1. 5.1  This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

     5.2  Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that the Workplace Relations Commission, pursuant to Sections 3(1), 4 and 5(1) of the Acts, did not discriminate against, fail to provide reasonable accommodation to, or harass the complainant on ground of his disability. I further find that I lack jurisdiction to investigate the complainant’s complaint of victimisation pursuant to S. 3(2)(j) of the Equal Status Acts.

______________________

Stephen Bonnlander

Equality Officer/Adjudication Officer

12 December 2018