DEC-S2018-002

EQUAL STATUS ACTS 2000-2015

Decision DEC-S2018-002

PARTIES

Mr Michael and Ms Anne O’Donoghue and their children (represented by Ms Heather Rosen)

and

Clare County Council (represented by John P. Shaw, County Solicitor)

File References: ES/2009/0111, ES/2009/0112, ES/2011/0142.

Date of Issue: 27th February 2018

Table of Contents

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

• Preliminary issue I: Notification......................................................................... 5
• Preliminary issue II: Vicarious liability............................................................... 6
• Preliminary issue III: Child Complainants Having Attained Their Majority........ 7
• Substantive Case.............................................................................................. 7

5. Decision........................................................................................................... 11

Keywords: time limits – vicarious liability – child complainants who attain age of majority – discrimination – race – membership of the Traveller community – comparator – direct discrimination – indirect discrimination cannot apply to community-specific policies – S. 14 exemption for actions done under statute.

1.   Claim 

1.1. The case concerns a claim by Mr Michael and Ms Anne O’Donoghue and their children, that Clare County Council discriminated against them on the ground of their race and their membership of the Traveller Community contrary to Sections 3(2)(h) and (i) of the Equal Status Acts 2000 to 2011, in terms of discrimination, harassment and permitting the harassment of the complainants contrary to Sections 6 and 11 of the Acts.

1.2. The complainants referred three complaints under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal: one complaint against one of two named officials each of the respondent on 16 October 2009, and one against the within respondent on 23 June 2010.  A submission was received from the complainants on 28 August 2013.  Various pieces of correspondence were received from the respondent between the filing and the delegation of the cases, in which aspects of the complaints were addressed.  On 11 January 2018, in accordance with his powers under S. 25 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Stephen Bonnlander, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the 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 cases on 22 February 2018 in Ennis, County Clare.   The final piece of correspondence in the case was received on 26 February 2018.

2.   Summary of the Complainants’ Case

2.1. The complainants are members of the Traveller community.  In their earlier complaints against two named officials, they complain of periods of homelessness, specifically from 19th to 22nd June, 2009. 

2.2. The main part of their complaint against the respondent proper is centred around a tragic story:  The family was allocated a place at a halting site which was not their first choice.  The house adjacent to their bay was not ready, so they lived in their caravan.  According to letters written by the complainants to the respondent, they struggled with cold, including freezing water and problems with using their gas bottles.  The complainants were in difficult financial circumstances because the respondent had previously impounded their caravan, and it cost the complainants considerable money and effort to get it back. 

2.3. In December 2010, the complainants lost their caravan and their possession in an arson attack, which was subsequently investigated by An Garda Siochana. Due to fortunate circumstances, none of the complainants or their children were hurt or killed in the attack.  The complainants then proceeded to seek accommodation from the respondent as a matter of urgency.  Media reports from the time, and medical reports as to the serious health issues of one of their children were also attached to their submission.

2.4. From their correspondence with the respondent, the complainants were told to go back to the halting site where their caravan was burned down, which they refused to do.  They repeatedly make the point that the caravan was burned down while security was on site, and that therefore they felt unsafe even with security provided by the respondent.  The complainants took to parking by the side of the road again, and by summer 2011, were in receipt of a number of notices from the respondent to desist from this.  Documentation relating to Mr O’Donoghue’s mother, who is not a party to this complaint, was also submitted.

3.   Summary of the Respondent’s Case

3.1. In its correspondence with the Tribunal, later the Commission, the respondent denies any discrimination of the complainants.  It also submitted that it was very difficult to discern a discrimination case within the meaning of the Acts from the written submissions. 

3.2. The respondent raised an objection over proper notification pursuant to the requirements of Section 21 of the Equal Status Acts.

3.3. The respondent also gave evidence that all request to the complainants to move their caravan were carried out pursuant to Section 10 of the Housing (Miscellaneous Provisions) Act 1992, as amended, and are therefore outside the jurisdiction of the Commission pursuant to Section 14(1) of the Equal Status Acts 2000-2015. 

3.4. During the hearing of the complaint, and in correspondence afterwards, the representative of the respondent also raised the point that due to the long delay which had occurred in terms of the cases coming to hearing, some of the children of Mr and Mrs O’Donoghue were now adults.  Whilst he acknowledged that the Equal Status Acts are silent on what happens when a child complainant reaches majority before an investigation is completed, he submitted that given that none of the couple’s children were present to give evidence, their cases should be dismissed for lack of prosecution.

4.   Conclusions of the Equality Officer 

Preliminary issue I: Notification

4.1. The preliminary issue for decision in this case is whether the notification process set out in S. 21 of the Equal Status Acts was followed.  In respect of the first two cases lodged, it does indeed appear that the notification was sent two days late with respect to the first date of discrimination alleged.  The complainants had their caravan impounded on 19 June 2009 and got it back on 22 June 2009.  The notification was signed by the complainants’ representative on 21 August 2009 and received by the respondent the same day.

4.2. It is important to remember that the time limits for notifications set out in Section 21 are not absolute, and that an important criterion, as set out in S. 21(3)(b)(ii) is whether a respondent is prejudiced by such failure.  In the context of the long history of litigation which the complainants’ representative has brought against the respondent, on behalf of members of the Travelling Community in County Clare, and because the notification is only two days out of time, I am satisfied they are not.  Accordingly, I invited the complainants’ representative to make an application at the hearing for an extension of time and to furnish me with an explanation as to how it arose.  

4.3. Ms Rosen submitted that she was very overloaded with work due to the number of complaints she was managing.  She also said that she was of the belief that the time for notification only started to run from 22 June 2009.  And with a process like the impounding of the complainants’ caravan, which stretched over three days – Mr O’Donoghue explained that the impounding happened on a Friday, that the caravan was kept in Cork, and that the family could not retrieve it from the pound until the following Monday – I am willing to accept that there is at least a degree of uncertainty as to when time begins to run. 

4.4. I am therefore accepting both arguments as reasonable explanations for granting an extension of time – a power delegated to me by the Director General – and grant an extension of time on the notification process to 4 months pursuant to S. 21(3)(a).  To hold otherwise would deprive the complainants unfairly of access to justice.  I am therefore proceeding with my decision.

Preliminary issue II: Vicarious liability

4.5. The within cases are brought against two named officials of the respondent, both since retired, and the respondent.  The complainants’ representative argued rather strenuously that for moral, if not legal reasons, these people should answer individually for their actions.  Whilst I have some understanding for that viewpoint on a principal level – occasionally egregious wrongdoing occurs for which this appears to be the right principle and which respondent organisation themselves would probably prefer not be held responsible for – it is not how the principles of legal liability are set out in the Acts.  Ms Rosen also brought a UK case to my attention which addresses matters of vicarious liability in the context of tort law.  However, the law of tort is a common-law area and develops differently from a statute which contains rather specific provisions for the handling of issue of vicarious liability for matters within its remit.

4.6. I therefore advised the parties repeatedly that I would follow the cogent and exhaustive legal analysis carried out by the Equality Officer in DEC-S2008-039, John and Angela Mongans and Children v. Clare County Council. I am satisfied this is a correct statement of the law of vicarious liability within the context of the provisions of the Equal Status Acts, and as applies to the within parties.  I am therefore satisfied that Clare County Council is the correct respondent for all three complaints.

Preliminary issue III:  Child Complainants Having Attained Their Majority

4.7. Given that the Equal Status Acts are silent on this situation, as the respondent’s representative himself acknowledges, it would appear to me that a decision on this point becomes a necessity only where there is a risk of prejudice to a respondent and hence a violation of natural justice and fair procedures.  This seems to apply in particular where the treatment of a child complainant is at the centre of a complaint.  An example might be an alleged discriminatory treatment of a school pupil.  The pupil in question may have left the school and become a legal adult by the time a complaint is heard.  It would clearly be essential that this young person is available to give evidence about the alleged discriminatory treatment they suffered so as not to prejudice the respondent school.

4.8. In the within cases, no specific discriminatory treatment of any of the couple’s children is alleged.  Essentially, the O’Donoghues complain that they were discriminated against as a family.   Furthermore, the children did not bring separate complaints which could be dismissed in the manner suggested by the respondent’s representative.  Last, the within cases suffer from some rather fundamental deficiencies in terms of evidence which I will address in detail below and which mean they cannot succeed regardless of who of the complainants gives evidence in them.  In light of all of this, I am satisfied that the point raised by Mr Shaw is moot in the context of the within investigation, and that the respondent in particular is not prejudiced by the absence of the former child complainants who were named as part of these complaints.

Substantive Case

4.9. The main issue for decision is whether the complainants were discriminated against on the ground of their membership of the Traveller community because of various actions taken by officials employed by the respondent.

4.10. 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 she 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. 

4.11. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

4.12. Before I address the legal challenges, which attach to these complaints, I wish to stress that there is no doubt as to the credibility of the complainants and to the dreadful fate they suffered when they lost their caravan home to an arson attack.  The arsonist, who was apprehended by the Gardaí, did not even check whether anyone was in the caravan before setting it aflame, according to eyewitness reports. The family miraculously survived unharmed because they were visiting other family at the material time.  I certainly have profound sympathy for the O’Donoghues on a personal level.

4.13. That said, their complaints suffer from two fundamental defects in terms of the law:

4.14. The complainants complained about being moved on from roadside encampments, after they refused to return to the halting site where their caravan had been burned down.  They considered this to be harassment.  However, it is clear even from the complainants’ own documentary evidence that all notices to move from roadside encampments were indeed done by the respondent pursuant to S. 10 of the Housing (Miscellaneous Provisions) Act 1992, as amended.   They are therefore exempt from investigation by the Commission pursuant to the provisions of Section 14 of the Equal Status Acts.  Section 14(1) states that

Nothing in this Act shall be construed as prohibiting –
(a) the taking of any action that is required by or under –
(i) any enactment or order of a court.
(ii) […]
(iii) […]

4.15. Given that the removal of the complainants from unauthorised sites was done under statute, I have no jurisdiction to investigate same.   I wish to note, however, that the Irish Traveller Movement did take a High Court case on behalf of the complainants in this matter, and that the parties did reach a court-approved settlement in the summer of 2011.  The complainants were therefore not entirely without a legal remedy.

4.16. For the sake of completeness, it should also be said that even if a statutory notice had been lacking for any removal – and there was no evidence adduced for this – the proper comparator pursuant to the provisions of the Acts would have been a member of the settled community, for example a tourist, camping on the roadside undisturbed.  Whilst is was asserted anecdotally during the hearing that this was indeed the case, there was no solid evidence adduced for this assertion.

4.17. The lack of evidence in terms of a comparator from the non-Traveller community as regards less favourable treatment of the complainants in their period of homelessness after the fire is also fatal to their main claim.  The complainants’ general assertion was that a non-Traveller would have been treated better in that situation. 

4.18. The Equal Status Acts, in Section 3(1)(a) state that

For the purposes of this Act discrimination shall be taken to occur –
(a) where a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection 3B (in this Act referred to as “discriminatory grounds” which –
(I) exists,
(ii) existed but no longer exists
(iii) may exist in the future or
(iv) is imputed to the person concerned

(b) […]  or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

4.19. Section 3(2)(i) specifically sets out that a comparator for the provisions above, as concerns a complainant from the Traveller Community, must be a person who is not a member of the Traveller Community.

4.20. Given that non-Travellers do not live on halting sites, I would have been prepared to accept a non-Traveller social tenant of the respondent as a comparator.  If it could have been shown by the complainants that such a person or family, having lost their home to a catastrophic event like a fire or similar, would have been treated better, I would have accepted this.  But it is far from clear that this is the case.  The complainants still had the house on the halting site, and whilst I accept their evidence that it “as an empty shell of a house” without furniture, and whilst I am certainly sympathetic to their fears after becoming victims of crime, I do not accept it as a given that a local authority would be much better placed to assist a non-Traveller family that becomes homeless in similar circumstances. The house was still there and was a form of shelter.   Crime, intimidation and catastrophic events happen in one community as much as in the other and providing appropriate assistance can put great stress on public resources.   I therefore cannot accept a mere assertion that a non-Traveller would have been treated better by the respondent.   This does not take from the sad fact, which I accept, that Mr and Mrs O’Donoghue and their children found themselves in quite desperate circumstances following the fire, just before Christmas and in cold weather. I repeat that I certainly do not wish to make light of what they have experienced.

4.21. The complainants’ representative also argued that I should have regard to the provisions of Section 3(1)(c) as cited above, given that, as she alleged, the respondent was not implementing its own policies towards the Traveller community properly.  I am however satisfied that these provisions, which address indirect discrimination, do not apply here.  The legal framework for indirect discrimination is not engaged when it comes to policies or rules which are designed for a specific minority community.  They come into play for policies and rules which are designed to apply generally, but which members of minority communities may find more difficult to comply with, like a requirement to have a fixed address, a requirement to use information that is not available in adapted formats for users with disabilities, or the need to master a particular language fluently where this is not strictly necessary.  I am satisfied that none of this applies to the within complaint and cannot be used as an alternative argument to advance the complainants’ case.   Any complaints that the respondent falls short in the implementation of its policies towards the Traveller community in the county need to be brought to other fora and under other proceedings than the Equal Status Acts.   I am satisfied, and said so to the parties at the hearing, that the Commission as a statutory tribunal of limited jurisdiction has no power to address such matters.

4.22. For all of these reasons, I find that the within complaints cannot succeed.

5.   Decision

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 Clare County Council did not discriminate against the complainants on the ground of their membership of the Traveller Community, or on the ground of race.

______________________

Stephen Bonnlander

Equality Officer

27 February 2018