DEC-S2018-014

EQUAL STATUS ACTS 

DECISION NO. DEC-S2018-014

PARTIES

Francis O’Donoghue

(represented by Ms. Heather Rosen)

-v-

The Minister for Social Protection

(represented by Mr. Cian Kelly B.L. on the

instructions of the Chief State Solicitor)

File reference: ES/2013/0121

Date of issue: 5th June, 2018

1.   Background to the Claim

1.1      The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 11th October, 2013. On the 27th March, 2017, in accordance with her 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, Enda Murphy, 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 29th June, 2017. Final correspondence from the parties was received on 2nd August, 2017.

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 he was discriminated against by the respondent on the grounds of his race and membership of the Traveller community in terms of Sections 3(1)(a), 3(1)(c), 3(2)(h) and 3(2)(i) contrary to Section 5 of the Equal Status Acts in relation to the manner in which the rules and requirements were applied to him in terms of accessing to the Fuel Allowance Scheme. The complainant also claims that he was subjected to harassment contrary to Section 11 of the Acts.

3. Summary of the Complainant's Case

3.1       The complainant is a member of the Traveller community and was in receipt of the fuel allowance which is administered by the respondent under the Fuel Allowance Scheme during the winter months in 2012/13. The complainant received a written notification from the respondent on 21st January, 2013 to inform him that he was not entitled to the fuel allowance and his payment was subsequently cancelled. The complainant submits that the fuel allowance was cancelled on the mistaken premise that another person in his household was also in receipt of this allowance. The complainant contends that he was living alone in a caravan in a remote rural location in very difficult and demeaning circumstances at the material time relevant to this complaint and was therefore entitled to the allowance. The complainant claims that payment of the fuel allowance was of the utmost importance to him given the extremely poor conditions within which he was residing at that juncture.

3.2       The complainant submitted that he was using his representative, Ms. Heather Rosen’s address, as a postal address for the purposes of correspondence with the respondent at the material time the fuel allowance was cancelled. Ms. Rosen had informed the respondent by letter dated 18th January, 2013 about the complainant’s living circumstances and the reasons why he was using her address for this purpose. The letter cancelling the complainant’s fuel allowance was sent to him three days after Ms. Rosen had informed the respondent of this arrangement. Ms. Rosen engaged in further correspondence with the respondent to try and clarify the matter in relation to the complainant’s address but to no avail and his fuel allowance was not subsequently reinstated. The complainant was informed by the respondent that if he wished to change his address that he would “have to do so through the correct channels; he will have to present himself to the branch office with proof of his new address i.e. utility bill or bank statement dated within 3 months. Once he has done so his fuel allowance may be reviewed”. The complainant’s representative, Ms. Rosen, wrote to the respondent on 22nd February, 2013 to explain the vulnerabilities of the complainant and point out that the requirements being imposed on him could be construed as discriminatory treatment within the meaning of the Equal Status Acts. The complainant’s representative did not receive a reply to this letter.

3.3       The complainant disputes the respondent’s contention that the reason his fuel allowance was cancelled was due to the fact that he was resident in his mother’s caravan where a fuel allowance was already in payment. The complainant claims that the respondent failed to carry out adequate or sufficient inquiries to establish where he was residing for the purpose of assessing his eligibility for payment of the fuel allowance. The complainant disputes the conclusions reached by the respondent that he was not residing alone in a caravan at his stated address following inspections of the site by one of the Department’s Inspectors to establish if he was, in fact, residing there. The complainant accepts that he may not have been present at the caravan when the inspector carried out the site visits. However, the complainant contends that this fact alone was not sufficient to determine where he was residing at the material time in question. It was submitted that there are a multitude of reasons why the complainant would not have been present at the caravan when the inspector carried out these visits. By way of example, the complainant submits that his mother suffered from ill-health and was frequently hospitalised and that it is possible the date of the inspector’s visit could have coincided with an occasion when he was visiting his mother in hospital.

3.4       The complainant’s representative, Ms. Rosen, contends that the respondent’s inspector could, and should have, telephoned her to ascertain the complainant’s whereabouts prior to making the unannounced site visits to his caravan. The complainant also disputes the conclusion reached by the inspector following these visits that the caravan “in which he claimed to reside was unoccupied” and that “there were no signs of recent habitation”. The complainant accepts that his caravan was in a state of dereliction but contends that he was forced to live in these conditions as a result of failures by the appropriate authorities to allocate him public housing.  

3.5       It was submitted that the payment period in relation to the fuel allowance was extended in 2013 because of the long hard winter and it was contended that was only fair and reasonable that the allowance be reimbursed to him because it had been cancelled on a flawed premise in the first instance. The complainant’s representative made further attempts over the following months, both in writing and by telephone, to try and resolve the matter on his behalf by contacting the local office of the Department of Social Welfare. However, the respondent failed to respond to these communications and the complainant’s fuel allowance was not subsequently reinstated.

3.6       It was submitted that the complainant’s primary allowance (i.e. jobseeker’s allowance) was also suspended by the respondent during the period from 26th March, 2013 to 22nd April, 2013 after the Department of Social Protection formed the view that he was not residing in the caravan at the stated address thereby depriving the complainant of his basic income for living.

3.7       It was submitted on behalf of the complainant that the respondent’s silence in relation to this matter had put into “black and white” a pattern of treatment for the members of his family and others of the Traveller community within his local area. The complainant submits that it is not the cancellation of the fuel allowance, per se, at least not the rule behind that cancellation that is at issue in the instant case but what took place when the effects were explained of the rule being applied without modifications/use of discretion. The present complaint was precipitated by the responses that came, and by those that did not come, from officials of the respondent when information was sent, in writing to them, about the living circumstances and living conditions of the complainant to show that the rule for the fuel allowance, that refused it for more than one person with the same address, was not applicable to him and that the outcomes, if the rule were to be applied without adaptation, would be in contradiction of the reasons the rule was set in place. Such a cancellation is an intrinsic part of the Fuel Allowance Scheme and the purpose of this rule is to ensure that the resources are fairly shared among those who need them most – a fuel allowance is to serve a household no matter how many people live in it.

3.8       It was submitted that the application of the rules and requirements of the Fuel Allowance Scheme by the respondent following the initial cancellation of the complainant’s fuel allowance were indirectly discriminatory against him on the grounds of his membership of the Traveller community and ethnic origins. The complainant claims that it was not possible for him to comply with the additional rules/requirements, such as the request to provide a utility bill or bank statement in order to establish proof of address, which were put in place by the respondent when his representative sought to have his fuel allowance reinstated and reimbursed after it had been cancelled in January, 2013. The complainant’s representative submitted that the tenets of the Equal Status Acts provide that if a rule, or an aspect of a rule or procedure, has a detrimental outcome for people covered by one of the discriminatory grounds set out in the legislation, then that rule should be adapted or adjusted to take into account the circumstances of these people in the said categories, such that they will not be prohibited from availing of the relevant service. It was submitted that the respondent persisted in its application of the discriminatory rules/requirements relating to the Fuel Allowance Scheme and failed to make appropriate modifications to accommodate the individual circumstances of the complainant after the detrimental effects of these requirements had been clearly brought to its attention.

3.9     The complainant also claims that he was subjected to harassment by the respondent contrary to Section 11 of the Equal Status Acts. It was submitted that the results of the decision-making process surrounding the cancellation of the complainant’s fuel allowance were offensive, humiliating and very detrimental to his health and well-being.

4.  Summary of the Respondent's Case.

4.1       The respondent submitted that the Fuel Allowance Scheme was introduced in 1998. The aim of the Scheme is to assist qualified households who are in receipt of long-term social welfare that are unable to provide for their own heating needs. The scheme is an administrative non-statutory scheme where decisions in relation to the applications for the scheme are made on the basis of these internal guidelines. All and/or any decisions are based on the principle of entitlement and evidence in an impartial fashion whereby the burden of proof regarding same is on the Applicant.

4.2       The respondent submitted that as part of the regular control work in the local social welfare office checks are carried out on fuel allowance applicants’ addresses where more than one fuel allowance is in payment per address. These checks are carried out by examining the cases on the live register (of those in receipt of Jobseekers Allowance) who have the same address and where more than one fuel allowance is in payment. Where two people share the same address and both are in receipt of the fuel allowance one of the parties’ fuel allowance is terminated. This is because a fuel allowance is only payable to one person in a household. This check is carried out using a spreadsheet which indicates name, address, PPSN and fuel allowance payment. It does not give any indication of race, ethnic origins or membership of the Traveller community.

4.3       The respondent submitted that initially, the complainant’s representative, Ms. Rosen had her fuel allowance stopped because she shared the same address as another claimant who also had a fuel allowance. Ms. Rosen’s allowance was stopped because it is the person who has held the fuel allowance the longest retains the payment when two people live in the same household. Ms. Rosen then informed the respondent the complainant did not in fact live with her but that she facilitated him with a postal address. This case was referred to an Inspector of the Department who visited the complainant at his stated actual place of residence on numerous occasions over the course of a few weeks and determined that he was actually not resident at the stated address. The complainant was found to be resident in his mother’s caravan where a fuel allowance was already in payment. There were three caravans parked at this address, two of which were uninhabitable. There were no gas cylinders connected and no signs of recent habitation at the caravan where the complainant had indicated that he was residing for the purpose of his fuel allowance claim.

4.4       The respondent submits that the Department’s Inspector visited the site where the complainant claimed he was residing in a caravan on a number of occasions, and that in the Inspector’s opinion, the complainant was not resident there. These inspections were carried out by a very experienced inspector and he formed the opinion that the caravan was uninhabited based on a number of core factors he witnessed at the relevant location. The respondent submits that this inspector was assigned to investigate the complainant’s place of residence on 14th February, 2013 which followed correspondence from the complainant’s representative on 8th February, 2013 confirming details of his address. The respondent submits that this was not an unreasonable delay in such a timeframe.

4.5       The respondent submits that the matters raised on behalf of the complainant in relation to the suspension of his primary payment i.e. Jobseekers Allowance is outside the remit of this investigation. The respondent acted in the said fashion in the application of this scheme wherein the complainant could not be located at his stated residence, as set out in his application for jobseekers, and at all material times was required to be available for work as part of the conditions of his jobseeker’s payment. The respondent contends that in such situations, all recipients of jobseeker’s benefit, the Department would suspend such a payment. It is a requirement of the jobseeker’s payment that a person must inform the Department of any changes in circumstances including but not limited to change of address. The Respondent submits that the complainant’s principal payment was reinstated and all and any arrears were also issued and accordingly, he was at no loss.

4.6       The respondent relied upon the Supreme Court case of Stokes (A minor) -v- Christian Brothers High School Clonmel & The Equality Tribunal [2015] 2IR 509 in support of its position that there was no discrimination, either direct or indirect, in the present case. The respondent submitted that the Supreme Court in its analysis of the relevant statutory provisions in the legislation sets out that it is essential for an individual to have standing to mount a claim in such a matter they must establish initially that they are affected by the rule. Thereafter they must establish that they are at a disadvantage on foot of the application of the rule as opposed to other who are not members of their scheduled category. Following same an applicant must establish that any disadvantage suffered is significant and appreciable. The respondent submitted that this essentially amounts to a three-step test which is to be considered:

I.  Effected by the rule;

ii.  At a disadvantage on foot of the rule as opposed to other group or non-group members of their group;

iii.  That such a disadvantage is significant or appreciable.

The respondent submitted that the complainant has failed to furnish any evidence that the application of the Fuel Allowance Scheme resulted in him suffering any disadvantage that would have been suffered by any other applicant that was not a member of the Traveller community. It follows that the complainant did not submit any evidence that any disadvantage was significant or appreciable in line with the third prong of Clarke J.’s test.

4.7       The respondent further submits that the complainant in his evidence has admitted that he did not believe that he had suffered any discrimination in the application of the Fuel Allowance Scheme. The respondent submits on foot of the said admission that the complaint should be dismissed.

4.8       The Respondent also denies that the complainant was subjected to harassment contrary to Section 11 of the Equal Status Acts.

5. Conclusions of the Equality Officer/Adjudication Officer on jurisdictional matters

5.1       There were a number of preliminary issues raised by the parties of a jurisdictional nature during the course of the proceedings in relation to this complaint. These issues of jurisdiction are set out hereunder.

Notification Requirements under Section 21 of the Acts

5.2       The respondent submitted that the Equality Officer/Adjudication Officer does not have jurisdiction to investigate the present complaint on the basis that the complainant has failed to comply with the notification provisions of Section 21(2)(a) of the Equal Status Acts. This provision requires that a person seeking redress under the Acts must notify the service provider in question of the nature of the alleged discrimination within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within two months of the last such occurrence.

5.3       The respondent submitted that the alleged incident of discrimination is claimed to have occurred on 21st January, 2013 and the ES.1 Form (Notification Form) which was sent to the respondent on 10th June, 2013, was therefore, outside of the two-month time limit provided for in Section 21(2)(a) of the Acts. The respondent further submits that the complainant has not demonstrated reasonable cause for extending the time limit in accordance with the provisions of Section 21(3)(a)(i) of the Acts or that there are exceptional circumstances to justify a decision to dispense with the requirement for notification in accordance with the provisions of Section 21(3)(a)(ii) of the Acts.

5.4       The complainant submits that it is not the cancellation of the fuel allowance, as such, at least not the rule behind that cancellation that is at issue but what took place when the effects were explained of the rule being applied without modifications/use of discretion. The complainant’s representative submits that even when sending the ES.1 Forms, it was considered that the implications of the conduct towards the complainant were very far reaching and that the time span for the notifications would not end until it would be acknowledged that the conduct was harmful by those in the respective roles of decision making, but to be sure that the complaint would be accepted for investigation, the complainant’s representative endeavoured to send the notifications before two months had passed from the ending of the time-period that year of the fuel allowance – that time period having been extended for an extra week because the winter had been so harsh and the spring late in coming.

5.5       In considering this matter, I note that there was an exchange of correspondence between the complainant’s representative and the respondent in the ensuing period following the formal confirmation of the cancellation of his fuel allowance on 21st January, 2013. In particular, I note that the complainant’s representative wrote to the respondent on 22nd February, 2013 in relation to this matter and clearly adverted to the nature of the alleged discriminatory conduct and the relevant provisions of the Equal Status Acts which was being claimed had been contravened. I am satisfied that the complainant’s intention to seek redress under the Acts in relation to the matter was clearly discernible from the contents of this letter. It should be noted that the ES.1 Form is not a statutory form, and accordingly, there is no statutory obligation on a complainant to use this form when seeking to notify a service provider about an alleged act of discrimination prior to seeking redress under the Acts. In the circumstances, I am satisfied that the information included in the aforementioned letter from the complainant to the respondent satisfied the relevant requirements prescribed in Section 21(2)(a) of the Acts, and therefore, constitutes a legitimate notification in its own right in relation to this matter.

5.6       Notwithstanding the foregoing, I have also taken cognisance of the complainant’s contention that the effects of the alleged discriminatory rule/requirements in question in terms of access to the Fuel Allowance Scheme were ongoing over a period of time. The complainant contends that the discrimination commenced upon the initial cancellation of his allowance on 21st January, 2013 and did not end until the payment period for the Scheme had come to an end on 12th April, 2013. Section 21(11) of the Acts provides that:

“(11) For the purposes of this section prohibited conduct occurs –

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period,  

     throughout this period”.

I am satisfied that the alleged discriminatory rules/requirements which the complainant claims prevented him from accessing the Fuel Allowance Scheme were in operation throughout the aforementioned period. In applying the provisions of Section 21(11) of the Acts, it is clear that the notification (ES.1 Form) which was sent to the respondent on 10th June, 2013 was therefore received within the prescribed period of two months after the prohibited conduct was alleged to have occurred.

5.7       Having regard to the foregoing, I find that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts. Accordingly, I find that I have jurisdiction to investigate the substantive complaint of discrimination in the present case.

Vicarious Liability

5.8       The complainant referred complaints against three named individuals, who were all officials of the Department of Social Protection at the material time of the alleged discrimination, and the Department of Social Protection itself. The complainant’s representative submitted that these individuals should also be held personally liable for the alleged discriminatory actions/decisions taken by them against the complainant. It should be noted that the Equal Status Acts provides that a complaint of discrimination may be referred against a named person or an organisation, public body or other entity.

Section 2(1) defines the term “person”:

““person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;”

Section 42(1) of the Equal Status Acts provides:

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

The Act therefore provides that a complaint of discrimination may be referred against a person as happened in this case, where the complainant referred the case against named officials and the Department of Social Protection itself. If that person is found to have discriminated in the course of his/her employment (for example implementing a policy on behalf of the employer which may be found to be discriminatory) then it is that person’s employer who may be vicariously liable in accordance with Section 42(1) of the Equal Status Acts. The definition of the term “person” also includes a public body.

5.9       Having considered the submissions, I am satisfied that the named officials are all employees of the Department of Social Protection and acted in the course of their employment and therefore the Department of Social Protection is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Acts. I find therefore, that the Department of Social Protection is the correct respondent and the case should proceed against this body only and not the named individuals.

6. Conclusions of the Equality Officer/Adjudication Officer on substantive matter

1. 6.1  The issues for decision by me are (i) whether or not the respondentdiscriminated against the complainant, either directly or indirectly, on grounds of his membership of the Traveller community and ethnic origins in terms of Sections 3 of the Equal Status Acts and (ii) whether or not the respondent subjected the complainant to harassment contrary to Section 11 of the Equal Status Acts. 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.

Claim of direct discrimination

6.2       I will firstly consider whether or not the alleged treatment amounted to direct discrimination within the meaning of Section 3(1) of the Equal Status Acts. Section 3(1) of the Acts provide:

“(1) 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 the ‘discriminatory grounds’ … “

Section 3(2) of the Acts provide that:

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:        

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).

6.3       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.

6.4       The present complaint of discrimination has been grounded on both the Traveller community and race grounds. It was not in dispute that the complainant is a member of the Traveller community and I am therefore satisfied that he is covered by the Traveller community ground. The complainant has also claimed that he was subjected to discriminatory treatment on the grounds of his ethnic origins as a member of Traveller community when compared to the manner in which a person of a different ethnicity such as an Irish national who is not a member of the Traveller community was or would have been treated in a comparable situation. Having regard to the fact that Travellers are recognised as a distinct ethnic group within the Irish nation, I am therefore satisfied that the complainant, being a member of the Traveller community, is also covered by the race ground for the purpose of this complaint.

6.5       The complainant has claimed that he was subjected to discriminatory treatment on the grounds of his membership of the Traveller community and ethnic origins in relation to the manner in which the rules and requirements governing the Fuel Allowance Scheme were applied to him by the respondent. The respondent denies this claim and contends that the complainant has failed to furnish any evidence that the application of the Fuel Allowance Scheme resulted in any less favourable treatment or disadvantage to him that would have been suffered by any other applicant that was not a member of the Traveller community or of a different ethnic origin.

6.6       I note that the Fuel Allowance Scheme is a non-statutory scheme which is administered by the Department of Social Protection. The allowance which is paid to recipients represents a contribution towards the person’s normal heating expenses and it is not intended to meet those costs in full. There are a number of qualifying criteria which an applicant must satisfy in order to be eligible for payment of the allowance including the requirement for the applicant to be in receipt of a social welfare qualifying payment (such as Jobseeker’s Allowance) and the applicant must be living alone or only with a person otherwise qualified for the allowance. The rules of the Scheme also clearly provide that a person does not qualify for the allowance if s/he is living with someone already in receipt of the allowance.

6.7       It was not in dispute that the complainant had been in receipt of the fuel allowance during the winter months of 2012/2013 and that his allowance was cancelled by the respondent on 21st January, 2013 on the basis that an allowance was already being paid to a Social Welfare recipient in the household which he had nominated as his address (i.e. his representative Ms. Rosen’s household). The respondent was informed by Ms. Rosen that the complainant had been using her address for postal purposes only and that he did not actually reside at this address. The respondent was subsequently provided with details of the address of the caravan where it was claimed he was residing at that juncture. The respondent then conducted an investigation into the matter which concluded that he was not residing in this caravan at the stated address but rather was resident in his mother’s caravan where a fuel allowance was already in payment. The complainant was therefore informed that he did not meet the qualifying criteria for the fuel allowance on the basis that he was residing with a person who was a recipient of the allowance.

6.8       Having regard to the evidence adduced, I am satisfied that the respondent’s decision to cancel the allowance was taken after information came to light following a general review of the administration of the Fuel Allowance Scheme at that juncture that the complainant did not meet the relevant qualifying criteria for the allowance. I note the Respondent’s evidence that a total of 61 individuals, many of whom were not members of the Traveller community, who were in receipt of the fuel allowance were also subject to a similar investigation as part of this administrative review of the Fuel Allowance Scheme. I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the cancellation of this allowance or the manner in which the qualifying criteria were applied to the complainant was in any way connected or attributable to his identity as a member of the Traveller community. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of direct discrimination on the grounds of his membership of the Traveller community and/or ethnic origins in relation to the manner in which the rules and requirements governing the Fuel Allowance Scheme were applied to him by the respondent.

Claim of indirect discrimination

6.9       I will next consider whether the alleged treatment amounted to indirect discrimination contrary to Section 3(1)(c) of the Equal Status Acts. ‘Indirect discrimination’ is defined in Section 3(1)(c) of the Acts as: -

“where an apparently neutral provision puts 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”.

Section 3(3A) of the Acts provides that in any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.

Having regard to the provisions of Section 3(1)(c) of the Acts, in order to establish a case of indirect discrimination, it is necessary for a person covered by one of the proscribed discriminatory grounds to establish, on the balance of probabilities, that the apparently neutral provision, puts that person at a particular disadvantage compared to other persons not covered by that ground. If the person succeeds in this regard, it is then a matter for the respondent to successfully rebut the allegation of indirect discrimination, by way to prove that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. First of all, it is for the complainant to identify the apparently neutral provision which he seeks to impugn. ‘Provision’ is defined in the Acts to mean a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person.

6.10     In order for the complainant to succeed in his claim of indirect discrimination in the circumstances of the present case, it is necessary for him to establish, on the balance of probabilities, that the impugned neutral provision puts him, as a Traveller, at a particular disadvantage compared with non-Travellers. The qualification criteria administered by the respondent for the Fuel Allowance Scheme provide that it is a necessary for a person to establish proof of address in order to become eligible for payment of the fuel allowance in the first instance or in circumstances where an existing recipient of the allowance seeks to change his/her address. In the present case, I am satisfied that a situation arose following the cancellation of the complainant’s fuel allowance in January, 2013 whereby it became necessary for him to confirm his home address for the purpose of having his fuel allowance reinstated. It was not in dispute that the complainant was informed in writing by the respondent of the requirement to establish proof of address by providing a utility bill or bank statement. The complainant claims that the rule/requirement to establish proof of address by providing a utility bill or bank statement was an apparently neutral provision which puts Travellers at a particular disadvantage on the basis that they are less likely than non-Travellers to be able to such documentation in order to confirm proof of address for the purpose of meeting the requirement to avail of the fuel allowance.

6.11   In considering this matter, I have taken cognisance of the case of Stokes -v- Christian Brothers High School Clonmel & anor[1] where the meaning of the term “particular disadvantage” in the context of the provisions of Section 3(1)(c) of the Equal Status Acts was considered by the Supreme Court. In this judgement the Supreme Court has, in effect, set a high evidential barrier to prove “particular disadvantage”. Clarke J. held that this phrase should not be looked at in isolation but in the totality of the definition of indirect discrimination and stated that “the use of the term “particular” brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable”. In referring to the issue of whether particular disadvantage has been established, Clarke J. held that “it follows that, as a matter of law, the Director, or a court considering whether particular disadvantage has been established, must carry out a proper analysis of the extent of any disadvantage at which a protected group has been placed by reason of the ostensibly neutral measure in order, to determine whether that level of disadvantage is sufficient to meet the particular disadvantage test. As noted earlier, such analysis necessarily requires some statistical consideration.”. Clarke J. also highlighted the requirement for sufficient evidence and materials (including sufficiently robust statistical materials or analysis) to be made available and considered by the relevant deciding body or court to enable a proper assessment to be carried out as to whether there was, in fact, particular disadvantage. Clark J. further stated that “As the onus of proof lay on John Stokes it follows that the absence of sufficiently robust statistical materials or analysis in this case means that the decision of the Circuit Judge to find that there was particular disadvantage was wrong in law due to an absence of sufficient evidence”.

6.12     In applying the above reasoning to the instant case, I am satisfied that the complainant has failed to adduce any meaningful or cogent evidence (including statistical analysis) to establish that the rule/requirement to provide a bank statement or utility bill in order to establish proof of address for the purpose of eligibility to the Fuel Allowance Scheme puts members of the Traveller community at a particular disadvantage compared to non-Travellers. The complainant has relied on mere supposition unsupported by factual evidence in support of his contention that the impugned rule/requirement puts Travellers at a particular disadvantage compared to non-Travellers. In the circumstances, I find that the complainant has failed to establish a prima facie case of indirect discrimination in relation to this element of his complaint. Accordingly, I find that the claim of indirect discrimination fails.

Harassment

6.13     The final element of the complainant’s complaint which I must consider relates to the claim that he was subjected to harassment by the respondent contrary to Section 11 of the Equal Status Acts. The complainant claims that the results of the decision-making process surrounding the cancellation of his fuel allowance and the manner in which the decision was implemented by the respondent was offensive, humiliating and very detrimental to his health and well-being.

6.14     In order to raise an inference of harassment the complainant must establish that he was subjected to unwanted conduct by the respondent within the meaning of Section 11(5) of the Equal Status Acts which had the effect of violating his dignity and creating a hostile, humiliating or offensive environment for him. I heard direct evidence from a number of witnesses on behalf of the respondent who had interaction with the complainant in relation to his application for the fuel allowance. I have found the evidence of these witnesses to be credible and compelling in terms of their interaction with the complainant and I am satisfied that they did not engage in any conduct towards him which could be construed as harassment within the meaning of the Acts.

6.15     Having regard to the totality of the evidence adduced, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the complainant was subjected to harassment contrary to Section 11 of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.

7. Decision

7.1       In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that:

I.  The complainant has failed to establish a prima facie case of direct discrimination on the race or Traveller community ground within the meaning of Section 3(1)(a) of the Acts.

ii.  The complainant has failed to establish a prima facie case of indirect discrimination within the meaning of Section 3(1)(c) of the Acts.

iii.  The complainant has failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.

Accordingly, I find in favour of the respondent. 

_________________

Enda Murphy

Equality Officer/Adjudication Officer

5th June, 2018

[1] [2015] IESC 113