DEC-S2018-005

Equal Status Acts 

DECISION NO: DEC-S2018-005

Parties:

Patrick and Mary Faulkner and children.

(Represented by Ms. Heather Rosen)

V

Clare County Council

(Represented by Michael Houlihan & Partners Solicitors) 

Reference numbers:  ES/2005/0822-0839

Date of Issue: 27th March 2018 

1. Delegation under Equal Status Acts,

The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On 6th December 2016, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts the Director General delegated the case to me, Peter Healy, 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 Acts on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 6th March 2018.

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 83.3 of the Workplace Relations Act 2015.

2. Dispute

The dispute concerns a claim by Patrick and Mary Faulkner and children, that they were discriminated against due their membership of the Travelling community. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Acts, 2000 - 2004 contrary to Section 6(1)(c) of that Act. They also allege that they were harassed contrary to section 11 of the Act. The complainants allege harassment by four named administrators who worked for the respondent. Also, the Complainants allege that the respondent’s requirement that travellers be resident in the county before accessing particular traveller services is discriminatory, specifically the complainants allege,

“the indigenous clause has no equivalent in policies for the accommodation of settled people. The reality for Travelling people in Clare is that the clause embodies a catch 22 scenario of almost inevitable disqualification and thereby deprivation”

3. Summary of the Case

3.1       This case is one of a number of complaints referred to the Equality Tribunal during the period 2004-2006, on behalf of a large number of complainants, against the same respondents alleging discrimination in relation to housing, accommodation needs and related matters. Several complaint forms with a list of complainants attached were lodged with the Tribunal on behalf of each individual complainant.   All of the complainants have the same representative, Ms Heather Rosen. I commenced my investigation when the cases were assigned to me in December 2017. I have adopted the same procedure as used by the Equality Tribunal in relation to similar numbers of complaints in similar circumstances. I decided to associate the complaint forms by family groups so that each complainant family would have a separate hearing before the Adjudication Officer, as the same set of circumstances pertained to each family group. I also decided in the interest of the efficient management of the cases to arrange an initial call over. This approach has been addressed in Clare  County  Council v The Director of Equality Investigations and the Equality Tribunal v Mongan & Anors   [2011] IEHC 303. This call over was arranged for the 5th and 6th January 2017 and the WRC notified the Ms Rosen of these dates.

3.2     Despite repeated objections from Ms Rosen, that it would be impossible for the complainants to attend, the complainants attended the call over on the appointed date.

3.3 A date for the hearing of this complaint was set for the 6th March 2018.   Ms Rosen wrote to the Director General of the WRC and other senior staff members seeking an adjournment. Ms Rosen has been advised that such correspondence constitutes continued obstruction of my investigation.

3.4 Patrick and Mary Faulkner attended the hearing and I questioned them directly. Under direct questioning, even allowing for the passage of time, I am satisfied that the following is true,

1. The complainants are not aware what their complaint is. While they spoke at some length of general discrimination against them they had no idea of the complaint under investigation.
2. Have no understanding of how it was that their complaint was made.
3. The complainants have no knowledge of the complaint form that was used to lodge their complaint.
4. Do not know of the council officials against whom they are alleging harassment.

3.5 Under cross examining by the Respondent the complainants said that they would allocate available traveller housing in the same manner as the policy which is the subject of this complaint.

3.7 I accept that it is perfectly legitimate for a complaints representative to fill in, sign and lodge a complaint on behalf of the complainant. However, the complaint must originate with the complainant. The complainants in this case have no idea of what their complainants are and have presented no evidence.

4. Decision

4.1       In accordance with Section 25(4) of the Equal Status Acts, 2000 – 2004, I issue the following decision: as part of my investigation under Section 25 of the Act,

4.2 The complainants are not aware of their complaint and therefore have not established facts relating to the complaint under investigation from which it may be assumed that discrimination occurred.

(i)  the complainants have failed to establish the facts from which it may be presumed that the respondent discriminated against them on the Traveller community Ground. 

___________________

 Peter Healy

Adjudication officer

27th March 2018