Complainant

Respondent

Anonymised Parties

A complainant

A state agency

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019578-001

29/05/2018

The complainant referred his complaint on 29 May 2018. On 14 August 2018, the complaint was delegated to me by the Director General for investigation and decision. I held a joint hearing with the parties on 27 September 2018. The final item of correspondence was received from the complainant on 30 October 2018.

The complainant belongs to a Western African people. He complained to the respondent about another state agency, whose services he sought in connection with a protracted legal dispute.     The complainant’s complaints were not successful. The complainant opened the relevant correspondence with the named officials of the respondent who examined his complaint at first instance and on internal appeal, to the Commission. It is the complainant’s case that this amounts to discrimination on the ground of race. The complainant read out a lengthy prepared statement, which included several pages of references to a variety of UN and EU human rights instruments, legal provisions which are wholly outside of the Commission’s jurisdiction.

The complainant maintained that the respondent’s denial of knowledge of his race was disingenuous, given that his name clearly marks him as a person of African descent.

The complainant accepted that he has no comparator as defined in Section 3 of the Equal Status Acts, but argued that he should be allowed a hypothetical comparator as per the provisions of Section 3(a).   He stated that in his opinion, the complaint of a white Irish person against the same state agency would have been successful.

The complainant also specifically complained that being cut off on the respondent’s telephone system when he phoned to make inquiries and being told that a named official of the respondent’s was on annual leave during the Easter school recess, were discriminatory acts on the ground of race.

The complainant, during the hearing of the complaint, also complained of indirect discrimination.

The respondent denies discriminating against the complainant, and notes that the complainant has not established any prima facie case of discrimination on the ground of race.

Before I go into deliberating on the evidence in the within case, I wish to note that the complainant threatened me with “disciplinary proceedings” when I advised him that I lacked jurisdiction to entertain his complaints under various UN and EU human rights instruments. For the avoidance of doubt, I wish to affirm that the Adjudication Service of the Workplace Relations Commission is a statutory tribunal of limited jurisdiction, and that any infringements under these instruments are a matter for the superior courts and international legal fora.  

The complainant stated that all state bodies, including the Workplace Relations Commission and the respondent to the within claim, have an obligation to carry out their functions in a manner that is compatible with the European Convention of Human Rights. I accept that this is indeed the case, pursuant to Section 3 of the European Convention of Human Rights Act, 2003.   However, there was absolutely no evidence adduced that the complainant lacked access to legal remedies, as he alleged, or that his other human rights were breached in the context of his successive interactions with state bodies. At any rate, Section 3(2) of the European Convention of Human Rights Act, 2003 specifies the Circuit Court or the High Court as the appropriate fora to bring any such complaint, either against the within respondent or against the Commission.

The complainant, who had been unsuccessful in two previous complaints under the Equal Status Acts heard by me, also accused me of bias and asked me to recuse myself. I refused to do so. I wish to note here again that I wholly reject the complainant’s allegation.

Turning to the complaint itself, then, and having reviewed the written communications and email chains between the complainant and the respondent which the complainant opened at the hearing, I cannot see the slightest evidence of racial discrimination, even taking the complaint at its height and granting the complainant the use of a hypothetical comparator. The reasons given by the officials of the respondent who examined the complainant’s complaints for his lack of success are cogent and underpinned by the provisions of the relevant legislation. It is the complainant’s contention that the respondent failed to follow up his complaints against the other state agency properly, but there is simply no evidence beyond the complainant’s allegations to support this. Furthermore, there is absolutely nothing to indicate that a hypothetical white Irish person would have fared any differently in the same situation.   Neither can I detect any racial animus, never mind discrimination within the meaning of the Equal Status Acts, in the fact that the complainant got cut off on the respondent’s phone system, or that the named official who was dealing with his file was on annual leave during the school holiday period.

The complainant also did not adduce any evidence of harassment on the ground of race.   Section 11 of the Equal Status Acts defines harassment as

“(5) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a) , such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”. [Emphasis added].

The complainant did not adduce any evidence of acts by the respondent or its officials which fit this definition, i.e. being related to his race.   From the totality of his evidence, it is clear that the complainant felt poorly treated by the respondent and considered that fact to be harassing. A complaint received by email post-hearing about one named official of the respondent may serve as an example here:

“I insisted on presenting the Statement / Submission […] and several times, [a named official of the respondent], who is someone of the Caucasian racial or ethnic origin, coughed at me in a threatening, intimidating, degrading, and offensive manner during my read out, while he failed to cough at other Times that the Respondent's Lawyer or the Adjudication Officer spoke.” [Emphasis in the original.]

I am satisfied that such behaviours simply do not break the needed threshold of connection to someone’s race to constitute racial harassment under the Acts.

Last, to address the complainant’s complaint of indirect discrimination: Indirect discrimination is defined in Section 3(1)(c) of the Equal Status Acts as occurring

“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.”

This provision exists to address barriers in service provision, for example a requirement for written documentation which persons with literacy problems may find difficult to fulfil. It is then up to a particular service provider to show the necessity for such an approach, and how it meets the test set out above. I am satisfied that the complainant adduced no evidence of any provisions in the respondent’s service offering which would have put him personally at a particular disadvantage.   The complainant is highly intelligent, articulate, and assertive and all the evidence adduced shows that he did indeed avail himself of the respondent’s services. I therefore cannot accept that any structural barriers related to the complainant’s race existed which prevented him from doing so.

For all of these reasons, the complainant’s complaints of direct and indirect discrimination, and of harassment, must fail.  

I find, for the reasons set out in detail above, that the respondent state agency did not discriminate against the complainant, either directly or indirectly, and that it did not harass him on the ground of his race within the meaning of the relevant provisions of the Equal Status Acts 2000-2015.

Race - European Convention of Human Rights Act, 2003 – breaches a matter for the superior courts – discrimination – indirect discrimination – harassment – no prima facie case.