Complainant

Respondent

Anonymised Parties

A Patient.

A Hospital.

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027039-001

06/03/2019

This case arises from a Complaint, by the Complainant, that she was treated in a discriminatory manner by the Respondent hospital in their treatment of her when she attended the hospital for a procedure on her foot.

The Complainant says that she had attended at the Respondent hospital for treatment for various health issues over many years.

She says that on the 16^th November 2018 she attended the Respondent hospital for an operation on her foot. She says that while in the operating theatre on that day she heard operating theatre personnel say to her “oh you’re the one with the strawberry naevus (birthmark), and we were just reading your letter to Mr.(consultant surgeon)”

She says that she was in theatre for an operation on her foot and that reference to her facial birthmark, in this way, was inappropriate and discriminatory in that it referenced her appearance,  and was prohibited conduct under the terms of the Equal Status Act, 2000.

She said that she corresponded with the Respondent in the aftermath of the incident, asking how this could happen and seeking in face-to-face meetings with the staff in attendance on the day concerned so that she could receive apologies and commitments that such behaviour would not be repeated.

She says that she was advised that her complaint would be investigated but that it would take some time. She says that she submitted her complaint by email to the Patient Experience Office on the 3^rd January 2019. When she had not received a reply to her questions she submitted the form ES1 to the Respondent on the 29^th January 2019. She says that she received no response to this notification.

She is seeking redress by way of apologies from the Respondent and compensation for the discrimination and victimisation suffered.

The Complainant asked specifically, in her circumstances, that this decision be anonymised.

The Respondent says that the Complainant attended the respondent hospital for elective surgery on her foot on the 16^th November 2019. They say that she entered the hospital holding bay at 10.48am, entered the anaesthetic room at 11.20 am and went into theatre at 11.50am.

They say that the Complainant says that the incident complained of occurred in the afternoon of the 16^th November 2019, whereas the hospital records confirm the above timings of the Complainant’s movement through the hospital on the day.

They say that the Complainant said that she was taken to theatre, without her glasses, was unable to see properly and was disoriented, but heard the conversation she has alleged, which she says discriminated against her.

They say that she submitted the ES1 form to the Hospital on the 29^th January 2019 and that, apart from complaints that she already submitted by mail, there were four other complainant requests for information, included in the ES1.

They say that in submitting the ES1 to the Respondent on the 29^th January 2019 she did not give the opportunity to the Respondent to respond or deal with the matters complained of in her initial complaint email to the Patient Experience Office on the 3^rd January 2019. They also say that there was no reason given for the delay in submitting this notification.

Because of this delay the Respondent submitted that the WRC did not have jurisdiction in this case insofar as Section 21(2)(a) of the Equal Status Act, 2000 provides that such notification be submitted to the Respondent within two months of when the prohibited conduct is alleged to have occurred and that the notification submitted to the Respondent fell outside this timeline.

The Respondent raised other issues in their submission:

(a)    The WRC has no jurisdiction in this case: Provision of services – Discharge of the burden of proof.

(b)    That there was no evidence of discrimination in contravention of the Act of 2000:

                             That the Complainant is obliged to prove the primary facts that would constitute       discrimination. They say that the allegations of discrimination have been made without corroborating evidence and following the respondent’s investigation there is a clear conflict with the evidence from the Complainant.

The Respondent rejects the complaint of discrimination by the Complainant and says that no evidence has been presented in favour of the complaint by the Complainant or any other witness.

I am bound to adjudicate on the issue, raised by the Respondent in relation to the jurisdiction of the Tribunal in this case. This arises from the time limit in the Act of 2000 within which the ES1 notification must be submitted to the Respondent. The ES1 must, per Section 21(2)(a) of the Equal Status Act, 2000, be submitted within 2 months of the incident complained of. This time limit may be extended in some circumstances, where “reasonable cause” is advanced for the delay in submission.

Was there reasonable cause advanced by the Complainant in submitting the ES1 for the delay in its submission. This was considered in the decision in Cementation Skanska -v – A Worker DWT0425, where “in the Court’s view, in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay”.

I have examined the causes advanced by the Complainant and I cannot see that the causes advanced should have resulted in the delay of the submission.

The Respondent refers to the case of Borsca – v – Bank of Ireland, ADJ-00010452 (4^TH September 2018) wherein the Adjudicator found that “However, there are strict notification requirements and these have not been satisfied in their entirety in this case. I appreciate that the complainant referenced the Equal Status Act in her complaint but there is a clear variance in the statutory notification requirement.

The purpose of the form is to allow the Respondent some time to engage with the Complainant with a view to seeking to resolve the matter. Provision is made for information sharing if some is requested by the Complainant.

The Complainant did not place the Respondent on notice of her intention to refer the case to the WRC if dissatisfied with the response received from the respondent. I appreciate that there was a clear duplication in the initiation of the complaints which culminated in confusion. However, I am required to ensure that all aspects of Section 21 of the Act have been met. On this occasion I have found a shortfall which has not been sufficiently explained or reasoned by the Complainant.

This omission has prevented my jurisdiction in the case and I must deny jurisdiction”

I believe that the circumstances in the present case lead me to the same conclusion. The time limit in the Equal Status Act, 2000 was breached and the explanations offered for this do not negate the rule or allow for variation of the rule.

I deny jurisdiction to myself as Adjudicator in this case.

I also, per the request of the Complainant, have decided to anonymise this decision due to the sensitivity of the issues raised.