Representatives

Nolan Farrell & Goff Solicitors & Notaries

Act

Complaint Reference No.

Date of Receipt

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

CA-00021784-001

06/09/2018

The Complainant is a bookmaker and he sent a form ES1, a notification of discrimination under the Equal Status Acts, to the Respondent stating that he had been treated unlawfully, that he had been discriminated against, harassed and victimised.

He referred to an enclosed photograph of cars in a car park at the Respondent’s premises and said that a car parked in a disabled parking area belonged to a colleague, who did not hold a disability badge, but he said was allowed to park there, and had the convenience of being close to the entrance of the racecourse. The Complainant said that he was not allowed to park there and was forced to park further way at the back of the car park away from the entrance, in the general car park.

The Respondent raised a number of preliminary objections to the case proceeding and the following is the Complainant’s response to those objections.

(1) When asked the date the alleged event occurred, which was not mentioned on the Referral form to the WRC, the Complainant did not have an exact date. He said that it was “probably the 3rd week in August 2018”.

(2) When asked what the discriminatory ground of discrimination, harassment or victimisation, which was no recorded on the Referral form to the WRC, he said he did not know what the reason was. He said, “some people are just treated better than others” and he asked the Respondent to explain why his colleague was allowed to park close to the entrance and him not. He asked the Respondent to explain what the appropriate discriminatory ground(s) were.

(3) When asked to comment whether the named Respondent is the correct Respondent in this case, as the named Respondent had indicated that the parking services was the responsibly of another entity, he said that maybe he should have named both entities.

The Respondent said that the Complainant’s case should be dismissed and raised the following preliminary objections.

The burden of proof is with the Complainant to make out his case under the Equal Status Acts and he has failed to do. It said that the documents filed to date, both the notification form (ES1) and the complaint referral form, are confusing and lack the necessary information for the Respondent to prepare a defence.

The Respondent said that the Complainant has named the incorrect Respondent. A named 3rd Party is responsible for providing the parking at the Racecourse for 20 years and the Complainant, who is a bookmaker and regularly attends the racing events there, would be well aware of that.

The Respondent said that the Complainant has not provided the date of the alleged incident, the responsible persons and most importantly the protective ground with which the discrimination is alleged. The Respondent said that these were not provided, and it would object to the late inclusion of these facts as the time limit for filing the complaint has now well passed.

At the outset I informed the parties that I will consider the preliminary matters raised and decide on these matters definitely prior to considering the substantive matters.

I informed the parties that should I find in favour of the Respondent on the preliminary matters then I will issue a decision accordingly, and I shall not be considering the substantive matter. Conversely, should I find against the Respondent on the preliminary matters raised I will then consider and decided upon the substantive matters under the Equal Status Acts.

On the day of the hearing the Complainant had indicated that he had not seen the Respondent’s submission including the preliminary matters before the Hearing. The Respondent said that those submissions had been posted to his address and sent to the Workplace Relations Commission some days in advance of the hearing. I gave the Complainant an opportunity to read the submission and said that I will be inviting him to comment on each of the preliminary objections raised.

A summary of the preliminary objections raised, and the Complainant’s reply are noted above.

Conclusion

Having considered the evidence in the case before me, I am mindful of the scope of the Equal Status Act and its intentions for society. It is clear that the Equal Status Act does not prohibit all forms of discrimination. It is very specific and limited to a particular set of protective grounds or discriminatory grounds. Section 3 of the Act reads,

“Discrimination (general).

3 - (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 ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

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.

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

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different civil status (the “civil status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

(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”),

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).”

Protection on other grounds not contained on this list are not considered discriminatory grounds under the Equal Status Acts.

The first essential element for the Complainant to identify is one or more of the grounds of discrimination under the Act. The Complainant had indicated “Age and victimisation” on the notification Form ES1 to the Respondent but had failed to identify these grounds of alleged discrimination on the Complaint Referral form to the WRC. When I asked him to clarify his position here, he said that some [bookmakers] were treated better than others.

I referred to the nine grounds of discrimination contained on the forms and asked him what the ground(s) of his complaint was, and why he felt he was treated less favourably. The Complainant said he did not know, that I should ask the Respondent that question in relation to the most appropriate ground for discrimination in this case under the Equal Status Act. I advised the Complainant that it was his case and it is up to him to make his case, notwithstanding, he failed to identify the ground to which this complaint was under.

I am satisfied that the burden of proof rests with the Complainant to establish a prima facie case. As part of that burden the Complainant must identify and then establish at the very minimum the discriminatory ground which he believes that he received less favourable treatment and that ground must be one of those contained in Section 3 of the Acts as listed above. The Complainant has failed to do this, and I determine that is fatal in his case.  

The Respondent in its preliminary objections has asked me to consider those objections and asks whether the Complainant’s case should fail in the first instance and the hearing of the complaint should not proceed at all.

With that in mind I have considered Section 22 of the Equal Status Act, which reads; “22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.”

I note the meaning and scope of the word ‘misconceived’ has been set out by the High Court in Keane v Minister for Justice [1994] 3 IR 347.  Here Lynch J. found that the Minister for Justice had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the Council to this effect was therefore ‘wholly misconceived and invalid’. The Judge in her decision said that a claim is misconceived if it is incorrectly based in law.

I also note that a complaint is considered misconceived if it can have no prospect of success. In a case before the High Court, Flanagan v Kelly (No. 1997 No. 3832P High Court) Mr. Justice O'Sullivan stated that where there is satisfactory evidence that ‘the proceedings are unsustainable in the sense that they must fail. In these circumstances the Court must stay the action.’ I am satisfied that this case falls into that bracket of cases that has no prospect of success.

The Complainant has brought a complaint under the Equal Status Acts without the complaint being anchored by one or more of the discriminatory grounds. The Complainant has failed to establish any nexus between the alleged treatment and any protected ground under the Act. Therefore, I find that the complaint of discrimination on none of the grounds under the Equals Status Acts amounts to a case that is misconceived and cannot succeed. Accordingly, I dismiss the complaint as misconceived pursuant to Section 22 of the Acts.  

The complaint of discrimination in this case is misconceived and I dismiss the claim under Section 22 of the Equal Status Acts.

Equal Status Acts – misconceived – no ground selected