DEC-S2019-010

EQUAL STATUS ACTS, 2000 to 2015

DECISION NO. DEC-S2019-010

PARTIES

Caroline Sherlock, John Sherlock & their seven children

(represented by Ms. Heather Rosen)

-v-

The Minister for Employment Affairs and Social Protection

(represented by Mr. Mark Finan B.L. on the

instructions of the Chief State Solicitor)

File reference: ES/2014/059

         Date of issue: 26th November, 2019

1. 1. Complaint

1.1       This complaint concerns a claim by the complainants that they were discriminated against by the respondent on the grounds of their race (ethnic origins) and membership of the Traveller community in terms of Sections 3(1)(a), 3(2)(h) and 3(2)(i) contrary to Section 5 of the Equal Status Acts in relation to the manner in which their application for an Exceptional Needs Payment was dealt with.

•       Background to the Claim

1.1      The instant complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 24th March, 2014. On the Complainant Referral Form the list of complainants were named as Mr. John Sherlock, Mrs. Caroline Sherlock and their seven children and the complaint was referred against four named officials who were employed by the Minister for Employment Affairs and Social Protection at the material time in question.

1.2   On the 27th March, 2017, in accordance with his 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, under Part III of the Equal Status Act, 2000 on which date my investigation commenced.

1.3       On 7th February, 2019, I issued a direction to the parties granting an extension of time in respect of the time limits for the notification of the complaint in accordance with the provisions of Section 21(3)(a) of the Equal Status Acts. The Director General of the WRC has duly delegated his functions to me under the Acts to issue such a direction.

1.4       As required by Section 25(1) and as part of my investigation, I scheduled a hearing in relation to this complaint on 7th November, 2019. The parties were notified of the arrangements for the hearing by letter dated 11th October, 2019 which was sent by ordinary and registered post.

1.5       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. Request on behalf of the complainants for recusal of the Adjudication Officer from the investigation

2.1       By letter dated 31 October, 2019, the complainants’ representative, Ms. Heather Rosen, requested that I recuse myself from proceeding with the investigation of this complaint. Ms. Rosen stated that I had previously conducted investigations in relation to a number of other complaints under the Acts involving the parties to the instant complaint in which I had ruled against the complainants. Ms. Rosen argued that it would be unjust and prejudicial for me to proceed with the investigation of the instant complaint in light of the fact that I have already ruled against the complainants in relation to other complaints under the Acts which relate to similar matters.

2.2       The request for recusal was brought to the attention of the respondent. By letter dated 5th November, 2019, the respondent’s representative objected to the request for recusal by Ms. Rosen and stated that the Adjudication Officer/Equality Officer concerned had at all material times been fair and comprehensive in his dealings with both parties. It was stated that the Adjudication Officer/Equality Officer had given reasons in support of his decisions in relation to the previous complaints and to the best of the respondent’s knowledge the complainants had not appealed these decisions.

2.3       I informed Ms. Rosen on 5th November, 2019, that having carefully considered the contents of her letter dated 31st October, 2019, I was satisfied that there was no basis for my recusal from proceeding with the investigation in relation to the instant complaint. In making my decision not to accede to the request I considered the relevant case law in the area of bias and applied the test in relation to bias set down by the Supreme Court in the case of Goode Concrete v CRH [2015] 3 IR 493. It was held by Denham CJ in this judgement that the correct test for bias in Ireland is an objective test:

“54. The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.

55. The test to be applied when considering issues of perceived bias is important in protecting the administration of justice, and necessary to preserve public confidence in the judiciary. Thus, the issue is not simply a matter as between parties, but it is an issue for consideration in relation to the manifest impartial administration of justice in the State, and the confidence which the people rest in the judiciary.”

2.4       Therefore, the test that should be applied to the request that I recuse myself from the investigation of the instant complaint is an objective test. It is a matter for the complainants to produce evidence in support of their application for recusal. In this case the reason advanced by Ms. Rosen for requesting that the instant complaint be investigated by another Adjudication Officer/Equality Officer was that I have held against the complainants in relation to a number of other complaints under the Equal Status Acts (DEC-S2019-001-4 refers).

2.5       In this regard, it should be noted that the complainants have referred a number of separate complaints against the respondent under the Acts alleging discrimination in relation to the manner in which a number of applications for Emergency Needs Payments were dealt with by a number of named officials employed by the respondent. The said applications for Exceptional Needs Payments were made by the complainants during the period from 2013 to 2014. The instant complaint relates to the alleged discriminatory manner in which the respondent dealt with one such specific application for an Exceptional Needs Payments which was refused on 17th September, 2013 and the alleged discriminatory requirements applied by the respondent when assessing this application. Therefore, my investigation of the claim of discrimination in the instant complaint is confined to the specific set of facts and circumstances surrounding the interaction between the parties during the material period in question in relation to this particular application for an Exceptional Needs Payment. I am satisfied that the complaints which I have previously investigated relate to different applications which the complainants made for Exceptional Needs Payments and these complaints were decided on the basis of the facts and circumstances applicable at the material time relevant to those specific complaints.

2.6       In applying the test enunciated by Denham CJ in the above judgement, I am satisfied that the complainants have failed to establish that a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that the they would not be afforded a fair and impartial hearing in the event that I was to proceed with my investigation of this complaint. In the circumstances, I am satisfied that the complainants have not met the test for bias.

2.7       Ms. Rosen sent further letters to the Director General of the WRC on 5th and 6th November, 2019 in which it was requested that the statutory functions that have been delegated to me to investigate the instant complaint be revoked and that the hearing which was scheduled for 7th November, 2019 be postponed. The Head of the WRC’s Post Registration Unit replied to Ms. Rosen by e-mail dated 6th November, 2019 in response to the matters raised. The Officer concerned informed Ms. Rosen that the powers vested in the Director General in terms of the assignment of cases to Adjudication Officers for investigation have been delegated to him, and consequently, that he was in a position to review the matters raised in her correspondence as regards the hearing of the instant complaint which was scheduled for 7th November, 2019. It was pointed out to Ms. Rosen that her initial application for a postponement was refused, as it did not meet the required standard of “exceptional circumstances and substantial reasons”. The Officer informed Ms. Rosen that having reviewed the initial application for a postponement that he was not satisfied that there was any basis to alter that decision and consequently, that decision stood. It was confirmed, for avoidance of doubt that the hearing listed for 7th November, 2019 would proceed as scheduled.

2.8       Ms Rosen was referred to the provisions of Section 75(7) of the Employment Equality Act (as amended), in response to the request to revoke the delegation of functions to the Adjudication Officer, which provides as follows:

“Where the Director General of the Workplace Relations Commission has delegated to an officer the function of hearing a case referred to the Director General of the Workplace Relations Commission under section 77 or 86, or under section 21 of the Equal Status Act 2000,

(a) the delegation shall be taken to include the power to issue a decision in the case,

(b) the function may not be exercised concurrently by the Director General of the Workplace Relations Commission and

(c) the delegation may not be revoked or varied except at the request of the officer to whom the function was delegated or if there are exceptional circumstances preventing that officer from acting (or continuing to act).”

Ms. Rosen was informed that the Director General had already delegated the powers to investigate the complaint to me and to issue a decision setting out my conclusions at the end of that process. Ms. Rosen was informed that, having regard to the provisions of Section 75(7) of the Act, the Director General could not accede to her request that the delegation of functions to me in relation to this matter be revoked.

3. Failure of the Complainants to Attend the Hearing on 7th November, 2019

3.1       The complainants’ representative, Ms. Rosen, was in attendance at the hearing on 7th November, 2019 but the complainants did not attend. The respondent and its legal representatives were in attendance together with three witnesses and was ready to proceed with the hearing.

3.2       Ms. Rosen indicated that it was not possible for Mr. and Mrs. Sherlock to be in attendance at the hearing and she made a further application for a postponement of the hearing, on their behalf, on the grounds that Mr. John Sherlock was attending a doctor’s appointment and Mrs. Caroline Sherlock was minding one of her children who was ill. Ms. Rosen did not provide any medical evidence or documentation to support her application for a postponement. The respondent strenuously opposed the application for a postponement of the hearing and submitted that the complaint should be struck out at this juncture for want of prosecution in light of the complainants’ failure to attend the hearing.

3.3       Having carefully considered this matter and the submissions of both parties, I have decided not to accede to the complainants’ application for a postponement of the hearing in relation to this complaint. In arriving at my decision in this matter, I have taken into consideration that the WRC has a clear procedure for postponements. It states that postponements will only be granted in exceptional circumstances and for substantial reasons. The application must also be accompanied by relevant supporting documentation. The WRC applies this test to all requests for a postponement. This procedure is clearly set out in the hearing notification letters and would be well known to a representative such as Ms. Rosen, who is familiar with the procedures of the WRC and its predecessor body, the Equality Tribunal. I am satisfied that Ms. Rosen failed to comply with the WRC’s procedures in relation to the application for a postponement of the hearing on 7th November, 2019 and did not provide the relevant supporting documentation underpinning the application.

4. Application to proceed with the investigation on the basis of written submissions

4.1       Ms. Rosen also submitted that the investigation of this complaint should be dealt with on the basis of written submissions only in accordance with the provisions of Section 25(2A) of the Acts in light of the complainants’ inability to attend the hearing on 7th November, 2019.

4.2       The respondent disputes the contentions made by Ms. Rosen in relation to the application of the provisions of Section 25(2A) of the Acts and submitted that the hearing cannot proceed in the absence of the complainants. The respondent submitted that the provisions of Section 38A clearly set out the burden of proof which applies in relation to complaints of discrimination under the Equal Status Acts. This provision provides that the onus rests with the complainants in the first instance to establish facts from which it may be presumed that discrimination has occurred in relation to them. The respondent submitted that the complainants can only establish such facts if they attend an oral hearing to adduce evidence in support of their complaint. It was also submitted that fair procedures require that the respondent should be afforded the opportunity to cross-examine and challenge any assertions relating to discriminatory treatment which have been made by the complainants and this could only be achieved if they attend a hearing in relation to the matter.  

4.3       In considering this issue, I note that the provisions of Section 25(2A) of the Equal Status Acts provide that the Director General (or an Adjudication Officer having been delegated the relevant powers) may form the view that the investigation of certain complaints can be dealt with by written procedure without the requirement to have an oral hearing with the agreement of the parties. Paragraph (d) of Section 25(2A) provides that: “Where, in representations made pursuant to paragraph (c), objection is made to the Director General of the Workplace Relations Commission dealing with the matter on the basis of written submissions only, the Director General of the Workplace Relations Commission shall not determine the matter in that manner”. I note that the respondent has clearly conveyed its objection to having this complaint dealt with on the basis of written submissions only. In the circumstances, I am satisfied that I am precluded from invoking the provisions of Section 25(2A) of the Act in relation to the investigation of the instant complaint.

4.4       I would also point out that the burden of proof which applies in relation to complaints under the legislation is set out in Section 38A of the Acts which provides that: “(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary”. This provision requires a complainant to establish, in the first instance, facts upon which s/he can rely in asserting that prohibited conduct has occurred in relation to him/her. 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. It is a well-established principle in the prosecution of complaints under equality legislation that the complainant is required to attend the oral hearing to establish the primary facts underpinning the claims of discrimination. It is also clear that the principles of fair procedures and natural justice require that a respondent should be afforded the opportunity to cross-examine and challenge any assertions relating to discriminatory treatment which have been made by a complainant and that this can only be achieved if they attend a hearing in relation to the matter.

4.5       Having regard to the foregoing, I am satisfied that there is a requirement on the complainants to attend the oral hearing to establish the material facts in relation to their claim of discrimination contrary the Equal Status Acts.

5. Decision

5.1       As part of my investigation under Section 25 of the Equal Status Acts, I am obliged to hold a hearing. I am satisfied that the complainants were notified of the arrangements for the hearing on 7th November, 2019. I find that the complainants’ failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25 has ceased. As no evidence was given at the hearing in support of the allegations of discrimination, I conclude the investigation and find against the complainants.

_________________

Enda Murphy

Equality Officer/Adjudication Officer

26th November, 2019