ADJ-00021147

Complainant

Respondent

Parties

Frank Kelly

Ionic Newspapers Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027981-001

16/04/2019

The Claimant lodged his complaint with the WRC on the 16th of April 2019. He stated he was discriminated against on grounds of his sexual orientation as is prohibited by Section 3(2)(d) of the Equal Status Act 2000 as amended. He stated the first incident of discrimination was the 25th of March 2018 and the most recent date of discrimination was the 28th of December 2018. He advised that that he notified the service provider with his ES1 Form on the 25th of February 2019 in compliance with the requirements of Section 21(2)(a). The ES1 form was presented to me. It was dated the 3rd of February 2019. I was furnished with a postal delivery code with a signature delivery dated the 25th of February 2019. The Respondent raised no issue about the date of service of the ES1 Form. I was advised of a settlement of an earlier referral to the WRC which was entered into between the parties on the 9th of November 2018. This is in relation to the Claimant’s request for a birthday remembrance to be published by the Respondent. The request was in March 2018. I accepted that I had jurisdiction to hear this complaint as regards the request to publish a Christmas notice/greeting by the Claimant on the 14th of December 2018. An application was made by the Respondent to anonymise the parties names.   Equality cases are not anonymised without good reason. In this case the family of the deceased were not party to the proceedings and for that reason I have not named them or the deceased.

The Claimant’s case is that his partner in life died on the 26th of July 2017. He placed an advertisement in the family announcements section of one of the Respondent’s regional newspapers on the 1st of September 2017 noting the month’s mind of his partner’s death. This was published by the Respondent. He also placed a further advertisement in the family announcements on the 22nd of December 2017 being a Christmas message for his late partner. This was also published. His request for a birthday remembrance in March 2018 was the subject of an earlier adjudication reference which is now closed. Following that mediation, the Claimant submitted a Christmas greeting message to the Respondent on the 14th of December 2018. The Respondent declined to print the Christmas greeting and advised that it was on the instructions of the next of kin of the deceased. The Claimant’s case is that he was discriminated against on the grounds of his sexual orientation. He advised that his request would not have been refused the publication if it were not for his sexual orientation. The Claimant felt that the Respondents explanation as to its refusal to publish the advertisement was unreasonable. The Claimant submitted that his late partner’s family have refused to acknowledge their gay relationship. The Claimant wished to rely on the settlement of the earlier mediated agreement. The Claimant submitted that because of the Respondents failure to publish the Christmas greeting, his life was left in a state of torment and pain.   He was treated like a body with no feelings. All the Claimant wanted to do was to be allowed to express how much he missed his late partner especially at Christmas time and to be treated like any other loving couple in bereavement, a time of great loss and sorrow. The Claimant submitted that the Respondent had inflicted mental torment on him and more grief than needed. He explained that the failure by the Respondent to print the Christmas message stopped him from grieving properly.

The Regional Managing director of the Respondent gave evidence. He confirmed that the newspaper did publish two notices at the request of the Claimant.He confirmed that on the 22nd of November 2018 he received a letter from a firm of solicitors. They advised that they represented the Legal Personal Representative of the deceased and that they required sight of any future notices which might be published regarding the deceased. The letter set out “our client wants you to ensure that no memorials, notices, messages or such like are to be published …... relating to the deceased without prior notice to us so that we can consider and advise on whether such notices in question are appropriate for publication having regard to all the surrounding circumstances”.  On the 14th of December 2018 the Respondent did receive a request for a Christmas greeting for publication from the Claimant. The Regional Managing Director confirmed that he contacted the Claimant and advised him of the letter from firm of solicitors that he had on file. The witness sent a copy of the letter from the solicitors to the Claimant. He emailed the firm of solicitors and attached the request for publication from the Claimant. This took place on the 17th of December 2018. The solicitors replied on the same date advising “under no circumstances should the Claimant’s communication and/or notice be published by you”. The Respondent’s case is that they had no legal reason to doubt the authority of the solicitor’s or that they were the Legal Personal Representatives of the deceased. In those circumstances they decided not to print the notice. They are required to respect the views and instructions of the next of kin and legal Personal Representative. The witness explained that this decision would be made irrespective of the gender or sexual orientation of any of the parties concerned. The Respondent set out that they were simply caught in the middle of a row between the family of the deceased and the Claimant. The Respondent was advised that the Claimant was a stranger in law to the deceased and they could not adjudicate on the legal rights or wrongs of who was the next of kin. The Respondent confirmed they were prepared to publish any reasonable notice in good faith and had done so in the past until objection was made by the deceased’s legal Estate.

At the hearing, the Claimant confirmed that he was not the spouse or the civil partner of the deceased. Section 5(1) of the Equal Status Acts provides that a “person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” None of exceptions to Section 5(1) as set out in section 5(2) apply in the circumstances of this case.

Prima Facia Case

The burden of proof in complaints made under the Equal Status Acts is set out in section 38A which provides that: 38A.— (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. In relation to the burden of proof and pursuant to section 38A of the Equal Status Acts, the Claimant is required to establish a prima facia case which requires the Claimant to demonstrate (i) that he is covered by the relevant discriminatory grounds, (ii) that there was specific treatment by the Respondent and (iii) that the Claimant was treated less favourably than what would have been afforded to another person. Once the prima facie case has been established the burden of proof shifts to the Respondent to rebut the presumption of discrimination. I have reviewed the evidence presented to me at the hearing both in writing and orally. I note that the Respondent did publish two previous notifications requested by the Claimant. The Respondent had no issue regarding the publication of these. The Claimant was notified by the Respondent as to why it did not publish the requested Christmas greeting in December 2018. Had this intervention by the Deceased’s family not taken place, I have no reason to believe that the Christmas greeting would not be published.   I accept the Respondent’s evidence that it did not decline to publish the Claimant’s Christmas wish notice based on his sexual orientation. I accept that this was due to the intervention of the next of kin of the deceased. The Respondent had published two earlier notices at the Claimant’s request in 2017 referring to the deceased. I was provided with copies of the newspapers that contained these two notices. The Claimant has not established that he was treated less favourably in the failure of the Respondent to print a third notice in December 2018 due to his sexual orientation. Based on same I find that the Claimant has not made a prima facia case of discrimination.  

The case is not well founded.

Prima facie case