Complainant

Respondent

Parties

Olumide  Smith

The Office of the Ombudsman

Act

Complaint Reference No.

Date of Receipt

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

CA-00026999-001

06/03/2019

The respondent named in this case is the Ombudsman.

On the ES1 Form the complainant refers to a named person, presumably an employee of the respondent, but this is not clear.

This is one of a number of cases arising from a hearing of the Workplace Relations Commission

On the ES1 Form the complainant refers to a named person, presumably an employee of the respondent, but this is not clear, who allegedly engaged in;

Threatening,  intimidating, degrading, offensive, and discriminatory acts cited in paragraphs 2 and 8 of the correspondence “Mr. Olumide Smith's reply to The Office of the Ombudsman's OUTLINE WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT and FURTHER WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT” which I issued to the Respondent[s] in relation to the Workplace Relations Commission's Hearing which the Respondent[s] attended on the 27th Day of November 2018.

The respondent named in this case is the Ombudsman.

As can be seen above, on the ES1 Form the complainant refers to a named person, presumably an employee of the respondent, but this is not clear, who allegedly engaged in alleged discriminatory acts.

The date of the incident complained of on the form is given as September 27th, 2018, not November, as stated, and this apparent discrepancy is not explained; September 27th was the date of the WRC hearing.

The complainant’s’ reply to the respondent’ just referred to was not submitted with the complaint.

There is some detail to be gleaned from the questions which the ES1 form provides for a complainant to put to a respondent.

Of the six questions four relate to the named employee engaged in alleged disrespectful behaviour mainly ‘coughing repeatedly’ in an offensive, threatening, abusive, offensive etc. way, and two relate to alleged breaches, one each of the Universal Declaration of Human Rights and of the European Convention of Human Rights.

The complaint, to the extent to which this can be discerned relates to the conduct of a party at a hearing of the Workplace Relations Commission.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaint against a party representative or witness representing the respondent which the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of race.

Whether, in a general sense the activities of the Office of the Ombudsman and its investigation services can be brought within the jurisdiction of the Equal Status Act, has been touched on in passing in a case which arose from the same WRC hearing which gave rise to this case.

The Office of the Ombudsman examines complaints from members of the public who believe they have been treated unfairly by a public body. It also examines complaints about public service organisations that fail to provide accessible buildings, services and information, as required in the Disability Act 2005.  

That case is Olumide Smith v The Office of the Ombudsman & Others [IEHC] 51 and the applicability of the Equal Status Act to Ombudsman investigations is referred to by the Court having noted that it was accepted by both the WRC and the Ombudsman that the Act did apply.

The Court indicated that it has some reservations on the point and that it would require a decision in a future case (at paras 29 and 102).

However, that is not an issue in this case. This does not relate to an investigation by the Ombudsman, but to proceedings at a hearing of the WRC.

The question here is whether a party which attends a formal hearing of the WRC in that capacity (i.e. as a party representative or witness) may be held liable for their actions under the Equal Status Act.

This in turn leads to two further questions; one whether a person attending a hearing is providing a service as defined by the Act and whether he is covered by general principles of immunity attaching to a party at a hearing.

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

Section 14 of the Equal Status Act 2000 as amended states that:

Certain measures or activities not prohibited.

14.— (1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i)                  any enactment or order of a court

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

The presentation of a complaint to the WRC, and the proceedings that follow cannot be seen as a service as defined at section 2 of the Equal Status Act 2000 as amended such as access to financial services; travel; cultural activities and recreational services.

In Fogarty v Employment Appeals Tribunal (DEC-S2009-087) the Equality Officer concluded:

4.8 I also find that the adjudication and decision-making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision-making function which is not subject to the terms of the Equal Status Acts. Therefore, I find that any aspect of this complaint which refers to the decision-making function of the respondent is misconceived

In ADJ-00011410 a preliminary matter was raised concerning the Judicial Immunity of a Statutory Tribunal. This complaint was also made under the Equal Status Acts about another statutory tribunal. 

 In relying on the Supreme Court judgement of Beatty v the Rent Tribunal [2006] 2IR 191, the Adjudication Officer determined that he had no jurisdiction to hear the complaint. In Beatty the Supreme Court approved of Lord Kilbrandon’s remarks concerning the immunity of a Statutory Tribunal:

I think it appropriate to cite a passage from the speech of Lord Kilbrandon in the House of Lords in Arenson v. Casson Beckman Rutley & Co. (for some reason named in the English Court of Appeal as Arenson v. Arenson) [1975] 3 All ER 901 at 918

“To these tribunals the citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable by the public agencies; like as before them the citizen must appear to answer claims or complaints against him. (This is subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere). The citizen does not select the judges in this system, nor does he remunerate them otherwise than as a contributor to the cost of government. The judge has no bargain with the parties before him. He pledges them no skills. His duties are to the state: it is to the state that the superior judge at least promises that he will do justice between all parties, and behave towards them as a judge should. I do not suppose that there is any English lawyer, and he would be a bold Scottish lawyer, who would say that here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant. It is for the state to make such arrangements as may be necessary for the correction of careless or erroneous judicial decisions; if those arrangements are deemed to be inadequate, it is for parliament to put the matter right. And if it be necessary to state the matter in terms of the law of tort, litigants are not persons to whom judges owe a legal duty of care û a duty which does not exist in the abstract, but only towards persons in particular relationships. The fact that he is under a moral duty is nihil ad rem. Judges in this context include, of course, persons forming tribunals and other bodies such as I referred to above.”

Olumide Smith v Labour Relations Commission (DEC-S2017-023) is a case about alleged racial bias by a named Rights Commissioner during the hearing of an employment rights complaint.

The Adjudication Officer stated at 4.17:

“parties who are dissatisfied with the outcome or conduct of an adjudicative process, rather than being able to claim discrimination under the Equal Status Acts, have two remedies open to them: An appeal with regard to the outcome, and judicial review in the superior courts for alleged defects in process. I am satisfied that these were available to the complainant as they are to any other litigant. That he mistakenly chose to bring the within complaint instead is therefore his responsibility. I am satisfied that the Commission has no jurisdiction in this matter, and that the complaint is misconceived in law.”

To this reference to ‘the outcome or conduct of an adjudicative process’ might be added, the behaviour of the parties, to the extent that it has a bearing on the conduct and, or the outcome, or the preparation for a hearing (as has arisen in another case).

In addition to the cases referred to, the position regarding the immunity from suit of a statutory employment tribunal and an adjudicator has also been addressed in previous decisions, and it is not necessary to repeat it here. (See, for example ADJs 9069, 9102, 1105 and 14549).

A party aggrieved by the conduct of another party, or, for example, who feels prejudiced or at a disadvantage in their preparation for a hearing has the additional opportunity to raise that at the hearing and seek guidance from the adjudicator, or an adjournment, and such time and opportunity as they need to address the issue.

Then they also have available to them the remedies referred to above, in particular the right to an appeal.

In this case the conduct related to a person coughing, which is a scarcely a matter that can be evaluated as a potential form of less favourable treatment at this distance from the event and could and should have been dealt with on the spot if it constituted an interference in the conduct of the hearing.

Even if the conduct complained of was intrusive or at an unacceptable level, the complainant faces the additional obstacle of establishing that it was such that it represented less favourable treatment of him than a comparator. (No comparator has been identified)

Then there is the further obstacle of establishing that the named respondent has some liability for one of its agents coughing in the course of a hearing.

This claim is misconceived as it is incorrectly based in law for all of these reasons. 

The respondent was a party to a quasi-judicial process and not engaged in the business of the delivery of a service as defined by the Equal Status Act.

A WRC Adjudication and the decision-making function of that role is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. By logical extension, the conduct of a party in the course of a hearing is similarly protected.

The complainant has not made out prima facie case or identified a comparator and I find that I have no jurisdiction to investigate the above complaints.

Section 22 of the Equal Status Act 2000 as amended states:

22. — (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

As I have formed the opinion that the claim is misconceived pursuant to section 22 I dismiss the claim.

For the reasons set out above I find that Complaint CA-26999-001 is misconceived pursuant to section 22 and I dismiss the claim.

Equal Status Act, Misconceived, Section 22.