Complainant

Respondent

Parties

Francis Eneas Kearney

Workplace Relations Commission

Representatives

 Self-represented

Cathy Smith, SC

Act

Complaint Reference No.

Date of Receipt & Registration

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

CA-00042596-001

03/01/2021 and 19/01/2021

The complaint relates to interactions the complainant had with the respondent, the Workplace Relations Commission, in seeking to bring other Equal Status complaints. The complaint relates to direct and indirect discrimination and harassment on grounds of disability. The respondent denies the claims.

The Equal Status Act requires a claimant to ‘seek redress’ or to ‘make a claim’ to the Workplace Relations Commission. Prior to taking this step, a claimant is required to notify the respondent of the allegation and the intention to seek redress under the Act (the notification requirement can be dispensed with.) Both steps – ‘seeking redress’ and ‘notifying the respondent’ are set out in the Equal Status Act and are mandatory (subject to notification being dispensed with). The WRC has prepared documents to cater for both steps: the WRC complaint form and the ES1 form. The forms themselves are not mandatory.

The complainant outlined that he established Medical Negligence Ireland in 2019 to help people with disabilities. He outlined that he wished to take a case against a newspaper as it had published a story without his consent. He said that the newspaper had degraded him. He outlined that this complaint was submitted to the Workplace Relations Commission well before the summer of 2020. He re-sent the complaint in October 2020.

In respect of the respondent, the complainant outlined that the process was not up to scratch and needed to be improved. It was hard to contact the respondent by phone. He had submitted complaints to the respondent and had been asked to provide addresses. He said that the addresses were well-known, and he should not have had to provide them. He was then sent out about 20 full complaint forms and there were about 1,000 pages.

The complainant outlined that in one phone conversation, the employee of the respondent had hung up the phone. He had phoned the respondent after receiving a letter from the WRC to say that the ES1 form was mandatory. He had wanted to check whether this was the case. In the phone call, the respondent employee told the complainant that the ES1 form was mandatory.

The complainant outlined that it was frustrating for him to make phone calls as he is deaf. He outlined that he could not manage the pitch of his voice and he, therefore, had a loud voice. He said that the manager phoned him after the first phone call ended and the manager apologised.

The complainant said that he wanted the ES1 form to be ‘abolished’. While he had received the multiple copies of the complaint form, he had not used them, and his complaints were later all processed. He outlined that the complaint against the newspaper was 100% complete and should have been processed without being referred back to him.

The complainant outlined that the respondent had asked for more information. He believed that they did not need this additional information. He had supplied the address of the newspaper but not of other public bodies.

The complainant outlined that the complaint of harassment related to the impact on him of getting all the complaint forms, as well as the phone call. He acknowledged that the majority of people he spoke with on the phone were decent and very helpful. He outlined that there should be fewer automated emails and more communication with people bringing cases.

The complainant said that the first flaw was being told that the ES1 form was mandatory. The second was being sent 1,000 pages of complaint forms. He outlined that an apology was due to him for the phone call. The fourth flaw was being asked to produce unnecessary information. There should not be a statute of limitation to restrict people making complaints. There was also confusion regarding the place of the Equal Status Act in the Workplace Relations Commission, as the Equal Status Act was for service users and not employees. He cited an example where a hospital manager had replied to his Equal Status complaint by saying that he was not an employee. The complainant said that the respondent had said he had made complaints against a body when this was not him.

The complainant accepted that everyone could make errors but there was a need to stop discrimination. The Equal Status Act was the only avenue open to many people.

At the outset of the hearing, the respondent accepted that it provided a service within the ambit of the Equal Status Act. It also accepted that the complainant was a person with a disability. It submitted that taking the complainant’s case at its height, the complaints could not succeed.

In respect of time, the respondent outlined that there was no complaint to it in May 2020 and the first complaints had been submitted by email in September 2020. The complaint against the newspaper, which the complainant said was submitted in May 2020, was submitted in October 2020.

The respondent said that the complainant had requested complaint forms and they were duly sent to him. It outlined that the emailed complaints were missing important information. After the phone call which ended with the respondent employee ending the call before its natural end, the centre manager had telephoned the complainant and apologised. It was submitted that the ES1 form was never said to be mandatory, but the complainant was informed that he needed to supply additional information. It submitted that the complaints submitted by email were processed.

The respondent outlined that it must be impartial in the exercise of its functions and cannot fill in parts of the complaint form. The manager had suggested to the complainant that he obtain assistance from a Citizen Information Centre. The respondent outlined that any delays encountered by the complainant were common to all complaints and arose from the pandemic.

The respondent outlined that the manager took ownership of the concerns raised by the complainant and sought to progress matters. While circumstances meant that the manager was unable to revert to the complainant by a specified date, this did not amount to discrimination. It was submitted that the respondent had done a great deal to assist the complainant.

At the October 2021 hearing, the respondent outlined that it had not discriminated against the complainant. It reiterated that it provided a service within the ambit of the Equal Status Act and that the complainant had a disability within the meaning of the Act. It outlined that it treated the complainant appropriately as soon as he mentioned his disability in an initial phone call. It outlined that there was no basis for a claim of direct discrimination and any of the respondent’s actions were not by reason of disability.

The respondent outlined that once it became aware of the complainant’s disability and the exact nature of his difficulties, it provided adaptations and assisted the complainant. All the complainant’s complaints were processed without a complaint form being submitted. It outlined that the complaints have all been assigned a hearing date in the next few weeks. It was submitted that the service the complainant sought had been provided to him and availed of.

In respect of indirect discrimination, the respondent submitted that the facts were not sufficient to support a claim of indirect discrimination. It relied on the principles set out by the Supreme Court in Stokes v Christian Brothers Clonmel High School [2015] IESC 13. It submitted that it was for the complainant to demonstrate that there are facts showing that he was placed at a particular disadvantage, and he has not established this. It was necessary for the complainant to identify a provision on which to base the claim of indirect discrimination. It was submitted that there was no ‘provision’ requiring the use of the ES1 form or the complaint form. The manager had apologised following the phone call and the stated requirement to use a form.

The respondent submitted that for there to be indirect discrimination, the complainant must show that he was unable to access a service, i.e. ‘disadvantage’. In this case, he had accessed the service and was provided with adaptations. It was submitted that the complainant must further establish particular disadvantage to persons with a disability. Moreover, the respondent submitted that it could rely on objective justification. The complaint form was used to facilitate the administration of complaints and people with disabilities were provided with assistance.

The respondent outlined that following the hearing in May 2021, it had checked its systems and records for a complaint or contact made by the complainant in May 2020. It accepted that the complainant could have sent such a complaint, but it had verified that no such complaint was received. It outlined that, in any event, the complainant had not incurred any loss as the October 2020 complaint (against the newspaper) was processed.

The respondent outlined that the first complaint was received in October 2020. The letter issued to the complainant related to a requirement to use the complaint form and not the ES1 form. The complainant had asked for 30 forms to be sent and this was done. The complainant indicated that he had difficulty in using the online complaint form.

In respect of the phone call, the respondent submitted that the staff member experienced an angry phone call and this colleague said that he was unable to complete the call so ended the call. The staff member then referred the matter to his manager, who phoned the complainant. The manager also correlated the complaints and identified any absent information.

The respondent accepted that there was a difference in ‘impartiality’ between the adjudication of a complaint and the processing of a complaint. The complainant, however, was asked to supply information missing from the form and it was not for the respondent to nominate a respondent. It was able to process complaints against one public body, but it could not select the proper respondent in the case taken against a newspaper. The respondent outlined that this was an occasion it provided assistance and adaptation to the complainant in inserting information in respect of complaints made against public bodies.

The respondent submitted that the complainant sought an apology, but the manager had apologised to the complainant several times. It was submitted that the information it sought from the complainant was necessary, but, in any event, the complaints were processed, or the complainant supplied the information.

The respondent submitted that it had obligations under the Disability Act and had an Access Officer to facilitate access. There was a large sphere of difference in how access could be facilitated, and access was individualised. The online WRC complaint form was, for example, compatible with technology to assist people who had visual difficulty. While the form caused difficulties for the complainant, the respondent adapted the service for him. It was not appropriate to anticipate the service for an applicant and any adaptation must be individualised. A person’s needs could fluctuate for that person, for example, if they had dementia. A service provider must listen to the person and look at possible solutions. The complainant had said that he needed phone calls, and this was provided to him. It was submitted that the requirement is more individualised to the person’s needs than any ‘well intentioned’ changes. It was submitted that pre-empting a person’s needs without listening to them was paternalistic.

The respondent submitted that there was no evidence of direct discrimination, and the complainant was treated positively and given reasonable accommodation. It was submitted that the complainant had not demonstrated that there was a discriminatory provision, nor that there was disadvantage or particular disadvantage. In respect of harassment, the respondent submitted that it would have been difficult to anticipate the effect of getting 30 forms and this was not done on grounds of disability.

Evidence of the manager

The manager outlined that she managed the information and customer service section of the respondent and was responsible for the delivery and quality of the service. She gave evidence that she contacted the complainant to clarify that the ES1 form was not required. This had followed the earlier phone call where her colleague had determined that he should end the call. The manager led a team of 30 and there were nine staff members in regional offices. The office dealt with 50,000 calls and about 8,500 complaint applications per year. The office also provided information about the Acts, including the Equal Status Acts.

The manager outlined that they would not be aware if any caller had a disability. The complaint form can be accessed using assisted technology and that the respondent access officer was available for people to talk to. This was advertised on the website. The respondent used plain English in communication. It also relied on individuals to say what their needs were in order for adaptations to be provided.

The respondent is imbued with impartiality, and they provided an impartial service as well as information about how to complete steps in the process. While the ES1 form was not required, it assisted parties in ensuring that they had covered all the bases.

The manager outlined that where a colleague found it difficult to deal with a call, as in the phone call with the complainant, this would be escalated to her. The colleague had said that he was unable to continue the call and the call was not completed; it was then escalated to the manager.

The manager outlined that her first port of call was to phone the person to see what needed to happen to move things forward. The manager confirmed in the phone call to the complainant that the ES1 form was not mandatory. This had been an extensive and wide-ranging conversation, largely about the ES1 form. The manager outlined that the complainant was clear that he had dementia and a hearing difficulty. The manager explained that the manual complaint form could be used. The manager explained that there was a validation process following receipt of a complaint.

The manager said that the respondent needed certain information to process a complaint, for example the address of the respondent party, to put them on notice. She had reviewed the cases in the system from the complainant to identify any issues following her call with him. The respondent had ongoing contact with the complainant about the current 44 cases, including contact in the week of the hearing. The manager accepted that there was delay in reverting in January 2021 as she was absent on leave, and she had followed up on her return.

The manager said that the very first escalation to her was sometime in October 2020, following the sending to the complainant of correspondence that his complaints could not be processed. In respect of the complaint against the newspaper, the case officer had returned the forms in order to be helpful. The manager accepted that the letter of the 16th November 2020 was wrong and should not have been sent to the complainant. The manager said that the emailed complaints should have been processed once the additional information was provided.

The manager said that the request letter was a request for additional information, but that the complaint was registered. The manager outlined that staff were then working from home and the staff member who authored the letter was new. The manager said that the respondent did not close off complaints and this could only happen when the complainant withdrew the complaint.

The manager outlined that they would be more aware of disability where the ES1 form referred to disability, but that the process was the same for Equal Status complaints. The complainant was asked for information regarding the newspaper complaint, but it was straightforward to insert the information for complaints against the public service bodies. It was problematic to identify the proper respondent in the claim against a different newspaper.

The respondent outlined that, across the board, it had about 300 complaints waiting on further information. They were registered as received and subject to ongoing review. The respondent accepted that cases taken by someone of a similar name were attributed to the complainant; this was a mistake. The manager said that it had accommodated the complainant by updating him on the phone and by listing all his cases, at the complainant’s request. The manager said that no letter had been issued to ask the complainant to send in a completed ES1 form.

The respondent submitted that while the complainant was not in favour of the ES1 form, it was of assistance to other people, and it was an accessible document for many people.

During 2020, the complainant sought to pursue complaints against a newspaper and several private entities and public service bodies. They were complaints pursuant to the Equal Status Act and referred to the Workplace Relations Commission. The complainant says that the Workplace Relations Commission, the respondent in this complaint, discriminated against him and harassed him in how it dealt with the Equal Status complaints against other parties. The respondent, the Workplace Relations Commission, denies the claims.

At the outset of the first session of adjudication, I indicated to the parties that I would be examining indirect discrimination as part of the complaint of discrimination. On the second day, the complainant explained that part of his case related to the impact administrative requirements to complete forms had on people with disabilities, including himself. He said that he and the general group were less likely to pursue a claim when faced with an administrative requirement.

The case against the Workplace Relations Commission respondent relates to the initial treatment of the emailed complaints against other bodies. The complainant was informed in a phone call that he must fill in and send an ES1 form in order to pursue an Equal Status complaint. Separately, he was informed by letter that a WRC complaint form was also required. This letter was sent by a different respondent employee. The complaint also related to the tenor of the above phone call, which ended with the respondent employee ending the call. The complainant cited being sent 30 manual complaint forms as harassment.

Disability Act / public service duty

As outlined by the respondent, the Disability Act imposes a duty on public bodies to provide assistance and guidance to people with disabilities in accessing a service. The respondent has appointed an Access Officer to facilitate this access.

I also note that section 42 of the Irish Human Rights and Equality Commission Act places a duty on public bodies to have regard to the need to eliminate discrimination, promote equality of opportunity and protect human rights. These obligations apply to service users and to staff.

‘Administrative Practice’ / ‘Excessive formalism’ / Impartiality

Administrative Practice

As a starting point and as background, it is worth noting the sources of administrative law, setting out the basis on which bodies such as the respondent make decisions. As set out in Chapter 2 of Hogan, Morgan and Daly ‘Administrative Law in Ireland’ 5th edition, they include Acts of the Oireachtas, Statutory Instruments, Administrative Rules and Administrative Practice. The first two categories are subject to extensive legislative requirements, involving the Houses of the Oireachtas, the Government, the office of the Attorney General and the relevant Departments. Statutory Instruments are generally subject to the principles and policies test. Statutes and statutory instruments are published and disseminated. They are subject to exacting due diligence in their drafting and promulgation. Their contents are publicly available and subject to public debate and statutory interpretation before the Courts. Administrative rules, such as circulars or guidelines, are drafted by the relevant public body and generally published on a website. They too are subject to public scrutiny, debate and interpretation (see, by example, Burke v An Adjudication Officer [2021] IEHC 667).

‘Administrative practice’ covers other ways public bodies carry out their functions and make decisions in their day-to-day work. As set out by Hogan, Morgan and Daly at paragraph 2.192: ‘The previous section on “Administrative Rules” included a wide variety of legal or quasi-legal instruments. But, at least, most of these were consciously devised and/or written down, often with the assistance of a lawyer. Here we go even further away from conventional legal sources, to note that in a large bureaucracy, such as a department or local authority, there will often be “practices”, understandings, assumptions, interpretations (to use imprecise words); even urban legal myths. These are the softest of soft laws and may not even be written; but they undoubtedly have a good deal of influence. This is natural. On one side are junior staff who need to be guided by consistent, generally understood and commonly applied precepts. On the other side are citizens who are only involved in the particular situation once in a lifetime.’

Administrative practice lends itself to indirect discrimination. It evolves locally, within a public body, and is not subject to the same scrutiny, debate, publication or dissemination as administrative rules or, of course, legislation. Administrative practice involves the making of assumptions and may not be written down. They, however, form the basis of decision-making. Members of the public may not readily be able to understand the basis of an administrative practice, let alone proffer an alternative interpretation or to have a basis to challenge the practice. As they are so informal, they may not be considered adequately in their formulation or their application. They may well be ostensibly neutral, but their informality lends to insufficient consideration of their potential disparate effect, for example, on grounds within the ambit of the Equal Status Act.

‘Excessive formalism’

The European Court of Human Rights has an extensive jurisprudence on ‘excessive formalism’ in civil procedure and decision-making in civil law. This includes administrative rules and practice, but also the decisions of quasi-judicial decision-makers, such as adjudication officers. At 6.2.2 of the Handbook of European Law relating to access to justice (Fundamental Rights Agency and ECHR) 2016, it is stated:

‘Excessive formalism refers to particularly strict interpretations of procedural rules that may deprive applicants of their right of access to a court. This can include strict interpretations of time-limits, rules of procedure and evidence.

The court’s role and alternative avenues of redress available to an applicant may be relevant in examining the question of formalism. For example, where a court has a unique role in reviewing administrative decisions, acting both as court of first and last instance, its procedure should not be excessively formalistic, as this deprives individuals of an avenue of redress.

A particularly strict construction of procedural rules by constitutional courts may deprive applicants of their right of access to a court, for example, if a procedural rule – such as a time limit – is construed in such a way that it prevents applicants’ actions from being examined on the merits, this undermines the right of access to a court.

Excessive formalism may also occur when a court attaches paramount importance to a factual consideration (such as an applicant’s illegal residence status) without balancing this properly with the applicants’ fundamental rights (for example, their right to family life under Article 8). Self-reflective practice might assist courts in avoiding practices that can undermine access to justice.’

This Article 6 jurisprudence on excessive formalism is the prism through which procedural decisions of adjudication officers and the respondent should be assessed. I also note the invocation of ‘excessive formalism’ in EU law, mainly in the context of the Habitats Directive (see Friends of the Environment v Government of Ireland [2021] IECA 317).

In this case, the formalism relates to the requirement to use a pre-litigation form (the ES1 form) and then to use a non-statutory originating document (the WRC complaint form).

Per the European Convention on Human Rights Act, 2003, an ‘organ of State’ such as the respondent must perform its functions in a manner compatible with the State’s obligations under the Convention provisions. This includes the ECHR jurisprudence in civil procedure under Article 6 of the Convention.

Impartiality

The respondent outlined that it is imbued with impartiality. This is a principle that cannot be argued with. At the hearing, I drew the distinction between the formulation of complaints and the adjudication of those same complaints. After all, the respondent, via the Director General/Director, assigns complaints to independent adjudication officers for decision. That decision-making is separate to the role of the Director-General/Director and separate from the part of the respondent that receives and processes complaints prior to their being assigned to adjudication officers.

Whatever complaints are formulated and assigned to adjudication officers is not a matter of impartiality or partiality; it is a matter of processing whatever issues are raised by the complainant. Whatever complaints are formulated, the decision whether they are well-founded is a matter for the adjudication officer. Whether a complaint goes forward is not a matter of partiality, it is a matter of process. It is for the adjudication officer to decide whether any or all the complaints are well-founded.

I also note the ‘how to help’ approach set out in the Judicial College Equal Treatment Bench Book, which sets out detailed steps for the Court to assist litigants in person to prepare and advance their case. This ‘how to help’ approach is based on ensuring access to justice and in facilitating parties in meeting procedural and evidential requirements.

Statutory background

Grounds

The Equal Status Act prohibits discrimination and harassment on ten grounds. Three of those grounds in the Equal Status Act have an underpinning in either the Racial Equality Directive (Directive 2000/43/EC) or the Gender Services Directive (Directive 2004/113/EC). Those three grounds are race, member of the Traveller community and gender. For clarity, the Employment Equality Act has a broader Directive underpinning, as the grounds of race, gender, disability, age, sexual orientation and member of the Traveller community have an underpinning in the employment and occupation Directives.

Burden and standard of proof

Section 38A defines the burden of proof in Equal Status complaints as: ‘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 means that the complainant has to point to facts that raise an inference of discrimination or harassment. Once this occurs, it falls on the respondent to disprove the inference of discrimination. It is a lower standard of proof than the civil standard of proof: ‘the balance of probabilities’.

Section 38A sets out the burden of proof in both cases of direct and indirect discrimination. There is no separate, higher burden of proof for claims of indirect discrimination. A claimant advancing a case of indirect discrimination need only point to facts of such significance that raise the inference of discrimination. I interpret the reference at paragraphs 10.10 and 12.9 in Stokes v Christian Brothers High School Clonmel to ‘the onus of proof’ being on the claimant as being a reference to the burden of proof set out in section 38A and not some higher burden.

In line with the wording of the statute, the burden of proof in a claim of indirect discrimination is only to point to facts of such significance that raise the inference of discrimination, and this applies to all elements that constitute indirect discrimination, for example ‘particular disadvantage’.

Prohibited conduct

The Equal Status Act defines ‘prohibited conduct’ as including both discrimination and harassment. It prohibits discrimination, for example a service provider refusing to provide a service to one group of people, for example because of their disability, age etc. The Act also prohibits harassment, including when a person avails of a service, for example submitting an application.

Vicarious liability

The Equal Status Act provides ‘anything done’ (for example, an act of discrimination or harassment) by an employee shall be treated as being done by the employer, whether or not it was done with the employer’s knowledge or approval (section 42).

The section also provides a defence: that the employer took such steps as reasonably practicable to prevent the employee from doing the act or from doing in the course of their employment acts of that description.

This section means that an employer is liable for an act of discrimination or harassment committed by its employee, even where the act was done without the employer’s knowledge or approval. The section sets out a ‘reasonably practicable’ defence.

Direct and indirect discrimination

Direct discrimination is defined in section 3 as less favourable treatment because of a ground, for example age or disability.

Indirect discrimination is defined in section 3 as arising where ‘an apparently neutral provision ‘would put’ a person … 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.’

The definition of indirect discrimination was inserted by the Equality Act, 2004 into both the Equal Status Act and the Employment Equality Act. According to the Explanatory Memorandum of the 2004 Bill, this amendment reflected the more advanced definition of ‘indirect discrimination’ contained in the Racial Equality Directive (2000/43/EC).

The word ‘puts’ was amended to ‘would put’ in 2015 in order to replicate the language of the Directive. The European Commission Non-discrimination country report on Ireland 2020 suggests that this change may militate against a shift to require statistics in indirect discrimination.

Meaning of ‘provision’

Indirect discrimination refers to an ‘apparently neutral provision’. ‘Provision’ is defined as ‘a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person’. This definition was inserted by the Equality Act, 2004, along with the revised definition of indirect discrimination.

It is a broad definition and encapsulates a contractual term as well as a requirement, criterion, practice, regime, policy or condition that affects a person. The directives refer only to ‘provision, criterion or practice’.

The broad nature of the definition of ‘provision’ in the Equal Status Act means that it covers the sources of administrative law set out by Hogan, Morgan and Daly in ‘Administrative Law in Ireland’ (discussed above), including administrative rules and administrative practice. The latter are sources of law which are not required by an enactment and, therefore, do not fall within the ambit of section 14 of the Equal Status Act (see the discussion at paragraphs 148 to 152 of Landsberg v Road Safety Authority [2021] IEHC 748). 

Indirect discrimination: Griggs v Duke Power 401 US 42 (1971)

If ever asked to explain what indirect discrimination is, the originating example is the best example. A power station in South Carolina operated by Duke Power initially refused to employ or to transfer black employees to its best paying jobs in the Labor Department; those jobs were reserved for white employees. This direct discrimination became illegal under the Civil Rights Act, 1964. The employer changed its recruitment criteria and introduced new requirements of having a High School Diploma or passing an aptitude test. These changes had the effect of excluding black employees as they were far less likely to have finished school or to pass the test.

There was nothing about indirect discrimination in the Civil Rights Act, but the US Supreme Court held the prohibition on discrimination applied to practices that were fair in form, but discriminatory in operation. The US Supreme Court formulated the concept of ‘indirect discrimination’ to ensure that the prohibition on discrimination was effective.  

Indirect discrimination in EU and Irish law

The European Court of Justice played an equally key role in developing the concept of indirect discrimination, to ensure the effectiveness of EU law, for example of the right to equal pay, free movement and anti-discrimination. This has evolved and strengthened from Sotgiu v Deutsche Post (C-152/73), through Jenkins v Kingsgate (Clothing Productions) Ltd (C-96/80), Bilka-Kaufhaus GmbH v Weber von Hartz (C-170/84), O’Flynn v Adjudication Officer (C-237/94), Regina v Secretary of State for Employment ex parte Seymour-Smith (C-167/97), Meister v Speech Design Carrier Systems (C-415/10)and CHEZ Razpredelenie Bulgaria AD v Nikolova (C-83/14).

In Nathan v Bailey Gibson [1996] ELR 114, the Supreme Court held “In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.” The Supreme Court held that the onus on the claimant in indirect discrimination was to show that the practice bore significantly more heavily on them, for example, on the gender ground. Nathan v Bailey Gibson was relied on by the Labour Court in NBK Designs Ltd v Inoue EED0212 and much of the subsequent case law.

‘The proper question’

The Supreme Court emphasised in Stokes v Christian Brothers High School Clonmel that, as a matter of law, the decision maker (here the adjudication officer) must ask the proper question and to gather the necessary materials to analyse that question.

To note, Stokes v Christian Brothers High School relates to the Equal Status Act. The Supreme Court did not suggest in any way that its judgment should be applied to indirect discrimination under the Employment Equality Act. The Supreme Court did not discuss the case law relating to indirect discrimination in employment or occupation, including its own judgment in Nathan v Bailey Gibson. I also note that many of the employment equality grounds have a directive underpinning (race, religion or belief, age, sexual orientation, disability and member of the Traveller community).

It is important to note that the Equal Status Act also transposes the Racial Equality Directive (Directive 2000/43/EC) and the Gender Services Directive (Directive 2004/113/EC) in so far as they apply to services. Equal Status claims under the race and member of the Traveller community grounds have a Directive underpinning. Equal Status claims on the gender ground have a Directive underpinning, although not in education.

The approach of the Supreme Court in Stokes v Christian Brothers High School Clonmel imposes a higher threshold on a claimant to meet in advancing a claim of indirect discrimination than that set out in Nathan v Bailey Gibson or the CJEU jurisprudence. It is a higher threshold for the following reasons.

First, there is the question discussed above whether the reference in Stokes v Christian Brothers High School Clonmel to the onus being on the claimant means something more onerous than the burden of proof in section 38A. Given the clear language of the Act, I find that section 38A sets out the burden of proof applicable to all the constituent elements of indirect discrimination, i.e. the onus to establish facts of such significance that raise the inference of discrimination. This reflects the approach in Nathan v Bailey Gibson and Nikolova.

Second, the Supreme Court in Stokes v Christian Brothers High School Clonmel held that the level of ‘particular disadvantage’ had to be ascertained and, as a matter of law, had to be ‘significant or appreciable’. The clear position of the CJEU is that ‘particular disadvantage’ had to effect ‘far more’ persons of the group concerned, but that ‘particular disadvantage’ was not contingent on any level of seriousness (see both the judgment and Advocate General Kokott’s Opinion in Nikolova). This would be an issue for justification: ‘the more serious the disadvantage, the higher the requirements for the justification’ [paragraph 93, Advocate General].

Third, the Supreme Court in Stokes v Christian Brothers High School Clonmel held that the Equality Tribunal and, on appeal, the Circuit Court ought to have considered the particular disadvantage of the school admissions policy as a whole, not merely the parental rule. The CJEU jurisprudence suggests that the role played by provisions other than the provision that effects ‘far more’ of one group than another is part of objective justification. The indirectly discriminatory effect, for example, of priority afforded to children whose fathers went to the school could held to be objectively justified if it was ‘appropriate’ or ‘necessary’ as, for example, mitigated by a close affinity rule.

Central to the difference in approach between Stokes v Christian Brothers High School Clonmel and Nikolova is that matters which are held to be necessary to show ‘particular disadvantage’ in the former are considerations in assessing objective justification in the latter.

Four, the Supreme Court in Stokes v Christian Brothers High School Clonmel placed a much greater emphasis on the requirement for statistical evidence in advancing a claim of indirect discrimination and establishing ‘particular disadvantage’. The Court also emphasised the need for sufficient numbers to make the analysis of disadvantage meaningful. The emphasis on statistical evidence differs from the approach of the CJEU, especially in the last two decades, see O’Flynn and Nikolova. The move away from requiring statistical evidence arose because it is difficult to gather meaningful data, something also noted by the Supreme Court in Stokes.

Given that there is a difference in approach between the Supreme Court and the CJEU in indirect discrimination, the first question for an adjudication officer to answer in considering an Equal Status indirect discrimination claim is whether the ground sought has a Directive underpinning. It does in complaints on the race, member of the Traveller community and gender grounds. A finding should be made whether or not the claim touches on either Directive. This then will determine which test of indirect discrimination should apply.

If the Equal Status claim is within the scope of either Directive, the CJEU/Nikolova approach must be followed. Where the complaint is intersectional, for example on grounds of race and family status, the CJEU/Nikolova approach should also be followed as to do otherwise would undermine the effectiveness of the Directive right.

As referenced in the European Commission non-discrimination country reports on Ireland, I note that there were submissions before the Court at the hearing of Stokes that the Racial Equality Directive applied in that case. The Supreme Court did not make a finding on this point of law and the application of the Directive is not discussed in the judgment. I note that the application of the Directive was not discussed in the previous judgments, including the initial Equality Tribunal determination.

A finding on whether the claim has a Directive underpinning is required to ensure clarity on which test for indirect discrimination is to apply. A finding at first instance whether the claim has a Directive underpinning ensures that the matter is considered in any substantive appeal and any further appeal on a point of law.  

Harassment

In respect of harassment, section 11(2) identifies as the ‘responsible person’ a person who 'is responsible for the operation of any place' and who 'shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.'

Section 11(3) provides as a defence that the responsible person took ‘such steps as are reasonably practicable to prevent the sexual harassment or harassment’.

Section 11(4) provides that a person’s submission to unwanted conduct ‘may not be used by any other person as a basis for a decision affecting that person.’ A person’s submission or acquiescence to an act, therefore, does not mean that it was not harassment.

Section 11(5) defines ‘harassment’ as ‘unwanted conduct’ related to a discriminatory ground and which may have ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’ This wording looks to the intention behind any unwanted conduct, but, separately, also to its effect. The section further provides that the unwanted conduct may consist of ‘acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.’

Findings in respect of Mr Kearney’s claim

Is there a Directive underpinning to the complaint?

Given the test of indirect discrimination set out by the CJEU in Nikolova and preceding cases, the first question for the adjudication officer to determine in an indirect discrimination Equal Status claim is whether there is a Directive underpinning to the ground claimed. Is the complaint related to race, membership of the Traveller community or gender or does it touch on one of those grounds (an intersectional complaint)?

In this case, the grounds are disability and possibly age. Currently, those grounds do not have a Directive underpinning in respect of the provision of services (although they clearly have a Directive underpinning in respect of employment and occupation). The extension of the ambit of EU anti-discrimination law to the provision of services on grounds of disability and age is proposed in the draft Horizontal Directive, although this has not been able to progress through the EU legislative system since 2008.

I, therefore, find that the grounds in this complaint do not have a Directive underpinning and the test for a claim of indirect discrimination is that set out in Stokes.

Dates of relevant events

The complainant and the respondent had a different account of when their interactions commenced. The complainant suggested that this was in May 2020, when he first sought to email in the complaint against the newspaper. The respondent outlined that the first date it could find of an interaction with the complainant was the 8th September 2020. In advance of the second hearing date, the respondent searched and provided all the documentation relating to the complainant. This commenced in September 2020.

I note from the documents that the complainant emailed the newspaper on the 24th May 2020, raising his concerns about a published story. The complainant refers to the Equal Status Act in this email, as he did in a follow-up email to the newspaper of the 16th July 2020. I also note the correspondence from a Government Department (not the parent Department of the Workplace Relations Commission) referring to the complainant’s telephone call and emails of June 2020. This documentation shows that the complainant was active in raising his issues from May and June 2020, but there is no indication that there was communication with the respondent at this time. The complainant sent the newspaper the follow-up notification on the 16th July 2020, suggesting that no complaint had been lodged with the respondent by this date. I note that the complaint against the newspaper was emailed to the Workplace Relations Commission on the 8th September 2020, that is following on from the 16th July 2020 email.

I asked the complainant if he had received any other letters from the respondent, other than those we had gone through at the hearing. He did not recall any specific document. I also note the comprehensive schedule and documentation provided by the respondent, including the letter of the 16th November 2020 and related documentation. I note the evidence given that this was all the documentation and that the first contact had been in September 2020.

Taking these points together, I find that the first contact made by the complainant to the respondent that are the subject of this complaint took place at the beginning of September 2020. The complainant was certainly in communication about the issues that were later the subject of the other Equal Status complaints, but this was with the bodies concerned, i.e. the newspaper or the Government Department, and not with the respondent.

Direct discrimination

The complainant outlined that he was discriminated against on grounds of his disability. The complaint includes the phone call with the respondent employee, where he was informed that he had to complete an ES1 form. The complainant raises the tenor of the phone call and that it ended with the respondent employee ending the call. It includes the letter of the 16th November 2020 in the name of a different respondent employee. This letter informed the complainant that his complaint could not be processed until he had filled out and submitted a completed manual complaint form. The complainant raised the impact of receiving in the post 30 manual complaint forms.

As set out above, the question is whether the complainant incurred less favourable treatment on grounds of disability. Having considered the evidence, I find that the complainant has not set out facts that raise the inference of discrimination. I make this finding for the following reasons.

The complainant wished to take Equal Status complaints against various bodies, including the newspaper and a media organisation. He emailed the respondent with documentation setting out his complaints. The complaint against the newspaper, for example, is a completed complaint, clearly on grounds of age and disability in respect of a service and under the Equal Status Act. It includes the notification of the newspaper (the email of the 16th July 2020). While they were not on the WRC complaint form, nor availed of the pro forma ES1 form, it was a clear and ‘100%’ complete Equal Status complaint.

Despite this, the respondent did not initially complete a validation process, separately requiring the complainant to either use the ES1 form or to use the complaint form. The respondent accepted that this was not correct, and the complainant did not have to use either form. It is also clear that the respondent is vicariously liable for the actions of its employees. Something that a respondent thought was a ‘mistake’ but was taken because of a protected ground, would be direct discrimination, even though it was not official policy as it was done because of the protected ground.

The respondent explained why 30 complaint forms were sent. While the respondent had been incorrect to ask the complainant to use either the ES1 form or the complaint form, there is nothing to show that this was ‘on grounds of’ the complainant’s disability. The sending of the 30 forms was also not ‘on grounds’ of his disability.

I also note the steps taken by the respondent to accommodate the complainant’s disability. This included the irreproachable steps taken by the centre manager, who took ownership of the complaints and spoke with the complainant. The centre manager acknowledged that it had been incorrect of the respondent to say to him that either or both the ES1 form and the complaint form were required. The centre manager apologised. The respondent then took steps to complete the validation of the complaints, for example completing address fields. It provided the complainant with an update on all the complaints. They were then scheduled for hearing.

I, therefore, find that the complainant has not established facts from which an inference of discrimination could be drawn. There is nothing to show that any action of the respondent employees was on grounds of the complainant’s disability. The complainant has not shown that he was directly discriminated against.

Indirect discrimination

The concept, and complexity, of indirect discrimination is addressed above. The question is whether a ‘provision’, i.e. ‘a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person’ put a person with a disability such as the complainant at a particular disadvantage and if so, whether the ‘provision’ could then be objectively justified.

The respondent argued that the complainant was not at a disadvantage as his complaints were processed. It argued that the complainant had not established a ‘particular disadvantage’ in line with Stokes. It argued that there was no ‘provision’ and that what had happened had been an error.

I have set out above that an ‘administrative practice’ is sufficient to meet the broad definition of ‘provision’ in the Equal Status Act. There is certainly evidence in this case of ‘administrative practice’: two respondent employees told the complainant, on the phone and in writing, that two, separate documents were mandatory, when, of course, neither was. This is evidence of an ‘administrative practice’. Arising from vicarious liability, where a finding was to be made that there was such an ‘administrative practice’, then the respondent would have to address the other elements of indirect discrimination.

The question in this case is whether the actions of two separate respondent employees in their dealings with the complainant represented a practice, regime etc It is significant that it was two different respondent employees. It is also significant that their requirement that a particular form be used related to two separate forms. It is significant that this demand was placed on the complainant in a short time period. This points to there being an ‘office view’ that the forms were mandatory, something in the region of urban legal myth referred to by Hogan, Morgan and Daly. It must be of significance that the requirement to use the complaint form was explicitly stated in writing, i.e. the letter of the 16th November 2020.

These are all indicators of an administrative practice that non-statutory forms are said to be mandatory, when they are not mandatory. On balance, however, I find that the evidence is not sufficient to show that there was an administrative practice. There is evidence of two occasions of which something was said to be mandatory. There was a great deal of communication with the complainant, and these were the only occasions when something was incorrectly said to be mandatory. I note the quick reaction of the respondent, and the centre manager in particular, to say that the requirements placed on the complainant were not policy and that they were mistakes.

As noted above, vicarious liability is provided for by the Equal Status Act. In direct discrimination, the employer will be vicariously liable for acts of its employees that discriminate on grounds of a protected characteristic (subject to the statutory defence). Vicarious liability is also applicable in indirect discrimination, but there must be some practice, regime etc in being (even if the employer might not have officially sanctioned it). 

I find that there is insufficient evidence of an administrative practice that forms were mandatory. There were two occasions that the complainant was told that forms were mandatory. This is some way to there being an administrative practice, but not sufficient to make the finding that there was an administrative practice. Two occasions in these circumstances can be accounted for as mistakes, as contended by the respondent. There was, therefore, no administrative practice, even operated locally, that forms were mandatory. There is no basis for a finding of indirect discrimination.

To be clear, a ‘mistake’ that was directly discriminatory, i.e. an action on grounds of a protected characteristic would still be discriminatory, even if an error and not intentional. A mistake can only be indirectly discriminatory if it forms part of a wider practice, regime etc

Harassment

Harassment is ‘unwanted conduct’ that violates a person’s dignity and creates ‘an intimidating, hostile, degrading, humiliating or offensive environment for the person’. The conduct must ‘violate a person’s dignity’ and create an environment which is degrading, humiliating etc. This is judged subjectively, i.e. what the person thought and felt.The focus is on the ‘purpose or effect’ of the unwanted conduct, so intention might not matter. The complaints of harassment relate to the tenor of the phone call and the sending of 30 manual complaint forms.

In respect of the phone call, I note that the complainant made the phone call to check whether the ES1 form was mandatory. He was wrongly told that it was mandatory. This obviously led to a disagreement between the participants to the call. The complainant said that he is hard of hearing, so finds it difficult to regulate voice volume. The respondent employee said that he would end the call and did so. Later that day, the centre manager called the complainant to give him the correct information regarding the ES1 form (that notification is required, but the ES1 form, itself, is not mandatory). The centre manager apologised for what had happened.

Taken at their height, this set of events cannot be said to violate a person’s dignity and to create an environment that is ‘intimidating, hostile, degrading, humiliating or offensive’. The respondent employee certainly relayed wrong information to the complainant, but this, of itself, is not harassment. The respondent employee ended the call, but the centre manager re-engaged with the complainant, setting the record straight and apologising. There was, therefore, no degrading or hostile environment.

Taking these elements together, I find that there was no violation of a person’s dignity, and nor was an environment created that was humiliating, degrading etc While wrong information was imparted and the call was ended abruptly, what happened on the call did not amount to harassment and any negative consequences were mitigated by the swift intervention of the centre manager.

The second issue is the 30 complaint forms being sent to the complainant. The Workplace Relations Commission deals with some 50 statutes, including the Equal Status Act. The manual form is a lengthy document. 30 manual complaint forms would number many hundreds of pages. The question is whether this action constituted harassment under the Equal Status Act.

I accept that the respondent did not intend any negative consequence in sending the forms. The complainant wanted to take complaints against several parties and had technical difficulties using the online complaint form. The forms were sent to facilitate the complainant. The question is whether the effect of receiving the forms amounted to harassment.

I can see how receiving such a large amount of documentation would be inconvenient. Taken at its height, it cannot, however, be said that this act amounts to something that violates a person’s dignity and creates an environment that was humiliating, degrading etc This was also in the context of the complainant seeking information from the respondent about making Equal Status complaints and the forms were sent as part of this assistance.  I, therefore, find that the sending of the 30 manual complaint forms was not an act of harassment.

CA-00042596-001

I decide that the complainant has not established a prima facie case of direct or indirect discrimination, nor of harassment on the disability ground.

Equal Status Act / disability / indirect discrimination / Nathan v Bailey Gibson / Stokes v Christian Brothers High School Clonmel / CHEZ Razpredelenie Bulgaria AD v Nikolova