Complainant

Respondent

Parties

Michael  Beirne

Sraheen Group Water Scheme Co-operative Society Ltd

Representatives

  Self

 No attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039050-001

05/08/2020

This case is concerned with the reduction and later the cessation of water supply to the Complainant by the Respondent. The former joined the group water scheme in 2010 and remains a member. A dispute commenced in 2015 regarding the amount to be paid by the Complainant which was never resolved. The water supply was disconnected in January/February 2019. In March 2020 the Complainant sought to have the supply restored as he was resident in the house and the emergency conditions introduced by the Government were in place at the time. The request was refused giving rise to this complaint.

The complainant is over 70 years of age and has a visual disability. He is not normally resident in the area covered by the group water scheme and uses the term part-time resident to describe his status. He joined the group water scheme signing a contract in 2010.  His water supply was first cut off a year after he bought the house-he had not received any notice of payment. A dispute regarding the charge for a part time resident commenced in or around 2015 based on changes in the charges regime from 2014 which he contends adversely affected him as a part time resident. He maintains that he would not have signed a contract if the charge regime now being used was in place. He regards the charge regime as discriminatory and not according him equal status within the community. The rules do not allow for a change in the charge structure other than at a special general meeting and none was held, the copy provided to the WRC is not signed and he questions whether the new model rules and amendments cited by the Respondent have been registered with the Registrar of Friendly Societies. It is through equivocal operation of the rules that the Co-operative has usurped authority to effect discriminatory regulations against him.

In 2018 he issued cheques for payment of the amount owing to the Scheme with the exception of the extra charge for part time residents which charge lies at the centre of the dispute. Those cheques were returned to him and he was subsequently disconnected in 2019. The basis of the additional charge to part time residents is disputed by the Complainant who contends that they are in reality covert charges for low consumption.

In 2018, the water supply was reduced to a trickle, imposing hardship on him and his family when they were in the house in a hot summer. His wife has not returned to the house since then due to the absence of a water supply.

In March 2020 he went to the house to get it ready to move there during Covid. He sought to have the water reconnected offering to pay all but the disputed amount which could be dealt with legally, but this was refused. His access to water was rain water. Animals and pets were provided with water through the scheme, but he was not. He believes that he is being discriminated against as an outsider and that he is not being accorded equal status within the community. He regards the action of disconnecting his water as an act of hostility aimed at marginalising him. A third of the part time residents have had their water cut off but none of the permanent residents.

Asked whether the date of the alleged discrimination and therefore the time of the alleged act of discrimination was not January/February 2019-he replied that he had sought to be reconnected in March 2020 due to Covid and was refused unless he paid any outstanding charges by way of a solicitor’s letter on 25 May 2020.

Referring to the less favourable treatment compared to others on the grounds set out in Section 3 of the Equal Status Act, the Complainant referred to his age, his evident visual disability, his lifestyle where he may have been presumed to have been single after his wife no longer travelled to the house and generally he was regarded as vulnerable and transient.

The Respondent was not present at the hearing. They did correspond on the complaint with the WRC and the Complainant responded to that correspondence before the hearing and referred to it in his evidence and therefore a brief summary of the submission is merited.

Revised rules of the scheme were changed at an AGM in July 2013. The different supply categories are set by the Directors and approved by the AGM. Correspondence was provided which showed that the Respondents solicitors did engage with the Complainant warning of the consequences of non-payment of the charges due. Mediation was refused. When no resolution was achieved, the supply was removed. This is the first case of discrimination in forty years of the scheme’s existence in one way or another.

Correspondence shows that as of February 2018 the cheques returned amounted to €203.40 whereas the amount owed was €270.90

Recognising that water is a basic necessity for human and animal life and the vital role played by group water schemes in providing and maintaining that life saving necessity, it really is extraordinary that both parties to this dispute fell out over an amount of less than €90. Equally if not more remarkable is that during the Covid emergency which existed in March 2020, when the mantra from all medical practitioners was to maintain personal hand hygiene as a matter of life and potentially death, still no resolution could be found. One can only conclude that the reasons for this dispute must be deep rooted indeed. However, the role of the Adjudication Officer is to determine whether there has been discrimination as defined under the Equal Status Act, as claimed.

The Group water scheme is a service within the meaning of Section 5 (1) of the Equal Status Act ‘Providing a service, whether the …provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.’

First Preliminary Issue -Time Limits

The following is the full text of section 21 of the Equal Status Act which encompasses a range of issues regarding seeking redress, including the time limit for referring a complaint to the WRC.

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise —

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3)   (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may —

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including —

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6)   (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

(7A) (a) Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission on an application by a complainant for an extension of time under subsection (3) or (6), the complainant or respondent may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(b) On the appeal the Court may affirm, quash or vary the decision.

(c) No further appeal lies, other than an appeal to the High Court on a point of law.

(d) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director of the Workplace Relations Commission on such an application until —

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.

(8) Information is material information for the purposes of this section if it is—

(a) information as to the respondent’s reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,

(b) information, other than confidential information, about the treatment of other persons who stand in relation to the respondent in the same or a similar position as the complainant, or

(c) other information which is not confidential information and which, in the circumstances of the case in question, it is reasonable for the complainant to require.

(9) In subsection (8) “confidential information” means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.

(10) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.

(11) For the purposes of this section prohibited conduct occurs —

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.

Conclusions on first preliminary issue

No issue arises from Section 21(2) or 21(4) in this case.

Moving on to Section (6)-time limit for making a complaint to the WRC, on the face of it, it would seem that the complaint is out of time to a considerable extent given that the water supply was disconnected in early 2019 and the complaint was not submitted until 05.08.2020. However, section 21(11)(a) comes in for consideration.  

Given that the impact of the decision to disconnect the Complainants water supply is an act which extended over a period which was without end, the terms of Section 11 apply, provided that discrimination is found. The act extended over a period but was it discrimination within the meaning of the Equal Status Act, is the fundamental question to be determined.

Second Preliminary Issue -the nature of the discrimination as claimed.

Discrimination(general)

3.— (1) For the purposes of this Act discrimination shall be taken to occur —

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

Or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

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

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

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

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

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

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

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

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

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i)        that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

Based on his responses to the request for clarification put at the hearing, the conclusion is that the Complainant has failed to provide evidence of discrimination within the meaning of the Equal Status Act. Firstly, in terms of less favourable treatment than a comparable person. The only comparable situation he could describe was those persons who are full time residents and are in membership of the group water scheme, who did not have their water cut off and crucially, he was unable to describe his own characteristics in such a way that he would qualify under any of the discriminatory grounds with one possible exception, disability. At the hearing the Complainant spoke openly about his visual disability and it was evident and indisputable. However, nothing in the history of the issues involved in this case, or the correspondence between the parties, or the grounds of the dispute suggest that the Complainants disability was a factor either in his decision not to pay the charges imposed or the decision of the group water scheme to cut off supply.

On the basis of these conclusions, the complaint of discrimination under the Equal Status Act cannot succeed as it does not fall within the ambit of the legislation.

CA-00039050 The complaint by Michael Beirne against the Sraheen GWS Co-op Society is not well founded under the Equal Status Act 2000.

Alleged Discrimination, provision of a service/disconnection from a group water scheme