ADJ-00039561

Complainant

Respondent

Anonymised Parties

Member of the Traveller Community

County Council

Representatives

Heather Rosen

Martina Keane, Michael Houlihan & Partners LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00013617-001

16/08/2017

The Complainant has submitted a complaint against the Respondent alleging discrimination, harassment and the permitting of harassment in the organising of eviction notices.

This case is part of a wider referral where some of complainants are minors.  In accordance with the longstanding practice of the WRC, I have exercised my discretion and have anonymised the parties in all of the related cases in order to protect the identity of the minor complainants. 

At the hearing, the parties were afforded the opportunity to make additional written submissions on the preliminary matters by 25 July 2022.  The parties were also afforded the opportunity to comment on, and respond to, each other’s submissions.  Both parties availed of this opportunity.

This case is linked with ADJ-00010280.

The County Council submits as follows:

The County Council is a creature of statute.  It is a local authority created and governed by the Local Government Acts. It is a legal entity in its own right with the capacity to sue and be sued in its own name.

The named respondent is a former employee of the County Council. At all times, they have acted in accordance with their contracts of employment with the Local Authority and in accordance with the duties and functions conferred upon or delegated to them by various statutory provisions and/or order of the Chief Executive of the Local Authority acting in accordance with the Local Government Acts 2001 and the Local Government (Reform) Act 2014.

The matters complained of, in the main, relate to the accommodation requirements of the Complainant and their family.  Insofar as the County Council is concerned in this regard it is also a Housing Authority governed by the Housing Acts 1966-2014.  Any alleged acts or omissions of the named respondent in this complaint relate to their carrying out of functions, duties and powers on behalf of the Housing Authority in accordance with statutory provisions. There is no suggestion that the named respondent has acted outside of their remit in the course of their employment.  

It is entirely inappropriate to name individual employees of the corporate body as respondents to complaints relating to the functions of the corporate body as a Housing Authority, in circumstances where the employer is prepared to accept vicarious liability in respect of the actions of its employees. 

The Equal Status Acts provide for two types of redress in the event of a valid complaint being found to have been made: (a) compensation and (b) an order that a person or persons specified in the order take a course of action which is so specified.

The named respondent has retired from the County Council.  Therefore, should the complaint proceed against the named respondent and succeed, any direction that might be made against the named respondent would not be implemented as they are no longer part of the Housing Authority.  However, if the complaint was successful and a direction were to be made against the corporate body, such direction could be implemented by the Housing Authority. 

Should the WRC allow the complaint to continue against the named respondent in their personal capacity, the named respondent would be entitled to be individually legally represented in their own right in this complaint, in order to protect their own personal interest and good name, at a considerable cost.  This would make the entire system unworkable, particularly in circumstances where the employer and corporate body having overall responsibility for the matters complained of, is prepared to accept vicarious liability on behalf of its employees. 

Vicarious Liability

The Equal Status Acts provide that a complaint of discrimination may be referred against a named person or an organisation, public body or other entity.  Section 2(1) defines the term “person”:

“person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity .”

Section 42(1) of the Equal Status Acts provides:

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

The purpose of Section 42 of the Equal Status Act 2000 is to allow responsibility for prohibited conduct to be attributed to an employer, where that prohibited conduct is carried out by an employee in the context of his or her employment.  It is submitted that if a person is found to have discriminated in the course of his/her employment (for example implementing a policy on behalf of the employer which may be found to be discriminatory) then it is that person’s employer who may be vicariously liable in accordance with Section 42(1) of the Equal Status Acts.

The County Council submits that the reference to the word “also”, as highlighted by the complainants in their submission documents, can only apply to attribute dual liability where the person whose conduct is complained of is also acting in their personal capacity as opposed to as agent for or on behalf of his/her employer.

In this case any alleged acts or omissions of the named respondent (the liability for which is denied), were acts or omissions that were carried out in the context of the course of their employment for the County Council. There is no suggestion that the named respondent was acting in their personal capacity. 

Therefore, the principle of vicarious liability applies to attach liability to the employer in the event that the complaints are upheld and not to attach some form of dual liability which runs totally contrary to the established principle of vicarious liability. 

Previous Decisions of the WRC

The Workplace Relations Commission has held on a number of occasions that the appropriate respondent to similar complaints is the County Council. By way of sample only of the numerous decisions in this regard, the WRC is referred to the following: DEC-S2006-084 Michael Mongans & others v Clare County Council; DEC-S2008-039 John & Anglea Mongans and Children v Clare County Council; and DEC-S2018-002 Michael and Anne O’Donoghue and their children v Clare County Council.  None of these decisions has been overturned.

Conclusion

The County Council submits that it should be substituted for the respondent named on the complaint form.  Whilst accepting that the Workplace Relations Commission must adjudicate all cases individually, it is nevertheless the case that the Equality Tribunal and the Workplace Relations Commission has previously decided, in numerous cases, that similar complaints should properly proceed as against the County Council and not the named individuals.  Those decisions having been made, it would be utterly unfair to allow complaints now to proceed against named individuals at a time when they are retired from, or have moved on from, their positions with the County Council and, in any event, would not be in a position to comply with any directions which might be made in the event of a finding against them.

The Complainant’s representative expressed her opposition to a renaming of the Respondent on the Decision and argued that this would deflect from personal responsibility in relation to the complaint.

Section 42(1) of the Equal Status Act 2000, provides the following definition of vicarious liability:

42.— (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

The County Council submitted that it was the employer of the Respondent who was named on the complaint form at the time of the alleged contravention and thus was the correct respondent.

In reaching my decision, I am guided by the findings of the Equality Officer in DEC-S2006-084 Michael Mongans & others v Clare County Council where she found as follows:

“The named officials are all employees of Clare County Council and acted in the course of their employment with the Council. In considering this application I have taken account of a Judgment in the High Court in the case of Faughnan v. Maguire concerning an application to have a named defendant removed from medical negligence proceedings. O' Sullivan J stated:

"From the point of view of the Plaintiff, if it does transpire that a court can be satisfied that Dr. O'Brien is in some way legally responsible for his injury, prima facie (and I accept that this point has not been conceded by the Plaintiff) the first Defendant as employer of Dr. O'Brien, would be “accountable”.

O'Sullivan J went on to hold that:

"In my opinion therefore, the balance of justice favours the discontinuance of the action against Dr. O'Brien..."

The reasoning in this judgment is relevant to the application in this case. If the complainants' application for redress is successful Clare County Council will be "accountable". The Equality Officer therefore, considered it appropriate that Clare County Council should be the only named respondent and informed the parties that this is how the cases would proceed.”

Following the above precedent, it is my view that the provisions of section 42(1) of the Equal Status Act, 2000 require that I record the correct name of the parties in my Decision.  I am not satisfied that the name listed as the respondent on the complaint form is the correct respondent as the named respondent worked for the County Council at the time of the alleged contravention and did not provide goods and services in their own right.

I find, therefore, that, in accordance with section 42(1) of the Act, the correct respondent for the purpose of this decision is the County Council and not the individual named on the complaint form.

The Respondent submits as follows:

The Respondent submits that there are issues with regard to the time limits in relation to the herein complaint. 

In a covering page attached to the complaint form, the time period for the referral is given as “from 23rd August without formal withdrawal”.   On the complaint form no specific date is given for the most recent date of discrimination other than a reference to “mid-Autumn”.  Under the heading “Details of Your Complaint” on the complaint form reference is made to “late August 2016” and the eviction notice referred to in both the ES.1 form and the complaint form is dated 23 August 2016. 

Section 21(2)(8) of the Equal Status Act 2000, as amended, provides that ES.1 form to the respondent of the nature of the allegation and the complainants’ intention to seek redress shall be made “within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited contact is alleged to have occurred, within two months after the last such occurrence”. 

In these instances, it appears that the allegations of prohibited conduct (in so far as same can be discerned) occurred on an unspecified date in August 2016 and 23 August 2016.  The Respondent submits, therefore, that the ES.1 form should have been submitted by an unspecified date in October 2016 and 22 October 2016.  The Respondent submits that an ES.1 form dated 23 December 2016 is out of time. 

Even if it is suggested that there is more than one incident of prohibited conduct (which is denied and is not at all apparent from the ES.1 form and the complaint form), the ES.1 form of 23 December 2016 could only have dealt with events occurring on or after 24 October 2016 and there is no suggestion from the ES.1 form or the complaint form that there was any incident of prohibited conduct on or after this date. 

Furthermore, it is noted the complaint form is dated by the Complainant’s representative as 12 August 2017 and was received by the WRC on 16 August 2017.  Section 21(6)(a) of the Equal Status Act as amended provides that a claim for redress in respect of prohibited conduct may not be referred after the end of the period of six 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. 

Using the general time period specified in the ES.1 form and the complaint form referred to above, these complaints should have been referred by an unspecified date in February 2017 and 22 February 2017.  In fact, they were not referred to the WRC until 16 August 2017 and, therefore, could only deal with instances of alleged misconduct on or after 17 February 2017. The Respondent submits that this complaint is clearly out of time and, therefore, that the WRC cannot investigate this complaint in circumstances where it appears that no application has been made for an extension of time on proven reasonable cause. 

The Complainant submits as follows:

The Complainant submits that the refusal of the Respondent to arrange any basic services for the Complainant and members of their family has persisted for many years and that it is ongoing.

The Complainant submits that the date an eviction notice is signed by a staff member of the County Council is not necessarily the day that the eviction notice is served.  The Complainant submits that eviction notices impacted the family throughout the period from August 2017 to the day of lodging the complaint forms with the WRC.  The Complainant submits that the impact is of the eviction notices is intended by the County Council to be ongoing. 

The Complainant submits that there were several reasonable causes for the delay in submitting both the ES.1 form and complaint form, including:

•                     The Complainant and their family felt that they lacked the necessary skills to prepare the paperwork.

•                     The family members did not have the means to pay for legal representation.

•                     No financial assistance to cover the cost legal representation is provided by the State in complaints to the WRC even where the Complainant comes within the protection of one of the nine grounds identified in the Equal Status Act even when the Complainant is alleging a contravention by a state body when that body has access to state funds to cover its legal costs, thereby leading to a stark Inequality of arms.     

•                     The Complainant submits that their representative has no resources to fund their representation.

The Complainant asks the Adjudication Officer to use her discretion to grant an extension of time for this referral as provided for under section 21(6)(b) of the Equal Status Act. 

The matter I must decide is if I have jurisdiction to hear this complaint.  In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

Section 21(2)(a) of the Equal Status Acts, 2000 - 2015, states that:

"Before seeking redress under this section the complainant- 

shall, within 2 months after the prohibited conduct 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.”

In the ES.1 form the date of the alleged discriminatory treatment is given as “23rd August to the present (2016)”.  Given that the ES.1 form is dated 23 December 2016, I am of the view that “thepresent” is the date on which the ES.1 form was signed i.e. 23 December 2016.  I find, therefore, that the ES.1 form was submitted on time.

The time limits for submitting equal status complaints to the Workplace Relations Commission are set out in section 21(6)(a) of the Equal Status Act 2000 which provides that:

“… 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.

Various dates for the alleged discriminatory treatment are given on the complaint form and the associated documentation including: (i) from 23 August without formal withdrawal (in the covering letter); (ii) mid-Autumn (under the heading “What is the most recent date of discrimination”); and, (iii) late August 2016 (under the heading “Details of your Complaint”).  According to the Met Éireann website, the three months of Autumn in Ireland are September, October and November.  Therefore, mid-Autumn is 16 October. 

The complaint form was received by the WRC on 16 August 2017.  In accordance the provisions of section 21(6)(b), the alleged discriminatory treatment to which the complaint form relates is required to have occurred during the preceding six months i.e. on or after 17 February 2017.  None of the dates given on the complainant form for the alleged discriminatory treatment fall within this timeframe. I find, therefore, that this complaint is out of time.

Section 21(6)(b) provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“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.”

In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay.

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

I note the Complainant’s assertion that the delay in submitting both the ES.1 form to the Respondent and complaint form to the WRC was due to the lack of skills and legal representation on the part of the Complainant. However, it is clear that although the Complainant did not have legal representation, they were represented by a very experienced lay representative who has completed ES.1 forms and WRC complaint forms on numerous occasions.  The lay representative would be fully aware that the WRC complaint form requires a minimum amount of information which can be fleshed out in supplementary submissions at a later date.  Accordingly, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Equal Status Act, 2000.

Taking all of the foregoing into consideration, I am satisfied that the notification requirements set out in Section 21(2) of the Acts, were not complied with.

Having carefully considered all evidence available to me, I find that the Complainant has failed to comply with the time limits as set out in section 21 of the Equal Status Act, 2000.

I find, therefore, that I do not have the jurisdiction to investigate this complaint.

Vicarious liability – change of name of the Respondent. Out of time – lack of jurisdiction.