Complainant

Respondent

Anonymised Parties

A member of the Travelling community

A Local Authority

Representatives

Heather Rosen

 Michael Houlihan and Parnters LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020276-001

07/06/2018

This complaint forms part of several linked complaints submitted against five individuals who are/were employed by a local authority. In total there are 14 members of the one family who are members of the Traveller community and who have claimed that they were discriminated against and harassed by the local authority in respect of their accommodation needs. The complainants are represented by Ms Heather Rosen.

The matter first came on for hearing on 18th October 2022 at the WRC offices in Ennis, Co Clare. The complainant’s representative attended the hearing without her clients and sought an adjournment on that day due to health reasons as well as being unable to get instructions from her clients for a number of reasons.

The respondent objected to the postponement and instead sought that the complaints be dismissed as the complainant’s had failed to attend the hearing and they needed to be present to present their complaints.

The adjournment application was granted, and submissions were sought from the complainant’s representative concerning the timing of the complaints and acts of discrimination alleged to have taken place within the cognisable period of the complaints. Submissions were also sought on the issue of the correct respondent to the complaints on the basis that individual staff members of the County Council had been named and the respondent was of the view that the county council should be the named respondent to the complaints.

It was also clarified to the complainant’s representative that the complaints must be in attendance at the reconvened adjudication hearing that would take place in November 2022 and that the complainant’s would be required to address the burden of proof in relation to establishing a prima facie case of discrimination. It was also clarified to the complainant’s representative that if the complainants did not attend a medical certificate would be required in relation to their absence from the hearing.

At the reconvened hearing on 16th November 2022, the complainant’s representative renewed her postponement request on the basis of her own health as well as not being in a position to present any evidence, not having a note taker and not having equipment to show cctv footage in relation to the complaints.

The respondent objected to the postponement application and instead sought a preliminary decision on the issue of the named respondent and the timing of the complaints. The respondent argued that it was in excess of four years since the complaints were lodged and almost 7 years since the discriminatory acts were alleged to have taken place.

The hearing was not postponed, and the parties made written and verbal submissions which are summarised below.

After the submissions and responses had concluded, the members of the family in attendance were unable to stay to give evidence as they had prior family commitments elsewhere. At this point the hearing was adjourned to be reconvened on a day in December 2022. The complainant’s representative sought an alternative venue to the WRC offices in Ennis to hear the complaints as there were difficulties with certain male members of the family attending the WRC in Ennis as a result of difficulties that existed with other families in the area. While it was explored as a possibility, it was subsequently decided that the WRC offices would be used for the hearing in December and the date of 21st December 2022 was set for the third hearing of the complaints.

Anonymisation of the parties

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. 

The complainant was represented by Ms Heather Rosen. Ms Rosen submitted extensive submissions both in advance of the adjudication hearings and also availed of the opportunity to submit supplementary documentation in support of the complaints.

The correct respondents:

The complainants’ representative contends that the appropriate respondents are the individuals that she alleges were involved in discriminatory conduct in relation to the complainants. The complainants’ representative argues that the staff members may have acted in ways that contravened the principles of how the county council should provide services to members of the public and in those circumstances the individuals are responsible for their own actions.

Timing of the complaints

The complainant’s representative contends that the prohibited conduct complained of began in Mid-November 2015 and continues to date. On that basis, and given the continuing nature of the discriminatory conduct, it is contended that the complaints are within time and no extension of time application is required.

Prima Facie case

In relation to this point and noting that only some of the family members were present at the November adjudication hearings, the complainants’ representative submitted that there is no need to have a complainant present to pursue the complaints as the act provides for facts to be established on behalf of another. The complainants’ representative also submitted that the respondent bears the burden of proof under the legislation. The issue of discriminatory conduct on the part of each individual officer of the county council was also addressed by the complainant’s representative in respect of their role in the decision-making process from 2015 onwards which is the starting point of the prohibited conduct and forms the basis of the complaints as submitted. For this reason, the complainants’ representative contends that the individuals should not be required to give evidence in circumstances where the burden of proof rests with the respondent to discharge.

Complainant’s attendance at hearing

The complainant did not attend the adjudication hearing on 21st December 2022. As the complainant is a minor, his complaint was pursued by his parents on his behalf.

The correct respondents.

In respect of the named individuals against whom the complaints are made, the respondent contends that the complainant’s representative has not specified any alleged acts of discrimination or harassment on the part of any individual and seems to be suggesting that the individuals in question should defend their position in circumstances where they are unaware of the specific allegations against them.

Notwithstanding the lack of any specifics in relation to the named individuals, the respondent’s representative contends that the individuals in question are not the correct respondent to the complaints. The respondent contends that the individuals, at the material time were acting in line with their contracts of employment in respect of the accommodation needs of the family and under the direction of the county council. The respondent contends that it is the county council that is the correct respondent to the complaints as it is vicariously liable for the actions of its employees in accordance with Section 42(1) of the Equal Status Act, 2000. The respondent’s representative cited a number of decisions of the WRC Adjudication Services on this point as well as previous decisions of the Equality Tribunal on the same issue and noted that at the date of the adjudication hearing none of these decisions in respect of the appropriate respondent have been overturned on appeal.

Timing of the complaints

The respondent contends that the complaints are out of time. The respondent referred to the failure of the complainants to address acts of discrimination alleged to have occurred in the six-month period prior to the complaints having been lodged on 7th June 2018. The respondent stated that the course of action arising from the alleged discrimination arose in February 2016, yet the complaints were not submitted to the WRC until June 2018 and are manifestly out of time.

Prima Facie case

The respondent contends that the complainant’s bear in burden of proof in relation to their complaints and that the legislation is quite clear in that regard. The complainants must establish facts that the respondent failed and refused to address the emergency accommodation needs of the family and that this occurred because they were members of the travelling community.

The respondent stated that the complaints relate to persistent neglect and a refusal on the part of the county council to assist the complainants yet there are no specifics in relation to the assertions that are made on behalf of the complainants.

The respondent further refutes the position put forward by the complainant’s representative that facts can be established on behalf of a complainant without the complainant being in attendance. The respondent stated that the complainants must establish facts through direct evidence which can then be challenged by cross examination. The respondent concluded by stating that the complainants have not discharged the burden of proof and in those circumstances the complaints must fail.

The Applicable Law

Discrimination:

Sections 3(1) and 3(2) of the Equal Status Act, 2000 at relevant part state as follows:

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)-(h) not relevant

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

Notification requirements:

Section 21(2) of the Equal Status Act, 2000 states as follows:

(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 Commissionor, 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.

Time limits

Section 21(6) (a) and (b) of the Equal Status Act, 2000 provide as follows:

(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.

Burden of Proof

Section 38A of the Equal Status Act, 2000 states as follows:

38A(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

The correct respondent

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 within complaints were submitted against named individuals employed by the county council. The complainant’s representative contends that the individuals are the appropriate respondents whereas the representative for the respondent contends that in accordance with the provisions of the legislation, the county council is vicariously liable for the actions of the staff in question and on that basis the county council is the correct respondent.

On this point I note a numberof Workplace Relations Commission decisions where it has been held on a number of occasions that the appropriate respondent in similar complaints is the County Council. An example of these decisions is as follows: DEC-S2006-084 Michael Mongans & others v Clare County Council; DEC-S2008-039 John & Angela Mongans and Children v Clare County Council; and DEC-S2018-002 Michael and Anne O’Donoghue and their children v Clare County Council. 

I also note that at the date of the adjudication hearing of the within complaint, none of the decisions relating to the correct respondent have been overturned on appeal.

In my view, the individuals who were named as respondents to the complaints were acting in line with their contracts of employment under the direction of the county council and were not in engaged in the provision of services in their own right. The county council is the service provider in this instance and is vicariously liable for the actions of its staff in line with Section 42(1) of the Equal Status Act, 2000. On that basis this decision will reflect the name of the county council as the correct respondent to the complaint.

Timing of the complaints

The complaints were submitted to the Workplace Relations Commission on 7th June 2018. The complainant’s representative contends that the discriminatory treatment complained began from mid-2015 onwards but continues to date in circumstances where the county council continues to discriminate against the family in question by failing and refusing to carry out the necessary refurbishment work at their home. On that basis the complainant’s representative contends that the complaints are in time due to the ongoing nature of the discriminatory treatment and harassment.

The respondent’s position is that the complaints are out of time as the issues complained of arose in mid-2015 and when the Equal Status notifications were submitted in February 2016, the complaints should have been lodged to the WRC within four months thereafter. The respondent pointed out that no application to extend time had been made by the complainant’s representative yet at the same time an application has been made to dispense with the notification requirements of the Act.

I also note the provisions of Section 21(3)(a) of the Equal Status Act, 2000 which at relevant part states as follows:

21(3) (a) On application by a complainant the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Courtmay—

(i) ……

(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.

In respect of the within complaint the ES1 notification was submitted to the respondent in February 2016. No complaints were submitted to the WRC until June 2018 at which point the complainant’s representative alleges that the discrimination and harassment had been ongoing since 2015 and that the complaints were therefore in time.

Having submitted the ES1 notification to the respondent, the complainant’s representative was required to submit the complaints to the WRC in line with the provisions of the legislation in 2016. On the one hand the complainant is suggesting that the complaints are in time due to the ongoing discrimination and harassment and at the same time is requesting that notification requirements be dispensed with. On this point I note that there have been no exceptional circumstances put forward to justify a dispensing of the notification requirements. In respect of the discriminatory treatment and harassment complained of, the essence of the complaints is that the actions of the county council amounted to discrimination and harassment in 2015 when the family’s accommodation needs were not met. The complaints lodged to the WRC in June 2018 in respect of this are clearly out of time.

Having considered the submissions of both parties, the complainant’s evidence and the totality of the documentation submitted, I find that the complaint was submitted outside of the time frames prescribed by the legislation and is therefore statute barred.

Discrimination, harassment, complaint out of time.