Complainant

Respondent

Parties

Míchéal  Ó Lochnáin

An Roinn Coimirce Sóisialaí Ionad Intreo

Complainant

Respondent

Anonymised Parties

Representatives

Séagh Mac Siúdáin FIOS

Jennifer Murray Employment Law Section

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050633-001

16/05/2022

The complainant submitted that he was discriminated against on the grounds of race by the respondent when they failed to provide an Irish Language Service in his dealings with the respondent about his Social Welfare Payments. The claimant further contended that the complainant had not been fairly treated arising from their failure to respond to the ES1 form. The respondent rejects the complaint and submits that there is no jurisdiction to hear the complaint in circumstances where the complainant failed to issue the ES1 form within the time limits set down in the Act. It was further submitted that the matter was not appropriately before the WRC and that the issue was a matter for An Coimisinéir Teanga. It was submitted that the complainant had failed to provide any evidence to support his allegation of discriminatory treatment.

The complainant’s representative submitted as follows:

 FIOS Consultants are acting on behalf of Míchéal Ó Lochnáin regarding a biased, negative service he has received as someone who speaks Irish as his principal language.

The Department (Section) which has failed to provide an Irish language service or interpretation service has sent the ES1.  aMíchéal Ó Lochnáin is a native Irish speaker who lives in a Gaeltacht Area, Category A, under the Official Languages Act.

State services are supposed to be made available in Irish in Gaeltacht Areas, especially Categories A, B and C.  This is a state policy that does not primarily involve the Workplace Relations Commission but we are keeping the Commission informed by way of background information.

The Department of Social Protection has already sent the ES1 and we have not received a reply.

Arising from this, Míchéal Ó Lochnáin has not been dealt with fairly and he did not receive the appropriate service in the appropriate language.  If he had received an Irish Language service, Míchéal Ó Lochnáin would have been able to avoid anxiety and health problems.

The complainant’s representative asserted that the matter at issue was whether as of right the complainant was entitled an Irish language service and questioned whether the complainant would have to ask for such a service. The representative referred to  the complainant being disadvantaged by lack of a translation service .He submitted that the respondent was in breach of Sections 4 & 5 of the Act as well as Section 21 of the European Charter of Fundamental Rights, 2009.

It was asserted that the respondent’s witness Mr. H apologised for misunderstanding the matter in an interview with the complainant in April 2022.

It was contended that the matter was not appropriate to An Coimisinéir Teanga or the Official Languages Act – it was submitted that this was a matter of Equality and the duties of the State. It was contended that the Equal Status Act conferred rights and that the complainant’s side were depending on the European Charter of Fundamental Rights to affirm these Rights.

It was submitted that the complainant was very upset when he received the correspondence from the DSP and was very stressed by the bureaucratic language – it was advanced that the complainant was being told he was breaking the law. It was submitted that the complainant was in a very poor state of health at the time and it was not fair the way he was dealt with without giving him the service in his own region or language. It was asserted that the respondent should be giving the service and the complainant should not have had to look for it. It was submitted that the complainant felt in the halfpenny place when interviewed – he was 7 months under a cloud and was fearful and upset. It was submitted that the case was based on Sections 4 &  5 and that Section 3 had no bearing on the matter. The representative asserted that the service was not offered in the Connemara Gaeltacht and that it was only when it was asked for that it was considered.

 In response to the notification arguments advanced by the respondent with respect to jurisdiction, the complainant’s representative asserted that there were 2 incidents – 1 was short term and one was a continuing incident. It was submitted that from Oct. 21 to April 2022 the process was contaminated by discriminatory treatment by the respondent.

Summary of Pertinent Evidence of Complainant:

The complainant said that when he got the letter from the DSP calling him for an interview he had never seen such a letter before. The complainant said his natural language was Irish and he did not realise he had a right to be heard in Irish so he continued with the process. He did not understand much of the content – it gave him a lot of stress and anxiety at the time – he was not used to operating outside of Connemara.

Under cross examination the complainant confirmed that FIOS had written to the respondent explaining his difficulty with English. He confirmed that in his correspondence he did not request a service through Irish. The complainant when asked if he applied for the Invalidity Pension and Carers Allowance in English responded that he was no good with forms and got help. He confirmed that at the meeting with Mr. H on the 4th.October, the interview was in English – he did not know he was entitled to a service in Irish and that his representatives subsequently wrote on his behalf to explain his difficulty with expressing himself in English. It was put to the complainant that subsequent to this the exchanges between he and the DSP  took place through Irish  while the correspondence between the respondent and FIOS was in English. The claimant indicated that he thought the email of the 15th.Oct.2021 may have been written by his wife.

When summing up the complainant’s representative asserted that the respondent’s representatives had confirmed that it was a claimed service that  was provided rather than an offered service. The representative contended that no service was provided other than a reactionary service that was done on demand. He asserted that from their perspective the matter was very simple – the complainant was the subject of discriminatory treatment from October 2021 – April 2022.

The respondent’s representative submitted as follows :

1. Preliminary Issue

 1.1 Mr. Ó Lochnáin (the Complainant) did not notify the Department of Social Protection (the Respondent) of the alleged discrimination within two months (nor within four months) as required by s. 21(2) of the Equal Status Act 2000.

 1.2 The complaint being made is that Respondent did not provide a service in Irish and did not provide a translator.

1.3 While the complaint does not give specific dates of the alleged discrimination, the latest date that the Respondent communicated in English with the Complainant was the 8 December 2021. After that point, all correspondence with the Complainant was through an interpreter. The ES1 form was only received by the Respondent on 20 April 2022. Consequently, it is submitted that the complaint is not a valid complaint under the Equal Status Acts 2000-2018.

2. The Complaint

2.1 Without prejudice to the foregoing, there is no evidence to show that the Complainant was subject to discrimination as set out under the Equal Status Acts 2000-2018. If the Complainant seeks to remedy any failure on the part of the Respondent as regards a breach of his language rights, the present forum is not the correct forum for that complaint (as acknowledged by the Complainant in his complaint form). In those circumstances, it is submitted that the Workplace Relations Commission does not have the jurisdiction to adjudicate upon the complaint.

2.2 Without prejudice to that assertion, there is no evidence to support the allegation that the Respondent acted contrary to the requirements of the Equal Status Acts. The Complainant made a complaint to the Workplace Relations Commission on 16 May 2022 stating.

 (1) that the Respondent failed to provide service through Irish to the Complainant and failed to provide an interpreter,

  (2) that the Respondent failed to respond to the ES1 form. The Complainant alleged that, arising from this, the Complainant had not been treated fairly and that the Respondent failed to provide the service in Irish.

2.3 As regards the second complaint, the Respondent received the ES1 form on 20 April 2022 and the complaint to the Commission was made on 16 May 2022 i.e. within 30 days from receipt of the ES1 form. The Respondent was entitled to 30 days within which to respond to the notification.

 2.4 The Respondent sent an ES2 form to the Complainant on 22 August 2022 (Appendix 1).

2.5The first of the Complainant’s complaint will be dealt with below.

 3. Background

 3.1 The Complainant has alleged that the Respondent failed to provide a service through Irish and further failed to provide a translator.

 3.2 Although this issue is more appropriately a matter for An Coimisinéir Teanga, the Respondent’s policy is that when correspondence is received in Irish, it will respond in Irish. The Respondent is fully committed to fulfilling its obligations under the Official Languages Acts and in addition to responding in Irish to correspondence submitted in Irish, the Respondent ensures that where a service through Irish is requested, the Respondent will make all efforts to meet this demand. The relevant websites (MyGovID, mywelfare.ie, welfarepartners.ie) are available in Irish and English.

 3.3 A copy of the relevant policies is affixed at Appendix 2. The Customer Charter provides (at p. 3) that the Respondent will provide services in all languages. It also provides (at p. 4) that the Respondent will make every effort to facilitate persons who wish to conduct their business through Irish including access to an Irish speaker, as well as providing application forms and documents in Irish, where required.

 3.4 It is submitted that in the circumstances of this case, as will be outlined below, there has been no breach of the Complainant’s language rights. Regardless of that, the issue of whether there has been a breach of his language rights is not a matter for determination by the Workplace Relations Commission

 3.5 It is clear from the evidence that the Respondent did not discriminate against the Complainant on the grounds of race. The following is the relevant background to this claim (documents contained in Appendix 3): 

21 September 2021 – the Complainant was invited to attend an interview with the Respondent regarding his social welfare payments. The correspondence was in English.

 4 October 2021 – the Complainant had the interview with the Respondent in Galway City. The interview was in English. The Complainant raised no objection and made no request to have the interview in Irish. The Complainant was asked to provide more information.

 15 October 2021 – the Complainant provided further information by email. The email was in English.

17 November 2021 – the Respondent sought more information by email. The email was in English.

30 November 2021 – the Complainant’s wife responded to say that the Complainant needs more time to fulfil the request. This correspondence was in English and the reply from the Respondent was in English.

 2 December 2021 – the Respondent emailed the Complainant to arrange a telephone call. The Complainant’s wife replied in Irish on 3 December 2021 to say that the Complainant would not be able to take a phone call and that Fios Consulting would be representing the Complainant from that point forwards. This was acknowledged by the Respondent in Irish.

 8 December 2021 – the Respondent wrote a letter to the Complainant seeking a signed authority so that the Respondent could engage with Fios Consulting. That letter crossed with a letter from Fios Consulting formally advising the Respondent that they were representing the Complainant. Both letters were in English

 The letter from Fios Consulting stated that the Complainant never sought services from the State through Irish on the basis that looking for services through Irish puts a customer at a disadvantage. The letter stated that the Complainant finds it difficult to seek out services or explain his situation to agents of the State through English. The Respondent wishes to point out at this time that the Complainant was in receipt of two social protection payments – invalidity pension and means-tested carer’s allowance.

18 January 2022 – the Respondent wrote to Fios Consulting in English to ask to arrange a phone call with the Complainant.

 3 February 2022 – Fios Consulting replied in English to agree a phone call on 9 February 2022.

9 February 2022 – an interpreter was provided by the Respondent and the Complainant conducted the interview in Irish. Following this, the Respondent engaged with Fios Consulting to arrange a further interview. All correspondence from the Respondent and Fios Consulting was in English.

 26 April 2022 – the parties had an in-person interview and the Respondent, again, provided an interpreter so that the Complainant could conduct the interview in Irish.

. 4. Legal Submissions

4.1 The Complainant has issued a complaint pursuant to s. 21 of the Equal Status Act 2000 on the grounds of race. Section 3 states as follows: For the purposes of this Act discrimination shall be taken to occur where a person is treated less favourably than another person is, had been or would be treated in a comparable situation on the [ground that they are of a different race].

 4.2 The Complainant has alleged that the Respondent failed to provide a service in Irish and failed to provide a translator. There is no evidence to support that allegation. The policy of the Respondent is to provide services through Irish if that is requested. The policy of the Respondent is to communicate with a customer in the language chosen by the customer (whether Irish or English). The Complainant engaged with the Respondent in English initially. Once it became apparent that the Complainant sought to engage with the Respondent in Irish (by letter from Fios Consulting on 8 December 2021) that was facilitated and all further engagement with the Complainant was through the use of an interpreter. Fios Consulting continued to engage with the Respondent in English.

 4.3 It is well established that the first requirement in a claim for discrimination is that the Claimant must establish facts from which it may be presumed that the principle of equal treatment was not applied to them (s. 38A of the Equal Status Act 2000). In Olumide Smith v Office of the Ombudsman and others ([2022] IECA 99) (Appendix 4) it was held that it was necessary in that case for an Adjudication Officer to refer to a comparator person whom the complainant in that case considered would have been treated differently and more favourably. The Complainant has failed to identify a comparator who was treated more favourably. Nevertheless, it is submitted that had a person who did not speak Irish as a native language or was resident in a Gaeltacht area engaged with the Respondent in the same manner, there would have been no difference in treatment (according to the Respondent’s policy) and consequently, the Complainant was not subject to discrimination.

4.4It is submitted that, in the event that the Workplace Relations Commission determines that it has jurisdiction to hear the within complaint , the complainant has not made out a prima facie case of discrimination.

  The respondent’s representative asserted that the complaint could not succeed as a matter of law. It was submitted that in order to succeed there had to be evidence of discriminatory behaviour shown and no such evidence had been presented. It was submitted that while the complainant was now referencing disability, the complaint was submitted on the grounds of race and not disability. It was submitted that the complainant’s case was 2fold – the Dept. failed to provide a service in Irish or a translation service and secondly that the Dept. failed to respond to the ES1 within 2 weeks of delivery. It was submitted that the case was properly a matter for An Coimisinéir Teanga.  It was advanced that as soon as a request for the case to be dealt with in Irish was submitted this was facilitated. It was submitted that this was not a matter for the WRC- it was contended that if the complaint fails though the Coimisinéir, it does not mean that there is a remedy through the WRC or that it falls under the Equal Status Act.

It was submitted that the complainant had failed to establish a prima facie case of being treated less favourably on the grounds of race or disability. It was contended that for discrimination to occur, the person must be treated less favourably than another person of a different race or without a disability. It was submitted that when a person requests a service through Irish the State can provide translation / an interpreter which is what happened in this case. Arising from the correspondence from FIOS on the 8th.Dec. the Dept. took it that the complainant would prefer a service through Irish and that in any engagement with the complainant thereafter an interpreter was used.

It was submitted that the latest incident of alleged discriminatory treatment was the 8th.Dec. 2021 and that the evidence had shown that the ES1 was sent on the 20th.April 2022.This was not only in excess of 2 months but also in excess of 4months and consequently, the notification requirements under the Act were not met. No extraordinary circumstances had been advanced to waive those requirements.

The respondent’s representatives contended that a distinction had to be drawn between the provision of a service and the instant engagement which involved being called for interview to answer questions. It was asserted that irrespective of nationality or disability, a translation service is offered through Irish. It was submitted that the respondent were well aware of their obligations under the Official Language Acts .All application forms were available in Irish and English.

 Summary of Pertinent Evidence of Mr.H

The witness advised that he was assigned to the respondent’s Special Investigations Unit.

The witness set out a chronology of his engagement with the complainant – his role was to investigate claims and ensure they are claimed correctly. The witness confirmed his first interview with the complainant was on the 4th.Oct. 2021 and it was in English. He was asked if the complainant requested the interview in Irish and replied No. The witness said that he did not get the impression that the complainant had any difficulties. The witness gave an overview of the correspondence exchanged between the parties. The witness said he required information to establish entitlement to social protection payments and the process had been delayed because the information was awaited. The witness charted the ensuing exchanges between his office and the complainant and his wife and clarified that he replied in Irish to the complainant’s wife’s correspondence of the  2nd.Dec. 2021 on the 3rdof December .He asked his colleague Ms. M  to assist him by acting  as translator after the letter from FIOS on the 8th.December.The witness confirmed that from the 9th.Feb. – 6th.April 2022 the engagements took place through an interpreter. The witness said he dealt with Connemara and that if anyone indicated they wanted a service in Irish, he would arrange it.

Under cross examination the complainant’s representative asserted that the witness had apologised when he discovered the difficulty the complainant had with dealing with the respondent in English and   referenced the payment of a Gaeltacht allowance to the witness and another party. When questioned about training on State Policy on Irish the witness repeated that when someone required a service through Irish, he organised it. The complainant’s representative contended that the policy was a reactionary policy and asserted that a service was not provided in the Connemara Gaeltacht and was only considered when it was asked for. The representative stated that in most cases clients had to travel to go to the office

In summing up the respondent’s representative advanced that from receipt of the FIOS letter of the 8th.Dec. 2021, every interaction with the complainant was through the use of an interpreter and this had been accepted by the complainant. It was submitted that the last occurrence of the complaint was the 8th.Dec. 2021 – the ES1 form was not submitted until the 20th.April 2022 contrary to the notification requirements under Section 21 of the Act. It was submitted that accordingly the complaint was invalid.

It was submitted that without prejudice to the foregoing it was incumbent on the plaintiff to give prima facie evidence. The complainant referred to grounds of race in his complaint form – referencing less favourable treatment than another person on the grounds of race. It was contended that while the complainant’s representative introduced grounds of disability , that disability was not material or central to the matter .It was submitted that the complainant failed to establish a prima facie case of discrimination and  the provisions of Olumide Smith v Office of the Ombudsman and others( [2022]IECA99)   were invoked in support of this contention and in support of the earlier arguments  raised about the comparator. It was submitted that the complainant must show proof that a person of a different race was dealt with differently. It was submitted that it was factually inaccurate to describe the respondent as failing as the translation was provided from Dec. 2021 onwards. It was asserted that the respondent’s representatives had already confirmed that regardless of the language status of the applicant, the policy on translation applied across the Board. It was submitted that the respondent had a statutory duty to review claims – to protect the exchequer. The complainant was invited to interview to discuss eligibility for payments and that his rights were protected when he was provided with a translator when requested. It was submitted that no evidence whatsoever had been presented to support a complaint of discriminatory treatment on the grounds of race or disability.

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.

(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 by referring the case to the Director,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, 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.

(3) If, on application by the complainant, the Director is satisfied—

(a) that exceptional circumstances prevented the complainant from notifying the respondent in accordance with subsection (2), and

(b) that it is just and equitable, having regard to the nature of the alleged conduct and to any other relevant circumstances, that the period for doing so should be extended beyond the period of 2 months provided for in that subsection,

the Director may direct that, in relation to that case, 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; and where such a direction is given, this Part shall have effect accordingly.

(4) The Director shall not investigate a case unless he or she 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) Subject to subsection (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.

(7) If, on application by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant's case from being referred within the time limit specified in subsection (6)—

(a) the Director may direct that, in relation to that case, subsection (6) 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

(b) where such a direction is given, this Part shall have effect accordingly.

(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.

In light of my decision that a waiver of notification requirements is not warranted, I find the complainant has failed to meet the notification requirements under Section 21 of the Act and consequently , I have no jurisdiction to proceed with an investigation.