Complainant

Respondent

Anonymised Parties

Member of the Public

Government Offices

Representatives

  Self

Cathal McGreal BL instructed by in house solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055736-001

27/03/2023

The Complainant was divorced in 2016. On the day following the completion of the divorce he received a communication from the Respondent the contents of which he believes were prompted by his ex-wife. There were subsequent communications by telephone and in writing on behalf of the Respondent which he found objectionable and discriminatory. Efforts to have decisions of the Respondent addressed and/or reversed continued over a period of almost seven years. Ultimately his complaints were upheld by an Ombudsman including complaints about the delay in addressing his complaints.

The following dates related to the processing of a complaint under the Equal Status Act in accordance with Section 21 and are relevant in considering the application of that Section.

Date of ES1 to the Respondent             02.03.23

Date of complaint to WRC                      27.03.23

Date of Respondent response to ES1   31.03.23

The complaint is made against the Respondent as a provider of a service.

Section 21(4) date on which the ESI was served on the Respondent. In response to the Chair, the Complainant repeated the date which he had included in his written statements-20.02.23 as the date of the notice. In response to the details provided by the Respondent, the Complainant accepted the correction to 02.03.23 and the date on which the complaint was submitted to the WRC and the date of the Respondent reply to the ES1(as set out in the background).

Section 21 Subsection 6-time limit for submitting a complaint to the WRC

At the hearing and in response to the Chair, the Complainant set out the specific dates on which he alleges acts of discrimination occurred and the ground which he was associating with each act: June 2016 - on a date between 8 and 20 June 2016-a telephone call with a named employee of the Respondent-prohibited ground-gender.

June 2016-demand by Respondent for arrears of payments-prohibited ground-family status

21.07.2016 -refusal of child payment -prohibited ground -gender

03.08.2016 -disparaging remark in correspondence about the status of his divorce-prohibited ground-family status

On 31.01.23-the Complainant received correspondence from the Respondent -which confirmed that he had done nothing wrong. This took 5.5 years to achieve following breaches of the Respondent own commitment to a twenty-day appeal process and having rejected his claims in 2022 through a named employee of the Respondent. The Complainant clarified that the contents of the letter of 31.01.23 were not discriminatory, however the effects of the discrimination continued during the intervening period which was caused by the delay in dealing with his complaints, adding that he had engaged with the Respondent through emails and calls during the intervening period. Those delays were in breach of the Respondents own charter which committed to responding to complaints within twenty days-whereas in his case it took 5.5. years in total.

It is the Complainants position that the six-month period (in Section 6 of the ESA) was in play from 31.01.23-the date of the letter which found he had done nothing wrong.

Referring to the Respondent submission, the Complainant was asked by the Chair if he accepted that he was on notice from the Respondent in their procedures/guidelines that if he were dissatisfied with a decision he could in certain circumstances, make a complaint to the WRC. The Complainant confirmed that he was aware, but then pointed to the letter from the Respondent responding to the ES1 where he said ‘mechanisms are not to be usedcumulatively and exhaustively’ which contradicted the statement that he could make a complaint to the WRC.

Section 21 Subsection (4) The Respondent had not raised this issue and had decided against raising any issue in relation to subsection (2) given all of the exclusions which an AO can apply under that subsection and perhaps subsection (4) should be read in that context.

On the date of issue of the ES1-at the hearing the Respondent pointed to the documents contained in their submission including a posting date and these clearly point to the 2 March 2023 as the date the notice issued to the Respondent. The date of reply as per their submission was 31 March 2023.

Section 21 Subsection 6-time limits

Respondent provided a detailed submission in advance of the hearing on the application of the time limits to the complaint. At the hearing, the Respondent objected to the inclusion of a telephone call in June 2016 in the discrimination complaint-no prior notice of that claim was provided by the Complainant.

On the matter of the time limits under Section 21(6) it is the position of the Respondent that the complaint is ‘out of time’ by reference to that section.

The first reference to discrimination by the Complainant in his communications with the Respondent was on 27 April 2022. This points to his issues prior to that date being in relation to the affront to him in the manner in which his issues were addressed and the inordinate delay-and not one of discrimination. His reference to discrimination in April 2022 was a reference to an event in 2016. The time limits specified in Section 21 apply to the date of the discrimination or the last such date. The Complainant was aware that there is an issue regarding the time limit for investigating his complaint as he referred to it in his own complaint to the WRC. In terms of the reason for his delay in making a complaint under the Act, the Complainant refers only to the delays by the Respondent (in dealing with his complaints to them). It is the case that the Complainant waited until a decision for the Respondent and another external body before commencing proceedings under the Equal Status Act and to the WRC.

The Complainant and access to professional advice. The complaint procedures operated by the Respondent included reference to the right to make a complaint to the Workplace Relations Commission.

Were the Adjudication Officer to consider an extension of time, regard must be had to decisions of the Labour Court under employment legislation: Cementation Skanska, Troia  Restaurants v Marciniak  Business mobile Security Services v John McEvoy each containing the tests to be applied when a Complainant sought an extension of the time limits contained in legislation. A delay is not discriminatory. Reference to 03.08.2106 does not represent a continuum or one of a series of incidents. This complaint is about what happened in 2016; the Complainant has offered no justiciable explanation as to the delay [in submitting the complaint]; no explanation can be accepted by this tribunal at this remove.

At the outset of these deliberations on the interpretation and application of the redress terms of the Equal Status Act and as pointed out to the parties at the hearing, some of the terms of Section 21 are unique to this legislation. While comparisons are drawn as they were in this case with the Employment Equality Act and decisions which have emanated from the Labour Court, what can be safely said is that the Equal Status Act places a higher burden on a complainant in terms of the steps they are required to take in considering and then submitting a complaint under the ESA compared to the EEA or indeed just about any other employment legislation. While it may be said that the Equal Status Act is not essentially about employment matters and those making complaints under the ESA may be strangers to the Respondent, it is a matter of fact that the combination of section 21 subsections (2) and (4) simply because they require the Complainant or would be Complainant to serve certain notices within a certain time limit and to observe a certain waiting period in respect of that response, then if nothing else those steps  eat into the time limits available under in subsection (6) for submitting a complaint to the WRC. It is of course open to an AO to take account of the effect of these subsections in certain cases and I can say that were the issues around timelines under subsection (6) down to the effects of the legislation itself, I would have been open to an argument at least for exercising the reasonable cause extension contained in section 6(b) had the complaint fallen within the second six month time limit up to twelve months provided for in subsection that subsection.

The following are the relevant extracts from Section 21 of the Equal Status Act 2000 as amended, highlighting the specific subsections for consideration in this case on the matter of jurisdiction to investigate the complaint.

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. (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.

(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.

The terms of Section 21 subsection (4) are clear. The person issuing an ES1(or its equivalent) must allow a period of a month to elapse before that person can submit a complaint to the WRC. Given the general understanding that the purpose of the ES1 is to allow a would-be Respondent to reply to the notification of an issue and to explain their position prior to a complaint being made to the WRC-the section has meaning-allowing the would-be respondent some time. Without such a waiting period, why have a requirement that a Respondent reply to an ES1 or its equivalent and then allow elsewhere that an inference can be taken from a failure to respond.

In submitting a complaint to the WRC on 27 March when the ES1 was posted on 2 March 2023, the Complainant acted in breach of Section 21(4) of the Equal Status Act 2000 as the Respondent had not replied when the complaint was submitted to the WRC and neither had one month elapsed since the ES1 was posted by the Complainant. The consequences of this conclusion are clear- an Adjudication Officer shall not investigate a complaint where the Complainant has not complied with the terms of sub section (4). On this basis I find that I do not have jurisdiction to investigate the complaint.

For the sake of completeness and given that the Respondent pitched their arguments regarding time limits in the context of Section 21 subsection (6) I have decided to address those arguments made by both parties.

Section 6

(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 thecase 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.

The difficulty for the Complainant is that his case is based on two elements:

Firstly, acts of discrimination which he says occurred in 2016. His complaints each relate to events or acts of the Respondent in 2016 as set out in the summary of the Complainants case. It is abundantly clear from the hearing that the Complainant cannot cite one single ‘act’ of discrimination on any prohibited ground after August 2016. The Respondent is correct in contending that a delay is not an act of discrimination. A delay in dealing with a complaint  may be a factor in a case where complaints of discrimination are made say within an employment context-but this will then fall more likely to be considered in the context of vicarious liability. In the context of the factor of delay, it is worth noting that the Complainant received the report informing him that his complaint was upheld and he posted his ES1 form on the same date-02.03.23. This coincidence of timing suggests very strongly that the Complainant was waiting for the outcome of that other process before moving to commence proceedings under the Equal Status Act although he had first mentioned discrimination some eleven months earlier. This conclusion suggests that the Complainant did indeed make a choice about the routes he decided to pursue and chose the internal/external complaints procedures over the Equal Status Act,2000. This was his choice to make and he was entitled to do so in his own best interests as he saw them, but he does not meet the tests set by Section 21(6).The acts of discrimination complained did not occur within the six or twelve months prior to submitting a complaint to the WRC As remarked by the Respondent representative at the hearing the precedent set by the Labour Court in Business Mobile Security Services Ltd v John McEvoy is particularly relevant to this case where the Complainants in both cases sought to rely on internal/external appeal systems available to them before pursuing discrimination complaints under the relevant equality-based legislation.

The second element of his complaint which he claims brings him within the scope of Section 21(6)-as he clarified at the hearing- the effects of those acts extending in a period up to January 2023. Effects are not grounds for a complaint of discrimination. They are grounds for claims of redress where discrimination is proved, but they do not stand alone as a prohibited ground quite simply because they do not constitute act/s of discrimination either in isolation or ongoing. It follows that a person alleging discrimination under the statutory equality legislation may indeed make cumulative and exhaustive complaints and is not confined making a complaint to one place. However, any complaint under the equality legislation, made in the first instance to the WRC, must have regard to and comply with the relevant statutory time limits. 

As the complaint was submitted outside of the time limits contained in Section 21(6)(a) and (b) of the Act, an Adjudication Officer does not have jurisdiction to investigate the complaint/s under the Equal Status Act 2000, as amended.

CA-00055736 As the Complainant did not adhere to the terms  Section 21(4) and neither did he submit a complaint within the period of time set out in Section 21 (6) of the Equal Status Act,2000  an Adjudication Officer does not have jurisdiction to conduct the investigation sought by the Complainant when the relevant facts are examined against the terms of each of these subsections of Section 21.

Application of section 21(4) and (6) of the ESA-jurisdiction