Complainant

Respondent

Anonymised Parties

Member of the Public

 Courts Service of Ireland.

Representatives

  Self

Emmet Whelan Byrne Wallace Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054381-001

04/01/2023

This case is concerned with complaints arising from the alleged conduct of a person described by the Complainant in her complaint as the senior courtroom clerk in a family law court on 25 November 2022. By reference to the Equal Status Act-the Respondent is described by the Complainant as a provider of goods/services. The protected ground on which the complaint is based within the complaint form is one of religion, with ‘other’ also ticked. However, at the hearing the ground of religion/ religious belief/background or lack of belief was the only protected ground referenced. Harassment and victimisation were also included in the ES1 form issued to the Respondent and in the documentation provided by the Complainant for the hearing. This Decision applies to all of the allegations of direct and indirect discrimination comprehended by the submission of the Complainant.

1.       The legal advisers are representing the Courts Service in this matter-although they are not the named respondent. The named Respondent-a person referred to as “The senior courtroom Clerk” does not exist. The person who dealt with the Complainant on the day in question appears to have been the Circuit Court Registrar in which case the complaint should have been made against the Courts Service and should be dismissed on that basis. They also expressed some concern as to possible breaches of the in-camera rule for family court cases in documentation provided by the Complainant.

2.       The WRC has no jurisdiction to deal with the case on the basis that

·       The administration of justice is not a service as defined in Section 2 of the Equal Status Act- a public or other service- nor is it a disposal of goods or services as defined in Section 5

·       The concept of judicial immunity extends to the conduct of the Registrar acting in Court proceedings

Precedents were cited in support of the position that the Registrar/Courts Service are involved in the administration of a public law function and as such are not subject to complaints under the Act. Each of the decisions cited was provided by way of a link within the submission with the determination Smith v Mary Kelly High Court Registrar CA-00028067-001 and CA-00029058-001-ADJ-00021395 cited as the most relevant as itdealt with the conduct of a Court Hearing.

The Respondent provided copies of the Courts and Court Officers Act 2009 and the Court Officers Act 1926.

3.       The complaint lacks clarity as to the basis of the complaint of discrimination which fundamentally obstructs any respondent in understanding the allegations presented by the Complainant and responding to those allegations.

4.       Prior to the hearing and again on the day, the Respondent sought the dismissal of the complaint as being frivolous, vexatious and/or misconceived.

5.       In response to the Chair, the Respondent confirmed that there is a complaints system within the courts service.

1.       The lack of clarity in the complaint as presented. The Complainant had provided documentation in advance of the hearing.  In response to the preliminary issues raised by the Respondent the Complainant was invited to provide a brief outline of the issues at the court hearing in November 2022 which led to the complaint being made. These were explained as relating to the manner in which a holy book/scriptures was being used/provided by the person identified in the complaint indicating a bias of hate and related harassment and victimisation all on grounds of religion. The Complainant spoke about the effects of the alleged behaviour on a vulnerable person, a breach of human rights causing damage to mental health and wellbeing. Reference was also made to the facilities provided at the Court, or the lack of them-referring to there being no reception and no consultation rooms as examples. As both a taxpayer and a person involved in a civil case, the Complainant found this service unacceptable.

2.       Regarding the identity of the person identified in the Complaint-neither that person or another person employed at the Court identified themselves or their positions by way of their correct title.

3.       Regarding the in-camera rule and data protection, the Complainant agreed with the respondent stating that she was the only person involved who would be named.

4.       The Complainant did not agree that a complaint could not be brought under the Equal Status Act, that the Court is set up to provide a service. The taxpayer is paying good money for that service. Religion has everything to do with the case and therefore the place to make the complaint is to the WRC. If this happened to her it will happen to others, nothing will change.

5.       In response to the Chair, the Complainant advised that the judge was present at all times during the proceedings.

6.       Asked by the Chair why she had not utilised the complaints system within the Courts Service, the Complainant replied that they were not independent, that there was a strong possibility they would find in their own favour therefore the correct place to refer the complaint was to the WRC as she considered this was a wider issue than just the particular court.

1.       Incorrect Respondent and applications to have the complaint dismissed prehearing.

Based on their own submission, I am satisfied that the Courts Service of Ireland is the correct Respondent for the purposes of this case and not an individual employed by or under that body or the related legislation and who is engaged in the administration of justice under the related legislation.

However, the complaint is not dismissed on the ground sought by the Respondent i.e., that she incorrectly identified a post and by implication a postholder who does not exist. Her explanation that the person did not identify their position on the day in question is found credible and the Respondent suffered no material disadvantage in defending the case as a result of her error due to a lack of knowledge. Indeed, a person identifying himself as a Combined Court Office Manager wrote to the WRC as far back as 13 March 2023 demanding that the complaint be dismissed and implicitly threatening civil proceedings against presumably the Complainant for an alleged breach of the in-camera rule.  I wish to express some concern at the nature of such a response to a complaint under the Equal Status Act directed as it was from one body engaged in the administration of justice to another. There is a provision to apply for a private hearing and/or that the decision be anonymised where there are legitimate concerns about the disclosure of material covered by the in-camera rule. Given the outline of the complaint provided by the Complainant and the material she provided, it is not immediately clear that her case is grounded in sensitive material, but rather that it is based on the alleged conduct of a person engaged in the administration of justice. The option of dismissing a complaint prior to hearing is open to the Director General of the WRC and then the Adjudication Officer to whom the complaint is assigned by the Director General. Given the nature of the functions of the WRC including the oversight of anti-discrimination provisions contained in EU and National legislation, the power of dismissal without any hearing at all is one which is, and should be, exercised with great caution. The grounds on which the application for dismissal was made on two occasions prior to the hearing were not justification for such a draconian approach in this instance.

2.       Jurisdiction of the WRC to decide the complaint under the Equal Status Act.

Extract from the Equal Status Act 2000

(6) In this section—

“provider of a service” means—

(a) the person disposing of goods in respect of which section 5(1) applies,

(b) the person responsible for providing a service in respect of which section 5(1) applies,

(c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6(1)(c) applies,

(e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section, or

(f) a club within the meaning of section 8(1) in respect of admission to membership or a service offered to its members,

as the case may be, and “service” shall be construed accordingly;

“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.

The information provided by the Complainant and the basis of the documentation submitted in the form of the ES1 and that supplied to the WRC are all concerned with the administration of justice by an individual operating under the direction of a judge in a courtroom. The taking of sworn evidence including swearing to tell the truth, whether giving that commitment through a deity or not, is an integral part of the process of administering justice-hence it is now part of the proceedings at full hearings conducted by the WRC as directed by the Supreme Court. Many of the decisions cited by the Respondent are concerned with decision making by the judiciary or quasi-judicial entities and as such are not entirely relevant to the circumstances of this case. There appears to be an unresolved question as to how a citizen could complain about a person who engaged in expressly discriminatory practice in the course of their duties during or outside of the conduct of the judicial proceedings including decision making. Currently the answer would appear to be the complaints systems in those bodies or through civil proceedings.  The Complainant in this case declined to utilise the complaints system in the Courts Service because she deemed them prejudiced or biased in favour of their own so to speak-but as she never tested it, that is easy to say, but unproven. Judicial proceedings are expensive and difficult to access if the complainant is not legally represented. Nonetheless as with other Adjudication Officers before me, I remain unconvinced that the Equal Status Act is one designed to encompass complaints regarding the administration of justice as though it were a good or service provided in the ordinary sense of those terms. Ordinary sense meaning access to goods or services which are traded or exchanged for a monetary reward or none or through direct service provision by a public body and available on that basis to the public or a section of the public-without discrimination preventing or limiting such access. The definitions of a service in the section above  extracted from the Act albeit at Section 4,disability,  do not fit with the concept of allowing the administration of justice to be regarded as a service in the ordinary meaning of that term. The problem articulated by the Complainant in this instance is not about access to the administration of justice but how that justice was administered by a Registrar under the stewardship and therefore the decision making of a judge who was present at all times. I find judicial processes do not fall within the scope of the Equal Status Act 2000 as a service and therefore the WRC does not have jurisdiction in the matter.

This decision is consistent with that of ADJ-00021395 cited by the Respondent.

              The complaint is dismissed as misconceived under the Equal Status Act 2000.

CA-54381-001 The Complaint of discrimination brought by the Complainant under the Equal Status Act is dismissed.

Jurisdiction/Application of the Equal Status Act to judicial proceedings.