Complainant

Respondent

Parties

Ade  Olanrewaju

Garda Siochana Ombudsman

Representatives

 Self

Paul Gough Beauchamps

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050530-001

09/05/2022

The Complainant made a single claim:

CA-000-50530 A claim pursuant to Section 21 of the Equal Status Act 2000 (as amended).  

The matter was heard before me on the 8th March 2023 by way of online hearing. 

The Complainant represented himself at the Adjudication Hearing and gave his evidence on oath.

The Complainant is a human rights activist who acted on behalf of a member of his community (hereafter referred to as “the Client”) to make a complaint to the Respondent arising out of the conduct of An Garda Siochana towards the Client. This complaint was notified to the Respondent on the 6th of July 2020. The Complainant was recognised as the Client’s representative by the Respondent , and he engaged with the Respondent on a number of occasions with regard to the Client’s complaint. A statement was required from the Client and the Complainant spoke to an officer of the Respondent (hereafter “Officer A”) on the 4th of December 2020 regarding the taking of a statement. The Complainant advised Officer A that the Client was permanently disabled and had memory loss and Officer A informed the Complainant that an assessment of the Client’s capacity would be made when she met him. The Complainant agreed that it was in order for Officer A to make direct contact with the Client to arrange the interview. However he did not indicate or imply that he was “coming off record”, meaning that he was not ceasing to act as the Client’s representative. 

The Complainant contacted Officer A to check progress on the taking of the statement. In an email dated the 17th of December 2020, Officer A informed the Complainant that contact with the Client had been made and initially arrangements were made for the Client to make his statement by telephone but later the Client changed his mind and advised Officer A that he would attend in person to make a statement. An appointment was made with the Client directly which he did not attend and a “seven-day letter” was sent to the Client advising that the file would be closed if he did not make contact with the Respondent within 7 days of the date of the letter. The letter was dated the 22nd of December 2020 and when no response was received from the Client, the Respondent’s file was closed. Unbeknownst to the Respondent during this time, the Client was in hospital and thus did not receive the notification. The Complainant was not copied on the 7-day letter and he was not advised that the case was closed. He emailed Officer A on the 5th of February 2023 seeking an update and Officer A responded on the 6th of February 2021 to say that the case was closed. That day, on the 6th of February 2021, the Complainant telephoned and spoke to Officer A. Two further telephone calls took place between the Complainant and Officer A on the 7th and 8th of February 2021. In addition, the Complainant made a Data Access request to the Respondent on the 7th of February 2021. In his evidence the Complainant said that in addition to making a data access request, he also made a complaint against Officer A. Subsequently on the 24th of December 2021 the Complainant delivered a Form ES1 to the Respondent.  The Complaint Form initiating the present claim was delivered to the W.R.C. and marked as received by the latter on the 9th of May 2022.

The text of the endorsement to the Complainant’s Complaint Form received in May 2022 (with names amended using the above nomenclature) was as follows:      

"I am a human rights activist for African Community Ireland. I did act on behalf of one Henry regarding Garda who unlawfully seizure of his Irish passport and other belongings. I reported the case on GSOC website. The case was accepted for further investigation, GSOC request for consent letter from [the Client] and authorization letter were all submitted to GSOC. [Officer A] contacted me that she will be investigating the case. I spoke with [Officer A] on phone and she promised to update relation the matter. But she did not do so because I am black she close the case when she was unable to reach [the Client]. She did not contact as [the Client’s] representative because I am black if it were to be white Irish she will not do so without contacting me. I have never send any letter or verbally coming of record to GSOC or [Officer A]."

Although the Client has since deceased, the present complaint was maintained by the Complainant in his own right rather than on behalf of the Client. 

In the Form ES1 delivered to the Respondent on the 24th of December 2021, the basis of the claim centres on the closure of the file without contacting or informing the Complainant and again citing race as the basis of the prohibited conduct alleged.

In a written submission delivered on 6th of March 2023 in advance of the hearing, the Complainant for the first time, quoted his recollection of the content of one of the three telephone conversations in February 2021, (probably the last one on the 8th of February) and alleged that “Discrimination is still reoccurring up till 8th February 2021 approx. 09.08am”.

At the hearing in sworn evidence, the Complainant gave further detail of the conversations which he had with Officer A and he emphasised that the tone and content of these conversations which took place on the 6th, 7th and 8th of February 2021 were at the centre of his allegations of prohibited conduct. The Complainant also took issue with the accuracy of the notes of the conversations as reflected in the material provided by the Respondent in response to the Complainant’s data access request.

The Respondent provided written and oral submissions in which the following issues were raised:

The Respondent argued that the ambit of the Equal Status Act 2000 (as amended) did not apply to the activities of the Respondent as previous decisions of the W.R.C. have held that the statutory functions of the Respondent are not “services” within the meaning of the Equal Status Acts.

The Respondent noted that the complaint must have arisen when the Client’s complaint file with the Respondent was closed in January 2021 but the Form ES1 submitted by the Complainant in the present case, was not sent until December 2021, nearly 11 months after the circumstances giving rise to the complaint had arisen. 

The Respondent relied on Section 21 subsection (2) on the basis that the Complainant did not, within 2 months of the alleged prohibited conduct or the last instance thereof, notify the Respondent in writing of the nature of the allegation and his intention, if not satisfied with the response to the allegation, to seek redress by initiating the present complaint. It was contended that even if, pursuant to subsection (3), that 2-month time limit were extended by a further two months, the complaint was still beyond that extended time limit. 

The Respondent also cited Section 21 subsection (6) which requires a complaint to be referred (to the W.R.C) within 6 months of the date of occurrence (or of the last occurrence) of the alleged prohibited conduct but the principal contention is that the claim fell foul of the 2-month limitation period imposed by Section 21 (2).

The Respondent denied the alleged or any discrimination whether by Office A or by the organisation generally. The Respondent contended that no facts had been established such as to raise an inference of discrimination sufficient to shift the burden of proof to the Respondent.

Section 21 of the Equal Status Act 2000 (as amended) provides (where relevant) as follows:

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 allegationto 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,...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.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission…may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there weresubstituted a reference to such period not exceeding 4 months as isspecified in the direction, or

(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.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission…shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission…shall not investigate a case unless the Director of the Workplace Relations Commission…. 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.

…

(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…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.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

…

(11) For the purposes of this section prohibited conduct occurs—

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.

The Limitation Periods Prescribed

As may become apparent from the analysis which follows, the foregoing provisions are complicated, to say the least.

The fist limitation period in subsection (2) relates to the notification of the complaint to the Respondent which must be made within 2 months of the date (or as the case may be the last date) of the alleged prohibited conduct. However, a discretion is provided for in subsection (3) to extend this time limit by a further 2 months or in exceptional cases (as per subsection (3) (a) (ii) and to such extent as directed), the entire notification procedure in subsection (2) can be disregarded altogether. Regarding the form which the notification must take the Act does not prescribe a particular form but the notification must comply with paragraphs (i) and (ii) of subsection 2 (a), that is to say that it notifies the Respondent of the nature of the allegation and signals the complainant’s intention, if not satisfied with the respondent’s response to the allegation,to seek redress under this Act. Subsection 2 (b) provides that a complainant may in that notificationquestion a respondent to obtain material information to assist the complainant in deciding whether to refer the complaint to the W.R.C. [It is unclear whether a request for information may be made otherwise than “in that notification”. Such a situation may have arisen in the present case but a determination on it is unnecessary given the basis of the decision which follows.]

The second limitation period relates to “a claim for redress” meaning, in effect a claim initiated to the W.R.C. and a separate time limit applies to this referral pursuant to subsection (6) and extended by subsection (7) . Normally subsection (4) provides that an investigation into that complaint cannot take place unless there has been a notification and the respondent has failed to reply within a month of that notification. However, it is also possible that the subsection would not operate to prevent an investigation where no prior notification has been sent, where a discretion is exercised pursuant to subsection (3) (a) (ii). 

Where there has been notification, the 2 (or extendable to 4)- month time limit applies - unless the notification procedure is directed to be disregarded.  However, the basic time limit for a claim for redress itself is set by subsections (6) and (7). This time limit commences, that is to say that the claim ‘crystallises’ or becomes actionable, on dates which will vary depending on the circumstances as follows:

Where a single alleged instance of past prohibited conduct is involved, the time commences from the date of that alleged instance;

Where a series of acts or an act extending over a period of time is involved, the relevant date of commencement of the time limit is the date of the “most recent occurrence”- as per subsection 6 (a) - or “at the end of that period” as per subsection (11) (a);

Where a “policy” is challenged - subsection 11 (b) - or where the alleged conduct is of a continuous nature and is still ongoing, the actionable date is pushed out until the continuous conduct ceases or the policy ceases to operate and thus it is possible in certain situations that the time limit has not even started to run by the time the claim comes to adjudication. The present claim does not involve a challenge to a policy or actions which are ongoing and thus this type of situation does not apply to the present case.    

The Act expressly provides for extension of this time limit (ascertained as above) in two situations: Firstly; where reasonable cause is shown in which case the time limit can be extended to a maximum of 12 months as per subsection 6(b) and

Secondly; pursuant to subsection (7) where the delay in referring is due to any misrepresentation by the respondent, in which case the relevant date from which the time begins to run is “the date on which the misrepresentation came to the complainant’s notice”.

There is no specific provision in subsections (6) or (7) which provides for any other basis for an extension of time by reference to the notification procedure envisaged by subsection (2) and refined in subsections (3) and (4) as discussed above. More specifically there is no express provision which indicates or implies that the use of notification and/or information procedure by one or other or both parties stops, extends, resets or in any way affects the running the 6-month time period set by subsection (6). It is of course conceivable that the notification/ information procedure could generate a reasonable cause for a delay initiating a claim for redress beyond 6 months but even then, the time period can only be extended to a maximum total period of 12 months. It is also conceivable that an allegation of misrepresentation could be made in relation to information provided in response to a request which would, if established, extend the commencement of the time period to the “the date on which the misrepresentation came to the complainant’s notice”. 

Date of Occurrence and Time Limit in the Present Case

In the present casethe Respondent contend that the notification time limits in subsection (2) were breached in that the Form ES1 was delivered by the Complainant to the Respondent as the Respondent put it, “nearly 11 months after the circumstances giving rise to the complaint had arisen”. This argument appears to be predicated on the basis that the first act of notification by the Complainant to the Respondent of the complaint for the purposes of subsection (2) was the delivery by the Complainant of the Form ES1 on the 24th of December 2021. As against this the Complainant, in his evidence, said that he sent an email to the Respondent on the 7th of February 2021 which sought documentation by way of data access request and also the Complaint said, made a written complaint regarding a telephone conversation with Officer A. Unfortunately, this document was not available at the adjudication hearing but the Complainant was emphatic in his sworn evidence that it was sent and it is evident from the fact that data access material was furnished by the Respondent that a written data access request at least, was made on the 7th of February 2021, whatever about the complaint allegedly also made against Officer A.

Applying the above to the argument made by the Respondent regarding the notification time limits I have a doubt as to whether the Form ES1 delivered by the Complainant on the 24th of December 2021 was his first notification of the complaint and it is possible that the email sent by the Complainant on the 7th of February 2021 (which neither party could produce at the hearing), contained sufficient information to constitute a notification for the purposes of Section 21 subsection (2). In the unusual circumstances I do not deem it prudent or fair to either party to base the within decision on the issue of breach of the notification time limit set by subsection (2) as urged upon me by the Respondent which procedure could in any event could be disregarded under subsection (3). As already stated, these provisions are complicated and difficult to construe. Instead, I take the view that the correct approach is consider the issue of whether the referral of the present Complaint to the W.R.C - as distinct from its notification to the Respondent - falls outside the time limit set by subsections (6) and (7). Before doing so however it is first necessary to establish the date of the occurrence from which the time runs.

If the Complainant did notify the Respondent of a complaint against Officer A in an email sent (with or including a data access request) on the 7th of February 2021, I cannot in the absence of the email, determine what date of occurrence of allegedly prohibited conduct was included in this complaint. However, if it was sent immediately after a telephone conversation with Officer A that very day, then it is likely that this was the date of occurrence indicated in that email notification.

The Complainant served a Form ES1 on the Respondent.  Question 3 requests “the date and time when you say the respondent treated you unlawfully” and this date is written into the form by the Complainant as the 25th of November 2021.

The W.R.C. Complaint Form which initiated the present complaint (for the purposes of Section 21 subsection (6) as discussed above) includes two questions; firstly as to the date of the first incident of discrimination and secondly; as to the most recent date of discrimination. The Complainant set out the same date by way of response to these questions which was: the 29th of November 2021.

In a written submission delivered by the Complainant the following wording appears:

“Discrimination is still reoccurring up till 8th February 2021 approx. 09.08am”.

In the course of his evidence, the Complainant accepted that the basis of his compliant centred on a series of telephone calls between himself and Officer A which took place on the 6th, 7th and 8th of February 2021. This date is at odds with the date inserted on the Complaint form and also with the date of the occurrence set out in the Form ES1 Submitted by the Complainant. He alleged that he was spoken to in a manner which was not only rude but was racist. [The Respondent’s records reflect that Officer A reported that the Complainant had been rude]. The Complainant contended that had he been a white Irish representative acting on behalf of a person accessing the Respondent’s services to make a complaint against An Garda Siochana, that he would not have been spoken to in this manner and that he would have been afforded more respect.

On the face of it therefore the occurrence of the impugned allegedly prohibited conduct is the 8th of February 2021. Thus, unless there was any further prohibited conduct beyond that date, the complaint should have been lodged within six months of that date or at the very latest (assuming an application to extend the time pursuant Section 21 – subsection 6 (b) were made and granted) by twelve months from the 8th of February 2021, that is to say by the 7th (or 8th – leap year depending) of February 2022. In this case the complaint form was lodged with the W.R.C. and marked as received by the latter on the 9th of May 2022 which is far beyond the maximum period of extension permitted by the Act.

The Complainant contended that he made a Data Access Request to the Respondent on the 7th of February 2021 immediately after the telephone calls with Officer A. He did not receive a response and documentation until the 26th of November 2021. Nearly a month later, the Complainant submitted a Form ES1 seeking information from the Respondent. The ES1 Form is dated the 24th of December 2021. The Respondent responded to this for by way of Form ES2 on the 28th of January 2022 by which time the maximum possible time limit of 12 months from the date of the allegedly discriminatory telephone calls had not expired. However, the Complainant did not lodge the complaint form until May of 2022 even though he could have done so at any time before the 7th (or 8th – leap year depending) of February 2022.

The Complainant argued that the Respondent, in furnishing the response to his Form ES1, was estopped from relying on limitation periods.  Further or in the alternative, the Complainant argued that the Respondent was obliged to inform the Complainant that the time limit for making a claim had or (insofar as a maximum extension might apply) was about to expire.

As regards the estoppel argument the Complainant argued that the delivery of the Form ES2 by the Respondent estopped the Respondent from relying on time limits. There is no provision in the Equal Status Act 2000 (as amended) which places an obligation on a respondent to a Form ES1 to advise a complainant of the existence of the limitation period for making a claim or which requires the response provided (whether by way of Form ES 2 or otherwise) to specifically indicate an intention to rely on the limitation period. There is no suggestion that the Respondent in this case ever stated or represented that it would not raise a time point in defence of any claim and thus no issue of estoppel can arise from any positive representations made by the Respondent. Accordingly, I do not accept these arguments and I find that the provision of a response to a Form ES1 questionnaire does stop or reset the time limit in relation to the intimation of a claim for redress to the W.R.C.  nor is there any obligation on this or any respondent to advise a complainant of the existence of a time limit. 

The Complainant further argued that the discrimination was of a continuing nature - as envisaged by subsections (6) and/or (11) (a) and that it continued right up to the time when all of the documentation sought and responses to queries raised were obtained. It was contended that the delay in providing documentation (sought in February 2021 and not provided until November 2021) was a continuation of the original discrimination. He added that when he eventually saw all of the documentation it was only at that stage that he realised that he had been discriminated against including the inaccurate and incomplete reporting of his telephone calls and interactions with the Respondent. Though he did not cite the provision specifically, this argument is taken to mean that the alleged discrimination was of a continuing nature bringing the date of the last act of prohibited conduct up to the date when this continuing discrimination ended pursuant to subsection (11) (a). I do not accept the Complainants assertion that the alleged discrimination continued beyond the 8th of February 2021. Such an argument runs contrary to the Complainant’s own sworn evidence and the words used in his own submission dated the 6th of March 2023 which clearly states very specifically that “Discrimination is still reoccurring up till 8th February 2021 approx. 09.08am” [emphasis added]. Moreover, it is clear that the Complainant was himself a party to the allegedly offending telephone conversations and thus he did not require documentation before initiating a claim arising from them. If having initiated the claim for redress he subsequently received information or documentation which might have assisted his primary claim,  he was at liberty to rely on any such documentation or information but it cannot reasonably be said that such documentation was necessary before a claim for redress could be initiated, since the Complainant was already fully aware of the occurrences on the 6, 7th and 8th of February 2021 having been a party to the allegedly offending telephone calls.

Although not specifically argued by the Complainant in exactly these terms, the only other basis upon which an extension of time beyond 12 months from the date of the alleged prohibited conduct can be obtained is where the Respondent is guilty of misrepresentation within the meaning of Section 21 subsection (7). In this regard I have considered whether there is any misrepresentation contained in the documentation produced from the Respondent’s files. The files contain records of the various interactions between the Complainant and the Respondent. These records are not perfect, and it is certainly the case that the Complainant disagrees in particular with the content of the notes of telephone conversations between himself and Officer A but these are contested issues of fact regarding what was said on a particular date and they do not constitute evidence of misrepresentations which could justify the delay in presenting the complaint to the W.R.C. beyond February 2022. At best, the Complainant could argue that he was unable to formulate his claim fully until he had received a response to his Form ES1 (albeit that this form was sent outside the notification time limit under Section 21 subsection (2) - discussed above) and that this constituted “exceptional circumstances” for the purposes of Section 21 subsection (6).  However even were this to have been the case, the maximum extension available in those circumstances would be up to a total of 12 months and the claim was lodged far beyond that period. Further as it transpired, the Respondent’s response to the ES1, in the form of the Respondent’s Form ES2, was received before the maximum 12-month period from the 8th of February 2021 had expired but yet, the Complaint form was not lodged for a further three months beyond that date.

I find that the alleged prohibited conduct in this case occurred, if at all (and no finding is made in this regard), on the 8th of February 2021 and there is no evidence capable of being construed as a continuation, or further acts of, the allegedly prohibited conduct beyond that date nor is there evidence suggesting misrepresentation of material facts on the part of the Respondent. Accordingly, I find that in this case the date of occurrence of the allegedly prohibited conduct is the 8th of February 2021 and that the applicable time period for the initiation of the Complainant’s present claim for redress, pursuant to Section 21 subsection (6) was six months from that date.

I find that the delivery of a Form ES1, in this case, did not operate to interpose this present claim for redress, i.e. it did not stop or reset the time limit set by Section 21 subsection (6) which started from the 8th of February 2021, the date of the last act of alleged prohibited conduct. There is no provision in the Equal Status Act 2000 (as amended) which places an obligation on a respondent to draw a complainant’s attention to the time limit set by Section 21 subsection (6).

There is no provision in the Equal Status Act 2000 (as amended) which states or implies that the mere act of delivery of a notification of a complaint (by way of Form ES1 or otherwise) by a complainant or a reply to such a notification by a Respondent (whether by way of a Form ES2 or otherwise) has the effect of interposing a claim for redress, that is to say, of stopping or resetting the time limit set by Section 21 subsection (6) which, in the present case, was the 8th of February 2021.

The claim is out of time in that it was served beyond the time period provided for in Section 21 subsection (6) of the Equal Status Act 2000 (as amended). This is the basis of the decision formulated below as required by the Act that “the Respondent did not engage in prohibited conduct”.

As a result of the forgoing finding, it is unnecessary to make any findings or rulings on the balance of the issues raised by either party.

Finding: The Respondent did not engage in prohibited conduct and the issue of redress does not arise.

Equal Status Act 2000 -  Section 21 (2), Section 21 (3), Section 21 (4), Section 21 (6), Section 21 (7) and Section 21  (11) –Time Limit for Notification of Claim to respondent – Time Limit for referral of claim for redress – Extension of time pursuant to Section 21 (2) and 21 (3) – Extension of time pursuant to Section 21 (6) – grounds for extension of time – Form ES1 – Form ES2 – Whether Form ES1  stops time limit pursuant to Section 21 (6) – Whether Form ES2  stops time limit pursuant to Section 21 (6) -Whether Estoppel arising  - Whether continuing discrimination –  Whether Misrepresentation pursuant to Section 21 (7)  - claim out of time.