Complainant

Respondent

Parties

Gerald  Mc Guinness

Shane Dooley

Representatives

  Self Represented

Patrick Marron BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Equal Status Act 2000

CA-00051806-001

21/07/2022

The Complainant alleged he was discriminated against in the provision of services by the Respondent, who is a Manager that works for the Legal Aid Board, on the basis of the Complainants civil status, family status and race. The Complainant also alleged he was harassed and victimized by the Respondent. The Respondent denied the complaints.

The Complainant was accepted by the Legal Aid Board in December 2020 to assist him in family law proceedings.  The Complainant received a letter on Dec 2nd 2020 in regards to his legal aid acceptance by the Legal Aid Board and an appointment was scheduled for early 202L with Mr. A (the solicitor assigned to deal with the family law case) by phone call and the requested fee was also paid. On the telephone call the Complainant explained to Mr A he was very eager to get the proceedings started immediately as he was an alienated father and he felt that all court orders he had received previous were unlawful orders and he needed to go in front of a judge as soon as possible to get the orders removed and proper access to his children established. Mr A was informed of 2 child psychology reports and a legal file in the possession of a solicitor engaged by the Complainant and the Complainant also sent material in his possession to Mr A immediately. A few months passed from this telephone call and the Complainant got employment and immediately contacted the Legal Aid Board informing them he would need to be reassessed for legal aid. The Complainant then Spoke to Mr. A by phone and he informed the Complainant he was selecting a barrister for the case . The Complainant advised that until September 2021 there was absolutely no movement in his case.

Between September 2021 and February 2022 the Complainants financial situation was reassessed based on his new work/income situation and he advised he paid all fees due to the Legal Aid Board and that no Barrister had been appointed to his case and no court application was made by Mr A. and that his emails and calls for an update were not replied too.

The Complainant alleged Mr A had not compiled with the customer charter set out by the Legal Aid Board and the Complainant felt his interests and rights under Irish and European law were not being protected.

 The Complainant advised he sent a letter to the Respondent (Mr A’s Manager) on February 22nd 2022 complaining about the service provided to him. The Complainant stated in the WRC Complaint form this was the date of the discrimination. The Complainant did not get a response for two months and was aggrieved with this as it did not comply with the Legal Aid Boards Charter for dealing with clients. The Complainant queried the causes for the delay and advised he was moved from the Centre assigned to another law Centre, which was not near where he lived.

The Complainant alleged the Respondent discriminated against him on the Family status ground as a  parent and an alienated father to his 2 children.

The Complainant alleged he was discriminated on the Civil status ground as a married person.

The Complainant alleged he was discriminated on the Race ground because he is from Belfast Co Antrim and that the Respondent treated him less favourably than a person from Southern Ireland.

The Complainant alleged he was victimised because he strongly believed because of his disclosures of his intention to take proceedings against those who breached his human rights and his children’s human rights led to the Respondent treating him the way he did.

The Complainant alleged he was subject to unlawful behaviour discrimination and was treated less favourably than another person in the same circumstances by not following the customer charter set down by the Legal Aid Board which is supposed to apply equally for all users of the Legal Aid Board while dealing with the Complainant.

The Complainant alleged he was harassed by the Respondent or allowing him to be harassed by the Legal Aid Board by having in their possession two child psychologist reports which outline that he felt he was being harassed by his estranged wife and that he paid the Legal Aid Board to end this harassment. He alleged their failure to act has resulted in them allowing him to be harassed which has violated his dignity, and their failures to follow their own customer charter while dealing with him, has created an intimidating, hostile, degrading, humiliating or offensive environment for him. they had allowed him to continue life as an alienated father and their failures to act have added another 20 months on to the situation.

On 22/02/22 the Complainant followed the Legal Aid Boards instructions regarding formal complaints regarding members of staff which includes solicitors working in the Legal Aid Board which includes following the customer charter in such matters set down by the Legal Aid Board and wrote to the managing solicitor (the Respondent) of the office in question with a formal complaint. The Complainant believed his complaint was of a serious nature regarding a solicitor the Respondent manages in the named office.  

The Complainant submitted a document titled Customer Care & Complaints, produced by the Legal Aid Board.  The Complainant advised he received no acknowledgment of receipt of his complaint within 5 working days and a decision on the appropriate person to deal with his complaint. The Complainant advised he received absolutely no response whatsoever from the Respondent to his complaint and it was clear to him that the Respondent was not following their customer charter nor was the Respondent complying with the Customer Care & complaints procedure set down by the Legal Aid Board in his role as managing solicitor while dealing with him. The formal complaint was addressed to the Respondent only in a sealed envelope and as far as the Complainant was concerned the complaint at that stage was confidential also bearing in mind the matters of his private family business were subject to the in camera rule..

The Complainant submitted a copy of the complaint sent to the Respondent and the remedies sought.

On April 13th 2022 the Complainant advised he had no response from the Respondent and he sent  two ES1 Forms, one to the Respondent and to the solicitor, Mr A, who the complaint was against . He advised both persons failed to response to the ES l forms and both received ES2 forms

 The Complainant advised he received an email from Ms B, regional manager of the Legal Aid Board in June 2022 denying his complaints.

The Respondent is employed by the Legal Aid Board and is the Managing Solicitor at Law Centre concerned. It is important to note the Complaint was brought against a named Respondent and not his employer and this was confirmed at the Hearing and therefore the Legal Aid Board are not a party to the complaint.

The Complainant’s complaint under the Equal Status Act, as amended, is that he has been discriminated against by the Respondent in the provision of legal services on the grounds of his race, family status and civil status and that he has been victimized and harassed. The Respondent denied all allegations of discrimination and victimisation as alleged by the Complainant.

The Complainant first applied for legal aid on or about 4th November 2020 in relation to family law proceedings. He had an initial consultation with Mr. A, solicitor employed by the Legal Aid Board. Mr. A applied for a legal aid certificate on behalf of the Complainant and one was duly issued to him by way of letter dated 30th March 2021.

The Complainant’s family law proceedings had a long and complex history and a large quantity of documents was provided for review. Mr. A. drafted a letter to counsel for the purposes of drafting further family law proceedings in July 2021. Shortly thereafter the Complainant advised the Law Centre that his financial circumstances had changed and a reassessment of his financial circumstances was required. This reassessment took place and an updated Legal Aid Certificate issued. A revised contribution was required and following the implementation of an instalment plan, the Complainant paid the revised contribution on 28th September 2021.

The Complainant contacted the Law Centre on 28th December 2021 enquiring as to progress with his proceedings. He received no response and sent a formal letter of complaint dated 22nd February 2022 to the Respondent.

This complaint was not seen by the Respondent until sometime in early April 2022. The Respondent advised he was on extended annual leave, at meetings or courses and did not see the complaint until April. In the meantime, and following another reassessment required by a further change in the Complainant’s financial circumstances, a brief was prepared and sent to counsel on 29th March 2022.

The Complainant’s ES1 form, dated 12th April 2022, was received by the Respondent on the 20th April 2022.

 Following sight of the complaint letter by the Respondent, it was forwarded to the Complaints Department of the Legal Aid Board. On foot of this, Ms. B,  Regional Manager with the Legal Aid board, undertook an investigation. Following this investigation, Ms. B determined that the Complainant had been provided with competent and professional legal advice and assistance but acknowledged that there had been delay in providing same. She advised the Complainant of his right under the Legal Aid Board’s Customer Charter and Complaints Procedures to have her decision reviewed. She communicated her decision to the Complainant by letter dated 7th June 2022.

 Ms. B’s decision was reviewed by Ms. C, Regional Manager with the Legal Aid Board. By letter dated 5th July, Ms. C endorsed Ms. B ’s decision, She also assured the Complainant that the Legal Aid Board was anxious to progress his case and offered him the option of a change of solicitor if he wished.

The within Complaint was received from the WRC in July 2022.  Following on from the Decision of Ms B in relation to the complaint of the Complainant, the Complainant’s file was transferred to another law centre and the Complainant continues to receive legal services in relation to his family law proceedings from a solicitor at that law centre.

Section 38A of the Equal Status Act as amended provides that 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. The test for determining if a complainant has established a prima facie case of discrimination was considered by the Labour Court (in an employment equality context) in the case of Mitchell v Southern Health Board [2001] E.L.R. 201, wherein the Court said: It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. The Labour Court expanded further in the case of Dyflin Publications Limited –vSpasic EDA823 stated; The Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the Burden of proof shifts the Court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended by the complainant.

The Complainant’s case appears to be that the Respondent’s delay in replying to his letter of 22nd February 2022 amounts to discriminatory conduct. The only interaction between the Complainant and the Respondent is in relation to this letter dated 22nd February 2022. On receipt of this letter, and albeit after a delay of two months, the Respondent passed the complaint to the Complaint’s Department of his employer whereupon it was dealt with expeditiously and in accordance with the Legal Aid Board’s Customer Charter and Complaints Procedures. This two month delay was as a result of a combination of factors including staff shortages, annual leave and the Complainant’s own financial reassessment, however, the Legal Aid Board acknowledged and apologized for this delay. Given the above context, it was submitted that the Complainant has failed, either in his ES1 or his Complaint form, to establish such facts, beyond a reasonable doubt or at all, to raise any presumption of discrimination on the part of the Respondent.

Notwithstanding the above, none of the facts as alleged by the Complainant in his complaint form or his ES1 or any of his correspondence, which relate to matters other than the receipt and handling of the letter of 22nd February are relevant to the within complaint and should be disregarded.

Notwithstanding the Respondent’s position that no discriminatory conduct has been established, it was further submitted that the Complainant has adduced no evidence whatsoever that he was treated less favourably as a result of his family status, his civil status or his race.  It was also submitted that the Complainant has not been subjected to conduct which can be classified as victimisation, either as a matter of fact or a matter of law.

While the Complainant makes a general reference to discrimination in his letter of complaint dated 22nd February 2022, he does not mention any ground on which he asserts he is being discriminated against. The references the Complainant makes to discrimination in his complaint form are merely bald assertions with absolutely no supporting evidence whatsoever. The Complainant maintains he was discriminated on the race ground by virtue of being from Belfast. The Respondent, who never met or talked to the Complainant, had no knowledge of where the Complainant was originally from.

The Respondent’s dealings with the Complainant were limited to receiving a letter of complaint addressed to him, in his capacity as Managing Solicitor of Law Centre and passing that complaint on for investigation. The Respondent never met the Complainant or talked to him prior to the Hearing.

The Complainant has not established any facts, on the balance of probability or at all, from which it can be presumed that the principle of equal treatment was not applied to him by the Respondent. An internal review of the Legal Aid Board concluded that the Complainant was provided with competent and professional legal advice and assistance in his family law proceedings to the date of his complaint however accepted that there had been delay in providing this legal advice and assistance. A further review of this decision upheld this conclusion. The Complainant appears to be aggrieved by this decision and it was submitted that he was attempting to use the within complaint as a further appeal of his initial complaint. In the circumstances, the Respondent submitted that the Complainant has not established a prima facie case of discrimination such that the burden of proof has shifted to the Respondent to rebut or disprove any inference of discrimination.

The Complainant set out his case at the Hearing by reading a written submission and cross examining the Respondent.

 The Complainant is in the process of family law proceedings and sought the assistance of the Legal Aid Board in same.

The Complainant was accepted for the provision of services in December 2020.

The Complainant submitted a complaint to the Respondent against the service provided by the Legal Aid Board and a solicitor acting for the Board and the Respondent in February 2022. The Respondent, being a subject of the complaint, passed the complaint to his Supervisor for investigation.

The Complainant submitted an ES1 form in April 2022.

The Complainant received a reply to his complaint in June 2022. This was appealed by the Complainant and a decision on his appeal issued by the Legal Aid Board in July 2022.

The Respondent gave oral evidence and denied the complaint and stated there was no prima facie evidence of discrimination on any of the areas alleged. The Respondent stated the complaint was really a complaint about customer service and not equal status. The Respondent advised he was a Manager with the Legal Aid Board for 29 years and approximately 80% of the cases he and the Board deal with are related to family law and therefore that is one of their primary purposes. The Respondent stated he had never met the Complainant and therefore did not know the Complainants race, family status or civil status when the complaint was submitted as the Complainants legal dealings with the Board were entirely managed by a separate solicitor for the Respondent.

The Law.

The established test for deciding if the probative burden shifts to the Respondent is that formulated by the Labour Court in Southern Health Board v Mitchell[2001] E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court held: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

The Court later elaborated on the application of that test in Determination EDA0821,Cork City Council v McCarthy and commented as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant

"must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Complainant alleged five forms of unequal status against him. The Complainant alleged the delay in replying to his complaint resulted in discrimination and was due to him being a married person seeking family law remedies through the Courts, that because he was a parent and seeking to exercise his legal right to see his children, that he was from Northern Ireland and was treated different to a person from the Republic of Ireland (the Complainant lives in the Republic of Ireland), that he was harassed because he advised he would be taking proceedings against the Respondent and his employer and that the he was discriminated against because the Legal Aid Bord did not follow its customer charter in his case unlike other service users.

The requirements on Parties to support their allegations with evidence has significantly increased since the decision the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021. Equally written submissions prior to a Hearing must be supported by evidence on oath or affirmation at a Hearing and this evidence under oath or affirmation is crucial to any decision on a complaint.

Conclusions:

As set out in Southern Health Board v Mitchell[2001] E.L.R. 201 cited above it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  The Respondent advised the Hearing in evidence that he had not been dealing with the Complainants case, had no knowledge of his nationality, prior to being informed by the Complainant in his WRC complaint form which was sent to the Respondent in July 2022 , after the dates of the alleged unequal treatment in February 2020. The Respondent advised that about 80% of the Legal Aid Boards and his work related to family law and therefore involves parents/spouses in dispute situations which are often fraught and that inevitably brings tension and anxiety in the cases he deals with and he can expect that most clients are either married, seeking a divorce or in litigation regarding family law situations and while he had no knowledge of the Complainants status prior to seeing the Complainants letter in April 2022 this would be a clients normal situation. The Respondent stated they have no analysis of complaints by race, family status or civil status. The Respondent stated that he was on either accrued vacation which had to be taken by year end (April) or at meetings/course etc between the complaint being submitted (Feb 2022) and he receiving it in April 2002 and this caused the delay in replying to the Complainant. The Respondent advised that as the complaint related to him he immediately referred the complaint to his supervisor to deal with once it was brought to his attention on his return to work in April 2022. The Respondent advised that all letters are opened centrally in the office and therefore that’s how Mr. A became aware of the complaint and Mr. A advised the Respondent of it once the Respondent returned to work.  The Respondent confirmed he had no involvement or discussions with the Solicitor handing the family law issues at any time prior to receiving the complaint. The Complainant gave no evidence of notifying the Respondent of initiating proceedings prior to the date of the alleged discrimination.

Under cross examination by the Respondents Representative the Complainant accepted he had never spoken or met the Respondent prior to the Hearing and that prior to submitting his complaint the Respondent was not aware of his nationality.  The Complainant identified his nationality as Irish in his complaint form to the WRC.

The Complainant submitted, with his WRC complaint form, copies of replies to letters from him to the Attorney General, The Chief Justice, the Garda and the Minister for Justice. No evidence was submitted by the Complainant that the Respondent was aware of the Complainants correspondence with these bodies. It is not possible to adduce that any unequal treatment arose from these communications.

 It is the finding of the Adjudicator based on the above assessment of the situation, that no prima facie facts of unequal treatment, harassment or victimisation were established by the Complainant. As the Complainant, has failed to establish a prima facie case of unequal treatment his complaint must fail.

With regard to the Customer Charter the Complainant made valid points that the Legal Aid Boards  time frames were not met by the Respondent (and this was accepted by the Respondent and the Legal Aid Board in its reply to the Complainant) but the Complainant failed to establish that the causes were as a result of any of the grounds he set out for unequal treatment. The Complainant also could not submit any details of comparators treated better than him and even if that were the case, the explanation for the delay in replying to the complaint offered by the Respondent were reasonable and no unequal treatment could be inferred against the Respondent. It is important to note the Legal Aid Board nor Mr. A were not the named Respondent in this case and therefore had no case to answer. This was confirmed by the Parties at the hearing. It is a matter for the Respondent and the Legal Aid Board to consider (or not) whether they should review its written policies and customer charter to ensure it more accurately reflects what happens in practice so as not to give customers of its service expectations of timelines for responses and dealing with family law issues that may not be achievable in practice.

Finally, the Complainant has engaged the services of the Respondents employer, the Legal Aid Board, to deal with sensitive and important family law matters to the Complainant and while outside the scope of this Decision, I encourage both to put their focus on the core family law issues that require to be dealt with as quickly as possible.

I find that the Respondent did not engage in prohibited conduct and the complaint is not well founded.

Discrimination