ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025458
Parties:
| Complainant | Respondent |
Parties | Eve Doherty | Irish Prison Service |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives |
| Aoife Burke Chief State Solicitors Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00030998-001 | 17/09/2019 |
Date of Adjudication Hearing: 26/05/2022
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant alleges discrimination by the Respondent which first occurred on 30th October 2017.
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Summary of Complainant’s Case:
The Complainant alleges she has been discriminated against on the grounds of her gender by Dochas prison, Mountjoy prison and the Department of Justice since 30th October 2017. The last act of discrimination occurred on 2nd July 2019. She alleges the Respondent failed to provide reasonable accommodation relating to education, provision of goods and services, and accommodation. The Complainant says she notified the Respondent of her complaint by ES1 form on 12th May 2019. The Complainant claims she was framed for protected disclosures she made, which conviction is on appeal to the Supreme Court. She alleges the Respondent is not complying with European Prison rules since 2006, which requires prisoners to have ample opportunities to make requests and complaints to prison management and a competent authority. No office of a prison ombudsman has been set up. She relies on the ruling in Darby v Sweden 1991. She alleges 50% of females are being released on early temporary release, where they have been convicted of serious crimes, have numerous prior convictions and charges pending. The Complainant alleges she is being discriminated against as the Respondent does not let her out and because female prisoners do not have access to an open prison. Male prisoners that have received longer sentences than women for crimes of a much more serious nature, go to an open prison (of which the men have two), very early into their sentence, they are allowed out on temporary release regularly, for courses, work, and home. Male prisoners are allowed have mobile phones in their rooms, unlimited visits, can cook for themselves, and more better facilities and flexibility then women in the Dochas or Limerick prison. This amounts to discrimination. The Complainant did not receive any response to her request for her personal data under the General Data Protection Regulation. The Complainant’s human rights have been breached under article 1 protocol 12 and articles 1, 5,6, 13 and 14. The Complainant sent two letters to the Respondent’s representative on 17th April 2019, 12th May 2019 and requested to meet their representative on 10th April 2019. The Complainant’s S39 requests and temporary release requests were granted by the Governors but not the Respondent’s representative. The Respondent representative said the complaints made would be categorised and investigated by the Governor of Mountjoy prison however, the Governor is a less senior member of staff. The Complainants request to be allowed leave to obtain documents for the Disclosures Tribunal and educational reasons were refused. She was put in a cell with ten smokers which is not suitable for her chest problems, and is a health and safety issue. The Complainant requested her teeth be cleaned as they are bleeding, the same as male prisoners but nothing was done. The Complainant says the prison visiting committee and prison inspectorate are not sufficiently independent. |
Summary of Respondent’s Case:
The Complainant claims gender discrimination contrary to the Equal Status Act 2000. Firstly she claims discrimination from October 2017 until July 2019 that she had access to facilities including an open prison which are inferior to male inmates and secondly, dental facilities which are inferior to those provided to male prisoners, and other complaints. The Respondent has five preliminary objections to the complaints and says the Workplace Relations Commission does not have jurisdiction to hear the complaints, and the complaint should be dismissed. The Complainant failed to notify the Respondent of her claim within two months of the last act of alleged discrimination on 2nd July 2019 pursuant to S21 (2) (a) of the Act. This is a mandatory requirement. The Respondent relies on Borsca v Bank of Ireland ADJ00010452 and Brooks v Garda Commissioner ADJ00012145. The form ES1 dated 30th September 2019 provided to the WRC does not comply with the requirement for prior notification on the Respondents. No grounds have been advanced to show reasonable cause as to why this occurred and no application to extend time has been made under S21 (3) of the Act. The Complainant named the incorrect Respondent on the complaint form and the Respondent relies on the ruling in the Labour Court Department of Public Expenditure and Reform v Quigley PWD227. It is well established that the complaint must relate to the provision of goods and services to the public. The Respondent relies on the decision in Donovan v Garda Donnellan DEC S2001-011 which refers to the Ministers speech: “Controlling duties in the areas of policing, defence and prison would likewise not be regarded as services. The service aspect of policing, immigration, defence and prisons will, however come within the scope of the bill”. The Respondent relies on A Complainant v An Garda Siochana DEC 2005/037 and Bula v Garda Commissioner ADJ0006593. The matters complained of relate to controlling functions of the Respondent and are exempt from scrutiny. These are functions of the Respondent deciding on levels of security and temporary release. These are not services provided to members of the public for example visitors. In addition, these are matters relating to allocation of resources decided by Cabinet which are not justiciable. The WRC does not have jurisdiction to review the decision and relies on the decision of the Supreme Court in TD v The Minister for Education [2001] 4 IR 259. These are decisions made by the Government and not the Respondent, so the correct Respondent has not been named in the complaint. The Complainant has not advanced credible evidence to discharge the burden of proof to make a prima facie case of discrimination that she received less favourable treatment than a specific male offender. Female offenders have access to better facilities than male offenders, instead of open prisons, they have access to the Outlook programme which is a step-down facility which allows women to live in supported accommodation with structured temporary release. Both male and female offenders are treated the same for dental care. The Complainant seems to be making a case that she was treated differently to other female offenders and this is the basis for her complaint. This is not a complaint of gender discrimination. The Respondent says different policy considerations apply to female and male offenders. In 2020 there were 148 female offenders against 3824 male offenders. Consideration by the government of the cost of an open prison for females is not justiciable by the Workplace Relations Commission. The Complainant was housed in a house called the Willows where the occupants have access to rooms, shower facilities, laundry and recreation rooms which are unlocked. By comparison a male offender serving the same sentence in Mountjoy prison would be accommodated in a cell. Female offenders have access to a step down facility the Outlook programme which is supported by Focus Ireland and supervised by the Probation Service. The Respondent says the services available to female offenders is superior to male offenders so there is no basis for a complaint. The Respondent says basic dental care is provided to all offenders in line with the General Medical Scheme provisions. This is assessed during committal, and if an issue presents the offender can seek an appointment. There are twice the amount of dental clinics for female inmates in comparison to male inmates. There is no record of any complaint made by the Complainant in relation to this issue. Complaints can be made at the Governors parade each morning and the Complainant made other complaints. The Respondent requests the complaint be dismissed.
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Findings and Conclusions:
I have heard and considered the written and oral evidence of the parties and their witnesses. Section 5 of the Equal Status Act 2000 prohibits discrimination in providing services to the public generally or a section of the public, whether the service is provided for consideration or otherwise. “Service” means a service or facility of any nature which is available to the public generally or a section of the public under the Act. The Respondent does not accept that it is a service provider under the Act and says it does not provide a service or facility which is available to the public generally or a section of the public under the Act. The Complainant claims that she was discriminated against by the Respondent on grounds of her gender in terms of Section 3 (1) and S 3 (2) (a) of the Equal Status Acts 2000-2015 and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities, education, accommodation and in other respects. Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur where “A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified”. Section 3 (2) (a) provides that as between any two persons, the discriminatory grounds are (a) that one is male and the other is female (the gender ground). S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. S21 (2) of the Equal Status Act 2000 as amended provides that prior to seeking redress, the Complainant shall within two months after the last occurrence of prohibited conduct, notify the Respondent of the allegation, seeking response and if not satisfied that she will seek redress under the Act. S21 (3) of the Act allows the time for notification to the Respondent to be extended where there is reasonable cause from two months to four months. The Complainant’s complaint form refers to a form ES1 sent to the Respondent on 12th May 2019 and alleges the last date of discrimination occurred on 2nd July 2019. However, the form ES1 produced is dated 30th September 2019 and does not comply with the S21 (2) requirement for prior notification to the Respondent within 2 months of complaint. The time-limit for notification may be extended to four months where there is reasonable cause. The Complainant has provided evidence of service of the Form ES1 on the Respondent. Given at the time of the complaint, the Complainant was in prison and is unrepresented, I find it is reasonable to extend time pursuant to S21 (3) to allow the complaint to proceed. The Respondent raises objections as the incorrect name of the Respondent was on the complaint form. The correct name of the Respondent was subsequently clarified by the Complainant to the WRC. Pursuant to the judgment in County Louth VEC v The Equality Tribunal & Brannigan [2009] IEHC 370 Mr Justice McGovern held that the form EE1 is a non-statutory form and was only intended to set out the broad outline of the nature of the complaint and that it was permissible to amend a claim set out therein “so long as the general nature of the complaint remains the same”. In the circumstances, I amend the complaint form to include the correct name of the Respondent. The first question to be considered is whether the Complainant sought a service which comes within the Equal Status Acts 2000-2015. The differences between a service and function of a public body under the Acts have been considered by the Equality Tribunal in a number of cases including Donovan v Garda Donnellan DEC S2001-011 when the Equality Officer drew a distinction between the investigation and prosecution of crime by the Gardai and services provided to the public by the Gardai. The investigation and prosecution of crime by the Gardai are State functions carried out by the Gardai on behalf of and for the benefit of the public. These are separate to services provided by Gardai for the public. I note the Minister for Justice, Equality and law Reform stated in Dail debates in 1999: “Controlling duties in the areas of policing, defence and prisons would not be regarded as services…. Discrimination or irrationality in the exercise of such controlling duties can be challenged in a High Court constitutional action or in judicial review proceedings.” The Respondent says the matters complained of are controlling functions and are exempt from scrutiny, as they are decisions on levels of security and temporary release. These are not services provided to members of the public for example visitors. I am satisfied the complaints made by the Complainant relate to matters which are not services to a section of the public within the scope of these Acts. Accordingly, I find that the complaint fails as it does not relate to a service within the scope of the Equal Status Acts 2000-2015.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
The complaint fails as it does not relate to a service within the scope of the Equal Status Acts 2000-2015. |
Dated: 26th May 2023
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Service, controlling duties, gender discrimination |