Complainant

Respondent

Parties

Cathal  Burke Austin

Legal Services Regulatory Authority ( L.S.R.A.)

Representatives

  Geraldine Burke

 Mr. James Daly B.L., instructed by Ms. Lindsay Mason of Fieldfisher Ireland LLP 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-00057962-001

28/07/2023

The Complainant made a claim pursuant to Section 21 of the Equal Status Act 2000 (as amended). He alleged that the Respondent had discriminated against him when the Respondent made a determination that complaints made by the Complainant to the Respondent were inadmissible.

The matter came before me on the 17th of November 2023 at the offices of the Workplace Relations Commission. On that date directions were given to the parties to deliver and exchange further submissions in accordance with an agreed timetable and the matter was adjourned. Following receipt and exchange of submissions from the parties the matter was re-listed at the same venue on the 10th of June 2024 when both parties attended. 

The Complainant attended with his mother, Ms. Geraldine Burke who was also representing him. He delivered several detailed submissions all of which have been read and considered in full.

The Complainant submitted seven formal complaints to the Respondent alleging wrongdoing on the part of several members of the legal profession. [These complaints are referred to in this decision as “the Original Complaints” and  those against whom they were made as “the Original Respondents”.]

The Original Complaints were deemed inadmissible by the Respondent and a decision was issued that no further action would be taken. These decisions were set out in letters from the Respondent to the Complainant dated the 9th of February 2023.

A Form ES 1 was posted to the Respondent on the 14th of April 2023 and a Complaint Form initiating the present claim, dated the 26th of July 2023 was received by the Workplace Relations Commission on the 28th of July 2023. The last act of discrimination was stated as the 14th of February 2023. The Complaint Form, which was completed in manuscript, suggested that this was the date when the outcome of the decisions was received. 

Pursuant to directions the Complainant delivered a series of lengthy and detailed submissions. In these submissions extensive material was furnished relating to the Original Complaints. Serious allegations against the Original Respondents and certain named third parties allegedly associated with them, which were in the Original Complaints, were repeated in the submissions made supporting the present claim. 

The Complainant made criticisms of the method of investigation adopted by the Respondent which he claimed lacked impartiality and was biased in favour of the legal practitioners. He claimed that evidence which he had submitted had been ignored. He claimed that the Respondent permitted the Original Respondents to insult, defame and undermine him and his family in their responses to his complaints against them and that the Respondent did not require the Original Respondents “to redact their insulting and defamatory language about me before they forwarded their abusive lies and insulting correspondence” to him.  The Complainant in a subsequent submission clarified that “I have not complained about the responses from the legal practitioners being forwarded to me.  I have complained that the LSRA Respondents simply accepted the arrogant, insulting and dismissive tones, lies and deliberately misleading inaccuracies provided by the legal practitioners”.

The Complainant stated that:

“I am a disabled person making a complaint about misconduct by legal practitioners against disabled and vulnerable members of my family”.

“My granduncle, a stroke victim, and his sister, my elderly widowedgrandmother were denied of all of their dignity along with their humanand all other personal and property rights by these parties and theconsequences of the misconduct of these legal practitioners is ongoing. It is entirely accurate to describe what is being done to my familyincluding myself as 'ethnic cleansing' as our family cottage and itscontents were seized without legal consent and everything from a familyhome that was occupied by my grandmother's parents since theirmarriage in 1925 is missing and unaccounted…”

“I wish to make it clear that my complaint to the WRC is specifically in response to the discrimination and victimisation I experienced from the above named LSRA Respondents when I as a disabled person filed a complaint about legal practitioners regarding their misconduct in the matter of an ongoing property and financial fraud committed against disabled, elderly and vulnerable members of my family that continues to cause intergenerational loss and trauma and ongoing enforced dispossession on various levels.”

In his Form ES 1 dated the 12th of April 2023, the Complainant alleged on the Disability Ground: Discrimination, Harassment, Failure to Provide Reasonable Accommodation and Victimisation.  In the Workplace Relations Commission Complaint Form dated the 26th of July 2023, the Disability Ground as well as the Family Status Ground are ticked or checked as the reasons for the alleged discrimination.  In relation to the basis of unlawful discrimination, the categories: ”Other”, “Victimising me because I opposed discrimination” and “Failing to give me ‘reasonable accommodation’ for a disability” are ticked or checked. 

The Respondent was represented by Mr. James Daly B.L., instructed by Ms. Lindsay Mason of Fieldfisher Ireland LLP Solicitors. The Respondent made a series of detailed submissions in response to those delivered by the Complainant. A summary of the Respondent’s case is set out below by reference to extracts from those submissions.

Section 3(1)(a) of the Equal Status Act, 2000 (as amended) 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 in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Disability, family status and victimisation for seeking relief under the Equal Status Act are three of the grounds of discrimination specified in section 3(2).

Section 5(1) provides that a person shall not discriminate in the provision of a service, whether such provision is for consideration or otherwise.

Section 38A(1) provides that:

“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.”

Accordingly, section 38A(1) provides that it is for the Complainant to establish a prima facie case sufficient to raise a presumption of discrimination. Only once this has occurred does the burden shift to the Respondent to disprove the claim.

In Mitchell v Southern Health Board [2001] 12 ELR 201, the Labour Court set out (at 206) the process for determining when a Complainant has established a sufficient prima facie case such that the Respondent must meet the burden of disproving it, as follows:

“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.”

Accordingly, before the burden can shift to the Respondent to disprove the claim, the tribunal determining the matter must be satisfied that:

a. the Complainant has proven the primary facts upon which he/she relies in seeking to raise a presumption of discrimination, and

b. the proven primary facts are such as give rise to a presumption of discrimination.

In the present case, the Complainant has not identified any fact as would indicate that the Respondent treated him differently on the basis of disability, family status or victimisation for seeking relief under the Equal Status Act, and the basis on which the Complainant alleges that any such discrimination arose is entirely unclear. The mere fact that the outcome of each of the Complainant’s complaints was not what he was hoping for does not amount to discrimination on the aforementioned grounds.

The Complainant has failed to establish a prima facie case such as would give rise to a presumption of discrimination and such as would shift the burden to the Respondent to disprove the claim. Further, the Complainant has not identified a comparator to demonstrate that he was treated less favourably than another person of a different .

On the basis of the foregoing, the Respondent has no case to answer. The Commission is asked to dismiss the Complainant’s complaint on that basis.

Background: The Complainant’s complaint against the Respondent

Without prejudice to the foregoing, the Respondent submits that it did not subject the Complainant to discrimination.

In the ES1 form submitted to the Workplace Relations Commission (but not furnished to the Respondent), the Complainant alleges that the Respondent discriminated against him on the basis of disability, family status and victimisation for seeking relief under the Equal Status Act in the manner in which it dealt with seven separate complaints relating to six solicitors and one barrister arising out of a property transaction in 1998 involving his disabled granduncle.

In summary, the Complainant’s complaints to the Respondent alleged various types of professional misconduct on the part of the seven legal practitioners arising out of the sale of a property by the Complainant’s granduncle, and the proposed taking of proceedings by the Complainant’s grandmother, more than 20 years ago. The Complainant made various allegations, including that some of the legal practitioners had a close connection to the purchaser of the property, that some of the legal practitioners failed to properly advise his grandmother, and that some of the legal practitioners discriminated against his grandmother and/or granduncle on the basis of their age or disability.

The Complainant was not a party to the interactions or transactions the subject of the alleged conspiracy, and the conclusions he reaches appear to be drawn from having perused his grandmother’s files.

In his complaint to the Respondent, the Complainant sought the transfer of the property into his name, together with financial compensation for alleged ongoing, but unparticularised, losses. The Respondent has no power to direct the transfer of property and is limited in its ability to direct the payment of money.

The Respondent carried out a preliminary review into each of the Complainant’s seven complaints, pursuant to its statutory obligations, and deemed each complaint to be inadmissible.

The Respondent’s statutory obligations

Section 51 of the Legal Services Regulation Act, 2015 provides that the Respondent is the statutory authority responsible for receiving complaints in relation to legal practitioners where the person making the complaint considers that:

a. the legal services provided to the person making the complaint by the legal practitioner were or are of an inadequate standard,

b. an amount of costs sought by the legal practitioner in respect of legal services provided to the person making the complaint by the legal practitioner was or is excessive, or

c. an act or omission of the legal practitioner constitutes misconduct.

Section 57 of the Act provides that where such a complaint is received, the Respondent shall conduct a preliminary review of the complaint to determine whether or not it is admissible. The grounds upon which a complaint shall be inadmissible are set out in section 58 of the Act, and include instances of frivolous or vexatious complaints, complaints without substance or foundation, complaints relating to acts or omissions that are substantially the same acts or omissions as have been the subject of a previous complaint, and complaints that have been made after the limitation period for making the same has expired. Section 57(7) provides that if the Respondent determines a complaint to be inadmissible, it shall take no further action in relation to the complaint.

Section 60 provides that where the Respondent determines the complaint to be admissible, it shall proceed to resolve/determine the complaint.

The process followed by the Respondent

The following is a summary of the process followed by the Respondent in processing the Complainant’s complaints, and does not include reference to each and every item of correspondence and documentation received due to the high volume thereof.

By registered post dated the 12th of April 2022, the Complainant wrote to the Respondent complaining of various conduct on the part of five solicitors.

By letter dated the 7th of May 2022, the Respondent advised that complaints against solicitors are dealt with on an individual basis, and asked that the Complainant write separately in respect of each solicitor about whom he makes a complaint. The said letter attached five copies of the Respondent’s complaint form.

By registered post dated the 24th of May 2022, the Complainant enclosed five completed Complaint Forms in respect of the five solicitors, as requested. The Complainant also submitted various documents.

On the 8th of June 2022, the Respondent received two further Complaint Forms in relation to one further solicitor and a barrister.

The Respondent carried out a preliminary review into each of the Complainant’s seven complaints, pursuant to its obligations under section 57 of the Legal Services Regulation Act, 2015 (as amended).

In summary format the outcomes of each of the complaints was as follows

The First Complaint

The Respondent determined that this complaint was inadmissible because the Respondent was of the opinion that the complaint was without substance or foundation (i.e. the facts alleged are incapable of being proven) because no evidence was submitted that the solicitor in question was involved in the purchase of the property.

The determination further noted that the transaction the subject of the complaint occurred in 1998, some twenty-four years earlier, and that in all the circumstances, the facts alleged, if proved, could not amount to a finding under the Act because it would not be reasonable to require a practitioner to defend himself in respect of the allegations in circumstances where he may no longer have access to the particular records or files, because a solicitor is not obliged to maintain such records for such a period of time.

The Second Complaint

The Respondent determined that this complaint was inadmissible because the complaint was frivolous or vexatious (namely, that the facts alleged, if proved, could not result in a finding against the solicitor under the Act) because the nature of the allegations of misconduct against the solicitor could not, in all the circumstances, amount to a finding against the solicitor under the Act.

The determination noted that the land transaction the subject of the complaint occurred in twenty-four years ago, some twenty-four years earlier, and that the solicitor’s client at the time has since died. The determination indicated that in all of the circumstances, the facts alleged could not amount to a finding under the Act because it is not reasonable that a practitioner be required to defend himself in respect of such allegations in circumstances where he may no longer have access to the particular records or files and where his original client has died. The determination noted that the solicitor is no longer practising as a solicitor and has not practised in the firm for fifteen years.

The determination further noted that the challenge to the property transaction was the subject of Circuit Court proceedings (Record Number 361/2000), which were struck out by the Court on the 19th of July 2002

The Third Complaint

The Respondent determined that this complaint was inadmissible.

The determination noted that the Complainant alleged that the purchasers had conducted a “non-compliant property transaction and had no proper legal title”, which was not brought to the County Council’s attention, and that the solicitor was “influenced in his actions by his long-time associates”, namely, the purchasers.

The determination indicated that the allegations of failure to carry out instructions, to which part of the complaint relates, is the same or substantially the same act or omission as on that was previously the subject matter of a complaint in respect of the solicitor, which was previously determined by the Law Society under the Solicitors Acts, 1954-2015, having regard to the complaint made on the 13th of December 2000 (Reference Number QUOTED).

The determination noted that the solicitor acted on behalf of the Complainant’s grandmother in 1999-2001, some twenty years earlier, and that given the passage of time and the fact that the solicitor’s client had since died, the facts alleged could not amount to a finding under the Act, because it was not reasonable that a practitioner be required to defend himself in respect of such allegations in circumstances where he may no longer have access to the particular records or files, and his original client is dead.

The determination noted that no evidence had been submitted to support the allegation of a conflict of interest.

The Fourth Complaint

The Respondent determined that this complaint was inadmissible.

The determination noted that the complaint involved an allegation against a solicitor of conduct that would bring the profession into disrepute. It noted that the Complainant alleged that the solicitor took up his grandmother’s case file in 2001 after it was handed over by the previous solicitor, and that the solicitor “did not base his advice to his grandmother on best practices”, resulting in an ongoing loss to the family. It noted that the Complainant further alleged that the solicitor discriminated against his grandmother on the basis of her ill health, denying her access to justice.

The determination indicated that the Respondent was of the opinion that the complaint was frivolous or vexatious (namely, that the facts alleged, if proved, could not result in a finding against the practitioner under the Act) because the nature of the allegations of misconduct could not in all the circumstances amount to a finding against the practitioner under the Act.

The determination noted that the file was handed over to the solicitor in 2001, who acted on behalf of the Complainant’s grandmother, which was more than twenty years earlier, and that given the passage of time and the fact that the solicitor’s client had since died, the facts alleged could not amount to a finding under the Act, because it is not reasonable that a practitioner be required to defend himself in respect of such allegations in circumstances where he may no longer have access to the particular records or files and his original client is dead.

The determination noted that the Complainant had submitted no evidence of misconduct on the part of the solicitor. It noted that the solicitor was retained by his client for his legal expertise, together with counsel, and that if the solicitor provided advice that was not what his client would have hoped for, this does not amount to misconduct. The determination further noted that it is not misconduct that the solicitor would not change counsel to obtain a legal opinion of his own volition if such was not requested by his client.

The Fifth Complaint

The Respondent determined that this complaint was inadmissible.  

The determination noted that the probate action in which the solicitor acted on behalf of the Complainant’s grandmother concluded in 2005, some seventeen years earlier, and that given the passage of time and the fact that the solicitor’s client had since died, the facts alleged could not amount to a finding under the Act because it was not reasonable that a practitioner be required to defend himself in respect of such allegations in circumstances where he may no longer have access to the particular records or files and his original client is dead.

The determination noted that the solicitor did not act for his clients in the matter of litigation, but only in the matter of probate, and that it is a matter for each solicitor to use their own discretion on work that they choose to undertake, and that the Respondent does not have the authority to interfere in such a matter.

The Sixth Complaint

The Respondent determined that this complaint was inadmissible.

The determination noted that the Respondent was of the opinion that the complaint is without substance or foundation (i.e. that the facts alleged are incapable of being proven) because no evidence had been submitted that the solicitor was involved in the purchase of the property.

The determination further noted that the transaction the subject of the complaint occurred in 1998, some twenty-four years earlier, and that in all the circumstances, the facts alleged, if proved, could not amount to a finding under the Act because it was not reasonable that a practitioner be required to defend himself in respect of such allegations in circumstances where he may no longer have access to the particular records or files, and that a solicitor is not obliged to maintain such records for such a length of time.

The Seventh Complaint

The Respondent determined that this complaint was inadmissible on the basis that the complaint was frivolous or vexatious (namely, that the facts alleged, if proved, could not result in a finding against the practitioner under the Act) because the nature of the allegations of misconduct could not in all the circumstances amount to a finding against the practitioner under the Act.

The determination noted that the barrister was engaged to work on the file in 2000 acting on behalf of the Complainant’s grandmother, some twenty-three years earlier, and that given the passage of time and the fact that the barrister’s client had since died, the facts alleged could not amount to a finding under the Act, because it is not reasonable that a practitioner be required to defend himself in respect of such allegations in circumstances where he may no longer have access to the particular records or files and his original client is dead.

The determination noted that the Complainant had submitted no evidence of misconduct on the part of the barrister, and that the barrister was retained as Counsel for the purpose of providing his professional legal opinion and expertise. The determination noted that if the barrister provided advice that was not what his client would have hoped for, that is not misconduct.

The determination further noted that any initiative regarding a second opinion is client-led, and no evidence had been submitted that the barrister’s client wished to seek a second opinion, and there is no obligation on a barrister to make such suggestions.

The Complainant has not identified the manner in which the foregoing constitutes discrimination on any of the prohibited grounds.

The Complainant may be dissatisfied with the Respondent’s decision in each instance, but this does not constitute discrimination. The Respondent carried out its functions in accordance with sections 57 and 58 of the Act of 2015 impartially and in good faith.

Conclusion

The Complainant has not met the threshold of a prima facie case giving rise to a presumption of discrimination such that the burden of proof shifts to the Respondent to disprove the claim. On that basis, the complaint should be dismissed.

Without prejudice to the foregoing, the process followed by the Respondent clearly shows that the Complainant was not subjected to discrimination, and that his complaint was dealt with in the manner set out in statute and in the same manner as every other complaint to the Respondent.

The Respondent denies the claim in its entirety.

In oral submissions at the hearing counsel for the Respondent expressed the view that it was unnecessary and unfair that the individuals named by the Complainant in the W.R.C. Complaint Form should be named Respondents to his claim. The Respondent confirmed that each of the named individuals at all times was acting in the course of his/her employment with the Legal Services Regulatory Authority and that that entity accepted full legal responsibility for their actions. This was explained to the Complainant and his representative who indicated that they understood the situation. I make an order reflecting the legal realities of the situation before me that the Legal Service Regulatory Authority be substituted as the sole respondent to this claim in place of the named respondents.

The parties made extensive and very detailed submissions. I informed the parties at the commencement of the hearing on the 10th of June 2024 that I had sufficient information and documentation before me to identify and rule upon the key issues before me without the necessity to hear oral evidence on any of those issues save only for the available evidence as to the delivery or otherwise of the Complainant’s Form ES1 which I proposed to hear. I also indicated that I would request the Complainant to clarify a number of issues and that I would then invite the parties to put forward any further submissions or evidence they deemed appropriate. The parties both indicated that they agreed to this proposal.

Whether the Complainant Complied with the Notification Provisions in Section 21 (2)

The Respondent made the following submissions:

“The Complainant has failed to comply with the condition precedent of notifying the Respondent in writing of the nature of the allegation he was making and of the Complainant’s intention to seek redress pursuant to the Act, as required by section 21(2)(a) of the Equal Status Act, 2000, and his claim must fail on that basis.”

It was submitted that had the Respondent received an ES1 form from the Complainant, it would have responded to the same, as per its normal practice.

It was further submitted that in any event, the Complainant claims to have sent the ES1 form on the 14th of April 2023, which is more than two months after the most recent date of alleged discrimination (being the 14th of February 2023). Even if the ES1 form had been furnished on that date, it would have been outside of the two-month period set out in section 21(2).

The Respondent’s first knowledge of the claim was by letter dated the 15th of August 2023, from the Workplace Relations Commission.

It was submitted I did not have jurisdiction to hear and determine this matter wherein the requirement set out in section 21(2) is a mandatory requirement.

It was submitted that

“In the present case the Respondent has not replied to the notification (which was never sent), nor has at least one month elapsed after the notification was sent to the Respondent (again, in circumstances where the notification was never sent). Consequently, the Workplace Relations Commission is further precluded from hearing this claim pursuant to section 21(4).”

The Complainant’s representative, his mother Ms. Geraldine Burke, gave evidence on Affirmation to the effect that it was she who personally posted the form at a post office in Shannon County Clare. She was absolutely certain that the Form, which was dated the 12th of April 2023, was posted on the 14th of April 2023. She referred to a certificate of posting on which the date of posting is not clearly legible, and she swore that whatever about the date on the certificate she was certain that the date of posting was the 14th of April 2023. The Respondent did not challenge this evidence.

Ms. Orlaith Gallagher gave evidence on affirmation for the Respondent. She is the Office Manager  

of the Respondent’s Complaint’s Section and had no involvement with the handling of the Complainant made to the Respondent by the Complainant. She was asked by a member of the Respondent’s Legal Department to conduct a search to ascertain whether the Complainant’s ES1 Form dated the 12th of April 2023 had been received on any day between the 12th and 21st of April 2023 inclusive. She undertook the search, and the Form was not found. She explained that all incoming post is routinely date-stamped on receipt and then uploaded in soft copy to electronic file with the hard copy being placed on the relevant paper file as well. All incoming post is recorded by the computer systems. The witness checked with all Clerical Officers who were in charge of incoming post. The electronic files were checked along with the Complainant’s paper file. The witness was satisfied that the document had not been misfiled. Following the internal searches the witness then attended at Prussia Street Post Office, but this post office had no role in the dispatching of outgoing post. This evidence was not challenged by the Complainant or his representative.

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.

Substituted (18.07.2004) by Equality Act 2004

(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 were substituted a reference to such period not exceeding 4 months as is specified 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.

This provision provides for a preliminary step which should normally be taken before a claim can proceed. It is not to be confused with the time limit applicable to the institution of the claim which is governed by Subsection (6).

As per subsection (2) the notification of the complaint to the Respondent 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.

On a plain reading of the notification provisions, their objective appears to be to achieve a situation where any possible incident or situation is promptly reported by a complainant to a respondent before the six-month time limit for instituting the claim has run. When the report is made, for example by means of a Form ES1, the Respondent is put on notice of the issue and may then provide any information sought by the complainant. The complainant is then afforded an opportunity to assess the information provided and to decide whether to pursue the claim before the six-month limit expires. Thus, where the procedure is complied with by both parties, three objectives are achieved:

Firstly, the respondent is notified promptly and thus risks of the loss, alteration or destruction of evidence and/or the unavailability of witnesses and/or the fading of memory over time or any other prejudice to the respondent are all minimised;

Secondly, the complainant is given an opportunity to assess whether it is worthwhile pursuing the complaint;

Thirdly, the early notification procedure may yield an engagement between the parties such as to resolve the issue before it escalates to a formal claim, or if not to resolve it altogether, at least to narrow the issues making the claim more efficient to litigate before the Workplace Relations Commission.

Notwithstanding Section 21 subsection (2) a discretion is conferred by subsection (3), on the decision -maker hearing the claim, to extend the time limits or in exceptional cases to disregard it altogether which effectively allows for the disapplication of Subsection (2). This latter discretion is subject to subsection (3) (b). The provision requires the decision-maker to “have regard to all the relevant circumstances” This is then expanded by the word “including- …” the matters referred in paragraphs (i) and (ii). The effect of this wording is that those factors must be considered but other “relevant circumstances” may also be considered.

In this case it was not contended that the W.R.C. Complaint Form was out of time. The last date of alleged discrimination on the Complaint Form was stated to be the 14th of February 2023 and thus the Form ES1 should have been sent within 2 months of that date. The Complainant’s evidence is that it was sent within that timeframe, i.e. it was posted on the 14th of April 2023. The argument made by the Respondent is that Claim cannot proceed since the Form ES 1 was not received.

In relation to the evidence presented on this issue, I noted that neither side challenged the other’s evidence, and this implicitly permits of a situation where both parties are giving truthful accounts. My assessment of the respective evidence is also that both witnesses gave entirely truthful evidence. Accordingly, I find on the balance of probabilities that the Form ES1 was posted on the date indicated by Ms. Burke and I also find on the balance of probability that it was not received by the Respondent. This is an unusual situation and as it happens there is a reference to it in the above provision in Subsection 2A which states that “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.” Unfortunately, there is no indication as to how the provisions of Subsection (2) are to apply if at all where it is found as a fact, as in the present case, that the Form was sent but that also it was not received.

To deal with the situation I find that I must decide whether it is appropriate to exercise my discretion to disapply Subsection (2) having regards to all the relevant circumstances. The first difficulty in doing this is the fact that the discretion is predicated on an “…application by a complainant….” as per the wording of subsection (3) (a). In this case no such application was made by the Complainant as the case made and the evidence given was clearly framed on the basis that there was no necessity for such an application as the notification provision in subsection (2) had been fully complied with. Thie redress mechanism set up by the Equal Status Act 200 (as amended) was designed to provide ordinary members of the public with protection against discrimination when accessing services. The long title describes the legislation as “An Act to Promote Equality and Prohibit Types of Discrimination, Harassment and Related Behaviour in Connection with the Provision of Services, Property and Other Opportunities to which the Public Generally or a Section of the Public has Access” It follows that the legislation provisions (which it must be said are drafted in a complex manner) should not be interpreted in an overly legalistic manner such as to undermine the essential protective goal of the legislation. In the present case, given that the Complainant has a disability and neither he or his representative are legally qualified, I find that it is implicit that the Complainant would wish me, if necessary, to consider exercising my discretion pursuant to subsection (3) and I propose to do so in the unusual circumstances of this case, on the basis that such an application has been made implicitly if not explicitly. 

As to whether the discretion to disapply subsection (2) in this case should be exercised, the two explicit factors enumerated in subsection (3) (b) (i) and (ii) pose questions as to  whether the Respondent was taken by surprise if the only notification which they received was the complaint form and whether the Respondent’s defence to the claim was prejudiced as a result of not receiving the Form ES1. The only thing that the Respondent contends that it would have done if it had received the ES1 Form was that it would have responded to the same, as per its normal practice. The ES1 Form itself, which is in manuscript, does little more than provide a precis of the complaint which would subsequently follow. It did not in fact request any information. In such circumstances it is unlikely that the Respondent would have been able to provide any meaningful response to it even if the Respondent had received it but to be clear I cannot and will not draw any adverse inference against the Respondent for failure to respond to a Form which, I have found, was not received by the Respondent. As regards prejudice to the Respondent in its defence of the claim It is noteworthy that the Respondent was able to generate lengthy, detailed, robust and comprehensive submissions as to fact and law in response to each and every allegation, assertion and assumption enunciated by the Complainant in his various submissions. The Respondent was able to do so based on the information and files already in its possession before the claim was initiated. In such circumstances I am satisfied that the non-receipt by the Respondent (in the circumstances as so found) did not prejudice the Respondent’s defence of the claim and I note that no such argument was put forward specifically by the Respondent.

For the reasons set out above I deem it fair and reasonable in the particular circumstance of this case that I exercise my discretion to direct, pursuant to Section 21 subsection (3) that subsection (2) shall not apply to this particular case and I so direct.

As regards the Equality Tribunal decisions cited by counsel for the Respondent, namely Adeduntan v Vodaphone Ireland DEC-S2008-110, Wood v Aer Lingus, DEC-S2009-061and Yambasu and Brave v Abby Taxis DEC-2011-007, in each of  those cases a finding was made that the notification provision was not complied with either on time or at all and no unusual circumstances existed such as arose in the present case whereby the provisions of subsection (3) fell to be considered.

Finding on Allegations of Discrimination by the Respondent

I requested the Complainant and his representative to clarify the ground relied upon in support of the complainant of discrimination. It was confirmed that the ground relied upon and the only ground relied upon was that of disability, that disability being Autistic Spectrum Disorder (A.S.D.). The Respondent confirmed that it did not dispute the Complainant’s diagnosis. As to whether the Respondent was aware that the Complainant had a disability the Respondent did not specifically accept that the issue was “on its radar” so to speak. The Complainant’s representative pointed out that the condition was mentioned in the very first letter sent to the Respondent. In such circumstances I am satisfied that:

1. the Complainant has a disability and

2. that the Respondent was aware of this disability and

3. that it is this disability upon which the Complainant relies in support of his complaint of discrimination by the Respondent.

I then asked the Complainant to outline as best he could what relief or order he was seeking by way of his desired outcome from the proceedings before me. The Complainant was afforded time to confer with his representative and the latter advised that what was sought was:

-        an acknowledgement of wrongdoing

-        an acknowledgement or recognition of the fraud that had been perpetrated

-        an acknowledgement that written instructions had been ignored

I asked the Complainant’s representative to clarify the party or parties in respect of whose conduct the acknowledgements were sought, to which she advised that what was sought was “An acknowledgement of wrongdoing relating to professional misconduct on the part of those against whom the professional misconduct complaints were made.” I further requested clarification as to whether wrongdoing on the part of the Respondent was alleged and I was advised that “even they [the Respondent] knew what was illegally done.”

I enquired of the Respondent’s counsel whether the procedures set out in the Legal Services Regulation Act 2015 (as amended) and in particular the procedure pursuant to which the impugned decisions were made – Sections 57 and 58 – provided for an appeal against a decision of the type made in this case and I was informed that there is no such provision in the legislation. The Respondent’s counsel stated that it was open to the Complainant to refer the issue to the office of the Ombudsman, albeit that the tie limit for such a referral has probably passed. The Complainant’s representative said that they did look at this option, but that perusal of the Ombudsman’s website led them (she and the Complainant) to the belief that their objective could not be met by going this route. They did not make contact with the Office of the Ombudsman as they formed the view that that office does not deal with the issues which were raised with the Respondent.

The ground relied on, as was eventually clarified at the hearing on the 10th of June 2024, is that of disability, that being the disability of the Complainant, that being that he has a diagnosis of A.S.D.

The key to understanding the Complainant’s case lies in the response which I elicited at the hearing on 10th of June 2024 as summarised above. In the present proceedings under the Equal Status Act 2000 (as amended)  the Complainant seeks an outcome in the nature of a finding acknowledging wrongdoing on the part of the Original Complainants of which the Respondent was aware.

The Respondent is a regulatory authority charged with the duty to investigate complaints against the Legal Profession. Complaints made must be investigated in accordance with the procedures laid down in the Legal Services Regulation Act 2015. Where those complaints are determined inadmissible such an outcome, even where the complainant does not accept it, does not and cannot render the Respondent Regulator liable for the wrongdoing of those who were the subject matter of the Original Complaints. For this reason, I will make no ruling on any allegations which relate to alleged discrimination against the Complainant or his family by the Original Respondents or any party allegedly associated with them.

The finding sought by the Complainant is a legal impossibility. I have no jurisdiction to overrule or countermand the determinations made by the Respondent or to substitute my own determination for the one which was made. For this reason, I shall not make, nor is anything in this decision to be interpreted as, a ruling on the validity of the determinations made by the Respondent in respect of the Original Complaints.

The present claim, as I explained to the Complainant and his representative at the first hearing, has very limited parameters. I can only deal with specific allegations of discrimination on the chosen ground and these allegations must relate to the conduct of the Respondent and only of the Respondent.

Section 3(1)(a) of the Equal Status Act, 2000 (as amended) 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 in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Section 5(1) provides that a person shall not discriminate in the provision of a service, whether such provision is for consideration or otherwise.

Section 38A(1) provides that:

“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.”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.L.R. 201, the Labour Court (interpreting a similar provision in the Employment Equality Act 1998) concluded that:

“a complainant 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 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 (interpreting a similar provision in the Employment Equality Act 1998) has held in Hallinan v. Moy Valley ResourcesDEC-S2008-025 that to establish the relevant facts the Complainant must:

(a)    establish that he or she is covered by the protected ground;

(b)   Establish the specific treatment has allegedly taken place;

(c)    The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Similarly (interpreting a similar provision in the Employment Equality Act 1998) in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20  Equality Officer, Vivian Jackson stated:

“It appears to me that the three key elements which need to be established by a

complainant to show that a prima facie case exists are (i) that s/he is covered by the

relevant discriminatory ground(s), (ii) that s/he has been subjected to specific treatment

and (iii) that this treatment is less favourable than the treatment someone, who is not

covered by the relevant discriminatory, has been or would be treated.”

In the decision of the Labour Court in Anthony v Margetts (EDA038) (interpreting a similar provision in the Employment Equality Act 1998) the Court observed:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In the present the Complainant must establish facts from which it may be presumed that prohibited conduct has occurred. In the present case that prohibited conduct is alleged to be discrimination on the ground of disability. Thus the Complainant must establish (with the benefit of Section 38A(1)) facts from which it may be presumed (as per the wording of Section 3 (2) (g)) that he was treated less favourably than another person without a disability or with a different disability “is, has been or would be treated in a comparable situation”.

No instance has been identified of any act of the Respondent which was or would have been any different had the complaint to the Respondent been made by a person without a disability or with a different disability.

The Complainant’s case is built entirely on criticisms of the decisions taken and the procedures adopted by the Respondent. However, it is not my function to assess those actions or decisions or to make any findings regarding them save and except where there is evidence that any of them establish facts from which discrimination can be presumed, in the sense that the impugned decisions or actions would not have been taken or done if the Complainant had been a person without a disability or with a different disability. Thus, where it is suggested that any decision or action of the Respondent was unfair, impartial, that it disregarded evidence, went against the weight of the evidence, or was otherwise incorrect or improper, this does not establish discrimination. What must be established are primary facts which raise a presumption of discrimination. In the present case the existence of a disability and the dissatisfaction with a decision taken do not raise such a presumption. There is nothing to suggest that any of the actions taken or the decisions made, whether they are right or wrong in themselves, give rise to a presumption of disability discrimination against the Complainant.

Discrimination Finding

In such circumstances I must find that the threshold of proof required to establish discrimination as set out in Section 38A has not been met and the claim must fail. In other words, I find that the Respondent did not discriminate against the Complainant on the disability ground.

Harassment on the Disability Ground and Failure to Provide Reasonable Accommodation

It was not made clear as to how the Respondent allegedly harassed the Complainant. As already stated, the Respondent is not vicariously liable for the Acts of the Original Respondents or of any of the third parties allegedly associated with them and thus no act or omission by any third party which formed the basis of the Original Complaints can be deemed an act of harassment by the Respondent.

As regards the actions of the Respondent itself, although not framed as harassment, the Complainant complained that he was deeply offended by the content of the written responses furnished to him by the Respondent. Initially he contended that those response should have been redacted, which of course was impossible as to have done so would have rendered the Respondent responsible for withholding evidence from the Complainant. In a subsequent submission he altered his position. This time he said

“I have not complained about the responses from the legal practitioners being forwarded to me.  I have complained that the LSRA Respondents simply accepted the arrogant, insulting and dismissive tones, lies and deliberately misleading inaccuracies provided by the legal practitioners”.

To this the Respondent submitted:

“The Complainant goes on to complain about the terminology used by the Respondent’s officers, which he alleges largely quotes verbatim from the legal practitioners’ observations, and which he alleges constitute evidence of a lack of independent or impartial thinking in its decision-making, with the purpose of undermining the seriousness of the matters the subject of his complaints.

The written determination issued by the Respondent on foot of the preliminary review of each complaint referred to the complaint received and the legal practitioner’s response thereto. In each instance, the legal practitioner made observations supporting a finding of inadmissibility of the Complainant’s complaint. Where the Respondent found such observations to be of assistance in making its determination, it was appropriate that the same be referenced within the written determination itself, so as to provide the parties with the reasons underpinning the determination.

The Complainant has not identified the manner in which the foregoing constitutes discrimination on any of the prohibited grounds.”

The Respondent determined that the complaints were inadmissible for the reasons given, which included references to some the material furnished by the Original Respondents. The Respondent was not only entitled to but was obliged to give reasons for the exercise of its statutory powers. The Complainant is perfectly entitled to disagree with and even to take exception to the reasoning of the Respondent but the fact that he does so does not and cannot constitute a fact from which it may be presumed that prohibited conduct has occurred. Even though there was no appeal procedure provided for under the Legal Services Regulation Act 2015, the Complainant had other remedies which might have enable an independent review of the decision-making process which he elected not to pursue. As stated repeatedly in this decision, the present process does not involve such a review.

The Respondent’s submissions made the following point:

“The Complainant never informed the Respondent that the mere furnishing of the legal practitioners’ observations on his complaints to him was unduly distressing or stressful for him or that he was impacted mentally by the same. Had the Complainant done so, or had the Complainant asked that the observations not been furnished to him (or been furnished to some other person on his behalf), it may have been possible to come to an alternative arrangement to afford due process and fair procedures to all parties without causing undue distress, stress or mental impact to any person involved. Having failed to put the Respondent on notice of these matters, the Complainant cannot now accuse the Respondent of having discriminated against him on that basis.

At no stage whether during the investigation into the Original Complaints, following the determinations or at any stage, up to and including at  the hearing did the Complainant ever identify any measures which he requested or deemed necessary to accommodate his disability.

In conclusion I find that the Respondent did not harass the Complainant as alleged or at all. I further find that the Respondent did not fail to provide reasonable accommodation for the Complainant’s disability.

Victimisation

Victimisation is defined in Section 3 (2) (j) of the Equal Status Act 2000 (as amended) as follows

“that one—

(i) has in good faith applied for any determination or redress provided for in

(ii) has attended as a witness before the Authority, the adjudication

officeror a court in connection with any inquiry or proceedings under

this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in

subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).”

I have already found that the Respondent did not discriminate against the Complainant. The Complainant initiated the present claim alleging discrimination. The Respondent has had no further dealings whatsoever with the Complainant since the claim was initiated other than to defend itself in submissions before me. In such circumstances there is no possibility of the Respondent having victimised the Complainant with the meaning of that term as set out above.

I must therefore conclude that the Respondent did not victimise the Complainant.

“Other”

It is difficult to ascertain what allegations are captured by this category and it may be that it overlaps with any or all of the categories invoked. However, the Complainant made the following allegation in his submissions:

“Other- see evidence of double standards and inequity in treatment of me as a Complainant by the LSRA in comparison to the far more sensitive and sympathetic tone of their letters to the legal practitioners. For example, the initial LSRA letter informing legal practitioners that a complaint has been filed against them provides information on Wellbeing and Self-Care Hub resources for them but nothing and no such regard or information for the Complainants. The LSRA letter to legal practitioners informs them as follows:

"We are conscious that receiving a complaint may be distressing and can have an impact on wellbeing. You can find information about wellbeing resources such as Legal Mind on the Law Society's Wellbeing Hub".

I find this very demoralising and insulting and cannothelp but make the comparison about how intergenerational members ofmy vulnerable family continue to be treated by these legal practitioners,their clients and associates.My granduncle, a stroke victim, and his sister, my elderly widowedgrandmother were denied of all of their dignity along with their humanand all other personal and property rights by these parties and theconsequences of the misconduct of these legal practitioners is ongoing.It is entirely accurate to describe what is being done to my familyincluding myself as 'ethnic cleansing' as our family cottage and itscontents were seized without legal consent and everything from a familyhome that was occupied by my grandmother's parents since theirmarriage in 1925 is missing and unaccounted despite requests to thesolicitors and [named third parties]

The LSRA letter for legal practitioners communicates bias on the part of the LSRA from the outset and, furthermore, is deeply insulting and demoralising and undermining to all Complainants whether they have a disability or not and negatively demonstrates a clear bias from the outset between these legal practitioners who have previously worked at The Law Society and are now working for its alleged Regulator, the LSRA. “

The Respondent made the following response in its submissions:

          “The Complainant has not identified how he ought to have been treated differently by the Respondent by reference to the “far more sensitive and sympathetic tone” he alleges was employed by the Respondent in relation to the legal practitioners the subject of his complaints. In all instances of a complaint made by any complainant, the Respondent, when notifying the legal practitioner, the subject of the complaint, acknowledges, in an identical and pro forma manner, that receiving a complaint may be distressing and can have an impact on wellbeing, and refers the legal practitioner to wellbeing resources. It is absurd to seek to characterise this as an act of discrimination or bias.”

I note that the Complainant did not request any special facilities from the Respondent such as, for example access to counselling. The submission as quoted suggests that similar references to the availability of counselling should have been made to him. However, he did not adduce evidence that such facilities had been made available to any other complainant making a complaint to the Respondent. The purpose of the present proceedings is to ascertain whether the Complainant was discriminated against, harassed or victimised on the disability ground. The allegation quoted above, if it is to be taken as an alleged instance of discrimination, does not established facts from which it may be presumed that prohibited conduct has occurred.

Allegations of BiasAgainst Named Members of the Respondent’s Staff

The Complainant alleged that members of the Respondent’s staff involved in the investigation and decision-making processes in relation to the Original Complaints were previously employed by the Incorporated Law Society such that there was a complete lack of independent or impartial thinking in the decision-making process in relation to his complaints.

The Respondent submitted the following in response to this allegation:

“The Complainant alleges that certain officers of the Respondent were employed by the Complaints and Resolutions section of the Law Society many years ago, and seeks to infer that this mere fact evidences that the Respondent disadvantages complainants. This contention is utterly rejected. The Respondent’s officers acted impartially, with integrity, and in good faith in processing the Complainant’s complaints about the seven legal practitioners. The Complainant has not identified the manner in which the Respondent or any of its officers acted in a discriminatory fashion in this regard and his claim is baseless.

Further, the complaints made by the Complainant to the Respondent were made against individual private practitioners and not the Law Society, which also has a function in relation to investigating complaints against solicitors. In the circumstances, it cannot credibly be contended that any conflict of interest arises.”

As alluded to in the previous finding above, the present process does not involve an assessment of bias which is more properly left to another remedy which the Complainant did not pursue. I find that this allegation even if it is correct (and no such finding is made or implied) does not constitute a fact from which it may be presumed that prohibited conduct has occurred.

CA-00057962-001 - The Respondent did not engage in prohibited conduct and the issue of redress does not arise.

Equal Status Act, 2000 - Section 3(1)(a) - Section 3(2).- Section 5(1) – Form ES1- Notification Provisions – Disapplication of Notification Provisions - Equal Status Act 2000 -Section 21 subsection (2) - Section 21 subsection (3) - Adeduntan v Vodaphone Ireland DEC-S2008-110 - Wood v Aer Lingus, DEC-S2009-061-  Yambasu and Brave v Abby Taxis DEC-2011-007 - Equal Status Act 2000 - Section 38A -  Mitchell v Southern Health Board [2001] 12 ELR  - Hallinan v. Moy Valley ResourcesDEC-S2008-025 - Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 - Anthony v Margetts (EDA038)