Complainant

Respondent

Anonymised Parties

A Complainant

An Garda Siochána

Representatives

Eoin Morris B.L. instructed by Crushell & Co, Solicitors

 William Maher B.L. instructed by The Chief State Solicitor’s Office.

Act

Complaint Reference No.

Date of Receipt

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

CA-00046873-001

27/10/2021

Section 41(13) of the Workplace Relations Act 2015 provides that all WRC cases will be conducted in public unless the Adjudication Officer is satisfied that due to the existence of "special circumstances"the proceedings should be conducted in private.

Section 41(14) of the 2015 Act states that the identity of the parties may not be published if, the Adjudication Officer is satisfied of the existence of special circumstances.

The respondent has also submitted that the matters at issue in this claim have been,and may once again become the subject of a possible criminal investigation.To safeguard that criminal investigation, it says that is imperative that details concerning the investigation and the matters giving rise to that investigation is kept strictly confidential and that any failure to do so risks prejudicing the criminal process.

It submits that these are grounds which constitute "special circumstances" within the meaning of the Act. It is understood that the criminal investigation has been paused for the moment, but the respondent draws attention to a threat by the complainant to re-submit her complaint.

I agree, and for all these reasons and additionally that there is very sensitive material in the narrative of events surrounding this complaint, I have decided to anonymise the complainant and any references in the submissions to  specific events, locations or individuals which might tend to identify her.

The complainant sought the services of An Garda Siochana, suffering from a disability which falls within the definition of a disability for the purposes of the Act. The respondent was aware that she suffered from a disability and its  failure to provide her with the requisite service breached their duty of care to her.

Additional burdens were placed on her to retrieve the CCTV footage which had a disproportionate impact on her due to her disability. The respondent failed to provide her with a reasonable accommodation in respect of her disability.

On January 24th  2020 the complainant suffered a disability of memory loss and needed assistance with that disability to decide if she needed to access the service of An Garda Siochana or not. There was a failure on the part of the Gardai to assess the memory loss and how the disability would impact her ability to independently access the service of An Garda Siochana.

The respondent  failed to recognise how a person's psychological health/disability may restrict a person's mobility, ability to take action and to access a service in the same way as some physical disabilities restrict a person. The comparator is a person without a disability who may require the services of An Garda Siochana.

She was denied their right to information, independent assessment of the situation and was denied the right to decide on the appropriate course of action in relation to an insurance claim, civil litigation, and health care.

The detail of the incident at the heart of the complaint is very sensitive.

Early in 2020 the complainant was staying at a hotel with her husband. She attended a work party and returned to the hotel and her room at approximately 9:30pm. She was unable to sleep and subsequently went to the hotel reception.

She has no recollection of events thereafter, until approximately 5:00am, when her husband found her in a different hotel room .

The complainant contacted Garda A who was a personal friend and asked him to come to the hotel to assist her, but Garda A, without telling her, informed An Garda Siochana of the incident and brought a colleague with him to the scene of the incident.

Garda A and another Garda, (Garda B) arrived at the Hotel and the complainant contends that Garda B told hotel staff to withhold information from the Complainant. The complainant told Garda B that she was unable to make a criminal complaint without the relevant information and she would not do so until that information was obtained by the complainant.

On January 25th,  2020 and thereafter, the complainant was repeatedly contacted by phone by Garda B.

The complainant says she felt pressure from Garda B to make a complaint, which the complainant felt she could not do due to a lack of information. The complainant subsequently went to the Sexual Assault and Trauma Unit in the area.

The complainant contacted the hotel she had been staying in to request access to CCTV footage but the hotel requested that the complainant provide her with the name and contact details of the investigating Garda dealing with her case.

In due course the hotel told the complainant that the Gardai had confirmed that until such time that it was confirmed to the hotel in writing that there would be no formal complaint on this criminal matter, it could not send the complainant the CCTV or other information she requested.

Subsequently, on  February 25th, 2020,the complainant confirmed to An Garda Siochana that she did not wish to make a criminal complaint

On March 4th, 2020, Garda B told the complainant she could not make a subject access request. The complainant made a complaint to the Data Protection Commission and subsequently they informed the hotel that the CCTV had to be provided to the data subject and  the CCTV was released at the end of July.

On July 29th,  2020 the complainant got medical confirmation that she was suffering from basilar migraine which presents with altered mental status, among other symptoms and that she may have had some form of fugue state (temporary memory loss).

The complainant viewed the CCTV at the end of August 2020 and subsequently made a complaint based on the information that was then available to her. She also made several subject data access requests to the hospital she attended, to obtain medical information from her visit after January 24th, 2020, and she received these medical records in December 2020.

On 17 February 2021, the complainant was forwarded an email from  a Garda Superintendent in which he  stated that he has the responsibility of dealing with all serious crimes in the area, that he was aware of the complainant’s complaint, that all evidence of the incident would be gathered and forwarded to the Director of Public Prosecutions, and that the complainant would be kept informed of developments.

The complainant met the Superintendent on June 17th, 2021, and advised him to seek legal advice on her complaint when he informed her that he could not give access of the information relating to the relevant parties which she sought for the purpose of initiating civil litigation.

On July 10th,  2021, the Superintendent sent an email to the complainant, to inform her that his advice was that she  could not access the information relating to the relevant parties.

She withdrew her complaint from September 2020 in July 2021 and replied to him on 20 September 2021, highlighting an excerpt from his 10 July 2021 email that stated.

“Intheeventthatyoudeterminethatyoudonotwishtohavethematterinvestigatedany further,asignedstatementtothateffectwillberequiredbytheinvestigatingGardai.Ifthis shouldoccur,theinformationbeingsoughtcanthereafter,onlybemadeavailableonfootof a court order served on the Gardai.”

The complainant stated that the meaning of this was that in order for her to obtain the information she sought, she would have to withdraw her complaint .

On 20 September 2021, the Superintendent reaffirmed that he sought legal advice on her request and denying that he told the complainant that if she withdrew her criminal complaint that she would be able to obtain the requisite information.

The complainant replied alleging that he had discriminated against her and harassed her in the provision of victim services. and advised of her complaint under the Equal Status Act. In due course, the respondent acknowledged the filing of the ES1 form and a refutation by An Garda Siochana of all allegations made by the Complainant.

The purpose of the Equal Status Act, is to ensure that individuals who suffer from a disability, are not discriminated against because of that disability. The complainant says that she suffered memory loss, sought the services of An Garda Siochana, that An Garda Siochana were at all times aware of her disability, and a particular requirement for her to obtain CCTV footage and the names of the relevant parties for the purpose of civil litigation, on account of her memory loss, in order to assist her in what was on all accounts a very traumatic and life changing event for her.

Despite thoroughly understanding the gravity of the situation, An Garda Siochana failed, without objective justification, to provide the complainant with the requisite service, namely the provision of CCTV footage and the relevant parties for the purpose of civil litigation, which would have assisted her, in progressing and enforcing other right.

The burden of proof is set out in Section 38A of the Acts which provides:

“(1)Whereinanyproceedingfactsareestablishedbyoronbehalfofapersonfromwhichit mayberesumedthatprohibitedconducthasoccurredinrelationtohimorher,itisforthe respondenttoprovethecontrary.

(2)         Thissectioniswithoutprejudicetoanyotherenactmentorruleoflawinrelationtothe burdenofproofinanyproceedingswhichmaybemorefavourabletotheperson.

(3)         Where,inanyproceedingsarisingfromareferenceofamatterbytheAuthoritytothe Director of the Workplace Relations Commission under section 23(1), facts are established by oronbehalfoftheAuthorityfromwhichitmaybepresumedthatprohibitedconductora contraventionmentionedinthatprovisionhasoccurred,itisfortherespondenttoprovethe contrary.”

The Act also provides for certain exceptions. One such exception concerns inter alia the prevention of criminal or disorderly conduct or behaviour and is provided for under section 15(1) of the ESA as follows:

“Certainactivitiesnotdiscrimination.

15.—(1) For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (“the customer”) in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property atorinthevicinityoftheplaceinwhichthegoodsorservicesaresoughtorthepremisesor accommodation are located.”

5.1.1          Section 15(1) clarifies that the ESA permits a service provider to refuse service in circumstances where they believe that there is substantial risk of criminal or disorderly conduct or behaviour. This section requires an analysis of the totality of the evidence. Judy Walsh notes in “Equal Status Acts 2000-2011: Discrimination in the Provision of Goods and Services” (p.143) that section 15(1) also applies to those alleging discrimination who are not responsible for the criminal or disorderly conduct. She further notes that section 15(1) is limited to action being taken “on grounds other than discriminatory grounds”.

As noted in MartinMonganv.Mulleady'sLimited, ADJ-00034333, there must be evidence of “substantial” risk, which is more than “reasonable” risk.

Section 21(2) of the ESA outlines the notification obligations of a complainant before submitting a claim to the WRC. It states: -

Before seekingredressunderthissection,thecomplainant—

(a)                                    shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where morethanoneincidentofprohibitedconductisallegedtohaveoccurred, within2months afterthelast suchoccurrence, notifytherespondentinwritingof—

(i)                                     thenatureoftheallegation,

(ii)                                        the complainant’s intention, if not satisfied with the respondent’s response to the allegation to seek redress under this Act…

In the matter of G-v-DepartmentofSocialProtection[2015]IEHC419, O’Malley J. held that: “...

theActisintendedtocoverabroadrangeofhumanlifeandactivity,andthatitsoverall purposeistoreducethesocialwrongofdiscriminationbasedonimproperconsiderations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

The case of Farah v Commissioner of Police [1997], particularly focuses on racial harassment and domestic violence and its impact on police officers dealing with racially motivated crimes. In 1994, Zeinab Farah, a Somali citizen living in London, was attacked by white teenagers, and instead of arresting her attackers, the police arrested and detained her, charging her with various offenses. She claimed racial discrimination by the police, leading to the Court of Appeal's examination of two key questions.

The first question revolved around whether the police were providing a service within the scope of the Race Relations Act 1976. Section 20 of the 1976 ACT prohibits discrimination in the provision of goods, facilities, or services, and the court considered whether the police fell under this section. The court dismissed arguments seeking an exemption for the police based on public policy and emphasised that if Parliament intended such immunity, it would have expressly stated so. The court determined that the police, in protecting the public, were providing a service, making them subject to the provisions of the 1976 Act.

The second question addressed whether the Commissioner of Police could be vicariously liable for the discriminatory acts of individual officers. The court interpreted Section 32 of the 1976 ACT, which establishes vicarious liability for employers, narrowly and held that the specific inclusion of the police in the vicarious liability provisions was required. Since Section 32 did not explicitly reference Section 48 of the Police Act 1964, the court concluded that the vicarious liability of the Commissioner was not applicable to the provision of services under the 1976 ACT. Additionally, the court asserted that police officers were not agents of the Commissioner but public servants, making the claim against the Commissioner fail.

The case note suggests that the Farah decision has broader implications, particularly in the context of determining whether police actions constitute the provision of services. The court's decision clarified that the police fall within the purview of the 1976 Act, emphasizing that they must offer their services without discrimination. This precedent ensures that individuals can pursue claims of racial discrimination against the police. Additionally, the court rejected arguments seeking to exempt the police from anti-discrimination provisions, underscoring the principle that public services, including those provided by law enforcement, must adhere to non-discriminatory standards. The ruling provides a legal basis for addressing discriminatory acts by the police and reinforces the accountability of law enforcement agencies in delivering services without prejudice.

In HK Danmark C-335/11, the Court of Justice of the European Union expressly adopted the definition of disability set out in the UN Convention, which defines a disability as:

“along-termphysical,mental,intellectualorsensoryimpairmentswhichininteractionwith various barriersmay hinder their full and effective participation insociety on an equal basis with others.”

In A Retail Company v., A Worker EDA2012in the following terms:

“It is necessary for her to show that she had a disability as defined above in the Acts. In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the complainant to call such a practitioner in evidence means that the Court is left to rely entirely on the written evidence provided. The medical certificates provided to the employer are scant on detail, referring only to ‘stress/work related stress’, which is of no assistance to the Court. The only evidence of any substance put to the Court in support of a claimed disability is a medical report from the Complainant’s GP. However, this report makes no reference to depression and contains no details of any prescribed medication. The report refers to symptoms arising from stress such as sleep difficulties and emotional fragility but in the absence of medical testimony, it is not possible for the Court to get more useful detail. The report refers to the complainant being ‘anxious’ but little detail of the sort that the Court would require is provided. In short, this report is of limited value.

TheCourt has no medical expertise and relies heavily on medical evidence in casessuch as this to determine the existence of a disability or otherwise. The burden of establishing this falls on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the complainant had a disability atthetimeinquestion.Asthecomplainant hasnotmettheburdenofproof,itfollowsthat the claim must fail.”

Other cases submitted in relation to the Burden of proof were In Melbury Developments Ltd v Valpeters [2010] ELR 64, SouthernHealthBoardvMitchell[2001]ELR201 and Oskar Hangurbadzo v Ladbroke (Ireland) Limited (ADJ-00030248)

Further case law was submitted Monganv.TheFirhouseInn, DEC-S2003-034-35: Mr. Patrick McDonagh and Mr. Martin Stokes v. City Cinemas Limited, DEC-S2017-024: Kevin & Jackie Buckley v An Garda Siochana (DEC-S2008-006)

The complaint was submitted to the WRC under the Equal Status Act 2000.It claims discrimination in the provision of services on the grounds of gender, civil status, family status, sexual orientation, age, and disability; her written submission received on  November 16th, 2023, only claims discriminationonthe grounds of disability.

The complaint states that she is not making a claim of discrimination on the grounds for failure to make reasonable accommodation. However, based on her written submissions she  now appears to be making such a claim.

The circumstances giving rise to the complaint concerns an alleged assault/sexual assault which occurred in 2020. That became the subject of a formal Garda investigation following the complainant's statement of complaint to An Garda Siochana in September 2020.

Members of An Garda Siochana attended withthecomplainant  the morning afterthe alleged assault and following at the scene the events, the complainant  attended a sexual assault andtreatment unit (SATU}, fora medical and forensic examination.

She participated in this examination having been told that she could delay deciding whether to make a formal complaint toAn GardaSiochana.Thecomplainant  laterconsentedto use of theforensic samples obtained during her SATU forensic examination but only on condition that they revealed the identities of the suspects and witnesses involved in thealleged assault.

For operational and/or data protection reasons, the respondent could not agree to this request. The complainant then withdrew her criminal complaint on  July 11th, 2021.

The complainant has threatened judicial review proceedings against An Garda Siochana for its refusal to provide the names of the person or persons who were the subject of the aforementioned criminal investigation. She  has confirmed that once her discrimination and judicial review proceedings are resolved that she will then reinstate her criminal complaint first made in September 2020.

Separately, the complainant made a complaint to the Garda Siochana Ombudsman Commission (GSOC) into the handling of the investigation.Specifically, the complaint to GSOC wasthatinvestigatingGardairefusedto disclose the details of the alleged perpetrator relating to the alleged sexual assault on the complainant, despite her claiming that she needed the information to aid her recovery from mental ill-health.

GSOC concluded that the investigation was at all times appropriate and no sanction was imposed against any member.

The report of that complaint states:

GSOC found that the decision to not release the name of the alleged offender was taken by your line management in AGS and was not your responsibility. The considerations around revealing his details by your management were all measured and assessed in light of a now - active again investigation into a sexual assault allegation. GSOC concludes that the decision to refuse the alleged offenders details to [the complainant] at the time was correct, and that the decision would be reviewed as the case progressed and lines of enquiry were pursued and completed. It is likely that his details will be revealed at some stage in the future, but GSOC concludes that withholding them now is the correct course of action."

The complainant has also made a complaint to the Data Protection Commissioner (DPC) for the respondent’s failure to provide, inter alia, third party personal data beingdetails oftheidentity ofperson orpersons who arethe subject of the Garda criminal investigation ofthe matters whichoccurred onJanuary 24th, 2020.

TheData Protection Commissioner has conducted its own enquiry and has concluded that therespondent hasnotbreached applicable legislation andhas actedatalltimes in accordance with proper data protection requirements.

The complainant  now makes this complaint to the WRC on the purported grounds of discrimination.

Section 41(13) of the Workplace Relations Act 2015 provides that all WRC cases will be conducted in public unless the Adjudication Officer is satisfied that due to the existence of "special circumstances" the proceedings should be conducted in private. Section 41(14) of the 2015 Act states that the identity of the parties may not be published if, the Adjudication Officer is satisfied of the existence of special circumstances.

The fact is that the matters at issue in this claim have been and may once again become the subject of a possible criminal investigation. To safeguard that criminal investigation, it is imperative that details concerning the investigation and the matters giving rise to that investigation is kept strictly confidential. Any failure to do so risks prejudicing the criminal process. As such, it is respectfully submitted that these are grounds which constitute "special circumstances" within the meaning of the Act.

Furthermore, identifying the parties involved in this action, risks causing prejudice to any future criminal investigation/prosecution. For that reason, it is respectfully requested that the publication of anything that might identify any of the parties involved in this matter creates an unnecessary risk for the proper conduct of a future criminal trial.

The complaint concerns alleged acts of discriminatory treatment during the investigation of an alleged offence by members of An Garda Siochana in January 2020. It is settled law that the members of An Garda Siochana involved in the investigation and/or prosecution of an offence, cannot be pursued before the WRC for an alleged breach of the Equal Status Act 2000, as amended.

The Equal Status Act 2000, as amended, prohibits:

"...types of discrimination in connection with the provision of services...to which the public generally or a section of the public has access...".

Section 2 of the 2000 Act defines what is a "service" as:

"service" means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes-

(a)     access to and the use of any place,

(b)  facilities for

(i) banking, insurance, grants, loans, credit, or financing,

(ii)entertainment,recreation,orrefreshment,

(iii) culturalactivities,or

(iv)transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999} which is available to the public generally or a section of the public, whether on payment or without payment, and

(d)     a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998} or a service or facility in relation to which that Act applies.

Members of An Garda Siochana investigating or prosecuting an offence are not involvedintheprovisionofaserviceavailabletothepublic,eithergenerallyorto a section of the public, within the meaning of Section 2(1) of the2000 Act.

At all material times, the members of An Garda Siochana involved were performing a statutory function pursuant to Section 7(1) of the Garda Siochana Act, 2005.This publicfunctionis forthebenefitof societyasawholeand isnota"service"within the meaning of Section 2(1) of the 2000 Act.

The authorities of Donovan v Garda Donnellan (OEC-5200.1-011), A Complaint v An Garda Siochana (DEC52005 037}, A Parent v An Garda Siochana (DEC-52018-016), Dariusz Bula -v- Commissioner of An Garda Siochana {ADJ-000065931 and Woodhead and Sparkes v Swinford Garda Station (DEC-S2008-064) refers.

Furthermore, Section 14 of the 2000 Act states that:

"Nothing in this Act shall be construed as prohibiting -

   (a)The taking of any action that is required under­

(i)                         Any enactment...

The members of An Garda Siochana in this case were not involved in the provision of a "service" and are immune from suit where they were carrying out an action required under statute.

Without prejudice to the fact that the WRC lacks jurisdiction to consider the complainant 's complaint, the claims being made by the complainant  herein are vehemently denied in full.

The complainant  is on full proof that she has or did suffer from a "disability" within the meaning of the Equal Status Act 2000, as amended, and the burden of proof falls on the complainant  in this regard.

Even if she does, her claim is statute barred on the basis of the time limits for making a complaint in circumstances where the prohibited conduct alleged to have occurred, happened in January 2020 yet the complainant 's WRC complaint form was only submitted on October 27th  2021, some twenty-two months after the date of incident complained of.

Members of An Garda Siochana are subject to a statutory and common law duty to investigate possible criminal activity even where no complaint has been made.

At all material times, they adhered to the correct procedure for the investigation of the alleged incident and the complainant  was appropriately advised and appropriately treated by members of the investigation team.

The complainant  was kept informed of developments in the investigation by members of the investigation team.

Due to numerous requests by the complainant  seeking access to the information relating to the parties involved in the alleged assault, the respondent sought and obtained internal legal advice, which confirmed that it could not provide the complainant  with confidential details of persons involved in her complaint at that time.

The complainant withdrew her complaint in July 2021 and was advised by relevant  Superintendent   that it was open to her to seek a Court Order to obtain the information she required.

The respondents are strangers to the claim that the complainant  made it known to individual members of An Garda Siochana on 24 January 2020 that she had a "disability" within the meaning of the Equal Status Act 2000, as alleged.

While the complainant  did advise investigating members that she could not recall certain of the events of  January 24th, 2020, the complainant  did not advise the respondent that this memory loss constituted a "disability"within the meaning of the Act.

The first reference to a claim of discrimination on the basis of disability against a member of An Garda Siochana was made by e-mail dated 3 October 2021. The respondent denies that it was requested to provide reasonable accommodation of any sort in respect of any alleged disability.

For the avoidance of doubt, this application to the WRC was the first time a claim of discrimination was advanced by the complainant  and at no point was a claim of discrimination on the basis of disability made at any point before that date.

The law

The Section 2(1) of the Equality Act 2000, as amended, defines a "service" (text of statute submitted):

Section 7 Garda Siochana Act, 2005, as amended, states:

1)        The function of the Garda Siochana is to provide policing and security services for the State with the objective of' -

(a)                                                                                  Preserving peace and public order.

(b)                                                                                  Protecting life and property.

(c)                                                                                  Vindicating the human rights of each individual.

(d)                                                                                  Protecting the security of the State.

(e)                                                                                  Preventingcrime.

(f)                                                                                    Bringing criminals to justice, including by detecting and investigating crime, and

(g)                                                                                  Regulating and controlling road traffic and improving road safety.

2)                       For the purpose of achieving the objective referred to in subsection 1, the Garda Siochana shall cooperate as appropriate with other departments of State, agencies and bodies having, by law, responsibility for any matter relating to any aspect of that objective.

3)        In addition to its function under subsection 1, the Garda Siochana and its members have such functions as are conferred on them by law including those relating to immigration.

Section 38(A) sets out the burden of proof requirement to be established. The complainant  is required to establish "facts" from which it may be presumed that prohibited conduct has occurred in relation to them. Once such facts have been established by the complainant , the burden of proof shifts to the Respondent to prove the contrary.

The Respondent endorses and shares the submission of the complainant  at paragraph 5.9.3 of her submission wherein she cites the authority of Melbury Developments Limited -v- Valpeters {20101 ELR64where the Labour Court held that

"mere speculation or assertions, unsupported by evidence, cannot be elevated ta a factual basis upon which an inference of discrimination can be drawn".

In this complaint, the complainant  must show to the requisite standard that the treatment she was subjected to was less favourable than the treatment that was or would have been afforded to another person suffering with a disability in similar circumstances.

As outlined above, it is settled law that the investigation of a crime by An Garda Siochana is not a service within the meaning of the Equal Status Act 2000, as amended.

At all material times, the members involved in the investigation of the events of 24January 2020, did so in accordance with their functions pursuant to Section 7(1) of the Garda Siochana Act, 2005. Section 14{1)(a)(i) of the Equal Status Act 2000 states that it shall not be a prohibited ergo, discriminatory act for the taking of an action that is required by an act of the Oireachtas. It is respectfully submitted, that at all material times, the members of An Garda Siochana in question were acting pursuant to their statutory powers and obligations.

The decision of Dariusz Bula -v- Commissioner of An Garda Siochana {ADJ- 000065931dated November 19th,  2019, considered an almost identical scenario whereby the complainant sought to ascertain the name of a driver involved in a road traffic accident. The complainant alleged that a member of An Garda Siochana discriminated against him on the basis of race (or otherwise) by their refusal to reveal the name of the driver of the vehicle. The Adjudicator, in his decision, held that a distinction must be drawn between "public functions" and "services". The Adjudication Officer cited with approval the authority of Donovan -v- Garda Donnellan [DEC-S2001-011 [.

"... it is clear and plain from the wording of the Section 2(1) that the investigation and prosecution of crime are not services which are available to the public, or a section of it, within the meaning of service defined therein. It is my belief that these are State functions which are carried out by Gardai (and the OPP) on behalf of and for the benefit of the public and society as a whole. They are clearly not services which the public have access to in the way that other services clearly are, such as access to facilities for bank, leisure or travel... I am satisfied that the intention of the Oireachtas was not to include the investigation and prosecution of crimes as services within the scope of the Act when it enacted the legislation. It is my view that the drafting of the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Siochana, including those of the investigation and prosecution of crime, while at the same legislating that the service aspects of policy come within its scope... I decide that the complaint is outside the scope of the Act because the investigation and prosecution of crime are not services within the meaning of Section 2(1) of the Act."

The Adjudicator considered the impact of Section 7 of the Garda Siochana Act and the clear purpose of the statutory functions prescribed under that Section.

"accordingly, in the circumstances of this case, I do accept the preliminary point that the investigation and prosecution of crime by An Garda Siochana are not services available to the public within the meaning defined in Section 2(1) of the Equal Status Acts. Members of the public cannot claim discriminatory treatment under the Equal Status Acts on the part of members of An Garda Siochana in relation to specific actions in the exercise of their statutory functions under Section 7(1) of the Garda Siochana Act 2005 and as such, they do not come within the Jurisdiction of the Workplace Relations Commission pursuant to Section 3 and 5 of the Equal Status Acts.

The Adjudicator goes on to say that the Garda Siochana Ombudsman Commission (GSOC) is the appropriate mechanism for complaints to be made regarding members in relation to the exercise by the Gardai of their functions under Section 7 of the Act of 2005. The Adjudicator cites with approval the earlier decision of a complainant -v-An Garda Siochana [DEC-S2005-037].

A Complainant-v-An Garda Siochana (DEC-S2005-037l concerned an allegation of race discrimination contrary to the Equal Status Act 2000. Referencing the earlier decisions of the Equality Tribunal the Equality Officer in this 2005 decision stated:

"it was accepted... that the role of a member of the Garda Siochana is bifurcated. It can be identified as dual role of engaging in controlling duties of the investigation and prosecution of a crime on the one hand and the provision of a service to the public in the form of dealing with enquiries, signing passport applications etc. on the other. It was established in Donovan -v- Garda Donnellan that while the second element of the dual role described above would be covered by the Equal Status Act, the first element, i.e., the controlling function is not within the remit of the functions of the Director as delegated to an Equality Officer in accordance with the Act.

Helpfully, this authority also considers the UK decision of Farah -v- Commissioner of Police {1997l 2WLR824, which the complainant  seeks to rely on at paragraph 5.8.4 of her submissions. The complainant  is selective in its analysis of that authority and notably fails to outline to the WRC the full extent of Hutchinson L.J.'s determination.

In Farah, the learned judge held that police activities such as pursuit, arresting and charging criminals does not constitute the provision of a service. He endorsed the view that there is a dual role for the police of both service provision and of controlling duties, with each function being independent of the other.

The Equality Officer in A Complainant-v-An Garda Siochana [OEC-52005-0371adapted these dicta by Hutchinson LJ to affirm that members of An Garda Siochana also have a dual role and that the controlling duties of a Garda are beyond the jurisdiction of the Equality Tribunal [subsequently the WRC] in relation to claims of discriminatory treatment.

A further authority, A Parent -v- An Garda Siochana [DEC-S2018-016],concerned an allegation of discrimination on the basis of marital status against An Garda Siochana. The complaint was made by a parent seeking the address of his estranged spouse and children. The complainant also sought to rely on an earlier Court Order in his family law proceedings to compel the Gardai to produce the information now required. The Gardai refused to provide him with the address details and the Adjudicator held that the Gardai were entitled to rely on Section 14 of the Equal Status Act in these circumstances. He stated:

"it falls within the functions of the Respondent (An Garda Siochana) set out in Section 7(1) of the Garda Siochana Act 2005, for example preserving peace and public order. It is not required that there be a breach of the peace or a public order offence for the Respondent to be able to rely on this provision. In this case they responded to a phone call from a member of the public regarding a potential incident. This fact is sufficient for the Respondent to avail of Section 14 and the acts of the Gardai in question could not be acts prohibited by the Equal Status Act. "

It is respectfully submitted that the events of January 24th, 2020, giving rise to the involvement of An Garda Siochana and the subsequent investigation of its members of the alleged assault/sexual assault of the complainant, constitute the execution of a statutory function under Section 7 of the 2005 Act and does not, therefore, constitute a service within the meaning of the Equal Status Act 2000.

The Respondent vehemently denies the alleged discrimination of the complainant . It is submitted that the complainant  fails to meet the standard required under the applicable legislation and so, cannot assert a presumption of discrimination. It is further submitted that there is no credible basis by which the complainant  can assert a claim of discrimination.

While it is not denied that memory loss may, in certain circumstances constitute a disability, not everyone who suffers with temporary memory loss is under a disability. The European Court of Justice decision of Kaltoft-v- Municipalityof Billund[2014] EUECJ C354-13at paragraph 53 states as follows: -

"following the ratification by the European Union of the United Nations Convention on the rights of persons with disabilities, which was approved on behalf of the European Community by Council decision 2010/48/EC of 26 November 2009 [OJ2010L23,P35], the Court held that the concept of "disability" must be understood as referring to a limitation which results in a particular form of long term, physical, mental or psychological impairments which in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers".

This view is reiterated in the decision of HK Danmark, C-335/11, cited by the complainant  at paragraph 5.9.1 of her submission referencing the ECJ definition of a "disability" as

" ...a long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with us".

In light of the foregoing authorities, it is submitted that it is for the complainant  to prove that her memory loss entailed a limitation resulting in particular from long term physical, mental or psychological impairment which hindered the full and effective participation of the complainant  on an equal basis with others. If she fails to so prove, the complainant  does not have a disability within the meaning of the Act and her claim cannot succeed.

It is denied that the WRC has jurisdiction to hear this complaint given that it concerns a matter that does not come within the meaning of what is a "service" pursuant to the Equal Status Act 2000 and where Section 14 of the 2000 Act excludes a claim of discrimination against a member of An Garda Siochana who is carrying out their statutory function.

Furthermore, the complainant  is statute barred and/or cannot claim to be under a qualifying "disability" within the meaning of the 2000 Act. The complainant  is not entitled to compensation or to any relief.

The narrative of events is well set out above.

It began with a terrible experience for the complainant in January, 2020. There then ensued a series of interactions with the respondent (and the hotel where the incident occurred) throughout 2020 and 2021 culminating in her complaint to the WRC on October 27th, 2021.

The hearing took place on November 11th, 2023, and while it was clear that there would be some preliminary issues related to general jurisdiction and time limits the respondent’s submissions had been submitted very late and had not been seen by the adjudicator until the morning of the hearing and by the complainant only slightly earlier.

To add to this difficulty, the hearing was being conducted ‘on line’ which, in these particular circumstances contributed some further problems.

There was also an application that the Adjudicator should recuse himself on the basis that he had conducted an investigation into a workplace, Dignity at Work complaint by the complainant in 2018. A number of allegations were made about conclusions reached in respect of the complainant’s mental health, or comments that were allegedly made  in that investigation.

It was easily demonstrated that not only were these allegations untrue but the very opposite of what was alleged was stated in the Investigation report in question. No grounds were made out to justify a recusal and the hearing continued.

Oral argument was heard on the jurisdiction issues (as set out above).

The respondent position was that it was long settled law that criminal investigations carried out by An Garda Siochána do not represent a service, and that this was recognised in both the Victims Act and the GDPR legislation.

The complainant for its part, submitted that the control function and prevention of crime were severable, and that the complaint was within jurisdiction as the complaint revolved around the provision of information.

 In that context the treatment of a person reporting a crime can fall within the service aspect of the role of policing.

There is more on this distinction between ‘control’ and ‘service’ functions below in this Decision.

The hearing adjourned on the following basis.

Bearing in mind that neither the adjudicator nor the complainant had been given adequate notice of its submission, the respondent was invited to submit any further material it wished on the preliminary points.  As it turns out, (on reading it after the hearing) this initial submission was a comprehensive one and ultimately the respondent  chose not to do so.

Had it made its submission in time this would have been clear, and the subsequent delay could have been avoided.

As part of this first stage the complainant also was invited to submit particulars of the alleged breaches and specifically how this specifically related to the complainant’s disability.

It was further agreed that following this exchange of submissions the Adjudicator would proceed to make a decision based on the documents submitted (and the arguments at the initial hearing) unless either party specifically requested a resumed hearing.

The date set for the receipt of submissions was December 8th, 2023, for the first step and 22nd for the second.

Neither party acted on these instructions. The respondent solicitor wrote to the complainant solicitor on December 5th, 2023, with a reminder of the obligation to submit the particulars requested.

Nothing happened.

On February 14th, 2024, having heard nothing further the Adjudicator wrote to the parties essentially re-stating my Orders for Directions from the hearing on November 21st and pointing out that the necessity to adjourn had been significantly a consequence of the failure of the respondent to make its submissions in time. As noted already on commencement of the hearing I had not had an opportunity to properly consider them, which given the complexity of the issues involved was a serious impediment to proceeding.

Following this the respondent made a further submission, largely a re-statement of its original position. No submission was received from the complainant.

However the submission from the respondent did include the following in its supplementary submission, which captures the position as had then been reached.

The Adjudicator also directed the Complainant to provide the Respondent with particulars of the alleged breaches to include the precise dates it is contended that the alleged discriminatory treatment arose and also, the number of alleged breaches she claims are attributable to her disability. At the conclusion of the hearing, Counsel for the Respondent submitted that the Respondent required this information before finalising its submissions so that the Respondent could address any matter arising. The Respondent was specifically concerned that the complaints were out of time, and so, wished to address that matter in these submissions.

Despite repeated requests, the Complainant has failed to meaningfully engage and no such information has been provided. On this basis, the Respondent respectfully submits that the Complainant has failed to make out her case and her claim must fail.

But in fact, the issue which arises before any consideration of whether there is a prima facie case is the first preliminary issue as to whether the complaint is within jurisdiction having regard to the case law set out in the respondent’s submission on the immunity of a criminal investigation from a case under this Act.

Then there is a second preliminary issue as to whether any alleged breach of the Act occurred within the cognisable period, but if there is no jurisdiction to hear the complaint under the first ground this becomes irrelevant.

Turning to the first of these the respondent submitted a number of authorities; Donovan v Garda Donnellan (OEC-5200.1-011), A Complainant v An Garda Siochana (DEC52005 037}, A Parent v An Garda Siochana (DEC-52018-016), Dariusz Bula -v- Commissioner of An Garda Siochana {ADJ-000065931 and Woodhead and Sparkes v Swinford Garda Station (DEC-S2008-064) .

Of these the decision in Dariusz Bula -v- Commissioner of An Garda Siochana {ADJ-000065931 has very significant resonance for this case in that the complainant was seeking to get information about a person involved in an incident, (in that case a road traffic accident) and the Adjudicator relied, (as I will) on the dicta of Donovan -v- Garda Donnellan [DEC-S2001-011  (and which are quoted above at greater length in the respondent‘s submission.)

In summary, the Court held that the investigation and prosecution of crime ‘are clearly not services which the public have access to’ such as banking leisure or travel.

The court concluded.

I decide that the complaint is outside the scope of the Act because the investigation and prosecution of crime are not services within the meaning of Section 2(1) of the Act."

 The Adjudicator considered the impact of Section 7 of the Garda Siochana Act and the clear purpose of the statutory functions prescribed under that Section and concluded.

"accordingly, in the circumstances of this case, I do accept the preliminary point that the investigation and prosecution of crime by An Garda Siochana are not services available to the public within the meaning defined in Section 2(1) of the Equal Status Acts. Members of the public cannot claim discriminatory treatment under the Equal Status Acts on the part of members of An Garda Siochana in relation to specific actions in the exercise of their statutory functions under Section 7(1) of the Garda Siochana Act 2005 and as such, they do not come within the Jurisdiction of the Workplace Relations Commission pursuant to Section 3 and 5 of the Equal Status Acts.

 There is a general recognition in the cases relied on of the distinction between the ‘control’ functions of the Garda Siochána (investigation and prosecution of crime) and its public service element, the latter of which could  fall within the ambit of the Equal Status Act. See  A Complainant-v-An Garda Siochana (DEC-S2005-037l  which also addresses the authority cited by the complainant in a case under the UK Race Relations Act 1976.

There is a clear line of authority in all these cases which places the conduct of a criminal investigation outside the jurisdiction of the Equal Status Act.

Thus, when the complainant urges the application of the principle in G v The Department of Social Protection [2015] IEHC 419 that the Act should be ‘construed widely’ as a matter of public policy, that objective is insufficient to transcend the overwhelming line of authority in the cases referred to in relation to the ‘control’ function of policing.

That line of authority is that there are clear limits to  how widely it may be construed and it does not extend into this ‘control function’ of the Garda Siochana in its role in the investigation of crime, which is what I find is at issue in this case.

Accordingly,  I am obliged to follow the clear authorities submitted and which have not been challenged and decide that the complaint is outside the scope of the Act because the investigation and prosecution of crime are not services within the meaning of Section 2(1) of the Act.

For the reasons set out above Complaint CA-00045873-001 is not well founded.

Garda Siochana, Equal Status Act, control functions.