Complainant

Respondent

Anonymised Parties

A Member of the Travelling Community

A Government Department

Representatives

Ms. Heather Rosen

Mr. Mark Finan BL, 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-00004538-001

18/05/2016

On the complaint form, the Complainant alleged that that the Respondent, in their capacity as an official within a government department, failed to administer certain benefits to the Complainant. In circumstances whereby the Complainant is a member of the travelling community, they alleged that this failure constituted discrimination on these grounds. This complaint was referred alongside numerous other complaints of a similar nature, outlining allegations of a failure to provide benefits the impleaded individual and another employee within the department.

Given the volume of complaints referred in parallel, and the procedural issues arising from the same, a case management conference was convened in relation to these matters in May 2022. During this meeting, and in response to a point raised by the representative for the Respondent, the parties agreed that a submission in respect of the issue of vicarious liability, and the individual liability for an official within the department would be exchanged prior to the resumed date. Thereafter, it was agreed that a global submission in respect of the matters which contained a similar factual matrix would be exchanged in advance of a resumed hearing. In addition to the foregoing, the matter of notification and the application of the relevant time-limits would fall to be addressed.

Following the same, a hearing was convened in relation to a multitude of parallel complaints for 11th September 2023. In advance of the same, the Complainant made multiple applications for an adjournment of the proceedings in advance of the hearing as listed. While these applications for adjournment were rejected, the Complainant repeated these applications during the hearing itself.

In circumstances whereby the Complainant’s application in this regard was multifaceted, the parties were informed that the position in respect of the same would be reserved and that a decision in relation to the same would be issued in due course. In circumstances whereby none of the complaints attended in person, it was put to the Complainant’s representative that if the application to adjourn was not granted, the complaints may fail on the basis of a failure to prosecute the same. By response, the Complainant’s representative submitted that the Act permitted her to present the case on the part of the Complainant’s in their absence, and that in such circumstances, the matter could proceed on that basis.

Having regard to the foregoing, the decision below will be deal with the following matters, the application to amend the title of the Respondent from the individual named, to the relevant government department, the Complainant’s renewed application for an adjournment of the proceedings and, dependent on the outcome of the same, the Complainant’s application to present the complaint in the absence of the Complainant in person.

In circumstances whereby some of the complaints referred on the day of hearing related to minors, I have  utilised my discretion to anonymise the decisions in their published form.

By submission, the Respondent stated that the present complaint, as originally constituted, related to an allegation of prohibited conduct against a person in their private capacity. In this respect, they submitted that should any liability attach to this person, the consequent order arising from the same would be binding on the government department in which they were employed.

In support of this contention, the Respondent opened Section 2(1) of the Act and referred to the definition of “person” contained within. They further referred to Section 42(1) of the Act, and particularly the wording which refers to “anything done by a person as agent for another person” being treated as being done by that person for the purposes of the present Act. In this respect, the Respondent submitted that the Complainant failed to plead or provide any particulars of any standalone allegations against the impleaded individual that would require them to be named alongside the department.

Having regard to the foregoing, the Respondent submitted that the impleaded Respondent be amended to the relevant government department.

In contesting the Respondent’s application, the Complainant submitted that the correct Respondent had been named in the proceedings as originally constituted.

In support of the foregoing, the Complainant also referred to wording of Section 42. In this respect she placed an emphasis on the following wording,

“Anything done by a person in the course of his or her employment shall…be treated…as done also by that person’s employer” (Emphasis added)

In this respect, the Complainant’s representative that the Act creates a “dual liability” in such proceedings incorporating the person that committed the alleged prohibited Act and their employer.

The Complainant further referred to the wording of Section 44(2), which serves to attach liability to a natural person within a body corporate for an offence within the meaning of the Act.  While the Complainant’s representative accepted that this particular Section related to an offence under the Act, she submitted that the same further strengthened the proposition that the Act intended for liability to attach to both individuals and bodies corporate.

Regarding this preliminary point, the Respondent has sought to amend the impleaded entity from an individual employed by a government department, to the government department itself. The Complainant, via their representative, has contested this application on the basis that the correct cause of action rests against the individual originally impleaded.

In this respect, Section 2 of the Act defines “person” in the following terms,

“…that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity”

Section 42 of the Act, which is entitled “vicarious liability”, goes on to provide, in subsection 1, that,

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

Subsection 2 goes on to provide that,

“Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”

Having regard to the foregoing, it is uncontroversial Section 2(1) quote above, allows for both a body corporate and / or a natural person, to be named as a Respondent to complaint under the Act. Following from the same, it is again uncontroversial that Section 42 allows for an organisation to be held vicariously liable for prohibited conduct committed by their employee or agent.

In this respect, the Respondent has placed reliance on the wording of “anything done by a person” as an authority for the proposition that all acts committed in the course of employment are deemed to be committed by the employer. In the alternative, the Complainant has placed an emphasis of the wording “as done also by that person’s employer” as support for the submission that liability may attach to either a person’s employer or an induvial by virtue of this section.

Guidance in relation to this particular issue may be found in a number of previous decisions of the Commission and the former Equality Tribunal. In particular, in the matter of Michael Mongans & others v Clare County Council DEC-S2006-084, the Equality Tribunal held as follows,

“The named officials are all employees of Clare County Council and acted in the course of their employment with the Council. In considering this application I have taken account of a Judgment in the High Court in the case of Faughnan v. Maguire concerning an application to have a named defendant removed from medical negligence proceedings. O' Sullivan J stated:

"From the point of view of the Plaintiff, if it does transpire that a court can be satisfied that Dr. O'Brien is in some way legally responsible for his injury, prima facie (and I accept that this point has not been conceded by the Plaintiff) the first Defendant as employer of Dr. O'Brien, would be “accountable”.

O'Sullivan J went on to hold that:

"In my opinion therefore, the balance of justice favours the discontinuance of the action against Dr. O'Brien..."

The reasoning in this judgment is relevant to the application in this case. If the complainants' application for redress is successful Clare County Council will be "accountable". The Equality Officer therefore, considered it appropriate that Clare County Council should be the only named respondent and informed the parties that this is how the cases would proceed.”

More recently, this position was adopted by in this forum in the matter of A Member of the Travelling Community -v- A Local Authority ADJ-00015562.

In more recent times, the Supreme Court has considered the issue of vicarious liability in some detail. In the matter of Hickey v. McGowan and anor [2017] IESC 6, [2017] 2 I.R. 196., O’Donnell J. clarified the position regarding the “close connection” test, unambiguously stating that the same “must be taken to represent the law in Ireland”.

Earlier in the Judgement, this test is described as being,

“…based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made.”

Following the hearing, the parties exchanged the decision of Morrissey & Anor v Health Service Executive & Ors [2020] IESC 6. Here, the Supreme Court revisited the principles of vicarious liability in examining whether the same could extend to a third party operating under a contractual arrangement with a Respondent. In this respect, Clarke CJ held that,

“…the ultimate question which the Court must address is as to whether the level of engagement by one party with the way in which the other party is to carry out a task entrusted to it is sufficient to conclude that there is a real extent to which it can be said that the contracted party is closely integrated into the activities of the employer, not just in respect of the ends to be achieved but as to the manner in which those ends are to be pursued.”

In circumstances whereby the test outlined above relates to the potential vicarious liability of third-party contractors, it may be safely assumed that direct employees easily satisfy this “intergration” requirement.  Indeed, earlier in the Judgement, Clarke CJ expresses the view that,

“It would be surprising indeed if, for example, a supermarket could avoid liability for an injury suffered as a result of negligence by simply asserting that the fault was all that of a specified employee.”

In this regard, it is common case that the complaint relates to an alleged failure on the part of the relevant government department, and in particular an individual employed by that department, to provide or administer certain benefits to the Complainant. In this regard, the individual named as the Respondent to the complaint has no power to commit any of the alleged prohibited conduct in their private capacity. This being the case, the only power vested in them for this purpose arises by virtue of their employment by the Department. Such a position clearly meets the “close connection” and “integration” tests cited above.

Having considered the submissions of both the Complainant and Respondent, in addition to the authorities cited above, I find that the appropriate Respondent for the purposes of the present complaint is the relevant government department. As a consequence of the same, the title of the Respondent will be amended in the decision as issued to reflect the same.

At the hearing of the matter, the Complainant made an application for adjournment on numerous grounds. This application had been formerly made and refused, both in first instance and following an internal appeal, in advance of the hearing.

The Complainant’s representative based the application for adjournment on numerous grounds, relating to both herself, the Complainant in particular, and the wider cohort of complaints listed in parallel. As these matters were raised in common across all listed hearings, they will be considered in a similar manner.

In this respect, the Complainant’s representative firstly stated that she had recently suffered a period of poor health and was unable to properly prepare for the hearing. In this respect, the Complainant’s representative submitted medical certificates outlining her medical history and period of unavailability. The Complainant submitted that in circumstances whereby she could not properly prepare for the hearing, the same should be adjourned in order to allow her to properly prepare for the same. The Complainant further submitted that the volume of complaints being listed on the same date rendered the preparation for the same impractical.

In conjunction with the foregoing, the Complainant’s representative submitted that many of the Complainant’s themselves had unfortunately suffered ongoing poor health for an extended period of time. As a consequence of the same she submitted that they were not in a position to engage with the hearing or prepare for the same.

The Complainant further submitted that certain persons listed for hearing has unfortunately suffered an attack on their residential area and were not in a position to attend on this basis. In this respect, the Complainant’s representative submitted that certain individuals listed for hearing had been injured, and in some cases grievously injured, and could not attend the hearing as listed.

In contesting the Complainant’s application for adjournment, the Respondent noted that the Complainant was not attended by any of the numerous Complainants listed for hearing on that date. In this regard, while they commiserated with the difficulties apparently experienced by some of the Complainants, they stated that the issues listed by the Complainant’s representative did not affect all matters listed. In this respect they further submitted that it was unclear which grounds for adjournment related to which particular Complainant. They further noted that no current contemporaneous medical certification was provided in advance of or during the hearing as listed. 

Regarding the issues affecting the Complainant’s representative, while again commiserating with the apparent difficulties experienced, the Respondent’s representative observed that these proceedings have been in train for a significant period of time, providing the Complainant’s representative with ample time to prepare for a forthcoming hearing. In this regard, it was further observed that Complainant had not provided medical certification to outline her inability to attend the hearing itself.

At the oust set of the hearing, the Complainant’s representative made a lengthy, multifaceted application for adjournment.

Regarding the first issue raised, it is apparent that the Complainant’s representative endured a period of poor health in advance of the hearing. In this regard, she submitted that she was unfortunately in position whereby she could not properly prepare for the hearing as listed. In this regard, it is noted that the present proceedings have been in existence for a considerable period of time. It is further noted that the same was the subject of a case management conference some time prior to the hearing date. During this case management conference, various issues were discussed, including a timeline for the exchange of submissions in relation to the preliminary points listed above, and the substantive matter. In such circumstances, it is apparent that the Complainant’s representative had ample time to prepare for the hearing, and her unavailability in the weeks leading up to the same, whilst clearly unfortunate, should have created no prejudice in relation to the overall preparation for the hearing. Regarding the application in respect of the volume of complaints, in addition to the length of time provided to the Complainant to prepare for the same, it is further noted that the vast majority of the issues relate an extremely similar set of circumstances and legal principles.

Regarding the applications in respect to the Complainant, the Complainant’s representative opened various medical records indicating poor health on the part of many of the participants to the hearing. In addition to the foregoing, the Complainant submitted that many of the participants had suffered an attack on their residential area and were unable to attend on this basis.

In this respect, it is noted the matters in this forum are routinely adjourned on the basis of medical incapacity of a party to the hearing, or one of their witnesses. While such adjournments are commonplace, a certain standard of proof is required in relation to the same, with medical certification usually being provided in this respect. Regarding the present application, while it is noted that the Complainant’s representative did submit medical records indicating a history of poor health on the part of some of the participants, no medical certification was provided indicating that the party in question was unavailable on the date of the hearing. In this regard, it is obviously accepted that individuals may suffer from poor health and, as a consequence of the same, be rendered unable to participate in a hearing. However, in such circumstances it is not a particularly onerous task to secure certification from their attending medical practitioner certifying the same and effectively excusing them from the hearing. In the absence of any such documentation, refuse the Complainant’s application for adjournment.

Regarding the attack on the participants place of residence, it is not apparent that the same would constitute grounds for adjournment. In this respect it is not apparent how this attack, whilst undoubtedly traumatic for the victims, would serve to prevent their attendance at a hearing listed a number of weeks thereafter.

Having regard to the accumulation of the foregoing points, the Complainant’s application for adjournment is again refused, and matter will be considered based on the information provided at the hearing. 

Regarding the substantive matter, it was put to the Complainant’s representative that should the application for adjournment fail, the matter may not succeed in the absence of the attendance or sworn evidence on the part of the Complainant.

In contesting this position, the Complainant representative submitted that the Act permits representation by a third party in the absence of the individual advancing the complaint. In this regard, the Complainant specifically referenced the wording of Section 38A(1) of the Act.

In contesting the position adopted by the Complainant’s representative, the Respondent’s representative submitted that the present complaint must fail in the absence of the Complainant.

Regarding the substantive matter, the Complainant’s representative has submitted that the Act, and specifically Section 38A(1) of the same, operates so as to shift the burden of proof in respect of these matters to the Respondent. In this regard, she submitted that she is entitled to present the primary facts on which such a presumption of discrimination may occur, following which the Respondent bears the burden of proof in relation to the rebuttal of the same. In such circumstances, she submitted that the primary facts had been raised and that the matter could proceed in the absence of the Complainant.

Regarding the burden of proof in respect of such claims, 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 Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

While the Complainant’s representative is correct in the provision provides that where facts are established by or “on behalf of” a Complainant, the burden of proof may shift to the Respondent. Nonetheless, this provision clearly necessitates the establishment of certain factual information. In this regard, it is necessary for the Complainant to give at least some sworn evidence as to these factual elements in order for the matter to proceed. In the absence of the same, I cannot find that the requirements of Section 38A(1) have been established. As a consequence of the foregoing, I cannot find that the Respondent engaged in prohibited conduct within the meaning of the Act.

I find that the Respondent did not engage in prohibited conduct within the meaning of the Act.

Vicarious Liability, Adjournment, Burden of Proof