Complainant

Respondent

Parties

Luke Monaghan

National College of Art & Design

Representatives

Cillian McGovern BL

Liam O’Connell BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00044507-001

08/06/2021

Chronology Leading to this Complaint

In September 2018, Mr Monaghan commenced on the Masters in Fine Art Degree in the National College of Art and Design.  On June 7th 2019, he was requested to attend a disciplinary meeting at which it was alleged that he used drugs and consumed alcohol on the College premises.  In his submission to the WRC, he claims that he was questioned about his mental health and put under pressure to attend counselling.  He alleges that personal and medical information was shared with the secretary of the National College of Art and Design without his consent.

From here on, I will refer to Mr Monaghan as “the complainant” and to the National College of Art and Design as “the respondent.”

When he received his grade in August 2020, the complainant arranged a meeting in accordance with the College’s appeals process.  He recorded the meeting which took place over the phone on August 22nd 2020.  On August 24th, he wrote to the head of academic affairs, Dr Siún Hanrahan, to outline his complaint and to request a meeting with the staff who marked his exams.  On August 26th, he contacted his head of department, to request another meeting, which, again, was by telephone and recorded.  On the same day, the complainant contacted his course coordinator, the head of school and the relevant assessment tutor and two other tutors, to request meetings by telephone to discuss his appeal.

On August 28th, the complainant had a telephone meeting with Dr Hanrahan.  On September 4th, he submitted a formal appeal to Dr Hanrahan.  The complainant then had a telephone meeting with the complaints officer, Mr Kilian O’Callaghan on September 8th 2020. 

From the complainant’s outline of events at this meeting on September 8th 2020, it appears that the discussion focused on the meeting that took place on June 7th 2019, which the complainant referred to as a disciplinary meeting.  Mr O’Callaghan advised the complainant to attempt to resolve his complaint with the head of school, Mr Philip Napier, in the first instance.

On September 10th 2020, the complainant had a telephone meeting with Mr Napier.

On September 25th 2020, the complainant submitted a formal appeal regarding his grades to Dr Hanrahan.

On October 5th 2020, the complainant submitted a formal, “stage 2” complaint to NCAD.  Stage 2 involves an investigation by a member of the staff of NCAD.  The complainant complained about,

a)      The conduct of a member of staff on May 13th 2019;

b)     The holding of a disciplinary meeting with him on June 7th 2019;

c)      His appeal against the grade awarded to him on August 21st 2021.

On October 22nd 2020, the complainant attended the assessment appeals hearing by telephone.

On October 28th 2020, Dr Hanrahan phoned the complainant to discuss his complaint.  The following day, Dr Hanrahan sent the complainant the outcome of his appeal.

On November 24th 2020, Dr Hanrahan sent the complainant the outcome of her investigation into his complaint.  He claims that, the following day, when he spoke with the complaints officer, Mr O’Callaghan, that Mr O’Callaghan confirmed that an independent investigator would be appointed to conduct a further investigation.

On December 8th 2020, Dr Hanrahan sent the complainant the outcome from the investigation into the complaint he submitted on October 5th.  The complainant’s complaint about the conduct of the member of staff on May 13th 2019 was upheld.  The meeting that the complainant referred to as a disciplinary meeting was referred to as a “pastoral” meeting.  The investigator concluded that the sharing of certain information with another member of staff was not appropriate.

The complainant said that he received 15 documents from Dr Hanrahan which contained responses to his complaint from members of staff in which he is described as a misogynist, a person of low class, a person who harassed others and who engaged in drug and alcohol abuse.  The complainant claims that he was called to a disciplinary meeting on June 7th 2019, based on confidential emails that he has not seen.

On December 9th 2020, The complainant spoke with Mr O’Callaghan on the telephone.  In his submission, he said that Mr O’Callaghan hung up the phone after telling the complainant that he did not want to be recorded.

On December 17th 2020, the complainant said that he received an email from Mr James Forbes, a staff member at the Technical University of Dublin, who had been appointed by the respondent to conduct an investigation.

On January 4th 2021, Mr Forbes and the complainant spoke by telephone.  The complainant recorded the call, although Mr Forbes indicated that his preference was for it not to be recorded.  The complainant informed Mr Forbes that he had taken legal advice and that he considered that “this situation would end up in court.” 

On January 7th 2021, Mr Forbes informed the complainant that he had withdrawn from the role of investigator.  Over the following five weeks, correspondence was exchanged between the complainant and Dr Hanrahan, and one of the respondent’s directors, Ms Sarah Glennie.  On February 16th 2021, Dr Hanrahan wrote to the complainant and asked him to confirm that he would not record future meetings.  The complainant replied that he “intended to keep a record of my engagement as a means of protecting myself.” 

On March 5th 2021, the complainant wrote to Dr Hanrahan and said that he would engage with an independent investigator and that he would not record the meeting.  A member of the respondent’s staff, Professor David Crowley, was appointed to hear his complaint, a decision which the complainant described as “preposterous.”  The complainant had a telephone meeting with Professor Crowley on March 12th.  In his submission, the complainant said that he was deeply concerned about Professor Crowley’s ability to conduct an impartial investigation and he described his intervention as “a stunt.” 

On March 26th 2021, the complaints officer, Mr Killian O’Callaghan wrote to the complainant and confirmed that Professor Crowley would continue the investigation.  The complainant wrote to Professor Crowley, Mr O’Callaghan and Ms Glennie, stating that he did not give his consent for Professor Crowley to continue to conduct the investigation into his complaint.  He requested the involvement of a “fully autonomous independent investigator.”

On May 16th 2021, Mr O’Callaghan wrote to the complainant and told him that an independent investigator would not be appointed.  Professor Crowley upheld Dr Hanrahan’s conclusions.

On June 8th 2021, on behalf of the complainant, Crushell and Company Solicitors submitted a complaint to the WRC under the Employment Equality Act 1998.  On the complaint form, the most recent incident of discrimination was stated to be the letter from the complaints officer on May 16th 2021, in which the complainant was informed that an independent investigator would not be appointed to hear his complaints.  It is the complainant’s position that, if he was female, his complaints would have been more thoroughly investigated.

Complaint under the Equal Status Act 2000

On the form he submitted to the WRC on June 8th 2021, the complainant submitted a complaint of discrimination on the gender ground under the Employment Equality Act 1998.  He claimed that the most recent date of discrimination was May 16th 2021, when the complaints officer at NCAD refused to appoint an external investigator to hear his complaints.

On August 24th 2021, Ms Susan Corcoran, from the customer services team in the WRC wrote to Crushell Solicitors and asked them to clarify whether the complainant’s complaint was for adjudication under the Employment Equality Act 1998 or the Equal Status Act 2000.  Mr Crushell replied the same day, indicating that his client wished to have his complaint heard under the Equal Status Act 2000.

On September 13th 2021, Ms Katie Barcoe of the customer services team wrote to Mr Crushell and referred to the requirement at s.21(2) and (3) of the Equal Status Act, to the effect that a complainant must notify the respondent in writing of the nature of the complaint within two months, or, within four months, after the prohibited conduct is alleged to have occurred.  Ms Barcoe said that it appeared that no notice had been sent to the respondent regarding the complainant’s complaint.  Ms Barcoe referred to the provision at s.21(3) of the Act, which provides that, on application by a complainant, the Director General may, where exceptional cause is shown, direct that the requirement for notification shall not apply.  Ms Barcoe invited Mr Crushell to write to the Director General of the WRC within 14 days setting out why the exceptional cause dispensation should be granted.    

Crushell Solicitors replied to this letter on September 14th 2021.  Asserting that the requirements of s.21(2) of the Act have been complied with, they stated as follows:

1.      The complainant notified NCAD on May 16th 2021 that, as a consequence of their failure to address his claims of discrimination, he was seeking legal recourse.

2.      On June 15th 2021, Crushell Solicitors wrote to NCAD noting that they had raised a complaint seeking adjudication by the WRC in relation to alleged discrimination on the grounds of gender.     

3.      A data access request was submitted around the same time.  The letter of September 14th indicated that information was only recently provided to Crushell Solicitors and, on the basis of the “wholly inadequate replies,” Mr Crushell indicated that the complainant now wished to pursue his complaint.

4.      Mr Crushell submitted that the notice to the respondent was fair and reasonable; they were aware of the circumstances in which the prohibited conduct occurred and they were informed of the intention to pursue legal recourse should they fail to adequately respond to internal grievances that were raised.

5.      Finally, Mr Crushell submitted that there is no risk of prejudice to the respondent’s ability to deal adequately with the complaint.

In the first paragraph of a “personal statement” provided in a submission to the WRC on November 9th 2022, the complainant stated as follows:

“I was harassed, in breach of policies and procedures, in the course of an official exam by a senior member of staff at NCAD.  Within one month, I was summoned to a (disciplinary) meeting at NCAD in breach of a litany of Policies and Procedures and in breach of my right to privacy.  I was wrongfully accused of repeated and habitual drug and alcohol abuse on campus.  My mental health was questioned multiple times and doubt was cast over my academic future at NCAD. I was repeatedly pressurised into attending a counsellor’s appointment after having already declined.  My personal and private medical information was then casually shared without my consent with a secretary at the college.”

In the following paragraph, the complainant alleged that, in the process of having his complaints investigated, he had been “defamed and discriminated against on the grounds of gender and family status.”

A person contemplating a complaint of discrimination under the Equal Status Act 2000 (“the Act”) is generally expected to comply with the time limit set out at section 21(2).  This provides that a complainant must, within two months after the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress.  For clarity, I will repeat section 21(1) and (2) below.  I have not included sub section (1A), inserted by the Civil Law (Miscellaneous Provisions) Act 2008, because it is not relevant to the complainant’s claim.

(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 allegation, to 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, or, as the case may be, the Circuit Court], 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.

Findings Regarding Compliance with Section 21(2) of the Act

On the form he submitted to the WRC on June 8th 2021, the complainant alleged that the most recent date of discrimination was May 16th 2021.  In his submission, he included a copy of an email he sent to one of the respondent’s directors, Ms Sarah Glennie, on May 19th 2021 in which he stated,

“I am writing to advise that I will now be taking legal action.”

In his email, the complainant did not indicate the legislation under which he intended to pursue his complaint.  I am satisfied that, in this email of May 19th 2021, the complainant did not inform the respondent of his intention to pursue a complaint under the Equal Status Act 2000.

The complainant’s solicitor, Mr Crushell submitted that, on June 15th 2021, he wrote to the respondent to inform them of his client’s intention to submit a complaint to the WRC regarding discrimination on the ground of gender.  This letter was not included in the documents provided for the hearing; however, it is apparent from subsequent correspondence that it referred to a complaint under the Employment Equality Act 1998 and not the Equal Status Act 2000.

The first indication that the complainant intended to make a complaint under the Equal Status Act was on August 24th 2021, in the response from Crushell Solicitors to a letter from the WRC on the same day, seeking clarification about whether the complaint was for adjudication under the Employment Equality Act or the Equal Status Act.  Although they replied to the WRC on that day, Crushell Solicitors did not inform the respondent that the complainant intended to submit a complaint under the Equal Status Act.

I am satisfied that, on August 24th 2021, more than three months after the most recent date of alleged discrimination on May 16th 2021, the complainant did not inform the respondent of his intention to submit a complaint under the Equal Status Act.

Section 21(3)(a) of the Act provides that, for reasonable cause, I may substitute the two-month time limit for four months: 

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court 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[.]

Section 21(3)(a)(ii) of the Act provides that, where I am “satisfied that it is fair and reasonable in the particular circumstances of the case to do so,” I may disapply the time limit entirely:

(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 or, as the case may be, the Circuit Court 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.

I note from the documents submitted by the complainant that Crushell Solicitors wrote to the respondent’s registrar, Mr Gerry McCoy, on September 14th 2021.  This letter, which runs to four pages, makes no mention of a complaint under the Equal Status Act, or, for that matter, the Employment Equality Act. 

I am satisfied that, at no stage in the correspondence to the respondent from the complainant’s solicitor, was there any indication of the complainant’s intention to seek redress under the Equal Status Act.  I am further satisfied that the respondent was first notified on September 17th 2021, of the complainant’s intention to seek redress under the Equal Status Act, when Ms Debbie Corcoran in the customer services team in the WRC wrote to the respondent’s Ms Sarah Glennie to inform her of that fact.

Conclusion

I have considered the complainant’s submission and I have decided not to permit the exception provided at s.21(3)(a)(ii) of the Act for the following reasons:

The complainant alleges that he was discriminated against as a man, when he was requested to attend a meeting with the respondent’s staff on June 7th 2019 to discuss a report that he consumed drugs and alcohol on the college premises.  More than a year later, when he received the results of his assessment in August 2020, he claims that he was discriminated against again on the gender ground.  There followed a series of meetings and telephone calls with the respondent’s staff at which the complainant suggests that further discrimination occurred, with the last act of alleged discrimination said to have occurred on May 16th 2021, when the complaints officer refused to appoint an external person to investigate the complainant’s complaints.

It is apparent that the complainant has a grievance regarding how an allegation of alcohol and drug use was investigated in the college.  He also complained about the grade he received in his assessment in August 2020.  From the information set out in his submission, it is clear to me that these grievances are grounded in particular facts that are unrelated to the fact that the complainant is a man.  The most recent incident of alleged discrimination referred to by the complainant is the respondent’s failure to appoint an external investigator to hear his complaint.  Apart from the fact that an external investigator, Mr James Forbes, was appointed in December 2020 and withdrew from the process in January 2021, I am satisfied that the decision to conclude the investigation without an external investigator was not because the complainant is a man.

Based on the facts adduced in the complainant’s submission, I am not satisfied that he has established an assumption of discrimination.  Apart from his assertion that “the same complaints would have been properly addressed if I were female,” he provided no female comparator who, having had the same experience in similar circumstances as he was, was treated more favourably.

The provisions at s.21(2) of the Equal Status Act are intended to provide an opportunity to a respondent to address a complaint of discrimination and, perhaps, to resolve matters without a referral to the WRC.  Until he provided a submission to the WRC on November 9th 2022, in preparation for a hearing on November 28th, the complainant submitted no details of his allegation of discrimination to the respondent.  This is inherently unfair, because it removes the opportunity provided by the Act to address a complaint of discrimination in advance of a hearing at the WRC.  It is my view that any exception to the requirement to submit the details of a complaint in writing to a respondent should only be permitted when the primary facts are such that a clear inference that can be drawn that discrimination was at the root of the treatment complained about.  No such inference can be drawn from the facts adduced here.  I am further of the view that the complainant’s decision not to comply with the requirements of s.21(2) of the Act was intentional and based on there being no substance to his complaint of discrimination in the first instance.

I have concluded that the complainant has not established that there was a reasonable cause for his failure to submit an ES1 form to the respondent in accordance with s.21(2)(a) of the Equal Status Acts 2000.  For the reasons I have set out above, I have decided not to permit the exception provided at s.21(3)(a)(ii) of the Act and I decide therefore, that this complaint is not well founded.

Discrimination on the gender ground, exception at s.21(3)(a)(ii) of the Equal Status Act 2000