Complainant

Respondent

Parties

Agnieszka Rozycka

The Commissioner Of An Garda Siochana / An Garda Siochana

Complainant

Respondent

Anonymised Parties

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Representatives

Krystian Boino Boino Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059632-001

26/10/2023

The Complainant stated that she was discriminated against on the grounds of her gender and nationality when the Respondent failed to provide her with a service following the reporting of an accident that she made on 18 February 2022.

The Complainant was involved in a cycling accident in Dublin on 19 January 2022. She suffered a fracture of her right tibia and was taken by ambulance from the scene of the accident to hospital where she remained for four days, further to which, her leg, following surgery, was immobilised in a brace for a period of 6 weeks.

Given that there had been no contact from the Respondent in relation to the accident, despite them having been informed of same by the Fire Brigade who attended the scene, the Complainant’s husband made the first attempt to report the incident on 16 February 2022 at his local Garda station. No information was taken from him however as the Respondent insisted that the Complainant had to personally report the accident.

On the second attempt to report the accident on 18 February 2022, the Complainant met with Garda T who took the details of the accident. He promised to subsequently update the Complainant.

On 23 February 2022, the Complainant’s husband visited the Garda station to seek an update on the complaint. The female officer on duty advised that they had no record of her accident on the system but stated that Garda T would once again be on duty on 26 February 2022.

On 26 February 2022, the Complainant’s husband attended the Garda station and managed to speak to Garda T, who advised him that he had contacted the cyclist who crashed into the Complainant. He promised to provide an update over the phone. No such update however was ever given.

The Complainant’s solicitor subsequently contacted the Garda station on 28 February 2022 and asked for the details of the other cyclist so the Complainant could pursue a civil claim. A letter was also handed delivered to the Garda station on 2 March 2022 but no response was received.

On 13 June 2022, a follow up letter was sent by the Complainant’s solicitor in response to which an email was sent on 20 June 2022 on behalf of the local Superintendent. This email indicated in the first instance that on some unknown date, a phone call was made to Complainant’s solicitor’s office to obtain further details in respect of the matter. The email further stated that the relevant Garda Station had several Gardai whose first names started with T.

On 27 July 2022, the Complainant’s solicitor responded to the email of 20 June 2022 and provided an outline of the interactions in respect of the matter since February 2022. Given the absence of a response, a follow up email was sent on 23 August 2022. A response was received on the same day with Garda T’s first name and surname.

On 31 August 2022, another follow-up email was sent by the Complainant’s solicitor to inquire if Garda T had a chance to provide the details requested by her.

On 2 September 2022, an email was received to confirm that there was still no response from Garda T and that a reminder would be sent to him. On 19 September 2022, the Complainant’s solicitor inquired again to see if Garda T was in a position to provide the details she requested.

In correspondence dated 27 September 2022, received by the Complainant’s solicitor on 3 October 2022, it was stated that that Garda T was “on leave on the above date”, namely the date of accident. It was highlighted however by the Complainant that it did not say that he was on leave on the date that that the incident was reported by her to the Garda station.

On 3 October 2022, the Complainant visited the Garda station and spoke to a Garda who advised that Garda T was working on the Complainant’s case but that he was on long term leave. He promised the Complainant he would find out more and would call her back. Given that this information was at odds with the correspondence of 27 September 2022, wherein it was stated that Garda T was not working on the Complainant’s case because he was on leave at the time, the matter was referred to Garda Siochana Ombudsman Commissioner on 9 January 2023.

In March 2023, a Chief Superintendent was appointed to investigate the complaint. Further to this, on 5 April 2023, the Respondent made yet another U-turn and advised that the identity of the member who engaged with Complainant could not be determined but that a Sergeant had now been appointed to investigate the accident of 19 January 2022.

On 27 June 2023, her solicitor inquired yet again as to the identity of the cyclist who had crashed into her and indicated that Complainant’s personal injury claim could become statute barred if this information was not provided because at that stage it was 16 months from the date of the accident.

On 10 August 2023, the Complainant had a further meeting with the Chief Superintendent who informed her that no connection was found between the offending cyclist and Garda T. As no other reason was provided to explain the failure to provide the information she required, the Complainant decided to send an ES. 1 Form to the Respondent on the grounds of her belief that she was discriminated against because of her gender and her nationality. An ES 1 form was served on Garda commissioner and the relevant Garda Superintendent on 6 September 2023. Both acknowledged receipt on 8 September 2023 and 28 September 2023 respectively but failed to provide a response although one of the letters indicated that the “office of Executive Director Legal will ensure that you are contacted in due course”.

Although the Respondent was on notice of the time and date of the hearing, they did not attend to give evidence on the day.

The Law:

Section 2 of the Equal Status Act (“the Act”) provides the following definition of service and prohibited conduct:

“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 or refreshment, (iii) cultural activities, 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;

“prohibited conduct” means discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of, a person in contravention of this Act.

Section 3 of the Act provides as follows in respect of discrimination:

3. (1) For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),] (in this Act referred to as the ‘discriminatory grounds’) which

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: […] (h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”), […]

Section 5of the Act provides as follows:

5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public

Preliminary Matter:

The Complainant in this case asserted that the Respondent failed to provide her with the personal details of the individual she claimed was responsible for the accident on January 19, 2022, which resulted in her sustaining personal injuries. While I acknowledge that, inexplicably, the Respondent did not provide the Complainant with this information despite her and her solicitor's repeated efforts to obtain it, I also note that Garda T did not refuse to take her complaint when the Complainant reported it at the station on February 18, 2022. Had he refused to provide this service, I believe it would fall within my jurisdiction to investigate such a complaint.

This finding is consistent with the decision of the Equality Officer in Mr Paddy Donovan v Garda Olive Donnellan ES/2001/074 where he stated that:

“I consider that clearly certain aspects of the service provided by the Gardai may be services within the meaning defined in the Act e.g. a Garda witnessing a passport application, giving directions or taking a complaint”

While I therefore accept that Garda T did not refuse to provide a service, I also recognise that he did not provide the Complainant with the information she required, namely the identity of the person who cause the accident.

In the first instance, I am of the view that such information would not be provided to every member of the public who sought this information, unlike a request to witness a passport application for example, and believe that it would only have been provided to the Complainant in this instance as she was the one who made the complaint.

I also find that, even if the provision of such information was deemed to be a service under the Act, the information the Complainant needed could only have been uncovered in the context of an investigation into the accident by Garda T, which he inexplicably did not conduct. I must therefore examine whether such an investigation constitutes a service under the Act.

In doing so, I have regard to the above-mentioned decision of Mr Paddy Donovan v Garda Olive Donnellan ES/2001/074 where the Equality Officer stated:

“I consider it is clear and plain from the wording of 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 Director of Public Prosecutions) 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 banking, leisure or travel.

I accept the above reasoning of the Equality Officer and find, for the foregoing reasons, that I do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.