Complainant

Respondent

Anonymised Parties

A Complainant

A Public Broadcasting Authority

Representatives

  In Person

Patricia Harrington Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039675-001

08/09/2020

Complaint – In synopsis

This is a complaint brought under the Equal Status Act 2000. The Complainant contends that the Respondent’s refusal to publish a press release and to investigate issues that the Complainant brought to its attention and to produce and broadcast a programme on these issues, discriminated against him on grounds of his religion, disability and age.

Defence – In synopsis

The Respondent defends the complaint and by way of preliminary application, contends that the complaint is incapable of succeeding, is misconceived, vexatious and frivolous and should be dismissed.

The Respondent’s substantive defence to four complaints of which this complaint is one (all four being substantively the same) is as follows:  (a) the complaint is out of time (b)  the complaint is misconceived and does not disclose any act of discrimination (c) while discrimination is asserted, the Complainant does not attempt to  connect the Respondent’s actions (of refusing to make a programme) with his age, disability and/or religion (d) the Equal Status Acts 2000 protects the Respondent because editorial independence is protected by statute (e) there is no obligation on the Respondent to investigate or broadcast a story and (f) just because an individual believes that they have information that is important and/or in the public interest to be broadcast, does not necessarily mean that that is so.

Investigation Process

This complaint was received by the WRC

An adjudication was listed for an in-person hearing on 20 November 2023.

On 9 November 2023 the WRC received written legal submissions by the Respondent within which they stated their intention to apply by way of preliminary ruling that the complaints are vexatious and frivolous and that the complaints be dismissed.

Section 25 (2A) Equal Status Act 2000/ “On paper” Decision

In light of the Respondent’s preliminary application, which, if successful, would obviate the need for the Respondent to defend the complaint substantively, I wrote to the Complainant (copying the Respondent) on 14th November 2023 advising him to respond to this application and that to do so he may require legal advice. Due to the proximity of the hearing date, I directed that the in-person date be vacated. In my letter I requested the Complainant to either file a replying submission or request further time to do so, on or before 27 November 2023. I further advised that on receipt of the parties’ submissions I reserved the right to issue a decision on the preliminary application without the necessity on hearing evidence, if I considered that to be appropriate.

The Complainant did not file submissions or seek further time to do so on or before 27 November 2023.

I wrote again to the parties again on 28 November 2023 (raising section 25 (2A) of the Equal Status Act) proposing that the case appeared to me to be an appropriate one to issue a decision on the preliminary application without the necessity of conducting an in-person hearing. I invited the parties to respond and I advised that in the absence of an objection being received within 28 days that I intended to issue my decision on the basis of the complaint form and the facts conceded by the Respondent in their submissions. 

I received no reply from the Complainant within 28 days and I received a reply from the Respondent on 29 November 2023 in which they consented to the preliminary application being decided “on paper.”

The reason that I considered the preliminary application was amenable to a section 25 (2A) decision (an “on paper” decision) was because all the material factual claims made by the Complainant were conceded by the Respondent and therefore the question of whether the complaint was capable of succeeding, taking the Complainant’s allegations at a height, was one that could be made relying on the conceded facts.

The Respondent concedes the following facts:  they received material from the Complainant; he asked them to produce and broadcast a programme on the issues that he had raised, they considered the material and informed the Complainant of their decision to refuse to publish his press release and to refuse to investigate/ broadcast the issues that he raised with them and they returned the materials to the Complainant.

Section 25 (2A) decision ESA

In light of the consensus of facts, I found that the question of whether (that the Respondent’s actions were capable or not of constituting a breach of the Equal Status Acts 2000) could appropriately be decided in the absence of an Adjudication hearing.

This decision is confined to the frivolous/ vexatious application and I did not consider any other aspect of the Respondent’s substantive defences – eg that the claim was statute barred or whether or not a prima facie case of discrimination had been proven.

Rather, this decision relates solely to whether the Respondent’s refusal to produce and broadcast a programme which the Complainant felt strongly should be broadcast,  is capable of constituting an act or acts of discrimination. 

The Complaint Form

This is a complaint brought under the Equal Status Acts against the Respondent, for (i) its failure to publish a press release issued by the complainant in or around June/ July 2020, and for (ii) its refusal to investigate allegations communicated to them by him in the period May 2018 until June/July 2020

On 15 May 2018 the Complainant contacted the Respondent and furnished it with material which he claimed was in the public interest and should be broadcast.

The Respondent considered the material and advised him that they would not be investigating the story or broadcasting a programme and returned the material to him.

The Complainant was unhappy with their decision given the information raised matters of public interest. In January 2019 the Complainant again wrote to the Respondent attaching written material, requesting them again to investigate and broadcast the story. In February 2019 the Respondent again refused to investigate/ broadcast his story.

The Complainant was again unhappy about this but also because in his view, the Respondent witnesses lied about the reasons why they would not make the programme – which was that they were too small an organisation and did not have sufficient funds when in fact the real reason, in the Complainant’s opinion, for refusing to make the programme was because of a conflict of interest.

The Complainant says that he then received letters from the Respondents solicitor which he considered were legally threatening.

The Complainant then contends that having provided them with his medical records, the Respondent then were in a position to retain his medical records, which he was uncomfortable about. He sought a Freedom of Information Request against the Respondent, requesting to see what information the Respondent held on him.

The Complainant has since written to the Respondent on multiple times alleging wrong-doing however at all times they have refused to investigate the story that he brought to their attention. This happened first in May 2018 and having been given another opportunity by him to reconsider this decision in January 2019, again in July 2020, again in April 2021 and December 2021. At all times they have refused.

This is even though the information that he provided to them is in the public interest and should be broadcast.

In respect of the Respondent’s preliminary application – that the complaint is misconceived and should be dismissed because it cannot succeed (is vexatious and frivolous) the Complainant did not reply when requested by this AO by letter dated 14 November 2023.

Preliminary Application

The Respondent seeks that the complaint be dismissed on the basis that it is misconceived, vexatious and frivolous. 

The Respondent contends that the Complainant’s discrimination complaint is incapable of succeeding.

The Respondent contends that while the Complainant cites “age, disability, religion” and elsewhere “being of a different class/society” as the grounds upon which he says he was discriminated, he doesn’t claim that this was why the Respondent refused to investigate or broadcast his story. Indeed the only explanation that the Complainant provides as to why he believes they did not broadcast his story was because in his view, they were protecting an individual in his story who he contends is related to an employee of the Respondent. The Complainant alleges that the Respondent is party to a cover up.

The Respondent contends that the discrimination claim is not only entirely un-evidenced but no prohibited ground is identified as the reason why the programme was not made.

The Respondent submits that while the Complainant may be unhappy with the Respondent’s decision not to investigate issues that he may consider to be important/in the public interest, the Respondent is not obliged to investigate every matter that is brought to their attention.  They have editorial independence to decide to investigate a story or not to investigate a story. The complaint hinges on a perceived  “right” that the Respondent is obliged to investigate the story and broadcast a programme that the Complainant wanted them to make.  There is no such right. The premise of the Complainant’s complaint is misconceived. The Respondent’s editorial independence is protected by Broadcasting Guidelines which are protected by statute and therefore their decision to not investigate or publish is protected under section 14.1 (i) of the Equal Status Acts.

The Respondent outlines their engagement with the Complainant as follows.

In or around 15 May 2018 the Complainant furnished material to them requesting that they investigate an issue with a view to broadcasting a programme. The Complainant had a number of phone conversations with a broadcast researcher and on 19 June 2018 the researcher wrote to the Complainant, returning his material to him, and informing him that the Respondent was not in a position to investigate the matters that he had raised.

On 15 January 2019 the Complainant again sent in the same documentation to the Respondent and on 7 February 2019 the same researcher replied to the Complainant returned the material to him again informing him that the Respondent was not in a position to investigate the matters that he had raised.

On 30 September 2019 the Complainant sought a Freedom of Information request, which the Respondent dealt with in in accordance with their FOI protocols. Around the same time the Complainant furnished a Subject Access Request in respect of all data that the Respondent held on him, which was dealt with in accordance with the relevant protocols.

On 16 July 2020 the Complainant wrote to the Respondent stating his intention to pursue legal redress because they were refusing to investigate his story. This correspondence is relied upon by the Complainant in this WRC complaint.

On 4 September 2020 the Complainant made a complaint to the Respondent’s Solicitors Office and on 8 September he lodged a complaint to the Legal Services Regulatory Authority (LSRA) which included a concern that the Respondent had access to his medical records and copied them. The LRSA held the complaint to be inadmissible on a preliminary review on 24 May 2020. This correspondence is relied upon by the Complainant in this WRC complaint.

On 21 March 2021 the Complainant issued the Respondent with a further press release.

Between March 2021 and December 2021 the Respondent received further correspondence from the Complainant and to date the Respondent continues to receive communications and phone calls from the Complainant complaining about the Respondent’s alleged ill treatment of him because they did not agree to make the programme that he wanted them to make.

The Respondent submits as follows:

The alleged act of discrimination is the Respondent’s decision to not broadcast a programme that the Complainant asked them to make.

While the Complainant’s dispute with the Respondent expanded once that refusal was made, the complaint before the WRC is confined to the act of refusal, which the Respondent accepts occurred as a matter of fact.

In response to this complaint the Respondent claims as follows:

The Respondent is not obliged to investigate or broadcast every story that they are requested to investigate or broadcast.

Like all State funded bodies, the Respondent resources are limited. There is an editorial team that decides what and what not to investigate. In accordance with Broadcasting guidelines. The editorial process is independent.

The Complainant may be unhappy with the fact that his story was not investigated but in his discrimination complaint before the WRC he does not provide any basis for asserting that this action was done on the basis of his age, religion or disability. He is even unclear as to whether he is asserting this. The Complainant has not identified any basis upon which he contends, much less evidence,  that the reason the Respondent refused to investigate his story was because of his age, and or disability and or religion.

In a discrimination complaint, a complainant is obliged to prove facts from which a prima facie finding of discrimination could be found. The Complainant has not done this but on a more fundamental basis, his complaint form does not identify how such a finding could be made. His complaint is that he was discriminated against for age, disability and religious belief grounds but he does not link the refusal to publish his story with any of these prohibited grounds.

This complaint of discrimination is misconceived and is bound to fail.

The fact that the Respondent decided not to investigate and broadcast his story certainly may be the grounds upon which the Complainant is unhappy but this does not provide any basis to contend that he was discriminated against because of his age, disability or religion. There is a misunderstanding at the heart of this complaint namely that, it is the Complainant’s expressed view that because he is old and/or has a disability,  that the Respondent was obliged to investigate/ broadcast his story. This fundamentally misunderstands what a discrimination complaint is.   

This complaint is incapable of succeeding. In the absence of any proof, indeed argument to connect the Respondent’s decision to not broadcast his story with either his age, his asserted disability and or religious belief (which is not disclosed in the complaint or in any of the Complainant’s supporting material) there is no basis upon which a finding of discrimination may be found and because of that the case is bound to fail. The complaint is misconceived, vexatious and frivolous.

The complaint should be dismissed.

Special Circumstances

In documentary material that the Complainant sent to the WRC in support of his complaint he describes himself as a person who is “severely deaf, disabled and elderly with advanced dementia…and (who has) a vulnerable mental condition…” (email the Complainant sent to Legal Services Regulatory Authority on 8.9.2020.) It is my view, bearing in mind the outcome that I have reached and applying section 25(2) of the Equal Status Acts that it would not be in the best interests of the Complainant to identify either party in this decision. I find accordingly that this adjudication should be determined otherwise than in public.

The Respondent seeks a preliminary ruling that this complaint is frivolous and vexatious.

Preliminary Application

While section 42 of the Workplace Relations Act 2015 is cited by the Respondent, in Equal Status complaints the provision which gives the WRC jurisdiction to consider if a complaint is frivolous or vexatious is section 22 (1) of the ESA, which states:

“The Director of the Workplace Relations Commission may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.”

The authorities on whether a complaint or proceedings are frivolous, vexatious or misconceived are not as dismissive as these words may sound to a non-lawyer.

In Farley v. Ireland, Supreme Court, 1 May 1997 Barron J observed:

“If (a plaintiff) has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls vexatious.”

The test for dismissing a case is whether a complaint, taking it at its height, has any prospect of succeeding even if the Complainant were able to prove all the facts that he alleges occurred. And in this case all of the material facts (the refusal to broadcast) are conceded by the Respondent.

Finding on the Preliminary Application

The Complainant case is essentially that there were two acts of discrimination (1) the refusal by the Respondent to publish a press release that he sent to the Respondent and (2) the refusal of the Respondent to investigate a story that his considers should be investigated and broadcast.

Neither of these actions are disputed by the Respondent. They accept (in their submissions) that they decided not to publish his press release. They accept that they refused to investigate what the Complainant felt should be investigated and broadcast.

Therefore while there may be disagreement between the parties on other later matters which led to disagreement between the parties, the material facts (the actions that the Complainant alleges were discriminatory) are not in dispute.

The question for me to determine is whether these conceded actions are capable of amounting to acts of discrimination.

It is my view that they are not.

To succeed in any discrimination complaint a Complainant must prove that adverse treatment that he received was due to one of ten prohibited grounds: gender, marital status, family status, sexual orientation, religion, age, disability, receipt of housing assistance, race or membership of the travelling community. 

The Complainant asserts in his complaint form that the Respondent’s refusal to publish his story was due to his “religion, age disability and belonging to a different class society.” The first three of which are potentially discriminatory, the last is not.  In respect of the first three grounds, the Complainant does not claim that the refusal to investigate and broadcast his story was due to either his religion, age or disability.

In the papers provided to the WRC the Complainant alleges that the reason that the Respondent refused to publish his story was because of a conflict of interest, ie not a prohibited ground.

He also argues that because of his old age and disability the Respondent had an obligation to investigate and broadcast his story, which is legally incorrect.

Essentially this complaint is misconceived because the Complainant believes that he had an entitlement for his story to be investigated and broadcast, but no citizen enjoys such an entitlement.

The Respondent is not obliged to investigate a story that is brought to their attention. Under page 9 of the broadcasting guidelines, which the Broadcasting Authority of Ireland (BAI) issues to all broadcasters, and which all broadcasters are obliged to comply, it states:

“Each broadcaster has the editorial freedom to make choices in relation to what issues to cover in a news and current affairs context.”

I accept that the point made by the Respondent at paragraph 24 of their submissions is correct and is worth repeating:

“[The Respondent] as any broadcaster has editorial independence to determine what stories [it] covers and how it covers them. Editorial decisions on publications are made solely on the basis of the editorial merits of a particular story or press release and these are decisions for editors to make, taking into account [the Respondent’s] duties and responsibilities as a public service broadcaster. No individual or focus group has a right to have a press release covered by a broadcaster or to have their claims investigate as of right.”

I accept that the Complainant believes that he has a story that the public needs to hear. I accept that he believes that it would be in the public interest if his story or stories were investigated and broadcast. However the Complainant is incorrect in saying that he can oblige the Respondent to do that. That is not for him, nor any individual or group to determine.  It is a matter for the Respondent to determine independently, in accordance with their statutory remit and broadcasting guidelines.

As this complaint is limited to the alleged adverse treatment (of refusing to publish his press release and refusing to investigate/broadcast his story) and these actions are accepted by the Respondent as having occurred, it is my view that in the absence of identifying that these actions occurred as a result of the Complainant’s religious, disability of age, (which while box-ticked by the Complainant as being his complaint, the basis for asserting this is not set out and the complaints are not, in any respect, evidenced) these complaints are not capable of succeeding.

And as they are not capable of succeeding, legally they are misconceived, frivolous and/or vexatious.

As I have found this complaint to be misconceived, frivolous and/or vexatious applying section 22 (1) of the ESA, I dismiss this complaint.

I dismiss this complaint on the grounds that it is misconceived, vexatious and frivolous and is incapable of succeeding.

Equal Status – Preliminary application to dismiss on grounds that the complaint is vexatious and frivolous - Broadcaster Respondent.