Complainant

Respondent

Parties

Jaroslaw  Sutowicz

Office of Ombudsman

Representatives

  In person

Legal Representatives of the Office of the Ombudsman

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 -2018

CA-00043319-001

30/03/2021

The Complainant first applied for Social Housing Support in March 2020 which was refused by Donegal County Council. He asked the Respondent to investigate the decision of Donegal County Council refusing him housing support (alleging that it was discriminatory.) The Respondent investigated his complaint and upheld the decision and reasoning of Donegal County Council. The Complainant contends that by upholding the decision the Respondent repeated or compounded the discriminatory conduct of Donegal County Council, thereby committing a fresh act of discrimination.

This is the complaint that is before me.

Under oath/affirmation the Complainant gave the following evidence:

The Complainant applied to Donegal County Council for Social Housing Support in March 2019 and again in March 2020.  This gender discrimination complaint arises out of his March 2020 application.

His complaint is that ex-wife was granted this benefit whereas he, in the same circumstances as his ex-wife (being not in receipt of an income and both sharing custody of their two children) was refused this benefit.

In correspondence between the Complainant and Donegal County Council in April and May 2020 Donegal County Council wrote to him saying that the reason that they had refused his application for Social Housing Support was because his application was evidentially incomplete.  The Council’s reasoning was that because his application was not accompanied with sufficient evidence of means, because Social Housing Support is a mean-tested benefit, his application was refused.  The Complainant denied that his application was evidentially deficient. He claimed that it was not possible for him to provide evidence of nothing i.e. that he was in receipt of either an income or  social welfare payments,  because no documentation was available to could prove a negative.

Having been refused by Donegal County Council, on 30 March 2021 the Complainant brought a complaint to the WRC against Donegal County Council complaining of gender discrimination (which led to an Adjudication hearing before this Adjudication Officer in December 2022 and a decision issued on 9 January 2023 under complaint number Adj 33041.)  In that decision his gender discrimination complaint was not upheld, and the decision and reasoning of Donegal County Council was upheld.

On 18 May 2020– at the same time the Complainant applied to the WRC, the Complainant also asked the Respondent to investigate his complaint that Donegal County Council had discriminated against him on gender grounds by refusing to provide him with Social Housing Support.

Therefore, the Complainant raised two parallel complaints of discriminatory conduct of Donegal County Council in two different fora in respect of the same allegation of gender discrimination. The first being to the Respondent and the second being to the WRC under Adj 33041.

It is this investigation that was conducted by the Respondent (which did not uphold him complaint) that is the subject of the present complaint.  

The Respondent’s Action

Following receipt of the Complainant’s complaint to the Respondent by letter dated 13 August 2020, a case officer employee of the Respondent, informed the Complainant that his complaint had not been upheld because Donegal County Council were entitled to request information as to his means from the Complainant because the Housing Support was a means-tested benefit. The case officer referred the Complainant to Regulation 11 of the Social Housing Assessment Regulations 2011 (SI 84/2011) which provides that a County Council may seek information from an applicant, to consider an application for Social Housing Support.

On 21 August 2020 the Complainant requested a review of the Respondent finding, which took place.

By email dated 5 November 2020 the Complainant was informed that the decision of the Respondent case officer had been upheld. The Review Officer agreed with the decision of the case worker and confirmed that “All applicants for Social Housing are required to provide information on income in order to have their eligibility assessed. As the Council is unable to establish your income it cannot assess your eligibility for Social Housing Support.” The Review Officer additionally found that there was no evidence that Donegal County Council had discriminated against the Complainant.

Arising from this, the Complainant then issued the present WRC discrimination complaint against the Respondent under the Equal Status Acts 2000-2018 (hereafter referred to as “the ESA”.)

While his complaint form identified a number of prohibited grounds upon which he intended to rely, during the Adjudication hearing on 27 March 2023 the Complainant clarified that he was proceeding on one prohibited ground only, namely gender discrimination.

His present complaint is:  because his ex-wife (who is female) was granted Social Housing Support whereas he (male who was in the like circumstances to his ex-wife) had been refused, that this amounts to unequal and adverse treatment on ground of gender and is discriminatory. The failure by the Respondent to address the discriminatory decision of Donegal County Council, was a repetition and compounding act of discrimination. He contended that both the County Council and the Respondent are obliged to properly interrogate the facts to decide if gender discrimination had occurred, instead of merely applying narrow criteria such as statutory means-testing criteria. Gender equality is a much more fundamental and important concern that should have been considered in greater depth rather than simply deciding the issue on whether sufficient evidence of means, had been provided by him. 

Response to Preliminary Application

At the start of the Adjudication the Respondent raised a preliminary application - that the WRC has no jurisdiction to investigate this complaint because its investigatory function does not come within the definition of “a service” within section 2 of the ESA.  

In response to this jurisdictional preliminary application - the Complainant responded as follows:

-        By failing to properly investigate his substantive complaint (that Donegal County Council had discriminated against him) and by citing the same reasons that Donegal County Council used, the Respondent repeated and compounded the original discriminatory conduct.

-        The Respondent provides a service to the public to investigate actions of public bodies. As such the Respondent’s investigation function is a “service” within the meaning of the ESA.

-        The WRC is the public body with the designated statutory function of investigating complaints of prohibited discrimination including those under the ESA and the Respondent is not immune from suit in this regard.

-        The discriminatory act that the Complainant complains of is that the Respondent failed to properly investigate his complaint that Donegal County Council discriminated against him (when they denied him Social Housing support but granted the same benefit to his ex -wife.)

-        The authorities from the CJEU, in particular CJEU Decision 378/2017, all confirm that gender-based discrimination is prohibited and by refusing his application for social housing support but granting his ex-wife (the female comparator on which he relies) her application for social housing support, Donegal County Council discriminated against him on grounds of gender.

-        By failing to investigate his complaint of discriminatory conduct (and accepting the County Council’s lack of evidence of means defence without further consideration) the Respondent perpetuated the original discriminatory conduct. His complaint of discriminatory conduct should not have been brushed over as it was, there was a wider issue of inequality that needed to be considered more deeply.

-        The Respondent was obliged to consider the wider circumstances of equality instead of applying narrow rules such as means-testing criteria.

Preliminary Application on Jurisdiction

The Respondent has filed three sets of legal submissions in this preliminary application.

First Respondent Submissions

The first, (dated August 2022) submitted as follows:

When the Respondent exercises its investigatory function, it is not a “service” (within section 2 of the ESA) and is not amenable to WRC scrutiny.  While some of its activities, those which fall outside its investigation function, may come within the definition of “service” (eg access to the service) the investigation process itself is carved out and is immune from suit because, like other adjudicative bodies it is either not a facility that is open to the public or section of the public or it possesses quasi-judicial immunity. 

It submitted that were the WRC to find otherwise, the WRC would be acting ultra vires.

It submitted that the alternative remedy, were a defect to occur in its investigation, is by way of Judicial Review.

In this submission the Respondent cited two Equality Tribunal decisions; Paddy O’Donovan v. Garda Olive Donnellan ES/2001/074, in which the definition of service in section 2(c) of the ESA was considered and Fogarty v. Employment Appeals Tribunal Dec-S2009-087, in which quasi-judicial immunity was successfully relied on by the Gardai and the E.A.T. respectively.

In O’Donovan, the discretion to investigate and prosecute crime, was found to be a State function carried out by the Gardai on behalf of society as opposed to individual members of the public and therefore did not come within “a service…which is available to the public generally or a section of the public (as per Section 2(c)of the ESA). The Respondent submitted that its investigation in a similar way, is not a service.

In Fogarty, the quasi-judicial immunity of the E.A.T’s adjudicative function was upheld. The Respondent submitted that its investigation likewise is an adjudicative process, which should be immune from suit.

The Respondent then highlighted the obiter comments of Mr. Justice Simons in the High Court case of Olumide Smith v. Office of the Ombudsman [2020] IEHC 51, in which he observed at para 29 of his judgment:

“It seems to have been assumed both before the Workplace Relations Commission and the Circuit Court that the carrying out of any investigation pursuant to the Ombudsman Act 1980 represents the provision of a “service” within the meaning of the Equal Status Act. The Office of the Ombudsman appeared to concede, at least for the purposes of the complaint, that the carrying out of its functions are, in principle, subject to Part II of the Equal Status Acts. In circumstances where no argument to the contrary has been advanced to the High Court on this appeal, it is unnecessary to address the correctness or otherwise of this assumption or concession. Nothing in this judgement should, however, be understood as necessarily endorsing the correctness of this approach. It is, however, an issue which may require to be determine in another case.”

Second Respondent Submission (dated 23 March 2023)

The Respondent’s next supplemental submission was received by the Adjudicator on the morning of the Adjudication hearing on 27 March 2023. In it the Respondent cited three additional WRC decisions in support of their preliminary application. These were:

Adj 20717, Olumide Smith v. WRC;

Adj 10998, Olumide Smith v. Stephen Bonnlander

Adj 26773, A Complainant v. Residential Tenancies Board.

All three decisions supported the Respondent’s application that because quasi-judicial immunity attaches to the adjudicative function of the WRC and RTB, when the Respondent is exercising its investigatory function, it is likewise protected from suit because its investigation is akin to the WRC/RTB adjudication processes which have been held to fall outside the definition of “service” in section 2 (c) of the ESA.

At the virtual hearing on 27 March 2023 the Respondent’s legal representative brought the Adjudicator through their submissions / legal authorities and highlighted the independent nature of the Respondent’s investigation function.

The Respondent submitted that the High Court remedy of Judicial Review was the appropriate route to fix any alleged defects, including discrimination, in the Respondent’s investigation, not the WRC.

The Respondent repeated its submission that if an Adjudicator were to find that the Respondent’s investigatory function camewithin the ESA definition of “service” such a decision would be ultra vires.

Third Respondent Submission (dated 26 September 2023)

In their third set of written submissions was drafted in response to a series of questions that had been raised by a letter sent to the parties by the Adjudicator 18 August 2023, the Respondent altered their position somewhat.

The Respondent submitted as follows:

When it conducts an investigation the Respondent is not a quasi-judicial body and it does not seek to rely on quasi-judicial immunity.

Rather it is is a statutory body that has a public function to adjudicate on a complaint– albeit that, unlike the other adjudicative bodies that have been cited (EAT, RTB, WRC) its findings are not binding.

As its findings are non-binding, as opposed to what was earlier submitted, they accept that their investigation process is not amenable to judicial review. They do not suggest any alternative remedy is available to remedy defects in their investigation.

Its investigation is required by statute. While they did not seek to rely on section 14 of the ESA (under which an action that is mandated by enactment or court order is protected from constituting a service) they submitted that because its investigation is an exercise of its statutory function, it is likewise distinct from being a service.

The Respondent cited a High Court authority of A Mother (on behalf of her Son) v. A School and Department of Education and Skills (unreported IEHC 7 December 2010) which is an education case interpreting section 7 of the ESA (section 7 is a specific provision in the ESA which specifically deals with discrimination in the education field); RyanAir Holdings PLC v. Irish Financial Services Regulatory Authority [2008] IEHC 231 as well as three other WRC decisions (Adj 11282; Adj 35826 and Adj 33059.)

Respondent’s Preliminary Application on Jurisdiction

1.      Authorities referred to by the Respondent

In support of its preliminary application the Respondent has referred me to:

Three High Court decisions: Olumide Smith v. Office of the Ombudsman [2020] IEHC 51 and A Mother (on behalf of her son) v. A School and Department of Education and Skills (IEHC 7 December 2010) and Ryan Air Holdings PLC v. Irish Financial Services Regulatory Authority [2008] IEHC 231

Two Equality Tribunal decisions (Paddy O’Donovan v. Garda Olive Donnellan ES/2001/074 and Fogarty v. Employment Appeals Tribunal Dec-S2009-087)

and

Six WRC decisions (Adj 20717, Olumide Smith v. WRC; Adj 10998, Olumide Smith v. Stephen Bonnlander, Adj 26773, A Complainant v. Residential Tenancies Board); Adj 11282, A Complainant v. A Public Body; Adj. 35826 A Complainant v. An Employer of a Judge; Adj 33059 A Father v. a Tribunal

2.      Relevant Legislation

The relevant statutory provisions are:

i.                 The Ombudsman Act 1980-2012

The Respondent’s statutory investigatory function is set out in section 4 (2) of the Ombudsman Act 1980-2012 which is:  “to investigate any action taken by or on behalf of a Department of State or other person specified in Part 1 of the First Schedule to this act (being an action taken in the performance of administrative functions)… to decide that the action was or may have been (i) taken without proper authority, (ii) taken on irrelevant grounds, (iii) the result of negligence or carelessness, (iv) based on erroneous or incomplete information, (v) improperly discriminatory, (vi) based on an undesirable administrative practice or (vii) otherwise contrary to fair or sound administration.”

Having concluded its investigation, the Respondent issues its findings and recommendations to the public body which is the subject of the complaint.   Section 6 of the Ombudsman Act 1980-2012 makes it clear; the Respondent’s investigation does not determine legal rights of the parties. Its decision is recommendatory and non-binding.

ii.                TheEqual Status Acts 2000-2018 (the ESA)

Section 2 of the Equal Status Act 2000-2018 defines “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 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 Discrimination

Discrimination in the disposal of goods and provision of services is dealt with by Section 5(1) of the ESA which states,

“(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.”

Dismissal of a complaint because of bad faith or it is frivolous, vexatious or misconceived

Section 22 of the ESA deals with the dismissal of claims.

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

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law.”

3.      Is the investigation function of the Respondent “a service” within section 2 of the Equal Status Acts 2000-2018?

What is being considered in this preliminary application is whether or not the statutory investigation function of the Respondent is “a service.” This is a significant and novel application given that until 2020, the Respondent appeared to accept that its investigation was a service (see Mr. Justice Simons observations in Olumide Smith v. Office of the Ombudsman [2020] IEHC 51.)

This decision is not concerned with other activities of the Respondent that are ancillary to its investigation, eg access to an investigation. The Respondent accepts that such ancillary activities, come within the meaning of the definition of “a service.” I accept that because it is correct and non-controversial.

What is being considered here is specifically and only whether the Respondent’s investigation comes within the definition of “a service”.

4.      Statutory Exemption

The starting point is that there is no statutory provision either in the ESA or the Ombudsman Act 1980-2012 which excludes the Respondent – either as a body or organisation or when it exercises its investigatory function - from the reach of the ESA.

The second point is that the Respondent does not contend that its exemption arises under the exemption provision of section 14 (a) (i) of the ESA, which I accept is correct. If it did, this would be much easier to decide.

The ordinary meaning of section 14 (a) (i) applies an exemption to the taking of any action that is required by law and does not extend to the exercise of a discretion (as occurs within an investigation.)  In support of this within the Seanad debates on what was then, the Equal Status Bill 1999, the then Minister for Justice Equality and Law Reform stated: “I stress that this exemption [s.14 (a) (i)] applies only to actions which are mandatory under the relevant statute and not to the discretionary actions of statutory bodies or public officials.”

As the Respondent has not sought to contend otherwise, I am satisfied that there is no statutory provision either within the ESA, the Ombudsman Acts or in any other legislation which exempts the Respondent’s investigation from suit under the ESA.

5.      Pre-Hearing Request by Respondent that the preliminary application be decided on-paper.

Following the scheduling of the Adjudication in person hearing the Respondent requested the WRC by email (23 February 2023) that its preliminary application be responded to by the Complainant in a written submission, in advance of what was, then an in-person hearing on 27 March 2023.

The Adjudication Officer responded by email - that while the Respondent had liberty to raise a preliminary jurisdictional point, this would be dealt with at the adjudication hearing as a preliminary matter in advance of any substantive hearing so that the views of both parties could be aired and heard. In this email the AO also referred the Respondent to consider the decision of WRC decision Adj 33041, which had been published the previous January 2023 and involved the Complainant and Donegal County Council, as it was relevant to the present complaint.

On 27 February 2023 the Respondent again requested that their preliminary application be determined by the Adjudicator “on paper” in advance of the in-person Adjudication hearing. The Respondent explained that travelling from Dublin to an Adjudication hearing in Donegal would give rise to unnecessary cost and inconvenience for the Respondent in terms of travel and accommodation and as a publicly funded body, avoidance of these costs should be considered.

This Adjudication Officer by email, again refused the Respondent’s request on the basis that that the Complainant was a lay litigant and the preliminary application was a legal jurisdictional application. The Complainant needed an opportunity to respond to the preliminary application and therefore needed to be heard but in an effort to meet the cost saving concerns of the Respondent the AO suggested that the hearing be converted to a virtual hearing, so that the Respondent’s legal team did not need to leave Dublin, which both parties agreed to.

A virtual adjudication hearing took place on 27 March 2023.

6.      Authorities relied on by the Respondent

The Respondent submits that it is a statutory body which investigates complaints and issues a decision. It contends that its investigation jurisdiction is akin to adjudications conducted by adjudicative bodies such as the Equality Tribunal, EAT, WRC all of which have been held to have quasi-judicial immunity which fall outside the definition of “service” under the ESA.

The quasi-judicial immunity that the Respondent refers to has been upheld in a series of Superior Court authorities as well as more recent WRC adjudication decisions, most recently in Adj 42833: A Legal Representative v. Chairman of a Division of the Labour Court, in which the immunity of quasi-judicial adjudicative bodies - (in that case the Labour Court) was comprehensively considered and the immunity of the Labour Court - when adjudicating on rights under the Equal Status Acts -  was upheld. This is well established and accepted law.

However, while the Respondent asserts that it enjoys the same immunity as these bodies the basis upon which the Respondent contends an equivalence to these adjudicative bodies is not expanded upon.

It is my view that there are distinctive features of the Respondent’s investigatory function that are not equivalent to the adjudicative function of these exempted bodies.

A consideration of the superior court authorities shows that statutory bodies which are immune from suit under the ESA fall into one of three categories:

1.      Immunity by virtue of a statutory provision

2.      Immunity if the public body has statutory regulatory or controlling functions, eg inter alia Gardai investigating crime or the Department of Justice deciding immigration applications whose function is to the State or to the public at large rather than an individual.

3.      Immunity of a quasi-judicial body which determines enforceable legal rights.

7.      Distinction between the Respondent’s investigatory function and statutory regulatory or controlling functions

With respect to category 1, it is accepted by the parties, that there is no statutory exclusion.

With respect to category 2 above, the Respondent has not sought to argue that it is a regulatory or controlling public body and for this reason I do not consider the Equality Tribunal decision of Paddy Donovan v. Garda Olive Donnellan ES/2001/074 to be relevant.  In Donovan the Equality Officer found that because the activity of prosecuting crime is one carried out by Gardai on behalf of the DPP and society as a whole, as distinct from an individual member of the public it is not “available to the public generally or section of the public” (s.2 ESA) and therefore did not meet the definition of “service.” This was followed in a number of WRC decisions including Adj. 6593 Bula v. The Commissioner of An Garda Siochana.

However, under the Ombudsman Acts 1980-2012 the right to an investigation by the Respondent is expressly “available to the public generally or section of the public.”  

For this reason, I find that the Respondent does not come within exempted category 2 above.

8.      RE Category 3; Distinction between administrative review processes and quasi-judicial function

In the Supreme Court decision of Beatty v Rent Tribunal [2005] IESC 66 Geoghegan J.’s majority judgment affirmed that the Rent Tribunal was immune from actions in negligence. He observed:

‘Even though the respondent is a tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence … In this respect it is in no different position from a court whether such court be traditionally categorised as ‘superior’ or ‘inferior’.” (2006) 2 IR 191 at 195 (underline emphasis added)

I accept that arising from the underlined section above it could be argued that any statutory body when it exercises a statutory duty in the public interest and which acts with bona fides,may be immunefrom a negligence (and by extension an ESA) suit.

However I consider that such an interpretation would be to over-expand the dicta of Geoghegan J. whose observations can only be read in the context of the quasi-judicial nature of the RTB, which is an adjudicative body that determines enforceable legal rights, which the Respondent does not.

I am not persuaded that that a public body, simply because they are charged with a statutory function to investigate a complaint, is immune from suit because they have a statutory duty to investigate.

Why not? Because if that were the case, that would severely limit the remedial purpose of the ESA the prevention of discriminatory conduct including by State service providers when they are involved in statutory administrative review processes.

If the Respondent is not a service because it has a statutory function to investigate a complaint then likewise Donegal County Council could make the same argument for when it had the statutory duty to conduct a statutory review of its first decision to refuse the Complainant the benefit that he was seeking.  The review investigation by the County Council is also mandated by statute. It is also required to be an independent fresh investigation, but the Respondent is not suggesting that the County Council’s review investigation is not a service.

If the Respondent’s investigation were to be held not to constitute a service solely on the basis that it exercises a statutory function (to conduct an administrative investigation) then so too would the statutory function of many other State bodies (which have to investigate and review the correctness of primary decisions.) This interpretation suggested by the Respondent would overly limit the scope and reach of the ESA if that were so.

9.      Office of Ombudsman Investigation Outcome is not binding

The Respondent’s application started by relying on other investigative bodies whose activity is akin to the Respondent’s, being judicial or quasi-judicial bodies (the Courts, Judges, EAT, WRC, RTB, IFSRA)   which, it is uncontroversial to say, are all immune from suit.  

In the Respondent’s last submission, however they moved away from asserting an equivalence to quasi-judicial bodies and instead contended that their decision-making function is not a service but rather is “the exercise of a public function.”

I accept that the Respondent is not a quasi-judicial body, not least because they do not contend that they are but also becase their decisions do not bind the parties and are not legally enforceable.

Hogan and Morgan consider (at Chapter 9 paragraph 5) why features of the Respondent are not within this higher category:

“Despite this, one should emphasise that the Ombudsman is not “administer[ing] justice” so as to attract Art.34.1 of the Constitution. This is because his decisions are lacking so many of the necessary characteristics of an administration of justice, for instance, they are recommendatory and not binding.”

The Respondent is an administrative review body and whilst its statutory function is to investigate complaints into the activity of public bodies and the Ombudsman Act 1980-2012 requires that it carry out this duty independently, the outcome of its investigation (unlike for example the Financial Services and Pensions Ombudsman (FSPO) or the Irish Financial Services Regulatory Authority (IFSRA) is not enforceable. While the work of the Respondent is highly valuable and important to the State to resolve complaints that otherwise could be litigated, its investigation results in a non-binding recommendation which have no legal effect. As it does not adjudicate upon legal rights, it cannot inherit common law quasi-judicial immunity. But as the Respondent’s last submission makes clear, the Respondent no longer seeks to contend that now.

Therefore I am satisfied that the authorities cited by the Respondent where quasi-judicial bodies involved are not relevant to this preliminary application and the definition of service.

10.  The remedy of Judicial Review

A further issue arose in this Adjudication,  in relation to the Respondent’s initial submission that Judicial Review relief is the appropriate remedy that is available  to a complainant who contends that an error occurred during the Respondent’s investigation.

After consideration the Adjudicator wrote to the Respondent requesting that it addresses whether this could be so in light of Mullally v. The Labour Court [2016] IECA 291 where the Court of Appeal held that when the Labour Court exercises its Industrial Relations function under the Industrial Relations Acts 1969 - which results in a non-enforceable recommendation, the remedy of judicial review is not available. It is available when the Labour Court adjudicates upon employment rights and equal status complaints (because these are justiciable rights) but not on non-enforceable recommendations.

At the conclusion of his judgment (from para 24) Mr. Justice Hogan held:

“24. All of this is to say that if the decision of the Labour Court was not simply a recommendation, but had binding legal consequences, then, of course, the result of this case so far as the jurisdictional issue of justiciability is concerned would be quite different. As this, however, is not the case, I entirely agree with the conclusion of Noonan J. that the recommendation of the Labour Court pursuant to s. 20(1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates.” Nor can it be said that such a recommendation creates any form of res judicata or any other form of binding resolution. 

25. It follows, therefore, that the recommendation of the Labour Court does not give rise to justiciable rights or issues such as would permit the applicants to seek judicial review of that decision.”

In response to this the Respondent stated that it wished to qualify their earlier submission that the Respondent’s investigation outcome was subject to Judicially Review and no longer was advocating that was so.

Therefore at this point, the following conclusions may be drawn:

-        There is no statutory provision to exempt the Respondent’s investigation under the ESA.

-        Quasi-judicial immunity has not - to date - extended to statutory administrative investigations with unenforceable outcomes as opposed to quasi-judicial adjudications on legal rights, which are enforceable and the Respondent does not submit that it has quasi-judicial immunity.

-        If Judicial review is not an alternative remedy (which the Respondent now concedes) no remedy exists for a complainant who alleges that the Respondent’s investigation was discriminatory.

11.  Oluminde Smith v. Office of Ombudsman

The Respondent relies on Mr. Justice Simons observations in the case of Olumide Smith v. Office of Ombudman [2010] IEHC 51 however I respectfully suggest that the observations by the learned High Court judge on this point are, at most, an invitation that this “is an issue which may require to be determined in another case.”

12.  The Obligation on parties at an Adjudication hearing

Like judges, WRC Adjudicators place much reliance on representatives who appear before them, to advise fully and accurately on fact and law, whether that suits their application being advanced or not.  The discharge of this duty is particularly important in applications that pertain to jurisdiction, which impact not only the complaint (or future complaints involving the Respondent’s investigation function) but other similar statutory administrative investigations/ reviews or processes conducted by other public bodies. That duty is greater still when the moving party is a public body and even more so again when the party opposing the application is an unrepresented lay litigant.

By way of an observation, I do not consider that this preliminary application could ever have been properly or appropriately adjudicated upon as an on-paper exercise, as was requested by the Respondent particularly given that the Complainant was an unrepresented lay litigant and that a successful finding would be new law for the Respondent.

I have some disquiet about the fact that during the course of the hearing the Respondent did not state that its investigation finding was not legally binding. Apart from the relevance that this has on other aspects of their preliminary application. It should have been clearly stated for the benefit of the Complainant and Adjudicator.

I also have disquiet about the Respondent’s initial submission that Judicial Review was the appropriate way of remedying an act of discrimination were it to occur during the Respondent’s investigation, when that was not the case. That was legally incorrect which was unfair on the Complainant as an unrepresented lay litigant and the Adjudicator.

13.  Conclusion on Preliminary Application

I have been asked by the Respondent to make a finding that its investigatory function does not come within the definition of “a service” within the meaning of section 2 of the ESA. This would be the first time that such a finding would be made with respect to the Respondent.

The definition of service in section 2 of the ESA is broadly worded namely “a service or facility of any nature which is available to the public generally or a section of the public.”

While the Respondent denies that its investigation is a service because it is a statutory body carrying out public functions for the benefit of the public, it does not actually explain why it contends that it is not “a service or facility of any nature which is available to the public generally or a section of the public.”  The reality is, the right to have a complaint against a public body investigated is a service or facility that is available to the public and it was available to the Complainant, a member of the public when he made his complaint.

The activities which have been held to fall outside the definition of service are as follows:

1.      If the ESA or another Act expressly exempts an organisation or public body from the reach of the ESA.

2.      Where an enactment expressly prohibits a specific action (as opposed to a discretionary process) from constituting discrimination (section 14 (1) of the ESA)

3.      Where a public body or tribunal is conducting a statutory investigation which results in the determination of justiciable rights, quasi-judicial immunity applies (IFSRA, EAT, WRC, Labour Court, RTB etc.)

4.      Where a public body does not provide a statutory duty to an individual or group of individuals but instead provides it to society,  the public at large or to the State (eg the Gardai, the Army.)

What heretofore has not been held as an exempt category (but what is being sought by the Respondent to be found as exempt) is an investigation by a public body whose decision is not binding/ has no legal effect, which is not exempt under statute and is open to any individual to request, is exempt from constituting a service because its investigation is mandated by statute, a contention that I do not find persuasive.

None of the above exemptions apply to the Respondent.

Undoubtedly the Respondent carries out an important statutory function which is to investigate complaints but in the absence of a prohibition under section 14(1) of the ESA I am not persuaded that this activity simply because it has a statutory mandate to investigate a complaint, renders it to be not a service.

In reaching this decision I have found two texts to be very helpful: Walsh; Equal Status Acts 2000-2011: Discrimination in the Provision of Goods and Services” (1st Edition 2012) pages 41-49 which provides a useful analysis on Irish, UK and Australian case law on the distinction between public functions and services in the context of the ESA and Hogan and Morgan; Administrative Law in Ireland (fifth edition)

Finding: I am satisfied that the Respondent’s preliminary application fails. I find that the investigation function of the Respondent is a service within the definition of “service” in section 2 of the ESA.

In the absence of a statutory exclusion, were the contrary to be found this would overly expand immunity to the internal review processes of public bodies, which heretofore have not enjoyed such immunity. In my view I do not have the vires to so find.

The line between what is quasi-judicial and what is an administrative review is distinct.

14.  Mootness. Vexatious/Frivolous/Misconceived Complaint

Under section 22 (1) of the ESA I have the discretion to dismiss this complaint at any stage in the proceedings if I am satisfied that it is frivolous, vexatious or misconceived. The words “frivolous, vexatious or misconceived” have been construed by the Superior Courts (Farley v. Ireland [1997] IESC 60 and Kelly v The Information Commissioner [2014] IEHC 479) as that a complaint is futile or has no reasonable chance of succeeding.

In a previous Adjudication, Adj. 33041 (Sutovitz v. Donegal County Council) I found that the Complainant had not proven facts from which a prima facie complaint of discrimination against Donegal County Council (for refusing his application for social housing support) could be found.

At the commencement of the present Adjudication hearing, I asked the Complainant to identify his complaint against the Respondent. He said it was that the Respondent had upheld the decision and the reasoning of Donegal County Council (in denying him social housing) and as the Council did the Respondent failed to properly consider his allegation of gender discrimination.  He said that by following the Council’s approach, the Respondent repeated or compounded the Council’s gender discriminatory conduct.  Following this, I asked the parties to address the issue of mootness.

The Respondent did in their third submissions which the Complainant replied to.

I am satisfied that to succeed in his complaint, the Complainant would need to at least, stand a chance of proving that Donegal County Council discriminated against him in the first place, because the present complaint is that - by failing to find that Donegal County Council discriminated against him - the Respondent also discriminated against him by repeating or compounding the primary discriminatory act. It must be recalled that the Complainant applied to the WRC and to the Respondent by way of identical parallel complaints. The complaint made to the WRC was dealt with in Adj 33041 and the complaint made to the Respondent was decided and the Complainant then complained about their conduct which is now before me.

However, if the County Council did not discriminate against the Complainant (and in Adj. 33041 I have already found that it did not) any action by the Respondent which repeated or compounded the County Council decision is not capable of repeating the discrimination, because it has been already found that there was no discriminatory action by the Council to start with.

It follows that the question of whether or not the Respondent discriminated against the Complainant has already been determined.  I say that it was and that the complaint before me is therefore moot.

While the Complainant would not have been in receipt of Adjudication decision Adj. 33041 when he issued this complaint on 30 March 2021, by the time the Adjudication hearing took place on 27 March 2023, he knew that his complaint against the Council had failed and why it failed.

I am satisfied that this complaint is moot because it is incapable of succeeding. I find that it is misconceived and under section 22 of the Equal Status Acts and I dismiss the complaint.

Conclusion

The Respondent’s preliminary application fails. The Respondent’s investigation is a service within section 2 of the ESA and the WRC has jurisdiction to determine ESA discrimination complaints about the Respondent’s investigation.

and

This complaint is misconceived because it is moot. I dismiss the complaint

The Respondent’s preliminary application fails. The Respondent’s investigation is a service within the meaning of section 2 of the Equal Status Acts 2000-2018 and the WRC has jurisdiction to determine ESA complaints of discrimination about the Respondent’s investigation.

And

This complaint is misconceived because it is moot. I dismiss the complaint.

Ombudsman – Equal Status Act – definition of service – Is the investigation by the Office of Ombudsman a service within the meaning of the ESA? - Immunity - Mootness