Complainant

Respondent

Parties

Idalina  Diniz Marciel

Sligo County Council  2

Representatives

  Self

Amanda Kane Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057547-001

24/06/2023

The summary of the Complainants case is contained in the Findings and Conclusions section, in addition to the detail contained in the Background Section.

The summary of the Respondents case is contained in the Findings and Conclusions section, in addition to the detail contained in the Background Section.

Preliminary Issue Notification Requirements -Section 21

The Respondent raised the terms of Section 21 on the basis that the Complainant had failed to comply with the terms requiring notification of a complaint to a Respondent and their having the right to reply to that notification prior to a referral of the complaint to the WRC.

In complaint 1-the employee in this case received the ES1 on 21 June 2023.  She was notified of the receipt of a complaint by the WRC on 17 June 2023 – which was before it was sent to the employee concerned and before she had the opportunity to respond.

In complaint 2 -the employee in this case received the ES1 on 24 June 2023. The employee who received the ES1 replied on 19/07/23. She was later notified of the receipt of  complaint by the WRC on 24 June -the same day as she herself received the ES1..

The Respondent sought to have the complaints dismissed on the basis that the Complainant had failed to comply with the mandatory terms of Section 21 of the Act.

The Respondent cited previous decisions by Adjudication Officers who dismissed complaints where the mandatory provisions were not complied with by the Complainant.

In addition to the prior notice requirements, the dates of specific items of complaint fell outside the two or four months’ time limits under Section 21(2) of the Act in both complaints.

The procedural issue regarding notice to the Respondent  was explained to the Complainant who then consulted her support persons on a break at the hearing. In responding evidence, it was stated that the Complainant had submitted the ES1 forms to the WRC who had forwarded the forms to the Responding employee and the responding employee had replied to the ES1 within the period of a  month contained in section 21(4). The Complainant stated that she did not know that she was supposed to wait for a reply from the Respondent before making a complaint to the WRC.

The Respondent replied that the terms of Section 21 are clear. It is well accepted that ignorance of the procedures or time limits under legislation is not a reasonable excuse for extending the required timelines.

The following are the terms of Section 21 which sets out the procedures to be followed before referring a complaint to the WRC and the timelines for doing so. The subsections relevant to this complaint are highlighted.

Section 21 of the Equal Status Act

Redress in respect of prohibited conduct.

21.— (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.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise —

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(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.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(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, or

(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.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6)   (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(7) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

 7A  Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

(7A) (a) Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission on an application by a complainant for an extension of time under subsection (3) or (6), the complainant or respondent 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.

(b) On the appeal the Court may affirm, quash or vary the decision.

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

(d) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director of the Workplace Relations Commission on such an application until —

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.

(8) Information is material information for the purposes of this section if it is—

(a) information as to the respondent’s reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,

(b) information, other than confidential information, about the treatment of other persons who stand in relation to the respondent in the same or a similar position as the complainant, or

(c) other information which is not confidential information and which, in the circumstances of the case in question, it is reasonable for the complainant to require.

(9) In subsection (8) “confidential information” means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.

(10) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.

(11) For the purposes of this section prohibited conduct occurs —

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.

Decision on the matter of notification and Time Limits-Section 21

As indicated in the procedures section of this text, I have decided to allow the matters of complaint and to issue a full decision based on the evidence and supporting submissions by the parties.

The files on these complaints are not straightforward in terms of documents received or dates of receipt. What appears to have happened in terms of the sequence of notice dates is that the Complainant submitted an ES1 form to the WRC  initially on a joint basis against a named public representative and Employee 1 on 07/06/2023. On 13/06/23, the WRC wrote to the Complainant seeking clarification as to whether there were one or two respondents. In the same correspondence, the WRC also advised the Complainant: ‘The form ES1 is the first step towards making a complaint of discrimination under the Equal Status Acts. However submission of an ES1 form to the Workplace Relations Commissiondoes not constitute referral of an actual complaint.’

From the dates of receipt of separate ES1 forms by the Respondent it appears the Complainant then issued her ES1 forms to the named employees(and the public representative). There is no completed WRC complaint form on the file-noting that using a complaint form is not a statutory requirement nor is the complaint form a statutory document. However, the WRC did forward the ES1 forms to the named employees later in June 2023 following the receipt of a ES1 for employee 1 and another ES1 from for employee 2. From the WRC correspondence of 13/06/23 and the dates of receipt of the ES1 forms by the named employees it appears that the Complainant is not correct when she says the WRC issued the ES1 forms and then the employees replied, but rather it would seem that she issued the notices directly to the employees following the letter from the WRC of 13/06/2023. This conclusion also suggests the Complainant is correct when she says she did not realise that she was supposed to serve the notices directly on the employees and then allow a period for their reply all before she made any complaint to the WRC. Accepting that view of the Respondent as a general rule that ignorance of procedures is not acceptable as a reason for a failure to follow procedures exactly as laid out, as a preliminary point I found these circumstances unique in my experience in terms of the Equal Status Act ,but more based on misunderstandings of the procedures  rather than any other factor. In my view the serving of the ES1 forms on the Respondents together with the revised ES1 Respondent forms can be regarded as a genuine effort by the Complainant to comply with the procedures as she understood them.

The Equal Status Act places a degree of overlapping and layered procedural demands on any Complainant who is considering and then deciding to make a complaint to the WRC which far exceed the procedural demands contained in any employment legislation including employment equality legislation. Both the Employment Equality Act and the Equal Status Act are legislation which closely relate to or follow entirely the related European Directives. The extent of the layers of time limits  and mandatory steps may act as a deterrent in preventing complaints being heard or having complaints dismissed which would otherwise be well founded complaints under the legislation. These possibilities would be particularly  unfair where the Complainant is not a person with adequate literacy or comprehension skills. While it is very clear that the Complainant in this case has, as she herself suggested, much improved her knowledge and familiarity with the English language over the years, she did require the active and constant support of an official interpreter at the WRC hearings. The contents of the email in the procedures section indicates remaining difficulties with written English. I consider these are factors of disadvantage in the case of the Complainant  which I cannot exclude from my consideration of whether the Complainants failure to comply fully with the procedures contained in Section 21 are breaches to such an extent that the complaints should be dismissed.

 On balance and based on the combination of the exceptional and, in my own experience, unprecedented  circumstances in this case, I have decided against dismissing the complaints on the procedural grounds in Section 21-(1)-(4).

In addition to the conclusions based on the application of Section 21(1) to (4) I have also made earlier points regarding the overriding interest of both parties in my dealing with the substance of the complaints in circumstances where the Complainant continues to complain about the service provided by the Council and its employees related to her social housing and considers she is entitled to compensations for their failings as she sees them.

Regarding the objections to the time limits as expressed in Section (6) (and not section (4) which I have dealt with), while accepting that the acts or omissions of alleged discrimination in the case of employee 1 are some distance apart, there is no doubt that they are all linked to the Respondents defence that during the period 2017 to 2023, the Complainant was treated in exactly the same way as others in RAS and on the Council waiting scheme after she was accepted onto that list in 2022. The complaints against the Council through employees1 and 2 represent a continuum for the purposes of Section 21 subsection (11) (a) and (b) and will be decided on that basis.

No issue of time limits arises for consideration in respect of the application of 21(6) in the case against Sligo Co Co in respect of employee  2(577).

Complaint on the Housing Assistance Ground

The terms of the Equal Status Act provide a definition of the Housing Assistance Ground which is fundamental to whether Complainant can expect to have even a statable complaint under the Act.

(3B) For the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance(construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).

One form of discrimination alleged by the Complainant is that she was treated less favourably than others under the housing assistance ground. However as those who she compares herself to(unnamed) were or are, as she confirmed at the hearing,  also in receipt of either HAP or RAS supports from the Council, it follows that the Complainant cannot succeed in a complaint of less favourable treatment under the housing assistance ground as between her and a person who is not in receipt of housing supports or social welfare payments. This term of the legislation is intended to protect those who are in receipt of housing supports(or social welfare payments) from being excluded from the rental market by private property owners who do not wish to accommodate persons dependent on the State for financial accommodation supports or on social welfare payments  for some or all of their income(or both as is frequently the case).

As the Complainant cannot by definition compare herself to a person who is in receipt of a rent supplement or social welfare payment,  the complaint under the Housing Assistance Ground is misconceived and is dismissed in accordance with the authority contained in Section 22 - (1) of the Equal Status Act:

‘ 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.’

Complaint of Harassment Employee 2

On the first day of the hearing the Complainant clarified that she had not meant anything personal against the named employee in this complaint or that they had harassed her personally in any way. References to harassment were in relation to her difficulties with neighbours where she lived at the time of the complaints (and about which she had complained to  Employee 2). On the basis of this clarification, the complaint of harassment by the employee in this case and therefore by extension the employer of that employee are regarded as withdrawn as confirmed to the Complainant at the hearing. The Complainant did not seek to revisit this issue again on the second day. For the avoidance of any doubt, no evidence of harassment was provided at the hearing and apart from selecting this ground on the ES1 form no other information was provided by the Complainant in support of this ground.

This would not be the first occasion on which I have found that a Complainant genuinely confuses the legal  term harassment with the way they felt in a particular situation in terms of stress or anxiety.

Complaint of Discrimination  on the Nationality Ground

General points

There can be no doubting the anxiety of the Complainant to obtain a Council owned house which she could regard as her forever home rather than being in the private rental sector which in recent years has become often tenuous in terms of tenure. On at least two occasions her landlord decided to sell their house or remove it from the social housing system. On another occasion she was hopeful of getting a transfer to another area, but the Council say they were informed the house owner decided not to opt into the social housing schemes within the rental market. On at least two occasions she was on the verge of being homeless. Acceptance of one home resulted in her removal from the housing waiting list. To be offered accommodation in the place of preference can be difficult to obtain. There are usually others with equal or greater or more urgent housing needs. The system develops and changes the criteria for allocating housing on a policy basis which did not always help this Complainant. The separate pathways to council housing introduced in 2015 and which the employees of the Council then applied may seem a bit odd to someone outside of the system but systems change for many reasons usually financial and political. There is a constant over demand and under supply of private and social housing in Ireland whether it is in the completely private rental market or the council owned market or the social funded private rental market. There can be problems between neighbours anywhere. Whereas when a person buys a private dwelling they own that house in conjunction with any mortgage provider and can chose if they wish to sell the house and move location, the council is not obliged to facilitate transfers and may not be able to do so. When on a waiting list any person will in all likelihood have to wait a period of time before obtaining their ‘forever’ home and also no doubt, fulfil other criteria. They cannot just decide to go and live elsewhere under a Council supported scheme. The rules of the social housing system are adapted and changed to meet circumstances as a whole and not one individual from time to time. In summary the social housing rental market in Ireland is not an easy place to be at times nor, based on this case, an easy system to manage. Hopes and expectations simply outstrip supply.

Specifics in this case

In this section the issues involving both employees which became the subject of the complaints are addressed as they are essentially based on the same issue and there is a common defence for both.

From the ES1, the hearing and the emails to the WRC, it is possible to assume that at all times in the dates  of alleged discrimination between 2017 and June 2023, the issue between the Complainant and the Council through  employee 1 were concerned with a claim for placement in Council owned housing.  This is not the factually correct.

Between 2017 and 2021 the issues were about requests for transfers within the RAS scheme.

·       The Complainant accuses Employee 1 of refusing her a transfer to a house in November 2017. She simply does not accept that the owner of a property which she had viewed and where she wanted to live did not enter the RAS scheme. The Complainant has provided no evidence that the evidence of the Respondent at the time or now is not true. Neither has she provided any factual evidence which would even indirectly imply that any decision was taken by the Respondent in relation to that property which could imply discrimination on grounds of nationality. It is to be noted that a transfer is not a claim for Council housing-the Complainant would have remained in the RAS scheme.

·       The Complainant made a further request for a transfer in 2020. This was refused on 2nd September and refused on appeal on 15th September 2020. The Complainant accused Employee 1 of discrimination; an allegation rejected in a reply by Employee 1 on October 2020. The full file of documentation around this request was not opened to the hearing by either party. However, other than that the correspondence was issued by Employee 1, no evidence was provided by the Complainant to support a complaint of discrimination in the refusal of her transfer request at that time.

·       The Complainant made another request for a transfer in April 2021, apparently on grounds of a medical assessment of her child’s medical needs. Rejection of that application was notified to the Complainant by Employee 1 on 21 April 2021 with notice of a right to appeal. This application was discussed at the hearing where Employee 1 explained that the criteria for accommodating disability needs as a priority related to physical adaptations required by a tenant/s. Those were not the needs identified in the medical assessment. The Complainant provided no evidence to support a complaint of discrimination based on a refusal of the transfer request in 2021. 

What can be gathered from the forgoing period of time is that the Complainant was on each occasion seeking a transfer within the RAS scheme. The Complainant provided no application for a Council house during the same period. This is important because it suggests that, while the Complainant blames the Council for removing her from the Council housing list in 2015, her own lack of application for or reference to  council housing during this period of over three years (and on into 2022),suggests the Complainant knew very well and understood very well that she was not on the waiting list for  Council owned housing when she applied for transfers within the RAS scheme between 2017 and 2021.

The Complainant again applied for a transfer within the RAS  scheme. In August 2022 she is informed by Employee 2 that her request for a transfer from her RAS accommodation was successful. At the same time, she is also informed that her application to transfer to Council accommodation provided by Sligo Co Co was approved and she was now on a waiting list. The Complainant complains that the offer of a transfer under the RAS  scheme was totally discriminatory against her because Employee 2 knew she had been on the waiting list for twelve years at that stage.(Email of 24 June 2023) and she had empty houses which she did not give to the Complainant. Given that she herself had applied for the transfer this aspect of the complaint is odd. The Complainants statement that she was on the waiting list for twelve years at that stage is contradicted by her own statement in the same email that she was removed from the waiting list in 2015. At best, the Complainant seeks to confuse being in receipt of Council housing support with being on the waiting list. Bearing in mind that she had in fact only returned to the waiting list in August 2022 after a gap of seven years, the Complainants case is based largely on her own view that somehow she was automatically entitled to Council Housing. She wanted a transfer on RAS but when offered one she changed her approach to seeking Council Housing as a matter of right which was to happen it seems without any or a very short waiting period.

In February 2023 when she was told there were no Council owned houses in her areas of choice suitable for her needs she refused to accept that information, even when it came through local representative. Evidence that Employee 1 was discriminating against her is based on learning that a single Irish man was accommodated in a Council House and that two women(from another area) were also accommodated by the Council. She provides no details of how Employee 1 breached the Councils own factors for allocating Council owned properties to these Irish people. The evidence such as it is to support a complaint of discrimination against Employee 1 amounts to little more than hearsay. Most importantly the evidence does not provide any basis of a complaint of discrimination against the Complainant by the Respondent or its employees, The sum total of her evidence is that some people who were accommodated by the Council were Irish and the Complainant is not. The Council have demonstrated that the majority of people RAS list are Irish(81%) and the majority of those on the RAS list transferred to the Council list when the regulations changed in 2022(232). The Complainant was placed at number 63 based on the criteria used for deciding on priority housing needs. and they gave clear evidence of the factors which they use to decide between one applicant and another on the transfer and waiting lists. The application of those factors did not favour the Complainant between August 2022 when she was placed on the waiting list and 31 January 2024 but they did favour the Complainant when they were reapplied to her case in 2024 because she was to be homeless at the end of February 2024 as the landlord was selling the house where she lived at that time.

The Respondent might have helped their own case by issuing communications which clearly set out their reasons for refusing transfers. And the Respondent entity should have addressed the allegation of discrimination against Employee 1 in 2020. They have an obligation both to members of the public and to employees to address such serious allegations. As agents of the Respondent who is directly accused of discrimination, a reply should not issue from an individual employee.

The sum total of the Complainants case is that between 2017 and June 2023 she experienced difficulties with members of the public living in her area when she was on the RAS scheme. She wanted a move away from that location and was unsuccessful in 2017. Formal applications for transfers were refused in 2020 and 2021. In August 2022 the Complainant was accepted for a transfer within the RAS scheme and also  placed on the waiting list for Council housing when the qualifying criteria were changed. She then  complains the RAS transfer offer was discrimination and demanded that she be provided with Council Housing ,claiming she had been on the waiting list for twelve years.  When that was not granted to her within a few months, she alleged discrimination on the basis that her demands were not met. Throughout the total period covered by the complaints, the matter of her housing needs is bound up with complaints about members of the public, and her complaints intensified in 2023. Those complaints were directed to Employee 2 in April -to June 2023 including repeated emails, once on a Sunday and attaching many photographs including of dog fouling and then extending to include a complaint about the landlord. Employee 2, it appears, was very unfortunate to be caught up in this entire situation. Her involvement in 2022 commenced on what should have been a positive step for the Complainant-informing her of her inclusion on the council waiting list, then informing her that she was accepted for an application under the RAS scheme. She replied to each email received enclosing information or advising she had spoken to the litter warden, the rights of the landlord and trying to explain the housing situation. For doing nothing more than  her job in an entirely appropriate manner, she found herself the subject of a complaint of discrimination and harassment.

The Complainant has attempted to re write the history of her position on waiting lists within the supported housing schemes operated by the Respondent. She has refused to accept any explanation by the Respondent without providing any evidence to support her own complaints, other than hearsay. The Complainants case is based on her own opinion and little else. A successful complaint of any form of discrimination under the legislation must be based on facts and not opinions or complaints which are not supported by relevant facts.

Equal Status Act Burden of proof.

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

The Complainant has not established facts from which it may be presumed that [discrimination] has occurred. The complaint of discrimination on the ground of nationality is not well founded.

CA-00057547-001 The complaint by the Complainant of discrimination against Sligo County Council related to employee 2 under the housing assistance ground is misconceived. The complaint of harassment by the Complainant against Sligo County Council related to employee 2 was not pursued by the Complainant at the hearing and  withdrawn. The complaint of discrimination by the Complainant against Sligo County Council related to the employee 2 under the nationality ground is not well founded.

Equal Status Act Discrimination complaint-Housing assistance Nationality and Harassment