Complainant

Respondent

Parties

Mr Francis Xavier  Muldowney

SSE Airtricity

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr Mark Curran BL instructed by Mr Diarmuid Noonan Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060331-001

14/12/2023

This matter came before the Workplace Relations Commission dated 14/12/2023 as a complaint submitted under section 21 of the Equal Status act, 2000.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 24/05/2024.

The Complainant submits he has been discriminated against by the Respondent by reason of disability.  The Respondent is a private company limited by shares engaged in the supply and distribution of electricity and gas on the island of Ireland. 

The Complainant suffers from visual and cognitive communication disorder and he is fully dependent on written information on paper to read and understand.  The Respondent accepts that the Complainant suffers from impaired language comprehension on the basis of a Speech and Language Therapy Assessment Summary dated 02/02/2024. 

The parties were advised in advance of hearing as follows in response to a letter from the Respondent regarding reasonable accommodation to be provided by the WRC to facilitate the hearing of this complaint. 

“Mindful of one of the core values of the WRC that its services should be accessible to all the AO has confirmed every effort will be made to ensure access to its services by the Complainant.  To this end the AO will be guided and informed by the recommended communication strategies set out in correspondence by the HSE in its Speech and Language Therapy Assessment Summary as referred to in your correspondence as follows:

·       When information is provided verbally it should be no more than 2 units of information.

·       Be repeated as needed (to manage memory and comprehension difficulties).

The AO has advised that in practical terms and in recognition of the Complainant’s difficulty in processing complex information the hearing will be punctuated by regular breaks in the proceedings while at the same time ensuring compliance with fair procedures and ensuring that both Parties have a fair opportunity to present their case. 

The hearing of ADJ-00049101 is set down for 2.5 hours commencing at 11.30 on the 24th of May.  The AO proposes to provide 2 breaks of 20-minute duration during the course or 3 breaks if it is found to be necessary on the day.” 

Yours etc

The hearing commenced within the parameters set out above and the first break was taken when considered timely and appropriate to do so by which time we had not moved much beyond explaining to the Complainant the preliminary issues raised by the Respondent and inviting the Complainant to make a submission on same.     

When the hearing resumed after the break the Respondent requested some time for both parties to engage in discussions which was provided to them.  When the hearing reconvened after allowing time for discussions between the parties the Respondent advised that the parties had come to settlement agreement in principle.   

The only matter outstanding was that the Respondent had indicated that it was their preference the Complainant should seek legal advice on said agreement which they (the Respondent) would finance as the Complainant was unrepresented at hearing.   Accordingly, an appointment was made by the Respondent for the Complainant to attend at his family solicitor on Wednesday 29 May 2024. 

The Complainant’s family solicitor was not available on the day.  The Respondent provided details to the Complainant of three firms of solicitors by way of alternatives who would provide independent legal advice to the Complainant financed by the Respondent.      

Notwithstanding, the Complainant changed his mind on the matter of the settlement agreement and he requested that he would prefer for the WRC to make a decision. 

I wrote to the parties as follows on 18 June 2024:

I write further to the hearing on the above matters that took place here in Lansdowne House on 24/05/2024.

“I thank you for your patience as I have deliberated on the next steps in order to appropriately progress this matter in ease of the parties and in the interests of fairness to the parties following the failure of endeavours by the parties to conclude matters by mutual agreement.

To this end I have specific regard to section 47 of the Workplace Relations Act, 2015 which provides as follows:

Disposal of complaints by written submissions only

47. (1) The Director General may, where he or she considers that a complaint presented, or dispute referred, to him or her under section 41 may be dealt with by written submissions only, inform the parties to the complaint or dispute, by notification in writing, of his or her intention to deal with the complaint or dispute in that manner.

(2) Where a party to a complaint presented, or dispute referred, to the Director General under section 41 is given a notification under subsection (1) and, not later than 42 days after having been given the notification, that party informs the Director General that he or she objects to the complaint or dispute being dealt with in the manner specified in the notification, the Director General shall not deal with the complaint or dispute concerned in that manner.

Having carefully reviewed and considered this matter I now propose to make a decision on the evidence advanced and on the materials already before me if both partes are amenable to this proposal.  The decision will incorporate my ruling on the preliminary objection to the Complainant’s claim raised by the Respondent on the day of hearing namely that the claim was out of time.”

Yours etc 

The Respondent had filed written submissions together with appendices with the WRC on the 15th May 2024 prior to the hearing and provided hard copies on the day of hearing including one for the Complainant in larger font in order to assist.  The Complainant relied on the information provided on his manual complaint forms.  I will extrapolate the key issues from the aforementioned forms and other information provided by the Complainant in various emails prior to the hearing and I set out hereunder. 

I will deal with the preliminary issue raised by the Respondent under the heading of Findings and Conclusions. 

CA-000060331-001

The Complainant submits he told a door-to-door salesman from the Respondent company that he cannot understand verbal information and he told the salesman he was happy to give all the details he requested as long as he is given a written contract to read and understand.  The Complainant submits the salesman agreed to send it but he never received it instead monthly bills were sent to him.  The Complainant submits he is not seeking for rewards as he is financially secure, and he is reporting this as a case of defamation where the Respondent stated he understood verbal information.  The Complainant submits he reported this error and the Respondent refused to reply to his registered letters or to discuss his comprehension difficulties which is at the core of the invalid contract.

The Complainant on his ES-1 form submits he has been discriminated and harassed by the staff from the Respondent for 2/3 years which is ongoing.  The Complainant submits he suffered a burst arteriovenous malformation in the left brain in 1985 a condition which causes the following:

·        Optic nerve damage

·        Memory loss

·        Difficulty speaking

·        Confusion / inability to understand verbal sentences

The Complainant submits he is not ashamed he cannot comprehend spoken sentences as he knows it would be identity fraud if he lies and pretends that he can comprehend a verbal contract.  The Complainant submits he has no reason to do this yet only a salesman from the Respondent decided to. 

The Complainant submits he is deeply saddened how those from the Respondent refuse to recognise his disabilities and threatened him by his weaknesses purely to make a profit from his disability benefits his only income. 

The Complainant submits he made a complaint when the Respondent created this active contract that he did not understand and he submits he gave all the evidence of his disabilities.  The Complainant requests the four questions below to be answered by the Respondent:

1.      Why are the Respondent staff refusing to discuss his identity as being disabled?

2.      Why is the Respondent sending threatening forms to say electricity may be cut off in his home in January 2023 and again in October 2023 where it is illegal to cut off electricity for the vulnerable from 1st October 2023 to 31st March 2024?

3.      My name is Francis Xavier Muldowney.  I am a living man with long term disabilities as recorded by the HSE.  I am listed as ‘unfit to work’ thus I am ‘not incorporated’ and I have no title name.  Why is the Respondent sending bills to a title name Mr Frank Muldowney?

4.      Why did Mr Stephen Cline and [redacted] not reply to my letter in January 2023 which explained of my disabilities?

The Complainant states his visual and comprehension difficulties are at the core of his complaint which the Respondent refuses to discuss.  The Complainant submits the Respondent stated that he can understand verbal information which is a lie.  The Complainant submits that on a personal opinion which he believes caused this error is that his mother died in March 2020 and she had an account with the Respondent.  The Complainant submits he became the owner of the house soon after and he sent a letter to two other energy providers requesting for written information so that he could understand their offers.  The Complainant submits he did not write to the Respondent because he had no interest in continuing with them as his mother did not like the added €300 euro charge. 

The Complainant submits in his opinion the Respondent salesman took it for granted that he uses iphones websites to seek information which is incorrect.  The Complainant submits disabled citizens like himself are completely dependent on written information on paper to read and understand.

The Complainant submits that other energy providers provided him with written information through the post due to his disabilities yet the Respondent did not.  The Complainant submits he could not contract with the other providers as the Respondent had an old account with his mother and this problem still stands today.

As per written submissions

PRELIMINARY ISSUE

The Respondent submits that any part of the Claimant’s claim that occurred prior to “late 2022” is out of time.   The Claimant’s WRC Complaint Form identifies “late 2022” as the first incident of discrimination.  Therefore, anything which occurred prior to this date is not within the remit of this adjudication.  

Specifically, the contract of 8 September 2020 (which ended with the adoption of the 13 August 2021 contract) is out of the remit of these proceedings given it was entered into over 3 years and 3 months prior to the date the Complaint form was submitted and ceased to be operative over 2 years and 4 months prior to the date the Complaint was submitted.

Section 21 of the Act states that:

“(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.”

In Employee v An Employer UD1264/2008 the Employment Appeals Tribunal held that:

“The Tribunal has been set up under statute by the Oireachtas in pursuance of its constitutional powers as legislature.  The Tribunal will always have regard to legal and constitutional rights in exercising its limited jurisdiction but it cannot assume extra legal authority to hold a hearing into an alleged unfair dismissal claim which is statute barred.  Such an action would be in fundamental breach of its powers and would, quite rightly, be overturned by the courts.”

The Respondent submits on the basis of the foregoing, any discrimination claim arising in respect of the 8 September 2020 contract is statute barred as the claim for redress has been submitted more than 6 months after the date the contract was entered into/ceased to be operative.

The Respondent wishes to state at the outset that it is not certain of the exact parameters or details of the case it is facing from the Claimant.

The WRC Complaint Form is lacking detail and the Claimant’s correspondence and communication to date has been fragmented and difficult to follow.   Furthermore, it is unclear to the Respondent what the exact nature of the disability/disabilities suffered by the Claimant are.  On the basis of the Speech and Language Therapy Assessment Summary dated 2 February 2024 furnished by the Claimant, the Respondent accepts that the Claimant suffers from impaired language comprehension, but the exact extent of the Claimant’s disability is not known.

In the interests of setting out the matter clearly for the Adjudicator, the Respondent has prepared the following chronology of key dates: -

5 June 2020 – 17 June 2020: Correspondence was exchanged between the Claimant and Respondent regarding cancellation of the Claimant’s deceased mother’s account and settlement of an outstanding bill.

8 September 2020:  The Claimant and his wife signed up to a one-year contract with the Respondent after being canvassed by a door-to-door salesperson acting on behalf of the Respondent.  The contract was backdated to 6 June 2020 (the start date of the new occupier account).  As is standard for door-to-door sales, a checklist of matters demonstrating that the purchaser understood the contract was completed with the Claimant and his wife.   Due to Covid restrictions in place at the time within the Respondent, instead of a written signature, the Claimant and his wife recorded signatures on a tablet to minimise contact.

Following this interaction, a welcome pack was sent to the Claimant and his wife which contained all the information that was agreed at the point of sale. The Claimant had a 14-day cooling-off period to review this agreement and to cancel if he was unhappy with the agreement or the terms thereto.

30 September 2020:  The Claimant made a complaint to the Respondent. In this complaint, the Claimant alleges that on 29 September 2020 the Respondent’s door-to-door salesman turned up unannounced at the Claimant’s home and had “broken his ribs in another fight and looking for help.” The Claimant states in this complaint “He came by bike, he does not live in this area. I declined and Iwas extremely upset why he came.” The Respondent investigated this matter with the salesperson in question, who denied the incident ever occurred.

13 August 2021:  The Claimant and his wife signed up to a further contract with the Respondent online, through their online SSE Airtricity account.  This was done without any involvement of the Respondent’s sales team.

16 August 2021:  An email was sent to the Claimant which included links to the full details of his new contract.  It included a tariff details brochure, product terms and conditions, general terms and conditions and a privacy notice.  The tariff details stated that VAT was applicable at a rate of 13.5%. The Claimant similarly had a 14- day cooling-off period to review this agreement and to cancel if he was unhappy with the agreement or the terms thereto.

11 April 2022:  The Claimant sent a letter to the Respondent wherein he claims that he does not have to pay VAT on his bills as the Respondent is a corporation which “has no authority over a living man or woman, who lives by common law”.  In this letter, the Claimant refers to VAT as a “fictitioustax fee”.

28 April 2022: The Claimant raised a complaint with the Commission for Regulation of Utilities (“CRU”) concerning the Respondent.  The complaint states:

“A member of staff from SSE, created an account stating “I had to” read a sentence on a screen and sign to continue with their service. I could not read nor comprehend what was said. I asked for a contract on paper to read first which was dismissed. I was deceived to agree to a contract which I had never read and I do not comprehend the spoken word.”

This complaint to CRU was not notified to the Respondent until 3 June 2022.

9 May 2022:  The Respondent replied to the Claimant’s communication dated 11 April 2022, asserting its position that both the September 2020 and August 2021 contracts entered into by the Claimant were valid.

11 May 2022:  The Claimant wrote to the Respondent, claiming that the September 2020 contract was created by “coercion” and “duress” and stated that he did not recognise said contract.  The Claimant also re-raised issues concerning the door-to door salesperson.

23 May 2022:  The Respondent received notice that the Claimant was seeking to switch energy provider.  There was an amount of €534.18 outstanding on the Claimant’s account and the flagging of this debt prevented the Claimant from moving provider.

1 – 3 June 2022:  Correspondence was exchanged between the parties which essentially reiterates the aforementioned positions.  Ultimately, the Respondent dismissed the Claimant’s complaint(s) stating:

“There can be no coercion or deception from SSE Airtricity on your current contract, as you agreed to this contract online of your own free will.

Unfortunately, without any evidence to support the allegations you have made against our sales representative, we are not going to be in a position to offer any compensation. In an attempt to try and resolve your complaint, we offered to waive the early termination fees from your current contract as a gesture of goodwill.”

The Respondent notified the Claimant of his right to contact the CRU if he was dissatisfied with the outcome of his complaint(s).

3 June 2022:  The Respondent received notification of the Claimant’s complaint to the CRU. –

16 June 2022:  The Respondent furnished its response to the complaint to the CRU.

22 August 2022:  The CRU issued its decision dismissing the Claimant’s complaint against the Respondent.  In essence, the CRU found:

(i)               door-to-door sales is not an illegal business practice;

(ii)              the Claimant had an opportunity to cancel the contract during the 14 day cooling-off period;

(iii)            both the September 2020 verbal contract and the August 2021 written contract had been agreed to by the Claimant;

(iv)            the Respondent followed due process in respect of these contracts;

(v)              the Respondent is not obliged to remove the debt flag on the Claimant’s account until he pays his outstanding charges; and

(vi)            the Respondent is entitled to refuse to release staff’s personal information pursuant to GDPR.

18 October 2023:  The Claimant sent his ES-1 form to the Respondent.  The ES-1 form claims the Respondent refuses to recognises the Claimant’s disability, namely that he “cannot comprehend verbal sentences” and sets out four questions which he wishes to have answered:

(i)               “Why are SSE Airtricity staff, refusing to discuss my identity as being disabled?”

(ii)                Why are SSE Airtricity sending threatening forms to say the electricity maybe cut off in my home in January 2023 and again in October 2023, where it is illegal to cut off electricity for the vulnerable, from 1st October 2023 to March 31st, 2024?

(iii)            My name is Francis Xavier Muldowney.  I am a living man with long term disabilities as recorded by the HSE.  I am listed as "unfit to work', thus I am 'not incorporated' and I have no title name.  Why are SSE Airtricity, sending bills to a title name Mr. Frank Muldowney?

(iv)            Why did Mr. Stephen Clince and Ms. Klair Neenan, not reply to my letter in January 2023, which explained of my disabilities?

31 October 2023:  The Respondent replied to the questions raised by the Claimant as follows:

(i)               “All suppliers offer customers the opportunity to register as a vulnerable customer, which you have done. You are currently listed under the following categories:

·        Visually impaired

·        Speech impaired

·        Hearing impaired

·        Elderly

·        Elderly

·        Language difficulty

·        Language difficulty

·        Mobility impaired

From my review of the account, I can see that we have not received any form of communication from you since your previous complaint was handled by our Sales Complaint supervisor, Ciaran. Could you please advise who you have communicated with that have refused to discuss your disability?”

(ii)              “I have scanned the account and the communications sent regarding disconnection.  I can find no communication specifically related to a disconnection risk until 16/05/23 when we sent you a De-Energisation Notice statement.  The CRU’s Moratorium was in place up until 31st March 2023:

Extension to the Disconnection Moratorium for all registered vulnerable customers to six months from 1 October 2022 to 31 March 2023.”

If you can provide evidence of this communication you received in January, I will be happy to review it.

Regarding the notification in October, again I can see no notice here.  The final notice by the system regarding disconnection I can see here, is dated 06/09/23 and then an email was sent by the team on 23/09/23.  Both sent before the 2023 Moratorium began.

“Extension to the Disconnection Moratorium for all registered vulnerable customers to six months from 1 October 2022 to 31 March 2023”.

“The disconnection request submitted to ESB for your property was withdrawn on 29/09/23 and will not be attempted again until after 31/03/24.”

(iii)            “Regarding the above, your title is selected at the initial point of sale, there is no option to skip this section during the sale.  All signing customers must select a salutation. Regarding your listed name, “Frank Muldowney”, this was the name you provided during your sale in 2020.  You confirmed this as correct by agreeing and consenting to the contract.   You agreed verbally to the conditions in 2020 by stating “I Frank Muldowney understand the terms and conditions and the checklist and am happy to switch to SSE Airtricity”.  If you were unhappy, felt forced into the contract or were unclear in terms of the manner in which the contract was incepted, you had opportunity to cancel the contract within your 14-day cooling off period (penalty free).  Similarly, when you received your welcome pack and had the opportunity to review the contents and terms and conditions within, you could have cancelled the contract.  Should you wish to change your listed name to “Mr Francis Xavier Muldowney”, this can be arranged.”

(iv)            “Upon receipt of your letter dated 16/10/23, we conducted a search for the previous letter you claim to have sent. Unfortunately, we can find no record of it being received / scanned. If you wish to provide a copy of this letter in your response, I would be happy to review and address it.”

29 November 2023:  The Claimant’s ES-1 form was received by the WRC.

12 December 2023:  The Claimant submitted the within complaint to the WRC.  This form identifies “late 2022” as the first incident of discrimination and states that it is “ongoing”.   The Complaint form contains very few, if any, details of the claim.  It is accompanied by a letter wherein the Claimant states that his “visual and comprehension disabilities are the core of my complaint which SSE Airtricity refuses to discuss”.

The Respondent sets out the relevant legislative provisions from the Equal Status Act, 2000 (“the Act”) as follows:

Section 3 of the Act defines discrimination generally.

Section 4 of the Act extends the definition of discrimination on grounds of disability.

Section 5 of the Act deals with the disposal of goods and provision of services.

In accordance with section 38A of the Act, the initial burden of proof rests with the Claimant to establish facts from which it may be presumed that there has been discrimination. This requires the Claimant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In order to establish a valid prima facie case the Claimant must establish the facts from which less favourable treatment could be inferred.  In ADJ-00038980 Atilla Inanc v Compass Catering Services Ireland Limitedthe WRC stated that:

 “The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.”

The Respondent submits that the Claimant has failed to establish the primary facts necessary to establish a prima facie case of discrimination and shift the onus to the Respondent.  Therefore, the Claimant’s claim in respect of discrimination is misconceived as there is no credible evidence and certainly no facts of “sufficient significance” to demonstrate that the Respondent discriminated as against the Claimant as a result of disability.

At its height, the Claimant’s claim appears to be that he has been discriminated against on the grounds of disability because he can only understand what is written on paper and is not able to understand verbal sentences or information on screens as a result of suffering a “burst arteriovenous malformation in the left brain in 1985”.  It is for the Claimant to prove that there was a link between the alleged behaviour complained of and his disability.  It is still unclear to the Respondent how exactly the Claimant is stating that the Respondent discriminated against him in this regard.

The Respondent submits that there is no evidence of either direct or indirect discrimination against the Claimant.  As set out in the aforementioned legislative provisions, direct discrimination occurs where a person is treated less favourably than another person because the person in question has a protected characteristic (in this case disability).  Indirect discrimination occurs where an apparently neutral provision would put persons with a disability at a particular disadvantage to others without a disability or with a different disability in procuring goods or services.  The Respondent’s policy of sending a customer who has orally agreed to a contract, the written terms of that contract and affording said customer a 14-day cooling off period, means that a person suffering from the Claimant’s disability would not be disadvantaged and therefore no discrimination, whether direct or indirect, has occurred.

When determining this matter, the Respondent requests the Adjudicator to consider the following:

(i)               subsequent to entering into the contract on 8 September 2020, the Claimant received a welcome pack and was expressly afforded the opportunity to cancel his contract within a 14-day cooling off period (penalty free).  This was a written communication;

(ii)              the contract entered into online on the 13 August 2021 was entered into of the Claimant’s own volition and did not involve any engagement of sales representatives with the Claimant. Again, this was a written communication;

(iii)            the Respondent’s customer service team has followed due process in handling the complaints put forward by the Claimant.  The Respondent’s process and the manner in which it has dealt with the Claimant has been upheld by the CRU as being legitimate. The Respondent engaged with the Claimant’s complaint process via writing; and the Respondent has offered to waive the Claimant’s early termination fee to enable him to switch supplier.

The Respondent categorically denies any discrimination on the grounds of ‘disability’ as against the Claimant.

In summary:

a. Part of the claim is out of time; and

b. The Claimant has not established facts necessary to ground a prima facie case of discrimination by the Respondent.

PRELIMINARY ISSUE

The Relevant Law

Section 21 of the Equal Status Act, 2000 provides as follows:

(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 Commissioner, 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.

The Relevant Facts

This complaint was filed with the WRC on 14/12/2023.  The cognisable period or the period to be taken into account when investigating a complaint is six months ending on the date of the referral of the complaint.  Therefore, the cognisable period is from 15/06/2023 to 14/12/2023. 

Section 21 6(b) set out above provides for an extension of the time period to twelve months for reasonable cause.  For the avoidance of doubt there is no provision which allows complaints outside of a twelve-month period to be heard.

The Complainant in this case has not requested an extension of time or advanced any reasonable cause which would justify an extension of time to twelve months.  The Complainant provides the first incidence of discrimination as late 2022 “ongoing today” and the most recent date of discrimination as “last month” meaning November and December 2023.  

The provisions in the Equal Status Act which permit the consideration of historical complaints is set out in section 21 (11) as follows:

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.

The Labour Court in Hurley v. County Cork VEC [EDA 1124] has held that occurrences of alleged discrimination outside of the statutory time limit set out in the Act can only be considered by the WRC or the Labour Court where the last act relied upon within the statutory time limit and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum.  It is necessary that a discriminatory act occurred within the cognisable period in order for an event occurring outside of that period to be considered as part of what is commonly referred to as a continuum meaning a continuous act of discrimination.    

The Labour Court noted in Occipital Limited v. Joseph Hayes[EDA 184] that it was -

“settled law that in order for alleged acts of discrimination to be considered as representing a continuum of discrimination it is necessary to establish that an act of discrimination has actually occurred within the cognisable period set down by the Acts for the making of a complaint.”  [emphasis added] 

Therefore, in order for me to determine whether I can rule on the Complainant’s historic incidents of discrimination dating back to late 2022 I must consider if the Respondent committed a prohibited act within the cognisable period namely from 15/06/2023 to 14/12/2023.  [emphasis added] 

In this regard I will consider, in the first instance, alleged acts of discriminatory treatment that occurred within the limitation period. 

As noted incidents of alleged discrimination outside the time limit can only be considered if the last act relied upon within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them all part of a continuum. 

If I find these alleged incidents within the limitation period amount to unlawful treatment of the Complainant contrary to the Act I will then consider the evidence adduced on the earlier incidents complained of to establish if they are sufficiently connected to alleged incidents within the limitation period so as to make them part of a continuous act of discrimination referred to as a continuum. 

However, if I find the alleged incidents within the six months preceding the referral of the complaint to be not well-founded it follows that the earlier alleged incidents would be statute-barred.  What this means is that I must first decide whether most recent alleged incident of discrimination on the ground of disability is proven.

The Relevant Law:

The Equal Status Act 2000-2015 (ESA) as amended prohibits discrimination in the provision of goods and services, accommodation and education.  It covers the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller Community and housing assistance (only as regards the provision of accommodation). 

I reference the definition of discrimination provided in section 3 of the ESA as follows:

Discrimination (general).

3.—(1) For the purposes of this Act discrimination shall be taken to occur—

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

Or

(c) where an apparently neutral provision would put a person] referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Section 3(2)(g)

“that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)

Disability:

The interpretation section of the Equal Status Act, 2000 provides the following definition of disability:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person withoutthe condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

Section 5 of the Acts provides clear direction against prohibited conduct as follows:

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

I note the Complainant provided a Speech and Language Therapy Assessment Summary from the HSE which provides that, following an assessment the Complainant’s language, characteristics have been identified as being in line with Wernicke’s Aphasia.  I am satisfied that the Complainant’s medical condition constitutes a disability within the meaning of the Act.  I am satisfied the Respondent is providing a service within the meaning of the Act. 

Discrimination on grounds of disability occurs where a person with a disability is treated less favourably than another is, has been or would be treated, where the other person is a person without a disability or a person with a different disability. 

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts.  This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in so doing, then, and only then, is it for the Respondent to prove the contrary. 

The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.  

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit.  This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can bedrawn.  Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” [emphasis added]

Substantive Matter

I must consider if the Respondent committed a prohibited act within the cognisable period namely from 15/06/2023 to 14/12/2023.  [emphasis added] 

The Complainant sent his ES-1 form to the Respondent on 18/10/2023 setting out four questions he wanted answered and claiming that the Respondent refuses to recognise the Complainant’s disability.  The Respondent replied to the aforementioned letter on 31/10/2023 and provided answers to the questions as set out above.  This interaction between the parties during the cognisable period was initiated by the Complainant when he submitted his ES-1 form which was acknowledged and responded to by the Respondent. 

I am unable to find the Respondent’s response and acknowledgement of the form constituted a prohibited act within the cognisable period.  For completeness I refer to the “threatening forms” as cited by the Complainant on his ES-1 form as set out above.  I am unable find the issuing of what the Complainant refers to as a “threatening form” constitutes an incident of discrimination on the ground of disability.   

The plain fact is that it was a notice generated because the Complainant was in arrears.  I note this notice was subsequently withdrawn by the Respondent due to the moratorium in place for all registered vulnerable customers among which is the Complainant.     

Mindful of the findings of the Labour Court in Cork County VEC v. Hurley it is necessary that a discriminatory act occurred within the cognisable period in order for an event or events occurring outside of that period to be considered as part of a continuum as a consequence of which would bring this complaint within the jurisdiction of the WRC under the relevant legislation. 

I do not find a prohibited act was committed by the Respondent within the cognisable time period. 

Therefore, I do not have jurisdiction to consider the discriminatory treatment alleged to have occurred prior to 15/06/2023. 

For completeness I note the impugned contract at the heart of this complaint was entered into in September 2020 and for the avoidance of any possible doubt, there is no provision which allows complaints outside of a twelve-month period to be heard.  

CA-00060331-001

For the reasons set out above I find I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide that the complaint (CA-00060331-001) made pursuant to section 25 of the Equal Status Act, 1991 is not well-founded.

Continuum; time limits; statute-barred;