ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046086

Parties:

Complaint:

Date of Adjudication Hearing:  04/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Acts, 2000 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent discriminated against the Complainant on grounds of disability.

Summary of Complainant’s Case:

The Complainant gave written and oral evidence summarised as follows:

referring to particular Doctors involved in his care he stated that complaints are not against them personally and he intends to preserve their anonymity.   He referred to them as follows:

Consultant A : The First Consultant involved in his care whom I expressly sought in 2013 to no longer be treated by on foot of a breakdown in our therapeutic relationship.

Consultant B : The Psychiatrist he was then referred, subsequently complained of by him to the respondents in 2021 and whom was involved in  his care from 2013 to 2016

Consultant C: The Psychiatrist involved in his care during the complaint process with the respondents.

He requested the hearing to consider his submission and points made in conjunction with all of the other substantive issues raised in his notifications to the respondents and with the evidence he submitted to this Commission.

He stated that he is 57 years of age and has lived with a mental health disability since early adulthood . As a consequence he was fortunate to have met and been treated by many caring and compassionate mental health practitioners including Psychiatrists, psychologists, Nurses, therapists and auxiliary staff. Prior to the events contained in these complaints he never had occasion to raise any issues or concerns  with  regard to the services or his previous caregivers

The Complainant stated that his complaint of discrimination against the respondents under the Equal Status Acts 2000-2015 provision of goods and services goes back 12 years to 2012 with his most recent complaint of victimisation under the same Act occurring in 2023/2024.

He stated that he has been persistently discriminated against by certain Clinicians and administration staff within the respondent’s service.

He submitted information from respected and qualified individuals and organisations which highlights the lack of impartiality and potential for mistreatment of complainants under the current complaint system within the mental health services. Mental Health Reform have been calling for many years for an independent and impartial complaint body for the receipt and management in the mental health services and for a change to the 2004 Health Act in this regard. He believes that this evidence will support his arguments that a complaint made by him initially in 2012 and again to the respondents in 2021 were not afforded impartial consideration or investigation under the 2004 Health Act and making those complaints led to his subsequent mistreatment by the respondents.

The Complainant submitted many documents from 2012 and subsequent years, 2020 and 2021 regarding complaints he submitted about a consultant B.  His current complaint of discrimination on the grounds of disability concerns his treatment by the Respondent in dealing with certain information requests.

In 2021 he made a request for information to the Respondent through the FOI process.  On 10/02/23 he telephoned the FOI & Complaint Internal Review Officer for the second time and left a message seeking a call back regarding the missed deadline and an update regarding the progress of his application. On 15/02/23 he contacted the Office of the Information Commissioner by email outlining the above. He received no acknowledgement of his application or these phone calls. This act/omission is the last episode of discrimination and falls within the 2 month period that is required under the WRC procedures.

The Complainant referred to a verbal complaint he made in 2020 and a draft complaint he made in 2021.  He stated that he never received a response either at all or on a satisfactory basis.

On the 09/09/22 he made an FOI application to the Respondent seeking notes, memos, telephone records etc under 12 headings which pertained to the Complaint and Internal Review Process. The FOI officer only acknowledged receipt of his application after the intervention of the Information Commissioner some two months after it was signed for in headquarters. He sought some clarification regarding dates in the FOI officer’s communication to him and asked why it had taken so long to acknowledge receipt of his application. The individual who responded clarified some issues but did not acknowledge or answer his question regarding the obvious breach in timeframe for issuing a response to him.

He stated that submit that he has been stigmatised and discriminated against by particular people during certain periods in his care. He believes that this was enabled and compounded by incident reporting and patient record processes that did not accord with sound administrative practice under Section 46 & subsections of the 2004 Health Act.

When he reported it he was then subjected to further discrimination and victimisation by the people charged with protecting him in such a situation. This was exacerbated by a complete lack of proper investigation and administration of his complaint. He submits that because of his mental health disability his complaint and applications through the Freedom of Information Act were not treated with the same validity as those made by service users in other areas of the health services and as a consequence his rights under said legislation were completely ignored. The HSE who were ultimately responsible for his mental health welfare during this entire process stonewalled him and frustrated his efforts to be heard and to have his complaints listened to and responded to in a timely manner.

Summary of Respondent’s Case:

The Complainant states that the discrimination that he is alleged to have suffered occurred on dates between 2012 and 10 February 2023.

The Complainant has made numerous allegations of discrimination in both his ES-1 form and his original complaint form. To date, the Complainant has not provided the Respondent with sufficient information to determine precisely how the Respondent is alleged to have discriminated against the Complainant and which instances of discrimination the Complainant is seeking to rely on in making his claim.

The Respondent fully denies all allegations made by the Complainant that he was discriminated against as compared with any other service user on grounds of disability (as detailed below). The Respondent further submits that the Complainant is not within the statutory timeframe set out in the Act to bring a claim in respect of any of the allegations which he has referred to.

Preliminary issue – time limits

The Complainant has alleged that the Respondent has discriminated against him on multiple occasions between 2012 and February 2023, contrary to section 21 of the Act, on the basis that the Complainant has a mental health disability. From review of his complaint, the main instances of alleged discrimination referred to by the Complainant appear to relate to the:

• psychiatric care that the Complainant received from the Respondent;
• handling of his complaint to the HSE;
• treatment of the Complainant’s FOI requests and storage of his medical files; and
• referral, on the Complainant’s medical file, to a diagnosis with which the Complainant did not agree.

It is submitted that each of these instances of alleged discrimination are outside of the statutory timeframe set out under section 27 of the Act for the making of a discrimination claim.

Section 27(6) of the Act provides that:

“(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 …. 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.

In addition to section 27(6), section 21(2) of the Act provides that before seeking redress under the Act, a complainant must firstly, “within 2 months after the prohibited conduct 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 (by means of an ES-1 notification form) of – (i) the nature of the allegation, (ii) the complainant’s intention….to seek redress.. and …. (b) question the respondent in writing so as to obtain material information.”

The ES-1 form provided by the Complainant is dated 24 February 2023. The instances of alleged discrimination that seem to form the basis of the Complainant’s claim appear to have occurred more than 2 months prior to this date. The Complainant therefore has not complied with section 21(2) of the Act and should not be permitted to bring a complaint against the Respondent in respect of any allegations that occurred more than 2 months prior to the date of his ES-1 form.

Section 21(2) does provide that where one or more incidents of discrimination are alleged to have occurred, the complainant may notify the respondent within 2 months of the last occurrence of discrimination. However, it is submitted by the Respondent that the Complainant has not identified any instances of discrimination that occurred in the two months prior to the issuing of the ES-1 form by the Complainant. The last instance of alleged discrimination that the Complainant appears to have referred to seems to have occurred more than 2 months prior to the issuing of the ES-1 form in February 2023, meaning that the Complainant is out of time to bring this claim.

It is further submitted that even if the Complainant has identified an incident of discrimination during the period of 2 months prior to the issuing of the ES-1 form by the Complainant, there is no evidence that any such incident is connected to any of the other alleged instances of discrimination referred to by the Complainant (ie ongoing discriminatory conduct).

Under section 21(11) of the Act, ongoing discriminatory conduct is said to occur where: “if the act constituting it (i.e. the discrimination) extends over a period, at the end of period, or (b) if it arises by virtue of a provision which operates over a period, throughout the period.”

There is no evidence in this case that any ongoing discrimination occurred against the Complainant. None of the incidents of alleged discrimination referred to by the Complainant appear to be connected.

In the decision of a Medical Student v a Third Level College (ADJ-00040301) dated 9 November 2023, a Complainant had made a number of allegations of discrimination against the Respondent, some of which were statute-barred. The WRC held that these incidents were not sufficiently similar to amount to one continuous act of discrimination. The WRC determined that each act of alleged discrimination was a separate incident and the fact that each incident was described by the Complainant as a discriminatory act was not sufficient to meet the requirements of section 21(11).

In Hurley v County Cork VEC (EDA1124) the Labour Court stated that occurrences of alleged discrimination that have outside 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 was within the statutory time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum.

There is no evidence that any of the alleged instances of discrimination referred to by the Complainant are sufficiently linked to form part of a continuous act of discrimination. All of these alleged incidents are separate and therefore the Respondent has not demonstrated that they are within the statutory time limit for the bringing a claim of discrimination under the Act.

Further, the last act of discrimination alleged by the Complainant refers to the failure of the Respondent to reply to requests from him under Freedom of Information (FOI).  It is submitted that the use of the Equal Status Act is misconceived in that the Act is designed to protect against discrimination in access to goods and services, not to protect against failure in relation to FOI requests.  This is a fundamental point that the Office of the Information Commissioner or the Data Protection Office are the more appropriate for a for the Complainant to process his complaints.

For clarification, the following is the sequence of events in relation to the Complainant’s requests for information:

In September 2022, an additional FOI request was made by the Complainant. This request sought information from the HSE relating to the complaint that he had made against a Consultant B.

The Complainant’s request was partially granted by the Respondent. The Respondent conducted searches of all records held by persons named in the request made by the Complainant and with the exception of Consultant B, provided the Complainant with copies of all records held by those persons. In accordance with section 37 of the Freedom of Information Acts, certain records containing the personal information of individuals were partially redacted before being released to the Complainant. 

In dealing with the Complainant’s request, the Respondent considered that a number of records held were exempt from release in accordance with section 37(1) of the Freedom of Information Acts and did not come within the scope of the limited public interest exemption set out under section 37(5) of the Freedom of Information Acts. The Respondent additionally informed the Complainant in accordance with section 15(1)(a) that a number of the records requested did not exist, e.g. phone conversations that were not recorded.

The Complainant sought an internal review of this decision and in January 2023 made a complaint to the Office of the Information Commissioner alleging that the Respondent had acted unlawfully in refusing to comply with a request made by the Complainant under the Freedom of Information Acts. The Respondent was asked by the Information Commissioner to provide a response to the Complainant’s complaint.

The Complainant alleges that the Respondent discriminated against him by refusing to provide him with certain information sought pursuant to this FOI request and regarding the manner in which records relating to the Complainant’s medical history were stored by the Respondent. The Complainant fully denies these allegations. The Complainant received the information and documentation that he was entitled to under the Freedom of Information Acts.

The Complainant was not discriminated against in respect of any aspect of his FOI request and was treated in the same manner as any other individual would have been. At no stage did the Respondent discriminate against the Complainant, on grounds of disability or otherwise. All records relating to the Complainant’s treatment by the Respondent were held in a secure manner.

Notwithstanding the Respondent’s position that the Complainant is outside the statutory time limit to bring a claim under the Act, it is submitted that the Complainant has not met the burden of proof required by the Act in respect of a discrimination claim.

The Respondent accepts that it is a service provider within the meaning of the Act.

Section 5 of the Act prohibits discrimination by service providers: “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”.

Burden of Proof

Section 38A of the Act sets out the burden of proof which applies in a discrimination claim. It requires the Complainant to establish, in the first instance, facts which can be relied upon to assert that discriminatory conduct has occurred. Where such facts are established by a complainant, it is for the respondent to prove the absence of discrimination.

The test for applying this provision (and the analogous provisions set out under section 85A of the Employment Equality Acts 1998 – 2015) have been set out in a number of WRC and Labour Court decisions. The Complainant is required to prove the primary facts upon which he relies to raise an inference of discrimination. It is only if this initial burden is discharged and the facts are of sufficient significance to raise a presumption of discrimination, that the burden of proving that no discrimination occurred passes to the Respondent. If the Complainant does not discharge this initial probative burden, his case cannot succeed (Southern Health Board v Mitchell [2001] E.L.R. 201).

The Respondent refers to Labour Court findings in relation to the cases of Valpeters v Melbury Developments Limited [2010] E.L.R. 64, and Graham Anthony & Company Limited v Mary Margetts EDA 038.  In the latter case, the Court, in describing the evidential burden which must be discharged by a Complainant before a prima facie case of discrimination can be said to have been established, stated that: “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 occurred.”

The Complainant has failed to meet the burden of proof in this claim. The Complainant has made multiple allegations of discrimination against the Respondent but has not produced any facts or evidence to indicate that the basis of any of the Respondent’s actions related directly or indirectly to the Complainant having a disability.

Failure to identify a comparator

In addition to failing to discharge the burden of proof set out in the Act, the Complainant has also failed to identify a comparator for the purposes of his claim. Section 3(1) of the Equal Status Acts provides, inter alia, that: “discrimination should be taken to occur 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 sub-section (2) (in this Act referred to as the “discriminatory grounds”)”. Section 3(2)(g) provides that for the purpose of a disability discrimination claim made under section 3(1), “one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”

The Complainant has not provided any evidence to show that he was treated less favourably than another person is, was or would have been as a result of his mental health disability. The Complainant has not met the requirements of section 3(1) and therefore succeed with this complaint.

The Respondent rejects each of the claims made by the Complainant. The Complainant was not treated in a manner contrary to the Act. At no point did the Respondent treat the Complainant in a less favourable manner than another individual based on or motivated by the Complainant’s mental health disability.

In circumstances where the Complainant’s is outside of the statutory time limits for bringing a claim under the Act, the Court should refuse to grant the Complainant the relief sought by him and should dismiss the claim.

Findings and Conclusions:

The first issue I address is that of time limits for bringing a complaint.

Section 21 provides:

• (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.

….

(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.

This complaint was received on 25/05/2023.  The cognisable period therefore is from 26/11/2022.

The Complainant states that the most recent prohibited act was 10/02/2023 at which point he had not received required information from the Respondent within determined deadlines.

It is noted that the Complainant’s other complaints against the Respondent go back over some 12 years and he submitted many documents outlining the history of his interactions with the Respondent.   The provisions in the Equal Status Act which permits the consideration of historical complaints lies 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 (EDA1124) has stated that occurrences of alleged discrimination outside 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 was within the statutory time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum.

In order for me to determine whether I can rule on the Complainant’s historical complaints under the Equal Status Acts I must consider did the Respondent commit a prohibited act in the period from 26/11/2022.

The Complainant states that the Respondent discriminated against him “under the Freedom of Information Act” and cites the latest date of discrimination as 10/02/2023.  This relates to the Respondent’s failure to adhere to deadlines regarding provision of information under the FOI Act.  The Complainant submitted the finding of the FOI office in relation to a review of the information requests by the Complainant and the Respondent, extract as follows:

I understand that the applicant is frustrated with the HSE’s responses and lack of records located in this case. I also accept that the length of time taken to process his request did not meet the timeframes set out in the FOI Act. In this regard, I note that the HSE has not explained to the applicant why a decision on his original request, date stamped as having been received by the HSE on 3 October 2022, did not issue until 6 December 2022. I also note that its initial decision did not address all parts of his request, and that an internal review decision did not issue until he came to this office. I would expect the HSE to have regard to its obligations under the FOI Act to issue decisions in a timely fashion in future.

These findings are critical of the Respondent, and clearly outline the shortcomings of the Respondent in providing information to the Complainant in a timely manner.

I now address the question as to whether this tardiness, lack of full response and lack of records constituted discrimination against the Complainant in this instant case. 

Burden of proof

Section 38A of the Act provides for the burden of proof on the Complainant in the first instance:

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.

In Melbury Developments v Arturs Valpeters, EDA0917, the Labour Court stated in relation to the Employment Act which contains the same provision for burden of proof:

“Section 85A of the Act 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.

” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” 

Comparator

On the question of a comparator, in cases involving less favourable treatment, a comparator can be actual or hypothetical. (Determination EDA1310, Henry Denny v Rohan, in which the Labour Court followed the decision of the House of Lords to that effect in Shamoon v Chief Constable of the RUC [2003] IRLR 258). A hypothetical comparator can be constructed by asking why the complainant was treated as he was. If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic. The Complainant in this case, alleges discrimination on the grounds of disability and that the Respondent discriminated against him by failure to provide information to him in a timely manner.  An appropriate comparator is a person in a similar situation who does not have a disability or a person who has a different disability. In this case no named comparator with a different disability was put forward for consideration and therefore it follows that the appropriate comparator in this case is a person in a similar situation who does not have a disability or has a different disability.     In this instant case, it has been demonstrated that the Respondent has been tardy to say the least in the manner of handling the Complainant’s requests.  However, in the absence of a comparable situation where a service user with no disability or with a different disability has been treated more favourably, I conclude that no prima facie case has been established and I find the complaint to be not well founded.  As found therefore, I do not have jurisdiction to consider the complaints the Complainant has against the Respondent going back over some 12 years.  The complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have decided that the Complainant has not established a prima facie case to discharge the burden of proof on him in the first instant and the complaint is not well founded.

Dated: 20th May, 2024 

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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