ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049901

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 EqualStatus Act, 2000,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 Complainant contends that he was victimised by the Respondent for bringing a complaint against it under the Equal Status Act 2000.

Summary of Complainant’s Case:

The Complainant submitted a complaint under the Equal Status Act in May 2023.  That complaint centred around his treatment by the Respondent in their dealings with him over some 12 years.             The most recent discriminatory act in that case, he contended was when the Respondent failed to provide him with information or reply to FOI requests from him in a timely manner.              

In this instant case, he contends that he was victimised for bringing that complaint.  Specifically, he referred to a Parliamentary Question and answer to it which the Respondent failed to communicate with him and failed to provide any information to him regarding the content of the response. 

In his written and oral submissions, the Complainant stated his case as follows:

The respondents have persistently discriminated against him with regard to the timeframes and the provision of information as contained in section 12 of the 2014 Freedom of Information Act .

It took him two years to obtain copies of his full Clinical File.  One year of delay was because over fifty sheets of Psychology notes apparently “did not exist”. These were later apparently found off-site in the Psychology department, the delay being that these notes ought to have been stored in the same active file as all of his other multi-disciplinary notes in accordance with the respondents own policies.

After a recent review the Information Commissioner wrote the following about the respondents handling of his requests to them:

“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”

Even after submitting his complaint to the WRC under the Equal Status Act the respondents have sought to victimise him under the same 2014 FOI Act. In the same Information Commission review referred to earlier, the respondents undertook to provide him with a record of a parliamentary question which was asked by a TD of them regarding the complaint process in his case. He has never seen this question and up until the review he didn't even know it had been asked . But he did feel it would be pertinent to the hearing here in relation to his original complaint under the Equal Status Act so he did as the HSE indicated and he applied for it under FOI. Despite their undertaking to the Information Commission the respondents once again ignored his application. He believes the withholding of this information was designed to victimise him for bringing an Equal Status Complaint to the WRC and to deny him the opportunity to supply further supportive evidence in his complaint.

Summary of Respondent’s Case:

Further, the act of discrimination and victimisation 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.

The Complainant 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 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 submits that there was a delay in providing information to the Complainant.  In the first instance, the matter of replying to the PQ was prioritised.    The Respondent undertakes to provide the PQ information to the Complainant immediately by registered post.                      However, it is submitted that a slowness in response and missing exact deadlines for replies does not amount to discrimination or victimisation.

Findings and Conclusions:

The Complainant contends that the Respondent victimised him for having submitted a complaint under the Equal Status Act in May 2023.  This instant complaint was received by the WRC on 25/01/2024.  The Complainant notified the Respondent of his intention to seek redress under the Equal Status Act on foot of the Respondent’s failure to provide him with information regarding a Parliamentary Question submitted in relation to his case and the Respondent’s handling of his complaints and requests for information.  

Applicable law

Section 3 of the Act is the relevant section relating to victimisation.

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,

….

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

 ….

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

It has been established and admitted by the Respondent that there have been delays in providing the Complainant with replies to FOI requests and deadlines were missed.  The Office of the Information Commissioner has been critical of the Respondent and stated that the frustrations of the Complainant are understandable.  Likewise, in this instant case, there was a failure on the part of the Respondent to provide a reply to the Complainant when he sought information on the PQ issue.        

The question is did the Respondent’s lack of response constitute victimisation? 

The definition of victimisation from the Oxford Dictionary is “the action of singling someone out for cruel or unjust treatment”.  The Respondent in this case admitted their failings and undertook to remedy any shortfall in information particularly in relation to the PQ issue.     

In order to succeed in his complaint, the Complainant must establish that he has been treated less favourably than another person has been who has not taken a complaint against the Respondent.          I note no Comparator has been cited.  I further note the Respondent’s acceptance of their failure to respond to the Complainant in a timely manner and their undertaking to provide him with the PQ information.   In all the circumstances, I find that the Respondent has been tardy in the extreme in their information provision obligations but has not victimised the Complainant for having brought a complaint against it under the Equal Status Act.  

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 complaint is not well founded.

Dated:   20th of May 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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