Complainant

Respondent

Parties

Courtney  Russell

Kilronan Castle Estate and Spa (Part of The Hanly Castle Hotel Group)

Representatives

  Self

Owen Keady BL instructed by Kane Tuohy Sols

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060806-001

03/01/2024

The Respondent is a hotel providing hospitality services to the public generally and is therefore comprehended by Section 5 of the Equal Status Act-Disposal of goods and provision of services..

On 1 January 2024 as confirmed on CCTV footage, the Complainant, his wife and two young children entered the Hotel at 12.37.44pm. They had decided to go there for some lunch. From the same CCTV footage, the family can be seen leaving the Hotel at 1.14.44pm. It is not disputed as a matter of fact that in the intervening period the family were not served. The footage shows them first entering the reception then a bar area and after a very short period leaving that bar and crossing the reception to go to an area known as the Palm Court. CCTV footage is not available for the Palm Court area.

In summary, it is the case made by Courtney Russell in his written submission and oral evidence that in the Palm Court area after a delay in receiving a service he approached a member of staff, A, who then asked the group to move to another area or the bar. Still, they were not served. However, when a white, smartly dressed couple entered the Palm Court, they observed them being prioritised by A. The Complainant and his wife, who also gave evidence at the hearing, observed a very different manner in the way in which the employee A interacted with the other couple and their family and the Complainant and his family. The Complainant and his family decided to leave. When they moved to leave, they approached A indicating their dissatisfaction, querying the manner in which they were treated. They noticed their table being moved around to accommodate the other couple. Before leaving they asked A if there was a manager around and they were directed to employee B who had a managerial role in the Hotel at the time and who gave evidence at the hearing. The Complainant and his wife questioned and implicitly criticised the manner in which they had been treated by employee A. They then left the Hotel.

The Complainant made a complaint under the Equal Status Act alleging discrimination against him in the provision of goods/services under the protected ground of race on the 1st of January 2024. The date of receipt of the complaint by the WRC was the 3rd of January 2024. Proof of postage of an ES1 Form issued to the Respondent on the same day. January 3rd was provided with a time of 16:59:49. At 18:09 on the same day the Complainant emailed the WRC as follows:

“I made an online complaint but did not realise that I needed to send an ES1 Form first to the Respondent. Please find attached ES1 Form and the proof of tracked postage to the Respondent for your records.”

As the notification to the Respondent does not comply with the terms of section 21(2) of the Equal Status Act as amended, this noncompliance with the terms of the legislation in respect of notification to a respondent is a preliminary issue in this case.

The Respondent denies any discrimination against the Complainant acknowledging that the service provided to the Complainant by the Hotel staff on the day in question fell below an acceptable standard. However, it is the position of the Respondent that any difficulties were caused not by way of a link with the Complainant’s race but by pressure of work in the Hotel on the day in question, New Year’s Day. When the Complainant approached Mr B the latter apologised and offered to serve the Complainant and his family, but his offer was rejected. Employee A who was directly involved with the service to the Complainant and his family has since left the employment and is no longer in the country.

On the preliminary issue, by way of reference to section 21(2) the Respondent made a submission to the effect that because of the failure of the Complainant to comply with the provisions of the Act at the relevant section the adjudication officer did not have jurisdiction in the matter as referred. Reference was made to previous decisions of the WRC. The Respondent submitted that, while there is one possible exception to the requirement set out at section 21(3) the explanations of the Complainant do not meet the threshold of “exceptionally” as set out in section 21(3)(a)(ii).

The requirements of section 21(2) of the Equal Status Act in terms of notification to respondents was brought to the attention of the parties at the hearing convened on 21st May 2024. Neither party had legal representation at that time. The hearing was adjourned to allow the Complainant to make a submission on the application of section 21 in his case and the Respondent had the opportunity to issue a written reply. Further disputing submissions were received and I decided to reconvene the hearing to allow the preliminary issue to be fully tested and I advised the parties that I would also hear the complaint in full at the reconvened hearing, to which there was no objection.

Preliminary Issue:  Section 21 of the Equal Status Act

The Complainant provided a written submission on the 4th of June 2024 on the preliminary issue advised to him at the hearing on the 21st of May 2024 and made oral submissions at the resumed hearing. His position can be summarised as follows.

The Complainant does not have a legal background or legal representation in this case.

The Complainant learnt about a WRC complaints procedure through the free EAP service provided by Laya Healthcare who give free counselling and legal advice over the phone. They advised that he could provide a complaint online at the WRC website.

The Complainant then completed an online complaint form and submitted the complaint online:

“I noticed there was a requirement related to proof of postage for an ES1 Form which I could not complete. I called the EAP service again and the person giving the legal advice did not know about an ES1 Form. I then called the WRC and explained the situation – that I had submitted my complaint online but did not send a notification of the ES1 Form to Kilronan Castle. The person I spoke to said that I should immediately post the ES1 Form to Kilronan Castle outlining my complaint and then send proof of this postage to the submissions email address. I completed the ES1 Form and attached an ES2 Form in the envelope and then posted this by recorded post to Kilronan Castle on 03 January. I then emailed the proof of postage to the submissions email address as requested by the WRC advisor. See attached the email and proof of postage for your file. I assumed that the matter had been safely dealt with following the advice from the WRC.”

In additional points, the Complainant stated in writing, supported in evidence at the hearing that Kilronan Castle did not reply to his post and ES1 Form and if they had he might have withdrawn his complaint while also stating that the explanations they provided to the WRC would not have changed his mind as they were not accepted. He contends that the Respondent is not prejudiced in any way in this matter. He consistently relies on the conversation which he had with Laya Healthcare and more significantly with the WRC. At the hearing the Complainant pointed to the fact that the issue was raised by the adjudication officer and not by the Respondent prior to or at the hearing in May 2024.

Preliminary Issue (section 21 of the Equal Status Act)

In their first submission on the 7th of June 2024 the Respondent advised that they received the ES1 Form on the 4th of January 2024 and were in the process of responding to the complaint when they received the formal notification from the WRC one week later on the 12th of January 2024:

“We would have welcomed an opportunity to address the complaint directly with Mr Russell, however we are of the opinion that all communication needed to go through the WRC once the formal process was initiated. It is our opinion that our letter dated 15 January 24 to the WRC is our “response” to the complaint.”

In the full submission to the reconvened hearing the Respondent cited section 21(2) of the legislation which they described as a “mandatory notification requirement”. The submission contended that it is a condition precedent to any claim being brought under the Act. This reflects the clear intention of the Oireachtas to ensure that before any such claim can be brought, an intendent respondent would be informed fully of the details of the alleged contravention and have an opportunity to respond. Self-evidently, this requirement was intended to require direct engagement between the parties, prior to the jurisdiction of the WRC being invoked.

The Respondent cited Borsca v Bank of Ireland, ADJ-00040452, in support of the contention that it is clear that an intended complainant is required to serve an ES1 “before seeking redress under “the Acts””. The submission then went on to deal with the question of exceptionally as set out in section 21(3) of the Act. The Respondent’s submission states:

“It is not in dispute that the Complainant in this case lodged this claim with the WRC at 3.35pm on the 3rd of January 2024. On that form, the Complainant was requested to provide details of his compliance with the provisions of s21(2) of the Acts. It is also not disputed that, after the Complainant submitted this complaint to the WRC, he sent an ES1 Form to the Respondent setting out the details of his claim.”

Referring to the requirement for an application for the exceptional circumstances clause of section 21(3) to be applied, the Respondent submitted:

“In any event, it is clear that he reasons now offered by the Complainant for his failure to deliver an ES1 notification before initiating this claim, could not possibly meet the threshold of exceptional circumstances which may justify or permit the setting aside of this mandatory statutory requirement. It would appear that the only excuse offered by the Complainant for this failure is the fact that he is not legally represented and that he was not at the time in receipt of legal advice. It is well established that this is not a valid justification referring to Brooks v The Commissioner of An Garda Síochána, ADJ-00012145 where an extension of time was sought under section 21(3)(a)(i). It should be noted that an application for an extension of time under that section carries a lower threshold and does not require the standard of exceptionality to be met. It is submitted that the Complainant’s claim ought to be dismissed on this ground of jurisdiction by application of section 21 of the Act.”

Preliminary Issue-procedures under Section 21 of the Equal Status Act

I have considered this matter very carefully including allowing an adjournment and later, the matter to be explored at an in-person hearing. The Complainant was not required to deal with the matter on the first day of hearing but received time   to consider his position and to take any advice on the matter.

The terminology in section 21 is worth setting out at this point:

“(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.”

While the Complainant did not provide a formal application for the extension of section 21(3)(a)(ii)to his circumstances, I am of the view that where a complainant makes an argument against the strict application of section 21(2), they are in effect making an application that the terms of section 21(3) should be applied to their circumstances. This is particularly the case when the person is a lay litigant, and I see no loss to the Respondent in taking this approach.

I also heard the matter in full, reserving my position on the preliminary issue. Strictly speaking this is potentially contrary to the terms of Section 21(4), a reference to the terms of subsection (4) which states:

“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.”

This can be read as meaning that the matter shall not be investigated by an adjudication officer unless the terms of section 21(2) have been followed and a period of a month has elapsed during which time, the respondent has the opportunity to address the matter or alternatively that the exemption from the terms of 21(2) has been decided. However, I take the view that hearing a complaint is not a full investigation of a complaint, that an investigation is only complete when the findings and conclusions are issued together with a decision. As can be seen in this case I will not be proceeding to decide on the substance of the complaint for the reasons as set out related to section 21(2) and (3) and 94) in addressing the preliminary issue.

In all of my procedural approaches on the preliminary issues I tended to favour the Complainant and to allow him the time and the opportunity to be fully heard allowing for the fact that he is a lay litigant. Now however, I must deal with the substance of the preliminary issue.  I want to deal with the Complainant’s points in what I believe is the sequence in which they were presented at the hearing.

The absence of legal advice.

I am satisfied that the Complainant was unprepared for the preliminary issue to be raised by the adjudication officer at the hearing in May 2024. Neither he nor the Respondent side had legal representation on that day. Legal advisers for the Respondent did not come on record until sometime later. The Complainant in a later point at the subsequent in-person hearing on the matter referred to the adjudication officer raising the issue rather than the Respondent side. I believe that I need to deal with both of these points. Firstly, in adjourning the hearing in May 2024 the Complainant was provided with ample opportunity to obtain any advice that he required if he considered that this was a matter of law which required legal advice or opinion or representation. The facts of the matter were in any event clear in that the Complainant had not complied with the legislation as set out.

 I do not consider this contention by the Complainant meets the threshold of exceptional as required under the relevant subsection.

The issue of noncompliance with Section 21 was raised by the Adjudication Officer and not the Respondent

Regarding the fact that the matter of compliance with section 21 was raised by the adjudication officer, I am satisfied that I had an obligation to do so. It would be frankly absurd if an adjudication officer observed a potential or actual breach of the procedural requirements in respect of any piece of legislation but simply because the Respondent was not aware of the potential breach or had not observed that there was such a breach the adjudication officer could or should ignore the legislation and proceed as though something which was obvious and a matter of law was unimportant.

I do not consider this contention by the Complainant meets the threshold of exceptional as required under the relevant subsection.

The ‘no prejudice’ argument

The reference to the Respondent suffering no prejudice as they had not raised the issue in the first instance is a factor to be considered, consistent with the terms of section 21(3)(b) (ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”

This is the contention of most substance made by the Complainant in that his complaint was notified to the Respondent in the ES1 within days of its occurrence and they investigated the matter at the time and replied to the WRC. We know from the evidence at the hearing, that the witness and former employee B had reported an incident with a customer on 1 January although no record of the complaint was entered in the complaints record in the hotel.  It should be noted however, that until the Complainant provided the ES1 and then the complaint was notified to them by the WRC, the Respondent had no knowledge of any suggestion or inference of a complaint of discrimination on grounds of race, as no such suggestion was raised with employee A or the manager, employee B, on the day in question as evidenced at the hearing. On balance in the circumstances, I do not consider this contention, as the only one of some merit, to be sufficient to meet the threshold of exceptional circumstances as provided for in the subsection 21(3).

 I did ask the Respondent representative whether he accepted that the imposition of such a clause within the legislation was in any way an impediment or barrier to a complainant in accessing European Directive based legislation. I accept his contention that the administrative arrangements for the legislation are a matter for individual states and this is not an onerous requirement such that the problem identified in this case does not occur to any great extent in terms of complaints to the WRC. I would qualify this conclusion by adding that there will nonetheless be exceptional circumstances which allow for latitude to a Complainant. To my mind that this should occur at all is unfortunate and it does happen as can be seen from the very case cited by the Respondent, Borsca v Bank of Ireland. However, in my experience the failure to follow the procedures as required as in not notifying the Respondent in advance of the WRC occurs in a minority of such complaints investigated by the WRC. I also accept that the obligations contained in 21(2) are not very onerous or at least would not have been onerous for this Complainant to follow correctly.

Advice from the WRC and Laya Healthcare

Aside from the procedural contentions as discussed, the Complainant’s case for exceptional circumstances relies wholly or mainly on the discussions which he held with WRC staff on the 3rd of January 2024. Obviously, I am not party to the individual conversations and the nuances of such conversations as they occur. However, whatever may have happened it would be very unfortunate if a member of the public were misadvised of the importance of following the correct procedures in making any complaint to the WRC. Accepting on the basis of sworn evidence that the Complainant did in fact contact the WRC after he had completed the online complaint form and then asked what he should do about the ES1 form as he had not issued one, the Complainant had by that time completed a complaint form which specifically asked the following questions:

“What date did you notify the person/service provider using the ES1 Form?”

“Have you received a reply from the person/service provider on the ES2 Form?”

In spite of these questions the Complainant proceeded to lodge his complaint online. It is not acceptable that he should then seek to blame the member of staff in the WRC in circumstances where the requirements regarding the ES1 form were clear. Or could have been checked through the WRC website which provides information about making a complaint under the Equal Status Act including the obligation to notify the Respondent  before submitting the complaint form  to the WRC.  Aside from the questions on the complaint form as quoted above, the ES1 form also refers to the waiting periods for replying to the ES1 and the intention after that period of one month if there is no reply or an unsatisfactory reply.

“Please note that I intend to seek redress under the Equal Status Acts 2000-2015. If I am not satisfied with the reply I receive, or if you fail to reply within a month after it was sent to you…”.

The complaint form was submitted to the WRC at 3.35, the ES1 was posted at 16.59. At 18.09 the Complainant emailed the WRC:

 ‘I made an online complaint but did not realise that Ineeded to send an ES1 form. Please find attached ES1 form and the proof of tracked postage to the Respondent for your records.’ 

The complaint form and the ES1 form posed questions related to the timelines and notification. It was clear to the Complainant that there was a requirement to await a month before referring a matter to the WRC, however he proceeded to complete and submit the complaint form. The facts indicate that the Complainant had a chance to check out the requirements of the legislation regarding an ES1 form (or its equivalent) before submitting the complaint form online. The Complainant presents as an articulate, very literate person who gives great care and consideration to the points that he is going to make whether they are in written or oral form and for this I commend him and his presentation in general at the hearing of this complaint. No reasoning was provided as to why the complaint had to be submitted with such urgency prior to obtaining clarification from the WRC if there was any doubt about the procedures to be followed. The facts and the sequence of events suggest that the Complainant deliberately chose to submit the complaint and to raise the question of the ES1 Form afterwards. Furthermore, on completing  the ES1 Form he chose to ignore section 7 and its meaning and to rely almost entirely on the earlier conversation with a member of staff in the WRC  I do not consider this contention on the part of the Complainant  to be fair or reasonable  as it entirely neglects his own part in this matter, the information he did have from the two forms he completed on the same day and the choices he made.

For the sake of completeness repeated reference was made to advice provided to the Complainant by Laya Healthcare. Obviously, while it is matter for that insurance provider to decide how they advise their clients, it has no bearing whatsoever on the application of the law by an adjudication officer of the WRC.

 The Complainant will have seen the reliance placed by the Respondent on precedent decisions by adjudication officers in similar circumstances. To allow the circumstances in this case to set a precedent for what would be regarded as exceptional circumstances under section 21(3) and to effectively set aside the terms of section 21(2) in its entirety, which is the extent which would be required in this instance, would in my opinion, create an untenable precedent for adjudication officers to be presented with in the future. To accept these circumstances as justifying the application of the term exceptionally would potentially undermine the entire process put in place by the Oireachtas in respect of this legislation and the fundamental requirement in usual circumstances to serve notice on a potential respondent and to provide them with a period of time to inquire into the matter and to respond before referring a complaint to the WRC.

In summary I find for the Respondent on the preliminary matter and therefore issue a decision to the effect that the complaint is statute barred by application of Section 21 of the Equal Status Act 2000, as amended..

CA-00060806-001 As the Complainant did not comply with the terms of Section 21(2) of the Equal Status Act 2000 as amended and I find that he has not satisfied the test for exceptional circumstances as provided for is Section 21(3)(a)(ii) I shall not investigate the complaint further as provided for in Section 21(4).

Discrimination race. Section 21 procedures-preliminary issue