Complainant

Respondent

Anonymised Parties

A Parent (case taken on behalf of a daughter)

A Boarding School

Representatives

Stuart Gilhooly S.C. of HJ Ward LLP

Rosemary Mallon B.L. instructed by Lorcan Maule Mason Hayes & Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060187-001

22/11/2023

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 22nd November 2023.

The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and supplemental documentary evidence in support of the case brought on behalf of her minor daughter. These documents were shared with the Respondent. No objection was raised to any of the materials relied upon by the Complainant. The Complainant claimed that the Respondent failed to provide her daughter, who suffers from diabetes, with reasonable accommodation. The Complainant and the minor’s father attended the hearing and gave evidence on behalf of their daughter.  

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent provided me with comprehensive written submissions on the 5th March 2024. This was also shared with the Complainant. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. The Respondent denied that it failed to provide the Complainant’s daughter with reasonable accommodation.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In making these findings, I have considered the documentation submitted in advance of the hearing, the oral evidence adduced at the hearing and the oral and written submissions made by and on behalf of the parties.

Preliminary Issue: Notification

The Complainant referred the within complaint on behalf of her daughter to the WRC on the 22nd November 2023. In addition, she referred a separate complaint against a national school which was withdrawn on the 9th September 2024. It was accepted at the hearing that the Respondent and the national school were two separate entities.

From a consideration of the documentation furnished to the WRC and the evidence of the Complainant a preliminary issue of notification to the Respondent in accordance with Section 21(2) of the Equal Status Act 2000 (hereinafter referred to as “the Act”) has arisen for consideration in the instant case.

The Law

Section 21(2) of the Act requires that:

(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.

Section 21(3) of the Act state:

(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 circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

and where such 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.

The language in Section 21 of the Act is explicit and mandatory. The requirement is that a complainant “shall” take the notification step provided for in Section 21(2) of the Act. There is a prescribed form available, an ES1 Form, to assist complainants in this regard.  It is not mandatory to use this form however, provided the complainant complies with the requirements of Section 21 of the Act. 

The Complainant gave evidence that she was “not au fait with equality claims” and that she was “learning through the process”. However, I note that she advised the WRC that she was furnished with documentation from the Irish Human Rights and Equality Commission and that she was legally represented at the hearing before the WRC.

The Complainant in her complaint form to the WRC indicated that she notified the Respondent using the ES1 Form on the 11th August 2023. I note that while the Complainant submitted documentation to the WRC in advance of the hearing in support of the complaint, she did not submit any ES1 Form to the WRC and did not produce a copy of the ES1 Form or show any evidence of an ES1 Form dated the 11th August 2023 or the posting of same either prior to, at the hearing or post hearing. Furthermore, on the Complainant’s own evidence, she did not notify the Respondent before referring the within complaint to the WRC. By email dated the 12th February 2024 the Complainant confirmed to the WRC that she had been “reading over some previous documentation we received from the Irish Equalities commission. I did not notify [the Respondent] that we would be proceeding with a complaint to the WRC. Is this a problem?”

Having considered this matter I am satisfied from the evidence adduced and based on the balance of probabilities that the Complainant did not comply with the notification requirements set out in Section 21 of the Act before submitting a complaint to the WRC as against the Respondent herein.

In considering this matter I note the provision of Section 21(3)(a)(ii) of the Act which provides for a discretion to set aside the provisions of Section 21(2)(a)(ii) of the Act.  I note, however, that this should only be applied “exceptionally”. 

The Labour Court in the case of Gaelscoil Thulach na nOG v. Fitzsimons-Markey, EET034, stated:

“The term exceptional is an ordinary familiar English adjective and not a term of art.  It describes circumstances such as to form an exception, which is out of the ordinary course or unusual or special or uncommon, to be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.”

It is clear therefore that any decision to apply this discretion should only be taken in circumstances that are out of the ordinary.

The Complainant was legally represented at the hearing. I find it noteworthy that having acknowledged in correspondence with the WRC prior to the hearing that there had been a failure to comply with the requirements of Section 21(2) of the Act there was no application made on behalf of the Complainant for a direction that subsection (2) shall not apply in relation to the within complaint.

In considering this matter, I have heard no evidence that would support the position that “exceptional circumstances” exist in this matter such as to satisfy me that it would be fair and reasonable to initiate the process of directing that subsection (2) not apply in respect of this complaint.

Consequently, I find that I do not have jurisdiction to hear this complaint.

For the reasons set out above, on the preliminary matter of jurisdiction, I find that the Complainant has not provided evidence that she complied with the terms of Section 21(2) of the Equal Status Act 2000 before seeking redress against the Respondent. Based on this finding I decide that I do not have jurisdiction to hear the complaint.