Complainant

Respondent

Parties

Claire  Conlon

Pat Brady

Representatives

 National Advocacy Service for People with Disabilities

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057260-001

20/06/2023

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

CA-00060072-001

16/11/2023

The complaints allege that the complainant was discriminated against during an adjudication hearing at the Workplace Relations Commission (WRC). The respondent to the complaint is the WRC Adjudication Officer (AO) who presided over a previous complaint submitted by the complainant against a different respondent.

The complaints are made against the respondent in his capacity as a WRC adjudication officer and arise from interactions during an adjudication hearing. The nexus between the complainant and the adjudicator is based on the relevant statutory provisions that allow for the investigation of a complaint. That investigation and determination made by the adjudicator relates to the administration of justice and is referred to as quasi-judicial decision making. Section 40 of the Workplace Relations Act 2015 states:

Adjudication officers

(1) Subject to subsection (2), the Minister may appoint—

(a) such and so many of the members of the staff of the Commission, and

(b) such and so many other persons, as he or she considers appropriate to be an adjudication officer or adjudication officers for the purposes of this Act.

The statutory powers and functions of an adjudicator solely derive from statute.

The complainant relies upon the Equal Status Acts 2000-2015 to ground her complaints against the adjudicator who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service she was discriminated on the ground of disability.

The Applicable Law

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies.

Section 14 of the Equal Status Act 2000 as amended states that:

Certain measures or activities not prohibited.

14.(1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

In Fogarty v Employment Appeals Tribunal (DEC-S2009-087) the Equality Officer concluded:

4.8 I also find that the adjudication and decision-making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision-making function which is not subject to the terms of the Equal Status Acts. Therefore, I find that any aspect of this complaint which refers to the decision-making function of the respondent is misconceived.

In WRC Adjudication reference number ADJ-00011410 a preliminary matter was raised concerning the Judicial Immunity of a Statutory Tribunal. This complaint was also made under the Equal Status Acts about another statutory tribunal.  In relying on the Supreme Court judgement of Beatty v the Rent Tribunal [2006] 2IR 191, the adjudication officer determined that he had no jurisdiction to hear the complaint. In Beatty the Supreme Court approved of Lord Kilbrandon’s remarks concerning the immunity of a Statutory Tribunal as follows:

I think it appropriate to cite a passage from the speech of Lord Kilbrandon in the House of Lords in Arenson v. Casson Beckman Rutley & Co. (for some reason named in the English Court of Appeal as Arenson v. Arenson) [1975] 3 All ER 901 at 918

“To these tribunals the citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable by the public agencies; like as before them the citizen must appear to answer claims or complaints against him. (This is subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere). The citizen does not select the judges in this system, nor does he remunerate them otherwise than as a contributor to the cost of government. The judge has no bargain with the parties before him. He pledges them no skills. His duties are to the state: it is to the state that the superior judge at least promises that he will do justice between all parties and behave towards them as a judge should. I do not suppose that there is any English lawyer, and he would be a bold Scottish lawyer, who would say that here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant. It is for the state to make such arrangements as may be necessary for the correction of careless or erroneous judicial decisions; if those arrangements are deemed to be inadequate, it is for parliament to put the matter right. And if it be necessary to state the matter in terms of the law of tort, litigants are not persons to whom judges owe a legal duty of care, a duty which does not exist in the abstract, but only towards persons in particular relationships. The fact that he is under a moral duty is nihil ad rem. Judges in this context include, of course, persons forming tribunals and other bodies such as I referred to above.”

In Miley and Ors v Employment Appeals Tribunal [2016, IESC 20], the Supreme Court determined that the Employment Appeals Tribunal is analogous to a lower court such as the District Court has judicial immunity from suit:

28. In this case the EAT did not act as a legitimate contradictor. It was a tribunal which acted in a manner analogous to the position of a District judge in many judicial review proceedings - where no opposition to the review was filed.

Barry [2023] IECC 8 decided by the Circuit Court in December 2023 summarising the position as follows:

6. I am further satisfied that the Third Named Respondent was exercising a quasi-decision-making function in conducting a statutory investigation and that performing its quasi-judicial decision-making function does not come within the definition of “service” as provided in section 2 of the Equal Status Acts.

7. That is sufficient to dispose of the appeal herein. However, if I were required to go further, I am also satisfied having regard to the decision of the Supreme Court in Beatty v The Rent Tribunal & Another [2005] IESC 66, [2006] 2 IR 191 that a statutory adjudicative body exercising statutory adjudicative duties in the public interest such as the Third Named Defendant in considering complaints about professional misconduct, enjoys immunity from suit on the basis of judicial immunity unless there is an express countervailing provision in the statutory process which does not apply in this case.

 8. In this case, it therefore follows that the Third Named Respondent in exercising its PPC functions and in making decisions in relation to professional conduct is exercising a function as a statutory adjudicative body which enjoys immunity from suit on the basis of the principle of judicial immunity and that is absolute immunity and it is therefore not amenable to a complaint under the Equal Status Acts.”

Based on the foregoing these claims are misconceived. The named adjudicator was fulfilling adjudicative functions as set down in statute and those functions are covered by the principle of judicial immunity. The adjudicative investigation and the decision-making function of that role is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended.  I find that I have no jurisdiction to investigate these complaints.

Section 22 of the Equal Status Act 2000 as amended states:

22(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

As I have formed the view that the complaint is misconceived, I dismiss the complaint pursuant to Section 22 of the Act.

In accordance with Section 22 of the Equal Status Acts 2002-2015, I find that the complaint is misconceived.

Complaint misconceived