Equality Officer Decision
Mr. Francis McDonagh & Mrs. Bridget McDonagh and children
(represented by Ms. Heather Rosen)
Clare County Council
(represented by Michael Houlihan & Partners, Solicitors)
Equal Status Acts, 2000 -2004 - Discrimination, section 3(1) - Traveller
community, Section 3(2)(i) - providing accommodation and housing services, Section 6(1)(c) - harassment, section 11 - complainants non-attendance at hearing, adjournment requests - failure to establish a prima facie case.
Delegation under Equal Status Acts, 2000-2004
The complainants referred a number of complaints to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the cases to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000-2004.
1.1 The dispute concerns claims by the above named complainants that they were discriminated against by named officials of Clare County Council and the Council itself on the Traveller Community ground. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000 contrary to Section 6(1)(c) of that Act. They also allege that they were harassed contrary to section 11 of the Act.
2. Summary of Events
2.1 This case is one of a number of complaints referred to the Equality Tribunal on behalf of a large number of complainants against the same respondent alleging discrimination in relation to housing and related matters. It was decided to sort the cases by family groups so that each complainant family would have a separate hearing before the Equality Officer. A number of issues concerning all the cases arose and were dealt with at a procedural hearing on 26th May 2006. (For the background information see Jim Mongans & others v Clare County Council, DEC-S2007-012)
2.2 The complainants' representative was notified orally on 20th October 2006 that I was arranging a callover of all the cases referred against the respondents on 4th December 2006, including the cases of the complainants herein. A written confirmation of the date issued to the representative on 3rd November 2006. The representative applied for an adjournment of the matters on the grounds that she was out of the country on holidays and would be unable to notify the complainants of the callover. The adjournment was granted and the parties were notified that the callover would take place on 15th January 2007.
2.3 A written notification issued to the representatives confirming the date and requesting that the complainants attend the callover on 15th January 2007 and requesting that they should be available for the hearing of their case from the 16th to the 19th of January 2007. A notification of the hearing was also sent to the complainants' address. The complainants and their representative were notified that if the complainants did not attend, the Equality Officer may decide, in the absence of a valid explanation for non-attendance, that they had not established a prima facie case of discrimination. The complainants' representative made two further applications to the Tribunal, on the 7th and 11th January 2007, for an adjournment of the cases listed including this case. These requests were refused on the basis that no exceptional circumstances existed which would warrant the granting of an adjournment.
2.4 It should be noted that during the course of other hearings of cases against Clare County Council listed for the week of 16th to 20th October 2006, the complainants' representative submitted a letter on behalf of all of the complainant family groups, including the complainants in this case, requesting that I withdraw from hearing the cases. I informed her that I would not be acceding to the request. At the commencement of the callover on 15th January 2007 the complainants' representative made a further application for an adjournment stating that she wished to judicially review my decisions in previous cases. (For the background information see cases Michael Mongans & others v Clare County Council DEC-S2006-084, Patrick Mongans & others v Clare County Council, DEC-S2006-085) I refused the application referring the representative to letters dated 10th and 12th January 2007 and my earlier decision cited above setting out the reasons why adjournments would not be granted.
2.5 The complainants did not attend the callover nor did they make themselves available for the hearing of their case during the week commencing 15th January 2007. The complainants' representative stated that the complainants would not be attending the arranged callover and hearing as they were living in Mayo and she could not contact them to inform them of the hearing. She said that she had been in touch with Mrs. McDonagh's parents (Mr. & Mrs Martin and Mary Ward see case DEC-S2007-013) and they did not know their address. She submitted that the parents do not have literacy skills and therefore they did not know the address of the complainants.
The respondent's representative requested the Tribunal to dismiss the cases.
3. Conclusions of the Equality Officer
3.1 It should be noted that these cases were already adjourned from the week commencing 4th December 2006 to give the complainants' representative an opportunity to inform all the complainants about the dates of the callover and hearings. Following the adjournment I requested the complainants' representative to provide the addresses and telephone contact details of all of the complainants involved in these cases. The representative at first refused and following a further letter from me she provided addresses, but she did not provide telephone numbers on the basis that this information was given to her in confidence and she could not breach that confidentiality. I sent a notification of the hearing to the address provided. I was informed at the hearing that the address provided is the address of the parents of Mrs. Bridget McDonagh. I note from Ms. Rosen's letter to the Tribunal applying for an adjournment that contact was made with the complainants prior to Christmas. She said that they were at a funeral at the time and she could not enter into conversation with them.
3.2 I am satisfied that Ms. Rosen has telephone contact details of the complainants which she refused to provide to the Tribunal. If the Tribunal had been provided with full contact details as requested the complainants would have been notified directly of the callover and hearing. I am satisfied that the complainants representative was on notice that the Tribunal hearing in this case was scheduled for callover and hearing during the week commencing Monday 15th January 2007. The notification of the callover was sent to the two addresses provided to the Tribunal for the complainants. Given that the Tribunal was not provided with any other contact details, I satisfied that the representative undertook the responsibility to notify the complainants of the date of the callover. Likewise, I am satisfied from the information in her letter to the Tribunal of 7th January 2007 that she was in contact with them and consequently I cannot accept that they were not aware of the date of the callover. It should be noted that the complainants representative, Ms. Rosen, in her letter to the Tribunal of 7th January 2007 seeking an adjournment stated that she would provide the complainants' address but to date this has not happened. I am satisfied that the representative had plenty of time following her initial telephone contact with the complainants to make further contact to inform them of the callover.
3.3 For the above reasons I do not accept that a valid or exceptional reason was provided to the Tribunal for the complainants' non-attendance at the callover on 15th January 2007. I am also satisfied that the complainants were on notice that all matters referred to in their complaint forms lodged with the Equality Tribunal involving the named respondents would have been dealt with at this hearing if they had attended. As there was no appearance by the complainants, I find that they have failed to establish a prima facie case of discriminatory treatment and accordingly I dismiss their complaints.
4.1 On the basis of the foregoing, I find that the complainants have not established a prima facie case of discrimination and accordingly their complaints cannot succeed. I, therefore, dismiss the cases of Francis and Bridget McDonagh and their children Jim, Mary-Tamara, Ellen-Caroline Martin and Francie (ES/2004/264-270 and ES/2004/482-488) referred to the Equality Tribunal against Clare County Council.
23rd February 2007