EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-130
Lagan Projects Limited
(Represented by A&L Goodbody)
File reference: EE/2010/435
Date of issue: 16 October 2012
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Age & Race - Access to Employment - Failure to Attend - Unreasonable.
1.1 This dispute concerns a claim by Mr Martin Kay that he was discriminated against by Lagan Projects Limited on the grounds of age and race contrary to section 6 (2) of the Employment Equality Acts in relation to access to employment in terms of section 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 3 June 2010 under the Employment Equality Acts. On 19 September 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation I informed both parties by letter sent registered post on 19 September 2012 that I had scheduled a hearing for 11 October 2012. On 10 October 2012 the respondent's representative sent a letter by fax confirming the attendance of themselves and two representatives from the respondent. Also on 10 October 2012 I received a letter from the complainant dated 1 October 2012 confirming his attendance at the hearing. In the late afternoon of 10 October 2012 Mr Kay contacted the Equality Tribunal by phone to say that he would not be attending the hearing as he could not afford to travel from Limerick and that his case should be heard without him being present. It was explained to the complainant in accordance with our Guide to Procedures, that: "Where a party fails to show up for a hearing the case will be deferred only where the Director or Equality Officer is satisfied that the party has been prevented from attending by factors which were outside their control (e.g. sudden illness vouched by medical evidence). If the full facts about one party's absence are not sufficiently clear, the Director or Equality Officer will decide whether it is appropriate to resume the hearing or not. However, this discretion will be exercised only where it appears to be necessary to ensure fair procedures.
If the Complainant does not attend at the Hearing, the Director or the Equality Officer can find that no prima facie evidence of discrimination has been adduced and the case fails."
1.3 Before the scheduled start of the hearing the complainant sent an email requesting an adjournment. In this he repeated his current circumstances meant that he could not afford to attend the hearing. The Tribunal's Guide to Procedures set out clearly that: "There is no automatic right to an adjournment. Adjournments are given in exceptional circumstances and for substantial reasons only and requests must be made in writing as soon as possible to the Tribunal. Any party requesting an adjournment must give details of the reasons along with all relevant documentation .i.e. medical certificates."
2.1 In accordance with Section 79(6) of the Employment Equality Acts I issue the following decision. As part of my investigation under Section 79 of the Acts, I am obliged to hold a hearing. I am satisfied that the complainant was aware of the hearing. He made a request for an adjournment shortly before the hearing was scheduled, having confirmed his attendance a few days before (but only received in the Equality Tribunal on the same day as the adjournment request). The adjournment was requested because he could not afford to travel to the hearing. The hearing was scheduled for Dublin because that is the venue for the majority of hearings under the Employment Equality Acts, also in this particular case the complainant lives in Limerick and the respondent is based in Belfast. Furthermore, I can see no change in the complainant's circumstances between confirming his attendance and requesting an adjournment. In these circumstances I decline his request for an adjournment.
2.2 I therefore find that the complainant's failure to attend the hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegations of discrimination, I conclude the investigation and find against the complainant.
16 October 2012