EQUAL STATUS ACTS 2000- 2012
DECISION NO. DEC-S2016-077
Represented In person
Work Start, West Cork Ltd
(T/A Employability West Cork)
Represented by Ms. Rachel O Flynn. B.L.
Instructed by Eamon Murray and Co. Solicitors.
File Reference: ET-150875-ES-14
Date of Issue:1st December 2016
1.1 The case concerns a complaint by Mr. B, a Father of a twenty-five-year-old adult with an Intellectual disability against Work Start, West Cork ltd. His claim is that he was discriminated against on the grounds of family status in terms of 3(2)(c) of the Equal Status Acts ,2000 to 2015 [hereinafter referred to as ‘the Acts’].
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 14, November, 2014. On 13 July, 2016, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Adjudication / 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 had been sought and were received from the Parties.
As required by Section 25 of the Acts and as part of my investigation, I proceeded to hold a hearing on 19 July 2016, where both parties were represented. The complainant had requested that the case be joined to a latter-day complaint on behalf of his daughter and that was accepted by the respondent. While both cases were heard together, it is necessary to issue two separate decisions in accordance with Section 25 of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2 Summary of Complainants Submission:
2.1 The complainant submitted some background to the complaint on 18 February 2016. The complainant represented his own case and was accompanied by his wife at the hearing in July 2016.
The complainant worked with the Department of Social Protection in West Cork (DSP). His professional life required him to liaise and monitor the respondent service as the DSP was the main funder of the service. His daughter had been a service user in the years 2009 -2011. The respondent service was described as an Employment Support Service in the West Cork area.
2.2 On 26 November, 2012, The Co-ordinator of the respondent service visited his Office and informed the complainant that Mr D, a job coach and employee of the respondent had returned to work after an extended illness and that he was refusing to meet with him “under any circumstances”.
The complainant sought an explanation and detailed the impact this would have on his daughter, who as a person with a learning disability, would not be in a position to avail of the service , should the only job coach in Skibbereen refuse to meet with him, as her parent .
The complainant submitted that he was in a unique position insofar as he had both a professional and personal involvement with the company, which had maintained without incident for over 10 years.
The complainant was unable to obtain any clarification from the Board of Directors of the Respondent service. The Board was made aware of the personal impact their decision would have on me as a parent of a person with a disability and at no point sought to mitigate the damage.
The complainant submitted that a letter had been written by the respondent dated November 22, 2012 which requested that the person monitoring the respondent service on behalf of DSP, would at all future times must be accompanied on any visits to any office of the respondent. As the sole monitor of service, the complainant contended that this applied to him. He was made aware of this proposed change by his employer on November 29, 2012. The complainant submitted that he was discriminated against by the Respondent by this action as all other staff of DSP continued and continue in their normal interaction with the respondent without this restriction. He contended that his status as a parent of a person with a disability caused him to be targeted in this way. The complainant submitted a dossier of documents in support of his complaint. These encompassed a record of exchange of communiques between
1 The Complainant and the Respondent
2 The Complainant and DSP
3 The Complainant and The Ombudsman /Information Commissioner.
The complainant stated that he had made a comprehensive plea for discovery of documents from the respondent and that there were several parallel complaints in train before the Information Commissioner and the Data Protection Commissioner. He submitted that he had been denied key information from the respondent which hampered his ability to make his case under the Equal Status Acts.
He submitted a copy of the Office of the Ombudsman Report dated 24 August 2015. This involved a complaint by the complainant against the DSP:
“…. The issue before this Office was whether the DSP refused to accept and examine your complaint concerning the actions of Employability West Cork in denying you service by not dealing with you directly as an advocate for your daughter “
The Ombudsman Office concluded that there was no basis on which the Ombudsman could pursue the matter further with DSP and notified the complainant of their intention to close the file.
On the ES1 form, dated October 1, 2014, the complainant placed the respondent on notice that he was seeking answers to several questions on the restriction placed on him by the respondent to act as advocate for his daughter.
He told the hearing that the answers received to the questions were incomplete and that discrimination was ongoing against him.
“This has had and continues to have a serious impact on my health and on my family. The respondent has from the outset, offered no explanation for their actions and have withheld information relevant to the matter. They continue to withhold information and now state (under F of I Act) that critical correspondence cannot be found by the company “
The complainant also confirmed that he had a personal injuries action outstanding against his employer, DSP on a separate matter, work related injury) unrelated to the case.
3 Submission on behalf of the Respondent:
3.1The respondent denied the claim of discrimination. The respondent accepted that the complainant had standing under Family Status as being a parent of a daughter with a disability within the meaning of the Act. However, the respondent denied that it was a service provider or an employment agency. They described the profile as that of a charity trading as a limited company.
3.2 The Respondent described the role and function of ESWC in relation to provision of services
In 2009, the complainant’s father sought support in obtaining work experience for the complainant. At that time, the complainant was under 18 and in active education, thus ruling her outside the strict criteria for service. However, some work experience placements were sourced for the complainant by ESWC. The respondent submitted that the complainant’s father had a dual role in his interactions with ESWC. Firstly, as an employee of DSP, with responsibility for directly overseeing and liaising with the respondent and secondly as the complainant’s father in the context of service use.
During 2011, the complainant had 11 appointments with a Job Coach, Mr D during the period 14 July 2011 to 20 October 2011. This involved a tripartite liaison between the complainant, Mr D and the complainant’s parents.
The respondent submitted that the recognised referral process to ESSWC was via DSP and the respondent had not received a referral from DSP, encompassing the complainant’s desire for service use during the years 2012, 2013,2014, 2015 or 2016. The respondent denied that they had ever refused to engage with the complainant’s father as the complainant’s advocate.
The respondent drew the attention of the hearing to a letter dated 20 November 2012.This involved a communication between the respondent and DSP and contained a suggested protocol between ESWC and its funders, DSP and the Board of Directors. The aim of the protocol was to “facilitate better communication and co-operation in the provision of this supported service “It was to cover
Rules for Monitoring
The respondent submitted that this was an operational issue between agents of ESSWC and DSP and referred to the way forward following a period of operational uncertainty during the Summer of 2012.
The respondent referred to the November 26, 2012 meeting and explained that the Co ordinator no longer worked at the service. It was the respondent’s position that what was discussed at that meeting between the Co ordinator and the complainant was the revised protocol and somehow this became misconstrued on behalf of the complainant, where, he believed that he was subject to some type of complaint in addition to his daughter being excluded from accessing the respondent service.
The respondent received an email from the complainant on 9 May, 2013. This sought information as a matter of urgency, on the full details of the complaint at the centre of November 26th meeting and how this was notified to his employer, DSP. It was accompanied by a data protection information request.
On 13 May, 2013, the complainant emailed Ms M indicating that his daughter was “shortly to require to re-engage” with EWC and sought a letter of instruction on engagement. An email of response followed the next day from the Co ordinator.
“I will write to (your daughter) this week to suggest that I meet with her and explain the process for re-joining the service. You are, of course welcome to attend this meeting also as her advocate”. This letter followed on 15 May, offering suggested times and location for a meeting on May 22, 2013.
On May 20th, the respondent received an email from the complainant which was critical of the respondent approach, but accepted that there was no difficulty or bar to him acting as the complainant’s advocate. Nothing further followed the complainant’s fathers request for a postponement of this meeting. There was no DSP referral or direct contact from the complainant in seeking to access to the service for his daughter.
On May 22, 2013The respondent advised the complainant that no complaint had been made against him and received by the respondent. The respondent clarified via the Chairperson of the ESWC Board that:
“the purpose of the communication between yourself and the Job Co coordinator on 26 November ,2012 was to communicate our request regarding further interactions between ESWC and DSP going forward and in line with normal practice across Employability services “
3.3 During the Summer of 2014, Mr F took over from the Co-ordinator at EWC. On 17 September 2014, the complainant wrote to the respondent by email ,alleging that he had been advised on 26 November 2012 that the respondents job coach would no longer meet with him alone and the respondents coordinator would have to travel to Skibbereen to meet if his daughter wished to engage with the service .This was denied by the respondent in an email dated 24 September 2014 sent to the complainants ,which advised that the complainants daughter was not a client at that time .It went on to state that :
“If(Your Daughter) or any other client is referred to Employability Service West Cork through the formal referral channels of the DSP, you can be absolutely assured that they will receive the utmost professional service. ESWC will openly engage with any official advocate of persons with a disability and no policy exists to exclude from the service any person acting as an advocate to the referred client of the service….”
The respondent contended that the complainant’s daughter had not featured in the dynamic involving governance decisions between ESWC and its funder DSP and that the complainant had misconstrued that dynamic as applying to her. They contended that there had never been a restriction on the advocate or choice of advocate as borne out in the correspondence of the Chairman of The Board in 2013.
3.4 The respondent drew the attention of the hearing to the response to the ES1 dated 13 October,2014 scripted by Mr F.
“ …… In response to your correspondence regarding the Equal Status Acts, I wish to make it eminently clear that Work Start, West Cork, trading as Employability Service West Cork (ESWC) will not discriminate against any individual referred to the organisation through the established formal referral channels of the Department of Social Protection…….”
The respondent contended that the respondent would openly engage with any official advocate of a person with a disability and that the complainant’s daughter was always welcome at their service in the company of her advocate. They qualified this by stating that the service had not received such a referral up until the day of the hearing.
3.5 In Legal submissions, the respondent identified the burden of proof set down in Teresa Mitchell V Southern Health Board  ELR 201 and based on the need to establish
1 That the complainant comes within a protected category pursuant to the Act
2 That there was specific treatment of the Complainant by the respondent.
3 The treatment of the complainant was less favourable than the treatment that was or would have been afforded to another person in similar circumstances.
3.6 The respondent accepted that the complainant was covered by a Family Status, however they contended that the complainant’s daughter was neither a user of the service in 2012, nor was a referral received via DSP between the years 2012-2016. They argued that had a referral been received then the respondent service would have opened to her as indicated throughout 2013 and 2014 The respondent referred to a parallel High Court action taken on behalf of the complainant, which did not involve their service, nor were they party to this action. The respondent advised the hearing that the circumstances of the case in relation to the complainant had been misconstrued and misinterpreted by him. They submitted that the assurances sought by the complainant in the main pertained to matters which arose in the context of his discharging his professional and employment duties as an employee of DSP and not to the circumstances to which the complainant might engage with the respondent.
Findings and Conclusions of the Equality/Adjudication Officer
4.1 As the Equality Officer/Adjudication Officer, I must first consider whether the existence of a prima facie case has been established by the Complainant?
Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
In making my decision, I have considered all the evidence, both written and oral, made to me by the parties to the case.
4.2 It is common case that both parties agree that the complainants Adult daughter is living with an Intellectual disability. I am satisfied that the complainant is therefore properly encompassed by the terms of section 2 of the Acts regarding Family Status.
Section 2 (1) – “disability” means—
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction,
The respondent disputes that the respondent service can be properly regarded as a service provider in accordance with the Acts. The complainant contends that the respondent amounts to an Employment Agency.
Section 2 of the Acts provides a definition of “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-
(d) A professional or trade service
I am satisfied that the respondent is a service provider and not an Employment Agency.
4.3 Section 5(1) of the Equal Status Acts provides that:
A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
“Prohibited conduct “is described in Section 2 of The Act as discrimination against a person in contravention of this Act
4.4 In examining the evidence adduced in this case, I was struck by the extreme sensitivity of the issue at the heart of the complaint. I have endeavored to deal with the issues raised with some empathy in the context of my investigation by anonymising the complainant’s details while remaining mindful of the co-existence of the second complaint on behalf of the complainants Daughter.
4.5 Section 3(a) of the Act provides that discrimination shall be taken to occur where:
(1) (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned
4.6 I have considered both parties’ submissions on the sequence of events that led to the complaint to the then Equality Tribunal, now Workplace Relations Commission in November 2014.
On the complainant’s side, he held a firm belief that he was ousted from his Liaison and Monitoring role with the respondent in November, 2012. He reflected deeply on the implications of his perception of being ousted, which he perceived included an ousting of his daughters access to the service and was not swayed in his thought processes by anything that the respondent communicated to him after the central meeting of November 26, 2012.It is important to note that there was no evidence adduced that the DSP as his employers succeeded in unravelling the apparent confusion on the true spirit and intention of the “ protocol “ document of November 2012 between DSP and EWC . The complainant formed a concrete view that he daughter was to be treated less favourably by the respondent following his conversation on Mr Ds back to work status in November 2012 and the complaint was presented as having an “ongoing “presentation from that date forward.
On the respondent’s submissions, I must accept that there was no evidence of exclusion of the complainant from being permitted to preside as an advocate for his daughter in any interaction with the respondent. In fact, I noted a series of open gestures for engagement from May 2013 onwards on behalf of the respondent once the request from the complainant was received.
I must accept that the respondent could not be held to be the identifiable management team to manage the consequences of the revised Operational Protocols agreed in November 2012 between DSP and the respondent in work terms. That was the preserve of the DSP, whose signatures are visible on the document submitted by the respondent.
I appreciate that Section 14 of the Act permits positive action on preferential treatment or the taking of positive measures which are bone fides intended to promote equality of opportunity for persons who are disadvantaged and I am willing to consider the help and support given to the complainant in the form of discretionary contact with the respondent service from 2009 -2011 in that light. However, I can also identify that this period of time of discretionary contact was not provided under protocol and could be viewed by the reasonable person as a relaxation of the rules. I accept from submission of the complainant’s daughter’s Birth Cert that she was 18 years old in 23 January 2009.
However, I must examine whether the complainant was met by prohibited conduct from the respondent in the context of the current complaint?
It is clear to me from the submissions that the complainant was engaged in parallel discussions with both DSP and the respondent from September 2014 onwards. I found it unusual that these did not crystallise into a tri partite forum to address and resolve the complainant’s residual understanding of exclusion from the respondent service. Instead the complainant identified the core issue as one that the DSP and the Respondent had to resolve via separate and distinct processes in communications dated 5 September to DSP and on 17 September, 2014 to the Respondent where the complainant referred to his daughter being discriminated against on family grounds.
I appreciate that the time spent by the complainant in securing the multitude of documents was arduous, but it does not appear to have aided a resolution in the case to date. The complainant sought an assurance that any restriction on his advocacy was lifted on September 17, yet, took no solace from a plainly worded response from the respondent on 24 September 2014 which
1 Stated that the complainant’s daughter was not on the active client list of the respondent
2 A referral to the service protocol was set down in accompaniment
“The decision of job readiness will be a decision between the DSP Employment Services Officer and the Job Coach. DSP Employment services shall have the final authority regarding referral to Supported Employment.”
I have found that the complainant chose not to take the respondent up on any of the offers made on offering engagement on service to his daughter from May 2013 onwards up until 13 October 2014. I appreciate that the complainant wanted his case to run under the Equal Status Acts and that is his right. I also accept that during that period. he was concerned that his daughter was not accessing employment services following completion of her work experience late in 2014. I accept that the complainant desired this service for his daughter and was genuinely troubled by his perceived exclusion from the respondent service.
However, I must resolve the conflict in favour of the respondent . I cannot establish any evidence of purposeful exclusion of the complainant from the respondent service on family grounds. Instead, I have identified a perceived block to progress following the meeting between the respondent co coordinator in November 2012 and the complainant, where he clearly experienced a difficulty delineating his role as a DSP employee and Advocate for his daughter. I asked the complainant at the hearing whether his Employer provided guidelines to cover instances where Family members were expected to apply for services monitored by DSP i.e. himself and I was informed that no such guidelines existed.
The complainant has expended a considerable period in seeking to unravel the conversation he had with the co-coordinator and his subsequent assertions that he was being ousted on a professional and personal advocacy basis from the respondent service. The Equal Status Acts direct me to examine his claim on prohibited conduct as defined in the Acts, alone. I have no scope to investigate the primary workplace issue.
On balance , I have found that the Respondent followed their own protocols by inviting the complainant to accompany his daughter in any referral for service during the material time of this complaint and as such is distinguished from jurisprudence in the area of Equal Status Stokes V Christian Brothers High School Clonmel ELR 113, Flanagan Talbot v Kilarney Cineplex Cinema DEC -S2008-053. I find that the complainants perception of being ousted from his role of advocate for his daughter in accessing an employment service to be lacking in fact.
6.1 Before concluding my decision in this case, I would like to make a reference to the comments of the Equality Officer in the case of A Complainant V A Health Service Provider ES/2009/025 which issued on 14 December, 2012. This was a case of a strongly articulated dissatisfaction in service and I find that there are overlaps in the sentiments expressed in that case and the instant case. I have incorporated it in my decision out of respect for both parties in the case.
Before concluding, I would like to add that the complainant has clearly taken a highly proactive role in seeking to obtain the best possible treatment for her daughter. She believes that she has not been provided with that to date and she indicated at the hearing that she would continue "that fight" irrespective of the outcome of this complaint. Her desire to obtain the best for her child was evident. She is clearly an honest, caring, devoted and determinedly supportive mother. Equally, it was clear to me that, as far as the respondent was concerned, every person who was involved with J's care, including Dr. X and particularly those who gave evidence to the Tribunal, were also motivated wholly and unambiguously by what they considered to be J's best interests. Each one of them struck me as being professional, committed and caring.
In that context, it is particularly regrettable that the matter has come before the legal system of the State for a resolution. I hope that both parties can ultimately reconcile the complainant's determination to advance her daughter's welfare with the respondent's professional judgment on the matter. Unfortunately, it is not within the power of the Tribunal to assist them any further in that respect.
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2012, I conclude my investigation and issue the following decision. I find that the complainant did not establish a prima facie case of discrimination on family grounds in terms of Section 3 (1)(b) and Section 3(2) (c) the Equal Status Acts 2000 - 2012.
Dated: 1st December 2016