EQUAL STATUS ACTS
DECISION NO. DEC-S2018-017
John Sherlock & 8 others
(represented by Ms. Heather Rosen)
Environmental Health Services
(represented by Michael Houlihan & Partners Solicitors)
File reference: ES/2014/0159
Date of issue: 14 September 2018
Background to the Claim
1.1 The complainants referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on 13 June 2014. On 10 February 2018 in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Hugh Lonsdale, an Equality Officer/Adjudication 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 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 14 March 2018. Final correspondence from the parties was received on 6 July 2018.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.
2.1 The dispute concerns a claim by the complainants that they were discriminated against by the respondent on the grounds of race and membership of the Traveller community in terms of Sections 3(1), 3(2)(h) and 3(2)(i) contrary to Section 5 of the Equal Status Acts in relation to the withholding of correspondence and the effect this had on their accommodation situation. The complainants also claims that they were subjected to harassment contrary to Section 11 of the Acts.
Summary of the Complainant's Case
3.1 The complainants, who are a family of eight, submit that they are members of the Traveller community and in the second half of 2014 were living in very poor temporary accommodation that was unsuitable for their needs.
3.2 In order to assist them in highlighting their needs to the local authority they sought the assistance of the Environmental Health Office of the HSE and requested the respondent to provide them with a written report which they could give to the local authority. An Environmental Health Officer did come out to the accommodation and make a written report but despite repeated requests no correspondence or reports were forwarded to the family.
3.3 The family submit that instead of being able to use the material to assist them in highlighting their accommodation needs it was instead used against them. This resulted in them being given an eviction notice in December 2013.
3.4 The complainants named two individuals members of staff of the Environmental Health Service.
Summary of the Respondent's Case.
4.1 The respondent objected to the hearing going ahead for a number of reasons:
a. that there had been an inordinate delay from the time the case had been referred to the date of hearing,
b. that the notification sent by the complainants’ representative to the respondent had no date of discrimination and made no specified allegations that they could respond to,
c. that the complaint referral to the then Equality Tribunal has no date of discrimination,
d. the complaint is an abuse of process and should be dismissed as frivolous and vexatious, and
e. that the two individuals were named.
4.2 The respondent confirmed that they received a request to visit their accommodation from one of the complainants. They contacted the local authority who confirmed they were happy for the respondent to prepare a report. Then a member of their staff visited the complainants’ accommodation on 22 October 2013. Based on the visit the member of staff sent a report to the local authority and a government agency. The member of staff fully explained the contents of the reports that had been sent to the complainants.
4.3 The respondent submits that it also explained that it was not normal practice to send a copy of correspondence to individuals. It was explained to the complainants that a request to see the documents could be made under the Freedom of Information Act. No such request was made at the time. Although it was subsequently made in 2017.
4.4 The respondent submits that when visiting the complainants and in writing the report they were not providing a service to the complainants; they were acting in accordance with an agency agreement with the local authority.
4.5 The respondent had no involvement in the eviction notice.
5. Conclusions of the Equality Officer/Adjudication Officer on jurisdictional matters raised by the respondent
5.1 There was a very long delay from the referral of this claim in June 2014 until the hearing in March 2018. This was the fault of the Equality Tribunal and subsequently the Workplace Relations Commission. I apologise to both parties and their representatives for the delay and thank everyone for their co-operation at the hearing, which allowed me to elicit sufficient evidence to be able to make a decision.
5.2 I accept that the notification sent by the complainants was unclear on exact dates of the alleged discrimination but it is clearly referring to the inspection of the complainants’ accommodation in “the autumn and winter of 2013” and as there was only one such visit I conclude the respondent was fully aware of the events being referred to by the complainants. The respondent’s representative provided a proof of sending for 17 February 2014 and a copy of the eviction notice dated 18 December 2013, which she contends was the result of the alleged discrimination. I conclude that the notification satisfies the requirements of Section 21 (2) (a) of the Equal Status Acts.
5.3 The ES3 complaint does not give an explicit date of discrimination but within the details of the claim the eviction notice has been clearly referred with the date of issue, 18 December 2013. I accept this as an alleged date of discrimination and is within 6 months of the date of referral, 13 June 2014.
5.4 The respondent visited the complainants’ accommodation when requested to do so by the complainants. Accordingly, I consider that they provided a service to the complainants.
5.5 The complainant referred complaints against two named individuals, who were employees of the Environmental Health Services of the HSE. The complainant’s representative submitted that these individuals should also be held personally liable for the alleged discriminatory actions/decisions taken by them against the complainant. It should be noted that the Equal Status Acts provides that a complaint of discrimination may be referred against a named person or an organisation, public body or other entity.
Section 2(1) defines the term “person”:
““person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;”
Section 42(1) of the Equal Status Acts provides:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”
The Act therefore provides that a complaint of discrimination may be referred against a person as happened in this case, where the complainant referred the case against named officials and the Environmental Health Services itself. If that person is found to have discriminated in the course of his/her employment then it is that person’s employer who may be vicariously liable in accordance with Section 42(1) of the Equal Status Acts. The definition of the term “person” also includes a public body. I am satisfied that the named employees acted in the course of their employment and therefore the Environmental Services of the HSE is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Acts and is therefore the correct respondent and the case should proceed against this body only and not the named individuals.
6. Conclusions of the Equality Officer/Adjudication Officer on substantive matter
6.1 The issues for decision by me are (i) whether or not the respondent discriminated against the complainants, either directly or indirectly, on grounds of his membership of the Traveller community and ethnic origins in terms of Sections 3 of the Equal Status Acts and (ii) whether or not the respondent subjected the complainants to harassment contrary to Section 11 of the Equal Status Acts.
6.2 In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
6.3 I will firstly consider whether or not the alleged treatment amounted to discrimination within the meaning of Section 3(1) of the Equal Status Acts. Section 3(1) of the Acts provide:
“(1) For the purposes of this Act discrimination shall be taken to occur –
(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) or, if appropriate, subsection (3B), in this Act referred to as the ‘discriminatory grounds’
Section 3(2) of the Acts provide that:
“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:
(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),
(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).
6.4 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.
6.5 The present complaint of discrimination has been grounded on both the Traveller community and race grounds. It was not in dispute that the complainants are members of the Traveller community and I am therefore satisfied that he is covered by the Traveller community ground. The complainant has also claimed that he was subjected to discriminatory treatment on the grounds of his ethnic origins as a member of Traveller community when compared to the manner in which a person of a different ethnicity, such as an Irish national, who is not a member of the Traveller community was or would have been treated in a comparable situation. Having regard to the fact that members of the Traveller community are recognised as a distinct ethnic group within the Irish nation, I am therefore satisfied that the complainant, being a member of the Traveller community, is also covered by the race ground for the purpose of this complaint.
6.6 The complainants have claimed that discrimination occurred when they did not receive correspondence following a visit from an employee of the Environmental Health Services. The respondent confirmed the visit took place, they wrote a report which was submitted to the local authority and refused to give a copy to the complainants.
6.7 In the specifics of the claim before me I conclude that no evidence has been presented by the complainants through their representative that the treatment arose from their race or membership of the traveller community. I am satisfied that the respondent acted in the same way that they would have done to anyone regardless of their race or whether or not they were members of the traveller community. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination within the meaning of Section 3 of the Acts.
6.8 The complainants also claimed that they were subjected to harassment by the respondent contrary to Section 11 of the Equal Status Acts. In order to raise an inference of harassment the complainants must establish that they were subjected to unwanted conduct by the respondent within the meaning of Section 11(5) of the Equal Status Acts which had the effect of violating his dignity and creating a hostile, humiliating or offensive environment for him.
6.8 However, neither the complainants nor their representative have put forward any evidence other than that in relation to their complaint of discrimination. I can find nothing that I can consider in relation to the claim of harassment. Accordingly, I find that the complainants have failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.
7.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that:
I. The complainants have failed to establish a prima facie case of discrimination on the race or Traveller community ground within the meaning of Section 3 of the Acts.
ii. The complainants have failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.
Accordingly, I find in favour of the respondent.
Equality Officer/Adjudication Officer
14 September 2018