ADJUDICATION OFFICER DECISION
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint / dispute to me by the Director General, I inquired into the complaint / dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint / dispute.
The Complainant, Ms Tracey Ahern, is a Civil Servant who suffers from a disability. The Respondent, Forsa, is the Complainant’s Trade Union. This complaint follows on from and is related to a previous complaint (CA-00026187-001), made against the Union by the Complainant which was lodged with the WRC on 10th February 2019. CA-00026187-001, was the subject of an Adjudication Officer’s hearing, ADJ-00019795, held on 25th April 2019. The Decision in the case, ADJ-00019795, was issued on 16th August 2019.
In the first complaint lodged by the Complainant (CA-00026187-001), the Complainant submitted that she had not been provided with the support and services she should have been by her union regarding a dispute she was having with her employer.
This instant case, complaint CA-00027894-001, was lodged with the WRC on 19 April 2019. In her Complaint Form the Complainant submits that she was discriminated against by reason of her disability in the provision of goods/services, by the Respondent.
The Respondent submits that it is not an organisation comprehended by section 5 of the Equal Status Act 2000, as the organisation does not engage in the disposal of goods or the provision of services to the public or sections of the public. The Union is a membership organisation registered under the Trade Union Act 1941, with the Registrar of Friendly Societies. Furthermore section 2 does not include a membership organisation such as a trade union within the definition of services.
In essence, the Respondent is saying that it is precluded from being considered a person or body to which the Act applies by reason of the fact that its services can only be enjoyed by its members and such membership is limited to a particular group.
In the Equal Status Acts under Section 2, "service" is defined as 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 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
In examining the definition of service in the Act, it is very broad and includes a service or facility which is available to the public generally or a section of the public. I am of the view that a trade union can be defined as a service to a certain section of the public and therefore it constitutes a service within the meaning of section 2 of the Equal Status Acts.
In considering this matter, I take note of the case of G-v- The Department of Social Protection 2015 [IEHC] 419 wherein Ms Justice O'Malley (albeit obiter) considers that the Equal Status Act 2000 should have a broad and inclusive interpretation as far as can be fairly done and that having regard to the Act, it was clear that it was a remedial statute which therefore must be liberally construed.
Considering the above, I find that the Respondent is a body obliged not to discriminate in the disposing of goods and/or in providing a service to a section of the public.
Summary of Complainant’s Case:
The Complainant submits that she has been discriminated against by the Respondent by reason of her disability.
The Complainant submits that when she informed the Respondent that she had lodged a complaint with the WRC in February 2019 she was told that an ongoing internal investigation, of a complaint she had raised sometime previously regarding the same matter, would be stalled until the WRC process had been exhausted.
The Complainant believes that this stalling of the internal review process occurred purely because she had exercised her right to seek an adjudication on the matter from the WRC and that she is being victimised for having made a complaint to the WRC.
The Complainant submits that the stance of the Respondent has effectively left her without access to union services purely due to her decision to make a complaint to the WRC.
Summary of Respondent’s Case:
The Respondent rejects the allegations of discrimination and victimisation made by the Complainant.
Summarised simply, the Respondent’s position is that it could not continue with its internal investigation when the person making the complaint commenced a process leading to a formal complaint to the WRC. The Respondent submits that regarding the first and subsequently regarding this complaint, it could not progress an internal investigation while a third-party action was underway into effectively the same complaint because of concerns about the application of natural justice and fair procedure.
The Respondent submits that although the internal procedure was stalled, it remained available as an alternative to the external process throughout the period in question.
The Respondent contends that the Complainant has not shown how the decision to stall the internal process is discriminatory on the disability ground or that the Complainant has been afforded any less favourable treatment than any other member on that ground. The Respondent affirms that the same decision would be made should similar procedural circumstances arise for any other member seeking to lay a complaint under the Respondent’s Code of Service Standards.
Findings and Conclusions:
Section 38A (1) of the Acts provides that the burden of proof is:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
It requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore, the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
Section 4 of the 2000 Act states:
Discrimination on ground of disability.
4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.
(5) This section is without prejudice to the provisions of sections 7(2)( a), 9( a) and 15(2)( g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.
(6) In this section—
“provider of a service” means—
( a) the person disposing of goods in respect of which section 5 (1) applies,
( b) the person responsible for providing a service in respect of which section 5(1) applies,
( c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,
( d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6(1)(c) applies,
( e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section, or
( f) a club within the meaning of section 8(1) in respect of admission to membership or a service offered to its members,
as the case may be, and “service” shall be construed accordingly;
“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.
In considering this allegation I must firstly consider whether the Complainant has provided enough evidence to demonstrate that she has a prima facie case.
The general rule in the context of the burden of proof is that the burden lies on the party asserting a claim.
I have examined whether the complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board  ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued:
“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.
To determine whether the complainant has established a prima facie case a three-tier test is employed:
First, the Complainant must establish that she is covered by the relevant discriminatory ground.
Second, she must establish that the specific treatment alleged has occurred.
Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.
In this instant case, the agreed facts of the case are that, (i) the Complainant has a disability, and is covered by the disability ground and (ii) it is common case that the internal investigation was stalled by her union after the Complainant lodged a complaint with the WRC.
In considering the third-tier of the test, no evidence was adduced by the Complainant to support her contention, nor was a comparator provided. The fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not, therefore, been proven.
In the circumstances, I find that the Complainant has not established a prima facie case and her complaint therefore fails.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
The complaint is not well founded.
Dated: November 26th 2019
Workplace Relations Commission Adjudication Officer:
Union membership, internal investigation, discrimination