ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017370
A service user
A public service body
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 08/07/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 3rd October 2018, the complainant submitted the complaint pursuant to the Equal Status Act. The complainant attended the adjudication. Cathal McGreal BL, instructed by the Chief State Solicitor’s Office, represented the respondent and five witnesses attended on its behalf.
I have exercised my discretion to anonymise the decision.
In accordance with section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant asserts discrimination and harassment on grounds of disability, myalgic encephalomyelitis (‘ME’). The respondent denies the claim.
Summary of Complainant’s Case:
The complainant outlined that her disability is ME disease. She outlined that the symptoms are relevant to the claim. ME or Chronic Fatigue Syndrome is not uncommon and can have an incredibly debilitating effect. The complainant referred to statements made by specialists in the area.
The complainant outlined that the World Health Organisation recognised the condition as a neurological condition in 1969. She outlined that governments have since sought to recalibrate this as Chronic Fatigue Syndrome, i.e. to downplay the condition.
The complainant said that she was formally diagnosed with ME in January 2017 and had previously been diagnosed with depression. She referred to the letter from the consultant of the 13th November 2018 and the other medical information.
The complainant outlined that the symptoms involved a lot of physical pain. There are sudden crashes and now had an impact for a few days. She outlined that there is a degree of cognitive impairment. The complainant outlined that she gets stuck when she needs to focus; her short-term memory is poor. This made it difficult for her to leave the house. She has managed this well but is prone to infections. She usually uses a neck brace and headphones to exclude noise.
The complainant referred to the letter of the 18th July 2018 and that this was the first time she was late in submitting a return to the respondent public body, in this case for the year 2016. She was able to file a ‘Form 12’ as the amount owed was below €5,000 per year. She described the online system as a nightmare and would have baffled her anyway. She had been able to complete the 2015 forms by submitting a Form 11 when she could have filed a Form 12.
The complainant outlined that she is socially isolated, so it is harder for her to tackle issues, such as filing returns. The complainant said that she was unable to sort the Digital Certificate required for the online system. She could not find it on her laptop. She was advised that she could deactivate the digital certificate and a new one was issued. She outlined that it was a real headache as she could not deal with the same respondent staff member twice. While people were helpful, she had to explain the circumstances every time and they had a limited sphere of knowledge.
The complainant outlined that the deadline was the 14th November 2017 so by the 2nd December 2017, she was late. She and her brother were trying to do the Form 11. While the figures were pre-populated, she made errors. They could not complete the forms and thought that the insurer might have submitted the wrong figures relating to her income. The complainant said that she was then too sick to address this matter.
In March 2018, the complainant realised that she had been filling in the 2017 form but not the 2016 form. The regional office insisted that she file a Form 11 for 2016. The complainant said that the income protection was income and there was also rental income. Her accountants had not de-registered her. The two staff members kept mentioning the firm of accountants, but the complainant had filed the forms herself the previous year. The complainant described the staff members as being unreasonable and aggressive, unlike other staff members who were helpful. The complainant had to confirm everything to them in writing.
In June 2018, the complainant sought to de-register, but was then sent a message on the 16th June to ask about the properties she owned. The complainant did not pick up the message as it went to the online system. They wrote on the 2nd July to say that because of her failure to reply, they would issue a Notice of Assessment which the complainant took to be an audit.
The complainant phoned straight away, and the staff member was very aggressive. The complainant had not seen the email when she opened the letter. The staff member asked what properties the complainant owned and what did she own in [county]. The complainant outlined that she knew that the respondent was not entitled to ask aggressive questions. She had answered the questions and replied that she had disclosed this in her returns. The complainant informed the respondent staff member that she was sick and in bed. The complainant outlined that she would not have been treated in this way had she said she had cancer; the way she was treated was because she had ME. The complainant said that she was not aggressive in this conversation.
The complainant outlined that she wrote to the respondent of the 4th July regarding what she owed. She outlined that while she had spoken with this staff member before and there was previous aggression, what happened on this occasion was worse. The staff member repeatedly asked about her former accountants.
The complainant said that the respondent blocked her de-registration and because of this, she could not file a Form 12. One staff member kept referring to her as being ‘the solicitor’, her former registered address and the firm of accountants, but the complainant replied that she was on Disability Benefit.
The complainant outlined that the difficult phone call with a staff member took place on the 7th July. The complainant took notes of the phone on that day. She acknowledged that she was also ‘quite hostile’ during this phone call. The staff member recognised her as being ‘the solicitor’. The staff member insisted she file a Form 11 and not a Form 12. The complainant described this as a ‘furious phone call’.
The complainant said that she could not find a Form 12 online for the 2016 year as it had disappeared. The complainant was able to get the form from a friend who works in an accountant’s office. The complainant asked the staff member where should she file the return. The complainant outlined that the respondent regional office was very obstructive and wanted to keep this on their desk. She said that they wanted to send this to one office of the respondent rather than another.
The complainant outlined that because of her impairments, it was easier for her to fill out a form with a pen. She said that the respondent phone numbers are all premium, even though they were not listed as such. She submitted that this is indirectly discriminatory for those with ME disease as they had to start again to explain her story. The complainant said that she had to tell her story 1,000 times and the respondent had no memo system. She outlined that the respondent had not provided reasonable accommodation.
The complainant outlined that in March 2018, a staff member insisted that the complainant used a form 11. The complainant said that she was trying to catch her out by asking how much the rental income was. The complainant said that she felt targeted by her reference to the complainant being ‘the solicitor’. The complainant described this as ‘ugly’. She had twice written to the regional office, but they still questioned her. The complainant said that she wanted to know why the staff member advised her to send the return to a different respondent office.
The complainant outlined that a staff member demanded the address of the complainant’s rental property. The complainant said that she was aware that the respondent would already have this information from the registration of the tenancy with the Residential Tenancies Board. She outlined that the respondent was trying to catch her out by not stating the address.
The complainant outlined that this was a nasty campaign of intimidation and harassment. Taking the case to the Workplace Relations Commission was bad for her health and this arose from her dealings with the regional office.
The complainant reverted to her previous regional office in July 2018. The 2016 and 2017 returns were submitted, as was the return for 2018. The complainant said that she wanted to question what went on with the regional office. She explained her circumstances in every phone call and why she was not able to work as a solicitor anymore and that she was in receipt of disability benefit.
In closing, the complainant outlined how rare disability harassment claims were. She said that people with ME hold a protest every year to highlight the issues arising with the illness. The Equal Status Act required that she not be treated less favourably but ME patients are treated like ‘crap’ by the medical profession and the Government. She asked for something in every phone call and wanted it done. She did not want time. The onus has been placed on her to trigger the accommodation, but this is the opposite of what is required. She was subject to harassment in the phone calls and this was unwanted conduct. The staff member has accepted she deleted her de-registration in raising an assessment. She said that 60 people ask for help every year from the six access officers. The notice of assessment was on the online system as unread and had since been replaced by a repayment.
Summary of Respondent’s Case:
The respondent opened its reply by acknowledging the health conditions the complainant has and the strength it has taken her to advance these complaints. It submitted that its conduct was not based on her disability.
The respondent set out its reply on the 13th August 2018 and this was in reply to the original letter of the 18th July and not to the ES1 form. This letter refers to the de-registration and offers for a staff member to call out if the issues cannot be resolved over the phone. The complainant should have pursued the respondent’s complaints mechanism.
There are complaints regarding the 1890 numbers and the online system – it submitted that there is no authority to require a complete redesign and the test for reasonable accommodation is objective. The pricing of phone numbers is an issue, but it is not an issue arising from a disability. While the online system is daunting, the complainant did not say what she needed. She has not requested a specific facility in respect of the system. She also never asked for more time to submit returns.
The respondent said that while the complainant said she was sick, she did not say what she needed. On the 3rd July, the respondent became aware of the complainant’s disability and she supplied further information on the 18th July. She did not set out what she wanted.
The respondent outlined that an Access Officer is available online within four clicks. The website lists the access officers to contact. This comes up when searching disability on the website.
The respondent said that the regional office was not asked to give more time. The complainant had said in passing that she was sick but did not ask for anything. The respondent relied on McDevitt v Workplace Relations Commission (DEC-S2018-030) as authority that a service provider was not required to intuitively identify cognitive impairment in a service user. The respondent submitted that this would be a dangerous path for a service provider to embark on.
The respondent submitted that the complainant attributed how she was treated to the relationship with a large firm of accountants, her being a solicitor and her former registered address in a different county. The respondent submitted that all three were not to do with disability. The complainant expected the respondent to be intuitive, inquisitorial and anticipatory. It was not clear what the complainant was seeking in terms of reasonable accommodation. Relying on Cahill v Minister for Education  IESC 29, the test is objective. The complainant was never refused anything, and she did not ask for anything. It was not cost anything to give the complainant more time, i.e. coming within the ambit of ‘nominal cost’.
The respondent outlined that ME is not a well-known illness and should be better known. It stated that once a query is presented to the respondent, this goes up the line and, in this case, an access officer became involved. It outlined that the complainant had not treated the letter of the 13th August as an invitation to deal with her complaints.
The respondent presented evidence that all public bodies were required to have access officers and it has six access officers. If someone specifies a service they need, the respondent will endeavour to make this available.
The respondent referred to its timeline set out in the reply of the 1st October 2018. The phone call of the 23rd March had not been acrimonious. The case was assigned to a staff member on the 1st May. There followed difficulty on the 6th June in the phone call with the other staff member. The respondent outlined that the Form 11 states that it should be returned to a particular office. A staff member made a phone call and left a message for the complainant on the 31st May.
The respondent outlined that it raised an assessment on the 2nd July. Time was afforded to the complainant and it was not aware of any illness. This was first mentioned by the complainant on the following day. The focus was then on problems with the system.
In respect of the phone call on the 6th July, one staff member answered the call on her colleague’s file. The staff member gave the address of the office the complainant had to send the Form 11 to. While the complainant referred to having ME, there was no request for any facility or time. On the 23rd July, the staff member phoned the complainant as no return had been made. The complainant ended the call.
The respondent set out the issues as being the 1890 phone number, the online system, and the claims of harassment and the failure to provide reasonable accommodation.
In evidence, the respondent outlined that the online system is for business users and most Form 11s are submitted online. A ‘Form 12’ can be submitted through a different online system. The digital certificate lasts for two years and the respondent provides technical support to users. Anyone who mentions a disability may be referred to an Access Officer. A user saying that they cannot manage the system would be referred to the local office. The respondent seeks to find out what someone needs. Access is organising a channel for someone to meet their obligations.
The respondent said that it could see where things mismatched in this case. The complainant had been marked up as a Form 11 chargeable person so could not submit a Form 12. In 2016, the threshold for submitting a Form 12 had increased to €5,000. The complainant’s change of address had introduced a third address.
Evidence of the Principal Officer
The Principal Officer outlined that the respondent implemented the 1890 system before the mobile phone era and when it cost more to make non-local calls. The 1890 system made it easier to phone a number and at the same cost. The mobile phone operators, however, do not treat it as a local call. The respondent receives several thousands of calls per day. Since this time, the respondent has moved away from having to call an 1890 number, so that all calls cost the same.
In questioning, the Principal Officer said that the changes were introduced in September 2018 and arose because of changes with the operators. This was not related to this complaint. He said that the complainant could have asked for a special arrangement and this is advertised on the website. Phone calls are recorded for training and quality purposes and retained for six months. A note is made of the phone call but not of medical information. The Access Officer capability is part of what the respondent offers and is available to help. The default position is that when someone says they need help, they are asked what help they need. The call could be referred to a supervisor or an Access Officer. The complainant needed to be de-registered and this happened when the letter was submitted. The respondent was never told that the complainant had a disability and needed help.
In re-examination, the Principal Officer outlined that when a person advises they have a disability, they will be asked what can help they need, or this is referred to a supervisor. If someone says they are sick and was a solicitor, you might ask when they stopped being a solicitor. The respondent would be very slow to ask about medical circumstances.
The Assistant Principal in the regional office
The Assistant Principal outlined that she became involved on receipt of the letter of the 18th July. She asked the two staff members to write notes of the phone calls with the complainant. By this time, the firm of accountants had been removed as the complainant’s agent, the form 12 had been filed and the complainant was no longer registered. The Assistant Principal said that she apologised to the complainant if anything had been taken the wrong way. The Assistant Principal sought to address the complainant’s issues.
The first compliance office staff member
The staff member outlined that she was assigned the case on the 20th March and sent the standard letter to the complainant. On the 23rd March, she spoke with the complainant and said that the employer had provided the information regarding income. The complainant said she had problems with the online system and that she would be supply the information. They discussed removing the firm of accountants as her agent. The staff member described the phone conversation as pleasant.
The staff member said that she again spoke with the complainant on the 6th July and saw that her file was with her colleague. The complainant asked where to return the Form 11 and, on the 3rd July, they had been told that this should be sent to a particular office. The complainant mentioned she had ME and the staff member advised that she contact either her or her colleague. The complainant appeared satisfied even though they were both upset. The staff member said that she could not recall saying “you’re the Solicitor” to the complainant.
The staff member said that she could understand why the complainant was frustrated. The staff member did not know of the complainant’s disability and the complainant had mentioned this at the end of the phone conversation of the 6th July, when the complainant was already upset. The staff member said that they only record the relevant information on the IT system and put a note on the customer service system. It was their practice to give more time.
In cross-examination, it was put to the staff member that the complainant had gone through her circumstances and told her she was struggling. The staff member was asked whether she inquired if the complainant had submitted the 2015 accounts. The staff member replied that she could not recall this as the main thrust of the phone call related to the incorrect figures in the pre-populated part of the Form 11.
The staff member said that they would often ask whether an agent was still acting in this capacity. The focus of the conversation was on the outstanding returned. The complainant was listed on the system as a solicitor. The staff member recalled the complainant saying she was unable to submit the document online and that the information was what had been provided by the employer. The staff member could not recall giving the complainant the exact figure of the threshold. The staff member said that she wrote the note of the conversation in late July.
It was put to the staff member that on the 6th July, the complainant had been looking for information as to where to file the return; the staff member replied that she always dealt with users in a professional and courteous way. She said that the complainant was upset and quite irate. The staff member asked for the complainant’s name and sought to find her information.
The staff member was asked why the complainant could not just get the address; she replied that she could not locate the complainant’s file but on entering the complainant’s PPSN saw that the file had been transferred to her colleague. The staff member said that the complainant complained about the phone system. The staff member said that she had to check the address to return the form as this has recently changed. She did ask the complainant how she got her direct dial.
It was put to the staff member that she was aggressive and told the complainant that she should not send the form to [county]. The complainant mentioned that she had ME and the staff member did not pry. The staff member’s focus was on filing the return. There had been no mention of her illness in the March phone call.
It was put to the staff member that the complainant had informed the respondent to the best of her ability of her circumstances. The complainant had always filed her returns on time and could not submit the 2016 return because she was ill. The complainant said that she only wanted the document filed while the respondent had said that she wanted extra time.
The second compliance office staff member
The staff member outlined that she was assigned the case on the 31st May. As set out in her handwritten statement, she left a message with the complainant to ask for the return to be completed and if not, an assessment would be raised. The complainant sent a message through an online system to say that she had de-registered and that she was no longer a solicitor and was now on disability. The staff member said that her line manager outlined that an assessment should be raised on income of €20,000.
The staff member outlined that the complainant’s agent had not stated in the 2013 return what the complainant’s date of cessation of being a solicitor. This meant that the complainant was still recorded as a solicitor.
The staff member said that on the 3rd July, the complainant said that she would submit a medical certificate, but the respondent would not have requested this. She outlined that the respondent did not disbelieve her and would have referred up any difficulty. The complainant then referred to the staff member as being rude. The staff member did not accept that she had been rude.
In cross-examination, the staff member said that she did not recall undertaking any specific equality training. She would never request a medical certificate and now knows more about ME. The complainant had not asked for any particular help and the staff member would have acted on whatever the complainant asked for. The staff member was asked whether it was for the complainant to trigger an accommodation. The staff member replied that the complainant had not stated what help she required. The staff member said that she had dealt with people who had illnesses and the only thing she had been asked to provide was extra time. The staff member said that she raised the assessment on the 2nd July after there was no response to the letter of the 13th June.
It was put to the staff member that the issue of the complainant’s properties was raised for the first time in July; she replied that she was concerned about the issue of the properties on receiving the file on the 31st May. She then sent the message of the 13th June. She needed to know about the property in [county] and she had not looked at the previous return. The staff member said that the notice of assessment was raised on the 2nd July and dated the 29th June on income of €20,000.
The staff member acknowledged asking the complainant about her address in [county]. She was asked why the respondent had enquired about her address in 2018 when this matter related to a 2016 return. It was put to the staff member that there was no place for the enquiry as the complainant’s address in 2016 had always been in [county]. The staff member accepted that the raising of the assessment prevented the complainant’s request to de-register going through.
It was put to the staff member that the complainant had submitted the return on the 18th July but there followed the phone call on the 23rd July. The staff member replied that the system did not show the return as having been received. It was put to the staff member that nothing was done to help her make the return; she replied that her colleague had provided the correct address to submit the document, but the complainant had sent it to [county].
In closing, the respondent outlined that while the complainant had not been cross-examined, this did not mean that she could fill in the gaps in her case. It wasastonishing that on the 6th July (the last date of engagement by the complainant) she says she is not interested in talking and did not reply to the respondent’s detailed letter. The complainant says that all she was looking for on the 6th July was the address to send the form and she got the address. There was, therefore, no failure to provide reasonable accommodation.
The complainant complains about how she was treated by the two staff members. The complainant did not take up the offer of submitting a formal complaint or for a call-out. The complainant never asked for any accommodation and a service provider cannot be asked to be intuitive or to look behind what a user requires. The complainant was looking to ask questions of both staff members and has now had that opportunity through this hearing. Her claim is disability harassment, which is a rare claim. Section 11 of the Equal Status Act requires that she was treated in a certain way because of her disability. The complainant asked at the adjudication what triggered their interactions when her claim is that this was because of her disability. Asking this question is inconsistent with the claims of accommodation or harassment.
The respondent submitted that the complainant had not explained why she had not pursued a complaint via the Access Officer. She could have pursued this in the reply to the respondent’s offer. The complainant made no specific request of the respondent, for example for time or for a call-out. The respondent did not doubt the complainant saying she was sick, and nor did it pry into her health. It was, however, for the complainant to trigger any accommodation.
The respondent submitted that the claim relating to the 1890 number cannot stand up as what the complainant wants is system change. The question is when did reasonable accommodation becomes an issue. There would be massive implications if a frontline officer was required to go on inquiry or ask questions of a user where they mention a disease or their health. It submitted that the complainant was never refused anything because she never asked for anything. The question was whether the respondent did anything wrong, or were they just doing their job.
Findings and Conclusions:
This is a complaint pursuant to the Equal Status Act. Sadly, the complainant has myalgic encephalomyelitis (‘ME’), a serious and debilitating disease. The complainant describes that she could be housebound 90% of the time. In her evidence, she pointed to periods of activity, for example swimming, followed by crashes. The complainant refers to debilitating physical pain as well as short term memory loss. The complainant set out wider failings in respect of how ME sufferers are treated by the medical profession and the Government.
Interactions with the respondent
This case relates to the complainant’s interactions with the public body, in particular in relation to annual returns required of the complainant and customers generally. The complainant sought to submit her return for the 2016 financial year. This was due on the 14th November 2017. While the complainant had filed a return for the previous financial year, she was unable to submit the return for 2016 online. This was due to technical issues accessing the respondent’s IT system.
The complainant then changed her registered address to one in a different county, which was her former family home. The complainant did not physically move to this location. The complainant and her brother sought to complete the necessary form with pen and paper, and this was how the complainant was in contact with the respondent regional office.
Disability / service
It was not disputed that the complainant has a disability within the ambit of the Equal Status Act. It was also not in dispute that the respondent provided a service to the complainant within the ambit of section 3 of the Act. I find that the matters addressed in this case fall within ‘service’. I formally make this finding in the light of comments by Simons J. in Smith v Office of the Ombudsman  IEHC 51, at paras 29 and 102.
Burden of proof
The complainant asserts both direct and indirect discrimination and harassment in contravention of the Equal Status Act. Section 38A provides “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.” The complainant is required to establish facts that may give rise to an inference of discrimination and the burden of proof then shifts to the respondent to disprove the inference of discrimination.
Stance of the parties
The complainant asserted that she was discriminated against in respect of access to the online system and the 1890 phone numbers. She referred to discrimination in respect to how she was treated, including the blocking of the return. The complainant complained of her interactions with two staff members, stating that this was discriminatory harassment.
The respondent denies the claims. Overall, it submitted that it was doing its job in all of its interactions with the complainant. It submitted that the complainant never asked for any reasonable accommodation. It did not discriminate or harass the complainant. It referred to the complainant’s stated wish to question what went on with the regional office, but any such claim must relate to disability or a contravention of the Equal Status Act.
The 1890 numbers
Taking the issues in turn, the complainant pointed to the cost of contacting the respondent by phone. This was because calls were routed through 1890 numbers, even where the number listed did not start with ‘1890’. The respondent indicated that this system was developed prior to mobile phones and the costs arose because of how the mobile phone operators dealt with the calls. The matter had been referred to the regulator of telephone communications. The respondent outlined that it had since modified this, so that users did not incur such costs.
The respondent denied that this change was related to the instant case, but even if it was, the use of 1890 numbers did not amount to direct or indirect discrimination on grounds of disability. It was clearly not directly discriminatory as the charges were the same for all. It was not indirectly discriminatory as the complainant has not shown that people with disabilities were placed at particular disadvantage, i.e. disproportionally affected by the phone system.
Access to the IT system
The complainant raised the issue of access to the named IT system. She successfully filed the return the previous year but was unable to do so for the 2016 financial year. It later transpired that the Digital Certificate she had previously downloaded had expired. She was unable to resolve the issue and sought to file the return by paper and changed her registered address.
Having considered the evidence and submissions of the parties, I find that there is no direct discrimination. The use of a Digital Certificate may be more convenient for a professional accessing the IT system every day to file returns for clients, as opposed to a customer accessing the system once a year to file their own return. This is not direct discrimination on grounds of disability. It did not place people with disability at a particular disadvantage, so the claim of indirect discrimination is not made out.
Section 4 of the Equal Status Act is clear that the failure to provide reasonable accommodation falls within the ambit of ‘discrimination’. The respondent denies the claim, asserting that the complainant did not ask for any accommodation. The respondent referred to the ready availability of Access Officers (at four clicks on the website). Its evidence was that time was the accommodation most often sought and granted. I appreciate that the complainant was clear that she did not want time, only to file her return.
Section 4 refers to the ‘failure or refusal’ of a service provider 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.’
I find that because the complainant did not request any specific form of accommodation or special treatment, the respondent cannot be held to have failed or refused to provide special treatment of facilities. I agree with the respondent that the service provider is not required to be intuitive to, or anticipatory of, any need. I, therefore, find that the complaint is not made out.
Allegations of discrimination
For completeness, I find that the act of raising the assessment was not discriminatory as it was an act undertaken by the respondent in accordance with its role. There was a ‘mismatch’ arising from the use of Form 11 and/or Form 12 for the preceding financial year; the online document cited income for the current financial year. There was also a recent change in how and where particular forms should be sent to. While this caused difficulties, it was not discrimination. I appreciate that having to recount one’s situation repeatedly is frustrating, but the respondent not having a centralised memo system to record all contacts with every user is not discriminatory.
The complainant asserts that she was subjected to discriminatory harassment at the hands of the respondent, in particular in respect of her interactions with the regional office. The respondent denies the claim.
Section 11 of the Equal Status Act defines discriminatory harassment as unwanted conduct that has the ‘purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’ It is a defence for a service provider to have taken reasonably practicable steps to prevent the harassment.
There were a series of telephone calls between the complainant and the two staff members. The March 2018 phone call was generally business-like, but later phone calls were certainly difficult. The participants described these later calls as ‘furious’ and ‘upsetting’.
Having reviewed the evidence, I do not see anything that can amount to ‘harassment’ per the definition set out in section 11. These were certainly fractious phone calls and not what should be the norm in an interaction between citizen and public sector. There is insufficient evidence to find that they amounted to harassment. I understand the complainant’s concern that she was referred to as ‘the solicitor’ during these phone calls. There is not enough evidence, however, to conclude that this was an act of harassment, for example an act to goad or humiliate the complainant.
Discrimination arising from references to 2018
I find that one element of the discrimination claim succeeds.
I have found that the respondent was providing a service to the complainant within the ambit of the Equal Status Act. In order for the complainant to succeed in this Equal Status complaint, she must first establish facts of such significance that may raise an inference of discrimination (per section 38A). This requires evidence of difference in treatment related to the relevant discriminatory ground (see Smith v Office of the Ombudsman). Unless pregnancy-related gender discrimination, simply falling within a category of person will not suffice to raise a prima facie case of discrimination (see Valpeters v Melbury Developments Ltd EDA 0917). Where a respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out; there does not have to be a discriminatory motive (see Ely Property Group v Boyle EDA0920).
In this case, it was clear from March 2018 that the complainant had difficulties to filing the 2016 return. She changed the registered address and liaised with the regional office. She explained how her disability had impacted her, in particular in filing the return. There was further correspondence and the respondent raised the assessment. The respondent outlines that all it was doing was doing its job. The job at hand here was the filing of the 2016 return. If this was incomplete or inaccurate, the respondent has statutory powers to address any such deficiencies.
There were difficult phone calls for everyone involved. Yet, the compliance section pursued issues with the complainant regarding the change of address and the rental income she received in 2018. These enquiries did not arise from the job at hand and the filing of a return for 2016. They caused additional difficulties for the complainant as she had to account for her income in 2016, the delay in filing this return and now also what happened in 2018.
During the hearing, we spent some time discussing this aspect of the case. I asked why matters relating to 2018 were raised when discussing the filing of an overdue and historical return for 2016. No explanation was given. This logjam was later broken by the complainant referring her file to a different respondent office (where the matter was promptly resolved).
What Smith v Office of the Ombudsman and previous case law holds is that there must be some evidence of a difference in treatment so that an inference of discrimination may be drawn. I find that the introduction of the matters pertaining to 2018 was such a difference in treatment; there is no evidence of this approach being taken in other cases. During the hearing, I enquired into why this course of action had been adopted.
While there were certainly fractious interactions between the relevant parties, the complainant’s disability was well known to all and not in dispute. I find that disability contributed to the differential treatment and the respondent has not shown that this had no influence, nor a trivial one. Instead of facilitating receipt of the 2016 return, the respondent engaged in additional enquiries related to 2018. This approach appeared to stem from a disbelief of what the complainant was saying, but her disability was at the centre of everything she was relaying to the respondent. I agree with the complainant’s point that this would not have occurred had she had a more widely-known disease (she gives the example of cancer), as opposed to a lesser-known condition like ME.
It follows that, in respect of this aspect of the case, the complainant has established discrimination and a contravention of the Equal Status Act. In assessing loss and inconvenience, I note that, as of July 2018, there were difficult interactions between the parties. I acknowledge the effect this had on the complainant as she was already fighting a battle to resolve her affairs. This was resolved by the complainant’s own actions in raising her case elsewhere. Taking account of the circumstances, I award redress of €1,000.
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.
I decide that the respondent did not fail or refuse to provide reasonable accommodation to the complainant. I decide that the respondent did not harass the complainant. To the extent set out above, I decide that there was discriminatory treatment and the respondent shall pay to the complainant redress of €1,000.
Dated: 9th June 2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Equal Status Act / service
Disability / myalgic encephalomyelitis ME