Complainant

Respondent

Parties

Justin  Sheehan

Galway County Council

Complainant

Respondent

Anonymised Parties

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Representatives

Mary Catherine Durkan, B.L. instructed by Benen Fahy Associates

Robert Meehan, Law Agent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00055621-001

21/03/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent undertook to give their evidence under affirmation.  Cross examination was facilitated.

The finalising of this decision was delayed, in part, due to a family bereavement and in part by the impact of Covid 19.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that he applied to the respondent for planning permission for a single home in his local area, in County Galway on 21 October 2022. The complainant submitted that he has resided in this area his entire life.

The complainant submitted that when he was married, he applied for and received planning permission for a family home in 1995. It was submitted that this property was sold in 2000 and the complainant and his then wife applied successfully for planning permission to build another house. That house was built thereafter.  However, the couple separated and his interest in the former family home was transferred to his former wife in 2021. He applied to build another house in 2022.  The planners report raised an issue of concern as this would not be the applicant’s first time applying for a house.  The application was refused on the basis that the applicant did not demonstrate a rural housing need in accordance with County Development Plan.

The complainant submitted that the respondent refused the application and that this amounted to unfavourable treatment and that he discriminated against by the respondent on the basis of his civil status. The complainant submitted that as a divorced individual with a housing need, he has been denied the possibility of obtaining planning permission in his local area as a result of the respondent’s failure to apply the “Fresh Start” principle in respect of his application for planning permission.  He submitted that a number of local authorities were following this principle and that it should have applied to him too.

The complainant stated that he reapplied for housing permission on the same basis as the first application but was again refused permission.  The complainant submitted that he appealed the decision of the respondent to An Bord Pleanala in January 2023.

The complainant is seeking redress in the form of compensation.

The respondent submitted that the complainant is outside of the time frame laid down in the Equal Status Act for notifying a respondent regarding the complaint under that Act.  The respondent submitted that the complainant should have given this notification within two months but did not do so.

The respondent submitted that it considered the complainants application for planning permission in accordance with the statutory framework that is in place for local authorities, together with the local development plan.  The respondent denied that it discriminated against the complaint.

Preliminary Issue – provision of a service.

The respondent made a number of legal submissions. The first legal submission concerned the date of the provision of a service. It argued that the date of discrimination must of necessity be 9 May 2022 when the Galway County Development Plan was adopted. It was argued therefore that this complaint was out of time.

The provision of a service is just that, providing a service. It does not relate to the adoption of a plan but rather upon which the subsequent service which is provided under that plan. Accordingly, I'm satisfied that the date in question was the date when the planning application was refused, not when the development plan was adopted.

Preliminary Issue – Notification under the Section 21 of the Act.

As a preliminary matter, the respondent raised the issue of prior notification of the compliant by the complainant to the respondent.

The Act notes the following at Section 21(1),(2), (2A) and (3):

21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).]

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Ac],

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

The complainant submitted that he notified the respondent in accordance with the requirements of the Act.  The respondent submitted that although he notified them, it was not in accordance with the provisions of the Act. 

Having regard to the issue of notification, and all the circumstances of this complaint, I do not think that there is any risk of prejudice to the respondent’s ability to deal adequately with this complaint.  Accordingly, I am satisfied that it is fair and reasonable to direct that the provisions of Section 21(2) do not apply in the particular facts of this complaint.

Substantive Complaint:

The complainant outlined how he should have been treated differently by the respondent in relation to his civil status. He suggested that the respondent should have had regard to a policy called “Fresh Start” which had been introduced by a number of local authority areas, although not the respondent in question. In essence he submitted that he should have been provided with more favourable treatment than others on the basis of his civil status.

Section 3 of the Equal Status Act, 2000 defines discrimination in the following manner:

(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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.]

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different civil status (the “civil status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

(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”),

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

In essence the Act deals with situations where one party has been treated in a less favourable fashion than another party was or would have been; and the reason for that less favourable treatment was one of the protected grounds.

In the case to hand the complainant was seeking that the respondent consider his application for planning permission in line with the “Fresh Start” principle.

The Act is concerned with people being treated less favourably than others on the basis of the protected characteristic. Nowhere in the Act does it require a person or category of persons to be given more favourable treatment, save that of disability, vis-a-vis the issue of special treatment or facilities.

Having considered all the written and oral submissions made in relation to this complaint, I find that the complainant was looking for more favourable treatment and that the complaint does not revolve around an issue of him receiving less favourable treatment. Not giving consideration to providing more favourable treatment to someone under the Civil Status ground does not amount to prohibited conduct under the Act.

Section 38A of the Act states as follows:

38A.—(1) 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.

Having considered all of the written and oral material submitted in relation to this complaint, I find that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to him.

Both the complainant and the respondent made reference to the caselaw in G v The Department of Social Protection [2015] 4 IR 167 and in AB v Road Safety Authority [2021] IEHC 217 regarding the issue of the Equal Status Acts and Statutory Schemes.  Additional cases were put forward by both parties regarding this point.  However, having regard to my conclusions regarding the complainant seeking more favourable treatment, I consider that the issue of statutory schemes and the Equal Status Acts is moot at this point.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that prohibited conduct has not occurred.

Equal Status Act – Civil Status – complainant seeking more favourable treatment – no prohibited established