Complainant

Respondent

Anonymised Parties

A Complainant

A Member of a Police Service

Representatives

In person

A Representative, Legal Department of a Police Service

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00061819-001

26/02/2024

This is a complaint taken under the Equal Status Acts 2000, arising out of an incident on 14 November 2023 when the Respondent, a member of a police service, directed the Complainant to stop his car on the roadway.

The Complainant gave evidence under oath as follows:

1.       He was discriminated against and harassed by the Respondent on 14 November 2023.

2.       The Complainant was driving his car in the slow lane of a dual carriageway outside a town. He was driving correctly and in full compliance with the Road Traffic Acts, when the Respondent, who was driving a police jeep, flashed his blue lights and sounded a siren indicating the Complainant to pull over. The Complainant was very surprised because there was no reason for the Respondent to stop him.

3.       The Complainant drove his car carefully and correctly onto the hard shoulder. The Respondent got out of his jeep and came over to the Complainant’s driver window. He was very aggressive to the Complainant. He raised his voice and said that he had been following him for five minutes and that the Complainant had been driving inattentively. When asked by the Complainant what he had done wrong, the Respondent rudely ignored him and asked to see the Complainant’s driving licence, which the Complainant duly gave. The Respondent did not explain why he had stopped him, and he did not identify any wrong-doing on the part of the Complainant. The Complainant was in complete shock and was embarrassed. The Respondent was offensive and aggressive. He treated the Complainant with utter disrespect and disdain. Any attempt that the Complainant made to speak was interrupted by the Respondent or ignored. Cars that were driving faster in the over-taking lane, had not been stopped. There was never an explanation given to him as to why he had been stopped.

4.       The Respondent then went to the front of the Complainant’s vehicle and phoned in the Complainant’s vehicle registration number.

5.       When the Respondent returned to give the Complainant back his licence the Complainant informed the Respondent that he was on medication which the Respondent ignored. Without any justification or explanation for the entire unjustified episode the Respondent then got back into his jeep and drove off. The Complainant was left shaken and threatened. The whole episode was inexplicable and unjustified.

6.       After he returned home the Complainant emailed the station where the Respondent was stationed to make a complaint about the Respondent, which was ignored. He attended the station in person and was informed that the Respondent was based in another police station but when the Complainant contacted that other station he was told that the Respondent worked in the first station after all. He was given the run-around. He asked to speak to the Sergeant and was told that he was unavailable.

7.       The Complainant left. He was traumatised over what happened. It forced him to take time off work following this incident.

8.       The Complainant stated that it was beyond a coincidence that prior to this event that he had sought a review/ appeal of the refusal of his application to join the police service as a serving member. And on the very same day of the road incident, the person who was dealing with his review/appeal went on annual leave.

Questions by Adjudicator

Following his evidence, the Adjudicator asked the Complainant which, of the prohibited grounds, was he seeking to rely, and the Complainant said disability. He confirmed that he had autism or ASD. The Complainant then objected to this question being asked stating that it was inappropriate.

The Adjudicator stated that in a disability discrimination complaint, it is necessary  for a complainant to prove that the Respondent was aware of his disability in order to be able to prove that the Respondent discriminated against him for reasons of disability.

The Adjudicator asked the Complainant to confirm if his complaint was that he was treated adversely by the Respondent on 14 November because he had ASD, the Complainant replied that he could not possibly know this and again objected to the question. He posited that if he was relying on the race or other prohibited ground, that he would not be asked such a question.

The Adjudicator then posited, that if it was conceded that he had been treated adversely on 14 November 2023, was it his complaint that this occurred because of his disability or because he had previously been refused entry to the police service and had queried that decision. The Complainant again objected and contended that he was being cross examined unfairly by the Adjudicator who was acting in a one-sided way and was prejudging the hearing.

The Adjudicator then explained the burden of proof on every Complainant in a discrimination case is that there is an onus to prove prima facie evidence that discrimination based on a prohibited ground, and for that to happen the Complainant has to first identify which prohibited ground is being relied upon and second he needs to prove facts from which a finding that discrimination (on that prohibited ground) has occurred.   The Complainant objected to the approach being taken by the Adjudicator. He said that this type of questioning showed pre-judgement on her part.

The Complainant said that he was discriminated against on 14 November 2023 by the Respondent because how else could one described the unfair and objectionable way that he was treated by the Respondent on the side of the road. The treatment of him was offensive, aggressive, inexplicable and unjustified.

Following the Respondent’s Submission points

In response to the Respondent submission points (which are set out below) the Complainant asked: why had the Respondent not attended the hearing, why was the Respondent not present to answer the Complainant’s questions and why was it only he who had to take an oath to swear the truth?

The Adjudicator explained that the obligation on a Respondent to give evidence in a complaint of discrimination only arises if the Complainant has first proven facts which allow a finding that prima facie discrimination (in this case on grounds of disability) took place. The Complainant disagreed and objected to this intervention by the Adjudicator.

The Complainant submitted that the Adjudicator had applied the wrong legal test and that it was commonly understood that, in discrimination cases, one doesn’t need to prove discrimination on any particular or specific ground. All the Complainant needs to do is to say what happened and from that a finding that discrimination occurred could be found.

The Adjudicator asked if the Complainant accepted that the ES1 form was not filed within two months of the alleged discriminatory act, which he did. The Adjudicator asked if there was reasonable cause for this delay. The Complainant said that he tried to make his complaint directly to the police service for weeks, but they clearly had decided on a policy of ignore and avoid. It was their attempts to frustrate him that the ES1 form was not sent until 2 February 2024 ie over 2 weeks late.   

Towards the conclusion of the hearing, the Complainant requested an adjournment to allow him to instruct a solicitor because legal arguments were raised by the Respondent that he was not on prior notice of. The Respondent representative objected to this on the grounds that the Complainant had every opportunity to bring a solicitor but chose not to. He also argued that the Respondent should not be prejudiced or asked to incur costs for a second Adjudication hearing date when the evidence was finished and when a solicitor’s presence would not change the fact that the complaint is misconceived and the WRC has no jurisdiction.    If an adjournment was being sought that application should not have been made when all the evidence was concluded.

The representative for the Respondent submitted as follows:

1.       What has been alleged by the Complainant does not amount to discrimination. While the Complainant alleges discrimination based on a disability (ASD) there is no evidence that the Respondent knew or was aware that the Complainant had ASD before he directed the Complainant to stop his car on 14 November 2023 and the Complainant accepts that he cannot prove that this is what motivated the Respondent that day. While the Complainant may be upset by what occurred, there is no proof that prohibited discrimination took place. The Complainant fundamentally misunderstands what is prohibited (discriminatory) conduct and what is not prohibited under the Equal Status Acts (ESA). The complaint is fundamentally misconceived.

2.        The WRC has no jurisdiction because the activities of the police service when acting in the course of their duty is not “a service” within the meaning of section 2(1) of the ESA.

In Donovan v. Garda Donellan (DEC-S2001-011) the Equality Officer found “It is clear and plain from the wording of section 2(1) of the ESA that the investigation and prosecution of crime are not services which are available to the public or a section of it within the meaning of service defined therein. It is my belief that these are State functions which are carried out by Gardai (and the Director of Public Prosecutions) on behalf of and for the benefit of the public and society as a while. They are clearly not services which the public have access to in the way that other services clearly are, such as access to facilities for banking, leisure or travel.”

More recently A Complainant v. AGS (DEC-S2005-37) and A Parent v. AGS (DEC-S2018-016) upheld and applied the Donovan decision.

3.       Members of a police service are entitled by statute to stop a driver (under section 109 of the Road Traffic Acts 1961) and request to see a driving licence (section 40 of the Road Traffic Acts 1961). The power of the Respondent to do what he did lies under section 7 of the Garda Siochana Acts 2005. The Respondent was entitled by statute to direct the Complainant to stop his car. He was entitled, indeed obliged, to investigate what he considered was inattentive driving.  He was entitled to sound his siren and flash a blue light to direct the Complainant to stop his car.   Once the car was stopped he was entitled to ask the Complainant for his licence. All of these actions are ordinary police duties and are mandated by statute. Section 14 (a) (i) of the ESA protects action that is required by an enactment from being found to be discriminatory. As the Respondent was acting lawfully in the course of his employment, his actions are statutorily precluded from being found as discriminatory.   

4.       In conclusion, (a) based on the Complainant’s evidence alone there is no evidence of disability-based discrimination and as such the complaint is misconceived and incapable of succeeding; (b) the activity does not constitute “a service” within the definition of section 2(1) of the Equal Status Acts and (c) the actions of the Respondent are protected by section 14 (a) (i) of the ESA.

Special Circumstances – section 25 (2) ESA

The Complainant was not represented and the issue of anonymisation of parties did not arise during the Adjudication hearing. No application for “special circumstances” was considered or raised by the Complainant. However I am of the view that it would not be in the best interests of the Complainant for his identity to be published in this Adjudication decision. As this complaint has not succeeded, bearing in mind the stress that Complainant suffered from what occurred on 13 November 2023 and also because the Complainant stated during the hearing and subsequently by emails to the WRC that he was unhappy with how this Adjudication was adjudicated upon, I do not wish to add to his stress further by publicly identifying him in this decision. I think that special circumstances exist which allow me to direct that this decision be anonymised. The Complainant has another WRC complaint which is pending. He also has a right to appeal this decision and should he wish to be identified in either of those hearings, that is a matter that he may then address.

Extension of Time for Service of the ES1 Form

I extend time for the issue of the ES1 form from two to four months because based on the uncontested evidence of the Complainant, in colloquial terms, I accept that the Complainant was “given the run around” when he tried to make a complaint about the Respondent. He believed that his complaint would be listened to and addressed but this did not take place.  I am satisfied that the service of the ES1 was late by two weeks because the Gardai with whom the Complainant sought to raise his complaint, did not properly assist him. I am satisfied that the service of the ES1 form was late because of this and that there was reasonable cause for the delay.

Discrimination Complaint

The Respondent has raised three defence points to this complaint. I address these in the correct order (jurisdiction first) below:

1.       The first defence point is based on WRC jurisdiction and the definition of “service” within the Equal Status Acts 2000 (ESA.)

2.       The second defence point is that by operation of section 14 (a) (i) where an action is mandated by statute, it may not be found to be discriminatory.

3.       The third defence point is that while the Complainant alleges that he was discriminated because of his disability, his own evidence does not bear this out.  The Complainant himself accepts that he is unable to prove that the Respondent was aware of his disability before he directed him to stop his car and therefore he is unable to prove on the balance of probabilities that the Respondents actions were due to the Complainant’s disability. He posits it as a possibility but not as a probability.

It is usual to address jurisdictional arguments first, because if the WRC has no jurisdiction to investigate a complaint, then the Adjudicator’s investigation has no basis to proceed. However as the Complainant is unrepresented, rather than confine this decision to a preliminary jurisdictional analysis alone I address both the jurisdictional points and the substantive complaint.  

Findings

In respect of the first point above, I am satisfied that the Respondent does not provide a “service” to any individual member of the public within the meaning of section 1 of the ESA. Applying the authority of Donovan v. Donnellan (DEC-S2001-011) I find that I do not have jurisdiction to investigate this complaint because the Respondent is sued as a member of a police service who was acting in the course of his duty. This is a statutory function to serve the people or the State, it is not a service to an individual, so the protections of the ESA do not apply.

If I am incorrect on the above finding, in respect of the second point I am satisfied that the actions of the Respondent on 14 November 2023 were carried out within his statutory duty as a member of a police service and that the actions taken are expressly permitted by sections 40 and section 109 of the Road Traffic Acts and section 7(1)(g) of the Garda Siochana Act 2005. I accept that the Complainant may be unhappy with how these powers were carried out, however these actions are protected by section 14 (a) (i) of ESA whereby any action that is required by enactment is precluded from being found to be discriminatory.

If I am incorrect on the above finding, I am further satisfied that the Complainant has not provided evidence from which a prima facie finding of disability discrimination may be made.

Legal Test in Discrimination Complaints

The Complainant is mistaken in his view that, to succeed in a discrimination complaint, he is not obliged to identify which of the prohibited grounds he is relying on. In order to succeed, the identifying which of the prohibited grounds that a complaint is based needs to take place, because without that the legal test cannot even be applied.  The Complainant has stated that he is relying on the disability ground.

Having identified the prohibited ground, in this case, a disability (in the form of ASD) a Complainant needs to prove facts (on the balance of probabilities) to permit a finding that discrimination (adverse treatment) on grounds of his ASD has occurred.  It is only if that onus of proof has been discharged by a Complainant, that the burden passes to a Respondent to give evidence.

The Complainant’s evidence was that he was discriminated against by the Respondent on grounds of his ASD disability, which the Respondent may have been aware of because on his application to join AGS, he disclosed this fact. But while he says that this is a possibility, he is unable to prove any evidence to support the theory that the Respondent knew of his disability prior to asking him to stop his car.

His evidence was also that the Respondent knew that he had a disability because he told him at the scene that he was on medication. However, that admission was made after the Respondent had stopped the car and asked for his licence, ie after the alleged adverse treatment had occurred.

Thirdly the Complainant also suggested that the Respondent’s actions may also have been motivated - not by the Complainant’s disability at all – but because his application to join the police service was declined and he had queried this- which is quite a different claim from disability discrimination.

I find that reasons that the Complainant asserts he was treated adversely (by his car being stopped and him being treated aggressively by the Respondent) because he has ASD are insufficiently proven.

Conclusion

In synopsis, for the reasons set out above: I am satisfied that I do not have jurisdiction to investigate this complaint because the Respondent was not carrying out a service within the meaning of section 2 of the ESA.

In the alternative, I am satisfied that the Respondent was acting pursuant to powers set out in enactments and applying section 14(1) of the ESA his actions are not prohibited.

In the further alternative I am satisfied that the Complainant has not proven on the balance of probabilities that the Respondent knew of his ASD condition prior to stopping his car, and the Complainant has not proven that he was treated adversely by the Respondent because of his disability.

I find this complaint is not well founded.

Lastly, the request by the Complainant at the end of the Adjudication that the hearing be adjourned to allow to instruct a solicitor to attend on a second hearing date was refused by me. I did so because, in my view, an adjournment or a solicitor’s attendance would not have altered the Complainant’s evidence (already heard) and what I regarded to be an irrefutable submission by the Respondent in terms of the definition of “service” in section 2 of the ESA.

This complaint is not well founded

ESA – definition of “service” - unproven discrimination