Complainant

Respondent

Parties

Michael  O'Dowd

Health Service Executive, University Hospital Limerick

Representatives

Self-represented 

Cliona Kenny

Act

Complaint Reference No.

Date of Receipt

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

CA-00063065-001

25/04/2024

The Complainant referred his claim to the Director General of the WRC on 25 April 2024 alleging that he was discriminated against by the Respondent on the grounds of his disability.

The date of the first incident of the alleged discrimination was stated as 30 June 2022. The most recent date of discrimination was stated as 16 January 2024.

The ES1 notification was served on 15 February 2024. The Complainant received a reply from the Respondent on the ES2 form on 15 March 2024.

In the WRC complaint referral form the Complainant submitted as follows.

The Complainant submits that he had two complaints.

1.      The Respondent treated him differently, (and whilst strictly speaking outside the scope of this Commission, poorly) because of his disability at the course of his treatment at its hospital between 7 June and 1 July 2022.

The Respondent failed to make any effort to accommodate the Complainant’s needs.

The Complainant made a complaint to the Respondent on 7 July 2022. ln its response, all aspects of the factual complaint have been accepted by the Respondent. The Respondent in its response to the complaint accepted that the Complainant’s requests were ignored by the Respondent.

ln addition, the Respondent accepted that the Complainant was treated in a manner which it categorised as "insensitive or inappropriate".

The Complainant submits that the failure on the part of the Respondent, which is now accepted, constitutes a failure and/or a refusal to make reasonable accommodations for the Complainant’s needs.

2.      The Respondent, having received the Complainant’s complaint on 7 July 2022, determined the complaint on 16 January 2024.

The Complainant submits that in the currency of his complaint, the Respondent failed or refused to provide any information on the progress of the complaint, despite written requests.

The Complainant submits that the Respondent, in breach of its own code, took 18 months over and above its own time limit to provide a response. This failure is wholly unexplained in the outcome of the complaint or in the ES2 response. No reason is advanced as to why the outcome took 18 times longer than required. This failure, considering the Complainant’s personal circumstances, of which the Respondent was at all times aware, constitutes failure by the Respondent to make reasonable accommodation for the Complainant’s needs.

The Complainant submits that, in both the initial treatment and in the subsequent complaint, the Complainant has been treated in a way that a person who does not have his medical condition and consequent speech limitation would not be treated.

The Complainant submits that the Respondent has failed in both instances to do all that is reasonable, and no more, to accommodate his needs. Its failures in the regard have been accepted.

Summary of the Complainant’s statement

Reason for complaint

The Complainant submits that on 7 June 2022 he was taken to UHL. He alleged that during a certain procedure, a nurse and two health care assistants made jokes about the Complainant that violated his dignity.

The Complainant submits further that after a 12-day period of bedrest, staff placed him in a wheelchair without appropriate support resulting in him almost falling out of the chair. The Complainant submits that he saw staff laughing at him and joking about him despite the fact that he could have been seriously injured.

The Complainant submits that he made numerous requests that his tablets not be crushed because this makes him sick, but staff continued to crush them.

The Complainant also submits that, on another occasion he asked the staff to stop touching his legs and lower body and to stop moving him excessively because this was aggravating his chronic pain and causing him considerable distress. On numerous occasions he told staff that he could move himself and he did not need them to move him. The staff did not listen to him.

The Complainant submits that in both the initial treatment and the subsequent complaint, he has been treated in a way that a person who does not have his medical condition and consequent limitation would not be treated. The Respondent, in breach of section 4 of the Act has failed in both instances to do all that was reasonable, and no more, to accommodate the Complainant’s needs. The Respondent’s failures in that regard have been accepted. Consequently, the Complainant seeks redress for the prohibited conduct to which he has been subjected by the Respondent on two occasions.

Timeline of complaint

On 7 July 2022 the Complainant emailed a complaint to the Respondent’s Business Manager, Medicine Directorate UHL.

On 22 July 2022 the Complainant’s feedback was sent by a Staff Officer – Your Service Your Say to Ms Orla Hammersley, Patient Advocacy Liaison Service UHL (‘PALS’).

On 22 July 2022 the Complainant was contacted by Ms Hammersley. The Complainant met with Ms Hammersley on 27 July 2022.

On 16 January 2024 the Complainant received the report of the investigation of his complaint and an apology for the treatment he had received and for the delay in responding to his complaint.

Outcome of Complaint

The Complainant submits that it took 18 months for his complaint to be dealt with.

He received an apology for how he was treated and for the delay in investigating his complaint and issuing him with a response to his complaint.

The Complainant submits that, after receiving the letter detailing the outcome of his complaint on 16 January 2024, he decided to make a complaint to the WRC.

The Complainant submits that the Respondent is trying to rely on its own failure to conclude its investigation in order to defeat his claim.

The Complainant submits that the Respondent, in its letter of 16 January 2024 and the ES2 form, stated that the delay (which was 18 times the allowable time for the progress of the complaint) was “as a result of the delay in receiving a response from nursing management”.

The Complainant submits that he was required to engage first with the internal process, this should not stop him from having recourse to the WRC. The Complainant contends that he should not be disentitled to the protection of the legislation as a result of the delay on part of the Respondent.

The Complainant submits that until he received the letter of 16 January 2024 he was unaware the Respondent had accepted all of those matters of fact as set out in his claim. The Respondent did not communicate its position regarding the investigation, therefore, the time limit only started to run on the date when the decision of the Respondent on the complaint was communicated to the Complainant, 16 January 2024. Therefore, there was no delay in submitting of his complaint to the WRC.

The Impact

The Complainant referred to a letter from a Consultant Psychiatrist that described the impact of the events in question on him.

The Complainant submits that he feels let down by the health service. He submits that he trusted UHL to assist and support him in his sickness and he cannot now trust the Respondent with his care.

The Complainant submits that he now experiences mental anguish, frustration, anger, resentment and anxiety as a result. These emotions are not good for both his physical and mental health.

The Complainant submits that he was not shown dignity, it was incredibly degrading to have to listen to the Respondent’s staff laugh and joke about his personal care. This made him feel like there was a big power imbalance and this made him feel very small.

The Complainant submits that it has led him to feeling incredibly low and has really damaged his self-esteem and confidence. This has impacted other areas of his life, for example when he starts working with new staff, he immediately has a guard up.

The Complainant submits that he has become an angrier person – he specifically asked hospital staff not to crush his medication as this makes him sick and they repeatedly did this despite him outlining his wishes. He did not feel listened to, he felt disrespected.

The Complainant submits that the incidents have made his life more difficult, when it didn’t need to be. He spent the following months/years since the incidents trying to make a complaint about his experiences and hopefully bring the matter to court so that those responsible are held accountable and he can be compensated for the damages caused to him. The Complainant submits that he is mentally and emotionally distressed about having to do this as it adds intense stress and anxiety to his life.

The Complainant submits that his moods are presenting much differently following the incidents and as a result, he was prescribed a higher dosage of medication to help him cope. He feels nauseous and sick when he thinks about what happened.

The Complainant submits that he deserves justice so that he can be guaranteed that nobody else will have to endure what he had to endure whilst in the care of UHL.

Cross-examination of the Complainant’s evidence

It was put to the Complainant that the Respondent accepted that he events he described are unacceptable. The Respondent outlined the definition of “discrimination” for the purposes of the Act. The Complainant was asked to clarify what did he say was the act of discrimination in this case. The Complainant said that it was being laughed at and not being listened to when he asked for his medication not to be crushed.

The Complainant was asked who his comparator was, who did he think was or would be treated better. The Complainant said that he did not have an answer.

It was put to the Complainant that insensitive or inappropriate conduct constitutes work misconduct. It was not specific to the Complainant’s disability, if it happened to him, it could have happened to someone else. In reply, the Complainant said that the Respondent’s staff had control of his care, and he explained his issue to them. The Complainant said that he was treated differently because of his wheelchair and speech difficulties.

The Complainant was asked what reasonable accommodation he asked for that was not given to him. In reply the Complainant said that the Respondent did not reply when he sent his complaints in. It was put to the Complainant that the Respondent accommodated the Complainant and met with the Complainant in his home, which was extremely unusual, took details of his complaint and accommodated him as much as it could.

The Complainant agreed that he received an immediate response to his communication. He also agreed that Ms Hammersley met him in his home. However, he asserted that nothing was followed up.

The Complainant further stated that he requested information under the Freedom of Information legislation on many occasions with his last advocate. He received it but it took a long time.

The Respondent put it to the Complainant that it was accepted that there was a delay but he was not treated any differently than someone else would be.

It was put to the Complainant that the Respondent’s letter of 16 January 2024 outlined that he could complain to the Ombudsman. The Complainant said that he did, the matter was now concluded, but not to his satisfaction.

It was put to the Complainant that at no stage did he provide the Respondent with a report from his GP or psychiatrist.

In response to the Respondent’s submission, the Complainant disagreed that his complaint was out of time. He also disagreed that the treatment was not discriminatory. He asserted that someone without a disability would not be treated like he was. He said that he was treated like a child, he was not in control.

The Respondent submits as follows.

The Complainant lodged a complaint with the WRC on the 25 April 2024 seeking adjudication by the WRC under section 21 of the Equal Status Act 2000 as amended. The Complainant complains that he was subjected to poor treatment by the Respondent in how he was treated while in hospital between 7 June and 1 July 2022 on the grounds of disability and that there was a failure and/or refusal to make reasonable accommodation for his needs. The Complainant further complains that the delay by the Respondent in processing his complaint of 22 July 2022 constitutes a failure to do all that is reasonable and not more to accommodate his needs.

PRELIMINARY ISSUE

In this case, the Complainant presented his complaint well outside the time limit of 6 months from the date of the poor treatment he says he experienced in hospital and the alleged failure to make reasonable accommodation in respect of his needs.

Nowhere in the complaint or in associated documentation does the Complainant assert that there were circumstances which meant that he was prevented from submitting his complaint within 6 months from the date of the alleged prohibited conduct.

The Respondent’s position is that the Complainant’s complaint is long out of time and the WRC has no jurisdiction to hear same and the complaint should be dismissed.

The Respondent relies upon the following caselaw in support of its position regarding the time limit:

ADJ-00040197 Mairead Hanlon v Ard Churam Day Centre

The complainant submitted a complaint pursuant to the Terms of Employment Information Act 1994 as amended but same was out of time by 3 days. The Adjudication Officer found that they did not have jurisdiction to hear the complaint as it was outside the time limits provided under the law.

ADJ-00037399 Kevin Stapleton v Acushla Limited

The Complainant submitted a claim pursuant to the Unfair Dismissals Act but the claim was lodged with the WRC on 24 February 2022 in excess of 12 months from his resignation/dismissal on the 13 February 2021. The Adjudication Officer confirmed that they had no jurisdiction to investigate the complaint as it was out of time.

UD1264/2008 Mary Sheehy v Most Reverend James Moriarty

The Tribunal held that ‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing’’ where ‘’the claims were not instituted within the time periods set out in the legislation’’.

At the hearing, it was submitted on behalf of the Respondent that the events outlined in ES1 form arise from the events in June-July 2022.  With regard to the complaint procedure, there was no attempt by the Complainant to suggest that there was any allegation of discrimination. Therefore, the Complainant cannot now argue that it was discriminatory.

FACTS AND EVIDENCE

The Complainant’s allegations are contained in the Form ES1 dated 13 February 2024 which was delivered to the Respondent 1 year and 7 months after the alleged prohibited conduct.

The Complainant alleges that during his attendance at the hospital, he was unhappy with the treatment and alleged that certain staff members had laughed at him and his personal care, spoken to him in an inappropriate manner and continued to crush up his medications despite his requests not to crush them.

The Complainant made a formal complaint to the Respondent on 7 July 2022 and attended a meeting with Ms Hammersley PALS manager on 29 July 2022 where he set out the details of the inappropriate and poor treatment during his admission between 7 June and 1 July 2022. Of note in the initial complaint and the note of the meeting of 29 July 2022, the Complainant made no allegation of discrimination or a failure or refusal to make reasonable accommodations due to his disability.

The Respondent confirmed that a formal investigation would be carried out into the allegations and an investigation commenced.

It is submitted that the Respondent reviewed the complaint and considered which policy was the most appropriate and reviewed staff rosters in order to identify the relevant staff members.

Unfortunately, this process took some time and encountered difficulties, as a review of all the rosters failed to identify the specific staff members named by the Complainant as having worked on the relevant wards at the time of the alleged incident. The Complainant’s medical records were also reviewed.

It is accepted and admitted by the Respondent that the complaint was not dealt with in a timely manner due to significant staffing pressures and clinical demands in that hospital at that time.

A response to the complaint was issued on 16 January 2024 to the Complainant and set out the response of Ms Naughton ADON who apologised for the negative experience the Complainant had during his admission and confirmed the staff were engaged in communication training to improve communication.

Ms Naughton also acknowledged that despite the notation of the Complainants preferences regarding his medication, his medication was crushed on occasion during his admission and an apology was offered in respect of same.

LEGAL FRAMEWORK

The Respondent relies on the relevant sections of the Equal Status Act 2000 as amended, namely section 3- Discrimination (general), section 4 - Discrimination on ground of disability, section 5 - Disposal of goods and provision of services, Section 21 - Redress in respect of prohibited conduct, Section 27 - Redress which may be ordered, Section 38A - Burden of proof.

With regards to section 38A, the Respondent submits that it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him and that there was a refusal by the Respondent to do all that is reasonable to accommodate his needs.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant under equality legislation. Much of the caselaw around the test for deciding if the probative burden shifts to the Respondent has been set down in caselaw regarding the Employment Equality Acts but is frequently cited in Equal Status Act cases.

The established test for deciding if the probative burden shifts to the Respondent is that formulated by the Labour Court in Southern Health Board v Mitchell [2001] E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court held: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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 is no infringement of the principle of equal treatment.”

The Court later elaborated on the application of that test in Determination EDA0821, Cork City Council v McCarthy and commented as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Similarly, in Arturs Valpeters v Melbury Developments Ltd. (2010) ELR 64 the Labour Court gave guidance on how the probative burden is to be interpreted. It was stated that the Complainant was required to:

 “first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Graham Anthony & Company Limited v Mary Margetts EDA038 the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

In order for the burden of proof to shift to the Respondent, the Complainant must first establish prima facie:

(1)   that he was subject to a disability (this was not disputed) and (2) that he was discriminated against as a consequence of his disability (3) that the Respondent refused or failed to do all that is reasonable to accommodate the needs of the Respondent due to his disability.

The Respondent does not accept that the Complainant has established facts from which it may be presumed that prohibited conduct has occurred in relation to him.

RESPONSE TO THE COMPLAINT

It is submitted that in the ES1 Form dated 13 February 2024 the Complainant sets out his dissatisfaction in respect of the treatment he received in the hospital during his admission and how his complaint was handled. Further he alleges that he feels he was treated differently that an able-bodied person and that his disability was not taken account of in any communication or lack of communication.

Of note at no point in this document, does the Complainant set out what reasonable accommodations were required and how or when they were refused by the Respondent.

It is accepted without equivocation that the treatment and behaviours complained of by the Complainant were unacceptable and a sincere apology was provided to the Complainant in respect of same.

While the treatment and behaviours were unacceptable, that is not to say that the behaviours were discriminatory nor that the manner in which the complaint was delayed was discriminatory or there was a failure to do all that is reasonable to accommodate the Complainant’s needs as a person with a disability.

It is clear from the relevant correspondence that the complaint was taken seriously, and the Complainant was in a position to submit the complaint by email and then to communicate the details complaint in a meeting with Ms Hammersley on 29 July 2002. The Complainant does not seem to be making any specific complaint regarding the process in making his complaint in the weeks following his admission to hospital.

The Complainant is quite rightly unhappy with the delays in the complaints process but at no stage in the complaint does he set out how such delays were discriminatory or how the Respondent failed to make reasonable accommodations for his disability.

It is submitted that at all times the Respondent in dealing with the complaint was cognisant of the Complainant’s disability, communicated with him by email and met with him at home to obtain further details and from the very beginning confirmed that they were sorry to hear about his experience and took the matter seriously and undertook to carry out an investigation into the complaint.

RELEVANT LEGAL PRECEDENTS/CASELAW

The Respondent relies upon the following caselaw in support of its position:

ADJ - 00049829 A Child v A Primary School

A complaint was made pursuant to the Equal Status Act on behalf of a child with a disability that he has been subjected to discrimination and less favourable treatment by the school. While the Adjudication Officer acknowledged that the issues had been very difficult for the family but pointed out:-

“The role of the tribunal is to consider whether the law, in this case the Equal Status Act has been breached.

In other words, has the complainant (who is a six-year-old child) been the subject of a discriminatory breach on the grounds, in this case, of his disability.

It is not the tribunal’s role to consider, nor indeed could it, whether either the school or the complainant ought to have managed their interactions and communications a bit better in both directions.”

It is the Respondent’s position that this finding is on all fours with the current complaint, and while it is admitted that the complaint process was overly delayed and communication could have been better, it is submitted that there has been no prohibited conduct pursuant to the Equal Status Act.

CONCLUSION

The Respondent’s position is that the within complaint should be dismissed in the first instance as it falls outside the time limits provided for in the Equal Status Act.

Notwithstanding the preliminary issue of time limits, the Respondent apologises sincerely for the treatment while in the hospital in June and July 2022. However, it is the position that that treatment, while unacceptable was not discriminatory and there has been no refusal to provide reasonable accommodation to the Complainant in respect of his treatment and his complaint.

In response to the Complainant’s statement that he met one of the staff members in question when he was in hospital on another unrelated occasions, the Respondent invited the Complainant to follow up and engage with the Respondent on that.

Summary of direct evidence and cross-examination of Ms Naughton, Assistant Director of Nursing

Ms Naughton was CNM3 at the Emergency Department and the ward the Complainant was treated at. The Complainant’s complaint was referred to her for investigation.

The witness said that the complaint was very serious. She said that she tried to identify the staff involved. However, she was unable to identify them as there were no staff as named by the Complainant on duty at the relevant times. The witness said that she reviewed the nursing notes, clinical notes, rosters, and she spoke to staff. She noted that staff on duty included also agency staff.

The witness said that the complaint was shocking and while she did not identify those involved, she did not ignore it. Ms Naughton said that a message was sent to all staff regarding the expected standards of service provided to patients and regarding privacy. It was communicated through management on a formal basis and informally at meetings and on the floor. She said that the Respondent took the matter very seriously. Ms Naughton said that the Learning and Development Unit had organised a communication skills course and she reached out to have the course cater for her staff. She acknowledged that there were some issues with staffing levels and ability to release staff to complete the course.

Ms Naughton said that there was some restructuring going on, staff were relatively new having moved from another ward, the Department was under pressure. Ms Naughton said that the clinical risk in the Emergency Department took priority over matters that were not a clinical risk.

Ms Naughton apologised to the Complainant for the delay, which she acknowledged was largely down to her. She said that all complaints took a back seat, the Complainant’s complaint was not treated any differently to anyone else’s.

In cross-examination, the witness said that she did not know the staff responsible. She said that there was no nursing/care staff matching the names provided by the Complainant.

The Complainant put it to the witness that he was in the hospital afterwards for another reason and met one of the staff in question. The witness said that she reviewed the rosters and could not identify anyone matching the names the Complainant provided working at the ward at relevant time.

The witness clarified that the restructuring did not lead to the delay. It was her workload that did. She said that there was exodus of senior staff nurses and major influx of nurses with a lower skillset. Also, the Department presentation increased significantly. The witness said that, as a senior ED nurse, there was a requirement for her to be on the floor for most of her working time. Her work in other areas, administrative tasks and complaints were delayed. The witness said that she did not think it was right, and she apologised but she said that it happened across the board.

With regard to the request not to crush tablets, the witness said that she did identify staff involved and addressed it with them.

As regards to the other incident, there was a night when the Complainant’s nursing notes showed that he was particularly distressed. She was, therefore, able to identify the night in question. The persons named by the Complainant were not on duty on that night. The witness said that it does happen on occasions that staff swap shifts.

Summary of direct evidence and cross-examination of Ms Hammersley

The witness said that she is currently employed as the Audit Development Manager. At the time, she was the PALS manager and was dealing with the patients’ calls and online complaints.

The witness said that on 27 July 2022 the Complainant’s complaint was referred through Your Service Your Say form. The witness said that, typically, she would ring a complainant or would meet a family member on the floor. However, she became aware that the Complainant was a wheelchair user and had difficulty with verbal communication. The witness spoke with her manager who was very accommodating, and she went to meet with the Complainant in his home.

The witness said that they met on 29 July 2022. She tried to move the complaint on as quickly as she could. She typed up the notes of the meeting and emailed by a password protected document to ensure that the Complainant was happy with the notes. She then sent it to the complaints department and her role ended.

The Complainant chose not to cross-examine Ms Hammersley’s evidence.

When queried by the Adjudication Officer, the witness clarified that it in her 1.5 years tenure in PALS this was the only occasion she went to a complainant’s home to meet them, it was highly unusual.

The Complainant alleges that he was discriminated against by the Respondent on the ground of his disability. The date of the first incident of the alleged discrimination was stated as 30 June 2022. The date of the most recent incident of the alleged discrimination was stated as 16 January 2024.

The Complainant’s claim is that he was discriminated against, and that the Respondent failed to provide him with reasonable accommodation during his hospital treatment between 7 June and 1 July 2022. He further claims that the delay in the investigation of his complaint was discriminatory, and that the Respondent failed to provide him with reasonable accommodation in the context of the investigation of his complaint.

The Complainant sent an ES1 form to the Respondent on 15 February 2024. He received a reply on 15 March 2024. The Complainant referred his claim to the Director General of the WRC on 25 April 2024.

Preliminary matter – time limit

The Equal Status Act 2000, as amended (“the Act”), requires a complainant to comply with two separate time limits. The first, at section 21(2), provides that a complainant must, within two months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress.  Section 21(3)(a) provides that, for reasonable cause, the WRC may extend the two-month time limit to four months, or exceptionally, may disregard the time limit requirement.

The second time limit is set out at section 21(6) of the Act, and this provides that a complaint of discrimination may not be considered by an Adjudication Officer if it is referred to the WRC more than six months after the most recent incident of discrimination.  For reasonable cause, this time limit may be extended to 12 months. 

Notification of the Respondent ES1

Section 21(2) provides that a complainant must, within 2 months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress.

Section 21 of Equal Status Act 2000 as amended requires that:

(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 Act.

Section 21(3) of the Act states:

(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 circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

          and where such 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.

I note Ms Judy Walsh, in what is considered the seminal publication on the Equal Status Act Equal Status Acts 2000-2011 Discrimination in the Provision of Goods and Services (Blackhall Publishing, 2012) states as follows:

“The notification must be sent within two month of the alleged discriminatory event and must state the name of the allegation and the complainant’s intention to seek redress under the Acts if not satisfied by any reply received.  Both of these criteria are essential.”

I further note the Equality Tribunal in O’Brien and McCarthy v Ruairi’s Bar, Tralee DEC-S2007-039 explained the purpose of the notification requirement as follows:

“The purpose of this notification is twofold.  Firstly, it is designed to alert the respondent at an early stage to the nature of the allegation and the fact that a complaint is being considered against them and, secondly, it affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal.” 

The Complainant notified the Respondent of his allegation by an ES1 form dated 13 February 2024 and by his own submission served on 15 February 2024. Therefore, the notification can only relate to any alleged incident of discrimination that occurred in the period from 16 December 2023 to 15 February 2024.

I am satisfied that the notification requirements set out in section 21(2)(a)(i)(ii) of the Act have not been met by the Complainant with respect to the events that took place during his stay in hospital between 7 June and 1 July 2022. 

For completeness, in considering this matter I note the provision in section 21(3)(a)(i) which provides for a discretion to extend the reference period to a maximum of 4 months for reasonable cause and section 21(3)(a)(ii) which provides for setting aside the provisions of section 21(2)(a)(i)(ii). I note, however, that the latter should only be applied “exceptionally”. 

The Labour Court in the case of Gaelscoil Thulach na nOG v Fitzsimons-Markey [EET034], stated:

“The term exceptional is an ordinary familiar English adjective and not a term of art.  It describes circumstances such as to form an exception, which is out of the ordinary course or unusual or special or uncommon, to be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.”

It is clear therefore that any decision to apply this discretion should only be taken in circumstances that are out of the ordinary.   

Submission of the complaint to the WRC

The Complainant referred his claim to the Director General of the WRC on 25 April 2024. In accordance with the provisions of section 21(6)(b), the alleged discriminatory treatment to which the complaint form relates is required to have occurred during the preceding 6 months – i.e. on or from 26 October 2023 to 25 April 2024. For reasonable cause this time limit can be extended to 12 months. In that case, the cognisable period would fall from 26 April 2023 to 25 April 2024.

The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Labour Court also held in Cementation Skanska that the length of the delay should also be taken into account. A short delay might only require a “slight explanation” (see Quality Irish Stoves Ltd v Hughes DWT 127/2013) whereas a long delay might require “more cogent reasons”. Even where “reasonable cause” was shown, the Court determined that it should still consider if it was appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.

The test is an objective one and the onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of “reasonable cause”.

I recognise that complainants who are not represented are at a significant disadvantage.  However, I note that the Complainant makes reference to his legal representation in the ES1 form.  It is with some surprise I note the legal representative did not advise the Complainant of the applicable time limits.

I note that the Complainant asserted that he was required to exhaust an internal complaint process prior to the initiation of a complaint pursuant to the Equal Status Act and he should not be penalised for doing so. I disagree with this assertion. There is no obligation on a complainant to engage in the internal process before issuing the ES1 notification or a referral of a claim to the WRC.

Taking all of the foregoing into consideration, I find that the Complainant has not shown reasonable cause to empower me to extend the reference period to 4 months or, indeed, to disapply the notification requirements set out in section 21(6) of the Act.

I further find that the Complainant has not shown reasonable cause to empower me to extend the time limit for the submission of this complaint to the Director General of the WRC under the Act. 

Consequently, I am precluded from investigating the complaint in relation to the events of the alleged discrimination during the Complainant’s hospital stay between 7 June and 1 July 2022.

For the avoidance of any doubt, it is clear from the above that as the Complainant’s claim was referred to the WRC on 25 April 2024, the cognisable period for this complaint would be, at the maximum from 26 April 2023 to 25 April 2024. The Adjudication Officer has no discretion to extend this period further. Therefore, even if the provisions of section 21(2)(a)(i)(ii) were to be set aside, the complaint would not encompass the events from between 7 June and 1 July 2022.

The second element of the Complainant’s claim is that the delay in the investigation of his complaint was discriminatory, and that the Respondent failed to provide him with reasonable accommodation in the context of the investigation of his complaint.

As per my findings regarding the preliminary atter above, the period encompassed by this claim is from 16 December 2023 to 15 February 2024.

Discrimination is defined in Section 3 of the Equal Status Act 2000 as:-

3. - (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,

Section 3(2) of the 2000 Act provides in relevant parts:

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

…

(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”),

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.

Section 5 of the Equal Status Act 2000 prohibits discrimination in the disposal of goods or services:

A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

There was no dispute that the Respondent provides a service within the definition of section 2(1) of the Act.

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

“Where in any proceeding’s 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 test for what constitutes a presumption of discrimination has been set out in several decisions of the Labour Court, in particular, in Southern Health Board v Teresa Mitchell [2001] E.L.R. 201 and Valpeters v Melbury Developments Limited [2010] 21 E.L.R. 64. In the latter case, in considering a similar burden of proof under the Employment Equality Acts, the Labour Court stated that:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Hallinan v Moy Valley Resources DEC-S2008-25, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established:

1.      The complainant must establish that he or she is covered by the relevant protected ground;

2.      That the incident(s) complained of actually occurred;

3.      The treatment constitutes less favourable treatment within the meaning of the Act (than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient in itself to establish a claim of discrimination that the Complainant falls within one of the discriminatory grounds laid down under the Act. Other facts must be adduced from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

In the case of Olumide Smith v The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

Comparator

A complainant must show that she has been treated less favourably than another person is, has been or would be treated in a comparable situation on the relevant grounds. In this case, the Complainant did not offer a comparator.

In making my decision, I have considered all of the submissions and evidence, written and oral, made to me by the parties to the case.

The material facts of this case were not in dispute. It was not disputed that the Complainant has a disability within the ambit of the Equal Status Act. It was not disputed that the Respondent is a service provider. 

It was not disputed that, following his attendance at the Respondent’s hospital, the Complainant made a formal complaint to the Respondent on 7 July 2022. It was also not dispute that an acknowledgement was received by the Complainant on 11 July 2022. On 12 July 2022, the Complainant sought representation from his local TD. I note that in the email, the Complainant makes no reference to alleged discrimination.

Due to the circumstances, Ms Hammersley arranged to meet the Complainant in his home rather than engaging via telephone or meeting with him at the hospital.

During a meeting with Ms Hammersley on 29 July 2022 the Complainant set out the details of the poor treatment during his admission.

There was no dispute that the investigation into the Complainant’s complaint was not concluded until 16 January 2024.  The Business Manager, Medicine Directorate apologised for the delay in her letter. Ms Naughton, ADON also apologised, and her apologies were set out in the Business Manager’s letter.

The Complainant did not identify what reasonable accommodation did he require during the investigation. Neither did he provide any cogent evidence as to why he believed that a person without a disability or with a different disability would be treated more favourably than he was in these circumstances.

The Respondent outlined that it made every effort to accommodate the Complainant by, for example, conducting an interview with him at his home. The Respondent, and the Assistant Director of Nursing in particular, also offered explanation for the delay. The Respondent accepted that its response to the Complainant’s complaint was well outside the prescribed timeframe and offered sincere apology for the delay.

The Complainant was understandably upset by the events described above. However, the allegation of the Complainant in relation to discrimination in the provision of services is based on his speculation that the adverse treatment arose as a consequence of his disability. Such a position of proceedings “being brought against a respondent solely on the basis of the complainant’s assertions” is cautioned against in the authority cited above.

Having regard to the foregoing, I find that the Complainant has not discharged the initial burden of proof imposed on him by the Act. In such circumstances, I find that the Respondent has not engaged in prohibited conduct as defined by the Act.

I declare this complaint to be not well founded.

Disability- no prima facie case-