ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00036539

Parties:

Complaint(s):

Date of Adjudication Hearing:  03/03/2025

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

A hearing was arranged at the Commission where the preference of the Complainant for a face-to-face hearing was facilitated and the Respondent attended by remote link. The Complainant was notified by email and also by post at the address provided by the Complainant. The Complainant failed to attend at the hearing.

Background:

Preliminary Matter-

Jurisdiction:

The complaints are made against the Respondent in his capacity as an Appeals Officer and the complaints received arise from the decisions that followed. The nexus of the relationship between the complainant and the Appeals Officer is based on the relevant Statutory provisions that allow for an appeal. While the Complainant brings this complaint against the Appeals Officer in a personal capacity; the fact is the Appeals Officer is operating within a statutory framework and is not providing a service in a personal capacity.

The Equal Status Act at section 14 states:

14.—(1) Nothing in this Act shall be construed as prohibiting—

( a) the taking of any action that is required by or under—

(i) any enactment or order of a court,

(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or

(iii) any convention or other instrument imposing an international obligation on the State

In Fogarty v Employment Appeals Tribunal (DEC-S2009-087) the Equality Officer concluded:

4.8 I also find that the adjudication and decision-making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision-making function which is not subject to the terms of the Equal Status Acts. Therefore, I find that any aspect of this complaint which refers to the decision-making function of the respondent is misconceived.

In Adj-00011410 a preliminary matter was raised concerning the Judicial Immunity of a Statutory Tribunal. This Complaint was also made under the Equal Status Acts about another statutory tribunal.  In relying on the Supreme Court judgement of Beatty v the Rent Tribunal [2006] 2IR 191, the adjudication officer determined that he had no jurisdiction to hear the complaint. In Beatty the Supreme Court approved of Lord Kilbrandon’s remarks concerning the immunity of a Statutory Tribunal:

I think it appropriate to cite a passage from the speech of Lord Kilbrandon in the House of Lords in Arenson v. Casson Beckman Rutley & Co. (for some reason named in the English Court of Appeal as Arenson v. Arenson) [1975] 3 All ER 901 at 918

“To these tribunals the citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable by the public agencies; like as before them the citizen must appear to answer claims or complaints against him. (This is subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere). The citizen does not select the judges in this system, nor does he remunerate them otherwise than as a contributor to the cost of government. The judge has no bargain with the parties before him. He pledges them no skills. His duties are to the state: it is to the state that the superior judge at least promises that he will do justice between all parties and behave towards them as a judge should. I do not suppose that there is any English lawyer, and he would be a bold Scottish lawyer, who would say that here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant. It is for the state to make such arrangements as may be necessary for the correction of careless or erroneous judicial decisions; if those arrangements are deemed to be inadequate, it is for parliament to put the matter right. And if it be necessary to state the matter in terms of the law of tort, litigants are not persons to whom judges owe a legal duty of care, a duty which does not exist in the abstract, but only towards persons in particular relationships. The fact that he is under a moral duty is nihil ad rem. Judges in this context include, of course, persons forming tribunals and other bodies such as I referred to above.”.

In Miley and ors v Employment Appeals Tribunal [2016, IESC 20], the Supreme Court determined that the Employment Appeals Tribunal analogous to a lower court such as the District Court has judicial immunity from suit:

28. In this case the EAT did not act as a legitimate contradictor. It was a tribunal which acted in a manner analogous to the position of a District judge in many judicial review proceedings - where no opposition to the review was filed.

In so far as the decision maker in this case is a quasi-judicial decision maker; they are also implementing the requirements of a specific statute, in this case the requirement under the consolidated Social Welfare Act. This obligation requires that the decision maker must decide regarding the eligibility of the applicant based on the relevant statutory provisions.

Section 185 of the Social Welfare Consolidated Act 2005 provides that:

Subject to this Act, every person in the State whose means are insufficient to meet his or her needs and the needs of any qualified adult, or qualified child of the person shall be entitled to supplementary welfare allowances

In the matter of an Appeal under section 28 of the Equal Status Act 2000-2015, A.B. v Road Safety Authority [2021]IEHC Judge Creedon stated as follows:

100. Despite the Appellant’s assertion that this is a claim of discrimination under the Equal

Status Acts and not a challenge to the 2006 Regulations this assertion is not borne out by

the Appellants arguments which go to the principles and policies underpinning the

statutory framework. These arguments cannot be advanced in a claim of discrimination

under the Equal Status Acts.

 O’Malley J. in the High Court case of G. v.the Department of Social Protection [2015] 4 IR 167 and in the matter of Section 14 (1), whereO’Malley J. stated that the Equal Status Acts could not override the terms of another statutory scheme in the following terms: -

“Since both are Acts of the Oireachtas, embodying policy choices made by the

legislature, it is not open to a court to make a finding of unlawfulness in one on the

basis of the policy of the other. . . . that raises the problem of whether the Equal

Status Act can be relied upon in this fashion, to find that there is discrimination

contrary to that Act embodied in another Act. In my view it cannot”. [par 142 G v Department of Social Welfare]

And at paragraph 102 stated:

102. The Court finds that the actions of the Respondent as they relate to the Appellant are

required by legislative enactment and cannot be the subject of an adverse finding

pursuant to the Equal Status Acts. The Court therefore agrees with the Respondent that

the complaint under the Equal Status Acts made herein is misconceived as to what is in

issue, which is the meaning and effect of the statutory enactments and not the individual

treatment of the Appellant by the Respondent. [ AB v Road Safety Authority [2021]

The Complainant has not made out a prima facie case of prohibited conduct as defined under the Equal Status Act as what is in issue is the meaning and effect of the statutory enactments and not the treatment of the Appellant by the Respondent.

That is not a service as defined under Equal Status Act rather it a requirement of the Social Welfare Act that such as assessment is made; therefore, it cannot be said that assessment by a Social Welfare official relating to Social Welfare benefit entitlement equates to individual treatment in the provision of a service.

For these reasons I find that the complainant has not made out a prima facie case of prohibited conduct as the official engaged in the assessment of the application is not engaged in a service as defined under the Act:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.

I find that the Respondent has not engaged in prohibited conduct by treating the Complainant less favourably as defined under the Act nor has the Complainant made out a prima facie case as required under the Act. The Complainant states that he has been discriminated against by a person, organisation, company who provides goods, services or facilities. Specifically, he brings a complaint against an Appeals Officer within the Social Welfare Appeals Office alleging that the Respondent had discriminated against him on the grounds of gender, disability and housing assistance. The Complainant also alleged that the Respondent had failed to provide him with Reasonable Accommodation for his disability and that the Respondent had victimised and harassed him. However, what is in issue is the meaning and statutory effect of the statutory enactments and not the treatment of the Appellant by the Respondent. The complaint is misconceived. I dismiss the complaint.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

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.

Section 22 of the 2000 Acts provides: The Director of the Workplace Relations Commission may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious, or misconceived or relates to a trivial matter

Dated: 06/03/2025 

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: