Complainant

Respondent

Parties

Mary  O'Donoghue

Clare County Council(amended by Decision of AO)

Complainant

Respondent

Anonymised Parties

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Representatives

Heather Rosen

Marina Keane Michael Houlihan & Partners LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051609-001

26/11/2015

The Complainants are members of the Traveller community. At the time of the events leading to this complaint they resided in County Clare although they have also lived in other parts of Ireland. Both suffer from documented poor health and would be described as elderly.

This complaint submitted on 26th November 2015 is one of a series of common complaints against six named employees and Clare County Council. The complaints submitted in November 2015 are concerned with the actions of the Council commencing on the 27th of May 2015. It is agreed that on the previous day the Complainants moved a small caravan and other property which they possessed onto land owned by the Council without notification to or agreement with the Council. In order to access the land in question the Complainants moved certain blocks placed at an entrance to the land. The reason provided for the actions of the Complainants was their requirement to have more direct and suitable access to medical facilities at the local hospital. On the following day the Council attended at the land in question and replaced the blocks at the entrance thus denying the Complainants access and egress of their dwelling from the site. That action was taken without prior notice to the Complainants.

The summaries which follow comprise extracts from the submissions of the parties which provide a good indication of the wide range of arguments and detail presented on both sides in respect of the various issues for decision. Oral submissions at hearings are also summarised throughout the text. The findings, conclusions and decision address the following issues:

1.      Correct Respondent for the purpose of the Equal Status Act.

2.      Time limits.

3.      Application or otherwise of the Equal Status Act s5 and s6 to the factual basis of the complaints.

1. The Basis of the Complaint

The following are extracts from the complaint forms of the 26th of November 2015.

“From May 27th and onwards beyond mid-July 2015. Beginning early in that morning of May 27th (8.30→9.00am approx.). At an early hour Council roads machinery came and concrete blocks were heaped into a barricading position, blocking entrance and egress to a small disused field area to which Ms Mary O’Donoghue’s family had brought her caravan home for sanctuary and to be close to the Hospitals in case of seizure that she is susceptible to. Mr Martin Linnane of the Council came and spoke with her while she was there ? as this was done. Council officials had first been alerted to the most recent collapse of Mr and Mrs O’Donoghue with a heart attack and pneumonia respectively yet this measure was enacted, putting them into a dreadful position for daily walking to or from their vehicle with anything they had to carry, but, worse, blocking access for emergency vehicles. (Thankfully others watching or asked (?) arranged they be moved asap as Ms O’Donoghue had to be carried by stretcher from the field last Tuesday, for example, (8th September) after going into a coma, paramedics saving her). From officials the only offer to move the boulders was for a short period if Mr and Mrs O’Donoghue would in that period vacate the field: a letter in mid-July – with still nowhere to go.” [Script concludes at this point and continues under details of complaint.]

“The conduct continued through mid-July (2015) evidenced in a letter from one Council official suggesting that the boulders could be moved for a short period so in that period the family members would vacate the field.”

[The script continues under briefly in your own words to set out what happened as follows.] “Please see notification papers: there is no safe place for family members to be. This happened on the outskirts of Ennis, County Clare. A very ill Traveller woman, Ms Mary O’Donoghue, has had no home for the last seven years in County Clare. There has been a persistent refusal to address her emergency circumstances and those of others of her family. After hospitalisation for pneumonia and the hospitalisation of her husband, Cornelius, for heart surgery they were particularly vulnerable and help was sought from Council officials so that they could move closer to easy access to the hospitals they might need to be rushed to, and to the homes of members of their extended family which they depend upon for daily care needs. No help was forthcoming. Family members helped to move Ms O’Donoghue’s caravan to a stretch of ground, unused, in which they had found sanctuary before, being far away from other dwellings and in no one’s way. Mr O’Donoghue’s caravan was going to be brought there. However, early on 27th of May Council machinery pulled/pushed cement boulders across the entrance, blocking egress and entry for all vehicles, including emergency vehicles.”

In the complaint against the Respondent and the individual employee in the ES1 forms addressed to individual employees and the Council it is stated as follows:-

ADJ-39423 GD:

In the section request for other information:

“Mr D please can you write to explain why you gave no response to correspondence sent on behalf of the family asking for an urgent meeting, asking that the boulders be removed.”

ADJ-39426 – ML:

“Please can you reply telling what you did to prevent this from being done to Ms O’Donoghue and hence to her husband who had to help her.”

ADJ-39425:

“Dear Ms, O’H

1) Please can you reply to explain what you might have done to object to this action which you were asked to arrange.

2) Please can you explain why you didn’t respond to correspondence sent on the couple’s behalf asking that help be forthcoming.”

The following is from  some of the considerable amount of  documentation provided by Ms Rosen which gives a good indication of the background to and basis of these complaints, noting that at times the references overlap into the second set of complaints.

Document entitled “Introduction”.

This document advises of the Complainants moving back to County Clare in 2008. It refers to portable toilets being arranged in Clare at the time of the heightened fears from the Covid pandemic. There is a general reference to matters spanning a long stretch of time, of fruitless efforts being made but no assistance forthcoming. There is reference to 2009 and the draft programme for years 2025 to 2029 with a “glaring absence of any pledge to arrange basic services and provisions pending the provision of permanent homes for families of the Traveller community”, and in respect of the employees of Clare County Council named in this and other complaints the submission states:

“The treatment has involved several members of staff of Clare County Council through the authority granted for certain elements of decision making at different levels of the organisation. Each request that has been made for the Investigations is into the conduct of each officer who has been in a role, at whichever level, where it is possible to change the dynamics of the practices enacted: ameliorating factors for each Officer, in appraising his or her conduct, would be various forms of evidence of efforts to meet the actual emergency needs of Mr and Mrs O’Donoghue for the basic necessities of life. The material submitted may appear to be extensive, but this is because it must span the involvement of each of the different Officers – each case being acknowledged as a separate one. In the penultimate part of this statement, the material for each officer that is most pivotal in this quest for discernment as to their involvement and the possibility each had to bring remedial changes, will be pointed to. This information will be the same for both Ms Mary O’Donoghue and Mr Cornelius O’Donoghue.”

Document: The relative position of those who were experiencing discrimination and those who were not.

This is a submission mainly in relation to the application of section 3 of the Equal Status Act with references to the mission statement and other policy documents of Clare County Council. On the subject of the comparable person it states:

“It is unlikely that the named officials can give comparable examples where two people of the wider community, prone to recurring pneumonia and each with impaired mobility, are refused the basic sanitary services for life and health for a protracted period of years. It is unlikely that the officials can give a comparable example of two people of the wider community who, as above, have been refused the basic sanitary services for life and health for a protracted period of years are also, while being thus refused and needing to stay within reach of hospitals in case of life and death emergencies that each of them has already experienced several times, upon them coming to stay in a small field in a rural setting, disused for years, in order to have hope of that vital proximity, are immediately blockaded in by heavy cement blocks.”

The statement concludes: “These are the burdens of proof that are upon the Respondents.”

In a separate submission:

“Because, if already one is in a position of deprivation as regards equality then, as regards certain manifestations of discrimination and harassment, it would be an unfair appraisal to examine only what is on the face of a specific circumstance arising, if doing so with the matter to be measured as a comparison to the treatment of persons who are not below that equality baseline to start with. To bring this principle into practical considerations – it is unlikely that one would find others of the wider community who are in circumstances at all akin to these of being blockaded into a field or not blockaded into a field when just out of hospital and, for Ms O’Donoghue, at risk of falling into a coma, or, for Mr O’Donoghue, at risk of falling, or of further injury to already injured limbs, when carrying heavy drums of water across uneven land – but this cannot be allowed to degrade in any way the appraisal as to whether discrimination, and harassment, has occurred here.”

An index of 31 documents was provided with a covering statement:

“The aim is that through this, when the time comes for discussing the issues arising, the salient points will be readily located, and the correlations between the information here and parallel information, timewise, in the File of Correspondence, will be readily identified.

The documents which refer to the Complainants as distinct from policy or reports including a document by the IHREC and one entitled “Police, Judges and Travellers” are items 4. The first eviction of Mr O’Donoghue’s extended family on September 15th, 2000, and then 5. The next expulsion of Mr O’Donoghue’s extended family, citing “public health hazard” [undated]. And document entitled “File of policies and practices i.e. policies to be implemented, but, instead, practices holding sway”. This document opens with,

“The persistent refusals of officers of Clare County Council to make arrangements for portable toilets… did not happen and cannot be appraised “in a vacuum” – nor, also, the blockading into the field. The information included here, set out in time sequence, shows the patterns of conduct towards Mr and Mrs O’Donoghue: The refusals to arrange the basic sanitary services, and the refusals to pull away the blocks once set there – even when the perpetrators were made known – were an integral part of those patterns.”

And continues:

“At this point I point out the pivotal exposure of the contradictory nature of the conduct – something that becomes clear in the following data – that the same officials who are meant to arrange, at the least, sanitary services and a safe place to stay in accordance with the Traveller Accommodation Act, its guidelines, its mandatory Assessment of Needs, their schemes of Letting Priorities and Social Housing Allocation Regulations, the Clarehomelessness action plan, instead were in the custom of using the very absence of sanitary services, and/or the absence of a safe place to stay, as tools for the expulsion of the Traveller families whose care had been entrusted to them in their statutory roles as Service Providers. The data here can be correlated with the data in the File of Correspondence. Each file alone gives a lamentable account of systematic discriminatory practices that are endemic – persisting over such a long period, untouched by the above provisions for protection or the statutory frameworks – allowing for the “action replay” of generations of abuse of power. This continues still, exemplified by the recent impounding of caravan homes – the refusals, still, to address emergencies with help rather than by punishments and expulsion, essentially, and so often for other families too for these past 25 years, from County Clare itself.”

The document then refers to guidelines on temporary facilities – the Traveller Accommodation Act 1998. The Clare scheme of letting prioritises section 2 of the Housing Act 1998 referring to official documents including the Traveller Accommodation Act and Housing Acts both of 1998. References to judgments in 2000; the eviction of the O’Donoghue family in 2005; the premise of a public health hazard; urgent concerns written in 2001; Minister’s Circular on the assessment of needs; undated and unnamed reply from the Director of Services for pleas for help; a list of prosecutions of people of the Traveller community expelling them; a 2003 letter of the Superintendent of Ennis Garda Station; news reports in 2003 and 2004; the time we know of that emergency powers of the manager were availed of referring to 2004; the opening and closing of the emergency site at Ballagboye 2005 to 2009; an article in one of the Clare papers in 2010; reports made over time by the accommodation workers of the Ennis CDP; references to Mr O’Donoghue in 2009 and 2010; the Clare Social Housing Allocation Scheme introduced in 2011; undated references to correspondence from the public health nurse seeking support for the O’Donoghues; report by the Director of Services to elected Councillors in November 2011; the blocking by various means of traditional and other stopping places undated; a letter dated April 25th – no date included in relation to Barefield; notice of the retrieval costs for Mr O’Donoghue’s caravan home 2012; the Clare Homelessness Action Plan 2013 to 2018; references to an accommodation programme in 2013; a list of documents showing the treatment over time of the O’Donoghues’ oldest son’s family; a Council of Europe Committee direction that evictions are violating human rights; reconvening the LTACC after almost three years and further references to amendments sought at the LTACC 2016 to 2017; the diminishing response to the actual needs in the successive Clare Traveller accommodation programmes; the IHREC report Council by Council equality review; a paper prepared for some of the first investigations requested including extracts from research studies as well as from earlier judgments in court proceedings; reference to a High Court judgment in respect of an order under section 31 of the Sanitary Services Act and a quote from Justice McMenamin it would appear also in connection with section 13(2) of the Sanitary Services Act.

In respect of the specifics of the cases against the named employees, section 24 of the Submission refers to the blockading of the location where the O’Donoghues had moved their home the day after they had moved their home onto a disused field. Reference is made to Respondent MK “came with other men employed by the Council, who worked the machinery that set the heavy blocks across the entrance to the small field”.

“I and Ms O’Donoghue and the elected Councillor Mr MMc who also concern while in the meeting that morning with the two Council Officers Mr NOK and Mr LC had been told that they did not know exactly but the orders must have come from that particular section of the Council. They had said that section was located somewhere in the town.”

This was described as wrongful information on the basis that the section was in the same building. “All of these above elements demonstrated that this deed was not believed by the persons of this section of the Council to be something in the natural, ongoing, work of the Council.”

At section 28 reference is made to amendments being sought consistently within the framework of the local Traveller accommodation consultative committee and reference is made to two Council officials one of whom is a named Respondent.

‘This time at the next committee meeting when he explained this, the resolve for this change was still strong in the committee, even for those elected Councillors who were present. This time the two Council officials who were present Mr O’K and Mr XX were asked to be the ones to convey to the County Manager this unanimous decision that the emergencies needed to be addressed. Their answer put into words what some of us had known for some time – the two officers looked to each other and then to the members of the committee saying words to the effect that, it could no really be them to do so as, in their respective roles, unless instructed to do so as they were not a liberty to pass information about emergencies to the senior personnel. People on the committee asked them to do what they could.’

There is a significant volume of material giving an historical account of the Complainants’ experiences of dealing with the Council commencing in the 1990s, including considerable detail around the application to have the County Plan amended to provide for a group scheme for the wider O’Donoghue family and the decisions of the Council in that regard. Correspondence regarding the exchanges between the Council and Ms Rosen on behalf of Mr and Mrs O’Donoghue concerning the provision of housing accommodation was also included. At the hearing on the 31st of January 2025 Ms Rosen clarified the accommodation arrangements such as they were for the Complainants prior to the 27th of May 2015 where they were variously living at a serviced site while the usual occupant was absent, a place known as The Woods, a short stay on land owned by an unnamed person, and unsuccessful attempts to obtain accommodation over the preceding Christmas period. She also clarified that whereas the documentation referred to a period of the 27th of May to “mid-July 2015” that the Complainants had in fact remained on the Council site for some time after the occupation of the 27th of May 2015 and the placing of the blocks at the entrance followed by the removal of some of the blocks at least from that location by unnamed persons who were not employees of the Council. She also advised that at least one member of the family, a son of Mr and Mrs O’Donoghue, also subsequently moved onto the site and remained there to this day.

“The involvement of the individual officers who are named as Respondents: Mr TC had overall responsibility being the County Manager; Mr GD was the next person in the structures of decision making being in the role of Director of Services for Housing in that period; Mr LC wasin a senior role in the Housing Department of the Council; Mr NO’K was a housing officer: if permitted to have a meeting to convey their concerns Mr NO’K was the person many travelling people would be sent to speak with. Mr MK was in a role of caretaker for a time for certain sites in which people of the Traveller community lived, with I understand different roles since then. Ms CO’H was in a coordinating role in the Ennis Municipal District Office which we were told is the office from which the workmen would have received their instructions. There was Mr O’K who was the person most seen to dissemble. There were all of the officers Mr and Mrs O’Donoghue turned to, or who were turned to on their behalf as seen the said file of correspondence, yet only the pandemic brought the change. [This latter point refers to the provision of a portable toilet during the Covid pandemic, since removed.] To set aside and render null and void the accountability of individual Officers for the decisions they have made, it has been argued that he or she carries out whatever must be done to fulfil the tasks of his or her employment and therefore it would be unfair and inappropriate to hold any person individually accountable for whatever those tasks might be.

On the other hand, it appears to be clear that when people are ashamed of what they have done and try to hide these deeds from sight, then the actions are likely to not be a part of their authentic work remit nor are they likely to be within the scope of what he or she ought to be doing to fulfil the solemn responsibilities of their role in the wider organisation.

This hiding of the true facts of the matter is what was evidenced in all of the interactions concerning the egregious blockading in of the disabled and ill couple, Mr Cornelius and Ms Mary O’Donoghue, in the small field at Killow East on the outskirts of Ennis in May of 2015 stretching into June of that year.

There should have been shame for the conduct, especially on the part of those who knew well of the vulnerability of Mr and Ms O’Donoghue and even knew of how each of them, in the weeks leading up to their moving to that field, had been rushed at different times to hospital. These traumas are told of in a letter which was sent to all of the elected representatives who had already been contacted over the years in hopes of their assistance as well as to the Council Officers Mr C, Mr O’K, Mr D and Mr CL. In the file, next is a letter from the public health nurse telling of how much Mr and Ms O’Donoghue need help, a letter to Mr D with enclosed letters about their intense illnesses and begging for his help. It was then that the setting of the cement blocks took place. Then comes the meeting described in the letter of pages 99 and 100 [attachments] in which the two Council Officers, Mr O’K and Mr X, dissemble about where the orders to do this deed emanated from and how, in following up what they told I ended up on a high floor of the Council building waiting a very long time for the names of the people who gave the said instructions. Those names were eventually passed out to me on the small torn page of the files, policies and practices without any other words on it but MK and NO’K the latter being the very officers who had attended the prior meeting that day. No apologies were ever made not regarding the setting of the blocks, not regarding the dissembling.”

In response to the Council’s submission:

“So, history is repeating, as with so much of what is recounted for attention in these 2 sets of investigations, the essence of which I will set out again here in the context of all of the above: the blockading into the small, disused field area, of Mr and Ms O’Donoghue in the caravan-home and trailer-tent, and the refusal to remove the cement blocks, with the weeks later, telling by Mr CL that the blocks could be removed if it was to let the temporary homes of Mr and Ms O’Donoghue be taken away but still not telling where they could move to. This after others, out of kindness and concern, had moved the blocks already.”

2. The Correct Respondent incorporating Vicarious Liability s42 (and 44) – Complainants’ Position

Summary from hearings in September and October 2023.

Ms Rosen referred to an Adjudication Officer Mr Dolan in another case where the barrister was relying on what she termed the Morrissey judgment. [Note: Ms Keane stated that she was not familiar with this judgment.]

Ms Rosen spoke about a weight on my shoulders which she described as profoundly difficult to go against the decisions of others (AOs) and referred to a legal person or advisor within the WRC suggesting that it should be their task to decide on the question of vicarious liability in respect of employees of Clare County Council and that it would be appropriate that the WRC would ask that person to undertake such an exercise. I explained to Ms Rosen that complaints or cases are assigned to an Adjudication Officer by the Director General under the Act and that no other person would or should have a role in deciding on those complaints or cases. I assured her that I felt no unreasonable burden as a consequence of what I was charged to do.

Moving on to the substance of the contention on behalf of the Complainants that section 42 of the Equal Status Act under vicarious liability should apply to the individuals referenced in the complaint documents Ms Rosen referred to the wording of the Act. She also referred to the previous statement by the solicitor for the Respondent that the law should be read in a prima facie fashion. Specifically, section 42 – (1) “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.” [Emphasis added] Attention was drawn to the expression as well as and which was not instead of. The contention was clearly argued in the correspondence to the now retired Equality Officer Marian Duffy in a letter in 2006. She referred to the intervention of the then CEO of the Equality Tribunal that they were acceding to the position of the County Council and rejecting individual accountability in favour of the corporate body. Ms Rosen explained that the Complainants were not doing this in any sense of getting back at individuals or in any spirt of vengeance saying that they were “probably following orders”. However, she contended that they were obliged to act on their own conscience when witnessing the consequences of a failure of duty of care and human rights and wellbeing. The actions described in these complaints were, she submitted, far removed from human rights.

A lengthy oral submission was made under the heading of the term “inequality of arms”.

Asked who was the service provider, the response was that the people employed are the service provider and this is consistent with section 42 of the Act. Asked to compare the situation with a well-known retailer where they were found to be vicariously liable for the actions of an individual and how that compares to the current situation, Ms Rosen’s position is that in principle it does not mean that the individual cannot be required also to be accountable under the legislation. Ms Rosen referred to the “Portsmouth” case where the issue of vicarious liability was teased out and this goes to the heart of the situation where the question must be asked if the employee is not directly accountable under the legislation for their actions is there going to be no action against that person because the employer takes the liability. It was accepted that an employee would be accountable to the employer for any discrimination, but it was submitted that the person is also liable under the law for any discrimination on their part in the provision of a service.

In clarifying if the case for the individual to be a Respondent is based on section 44 as well as section 42 as implied in a submission, the response was that section 44 is relevant in describing the accountability of the individual employee. Regarding the serving of the ES1 Forms, it was clarified that these were served and issued against each person, that they were not served on Clare County Council. There is nobody called Clare County Council, and it would be very difficult to serve any complaint against them. There was nobody called Clare County Council to read such a complaint against them. The individuals were liable for their own actions while in the employment of Clare County Council.

Reference was made to rule 15 of the Superior Court Rules which allowed for joint liability and that a Judge could join anyone that he/she sees fit to proceedings. This issue of the notices and where they had been served and not issuing a notice against the Council had never come up before. Asked to explain her understanding of personal liability and vicarious liability, Ms Rosen explained that sections 5 and 6 refer to a person and that person, in this case the employee, is directly liable for any discrimination on their part. Vicarious liability meant that if the individual did not for example have the means the liability would pass to the employer. The employer would be responsible for, for example, paying compensation unless they could say they did not know about it. In discussion it was clarified that in the event that a decision was made arising from these cases that discrimination or discriminatory acts were found to have been committed by a named individual and compensation was awarded then it is the position of the Complainants that the liability for that payment then passes to the employer or essentially that they would pick up the tab for any such compensation. The employee it is contended is directly responsible under the law for their actions and any discrimination by them under the Act.

It was put to Ms Rosen that given all of the earlier decisions including the more recent decisions where it was found that a named employee was not the correct respondent under the Equal Status Act and that this had been the situation over a number of years in different decisions, why the maintenance of these complaints against individuals should not be regarded as vexatious. The response was that the representative had never seen an explanation which is a viable alternative explanation to the position which she holds and has put forward. What had occurred on a previous occasion was that no person who was directly involved appeared to give evidence in the complaint to explain the actions which had been taken in respect of the damage caused to the Complainants. She appeared to relate this situation to the decisions that individual officers/officials were not accountable for their actions. To date nobody has shown why it should not be the way in which she formulated the complaints against individual named employees.

Referring to previous adjudication decisions, Ms Rosen asserted that the decision of the WRC and Equality Officers to change the Respondent to the County Council only with no individual officials named made a mockery of the process. The individuals named in the complaints were not present for [previous] hearings. One person, the Director of Services, was called on a particular day and someone else was sent in his place. Individual officials were not being charged with being accountable and were being allowed to remain silent. It would be different if they were named and answerable. They could have provided answers if the individual officers had been named. Ms Rosen then went on to refer to the history of judicial review of the Equality Tribunal and the manner in which she was treated in that process and where it was ultimately decided that she should have been allowed to be a notice party as it was her paperwork which formed the basis of the actions.

Reference was made to legal representation being available to the corporate body and not to individuals and she hoped that this would be allowed in the principle of equality of arms. Reference was made to previous decisions which spoke to there being no appeal on the question of the naming of individuals and vicarious liability. Ms Rosen explained that there was no strength, no time and no money to conduct such appeals. Judicial review had failed on every count and the stay on her had to be removed; every other relief had been refused. The current Complainants were not part of the judicial review. Responding to the assertion that individual officials did not know the nature of the complaint against them, she stated that they knew well what was before them but if they were accountable, they would have to be questioned as individuals regarding those matters.

It was submitted that one has to think who makes the decision that the case should not be against individuals to which she stated: Clare County Council and the senior officials therein who have been named in the complaint. Who is the corporate body? Nobody is accountable at all if Clare County Council is the Respondent. The Council has said that if the individuals were named, they would have to have their own solicitors, but this is not an issue which should concern the Adjudication Officer in terms of costs as has been suggested by the solicitors for the Council. The deeds which form part of these complaints should be examined and the individual officials need to tell the truth.

In her oral submission, Ms Rosen referenced the letter to Enda Murphy [Adjudication Officer WRC] in 2017 in which she referred to a speaker who spoke about soldiers in the army presenting a defence that they were only obeying orders. The counterargument was that you were a soldier, where were the orders to maim and torture people. In the case of the Council why should the officials discriminate against the Complainants instead of exercising their duty of care and protecting their human rights. Reference was made to a Circuit Court Order, and it was suggested that the employer in that case had sought to have a lady who had retired removed from the proceedings as she had retired and that she had never met the parties, but this was refused by the Judge. [Note: It is fair to say that there was some disagreement on the significance or otherwise of this case and the determinations by the Circuit Court Judge (see also oral submission by solicitors for the Respondent).] Ms Rosen did say that a Judge can add people to proceedings including during those proceedings if they feel that this is justified.

3. Time Limits – Complainants’ Position

In the Complainants’ responding submission to the Respondent, it was contended as follows:

“The submission for the Council side refers only to the notification period, i.e. with no mention of the referral period since the referral was sent on a date that was within six months of the actual day that the blocks were set at the entrance to the field. This is also, naturally, well within the time that the blocks remained – their presence being a constant source of danger given the poor health of Mr and Mrs O’Donoghue, for example even the punitive effects on them of having to carry everything needed for their lives across the field while both suffering from chronic arthritis and prior injuries that made walking itself extremely difficult. The contention is that because this conduct against Mr and Mrs O’Donoghue commenced on a certain date in May (2015), it is from that start date that the two-month time period for the notification to be submitted should begin. It appears that this can only be contended if one either does not know or recognise the meaning of the relevant parts of the Equal Status Act, or else one considers that those parts may not be brought to attention. One relevant part providing for circumstances like this, where what has been done is not an “incident” as termed by the Council but instead is treatment that persists over time without acknowledgement of harm and without remedial steps to change what has been done in order to stop the harm that then ensues, is the following clause of the Equal Status Acts also an integral part of section 21 being section 21 part 2 quoted here “For the purpose of this section prohibited conduct occurs a) if the act constituting it extends over a period, at the end of the period b) if it arises by virtue of a provision which operates over a period, throughout the period.” More than this the very section 6(a) quoted twice by the Council ends with the phrase “a claim for redress may not be referred… after the end of the period of six months… or as the case may be, the date of its most recent occurrence”. The exact date on which the boulders were removed by some kind people is not known.”

4. The Application of s.5 and/or s.6 of the ESA in this Case – Complainants’ Position

“In the first paragraph of part 5 the writer makes several assertions as to what the Council does not accept, without explanation as to how these contentions have any basis under the Equal Status Act as amended and also making these statements as though the Equal Status Act is the only Law that is to be abided by, for example the Council not accepting that it is obliged to provide a service seems so farfetched as to demand an explanation, to name just one of the contentions. The second paragraph reiterates that the Council was operating under its statutory functions under the Housing Acts 1966-2014 as though this “blanket” statement could be a cloak to prevent further scrutiny but, as noted above, the Housing Acts include the Traveller Accommodation Act and all that is told there, so relevant to the omissions in evidence here.”

The paragraph continues with the words:

“It should be noted that the provision ofaccommodation is dealt with in a separate section of the Act to the provision of services. It is submitted, therefore that the provision of accommodation is to be looked at pursuant to Section 6 of the Act 2000 and not in the context of the provision of a service pursuant to Section 5 of the Act.

We do not object to the inclusion of Section 6 in the process of discernment, but, as one reads on, it turns out that this section is turned to not in order to expand the scope of the investigations but, in a way that has been refuted already long ago, to try to erroneously lead a reader to believe that it is okay somehow to treat people of the Traveller community differently when it comes to prohibited conduct under the Act.

On the contrary this part of Section 6 is to alert people to the fact that people of the Traveller community may require different treatment to the treatment of the wider community because of the traditions and mores and values that belong to the Traveller community. This is not in any way to diminish the protections of the Equal Status Act for people of the community.”

In response to a request for clarification to the Complainants on the 9th of January 2025 the following response was received:

“If I have understood correctly this is clarification as to whether it is section 5 or section 6 of the Equal Status Act, (as amended), that the respective requests for investigation seek to turn to for protection. In aiming to do this I have studied the wording of each section and the wording of the January 1st, 2016, changes that were published regarding the section 6 of the Act which you have mentioned in your letter. Through this apart that there is in the Equal Status Act even from its first adoption in the year 2000, came to be seen, i.e. the section 5 part 2(b).

Section 5-(1) 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.

(2) Subsection (1) does not apply in respect of – (b) a service related to a matter provided for under section 6.

This part (b) may be there as a way of preventing duplication of the protected measures, or perhaps to provide for the specifics of the accommodation measures to be named in section 6. In section 6 at part (1)(c) are the following words – 6–(1) A person shall not discriminate in– (c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

Access to and egress from a dwelling, in itself, (i.e. even while for a moment setting aside the wider context in which this barring of these elements of natural life have taken place), are related to accommodation matters, therefore it appears that the section 6 is the appliable part of the Equal Status Act to turn to, as well aa naturally the section 3 (“discrimination general”) and the section 4 (“discrimination on the ground of disability”).”

The submission at that point refers to the second complaint which is addressed separately.

“Ms Hughes I cannot help but be deeply concerned at what has been pointed to in your letter in regard to the request for the above clarification. I quote your words here as I do not want to misrepresent them in any way “It is not for the AO to identify the legislative basis of the complains within the legislation – a point I must make to Complainants and their representatives all too frequently, and not only in this instance. The Respondent is entitled to such clarity. I also require that clarity as the decision maker.”

When the Equal Status Act was first passed, much was made of the fact that Legal Representation was not required by either Party in an Investigative process. This was held to be because the Investigating Officers were there to ascertain if the law, any parts of it, had been broken such that those vulnerable to harm could be assured that if harm had been done this would be recognised, discovered or uncovered as need be, principally by the Presiding Officer of the Equality Tribunal who was given the delegated role of Director.

The change is not only indicated in what is written here, but has been experienced in other recent Investigations too – that the very essence of the role of the Presiding Officer in an Investigation has changed, making the role of a Lay Representative more precarious indeed. The change I refer to means that the “inequality of arms” when one Party has the wherewithal to have Legal Representation while the other has not the resources to do so, becomes even more of an impediment to a fair outcome. The vital importance of “equality of arms” is not an assertion of mine but something that is widely understood to be a cornerstone of a fair trial of a matter. If I have made a mistake in my reading of the tenets of the Equal Status Act(s) and yet there is a part of the Act(s) which grants the protection and/or redress needed for Mr and Mrs O’Donoghue because of the egregious treatment that was meted out to them over many years – the blockading in by blocks/boulders, and this also done to vulnerable people of their extended family over generations, as shown in the exhibited documents and photographs. …then I sincerely hope that it would be possible and acceptable for the relevant part(s) to be brought to the fore – for example section 5 of the Act is included with the earlier Part 2 submission prepared for the Investigation – so if mistakenly omitted here section 5 still has been presented there.

It is not that I think it is a mistake to focus now on section 6, it is that I have a dread for what I is implied by the possibility presented – the possibility that all could be lost for those seeking earnestly for the provisions of the Equal Status Act to apply to them, if I, as a Lay Representative, make a mistake in this precision, while others, including a presiding officer, could know what is the correct answer.

I do not mean to disrespect in any way the endeavours of any person who carries out the role that I understand is the role that has now been given. It is that as a Lay Representative it seems to be my responsibility to express these concerns regarding the perceived changes and what they portend, as I have hoped to intimate here.”

1. The Basis of the Complaint

The following are extracts from the complaint forms of the 26th of November 2015.

“From May 27th and onwards beyond mid-July 2015. Beginning early in that morning of May 27th (8.30→9.00am approx.). At an early hour Council roads machinery came and concrete blocks were heaped into a barricading position, blocking entrance and egress to a small disused field area to which Ms Mary O’Donoghue’s family had brought her caravan home for sanctuary and to be close to the Hospitals in case of seizure that she is susceptible to. Mr Martin Linnane of the Council came and spoke with her while she was there ? as this was done. Council officials had first been alerted to the most recent collapse of Mr and Mrs O’Donoghue with a heart attack and pneumonia respectively yet this measure was enacted, putting them into a dreadful position for daily walking to or from their vehicle with anything they had to carry, but, worse, blocking access for emergency vehicles. (Thankfully others watching or asked (?) arranged they be moved asap as Ms O’Donoghue had to be carried by stretcher from the field last Tuesday, for example, (8th September) after going into a coma, paramedics saving her). From officials the only offer to move the boulders was for a short period if Mr and Mrs O’Donoghue would in that period vacate the field: a letter in mid-July – with still nowhere to go.” [Script concludes at this point and continues under details of complaint.]

“The conduct continued through mid-July (2015) evidenced in a letter from one Council official suggesting that the boulders could be moved for a short period so in that period the family members would vacate the field.”

[The script continues under briefly in your own words to set out what happened as follows.] “Please see notification papers: there is no safe place for family members to be. This happened on the outskirts of Ennis, County Clare. A very ill Traveller woman, Ms Mary O’Donoghue, has had no home for the last seven years in County Clare. There has been a persistent refusal to address her emergency circumstances and those of others of her family. After hospitalisation for pneumonia and the hospitalisation of her husband, Cornelius, for heart surgery they were particularly vulnerable and help was sought from Council officials so that they could move closer to easy access to the hospitals they might need to be rushed to, and to the homes of members of their extended family which they depend upon for daily care needs. No help was forthcoming. Family members helped to move Ms O’Donoghue’s caravan to a stretch of ground, unused, in which they had found sanctuary before, being far away from other dwellings and in no one’s way. Mr O’Donoghue’s caravan was going to be brought there. However, early on 27th of May Council machinery pulled/pushed cement boulders across the entrance, blocking egress and entry for all vehicles, including emergency vehicles.”

In the complaint against the Respondent and the individual employee in the ES1 forms addressed to individual employees and the Council it is stated as follows:-

ADJ-39423 GD:

In the section request for other information:

“Mr D please can you write to explain why you gave no response to correspondence sent on behalf of the family asking for an urgent meeting, asking that the boulders be removed.”

ADJ-39426 – ML:

“Please can you reply telling what you did to prevent this from being done to Ms O’Donoghue and hence to her husband who had to help her.”

ADJ-39425:

“Dear Ms, O’H

1) Please can you reply to explain what you might have done to object to this action which you were asked to arrange.

2) Please can you explain why you didn’t respond to correspondence sent on the couple’s behalf asking that help be forthcoming.”

The following is from  some of the considerable amount of  documentation provided by Ms Rosen which gives a good indication of the background to and basis of these complaints, noting that at times the references overlap into the second set of complaints.

Document entitled “Introduction”.

This document advises of the Complainants moving back to County Clare in 2008. It refers to portable toilets being arranged in Clare at the time of the heightened fears from the Covid pandemic. There is a general reference to matters spanning a long stretch of time, of fruitless efforts being made but no assistance forthcoming. There is reference to 2009 and the draft programme for years 2025 to 2029 with a “glaring absence of any pledge to arrange basic services and provisions pending the provision of permanent homes for families of the Traveller community”, and in respect of the employees of Clare County Council named in this and other complaints the submission states:

“The treatment has involved several members of staff of Clare County Council through the authority granted for certain elements of decision making at different levels of the organisation. Each request that has been made for the Investigations is into the conduct of each officer who has been in a role, at whichever level, where it is possible to change the dynamics of the practices enacted: ameliorating factors for each Officer, in appraising his or her conduct, would be various forms of evidence of efforts to meet the actual emergency needs of Mr and Mrs O’Donoghue for the basic necessities of life. The material submitted may appear to be extensive, but this is because it must span the involvement of each of the different Officers – each case being acknowledged as a separate one. In the penultimate part of this statement, the material for each officer that is most pivotal in this quest for discernment as to their involvement and the possibility each had to bring remedial changes, will be pointed to. This information will be the same for both Ms Mary O’Donoghue and Mr Cornelius O’Donoghue.”

Document: The relative position of those who were experiencing discrimination and those who were not.

This is a submission mainly in relation to the application of section 3 of the Equal Status Act with references to the mission statement and other policy documents of Clare County Council. On the subject of the comparable person it states:

“It is unlikely that the named officials can give comparable examples where two people of the wider community, prone to recurring pneumonia and each with impaired mobility, are refused the basic sanitary services for life and health for a protracted period of years. It is unlikely that the officials can give a comparable example of two people of the wider community who, as above, have been refused the basic sanitary services for life and health for a protracted period of years are also, while being thus refused and needing to stay within reach of hospitals in case of life and death emergencies that each of them has already experienced several times, upon them coming to stay in a small field in a rural setting, disused for years, in order to have hope of that vital proximity, are immediately blockaded in by heavy cement blocks.”

The statement concludes: “These are the burdens of proof that are upon the Respondents.”

In a separate submission:

“Because, if already one is in a position of deprivation as regards equality then, as regards certain manifestations of discrimination and harassment, it would be an unfair appraisal to examine only what is on the face of a specific circumstance arising, if doing so with the matter to be measured as a comparison to the treatment of persons who are not below that equality baseline to start with. To bring this principle into practical considerations – it is unlikely that one would find others of the wider community who are in circumstances at all akin to these of being blockaded into a field or not blockaded into a field when just out of hospital and, for Ms O’Donoghue, at risk of falling into a coma, or, for Mr O’Donoghue, at risk of falling, or of further injury to already injured limbs, when carrying heavy drums of water across uneven land – but this cannot be allowed to degrade in any way the appraisal as to whether discrimination, and harassment, has occurred here.”

An index of 31 documents was provided with a covering statement:

“The aim is that through this, when the time comes for discussing the issues arising, the salient points will be readily located, and the correlations between the information here and parallel information, timewise, in the File of Correspondence, will be readily identified.

The documents which refer to the Complainants as distinct from policy or reports including a document by the IHREC and one entitled “Police, Judges and Travellers” are items 4. The first eviction of Mr O’Donoghue’s extended family on September 15th, 2000, and then 5. The next expulsion of Mr O’Donoghue’s extended family, citing “public health hazard” [undated]. And document entitled “File of policies and practices i.e. policies to be implemented, but, instead, practices holding sway”. This document opens with,

“The persistent refusals of officers of Clare County Council to make arrangements for portable toilets… did not happen and cannot be appraised “in a vacuum” – nor, also, the blockading into the field. The information included here, set out in time sequence, shows the patterns of conduct towards Mr and Mrs O’Donoghue: The refusals to arrange the basic sanitary services, and the refusals to pull away the blocks once set there – even when the perpetrators were made known – were an integral part of those patterns.”

And continues:

“At this point I point out the pivotal exposure of the contradictory nature of the conduct – something that becomes clear in the following data – that the same officials who are meant to arrange, at the least, sanitary services and a safe place to stay in accordance with the Traveller Accommodation Act, its guidelines, its mandatory Assessment of Needs, their schemes of Letting Priorities and Social Housing Allocation Regulations, the Clarehomelessness action plan, instead were in the custom of using the very absence of sanitary services, and/or the absence of a safe place to stay, as tools for the expulsion of the Traveller families whose care had been entrusted to them in their statutory roles as Service Providers. The data here can be correlated with the data in the File of Correspondence. Each file alone gives a lamentable account of systematic discriminatory practices that are endemic – persisting over such a long period, untouched by the above provisions for protection or the statutory frameworks – allowing for the “action replay” of generations of abuse of power. This continues still, exemplified by the recent impounding of caravan homes – the refusals, still, to address emergencies with help rather than by punishments and expulsion, essentially, and so often for other families too for these past 25 years, from County Clare itself.”

The document then refers to guidelines on temporary facilities – the Traveller Accommodation Act 1998. The Clare scheme of letting prioritises section 2 of the Housing Act 1998 referring to official documents including the Traveller Accommodation Act and Housing Acts both of 1998. References to judgments in 2000; the eviction of the O’Donoghue family in 2005; the premise of a public health hazard; urgent concerns written in 2001; Minister’s Circular on the assessment of needs; undated and unnamed reply from the Director of Services for pleas for help; a list of prosecutions of people of the Traveller community expelling them; a 2003 letter of the Superintendent of Ennis Garda Station; news reports in 2003 and 2004; the time we know of that emergency powers of the manager were availed of referring to 2004; the opening and closing of the emergency site at Ballagboye 2005 to 2009; an article in one of the Clare papers in 2010; reports made over time by the accommodation workers of the Ennis CDP; references to Mr O’Donoghue in 2009 and 2010; the Clare Social Housing Allocation Scheme introduced in 2011; undated references to correspondence from the public health nurse seeking support for the O’Donoghues; report by the Director of Services to elected Councillors in November 2011; the blocking by various means of traditional and other stopping places undated; a letter dated April 25th – no date included in relation to Barefield; notice of the retrieval costs for Mr O’Donoghue’s caravan home 2012; the Clare Homelessness Action Plan 2013 to 2018; references to an accommodation programme in 2013; a list of documents showing the treatment over time of the O’Donoghues’ oldest son’s family; a Council of Europe Committee direction that evictions are violating human rights; reconvening the LTACC after almost three years and further references to amendments sought at the LTACC 2016 to 2017; the diminishing response to the actual needs in the successive Clare Traveller accommodation programmes; the IHREC report Council by Council equality review; a paper prepared for some of the first investigations requested including extracts from research studies as well as from earlier judgments in court proceedings; reference to a High Court judgment in respect of an order under section 31 of the Sanitary Services Act and a quote from Justice McMenamin it would appear also in connection with section 13(2) of the Sanitary Services Act.

In respect of the specifics of the cases against the named employees, section 24 of the Submission refers to the blockading of the location where the O’Donoghues had moved their home the day after they had moved their home onto a disused field. Reference is made to Respondent MK “came with other men employed by the Council, who worked the machinery that set the heavy blocks across the entrance to the small field”.

“I and Ms O’Donoghue and the elected Councillor Mr MMc who also concern while in the meeting that morning with the two Council Officers Mr NOK and Mr LC had been told that they did not know exactly but the orders must have come from that particular section of the Council. They had said that section was located somewhere in the town.”

This was described as wrongful information on the basis that the section was in the same building. “All of these above elements demonstrated that this deed was not believed by the persons of this section of the Council to be something in the natural, ongoing, work of the Council.”

At section 28 reference is made to amendments being sought consistently within the framework of the local Traveller accommodation consultative committee and reference is made to two Council officials one of whom is a named Respondent.

‘This time at the next committee meeting when he explained this, the resolve for this change was still strong in the committee, even for those elected Councillors who were present. This time the two Council officials who were present Mr O’K and Mr XX were asked to be the ones to convey to the County Manager this unanimous decision that the emergencies needed to be addressed. Their answer put into words what some of us had known for some time – the two officers looked to each other and then to the members of the committee saying words to the effect that, it could no really be them to do so as, in their respective roles, unless instructed to do so as they were not a liberty to pass information about emergencies to the senior personnel. People on the committee asked them to do what they could.’

There is a significant volume of material giving an historical account of the Complainants’ experiences of dealing with the Council commencing in the 1990s, including considerable detail around the application to have the County Plan amended to provide for a group scheme for the wider O’Donoghue family and the decisions of the Council in that regard. Correspondence regarding the exchanges between the Council and Ms Rosen on behalf of Mr and Mrs O’Donoghue concerning the provision of housing accommodation was also included. At the hearing on the 31st of January 2025 Ms Rosen clarified the accommodation arrangements such as they were for the Complainants prior to the 27th of May 2015 where they were variously living at a serviced site while the usual occupant was absent, a place known as The Woods, a short stay on land owned by an unnamed person, and unsuccessful attempts to obtain accommodation over the preceding Christmas period. She also clarified that whereas the documentation referred to a period of the 27th of May to “mid-July 2015” that the Complainants had in fact remained on the Council site for some time after the occupation of the 27th of May 2015 and the placing of the blocks at the entrance followed by the removal of some of the blocks at least from that location by unnamed persons who were not employees of the Council. She also advised that at least one member of the family, a son of Mr and Mrs O’Donoghue, also subsequently moved onto the site and remained there to this day.

“The involvement of the individual officers who are named as Respondents: Mr TC had overall responsibility being the County Manager; Mr GD was the next person in the structures of decision making being in the role of Director of Services for Housing in that period; Mr LC wasin a senior role in the Housing Department of the Council; Mr NO’K was a housing officer: if permitted to have a meeting to convey their concerns Mr NO’K was the person many travelling people would be sent to speak with. Mr MK was in a role of caretaker for a time for certain sites in which people of the Traveller community lived, with I understand different roles since then. Ms CO’H was in a coordinating role in the Ennis Municipal District Office which we were told is the office from which the workmen would have received their instructions. There was Mr O’K who was the person most seen to dissemble. There were all of the officers Mr and Mrs O’Donoghue turned to, or who were turned to on their behalf as seen the said file of correspondence, yet only the pandemic brought the change. [This latter point refers to the provision of a portable toilet during the Covid pandemic, since removed.] To set aside and render null and void the accountability of individual Officers for the decisions they have made, it has been argued that he or she carries out whatever must be done to fulfil the tasks of his or her employment and therefore it would be unfair and inappropriate to hold any person individually accountable for whatever those tasks might be.

On the other hand, it appears to be clear that when people are ashamed of what they have done and try to hide these deeds from sight, then the actions are likely to not be a part of their authentic work remit nor are they likely to be within the scope of what he or she ought to be doing to fulfil the solemn responsibilities of their role in the wider organisation.

This hiding of the true facts of the matter is what was evidenced in all of the interactions concerning the egregious blockading in of the disabled and ill couple, Mr Cornelius and Ms Mary O’Donoghue, in the small field at Killow East on the outskirts of Ennis in May of 2015 stretching into June of that year.

There should have been shame for the conduct, especially on the part of those who knew well of the vulnerability of Mr and Ms O’Donoghue and even knew of how each of them, in the weeks leading up to their moving to that field, had been rushed at different times to hospital. These traumas are told of in a letter which was sent to all of the elected representatives who had already been contacted over the years in hopes of their assistance as well as to the Council Officers Mr C, Mr O’K, Mr D and Mr CL. In the file, next is a letter from the public health nurse telling of how much Mr and Ms O’Donoghue need help, a letter to Mr D with enclosed letters about their intense illnesses and begging for his help. It was then that the setting of the cement blocks took place. Then comes the meeting described in the letter of pages 99 and 100 [attachments] in which the two Council Officers, Mr O’K and Mr X, dissemble about where the orders to do this deed emanated from and how, in following up what they told I ended up on a high floor of the Council building waiting a very long time for the names of the people who gave the said instructions. Those names were eventually passed out to me on the small torn page of the files, policies and practices without any other words on it but MK and NO’K the latter being the very officers who had attended the prior meeting that day. No apologies were ever made not regarding the setting of the blocks, not regarding the dissembling.”

In response to the Council’s submission:

“So, history is repeating, as with so much of what is recounted for attention in these 2 sets of investigations, the essence of which I will set out again here in the context of all of the above: the blockading into the small, disused field area, of Mr and Ms O’Donoghue in the caravan-home and trailer-tent, and the refusal to remove the cement blocks, with the weeks later, telling by Mr CL that the blocks could be removed if it was to let the temporary homes of Mr and Ms O’Donoghue be taken away but still not telling where they could move to. This after others, out of kindness and concern, had moved the blocks already.”

2. The Correct Respondent incorporating Vicarious Liability s42 (and 44) – Complainants’ Position

Summary from hearings in September and October 2023.

Ms Rosen referred to an Adjudication Officer Mr Dolan in another case where the barrister was relying on what she termed the Morrissey judgment. [Note: Ms Keane stated that she was not familiar with this judgment.]

Ms Rosen spoke about a weight on my shoulders which she described as profoundly difficult to go against the decisions of others (AOs) and referred to a legal person or advisor within the WRC suggesting that it should be their task to decide on the question of vicarious liability in respect of employees of Clare County Council and that it would be appropriate that the WRC would ask that person to undertake such an exercise. I explained to Ms Rosen that complaints or cases are assigned to an Adjudication Officer by the Director General under the Act and that no other person would or should have a role in deciding on those complaints or cases. I assured her that I felt no unreasonable burden as a consequence of what I was charged to do.

Moving on to the substance of the contention on behalf of the Complainants that section 42 of the Equal Status Act under vicarious liability should apply to the individuals referenced in the complaint documents Ms Rosen referred to the wording of the Act. She also referred to the previous statement by the solicitor for the Respondent that the law should be read in a prima facie fashion. Specifically, section 42 – (1) “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.” [Emphasis added] Attention was drawn to the expression as well as and which was not instead of. The contention was clearly argued in the correspondence to the now retired Equality Officer Marian Duffy in a letter in 2006. She referred to the intervention of the then CEO of the Equality Tribunal that they were acceding to the position of the County Council and rejecting individual accountability in favour of the corporate body. Ms Rosen explained that the Complainants were not doing this in any sense of getting back at individuals or in any spirt of vengeance saying that they were “probably following orders”. However, she contended that they were obliged to act on their own conscience when witnessing the consequences of a failure of duty of care and human rights and wellbeing. The actions described in these complaints were, she submitted, far removed from human rights.

A lengthy oral submission was made under the heading of the term “inequality of arms”.

Asked who was the service provider, the response was that the people employed are the service provider and this is consistent with section 42 of the Act. Asked to compare the situation with a well-known retailer where they were found to be vicariously liable for the actions of an individual and how that compares to the current situation, Ms Rosen’s position is that in principle it does not mean that the individual cannot be required also to be accountable under the legislation. Ms Rosen referred to the “Portsmouth” case where the issue of vicarious liability was teased out and this goes to the heart of the situation where the question must be asked if the employee is not directly accountable under the legislation for their actions is there going to be no action against that person because the employer takes the liability. It was accepted that an employee would be accountable to the employer for any discrimination, but it was submitted that the person is also liable under the law for any discrimination on their part in the provision of a service.

In clarifying if the case for the individual to be a Respondent is based on section 44 as well as section 42 as implied in a submission, the response was that section 44 is relevant in describing the accountability of the individual employee. Regarding the serving of the ES1 Forms, it was clarified that these were served and issued against each person, that they were not served on Clare County Council. There is nobody called Clare County Council, and it would be very difficult to serve any complaint against them. There was nobody called Clare County Council to read such a complaint against them. The individuals were liable for their own actions while in the employment of Clare County Council.

Reference was made to rule 15 of the Superior Court Rules which allowed for joint liability and that a Judge could join anyone that he/she sees fit to proceedings. This issue of the notices and where they had been served and not issuing a notice against the Council had never come up before. Asked to explain her understanding of personal liability and vicarious liability, Ms Rosen explained that sections 5 and 6 refer to a person and that person, in this case the employee, is directly liable for any discrimination on their part. Vicarious liability meant that if the individual did not for example have the means the liability would pass to the employer. The employer would be responsible for, for example, paying compensation unless they could say they did not know about it. In discussion it was clarified that in the event that a decision was made arising from these cases that discrimination or discriminatory acts were found to have been committed by a named individual and compensation was awarded then it is the position of the Complainants that the liability for that payment then passes to the employer or essentially that they would pick up the tab for any such compensation. The employee it is contended is directly responsible under the law for their actions and any discrimination by them under the Act.

It was put to Ms Rosen that given all of the earlier decisions including the more recent decisions where it was found that a named employee was not the correct respondent under the Equal Status Act and that this had been the situation over a number of years in different decisions, why the maintenance of these complaints against individuals should not be regarded as vexatious. The response was that the representative had never seen an explanation which is a viable alternative explanation to the position which she holds and has put forward. What had occurred on a previous occasion was that no person who was directly involved appeared to give evidence in the complaint to explain the actions which had been taken in respect of the damage caused to the Complainants. She appeared to relate this situation to the decisions that individual officers/officials were not accountable for their actions. To date nobody has shown why it should not be the way in which she formulated the complaints against individual named employees.

Referring to previous adjudication decisions, Ms Rosen asserted that the decision of the WRC and Equality Officers to change the Respondent to the County Council only with no individual officials named made a mockery of the process. The individuals named in the complaints were not present for [previous] hearings. One person, the Director of Services, was called on a particular day and someone else was sent in his place. Individual officials were not being charged with being accountable and were being allowed to remain silent. It would be different if they were named and answerable. They could have provided answers if the individual officers had been named. Ms Rosen then went on to refer to the history of judicial review of the Equality Tribunal and the manner in which she was treated in that process and where it was ultimately decided that she should have been allowed to be a notice party as it was her paperwork which formed the basis of the actions.

Reference was made to legal representation being available to the corporate body and not to individuals and she hoped that this would be allowed in the principle of equality of arms. Reference was made to previous decisions which spoke to there being no appeal on the question of the naming of individuals and vicarious liability. Ms Rosen explained that there was no strength, no time and no money to conduct such appeals. Judicial review had failed on every count and the stay on her had to be removed; every other relief had been refused. The current Complainants were not part of the judicial review. Responding to the assertion that individual officials did not know the nature of the complaint against them, she stated that they knew well what was before them but if they were accountable, they would have to be questioned as individuals regarding those matters.

It was submitted that one has to think who makes the decision that the case should not be against individuals to which she stated: Clare County Council and the senior officials therein who have been named in the complaint. Who is the corporate body? Nobody is accountable at all if Clare County Council is the Respondent. The Council has said that if the individuals were named, they would have to have their own solicitors, but this is not an issue which should concern the Adjudication Officer in terms of costs as has been suggested by the solicitors for the Council. The deeds which form part of these complaints should be examined and the individual officials need to tell the truth.

In her oral submission, Ms Rosen referenced the letter to Enda Murphy [Adjudication Officer WRC] in 2017 in which she referred to a speaker who spoke about soldiers in the army presenting a defence that they were only obeying orders. The counterargument was that you were a soldier, where were the orders to maim and torture people. In the case of the Council why should the officials discriminate against the Complainants instead of exercising their duty of care and protecting their human rights. Reference was made to a Circuit Court Order, and it was suggested that the employer in that case had sought to have a lady who had retired removed from the proceedings as she had retired and that she had never met the parties, but this was refused by the Judge. [Note: It is fair to say that there was some disagreement on the significance or otherwise of this case and the determinations by the Circuit Court Judge (see also oral submission by solicitors for the Respondent).] Ms Rosen did say that a Judge can add people to proceedings including during those proceedings if they feel that this is justified.

3. Time Limits – Complainants’ Position

In the Complainants’ responding submission to the Respondent, it was contended as follows:

“The submission for the Council side refers only to the notification period, i.e. with no mention of the referral period since the referral was sent on a date that was within six months of the actual day that the blocks were set at the entrance to the field. This is also, naturally, well within the time that the blocks remained – their presence being a constant source of danger given the poor health of Mr and Mrs O’Donoghue, for example even the punitive effects on them of having to carry everything needed for their lives across the field while both suffering from chronic arthritis and prior injuries that made walking itself extremely difficult. The contention is that because this conduct against Mr and Mrs O’Donoghue commenced on a certain date in May (2015), it is from that start date that the two-month time period for the notification to be submitted should begin. It appears that this can only be contended if one either does not know or recognise the meaning of the relevant parts of the Equal Status Act, or else one considers that those parts may not be brought to attention. One relevant part providing for circumstances like this, where what has been done is not an “incident” as termed by the Council but instead is treatment that persists over time without acknowledgement of harm and without remedial steps to change what has been done in order to stop the harm that then ensues, is the following clause of the Equal Status Acts also an integral part of section 21 being section 21 part 2 quoted here “For the purpose of this section prohibited conduct occurs a) if the act constituting it extends over a period, at the end of the period b) if it arises by virtue of a provision which operates over a period, throughout the period.” More than this the very section 6(a) quoted twice by the Council ends with the phrase “a claim for redress may not be referred… after the end of the period of six months… or as the case may be, the date of its most recent occurrence”. The exact date on which the boulders were removed by some kind people is not known.”

4. The Application of s.5 and/or s.6 of the ESA in this Case – Complainants’ Position

“In the first paragraph of part 5 the writer makes several assertions as to what the Council does not accept, without explanation as to how these contentions have any basis under the Equal Status Act as amended and also making these statements as though the Equal Status Act is the only Law that is to be abided by, for example the Council not accepting that it is obliged to provide a service seems so farfetched as to demand an explanation, to name just one of the contentions. The second paragraph reiterates that the Council was operating under its statutory functions under the Housing Acts 1966-2014 as though this “blanket” statement could be a cloak to prevent further scrutiny but, as noted above, the Housing Acts include the Traveller Accommodation Act and all that is told there, so relevant to the omissions in evidence here.”

The paragraph continues with the words:

“It should be noted that the provision ofaccommodation is dealt with in a separate section of the Act to the provision of services. It is submitted, therefore that the provision of accommodation is to be looked at pursuant to Section 6 of the Act 2000 and not in the context of the provision of a service pursuant to Section 5 of the Act.

We do not object to the inclusion of Section 6 in the process of discernment, but, as one reads on, it turns out that this section is turned to not in order to expand the scope of the investigations but, in a way that has been refuted already long ago, to try to erroneously lead a reader to believe that it is okay somehow to treat people of the Traveller community differently when it comes to prohibited conduct under the Act.

On the contrary this part of Section 6 is to alert people to the fact that people of the Traveller community may require different treatment to the treatment of the wider community because of the traditions and mores and values that belong to the Traveller community. This is not in any way to diminish the protections of the Equal Status Act for people of the community.”

In response to a request for clarification to the Complainants on the 9th of January 2025 the following response was received:

“If I have understood correctly this is clarification as to whether it is section 5 or section 6 of the Equal Status Act, (as amended), that the respective requests for investigation seek to turn to for protection. In aiming to do this I have studied the wording of each section and the wording of the January 1st, 2016, changes that were published regarding the section 6 of the Act which you have mentioned in your letter. Through this apart that there is in the Equal Status Act even from its first adoption in the year 2000, came to be seen, i.e. the section 5 part 2(b).

Section 5-(1) 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.

(2) Subsection (1) does not apply in respect of – (b) a service related to a matter provided for under section 6.

This part (b) may be there as a way of preventing duplication of the protected measures, or perhaps to provide for the specifics of the accommodation measures to be named in section 6. In section 6 at part (1)(c) are the following words – 6–(1) A person shall not discriminate in– (c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

Access to and egress from a dwelling, in itself, (i.e. even while for a moment setting aside the wider context in which this barring of these elements of natural life have taken place), are related to accommodation matters, therefore it appears that the section 6 is the appliable part of the Equal Status Act to turn to, as well aa naturally the section 3 (“discrimination general”) and the section 4 (“discrimination on the ground of disability”).”

The submission at that point refers to the second complaint which is addressed separately.

“Ms Hughes I cannot help but be deeply concerned at what has been pointed to in your letter in regard to the request for the above clarification. I quote your words here as I do not want to misrepresent them in any way “It is not for the AO to identify the legislative basis of the complains within the legislation – a point I must make to Complainants and their representatives all too frequently, and not only in this instance. The Respondent is entitled to such clarity. I also require that clarity as the decision maker.”

When the Equal Status Act was first passed, much was made of the fact that Legal Representation was not required by either Party in an Investigative process. This was held to be because the Investigating Officers were there to ascertain if the law, any parts of it, had been broken such that those vulnerable to harm could be assured that if harm had been done this would be recognised, discovered or uncovered as need be, principally by the Presiding Officer of the Equality Tribunal who was given the delegated role of Director.

The change is not only indicated in what is written here, but has been experienced in other recent Investigations too – that the very essence of the role of the Presiding Officer in an Investigation has changed, making the role of a Lay Representative more precarious indeed. The change I refer to means that the “inequality of arms” when one Party has the wherewithal to have Legal Representation while the other has not the resources to do so, becomes even more of an impediment to a fair outcome. The vital importance of “equality of arms” is not an assertion of mine but something that is widely understood to be a cornerstone of a fair trial of a matter. If I have made a mistake in my reading of the tenets of the Equal Status Act(s) and yet there is a part of the Act(s) which grants the protection and/or redress needed for Mr and Mrs O’Donoghue because of the egregious treatment that was meted out to them over many years – the blockading in by blocks/boulders, and this also done to vulnerable people of their extended family over generations, as shown in the exhibited documents and photographs. …then I sincerely hope that it would be possible and acceptable for the relevant part(s) to be brought to the fore – for example section 5 of the Act is included with the earlier Part 2 submission prepared for the Investigation – so if mistakenly omitted here section 5 still has been presented there.

It is not that I think it is a mistake to focus now on section 6, it is that I have a dread for what I is implied by the possibility presented – the possibility that all could be lost for those seeking earnestly for the provisions of the Equal Status Act to apply to them, if I, as a Lay Representative, make a mistake in this precision, while others, including a presiding officer, could know what is the correct answer.

I do not mean to disrespect in any way the endeavours of any person who carries out the role that I understand is the role that has now been given. It is that as a Lay Representative it seems to be my responsibility to express these concerns regarding the perceived changes and what they portend, as I have hoped to intimate here.”

1. The Correct Respondent incorporating Vicarious Liability s42 (and 44)

As can be seen this issue was teased out in great detail with the representatives of the parties. On 10 May 2024 the parties were informed that as the arguments advanced by the Respondent were stronger than those advanced by the Complainants the Respondent name within each of the decisions would be Clare County Council with initials for the employees where required and that the detail of that decision would issue as part of the overall decision on the complaints.

It is noted that the Complainants have persisted with a contention that individual employees and Clare County Council should be named respondents (this is how the complaints forms were phrased), despite decisions against that opinion by other Adjudication Officers of the WRC on the same issue which involved the same complainant representative. The earliest documentation on this subject provided by the Complainants containing the same type of arguments dates back to 2006 to when complaints were before the Equality Tribunal. It is fair to say that when the complaints were submitted in 2015 (and 16) WRC adjudication decisions on the subject of the correct respondent had not issued. But neither have those decisions been appealed ostensibly for financial reasons (albeit other cases have been referred to the Circuit Court) while at the same time the Complainants continue to argue against the successive decisions of Adjudication Officers. There is a point where a stance of this nature becomes vexatious, i.e. consuming time and expense on the part of the Respondent and the services of the State in circumstances where that argument cannot hope to succeed. Repetition of the same argument over and again can readily achieve the threshold for being pursued as a source of irritant and cost to the Respondent and for no other good reason. There is a single-minded focus on the part of the Complainants’ representative which is to be admired in the broader sense of being willing to spend a ferocious amount of her own personal time and commitment advocating with energy for members of the Traveller community in County Clare in rights-based cases. However, that single-minded focus becomes misplaced when it becomes evident to any reasonable person that the basic decision as to the entity which is the correct respondent for the purposes of the ESA is not going to be varied by those at first instance without guidance to the contrary from the Courts. Out of respect for the Complainants and the Respondents I gave this matter considerable airing and will set out my reasoning in a decision which ultimately, is on all fours with previous decisions of Adjudication Officers on this subject.

Were the Complainants’ argument to be accepted as a complaint under the Equal Status Act and a complaint of discrimination under the Equal Status Act were to be upheld, then individual employees would be held personally and publicly liable for such acts of discrimination as were committed during the course of their work. This would drastically alter the concept of vicarious liability under both the Equal Status and Employment Equality Acts where the provisions for vicarious liability contain the same principles and wording under the respective legislation. Also, what is clearly evident and common to the respective Acts, is that the purpose and intent of the relevant sections is to make the employer responsible for any act of discrimination at the point where the service (or accommodation) is provided. Section 42 allows for a test that the policies and procedures of the employer may provide or not provide a defence against the actions of the employee engaging directly with the user, or would be user, of the particular service.

The Complainants’ description of the County Council as a nebulous body where they are the employer is a false one. Frankly it does not matter what the employer is named or whether it is a body governed by a Board or is privately owned  as that entity is directly and legally responsible for the actions of their employees (or agents) in the provision of a service or access to a service which is provided by the legal entity. The employer shall also be responsible for the provision of policies (and training where required) governing the conduct of those employees in the course of their duties.

The assertion that by accepting that the Council is the sole Respondent and not the individual employee removes accountability for the actions of the employee is also false. The employer (or service provider) is an entity to whom their employees are accountable for their behaviour including any valid complaints of discriminatory behaviour towards external persons seeking to avail of a service (or accommodation to the extent that this applies within the Equal Status Act) for the purposes of the Equal Status Act. To be fair to Ms Rosen, whose mind is not for changing on this issue it seems, her viewpoint, that employees should be publicly named and shamed as it were for the manner in which they deliver a service or fail to deliver a service where that issue has been the subject of a public inquiry or investigation, is one confused by all manner of people with the appropriate legal person for the purposes of accountability – the entity which provides and governs  the service. And while failures may occur at more than one level, it is the legal person who must hold their own employees accountable, where it is justified in doing so. Findings of fact can be made which point to a wrongdoing without the extreme measure of naming individual employees as Respondents or declaring them to be Respondents. The reality is that the that person under the equal status act and vicarious liability are intrinsically linked. The entity providing the service or accommodation has the liability for the person whom they employee and the employee is liable to the entity for their actions.

The Complainants criticised the absence of direct witness evidence from named employees in other situations where they were not deemed to be the correct Respondent. It is not necessary for a person including an employee to be named as a respondent in order to ensure they appear to give sworn evidence and to be available for cross-examination. The circumstances of a case and the decisions of the named respondent will decide in most instances whether an employee is called by their employer to give evidence. Frequently there are very good and justifiable reasons why such persons are not called to give evidence, and they are not merely a ruse on the part of the employer or respondent. The respondent likewise will decide who will answer for them at any hearing before the WRC. The decisions around the form of evidence to be provided at any hearing is a matter to be decided in the first instance by the parties in any case and not solely those under the Equal Status Act. There can be consequences for a party in not calling a particular witness or witnesses.

I feel it necessary to refer to the question of fairness and justice which in my view is not well served by the use of a virtual shopping list of named employees by way of ES1 Forms or complaints to the WRC but not containing any specifics of allegations of discrimination to which that employer or their employee can respond in a meaningful way as occurred in this instance. I do not excuse the Council as a State body in their clearly tactical decision not to reply to any of the ES1 Forms submitted on behalf of these or other complainants, a point which has been raised in previous hearings over many years including in the Courts where the State Body in this case refers to the cost of their engaging with the multitude of complaints made under the Equal Status Act. However, a hearing before the Workplace Relations Commission is an inquiry of a specific allegation or allegations and not a fishing expedition to see if facts can be established amounting to discrimination. Comparisons with soldiers in the course of battle killing and maiming “under orders” are pure hyperbolae or at least one hopes that is what they amount to, but nonetheless they are comparisons made without evidence comprising merely speculative opinion or assertions, at best.

The contention also made by the Complainants that in deciding on only one Respondent in this case or indeed any case is to provide a potentially limited financial penalty fails to recognise other key forms of redress available under the Act in addition to the financial compensation. In any event, the level of compensation is established by reference to the District Court limits and at €15,000 may not seem a significant sum to the Complainants’ representative but to many respondents under this legislation this amount, and even lesser amounts represent a considerable financial penalty. A penalty is not decided under the equality legislation by reference to the size of the entity or body who is the respondent but by the effects of discrimination within the prescribed limits. In any event in this particular case there are multiple complaints against Clare County Council and potentially multiple financial awards available by way of redress. As a result of the separation of the Complainants what were 6 complaints became 12 and each one provides the possibility of financial redress to the Complainants within the limits of the legislation.

Apart from any financial redress which may be awarded and a factor which is completely ignored by the Complainants’ representative is the potential of reputational damage to any entity which is found to have discriminated against anyone covered by a protected ground. Depending on the circumstances that entity may be an individual provider of a service or accommodation or a legal corporate entity. The civil courts have long recognised that the matter of reputational damage can have far more significance and be of more concern and impact in the case of a respondent than any immediate award of compensation.

And finally, by way of redress and which has also been ignored by the Complainants is that the Equal Status Act allows for an Adjudication Officer to issue an order directing actions by the respondent in well-founded cases which may have significant implications for the respondent far beyond the immediate financial measure. Those orders may and are likely to have implications in terms of costs and/or policies in cases of service provision. Such orders generally have the intention of providing a basis for directing the respondent to take the necessary steps to ensure as far as possible that there is no reoccurrence of the offending and discriminatory behaviour. There is no limit to such measures specified within the legislation.

Reverting to section 42, the terms of which, at subsections (1) and (2) could not be clearer in indicating where the liability lies to ensure that no employee or agent acting in their name in the provision of a service or accommodation behaves in a discriminatory fashion against any protected group seeking to avail of a service:

“42.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”

Ms Rosen has endeavoured to use the term “as done also” by that person’s employer to provide a basis for her contention that the employee and the employer are jointly and separately persons for the purposes of the application of that section. This is respectfully a plain misreading of the overall purpose and intent of the legislation which is to root out discriminatory practices and procedures by service providers and to make that provider responsible for the actions of their employees – the exact opposite of the contention on behalf of the Complainants in this and several other cases where it is contended that each employee is publicly and personally liable for their own conduct. The legislation actually ensures that the accommodation or service provider cannot simply disown the acts of an individual employee. The provider must instead be able to demonstrate their responsibility and responsible actions taken by them to ensure that such discrimination does not occur and that their employees are fully aware of their responsibility to ensure that such discrimination does not occur in service provision or accommodation as defined.

Section 43(3) does allow that the employer or respondent may be able to demonstrate that they took all of the necessary and appropriate steps to ensure that if an employee had engaged in discriminatory behaviour that they did so entirely without the support or approval of the respondent. In this way it is accepted that an employer/service provider may be able to demonstrate that even if discrimination occurred, they should not be penalised for that discriminatory behaviour, and they must be able to provide evidence to support their position in this regard. It is the fact that this clause exists if anything which reinforces further the contention made on behalf of the Respondent that it is the Council who are the appropriate respondents who would be required to provide a defence under section 43 of the Act in full as the liable body for the purposes of the Act (should discrimination be found to have occurred).

Regarding the application or otherwise of section 44 of the Equal Status Act I concur with the opinion of the Respondent that this clause refers to matters of a criminal nature which is not at issue in this case.

A final point is to respond to the reliance on the part of the Complainants to the case known as the “Portsmouth” case in support of a contention that the employee is directly liable for their own acts of alleged discrimination as well as the employer. This case in my respectful view is not relevant to the case at hand under the Equal Status Act in the manner suggested by the Complainants’ representative. The entire thrust of the Portsmouth case was to determine whether the trustees of the Roman Catholic Diocesan Trust were vicariously liable for the actions of a parish priest at the church in question. In that case the trustees set out a defence denying that they “ever managed, operated or were responsible for the church, the responsibility resting at all material times with the parish priest.” There is no such argument being advanced on the part of Clare County Council in this case. They accept liability where any discrimination is proven, and they furthermore accept their responsibility for the actions or inactions of their employees. A significant element in the Portsmouth case was the dispute around direct control over a parish priest and also the procedures which might end in a termination of the position of parish priest which the respondents appear to have argued was outside of their control. No such argument was advanced in this case. Clare County Council accepts that they are as the employer directly responsible for the actions of their employee, and there were aspects of the Portsmouth case where it was accepted that the relationship differed from one of employment in a number of ways i.e. the lack of the right to dismiss, little by way of control or supervision, no wages and no formal contract. All of these factors are present in the relationship between each of the named employees and their employer Clare County Council. It is my view that no matter how the Complainants insist otherwise in the stance being adopted, the employer/employee relationship is entirely inseparable from the case brought by the Complainants against named employees. In a sense Ms Rosen is attempting to reverse out of the direct liability of the employer for the provision of the service and any acts of discrimination and then, in suggesting the Council would pay any awards against employees, to suggest that they are jointly and severally liable for any acts of discrimination on the part of named employees. A case of trying to have it every which way.

In Portsmouth all of the precedents cited in the judgment refer to disputes as to whether there was an employer/employee relationship in existence, quite the reverse of the current case. The Portsmouth judgment looks beyond the employer/employee relationship for the purposes of establishing vicarious liability, a test not required in this case. The key tests are who provides the service and in some instances who has direct responsibility for that service, and the answer to both questions in this case is Clare County Council with their employees responsible in turn to the Council for the performance of their functions.

Based on the foregoing conclusions and findings and as previously indicated to the parties, the decisions will issue in the name of Clare County Council with the use of initials to identify the relevant employees where necessary.

2. Time Limits

The following is an extract from a letter which I issued to the parties on 10th May 2024 in consideration of among other matters the submissions on time limits:

“All of the complaints received by the WRC whether in 2015 or 2016 will be scheduled for hearing. In effect I have accepted the Complainants’ case on the matter of time limits as the stronger of the two sets of arguments as a general proposition at this stage i.e. that the issues raised in the complaint forms were referred within six months of an act of alleged discrimination based on the ongoing nature of the issues, with particular reference to those issues referenced in the 2016 complaints. Where required to do so, I am minded also to exercise the available flexibility provided for in section 21(3) of the Act. However, I acknowledge the Respondent’s comments regarding the generic nature of the complaint forms and the lack of specifics provided in relation to the individual complaints. I cannot therefore rule out the possibility of deciding at a later stage on hearing the evidence and full submissions that a complaint/s against the Council in respect of a named employee/former employee is “out of time” or, that the exercise of the flexibility provided for under section 21(3) is not justified in a particular case.”

The relevant dates for the purpose of assessing the application of section 21 of the Equal Status Act entitled “Redress in respect of prohibited conduct” containing a number of qualifying and, by extension, excluding periods for the purpose of the generic title of time limits are as follows:

27/05/2015 – Council machinery pulls/pushed concrete blocks across the entrance to the field where the Complainants had moved their accommodation.

Mid-July 2015 – The Complainants report receiving a letter indicating that the Council would move the blocks in order to allow the Complainants to vacate the field.

17/09/2015 – Evidence of postage of the ES1(s) to Clare County Council.

16/11/2015 – Referral of complaints to the WRC.

The Respondent appears to argue that the ES1 notification should have been served in mid-July 2015 related to the specific event on 27th May 2015 when the boulders were replaced at the entrance to the site after it had been occupied by the Complainants. The position of the Respondent on the time limits in respect of this complaint would if accepted result in a decision that I have no jurisdiction to consider this complaint and is, in my respectful view, a contention bordering on spurious.

Of significance is that as late as mid-July the Council offered to remove the blocks on condition the Complainants left the land. The Complainants did not agree, and the Council continued to leave matters as they were. This can be taken as a further decision by the Council that the decision to block off access and egress was to remain. While it could be said that the decision of mid-July brings the date of serving the ES1 on 16th September 2015 within the scope of s.21(2) which allows a period of two months for serving a notice of possible complaint, for the avoidance of any doubt and further contention, I am exercising the licence granted under s21(3)(b) which allows for an extension of the referral to a period of up to four months in circumstances where the actual situation was ongoing, was the subject of communication and was well known to the Council. An extension of the initial two-month limit is just and equitable in all the circumstances.

The objections of the Respondent  under s21 are dismissed and the complaints are  allowed.

3. The Application of s.5 and/or s.6 of the ESA in this Case (and by extension s.4 and s.11)

The application of s5 disposal of goods and services.

“5.— (1) 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.”

The record of the dealings between Clare County Council and the Complainant family including a previous generation, over many years, make for depressing reading. The representative of the Complainants points to a human rights issue. The record also contains references to illegal occupations of public and private lands, chronic ill health and  deplorable living conditions. There are references to and photographs of arson attacks on the Complainants’ possessions. Applications were made for the use of some public land over the years. Applications were made for settled accommodation and then for a group scheme for the entire family – the latter being especially complicated as it necessitated changes to existing County Plans. There are records of discussions at Council meetings about the application for the group scheme and also the placing of boulders at a site in 2015 where some local people wanted the boulders removed while others expressed concern that to do so would see a return to an illegal unauthorised encampment.

These observations are not intended to apportion blame concerning how this saga began or was maintained. As a neutral observer however, I am struck by the evident absence, or at least none cited by either side, of  any attempt serious or otherwise at a third-party intervention to resolve matters between the Council and the Complainants. Over the years paper has taken much ink, but at a cost to both parties. Human and financial resources expended to no evident gain with the public purse still funding the continuation of the arguments 25 years later.

Turning to the complaint under the Equal Status Act the Complainants’ representative refers to matters of human rights. The fundamental issue is that while the interpretation of the Equal Status Act 2000 is now linked to the UN Human Rights Convention, to succeed in making a successful complaint under the National or EU derived legislation, the basics of the complaint including the allegations of discrimination must fall within the parameters of the Equal Status Act. That a person is comprehended by a protected ground and has difficulties with a service provider is not sufficient to shift the burden of proof from a complainant to a respondent. It is here, the application of the ESA to the facts in the case that the Complainants have encountered a considerable difficulty in demonstrating that the facts represent even potential discrimination under the Equal Status Act, as distinct from annoyance at the actions of the Respondent.

What occurred in this instance and is not disputed by either party is that the Complainants entered land owned by the Respondent without authorisation and set up their home there. In doing so they moved property of the Respondent which blocked off the entrance to that land in order to facilitate their own access to same. On learning of the occupation of said land, the Respondent replaced their own property, i.e. the blocks, at the entrance to their land. They subsequently offered to move the blocks in order to allow the Complainants to leave the Council’s land. These facts do not suggest, imply or demonstrate that the Respondent was at that time providing a service in which they allowed unauthorised access to their own land whether that was to the Complainants, members of the Travelling community, members of any other protected group or the public generally. There were no goods being provided in this instance to the public or a section of the public for sale or any other consideration. The only service being provided by the Respondent to the Complainants was to include them on the social housing list and to offer them accommodation on the basis of their acceptance onto that housing list. To provide even a hypothetical comparator would require the Complainants to demonstrate that the Council provides a service for unauthorised encampments to other Travellers or other protected or unprotected categories and does not or would not take steps to regain control of that land.

There is no neutral provision present in these circumstances which places members of the Travelling community at a particular disadvantage compared to other persons. There is simply no service being provided or goods being disposed of in this case.

The Application of s.6 “Disposal of premises and provision of accommodation”

“6.—(1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.”

The facts in this case do not involve the Respondent Clare County Council disposing of any estate or interest in premises, terminating any tenancy or other interest in premises or providing accommodation or any services or amenities relating to accommodation or ceasing to provide accommodation or any such services or amenities. The facts in this case are not comprehended by the terms of section 6 of the Equal Status Act in place in November 2015.

Based on the foregoing conclusions and findings in respect of the application or nonapplication of section 5 and/or section 6 of the Equal Status Act to the facts in this case, I decide that the complaints under the Equal Status Act are misconceived in the ordinary sense of that term. Misconceived in that the facts and the circumstances do not relate to the terms of the legislation at the relevant sections or indeed the purpose of the Act.

Section 22 of the Equal Status Act as of November 2015 did not allow for the dismissal of a complaint where it was found to be misconceived. Section 22 of the Act at that time provides:

“22.—The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter”

I find that the complaints in this case relying on the protected grounds of Traveller and Race are frivolous , relying on the terms of s.22 the Equal Status Aci 200,Act. In arriving at this finding, I consider that the complaints lack a legitimate basis, are so lacking in substance or evidence that they are unlikely to succeed or lead to any meaningful outcome and that further investigation of the complaint is far outweighed by the time and resources it would require,  this based on the related finding that the facts of the case are not comprehended by section 5 or 6 of the Equal Status Act. The complaints under s.5 and s.6 of the Equal Status Act are dismissed.

It follows that section 4 which refers to those with a disability and section 11 which refers to harassment do not apply to the facts of this case. Both of these sections of the legislation are based on a premise that a person is attempting to access a service or accommodation provided by the Respondent and is discriminated against by reason of their disability or is harassed in the course of endeavouring to access the relevant service or obtain accommodation within the meaning of section 6. These complaints are also dismissed as frivolous by operation of section 22 of the Act.

CA- 00051609 By application of s.22 of the Equal Status Act,2000,as I find the complaints by Mary O’Donoghue against Clare County Council(referring also to GD) which were referred to the WRC on 26 November 2015 to be frivolous, the complaints are dismissed.

Correct Respondent-Time Limits-Application of s.5 and/or s.6 of the ESA.