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-00004419-001

12/05/2016

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 previously also lived in other parts of Ireland. Both suffer from documented poor health and would be described as elderly.

The complaint submitted to the WRC referred to an individual employee of Clare County Council addressed to them at Clare County Council. It is understood I believe by both the Respondent and certainly by the undersigned that the Complainants’ representative intended that the complaints would be submitted also against Clare County Council, a practice which she had followed in completing the handwritten forms submitted in respect of a separate set of complaints in November 2015. The online form did not allow for the dual Respondents to be used by the Complainant.

The complaints were submitted to the WRC on the 12th of May 2016. The decisions regarding this and the related complaints are issued in the name of Clare County Council as the appropriate respondent for the purposes of the Equal Status Act, as amended for the reasons set out in this decision. The issue at the heart of these complaints is concerned with provision or more accurately the non-provision of portable toilet facilities to the Complainants when they resided at unauthorised sites. The issue referred to the WRC is one which transcends different periods of time and locations where the Complainants lived all having in common that none of the sites where their dwelling was located was a site approved for dwelling by Clare County Council in respect of the Complainants, albeit one was a serviced site. The Respondent contends that as the complaint form refers to a single aspect of the history of the issue involving another public body that given the date of the decision by that body the complaint submitted to the WRC falls outside of the six-month limit provided for in section 21(6). There is now also a significant question to be determined as to whether the Respondent is in fact the correct respondent for the purposes of the complaint by reference to section 5 and/or section 6 of the Equal Status Act as well as the time limit issue raised by the Respondent.

The complaints are of discrimination on the protected ground of membership of the Traveller community, disability and race as indicated on the complaint form. The unlawful treatment has been indicated as discrimination against [me] by a person, organisation/company who provides goods, services or facilities. Discrimination is alleged by reason of disability, by reason of race, and by failing to give a reasonable accommodation for a disability.

The summaries which follow address the following elements:

1.      The Basis of the Complaint.

2.      Correct Respondent under the Equal Status Act.

3.      Time limits; and

4.      Application or otherwise of the Equal Status Act s5 and s6 in this case to the Respondent Clare County Council.

1. The Basis of the Complaint

As the contents of the WRC complaint form provide a substantial part of the reasoning put forward by the Respondent and also relevant to the Decisions, it is replicated here in full.

“Ms O’Donoghue is a Traveller lady who has been back in Clare for around 8 years with others of her family but they (sic) she does not, as yet, have a home. She is seriously disabled and suffers from many intensely serious illnesses, including [detail of medical conditions provided and incidentally not disputed by the Respondent]. In midwinter of 2014, having, on Christmas Eve, been refused admission to a place booked for her and for others of her family to stay, to protect her from winter storms and allow her the use of sanitary facilities, a relation allowed Ms O’Donoghue to bring the caravan-home, on a temporary basis, into a bay on a Traveller Group Scheme while others of the relation’s extended family were away from that bay. In the summer of that year the family who needed the bay were to return. Because of the devastation to Mr and Ms O’Donoghue’s health of having no toilet facilities the community welfare office was contacted before the time came for them to vacate the Scheme to ask please for the arranging of a portable toilet. I, the writer of this form, (Ms Rosen), spoke with Mr T by telephone. He asked were there not health Personnel to deal with this. I explained that, so far, no, there were not any who could, despite however much they would wish so. After some discussion he said he would discuss this with other Personnel in his Department and would also speak with the Public Health Nurse whose role was to work with members of the Traveller Community. After some time, not hearing anything further, I, went with Ms O’Donoghue to the Welfare Clinic and after explaining to the persons on duty there I assisted Ms O’Donoghue to complete the application-form for help, including help for a portable toilet, this being such an essential for her wellbeing and the wellbeing of her husband, Cornelius. Nothing further was heard. Many other crisis[ sic] had to be dealt with. It was the following year that we returned to the Clinic together to ask what had become of the earlier request. We brought the copied form with us and showed it. We were told there was no record and that the request must not have been made, asked if we had proof that the form we brought had been given in. We pointed to the other matters asked for on the form and this appeared to show that indeed it had been handed in. We were asked if we had an estimate for a portable toilet. We explained this was something that was accomplished by a company that would come and service the toilet and had been arranged on other Schemes already in Ennis – that what we were asking was for a liaising with the Council (the homelessness clinic is under the auspices of both the Department of Social Protection and Clare County Council). Nothing was heard back. Ms O’Donoghue was suffering so much. We returned to the clinic. There Mr T [DSP employee] was one of the two people present and he said he had already made the decision. It turned out he had made it some time before but inadvertently the decision had not been sent – it was a refusal. The form was then printed and we were shocked to read the reasons written on the form – 1) not appropriate to supplementary welfare allowance scheme 2) refused offer of suitable accommodation with Clare County Council. The words “See 201 of SWA” were added. Ms O’Donoghue was very upset, remonstrating that no suitable accommodation had been offered, telling of the examples, otherwise how would she be suffering so much; She was even very weak as she tried to explain this. It was quite pitiful. I said words to the effect that I did not think it was fair for the welfare officers if they had to present decisions that were maybe out of their hands and they did not believe in but Mr T said this was indeed also his decision. Could this still be so after what we were explaining to him, we asked? We went from there to the offices of Clare County Council to ask how this could have happened? Again Ms O’Donoghue very weak and upset, and asking, please, for some kind of help. Mr NOK [Council employee and named as a respondent] was there – he said he knew nothing about information being passed to the Welfare Officers re “suitable accommodation having been refused”. Nothing further was heard from either the Council Personnel or the Department of Social Protection Personnel. Mr TC [another named respondent along with Clare County Council] was in the role of CEO of the County Council and is aware of the grave health difficulties that Ms O’Donoghue suffers. This happened while he had ultimate responsibility for the conducting of Council matters and is just one of a long series of instances of inappropriate behaviours in relation to Ms O’Donoghue and others of her family. When the notification forms were sent to each of the persons in the roles of responsibility within the Council, no replies were forthcoming.”

The following is some of the documentation provided by Ms Rosen in which she gives a good indication of the basis of the complaints as presented in written and oral form.

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 materials 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 and on the subject of the comparable person 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.”

“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.”

There is a significant volume of material giving an historical account of the Complainants’ experiences of dealing with the Council commencing in the 1990s and 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.

From a submission of 30th August 2024:

“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… 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.

Or if the Respondents [can] tell of a person of the wider community who was barred from having a portable toilet when living on land that was unauthorised, this would not be a fair comparison with the couple here, for whom special relevant provisions have been set through government guidelines for their protection, and who have tried in every way they knew to attain safe accommodation that would relieve them of the necessity to live as “outlaws”, but whose pleas, as the records show, were not only disregarded but were also purposely thwarted, for example by the repeating expulsion measures that devastated them each time these measures were inflicted. Because what other persons other than people of the Traveller community are going to be living in caravans and vulnerable to the vagaries of the policies and practices of local government officials who are specifically charged, at national level, with the responsibility and duty of care to attend to their needs, (if they are unable to attend to these from their own resources), and while those thus charged, and granted the powers and resources to fulfil these tasks, might persistently renege on such duties and responsibilities?

The Equal Status Act was passed into law to hold conduct of a discriminatory nature to protect the persons in any one of the nine groups who have been identified as most vulnerable to harmful treatment of this kind, (and any person associated with them, also vulnerable), from having to suffer from the said prohibited conduct. It is in section 3 of the Act that the way to identify prohibited conduct is defined. The words that are used to do so in the parts 3(a)(i) to (iv) are expansive in nature and, on studying them, one can surmise that this is with the purpose of countering any narrow definition that would limit the protective measures. For example, even in the first sentence of this section 3 it is stated that the person in the role of discernment is to, if relevant, take into account not only how a person, other than the person who believes him or herself to be wronged, is being treated or has been treated, but also how they would be treated in a comparable situation.”

At the hearing on 31st January 2025 Ms Rosen explained the background in respect of the Complainants clarifying the places where they had lived in the period up to and including the 27th of May 2015 and beyond that date where they remained on the Council’s land. They remained on that Council land at the point at which the ES1 notices were issued to the Council. It was further explained that the question and seeking of a portable toilet was an issue as far back as 2008. In around April 2015 the Complainant or Complainants were out of hospital and the district health nurse had visited their location in Tullow on 22nd May 2015 from which she identified a need for sanitary facilities on health grounds. [The Complainants moved onto Council land on 27 May 2015, the subject of separate complaints].

Regarding the terms of the legislation, it was submitted that it is the role of the Council to provide accommodation and to attend to the needs of the Traveller community and specifically to attend to the needs of the Complainants. In particular she referred to the guidelines issued to local authorities regarding the provision of accommodation and related facilities for members of the Traveller community as functions of the local authority. The Respondent had a statutory function, a duty to the O’Donoghues given the level of disability and bearing in mind that the requirement for sanitary facilities on the Council’s land which commenced on the 27th of May 2015 were not provided a year later while they were still on that land. The issue was ongoing, and the time limit did not apply in those circumstances. The Complainants’ representative described under the term harassment the humiliating and degrading treatment imposed on the Complainants where they had to go outside their living area to obtain sanitary facilities and they were deprived of the basic necessities of life.

In her submission of the 24th of February 2025:

“As regards the obligation of the Council to provide portable toilets, which the representative of the Council did indeed deny at the preliminary hearing… and the practice of certain of the officers of the County Council of not fulfilling that obligation, certainly not in regard to Mr Cornelius and Ms Mary O’Donoghue and others too, I first turn back to the file of correspondence and ask that it be seen how it is to the officers of the Council that the medical professions turn urgency in order to seek the arranging of the said toilets. I have not been aware, in the preparation of that collection of documents, of any reference being made to asking, instead, for the urgent assistance of the Community Welfare Officers. This is already significant and persuasive evidence that the persons who could have the powers to accomplish this were the officers of the local authority.”

The submission then turns to the guidelines regarding basic services and facilities pending permanent accommodation noting these are guidelines not for community welfare officers but for local authority officers. Referring to a news report from the Ennis District Court of the year 2000 and the words of Judge O’Dea as he refuses to prosecute people who have no place to live and no sanitary services. He does not in any way make mention of community welfare officers.

Of note of what is arising in the present Investigations is the participation of the Environmental Health Officer in the prosecution measures.

“This repeating abdication of care and responsibility for the men, women and children of the Ethnic Minority Travellers by others in other Public Bodies and semi State bodies, has contributed to the perpetuation of discriminatory practices in the County. This was evidenced in these investigations in the refusal report written by the Community Welfare Officer where he cited the opinion of the Council officers regarding the alleged refusals of suitable houses by Ms O’Donoghue without any questions posited to Ms O’Donoghue herself as to why these were deemed by Ms O’Donoghue to be unsuitable.”

There is reference to the purposeful denial of the service by those charged with the service provision – the local authority officers. The Complainants’ representative refers to contacting the Department of Social Protection regarding the matter of responsibility for the provision of toilet facilities and including quoting an unnamed person who spoke about the Community Welfare Officer first needing a letter from a local authority officer that they were not going to provide a portable toilet. The Community Welfare Officer might then be able to help on a humanitarian basis. Citing an unnamed manager that the Council default position would be to move people on or if there was a local link to others of their family in that area that the Council would be obliged to put families up for accommodation, and continuing that if the Travellers in question were

“not on an authorised site then the Community Welfare Officers would not have the chance to provide anything there. The Department of Social Protection would not be permitted to do this and would have to tell the person to go back to the Council. The position as advised to the Complainant was that it was the Council who would then have to provide the family with adequate living facilities.”

1. The Basis of the Complaint

The following is from the Respondent’s replying submission of the 22nd of November 2024 where the status of the Complainants as housing applicants and various items of correspondence are detailed as follows:

“The Complainants were approved housing applicants of the Council at the time of the events complained of [referring to the 27th of May 2015 and a separate complaint]. The alternative accommodation possibilities available to the Complainants at and around the time period leading up to the events complained of is evidenced by the documents submitted by the Complainants’ representative in the loose bundle of documentation received on 30 August 2024, specifically:”.

The submission goes on to list correspondence from and on behalf of the Council on various dates between the 10th of March 2014 and the 2nd of September 2015. One of these is a letter of the 27th of May 2015 from GD of the Council noting the Council had made a number of offers of housing that had been refused and further noting that the Council would continue to address issues insofar as it could. There is a further offer of a housing on the 2nd of September 2015.

“Section 38 of the Act sets out the burden of proof and provides as follows at subsections (1) and (2):

“(1) Where, in any proceedings, facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.”

The burden of proof rests on the Complainants. It is only when the facts are established, from which it may be presumed that prohibited conduct or a contravention of the Act has occurred, that [it] is then for the Respondent to prove the contrary. This requires the Complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them, in order to establish a prima facie case of discrimination on the grounds of race, disability or membership of the Traveller community. It is for the Complainants to prove that the alleged conduct complained of puts them at a particular disadvantage when compared with persons of a different race, without a disability or not members of the Traveller community.”

Responding to the specifics on the complaint regarding the portable toilet headed the portable toilet – mid-winter 2014 – claimed as ongoing from that date. Dates of complaints 12.05.2016:

“It appears from the complaint forms that the request for a portable toilet was made of the Community Welfare Officer, which operates under the auspices of the Department of Social Protection. The reference in the complaints forms is to a Mr T who is neither an employee nor agent of the Council. As far as the Council is aware, he is an employee of the Department of Social Protection. The references in the Complaint forms to the “welfare clinic” is not a reference to an agency of the Council. It is believed that this is a reference to an agency of the Department of Social Protection. The Community Welfare Office(r), for a period, had an office within the Council’s headquarters building, which it used as a base prior to the establishment of the Council’s homeless team. There is no statutory obligation on the Council to provide portable toilets to applicants for social housing. The Council has no record of a request for a portable toilet from the Complainant(s) at this time.

It is a matter for the Complainants to clarify where they were living during the period comprehended by the complaint, as they were not tenants of the Council at that time. Several proposals for accommodation had been made by the Council to the Complainants, and rejected as set out (previously).”

“The reference in the complaint forms to a decision appears to be a decision of a Mr T, who is neither an employee nor agent of the Council. As far as the Council is aware he is was an employee of the Department of Social Protection. Mr TC was Chief Executive of the Council at that time. Mr GD was the Director of Services with the Council at that time and Mr LC was a Senior Executive in the Housing Section at that time. They had no role in the decision making of the Community Welfare Office(r), which is under the auspices of the Department of Social Protection.

The Council was not requested to provide a portable toilet. It appears from the complaint form that such a request was of the Community Welfare Officer. Accordingly, no decision was made by the Council in this regard. insofar as the allegation was made against TC in the complaint form is that he was in the role of CEO of the Council, was aware of the grave health difficulties of the Second Named Complainant. It is claimed that he had ultimate responsibility for the conducting of Council matters.

The allegation made against LC in the complaint form is that he was a senior officer in the Housing Section of the Council and was aware of the grave health difficulties that the Complainants suffer from. The allegation made against GD in the complaint form is that he was a director of the service in the Council and was aware of the grave health difficulties that the Complainants suffer from.

There are no facts set out in the complaint forms, in respect of any of the three named individuals from which it could be presumed that prohibited conduct or a contravention of the Act had occurred, in order to establish a prima facie case of discrimination on the grounds of race, disability or membership of the Traveller community. Insofar as a Mr OK of the Council is named in the complaint forms (although he is not a respondent to the within complaints), no apparent claim of discrimination or harassment was made against him.”

The submission refers to section 3 of the Act and the absence of a comparator on behalf of the Complainants.

In the submission the Complainants’ representative has provided several documents which she identifies as attempting to show “patterns” of conduct towards the Complainants. It is respectfully submitted that this is an abuse of process of the Act and the jurisdiction of the WRC in the manner in which the Complainants’ representative seeks to do so, in circumstances where the Act provides for a referral of “a case” of discrimination/harassment/prohibited conduct. It is respectfully submitted that the utilisation of the Act in this manner is not the appropriate forum to seek to have varied numerous cases “over these past 25 years” held up for scrutiny. This is simply not what the Act was intended to achieve. The Respondent submits that only one page of a 24-page document is in any way relevant to one of the complaints.

In response to “the overview submission” submitted by the Complainants the Respondent denies that it was responsible for leaving the Complainants without sanitary services in circumstances where a number of offers of accommodation were made and refused by the Complainants. There is nothing in the document which provides any facts in relation to the two sets of circumstances complained of above from which discrimination could be presumed.

In relation to the documents “the responsibility submission” the Respondents do not accept that the submissions contained herein, in the first instance, provide sufficient facts from which discrimination could be presumed in order to shift the burden of proof to those individual named Respondents or to the Council, or, in the second instance, to attribute personal responsibility to any of those individual named Respondents having regard to the previous submissions made herein in relation to vicarious liability and the correct identity of the Respondents.

“It is submitted that the Complainants’ dissatisfaction with the manner in which a public authority distributes its scarce resources or the discretion exercised by a housing authority in making offers of accommodation that the Complainants subjectively feel is unsuitable, does not amount to discrimination, harassment or failure to provide reasonable accommodation. Furthermore, the Council cannot answer for the alleged action or inaction of other public bodies. It is respectfully submitted that these complaints are misconceived.”

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

Ms Keane submitted that the complaints do not particularise how any individual discriminated against or harassed the Complainants. They were all the same complaint action or inaction. This was not a situation where there might be a remark made by one individual about another. Action was taken or not taken by the body. The individuals cannot all have discriminated against an individual noting that the same wording is used across the complaint documents. It appears that employees and former employees were names which were picked based on their rank or position. She gave as an example CO’H whom she had spoken to and who said she had no idea what it was about, that she had never worked in Housing. She was assigned to another section at the time of the events and her diary showed that she was on annual leave at that time.

The same can be said in relation to all of the individuals on the substance of the complaints, i.e., the placing of concrete boulders or blocks at a particular location, that this was action by and on behalf of a public body. That body, Clare County Council, is a creature of statute and is not a nebulous body. It is accountable in its own right under the Local Government Act and can be sued or sue others.

ML is not the name of an employee, and this point has been made previously. There is another person whose first name is M and they do not know what was intended there. Each employee was acting in the course of their duties, not on their own time or their own interests. Their actions are governed by the Housing Acts under which they carry out certain functions and duties. It is entirely inappropriate to name individuals; there is no strong or valid argument which would allow the WRC to continue the complaints against the named officers. In the event that there was an award of compensation, or an order issued by the Adjudication Officer, Ms Rosen has previously said that the compensation could be paid by the Council which is at odds with her position that the individuals are personally liable for their own actions. Were an order to be issued it would be affecting people who had retired or who no longer work in Housing which would be of no benefit to anyone (in terms of correcting behaviour, actions or other matters).

Referring to section 42, that all of the individuals were acting in the course of their duties allows section 42 to come in and also allows dual liability, Ms Keane referred to numerous decisions by the WRC including the latest batch of many decisions issued by an Adjudication Officer in August 2023 which concerned Clare County Council and found against the complainant on the matter of vicarious liability.

The historical judicial review was not relevant to the proceedings, that occurred prior to the initiation of these complaints.

Council was asked what they were asking the WRC to do.

Ms Keane explained that the exact same complaint form had been issued in which the Council and six named employees were referenced. There was no differentiation between the complaints, they were identical. The complaints do not set out any specific allegations. The Council is not a nebulous body, it is a statutory body. The individual Respondents were named because they hold positions. There were no specifics of inappropriate conduct by the individuals who acted on behalf of the County Council. It is inappropriate to pursue the individuals insofar as they acted or omitted to act on behalf of the County Council. The Council proposed to accept liability for any discrimination by their employees. Turning to complaint ADJ-1010, this was one complaint with six complaints against individuals and an identical complaint against the County Council. There is nothing that differentiates between the Council and the named individuals. It was accepted that there are two Complainants with two decisions to be made in respect of their complaints, Mr C. O’Donoghue and Mrs M. O’Donoghue. Asked for the legal basis on which they sought to remove the named Respondents as distinct from the County Council, the representative referred to section 22 of the Act which allowed for complaints to be dismissed at any stage on the basis that they were frivolous, vexatious or misconceived. It was submitted that the term that applied in this case was misconceived. These were multiple complaints, but they arose from one set of circumstances. The Respondents were named solely because they held particular positions in the Council at the time. It may be that the Council would call some of those named as witnesses. This would depend on the detail of the complaint as not all were involved in the events or the decision making which gave rise to the complaints.

The following is an extract from a submission on behalf of the Council on the 22nd of November 2024:

“The Council repeats its previous submissions on vicarious liability as set out in all previous correspondence and submissions to the WRC, including, but not limited to those dated 8 January 2016, 2 December 2016, 11 April 2017, 8 June 2022, 15 March 2023, as well as the submissions dated 22 July 2022 in related complaints along with all oral submissions made at various case management and preliminary hearings to date.

Without prejudice to the above it is noted that section 42(1) of the Act provides “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.”

The purpose of section 42 of the Equal Status Act 2000 is to allow responsibility for prohibited conduct to be attributed to an employer, where that prohibited conduct is carried out by an employee in the context of his or her employment. It is submitted that if a person is found to have discriminated in the course of his/her employment (for example, implementing a policy on behalf of the employer which may be found to be discriminatory) then it is that person’s employer who may be vicariously liable in accordance with section 42(1) of the Equal Status Acts.

The Respondent submits that the reference to the word “also”, as previously highlighted by the Complainants’ representative previously can only apply to attribute dual liability where the person whose conduct is complained of is “also” acting in their personal capacity as opposed to as agent for or on behalf of his/her employer.

In this case any alleged acts or omissions of the named Respondents (the liability for which is denied), were acts or omissions that were carried out in the context of their employment for the corporate/statutory body, Clare County Council. There is no suggestion that any of the named Respondents were acting in their personal capacities.

Therefore, the principle of vicarious liability applies to attach liability to the employer in the event that the complaints are upheld and not to attach some form of dual liability which runs totally contrary to the established principle of vicarious liability.”

3. Time Limits – Respondent’s Position

“Adjudication file references ADJ-0003268, 3266 and 3274 were received by the Workplace Relations Commission on 12 May 2016. Although the complaint forms note the most recent date of discrimination as 12th May 2016, the complaint forms set out a history under “Complaint specific details or statement” as commencing “In the midwinter of 2014, having, on Christmas Eve, …”.

It seems that the substance of the complaints against Clare County Council Respondents relates to information provided by the Council in relation to the refusal of accommodation in the context of an application to the community welfare officer for a portable toilet. No specific dates are provided other than the reference in the details of the complaint to “In the midwinter of 2014”. It is submitted that the discrimination/prohibited conduct complained of against Clare County Council Respondents must have occurred prior to the refusal by the Department of Social Protection of the relief sought. This date should have been available to the Complainants at the time of making the complaints, but it is not specified on the complaint forms.

The complaint forms note that notifications were submitted to Clare County Council Respondents in December 2015. Therefore, it appears that, at this point, the Complainants felt that they had a cause for complaint (which is denied), however, the Complainants failed to lodge their complaints until May 2016. Section 21(2)(a) of the Equal Status Act 2000, as amended, provides that notification to the Respondent of the nature of the allegations and the Complainants’ intention to seek redress shall be made “within 2 months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence.”

In this instance, while it is impossible to discern definitively, it appears that the allegations of prohibited conduct (insofar as the same can be discerned) arise on an unspecified date in the midwinter of 2014. Therefore, notifications should have been submitted by mid-February 2015. Clearly, notifications given to the Respondents in December 2015 are out of date. Even if it is suggested that there is more than one incident of prohibited conduct (which is denied and which is not at all apparent from the notifications/complaints), the notifications of 12th of December 2015 could only have dealt with events occurring on or at 12th of October 2015 and there is no suggestion from the complaints that there was any incident or prohibited conduct on or after this date. Section 21(6)(a) of the Equal Status Act 2000 as Amended provides that a claim for a redress in respect of prohibited conduct may not be referred after the end of six months from the date of the occurrence of the prohibited conduct to which the case relates or as the case may be the date of its most recent occurrence. Using the time period specified in the complaint forms referred to above, these complaints should have been referred by mid-June 2015. In fact, they were not referred to the WRC until the 12th of May 2016 almost a year later. These complaints are clearly out of time and should never have been accepted by the WRC in the first instance. It is our respectful submission the WRC cannot proceed to adjudicate these complaints in circumstances where they are clearly out of time. No application for an extension of time has been made.

Insofar as there may be a suggestion that an extension of time period might be now requested, section 21(6)(a) clearly provides that “a claim for address [redress] in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence”.

There is no evidence before the WRC in these complaints forms of any prohibited conduct in the six month period prior to the 12th of May 2016 and, therefore, the WRC was not entitled to accept the referrals which are prohibited under sub-section 6. Insofar as sub-section (6)(b) provides for a possible direction “for reasonable cause” to direct the extension of the 6 month period to a period of 12 months it is noted that some 7 years after the complaints have been submitted no evidence as would give rise to reasonable cause has been put before the WRC or at least exchanged with Clare County Council Respondents and in any event there is no evidence in the complaint forms that the prohibited conduct alleged (insofar as the same can be discerned) occurred in the 6 month or 12 month period prior to 12th of May 2016.

Accordingly, it is submitted that the WRC should dismiss these complaints in accordance with section 21 in circumstances where they are clearly misconceived having been made out of time in accordance with the legislative provisions.

The Respondents are being put to considerable time and expense in preparing for the substantive defence of these complaints despite the fact that the complaints were not properly put before the WRC. This is prejudicial to the Respondents.”

The following is an extract from the submission of 24th February 2025 on behalf of Clare County Council:

“During the course of the preliminary hearing in January 2025, the Complainants’ representative, Ms Rosen relied on a letter from Mr T of the DSP to the Second Named Complainant, Mary O’Donoghue, dated 14th October 2015, being the refusal of the application for a portable toilet. On that basis the Respondent submitted that the complaints were out of time as the refusal, the subject matter of the complaint (as far as the Respondent is concerned), fell outside the “reckonable period” of six months. While the complaint form noted the most recent date of discrimination as 12 May 2016, the Complainants’ representative indicated that that was the only date she could select and that date corresponds with the date of submission of the complaint.”

The Respondent also submitted a further judgment of another member of the Supreme Court in the same case, namely that of Mr Justice John MacMenamin also delivered on 13th July 2016. The first matter to note in relation to these judgments is that the underlying complaints to the Equality Tribunal were made under the Employment Equality Acts 1998-2004 and not under the Equal Status Act 2000, as is the case here, and so the legislative provisions differ. Secondly, in both judgments the application for an appeal was dismissed, in circumstances where the Equality Officer had not yet made a decision in relation to the matters at issue. The main matter at issue was whether, in circumstances where the Complainant had specified two specific incident dates in his initial complaint form, the Equality Officer could consider additional matters referred to as “historical evidence” in relation to dates beyond the two specified incidents, which “historical evidence” was submitted almost a year after the first complaint forms.

“In relation to the question as to whether, irrespective of the nature of the historical evidence and irrespective of whether or not it might form a “continuum”, such matters could in their own right be the subject of a lawful investigation by the Equality Officer for discriminatory purposes, Mr Justice McKechnie stated that no judicial intervention should take place before a decision is made on the VEC’s application. Accordingly, there is no decision on the facts of the dates and the inclusion of the specific historical evidence in that case. The effect of the decision was that the Equality Officer’s investigation was to be resumed, in circumstances where she had not made a final determination to the complaints.

Insofar as there may have been obiter comments with regard to the Equality Tribunal being allowed to consider continuous acts of discrimination, such comment was in circumstances where the appellant (respondent to the complaint) had sufficient notice of the complaint against them. It was a matter left to the Equality Officer to decide on the probative value of any additional evidence, noting that natural and constitutional justice would have to be applied in any decision-making process. Accordingly, the Respondent is not satisfied that either of the judgments in the Louth VEC Supreme Court case, give any assistance to the issue that was raised at the preliminary hearing. The issue that was raised at the preliminary hearing was, in the Respondent’s respectful submission, effectively, what is the nature of the complaint, such as have regard to the terms of time limit reference points?

The complaint form submitted on behalf of both Complainants and in respect of all three named employees of Clare County Council sets out under the heading “Complaint specific details or statement”, the Second Named Complainant’s medical and accommodation background and reference issues having “commenced in the mid-winter of 2014”. Having set out the background, the complaint form appears to move on to references to the Complainants having no toilet facilities and goes on to describe the Community Welfare Office (of the DSP) having been contacted to ask for the arranging of a portable toilet.

The complaint form immediately goes into the detail of the Complainants’ representative having spoken with the named employee of the DSP and gives details of that engagement and from that point onwards in the complaint form, it deals exclusively with the manner of how this request for a portable toilet was dealt with (by the CWO/DSP).

Although there is reference to the Homelessness Clinic at the time being under the auspices of both the DSP and Clare County Council, the Adjudication Officer herein has heard oral testimony from a senior executive of the Housing Department of Clare County Council to the effect that Clare County Council did not have a role to play in the provision of portable toilets at the time in question (2015) and Clare County Council at that time merely provided a base/desk space for the CWO within Clare County Council offices.

The complaint form concludes with reference to the refusal of the CWO regarding the application for a portable toilet, noting that one of the reasons for refusal referenced was “Refused offer of suitable accommodation with Clare County Council”. A sense of unfairness is expressed in relation to the decision of the Community Welfare Officer and at that point in the complaint form, the Complainants indicate that they went from there to the offices of Clare County Council to ask “How could this have happened?”, which the Respondent reads to imply a questioning of the Council’s alleged role (as understood by the Complainants) in the CWO’s reason for the decision.

It has always been understood by the Respondent, since the complaint forms were received by them on 2 June 2016, through to the initial scheduling of this case in 2017 (which was adjourned), and at the preliminary case management hearing which took place in May 2023, that the complaints, the subject matter of discrimination alleged herein related to the refusal of the CWO to grant a portable toilet, as requested, in 2015 as per the complaint form. There is nothing in the complaint form to suggest otherwise.

At the recent preliminary hearing Complainants’ representative argued that, in fact, the notification form which preceded the complaint form sets a broader time period and that is what should be considered. However, when one looks at the date and time provided in the notification form ES1 it is stated to be “autumn and winter of 2015 – ongoing. Refusal to help written October 14 but not posted”. Section 4 of the notification form refers to “this decision”, which again is believed to be the decision to refuse to grant the application for a portable toilet. The notification goes on to reference the assertion that the family “refused an offer of suitable accommodation” and again, this was linked in the Respondent’s respectful submission to the decision of the CWO.

It is noted that the Complainants’ representative has submitted voluminous additional documentation numbering several hundreds of pages and many folders of documents throughout this process. The Respondent cannot be expected to trawl through this documentation, much of which was in fact irrelevant, to ascertain what the gravamen of the complaint is. The gravamen of the complaint should be capable of being ascertained from the complaint form. The gravamen of the complaint in the complaint form is the decision of the CWO to refuse the application for a portable toilet.

Referring to the decision of Justice McKechnie at paragraph 13 of his judgment where he states:

“If a complaint is out of time and thus fails to satisfy a condition precedent and remains so found after inquiry then it cannot be said to have been “lawfully referred” to the Tribunal as such that it may properly be investigated for redress purposes”.

Accordingly the Respondent’s position is that if the complaint relates to a decision of the CWO, which is what the notification form and preliminary complaint form refer to, that complaint was out of time and therefore, not having been lawfully referred to the WRC within time, the Adjudication Officer cannot refer on any additional or extraneous submission or documentation submitted throughout the nine and a half years since the complaint was made to broaden the scope of the complaint.”

Note: The Respondent refers in the above to the hearing on the 31st of January 2025 as being a preliminary hearing. No such notice was issued to the parties. The hearing on the 31st of January 2025 was part of the process of inquiring into the complaints and dealt with among other submissions and information provided, the issues of the application of section 5 and/or section 6 to the complaints together with the matter of time limits following up on the written submissions received from the parties in 2023 as part of the overall process of inquiry.

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

At the hearing on the 31st of January 2025 the Respondent referred to the application of section 5 and section 6 of the Act submitting that they were not the provider of the service in any of the matters complained of. In respect of the portable toilet, if it was accepted as within the time limit, this was a service they were not providing and not required to provide as a housing authority. The Complainants were approved applicants on the housing list for the Council and the Act provided for the provision of services and goods associated with that accommodation which is different and separate to service provision within the Act. There was no service being provided to the site or sites in question and there was no obligation to provide a portable toilet as a service to the Complainants.

In their submission of 24th February 2025, the Respondent reiterated their position regarding the provision or otherwise of a service of providing portable toilets when they stated:

“Although there is reference to the Homelessness Clinic at the time being under the auspices of both the DSP and Clare County Council, the Adjudication Officer herein has heard oral testimony from a Senior Executive Officer in the Housing Department of Clare County Council to the effect that Clare County Council did not have a role to play in the provision of portable toilets at the time in question (2015) and Clare County Council at that time merely provided a base/desk for the CWO within Clare County Council offices.”

The complaints regarding a failure of duty of care is one of negligence which is not a claim to be put before the WRC in the context of the Equal Status Act.

Complaint of discrimination – disability – failure to provide reasonable accommodation:

Following consideration, the Respondent accepted that the Complainants had/have a disability for the purposes of the definition within the legislation. However, the complaint of a failure to provide a reasonable accommodation is misconstrued as it applies to provide a person under a protected ground access to the provision of a service. However, this is not the provision of a service, the matter of providing a portable toilet to an unauthorised land was not a service provided by the Council and therefore no accommodation was required to provide access to a service.

The Complainants were not able to point to any obligation on the part of the Council to provide a portable toilet or to indicate where the Council had provided access to a portable toilet to any other person or group who was living on an unauthorised site.

Complaint of harassment:

Regarding harassment, the Respondent absolutely rejects any complaint of harassment.

The evidence of Mr MacCormaic:

The witness advised that he is a Senior Executive Officer in the Housing Section of Clare County Council. Asked what the Council’s reaction was to unauthorised developments he replied that the practice was to encourage those on unauthorised sites to move on, to encourage them to go onto the housing list. Very few of the members of the family in question are on the housing list and those that are not there very long. He referred to sites being closed down and in 2020 they encouraged all of those on unauthorised sites to move and to move into the housing list. In 2015 the Council was not responsible for the provision of portable toilets. This changed later in 2016/17. Prior to that the Community Welfare Officer used a base in the Council’s office, and they provided finance to applicants. In response to clarification he replied that the Council was generally not providing toilet facilities. In response to Ms Rosen, he described the CWO as the decision maker regarding the provision of toilet facilities. In response to the Chair, the witness replied that he was not aware of any provision of toilet facilities to unauthorised sites at any time by the Council.

Following a complete review of all written and oral submissions the findings and conclusions and related decisions hereunder address three distinct issues.

1.      The correct respondent for the purposes of the Equal Status Act incorporating section 42 and 44 of the Act.

2.      Time limits – application of s.21; and

3.      The respondent for the purposes of this complaint (incorporates s.5 and s.6 of the ESA).

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 – Application of s.21

The focus point of the complaint as submitted to the WRC reflecting the contents of the complaint section of the ES1 Form are concerned with the application to the CWO for the provision of a portable toilet, the rejection of that application and the reasoning for that rejection where there is reference to Clare County Council.

As the decision document issued by the named CWO (Department of Social Protection) is dated 14 October 2015 that is the earliest date for the purpose of calculating the varied requirements and timelines contained in s.21 of the ESA. If that date is accepted as the date on which the Complainant was informed of the decision of the CWO, then the general rules concerning timelines (allowing that there are exceptions) would be as follows:

ES1 (or equivalent) 13.12.2015.

Date of postage of notice 12.12.2015.

Meaning that the adherence to the terms of s.21(2) by the Complainant is not in question.

Working off the same date for the decision of the CWO (14.10.2015) for the purposes of s.21(6)(a) [six months from the date of the occurrence of the prohibited conduct] the end date for a submission for a complaint to the WRC would be 13.04.2016. As the actual date of receipt of the complaint by the WRC was 12.05.2016 a question arises as to whether the Complainant complied with s.21(6)(a) or in the alternative whether an extension of the initial time limit would be reasonable by operation of s.21(6)(b).

The Complainant has consistently maintained in all documentation and in oral submission to the hearing on 31.01.2025 that the decision of the CWO was not received by post. That in fact the Complainants’ representative and the Complainant only became aware of the decision of the CWO (and the reasoning for that decision) when they inquired about the decision on encountering Mr T [CWO] at the Council offices on an unspecified date but occurring some weeks after the date of the decision. No date is provided for that encounter with the CWO. In the absence of any evidence to the contrary from the Respondent directly or through Mr T there is no basis for concluding other than there was a delay between the time the decision was made and the encounter when the Complainant was notified of that decision for the first time. Recognising that the account of the delay can be regarded as a matter of convenience to the Complainant side, I consider on the balance of probabilities that Ms Rosen’s testimony is credible and should be accepted. Given the ES1 Form was submitted on time, I consider it reasonable to allow a period of four weeks to the 13th of November 2015 as a date a few weeks later on which the Complainant was notified of the decision of the CWO. The term a few weeks later or some weeks later is that used by Ms Rosen. It is also likely that some weeks elapsed between receipt of the notice and the preparation and issuing of the ES1 Form. On this basis the referral of the complaint to the WRC on 12 May 2016 falls within the initial six month period provided for such a referral.

It should be noted that even if I were not minded to accept the testimony of Ms Rosen and accepted instead that the decision of the CWO was received and dated on the 14th of October 2015, the absence of any reply to the ES1 issued in December of that year is a point which I hold against the Respondent in this instance. Given the widespread and acknowledged practice of not engaging with ES1 Forms issued by the Ms Rosen on behalf of Travellers it is clear that this was most likely a policy adopted by the Council. As a consequence of submitting an ES1 Form and adhering to the requirements of the legislation in that regard Ms Rosen and therefore the Complainants lost three months of the time allowance which is statutorily imposed on them by s.21 – in the total six-month period allowed. To allow the Council the leeway of the six month time limit in circumstances where they had consciously not engaged with the process would seem to be quite unreasonable and unfair towards the Complainant. Indeed s26(c) allows that I draw an inference from the failure of the Respondent to reply to a notice issued under s21. That is to say up to two months in which to submit the ES1 and an obligation to await a further month before submitting a complaint to the WRC An extension of time by operation of s.21(6)(b) is justified in these circumstances.

In summary, the complaints are allowed by operation of s.21(2) and s.21(6)(a) and/or (b) of the ESA. The objections of the Respondent are dismissed.

3.The Correct Respondent – The Application of s.5 and/or s.6 in this case

The summary of the Complainants  case set out earlier contains the full extract of the complaint specific details or statement. Any reasonable reading of the statement of complaint would conclude that the complaint is concerned with the decision of the CWO to reject the application for funding for a portable toilet made to them some time previously commencing well before the Complainants moved on to the Council land in May 2015. The only reference to the history of various what might be called disputes between the Complainants and the Council is a reference to “this is just one of a long line of incidents of inappropriate behaviours” towards the Complainants. The “this” refers in this instance to the alleged role played by an unnamed employee of the Council in the decision of the CWO, a reference to offers of reasonable accommodation by the Council having been refused. There is correspondence on the files with the Council regarding sanitary facilities both before and after the decision of the CWO, in particular after the Complainants moved to the unauthorised site in May 2015. There is a letter from one of the named Council employees offering to meet to discuss that correspondence but no record of what occurred at that meeting. None of that correspondence is concerned with the CWO decision or the Council’s role in that decision.

The CWO decision was exercised as his function under the Social Welfare Acts and what the Complainant is attempting in this complaint as it is now presented is to open a much wider issue of the provision or non-provision of sanitary facilities to Travellers, specifically in this instance, the Complainants. What the Complainant’s representative is endeavouring to do in her extensive submissions extending back over decades is to broaden out the scope of the complaint to widen consideration of the practices and policies of the Council and their treatment of the Complainants so that instead of the focus being on the decision of the CWO it can become a focus on the actions and inactions of the Council towards the Complainants. The decision of the CWO is in effect being used as a tool to highlight the issue of the fact as agreed that the Council did not at any point provide sanitary services to the Complainant on any unauthorised sites, nor did they contemplate doing so.

The Respondent representative made legitimate representations at the hearing on the 31st of January 2025 that the Respondent was notified of and is defending a complaint related to the decision of the CWO, who is not their employee, based on the content of the form and they are not the provider of the service which was within the remit of the CWO. The Complainants representative then pointed to the ES1 Form which contains the following question under section 6 of that form request for information:

“(2) What efforts were then made to address the clearly unacceptable, dangerous and humiliating lack of a toilet for this couple, both in their sixties, both disabled, both just recently released from hospital – these circumstances being known by all County Council personnel involved?”

The Complainants representative submitted that the two separate forms neither of which are statutory forms must be read together in order to provide the basis of the complaint to be decided in the case of the Council and therefore that the Respondent was on notice of a wider issue regarding the failure to provide sanitary services to the Complainants. The difficulty I have in that proposition is that if anything it emphasises two completely different respondents to two different scenarios and the efforts of the Complainants to join the two together using the one complaint to the WRC. These are two separate issues with two separate respondents. The service provider for the purposes of the Equal Status Act, the one to whom the application for support was made and the one who made the decision dated 14th October 2015 was the Department of Social Protection through the Community Welfare Officer in question. The Council was not the service provider and was not providing an accommodation to the Complainant at that time. Even if at its height the Council provided some information to the CWO which influenced his decision it was the Department of Social Protection whose official made the actual decision on the basis that they were the service provider apparently through the supplementary welfare scheme on the basis that that is referred to in the decision. The form signed by the CWO refers to s201 of the Social Welfare Act – which provides for a decision to be made for a once-off payment in an emergency, in this case funding for a portable toilet. The exercise of authority given by the statute is the service for the purposes of this complaint and it is not a service provided by the Respondent Clare County Council.

This complaint, submitted to the WRC on 12 May 2016, is served on an incorrect respondent one who was not the decision maker and not the service provider under section 5 or accommodation under section 6. In conclusion, as a complaint against the Respondent Clare County Council, this complaint is not well founded by reference to section 5 or section 6 of the ESA. This finding and the Decision below comprehends all elements  of the protected grounds as submitted.

CA-00004419 The complaints referred by Mary O’Donoghue against Clare County Council(referring also to LC)are not well founded.

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