Complainant

Respondent

Parties

Karen McCreanor

Louth County Council

Representatives

Self- Represented

Laurence Steen of James McCourt & Son Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041463-001

08/12/2020

The issue in contention is a complaint under the Equal Status Act,2000 against Louth County Council alleging Discrimination on the grounds of Gender, Civil Status, Family Status, Religion, Age, Disability, Race, Victimisation and HAP status.

Procedures adopted by Adjudication Officer.

It was noted with concern that a Local Authority new House, specially adapted for disabled tenancy, was in effect, lying vacant, for almost two years while these WRC proceedings were in train.

At the opening of the Hearing on the 25th March 2025, by special arrangement to facilitate the Complainant, in a Town in, Co. Louth, the Adjudication Officer made it clear that he could, legally, only deal with the Equal Status Act,2000 issues raised in the Complaint.

Other matters regarding allocation of Local Authority tenancies as laid down by Statute or Acts of the Oireachtas, unless by the Act.

Following the 25th March 2025 hearing, the Adjudication Officer adjourned the case to allow for local discussions between the Parties.  A detailed letter was issued, to this effect, to the Parties on the 8th May 2025.

Regrettably the local discussions failed to take place and a formal Adjudication decision is now required.

 Time Limits and the “Cognisable” period

The Complaint was first received at the WRC on the 8th December 2020.

Accordingly, the “Cognisable” period under Section 41 of the Workplace Relations Act, 2015 would be the six months prior to the 8th December – back effectively to the 8th June 2020. The Complainant argued that there had been a pattern, a continuum, of Discrimination going back to the early 2000s and this had continued to the date of the Hearing.

Th Adjudication Officer reserved his position on this time limits point - effectively to allow the Hearing to begin (after a frustrating delay of some two years) and consider evidence that might be presented.

1:        The Complainant was self-represented but submitted voluminous copy correspondence between herself and Louth Co Council. This correspondence covered a lengthy period including many years before the ES Complaint was lodged on the 8th December 2020. The Complainant gave a lengthy Oral testimony.

The essence of the ES Complaint was that the County Council had discriminated against the Complainant in its housing Policy specifically as it applied to Disabled persons.

Taking the elements alleged as follows.

1:1 Gender

The Council treated her in a discriminatory fashion as to her gender -female.

1:2 Civil Status

The Council had discriminated against her as to her Civil Status. Other persons of different Civil Status were treated more favourably.

1:3   Family Status

The Council had discriminated against her as to her Civil Status. Other persons of different Civil Status were treated more favourably.

1:4   Sexual Orientation

The Complainant was treated less favourably, by the Council, than other persons of a different Sexual Orientation.

1:5 Religion

The Complainant was treated less favourably, by the Council, than other persons of a different Religious Orientation.

1:6 Age

The Complainant was treated less favourably, by the Council, than other persons of a different Age category.

1:7 Disability

The Complainant was, it was agreed, Disabled. Her Disability had not been properly allowed for in the Council’s Housing policy. Extensive evidence was presented covering multiple issues including the Councils’ Occupational Therapy/Disability Assessment staff qualifications. The Complainant tendered a Report from her own privately Commissioned Occupational therapist to sustain her allegations.

1:8 Race

The Complaint was treated less favourably by the Council than other persons of a different Racial category.

1:9   Victimisation

The Complainant alleged that she had been subject to a lengthy campaign of victimisation by the Council Officers and Staff. Her legitimate requests for physical changes & minor modifications to her allocated house had been ignored and effectively “snubbed”.

1:10    Housing Assistance – HAP

The Complainant was treated less favourably by the Council than other persons of a different HAP-Housing Assistance Payment status.

2:  Other General Matters

Numerous other issues, going back over a considerable number of years, were raised in the submission and by the Oral testimony from the Complainant. The Respondent queried the time limits being relied upon by the Complainant specifically the rule under Section 21(6) regarding a cognisable period of six months - effectively back to the 8th June 2020.

The Complaint was first received in the WRC on the 8th December 2020.

The Respondent Council was represented by Mr Steen, Solicitor, supported by a number of Local Authority Managers. A detailed Oral testimony was provided supported by extensive copy documentation.

2:1    Complaints of Discrimination

Taking the elements alleged as follows.

2:1:1 Gender

The Respondent resolutely argued that no Discrimination on Gender Grounds as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:1:2:  Civil Status

The Respondent resolutely argued that no Discrimination on Civil Status Grounds as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:1:3   Family Status

The Respondent resolutely argued that no Discrimination on Family Status Grounds as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:1:4   Sexual Orientation

The Respondent resolutely argued that no Discrimination on Sexual Orientation Grounds as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:1:5  Religion

The Respondent resolutely argued that no Discrimination on Religious Grounds as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:1:6   Age

The Respondent resolutely argued that no Discrimination on Age Grounds as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:1:7 Disability

Accepting and notwithstanding that the Cognisable Period for the claim was from the 8th June 2020 to 8th December 2020 the Respondent argued that a special Disability configured New House had been allocate to the Complainant in March of 2023. This clearly addressed any possible complaints of Disability Discrimination against the Complainant. Very minor issues of an internal building adaptation nature remained in dispute. This was not Discrimination, as defined by the Act, of any nature.

The allocation of the House to the Complainant had been in keeping with all Statutory Government/ Dept of the Environment /Local Government regulations. Copies were provided to the Adjudicator. There was absolutely no question of Discrimination.

2:1:8 Race

The Respondent resolutely argued that no Discrimination on race Grounds as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:1:9   Victimisation

The Respondent Officers argued strongly that they had treated the Complainant with the utmost respect and there was no question of any victimisation as defined in the Act. No Prima facie case had been made.    

2:1:10    Housing Assistance – HAP

The Respondent resolutely argued that no Discrimination, on the HAP Grounds, as defined in the Equal Status Act,2000 had taken place. There was absolutely no evidential proof of any Discrimination by the Council in this case. No Prima facie case had been made.

2:2        Other General Matters

In regard to the varied and extensive materials raised on this context, some dating as far back as year 1999, the Respondent queried their veracity and basic legal admissibility to the Equal Status case before the Hearing.

3:1       Legal Position

Opening comments from Adjudicator

The multi-faceted situation in this complaint between Louth Co Council and the Complainant is of very long standing, dating back to the early 2000s. It ranges across a large number of areas that have become quite contentious between the Parties. The very voluminous body of correspondence between the Parties, presented to the Hearing, was testimony to this fact.

None the less and as stated previously the Complaint before Adjudication - CA 00041463-001 is under the Equal Status Act,2000. It can only be considered under the provisions and procedures of this Act.

In essence, (distilled by the Adjudication Officer, from the written materials and Oral Testimony of the Parties), the complaint is one of Discrimination & Victimisation in relation to the Disabled Housing Policy of the Respondent County Council.

3:2         Legal Position / Definitions

Section 3 (1) of the Act refers to Discrimination generally and Section 4 refers to Discrimination on grounds of Disability.

Discrimination (general).

3. (1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation [on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Discrimination on ground of disability.

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

Section 38A -the Burden of proof is also most relevant.

38A.—(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.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F87[Director of the Workplace Relations Commission] under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

Useful commentary on this and related Section 85A of the Employment Act,1998 (equally applicable to Section 38A of the Equal Status Act,2000) has been provided by the Labour Court in Southern Health Board v Mitchell, [2001] ELR201 a decision which remains the leading precedent Authority on the shifting of the burden of proof. The entire issue is discussed at length by Bolger, Bruton and Kimber in in Employment Equality Law 1st Editon, 2012 Round Hall Sections 2- 214 to 2-211. It is acknowledged that a 2nd Edition was published in 2022 which reiterates the 1st edition.

With great deference to the learned Authors the relevant sections from the 2012 edition are quoted below. It is accepted that the references are to the Employment Equality Act,1998 but are equally applicable to the Equal Status Act,2000.

2-214

Section 85A of the Employment Equality Acts imports the burden of proof requirement to be established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant

“from which it may be presumed that there has been discrimination in relation to him or her”.

 It stems from the former Burden of Proof Directive (which effectively codified the case law of the Court of Justice) which is now consolidated into the new Equality Directives.

2-215

It is well recognised in the case law that direct evidence of discrimination is infrequent and therefore the rules on burden of proof have to take account of this in providing for effective judicial remedies for aggrieved employees. The issue of the evidential requirements for both Complainants and Respondents has been carefully considered and promulgated in the case law of the Tribunal and the Labour Court. The starting point is the decision of the Labour Court in Southern Health Board v Mitchell, [2001] ELR201,  a decision which predates the new Directives and s.85A but still remains the leading decision on the shifting of the burden of proof. The court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

2-216

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her.

2-217

In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy , EDA 0821, as follows:

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

2-218

The argument that mere membership of a protected class and specific treatment was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”  Valpeters v Melbury Developments Ltd [2010] ELR 64

2-219

Therefore, the evidence adduced by the Complainant must be of a sufficient significance to raise a presumption of discrimination which then arises for rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment. The mere difference in for example, gender, and a difference in treatment, for example where a comparator was appointed to a position and the Complainant was not, cannot in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination. Rescon Ltd v Scanlon EDA085

2-220

The quality of evidence necessary to rebut a presumption of discrimination was considered by the Labour Court in Portroe Stevedores v Nevins. [2005] ELR 282 The Labour Court, following the decision of the English Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd, [2003] IRLR 332 held that, since the facts necessary to prove an explanation would usually be in the possession of the Respondent, it required “cogent evidence” to discharge that burden. Mere denials of discriminatory motive, in the absence of independent corroboration, had to be approached with caution since discrimination was “usually covert and often rooted in the subconscious of the discriminator”.

2-221

The decision reflects the reality that it is easier for an employer to prove the factor which influenced its treatment of a Complainant which they allege constitutes discrimination. Generally, the Complainant is not in a position to have this information and therefore as the reasons for the explanation are in the possession of the Respondent, “cogent” evidence is required to discharge the burden of proof. An employer will inevitably face some difficulties in discharging their onus of proof if it shifts to them, given that it has been held that unless they can show that the

“discriminatory ground was anything other than a trivial influence on the impugned decision”,

the claim will succeed. Cork City Council v McCarthy EDA0821  This requires the Respondent to demonstrate that their actions were in no sense whatsoever influenced by one of the protected classes within the Employment Equality Acts “

Legal precedents, notwithstanding, all cases rests on their own evidential merits and particular individual circumstances.

It is necessary now to consider these as applicable to this case.

3:3    Consideration of the Evidence presented.

Key evidential questions that arise in this context are

1.       Is the Complainant covered by the Discrimination provisions of Section 3, 4, 5 & 6 of the Act - in other words, is she eligible to being a claim?

2.       Was she discriminated against?

3.       Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

4.       Depending on these answers the Provisions of Section 38 (a) The Burden of Proof then apply. In plain English the onus is, if questions 1 to 3 have been considered favourably to the Complainant, on the Respondent to prove that no discrimination occurred.

3:3:1      Question 1 – eligibility to bring a claim

The Complainant is obviously disabled and, as such, qualified for a Disabled status dwelling.

On this basis she can bring a Discrimination claim.

3:3:2     Question Two – Evidence of Discrimination.

Reviewing the extensive Oral Testimony and the voluminous body of documentation presented it was very difficult to see any specific evidence that the Complainant had been discriminated against on the grounds of Gender, Civil Status, Family Status, Religion, Age, Race, Victimisation and HAP status either during the Cognisable Period (8th June to 8th December 2020)  or post the WRC referral date ,the 8th December 2020.

Noting again the Cognisable Period observation made above, in relation to allegations of recent discrimination on Disability Grounds, the Respondent pointed out that the Complainant had been allocated a newly constructed Disabled Dwelling in 2023. This clearly was “Reasonable Accommodation” to any neutral observer. Any argument made by the Complainant regarding the actual “fit out” of the new house was not in any way “Discriminatory” under the Act. At the Hearing it was clear that these issues were very minor and certainly did not merit the Complainant refusing to occupy the house.

Furthermore, the Respondent County Council, submitted extensive Statutory Regulations governing Local Authority Housing allocations and in particular the housing of Disabled Persons. While it is not the function of an Adjudication Officer to extensively review Regulations ,in the final analysis, deriving from Legislation passed by the Houses of the Oireachtas, a careful reading by the Adjudication Officer of Statutory Regulations & Policy Documents, submitted in evidence, did not raise obvious issues of Discriminatory concern.

Louth County Council is clearly a “Housing Authority” governed by Statute. Their actions in relation to the Complainant, in providing a specially adapted disabled use House, can be validly argued (ref Section 6 of the ES Act) as outside the jurisdiction of the Equal Status Act,2000.  This point was not raised in proceedings but is relevant.

In relation to Disclosure of Evidence to support the Discrimination complaint, the Complainant argued that her Housing File, no 1938, dating back to the early 2000s should have been made available to the Adjudication Hearing. Likewise extensive statistics in relation to allocation of houses to multiple categories such as Single, Married, with or without dependants and other such subcategories should, as contested by the Complainant, have been produced by the Respondents to allow the Discrimination complaint be given a statistical foundation. References were also made in passing to European Directives and the National Human Rights Strategy for Disabled People 2025 -2030.

On careful reflection the Adjudication view was that requiring the Respondent to undertake a major statistical exercise, covering some 20 or more years, was not realistic and would, even if completed, not add any great value to the Complainant’s complaint.

It was noted in this context that Section 6 (6) of the Equal Status Act,2000 had some relevance.

(6) Nothing in subsection (1) shall be construed as prohibiting—

(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or

(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992,

from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, civil status, disability, age or membership of the Traveller community.

(7) (a) Nothing in subsection (1) shall be construed as prohibiting, in relation to housing accommodation provided by or on behalf of the Minister, different treatment to persons on the basis of nationality, gender, family size, family status, F21[civil status], disability, age or membership of the Traveller community.

 (b) Nothing in paragraph (a) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any Act adopted by an institution of those Communities.

The Adjudication view on this area had to be that the Complainant had brought a personal Discrimination complaint, subject to the regulations on the Equal Status Act 2000 and in particular to the time limits specified in the Workplace Relations Act 2015

 Section 21 (6) of the Equal Status Act ,2000 refers.

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for 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.

 (b) On application by a Complainant the Director of the Workplace Relations Commission[or, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the Complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The Complaint was first received in the WRC on the 8th December 2020 - technically giving a cognisable period back to the 8th June 2020.

The Complainant argued that there was a Continuum of Discrimination back to the late 1999/2000 period.

Other than allegations regarding staff employed by the Council and the qualifications of same there were no realistic arguments put forward to sustain this position.

Quoting again from Valpeters v Melbury Developments Ltd [2010] ELR 64

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions to that evidential rule.”

This observation applies equally to Section 38 A of the Equal Status Act,2000.

To answer Question Two above the Adjudication Officer could not find the basis of a solid prima facie case to support the discrimination complaint.

3:3:3       Question Three – Less “Favourable” Treatment than other Parties not Disabled.

The Adjudicator could not find, in the evidence submitted either orally or in writing, evidence that the Complainant was treated less favourably than non-disabled prospective Housing tenants.

3:3:4       Question Four – Equal Status Act,2000 Section 38 (a) The Burden of Proof

As it was the Adjudication view that No proper Prima facie case of alleged Discrimination had been made the Burden of Proof did not switch legally to the Respondent.

3:4         Final Adjudication Summary

In summary and after careful reflection the Adjudication decision, based on the detailed commentary above in Section 3, has to be that the Complainant has failed on all grounds to establish a necessary prima faciecase.

It is worth quoting again the Valpeters v Melbury Developments Ltd [2010] ELR 64 case.

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions to that evidential rule.”  

This observation is equally applicable to Section 38A of the Equal Status Act,2000.

The Complaint has to fail at the prima facie level.

Equal Status, Disability Discrimination.