Complainant

Respondent

Anonymised Parties

A Sports Club Member

A Sports Club

Representatives

Self-represented

Liam Bell BL instructed by  Osborne Morrin Denieffe Sols LLP for Team Manager, Liam Keane & Partners Solicitors for Sports Club

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065578-001

23/08/2024

In or around January/February 2024, the complainant volunteered to stay involved as selector for the team that his son played on. He did not attend the AGM in January 2024. He was informed that his assistance with the team was not required. He claims that he was discriminated against due to his disability under the Equal Status Act.

The respondent denies that he was discriminated against.

At the first hearing, although the complainant had submitted the Workplace Relations Commission (WRC) Complaint Form referring to the Employment Equality Act, it was clarified that his complaint was under the Equal Status Act. He said that he was involved with the team for the previous 10-years’ and wanted to continue as a selector. He said he had an injury to his hand arising from an accident many years ago.

He confirmed that he had received the respondent submission although had insufficient time to read it. The hearing was adjourned for a short time to allow him to read the submission on the preliminary issues and to comment on same.

When the hearing resumed, he said he understood that the respondent was acting on behalf of the Club which is why he named the Team Manager on the complaint form. He added that he never wanted to be a Team Manager, that he played a minor roll, and was always invited back each year. He said the issue arose in or around April/May 2024 when he realised he would not be facilitated back to assist with the team. In May 2024, a meeting was arranged within the Club which did not resolve the issue.

After the complaint was decided to be within jurisdiction, the complainant gave evidence under oath on the second hearing date.

Summary of Complainant’s Evidence

The complainant said he had followed the notification process under the Act by sending the ES1 Form to the Team Manager by registered post. He said he filled out two ES1 Forms by hand and sent the other to the WRC. He said he was involved in the Club for the previous ten years under previous Team Managers. He said he did not attend the AGM in January 2024 and he would not normally attend AGM’s. After expressing an interest in staying involved, he was not invited back with the team. He then contacted two committee members to find out why this was the case.

Around this time, he was contacted by the Team Manager on whether his son could attend strength and conditioning training and he informed him that his son was concentrating on other trials. He said the Team Manager did not contact him or his son later about trials even though his son became aware that others were contacted. He contacted the club to find out why there was no notification on trials. He was informed that this was down to the Team Manager. He sent a text message to the Team Manager in February asking why he was not wanted as a selector on the team. As the issue was unresolved, there was a meeting in the club in May 2024. The issue was parked after this meeting and he later heard back that the Team Manager said that he had an inability to help out and would not be involved in the team.

He said Mr. R raised his non-involvement with the Team Manager again and he heard back that he said ‘as long as I am a manager, he will never be with me although his son is welcome to hurl and train but he is not.’

He said he went to the doctor around this time and was prescribed anti-depressants. He said he did not know about an Executive Committee, and was not advised of dispute procedures. He said he brought the complaint to the WRC as this treatment of him had never occurred under previous managers and he felt he was treated less favourably.

He then referred to his disability and provided a further medical report. He said the medical report was very sensitive and he did not want to send this in advance. He said the club would have known about his disability from events in 2018, and in 2021.

Under cross-examination, he was asked about his non-attendance at a recent meeting to resolve the matter. He was asked how well he knew the Team Manager and he replied that he was aware who he was although did not know him personally. He was asked about his disability and whether the club was informed. He said the Club would have known from the previous events. It was put to him that the Team Manager would not have known about a disability and would give evidence to the hearing. He replied that what happened to him was demeaning as the club looked for help which was then denied. He was asked about the strong language he used in a message to the Team Manager. It was put to him that the Team Manager was entitled to seek selectors. He replied that he was aware that he brought in his brother. It was put to him that he had not provided evidence of a comparator, as required under the Act.

Under cross-examination by the Club’s solicitor, he was asked about the notification of his complaint and who he sent it to. He replied that he sent the notification form to the Team Manager although it was clarified in February 2025 by the WRC that the club were involved also. He was asked again about his disability and whether there was knowledge of this within the club. He replied that the club were aware of his disability. On the non-use of dispute procedures within the club he replied that he was given no information on dispute procedures. 

Summary of Mr. R’s Evidence (subpoenaed witness)

Mr R was thanked for attending the hearing at the request of the complainant and subsequently the adjudicator. He outlined in testimony that he knew the complainant wanted continued involvement in the team. He assisted in trying to resolve the dispute. He said the Team Manager already had a management team and he had to respect this. He outlined the efforts made to resolve the dispute at a meeting in May 2024 at the club.

He was asked by the complainant if he had given him the dispute procedures as per the club rules. He replied that all this information was on the website. On the complainant’s disability, he said that he only became aware of this in recent months after the complaint was made to the WRC.

Summary of Closing Submission

The complainant said that he felt he was demeaned and that the club were aware of his disability. He said his disability was covered under the definition in the Act.

The Team Manager’s representative made a detailed submissions on preliminary issues prior to the first hearing. The submission referred to the nature of the complaint, the correct respondent and whether the complaints were in time. Submissions were also made prior to the resumed hearing on the substantive complaint. This submission referred to the awareness of a disability, the procedure on appointment of Team Managers, and the failure to exhaust internal Club procedures.  

The Club’s solicitor also made a submission that the club was not the respondent, the non-use of dispute procedures, along with the awareness of a disability.

After the complainant had given evidence, the Club’s solicitor said he did not have a copy of all relevant documents. There was a short recess to ensure that all the relevant documents were made available. Without prejudice to the club being the correct respondent, the Club Secretary gave evidence on behalf of the club.

Summary of Club Secretary’s Evidence

The Club Secretary said he knew the complainant from his involvement in the club over several years. He also knew the Team Manager. He said he was not aware of the complainant’s disability until well after the complaint was referred to the WRC. He was aware of a dispute between the parties and understood it was a civil matter. He was also aware that Mr. R was trying to resolve it. He said that once Team Managers come forward, they will mostly want to find their own selectors.

Under cross-examination, he was asked who puts Team Managers in place. He said that all Team Managers are nominated and then ratified at committee level.

Summary of Team Manager’s Evidence

The Team Manager said he was involved in the club at juvenile level and managed two teams. He said he asked all previous selectors to continue from the contact list he was given. He said the complainant was not at the AGM in January 2024.

He rang the complainant and asked if his son would take part in strength and conditioning and was informed that he was preparing for other trials. He said the complainant did refer to wanting to be a selector on that call. He said notice of trials went to parents from a list he was given. Even though he was made aware later that the notice did not go the complainant, his son did not miss the trial date.

He said on becoming aware the complainant wanted to be involved, there was a phone call and the complainant was confrontational. He said that once the complainant had threatened him, he did not want him involved with the team. He said a meeting took place in May 2024 and he expected an apology and as it was not forthcoming he did not want him involved. He said he had selectors in place and that the complainant never mentioned he had a disability. He said the alleged comment of ‘an inability to get involved with the team’ was never made. He heard that if the complainant was not involved that he would pull his son from the team. He said he had no issue with his son and the club wanted players involved in county panels. He said he had no contact with the complainant after he received the notification letter (ES1 Form) which he brought to the attention of the club. He said he heard nothing after this until he became aware of the later WRC complaint.

Under cross-examination, he was asked by the complainant why he was not contacted to stay on. He said he was not on the contact list he was given. The complainant clarified that he would he never withdraw his son from the team and he never said this. He was asked why the complainant was not contacted for trials. He replied that this was a mistake. 

Summary of Respondent Closing Submission

The Club solicitor questioned whether the complainant’s disability is covered under the Act. He submitted that there was no evidence of discrimination, and no comparator was presented. The submission concluded that if the team manager was unaware of a disability and denied discrimination had taken place.

The Law

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g)  that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Section 2 of the Equal Status Act, 2000 defines “disability” as-

(a)    ……..

(b)   ……..

(c)    the malfunction, malformation or disfigurement of a persons body,

As per section 20 of the Act “respondent” means a person who is alleged by a complainant in a case under section 21(1) to have engaged in prohibited conduct.

Section 21(2) of the Act requires that:

(2) Before seeking redress under this Section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.

Section 21(3) of the Act provides:

(a)    On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may –

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

Section 42 of the Act provides-

(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.

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

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

(b) facilities for—

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

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

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

Section 38A (1) provides-

" 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."

Preliminary Issues

Respondent?

The WRC Complaint Form is not a statutory document and there is latitude based on the text on the form to decide on the intended complaint and intended respondent. The complaint form was filled out by the complainant as a lay person with very limited legal knowledge. There are several  references on the form of the named club and under the respondent heading. Although the complainant names the Team Manager and sent the ES1 Form to his address, the Team Manager then rightfully brought the form to the attention of the club. The Complaint Form was copied to the Club’s solicitor by the WRC prior to the resumed hearing. The Club’s solicitor was also notified that the Club Secretary was invited to the resumed hearing as a relevant party.

I am satisfied that the club were not prejudiced in any way. The Club Secretary was on notice of the hearing. The relevant information was copied as requested. This allowed for the club’s participation in the hearing by the cross-examination of the complainant and the testimony of the subpoenaed witness, Club Secretary and Team Manager. I am fully satisfied that the Team Manager was not acting in a personal capacity and was always acting on behalf of the club. He was not providing a personal “service” and was acting in a role ratified by the club who provide a service to a section of the public.

I decide that the club is the appropriate respondent and that the complainant has fulfilled his obligation in the text of the WRC Complaint Form by naming the club, and the club have not been prejudiced prior to and during the second hearing date.

Time Limit?

From the testimony at the hearing, the alleged prohibited conduct was ongoing in May 2024 as the matter was parked once a meeting had taken place at the club. At this time, it emerged at the hearing that the complainant and Team Manager were at cross purposes. The complainant thought there was still a chance of being involved, and the Team Manager would only allow him back if there was an apology for his threatening behaviour. I am satisfied that there was a continuum of alleged prohibited conduct ongoing at this time. The complainant sent the ES1 Form on the 19th July 2024 which was within time. The WRC received the Complaint Form on 23rd August 2024 which was also within time.

Notice?

Although the Club submit that they were not on notice as prescribed in the Act, testimony was given by the Team Manager that he brought the complaint forms he received to the attention of the club.

Notwithstanding the above, the Act provides that the notification requirements shall not apply if ‘exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction, ……..’

The Act then further provides- ‘shall have regard to all the relevant circumstances, including-

(1)   the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(2)   the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

 As outlined above, I am satisfied that the respondent club was fully aware of the complaint in or around May 2024 and that the Club was not prejudiced in any way by not receiving the ES1 Form directly from the complainant.

For the reasons outlined, I decide that the complaint is within time.

Finding on Substantive Complaint

Presumed Prohibitive Conduct

As per Section 38A (1), I am satisfied from the complainant testimony that he provided sufficient information to establish that prohibited conduct may have occurred. He had a disability as per section 2 of the Act. He had been involved with the team for previous years, expressed further interest, and was denied the opportunity to be involved. 

Once he has established these facts, the burden of proof shifts to the respondent to rebut the presumption of discrimination.

Rebuttal of Prohibitive Conduct

The complainant requested that Mr. R be called as a witness. His testimony did not support the complainant’s contention that his disability was known within the club. The Club Secretary gave similar testimony. The Team Manager gave testimony that he was also unaware of the disability and asserted that the reason he would not re-consider his involvement was due alleged threatening behaviour.

Given the testimony given on the lack of knowledge of a disability, I cannot find that the treatment of the complainant was prohibited conduct related as per the Equal Status Act. The complainant may rightly feel that he was unfairly treated given his lengthy previous involvement with the team but the evidence presented does not support the premise that this was due to his disability.

Although much emphasis was placed on the complainant not having exhausted the club’s internal procedures, there is no requirement to do this under the Act. Notwithstanding that it is always desirable for parties to resolve disputes internally, if possible, the complainant was entitled to bring his complaint under the Act without having used the club internal dispute procedures. The Act itself allows for an opportunity for all parties to consider complaints through the ‘Notification Process’ before a complaint is made to the WRC. Unfortunately, although all parties were aware of the ES1 Form, it was not replied to. This was an opportunity missed to clarify matters at that earlier stage. There were several oversights which were conceded at the hearing which could have been clarified during the notification process. These were the communications with parents on trials and the incomplete list of previous selectors on the team.

The contesting of the correct respondent (team manager or club) did not assist matters, particularly given the purpose of the Act.

I find the complaint is not well founded. I decide the complainant was not discriminated against due to his disability.

I find the complaint is not well founded. I decide the complainant was not discriminated against due to his disability.

Equal Status Act