EQUAL STATUS CASES
Investigating complaints under the Equal Status Acts 2000 to 20011
Revised December 2009
The Equality Tribunal, 3 Clonmel Street, Dublin 2
Phone: 353-1-477 4100 Lo-call: 1890-34 44 24
Fax: 353-1-477 4141
Website: www.equalitytribunal.ie E-mail: info@equalitytribunal.ie
Equal Status Cases
Guide to procedures for investigating complaints
These procedures are set out for the general information of parties to complaints (and their representatives), as an accessible summary of the normal working practice of the Equality Tribunal. They are not intended to be exhaustive, nor to provide a legal interpretation of the Acts. A failure to comply with this document in a particular case will not invalidate the proceedings, nor the decision or settlement which has been reached, nor give rise to any legal liability. The Tribunal reserves the right to vary these procedures generally and, as appropriate, in the circumstances of the individual case.
1. The Equality Tribunal
The Equality Tribunal is an impartial, independent body, set up to investigate and decide or mediate cases brought under the equality legislation. Its decisions and mediated agreements are legally binding, and it has extensive powers. The Tribunal is a quasi-judicial body, in that that it does not have to decide cases using court procedures, and can follow relatively accessible and informal procedures. It is, however, bound by the principles of natural justice, which means that it must act impartially in considering complaints before it and ensure fairness for both parties in its procedures. The service is free, and parties are not required to have legal or other representation. Further information is provided on the website and all decisions issued by the Equality Tribunal are published on it at www.equalitytribunal.ie.
The Equality Tribunal cannot give legal advice as it must remain strictly impartial in hearing and deciding cases. It is an entirely different body from the Equality Authority, which was set up under the same legislation with a range of other functions which may include the provision of advice and legal representation to those wishing to make a complaint.
2. Cases before The Equality Tribunal
The Equality Tribunal investigates, decides, or mediates cases brought under the Employment Equality Acts 1998 - 2011, (see Guide to Procedures in Employment Equality cases) the Equal Status Acts 2000 – 2011 and Part VII of the Pensions Acts 1990-2008.
Under the Equal Status Acts 2000 to 2011, the Equality Tribunal deals with complaints of discrimination based on gender, marital status, family status (including pregnancy), age, disability, race (including nationality, colour or ethnic/national origin), religion or belief, sexual orientation, or membership of the Traveller community. Generally speaking, and subject to specific exceptions in the Acts, the complaints relate to the provision of goods, access to any of a wide range of services and facilities, education and accommodation,
The Acts apply to all providers of the goods and services covered by the Acts, whether they are individuals, organisations, or public bodies, and to their employees. For example, they could apply to a landlord, school, college, shop, bank, insurance company, travel agent, restaurant, pub, licensed club, doctor, cinema, or public service body. (The term “service provider” is used in this Guide to refer to any person who provides goods, services or facilities.)
The Equal Status Acts also specifically protect a person against being penalised in any way by the service provider because they have made a complaint about possible discrimination under the Equality legislation, represented or supported a complainant, were named as a comparator or indicated an intention to do any of the above. Penalising a person for any of these reasons is defined as victimisation. The Acts provide for complaints about victimisation to be made to the Equality Tribunal, in the same way as for complaints of discrimination, and with the same provision for redress. It is not necessary that a victimised complainant was successful in their original complaint, only that he or she acted in good faith.
Claims of discrimination against registered clubs (i.e. clubs allowed to serve alcohol at their bars) and claims of discrimination against licensed premises, (pubs, nightclubs, hotel bars etc), must be referred to the District Court. For information on District Court procedures, contact the District Court Office.
3. Notification before referring a case to the Equality Tribunal
Any person who believes that s/he has experienced discrimination by a service provider which is contrary to the Equal Status Acts, may seek redress by making a complaint to the Equality Tribunal. Please note that before referring a complaint to the Equality Tribunal a complainant must first notify the service provider and has the right to ask for information in that notification.
The notification must be in writing and sent within 2 months of the incident complained of (or, in the case of repeated incidents, the most recent one), stating the nature of the allegation and the intention to seek redress under the Equal Status Acts,if not satisfied with the service provider’s response. A sample standard notification form (Form ES.1) is available from the Tribunal or can be downloaded from the website. This standard form allows for questions to be asked of the service provider. A sample reply form is also available to the service provider (Form ES.2) and these forms can be downloaded from the website. The service provider is not obliged to reply but the Acts state that the Tribunal may draw such inferences as seem appropriate if the service provider does not reply or provides a false, misleading or unhelpful reply.
The date of notification is the date on which it was sent to the service provider. A complaint may not be valid unless this notification is properly made. Proof of posting should be kept with a copy of the notification. The Equal Status Acts provide that the notification must be sent to the service provider within 2 months of the alleged occurrence or the last occurrence where there is more than one incident. If the complainant has missed the 2 month time limit an extension of time may be requested. That application must be made as promptly as possible after a complaint has been lodged as failure to do so will be taken into account, in the interests of fairness, when a decision on the time limit is made. The complainant must write to the Tribunal giving detailed reasons and including any supporting documents (e.g. medical certificates). A copy will be sent to the respondent for their comments together with a copy of the complaint. The Director or Equality Officer will consider the material presented by both sides in deciding whether or not to grant an extension for reasonable cause. Note that the Tribunal has no power to extend the time limit for notification beyond 4 months after the last incident of discrimination.
In exceptional circumstances and where the Director is satisfied that that it is fair and reasonable in all the circumstances s/he can dispense with the requirement for notification.
4. Referring a case to the Equality Tribunal
Any person who believes that s/he has experienced discrimination which is contrary to the Equal Status Acts may, after notifying the service provider, seek redress by referring a complaint to the Equality Tribunal. The single complaint form
Download Single Complaint Form pdf should be used and this is available from the Tribunal or can be downloaded from the website. A copy of the notification and the reply, if any, together with proof of postage should be sent with the complaint form to:
Workplace Relations Customer Service,
Department of Jobs, Enterprise and Innovation,
O'Brien Road,
Carlow
The complaint should be signed either by the complainant him/herself, or by his or her representative. Even where a number of individuals are taking a case against the same service provider each complaint should be on a separate form, as there may be differences in individual cases. However, where a representative is authorised to represent a number of complainants, a single form signed by the representative will be accepted, provided that the names of all the complainants are clearly indicated in part of the complaint (e.g. an attached list). It is also important to correctly name the service provider.
It is extremely important that the Complainant keep the Tribunal informed of his or her current address and contact details as failure to do so can result in the complaint being dismissed.
5. Time limits for referring a case to the Equality Tribunal
The Equal Status Acts provide that a claim may not be referred to the Tribunal after six months from the date when the discrimination or victimisation occurred (or, in the case of a repeated act, last occurred) unless the complainant applies for an extension of time. If the delay was caused by the respondent misrepresenting the facts to the complainant, the time limit runs from the date when the complainant discovered the misrepresentation.
The date on which a claim is referred is the date on which the Equality Tribunal receives a completed complaint form. If the complainant has missed the six month time limit an extension of time is required. That application must be made as promptly as possible as failure to do so will be taken into account, in the interests of fairness, when a decision is made. The complainant must write to the Tribunal giving detailed reasons and including any supporting documents (e.g. medical certificates). A copy will be sent to the respondent for comments together with a copy of the complaint. The Director or Equality Officer will consider the material presented by both sides in deciding whether or not to grant an extension for reasonable cause. Note that the Tribunal has no power to extend the time limit beyond 12 months after the last incident of discrimination.
If either party disagrees with the Director’s decision on an extension of time it may be appealed to the Circuit Court within 42 days. It should be noted that the correct Respondent in such an appeal is not the Tribunal but the other party.
6. When a case is referred to the Equality Tribunal
The complaint will be acknowledged and a copy sent to the respondent. It is important to note that as the Tribunal is impartial as between the complainant and respondent, material received from one party will be copied to the other, so that both parties are fully aware of all the material received by the Tribunal.
The Acts allow the Tribunal to dismiss a complaint without a hearing at any stage if, in the opinion of the Director or an Equality Officer, it has been made in bad faith or is frivolous, vexatious, misconceived or relates to a trivial matter (Section 22). Where a case is dismissed under this section, the complainant may appeal to the Circuit Court within 42 days. The correct Respondent in such an appeal is not the Tribunal but the other party.
The Tribunal will ask the parties to indicate in writing whether they have any objection to the case being referred for mediation.
7. Mediation
If neither party objects, and the Director considers that a case could be resolved by mediation, it will be referred to a Mediator who will arrange a mutually convenient appointment with both parties as soon as practicable. Either party may withdraw from mediation at any stage in the process, or the Mediator may decide that the case cannot be resolved through mediation. In either case the Mediator will send a notice known as a non-resolution notice to both parties, indicating that the case cannot be resolved by mediation.
The Acts allow for the investigation to be resumed provided that within 28 days of the date of the non–resolution notice the Director receives in writing an application for the investigation to resume (see Section 24). A more detailed information guide to mediation (Guide MED) is also available on request from the Equality Tribunal or on the website.
8. Statement/Submission
If the complaint does not go to mediation or mediation is unsuccessful then, the complainant is asked for a submission/statement. The complainant’s submission/statement will form an important part of the Equality Officer’s investigation and should contain a clear and comprehensive written account of the complaint. It should set out details of the link between the ground and the alleged discrimination, the facts of the complaint such as the dates of the alleged discrimination, details of the specific allegations, the parties involved and any other information that is needed to set out the full facts of the complaint. It should include all relevant support documentation such as copies of letters etc. The submission/statement should also include any legal arguments the complainant wants to make. Submissions/statements can be sent electronically to info@equalitytribunal.ie. If the complainant is satisfied all relevant information has been set out in the initial documentation and there is no need for a further submission/statement then he or she should inform the Tribunal.
Please note that any delay by a complainant in sending in a submission/ statement could result in a delay of the hearing.
Under Section 38 of the Acts the Tribunal can dismiss the complaint and close the file after a year, if it appears that a complainant has not pursued, or has ceased to pursue, the complaint. A dismissal notice will be sent to the parties. There is no appeal from this decision.
The Tribunal will send a copy of the complainant's submission/statement to the respondents and ask for a replying submission. This should also contain a clear and comprehensive written account, setting out the specific facts, parties involved and any legal arguments to be made and also containing relevant supporting documentation. This submission will also form an important part of the Equality Officer’s investigation. A copy is sent to the complainant for information.
Due to the large volume of cases there may be a delay before a case can be assigned for investigation.
9. Investigating a complaint
The complaint will be assigned to an Equality Officer whose role is to investigate and decide complaints referred to the Tribunal. This can be different to the role of a court, which decides only on the evidence brought before it. Extensive powers have been conferred on Equality Officers by the Equality Acts and these powers may be directed to either or both parties, or to third parties including an order that a person attend before the Director and provide information which is considered relevant.
The Equality Officer will contact the parties with a time and date for the hearing of the complaint. Reasonable notice will be given. If any special requirements are needed as much notice as possible should be given in order to facilitate any such requirements. Each party will be asked to provide a list of persons they propose to bring as witnesses and the purpose of a particular witness.
If it appears to an Equality Officer at this point that a complainant has not pursued or has ceased to pursue a complaint under Section 38 then that complaint can be dismissed.
Many hearings are held at the Tribunal’s own office at 3 Clonmel St, Dublin 2 but hearings are also held outside Dublin. Please note that there are no consultation rooms available at the Tribunal’s office.
There is no automatic right to an adjournment. Adjournments are granted for substantial reasons only and requests must be made as soon as possible to the Equality Officer. Any party requesting an adjournment must give details of the reasons along with all relevant documentation.
10. The hearing and decision
It should be noted that the Tribunal is not a Court and is not subject to all the attendant formality. The final discretion as to the conduct of the hearing and the presence of any person rests with the Equality Officer subject to fair procedures and in compliance with natural justice.
The investigation generally concludes with the hearing of the case. In exceptional circumstances only and if an Equality Officer considers it necessary, s/he may decide to seek further information after the hearing.
Where a party fails to show up for a hearing the case will be deferred only where the Equality Officer is satisfied that the party has been prevented from attending by factors which were outside their control (e.g. sudden illness vouched by medical evidence). If the full facts about one party’s absence are not sufficiently clear, the Equality Officer will decide whether it is appropriate to resume the hearing or not. However, this discretion will be exercised only where it appears to be necessary to ensure fair procedures.
If a party does not appear at the hearing, the Equality Officer can decide to proceed on the evidence available and the case may be decided against that party.
The Equality Officer will direct the hearing and may look for formal identification of either party or any witnesses. It is the responsibility of the parties and their representatives to ensure that all information is before the Equality Officer on the day of the hearing including any documents or witnesses relevant to the case. The Equality Officer will ask questions of each party and of any witnesses attending. S/he will also give each party the opportunity to give evidence, make legal points, cross-examine and the opportunity to respond to the other side. The witnesses may be allowed to remain or may be asked to come in only for their own evidence. The Equality Officer will decide what is appropriate, taking into account fair procedures, arrangements which will best support the effective and accurate giving of evidence, and the need to protect privacy during sensitive evidence.
Given the Tribunal’s objective to provide an accessible forum, the Equality Officer will ensure that unrepresented complainants or respondents are not placed at a disadvantage in so far as he or she can.
The Equal Status Acts specifically provide that an investigation into a claim of discrimination must be held “in private”. Therefore, the Equality Officer cannot allow members of the general public, the press, or observers to attend hearings. Recording of the hearing is not allowed without the specific consent of the Equality Officer.
All parties and representatives are requested to contribute to the objective of a calm, efficient hearing, and to avoid being unnecessarily confrontational or formalistic. If the Equality Officer considers that any person is impeding the effective conduct of the hearing, s/he may direct them to leave or may call a short recess.
The Tribunal would emphasise in particular that raising substantial new points either by way of additional submissions just before a hearing or orally without adequate notice to the other party, is considered an unfair practice.
As soon as practicable after completing the investigation, the Equality Officer will issue a written decision. In certain limited circumstances e.g. in cases involving particularly sensitive issues, the Equality Officer may decide to anonymise the parties in a decision. All decisions will be published (including publication on the Equality Tribunal website on www.equalitytribunal.ie)
11. Redress which can be awarded
Under section 27 of the Equal Status Acts, a decision of an Equality Officer which finds in favour of a complainant will provide for compensation for the acts of discrimination or victimisation which occurred (the maximum being the same as that which can be awarded by the District Court in civil cases) and/ or an order that a person or persons take a specified course of action.
An Equality Officer has no general power to award legal costs to any person. However, if the Equality Officer considers that a person is obstructing the investigation, s/he can order that a person pay travelling or other expenses reasonably incurred by another person in connection with the investigation.
12. Appeals and enforcement
Either party may appeal the Equality Officer’s decision in writing to the Circuit Court within 42 days of the date of issue marked on the decision. If no appeal is lodged during this period, the decision is legally binding and may be enforced through the Circuit Court. If the decision is appealed a copy of the notice of appeal must be sent to the Tribunal. It should be noted that the correct Respondent in such an appeal is not the Tribunal but the other party. Parties should contact the Circuit Court for information on the necessary procedure for appeals.