Case Number: DEC-S2012-001- Full Case Report. Equality Tribunal

• Docket Number: DEC-S2012-001- Full Case Report
• Date: 01 January 2012
• Court: Equality Tribunal

The Equality Tribunal

Equal Status Acts 2000 to 2011 Decision Number
DEC-S2012-001 Parties
Fizel
(Represented by Hennessy and Perozzi Solicitors)
V
Health Service Executive
(Represented by Mason Hayes & Curran) Case ref: ES/2010/0080
Issued: 6 January 2012

DECISION NUMBER DEC-S2012- 001 - CASE REFERENCE ES/2010/0080

Keywords:
Equal Status Acts 2000 to 2008- Discrimination - Harassment - Victimisation - Civil Status - Family Status - Race - Provision of good and services - Prima Facie case

1. Delegation under the Equal Status Acts 2000 to 2008

1.1. Ms. Andrea Fizel (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 5 August 2010. The respondent was notified of this complaint on 13 May 2010. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 29 July 2011. An oral hearing, as part of the investigation, was held in Dublin on 8 November 2011.

2. Dispute

2.1. The dispute concerns a complaint of unlawful discrimination, harassment and victimisation on civil status, family status and/or race grounds. The complainant submitted that the Health Service Executive (hereafter "the respondent") discriminated and harassed her by asking repeated questions about the father of her unborn child and whether she was in receipt of any maintenance payments.

3. Case for the complainant

3.1. The complainant has worked and resided in this jurisdiction since 2006. She is single (divorced). In or about September 2009 the complainant became pregnant. Since she knew she would be dependent on statutory maternity benefit after 6 May 2010 and her tenant had declared that he would be moving out on 1 May 2010, the complainant sought assistance from the community welfare service in relation to meeting the cost of her rent. Pursuant to this aim, the complainant, on the advice of a social worker, approached her local health centre and met with a community welfare officer.

3.2. The complainant, who is a Hungarian national, single and pregnant at the material time, submitted that she was harassed and discriminated against by a named community welfare officer who:
1. Repeatedly badgered the complainant about her pregnancy and her inability to contact the child's father;
2. Called her a liar when she said she did not know how to contact the father of her unborn child;
3. Was tired of being told lies by foreign nationals;
4. Claimed that there had to be another person residing in the house;
5. Searched the complainant's wardrobes;
6. Claimed that people who owned a printer did not require rental supplements;
7. Claimed that while the complainant was outside the jurisdiction, the community welfare officer had visited her residence; and
8. Indicated to the complainant that he was unhappy about the complainant leaving the jurisdiction to go and visit her family.

3.3. The complainant submitted that the treatment that she had to endure over 4 meetings with the community welfare officer put the complainant in real fear that she would not be able to make her rental payment. The complainant approached her Solicitor and a complaint was lodged on 13 May 2010.

3.4. The complainant had travelled to Hungary for a couple of days in late April 2010. She visited her family and had finalised some matters relating to her reverting back to the use of her maiden name (the complainant had been married in Hungary and while divorced had continued to keep her marriage name). On her return, she discovered that the community welfare officer had visited her house twice and that he suspected that there was someone else residing in the house.

3.5. The complainant who has no contact with the father of her then unborn child felt humiliated by the named community welfare officer whose questioning about the father deeply embarrassed the complainant.

3.6. The complainant submitted that a hypothetical comparator ought to be used to establish discrimination in accordance with Conroy v Carney (DEC-S2001-002) as there is an absence of an actual comparator. It was submitted that an Irish national in similar circumstances would not have been treated in the same manner as the complainant was treated. It is further submitted that a married woman or an individual who is not pregnant would have been subjected to the same treatment afflicted on the complainant. The complainant relied on Fleming v Dr. J Maloney, Blackrock Clinic (EE04/1996) where the complainant was asked irrelevant questions that the officer found would not have been in similar circumstances been asked of a male or a single female. The complainant submitted that a married woman or a woman with the father present would not have been asked such discriminatory, irrelevant and disparaging questions. The complainant relied on A student's mother v A Local Authority (DEC-S2004-086) where the equality officer found that a person with different family and marital status would not have been questioned to such a level in relation to their circumstances and same would have been accepted at face value.

3.7. The complainant submitted that her race was a further aggravating factor leading to the discrimination and harassment. The treatment that was afforded to the complainant has made extremely disheartened to have chosen Ireland as her home and she finds it incredible that she would have been treated in such a horrific, humiliating manner at a time when she needed assistance.

3.8. The claim of victimisation was withdrawn at the hearing.

4. Case for the respondent

4.1. Community Welfare Services are provided by Community Welfare Officers (CWOs) in the HSE (at the material time). CWOs are responsible for administration of Community Welfare Services and are based in health centres. The majority of the work carried out by CWOs involves the administration of the Supplementary Welfare Allowance Scheme which is funded by the Department of Social and Family Affairs and administered by the HSE. Rent allowance is included under these schemes and is paid to individuals who live in private...