- Posted by Olivia Hande
- On August 10, 2016
- Employment, Equality
This is the final instalment in our series on timeliness in equality cases. Here, Bernadette Treanor, former equality officer, considers the test for dispensing with the notification requirement.
Issues: Equal Status, extension of time, test for dispensing with notification requirement
The complainant in this case was diagnosed with a rare bone disease and asserted he required accommodations. He also asserted he was continuously put down by the Principal and degraded in front of the whole class. The respondent asserted that the complainant’s claim was time barred. The Decision refers to the claim being submitted as an Employment Equality claim. This may be an error as the matter of whether the claim was lodged under the correct statute is not further addressed.
The Adjudicator considered the notification period which can be extended for reasonable cause from two months to four months. It appears the complainant would have missed this four month extended period by around a week. This cannot be precise as the exact last date at school, the last date on which a discriminatory act could have occurred, is not included.
The adjudicator goes on to consider the further provision for dispensing with the notification requirement altogether contained in section 22(3)(a)(ii) which states:
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 complainant to the extent specified in the direction (emphasis added)
The Adjudicator goes on to interpret this as requiring the complainant to establish whether exceptional circumstances preventing the complainant from making the notification, or that exceptional circumstances led to the delay. He found that this had not been achieved.
However, an alternative interpretation is that the word “exceptionally” refers to the number of times this might arise i.e. it would occur only rarely, on the basis that most notifications are made within either two or four months, and that it is for the WRC, (previously the Director of the Equality Tribunal), to exceptionally consider whether it was fair and reasonable in the particular circumstances of the case. Arguably, this provision relates to considerations appropriate to the WRC rather than requirements that must be met by the complainant of the very high standard of ‘exceptional circumstances prevented’.
For those interested in how the test of exceptional circumstances is applied where it is appropriate an in-depth consideration is included in the Labour Court’s determination EDA169 although the statutory framework differs somewhat to the previous employment equality provision of ‘exceptional circumstances prevented’.