Ethel Brooks v. The Commissioner of An Garda Síochána ADJ-00012145

This is a discrimination case taken by Romani Academic Professor Ethel Brooks against An Garda Siochana due to an interaction occurring at Dublin Airport. She brought the complaint to the WRC where it was dismissed for technical reasons but reached a settlement agreement in the Circuit Court. The case highlights the high burden existing within the current equality system regarding how and where to take a non-discrimination case within the restrictive criteria and rules before the WRC. Professor Brooks was supported by the European Roma Rights Centre and the Free Legal Advice Centre in taking her claim to the Circuit Court. 

Facts: 

The complainant in this case, Professor Ethel Brooks, was invited to Ireland to speak on behalf of the Roma Community at the Pavee Point Roma Holocaust Memorial service. She was discriminated against and harassed on the ground of membership of the Traveller community and/or race by an Immigration Officer upon arrival at Dublin airport on 1st of August 2017. After learning that the Complainant was visiting Ireland to take part in the commemoration of the Romani Holocaust and was Romani, the Immigration Officer delayed her passage through immigration control and subjected her to racial insults and stereotypes against Roma. He told the Complainant that Roma are people “who steal and beg in the streets” in cities such as Dublin or Milan, and that she should watch her handbag while staying in Dublin. He also said “...and now they have got minority status and they are going to be taking social benefits and doing all sorts of things...”. He went on: “it’s really just about people’s actions . . . It’s really about the ways in which you can’t really live beside them”. 

Within a day or two of the alleged incident Professor Brooks spoke to a reporter about the incident and this was published as an article on the incident on 3rd of August 2017. Professor Brooks had also discussed the incident with members of Pavee point during the Holocaust memorial event which was funded and supported by the Department of Justice and Equality and the US Embassy and expressed her shock at being subjected to such treatment Staff at Pavee Point indicated that she should lodge a complaint and she decided to do so.

Issues: 

Professor Brooks experienced difficulty navigating the equality system and was unsure of where to complain to and how to do so. She attempted to make contact with a number of organisations to seek guidance, before receiving this from IHREC who advised her to lodge her complaint before the Workplace Relations Commission. Her attempts to seek clarity on how to submit the complaint meant that she submitted her ES1 form outside of the two-month window notification requirements under section 21 of the Equal Status Act.  Section 21 of the Equal Status Acts makes provision for the time limits for notification and referral complaints by a person who intends to seek redress under the Acts in relation to an alleged incidents of prohibited conduct.  

When questioned at the WRC hearing as to why she did not submit her complaint earlier the Professor Brooks raised this difficulties and stated “I knew coming out of the airport that I could file a complaint, but I knew I had to do what I came here to do and help families. I went to Irish radio and talked about the Holocaust”. Although the complainant had contemplated making a complaint, she did not do so at the time for fear that she would not be let into the country. The delay in submitting the complaint also actually disadvantaged the respondent as she could have relied on CCTV footage of the incident if the complaint had been notified to them sooner.  

Professor Brooks noted within her submitted statement that passengers who are not Roma or are without a perceived connection to Romani and Traveller communities would not be delayed in this manner or subjected to this abuse. She outlined how she was targeted for less favourable treatment and unwanted conduct because of the Immigration Officer’s perception that she was associated with Romani and Traveller communities.  

She thus outlined how she had experienced discrimination in accessing goods and services under the Equal Status Acts. 

In answering this, the respondent submitted that the WRC does not have jurisdiction to hear and adjudicate upon the Complaint because the two month limit for notification requirements under section 21 of the Equal Status Act had not been complied with and the Complainant has not advanced any justification for this failure that could satisfy the WRC that reasonable cause for this failure exists.  

Solicitors only came on record for the Complainant for the first time in April 2019 and she was not legally represented at any time up to the notification and referral of her complaint. She is a non-national, non-resident in the State and that this impacted on her ability to access information in relation to securing a remedy in respect of the discriminatory effects of the less favourable treatment and unwanted conduct to which she was subjected.  

It was further submitted that the online complaint made on the 6th of November 2017 was not the first notice that the Immigration Services and/or GNIB received because the matter had been reported in the media on 3rd of August, 2017 and so it is considered that the matter had been notified to the respondent within the two months notification period in this context.  

The Complainant requested that in the event of a finding that she has not met the notification requirements under Section 21(2) she sought a direction under section 21(3)(a) of the Act providing either that the 2 months period be extended to four months and/or dispensing with the requirement for notification under section 21 in the circumstances of the case.  

The complainant submitted that her personal circumstances made it reasonable and fair for a direction to be made under section 21(3) in relation to time limit issues. These include the nationality of the complainant and the fact that she was in Ireland for a short period of time. Therefore, it was necessary for her to inform herself remotely in relation to the steps available to her to make a complaint and that she did not enjoy the same access to information and services that a person living in Ireland would have. Furthermore, she was not legally represented.  

The respondent in this case cited the case of Borsca v Bank of Ireland which made it clear that compliance with section 21(2) is to be strictly interpreted by the WRC and the WRC examined the Labour Court Decisions of in Cementation Skanska -v- A Worker and also Department of Finance -v- Impact. 

Reasoning:  

After considering the evidence and circumstances of the case the WRC reasoned that it could not justify extending the notification requirement in the circumstances of the case. It was believed that the Complainant had not provided reasonable cause to both justify and explain the delay in complying with the notification requirements. The WRC was not empowered under the Acts to extend or dispense with the two-month notification requirement. It added that it was satisfied that the notification requirements set out in Section 21(2) of the Acts were not complied with, and accordingly found that it did not have jurisdiction to investigate the complaint. 

Conclusion: 

The WRC concluded that the Complainant had failed to comply with the notification requirements set out in Section 21 of the Acts. Accordingly, the WRC found that it did not have jurisdiction to investigate the complaint.  

This was appealed to the Circuit Court and a settlement was reached in 2021 with An Garda Siochana agreeing to certain agreements. Within these submissions, the complainant, represented by FLAC highlighted the barriers to access within the equality system, which is compounded by the strict time limits and identification of the ‘Workplace’ Relations Commission. It was further noted, that Ireland is the only European State to have statutory limits of time upon initial submission of complaints of equality claims.