The High Court has dismissed Olumide Smith’s appeal against the Circuit Court’s dismissal of his race discrimination and harassment complaints concerning the Office of the Ombudsman. The appeal was confined to points of law, and the court affirmed the Circuit Court’s order covering all five named respondents. The judge said the parties would be heard separately on costs.
The dispute followed the Legal Aid Board’s refusal in November 2017 to grant Mr Smith a legal aid certificate. He complained to the Office of the Ombudsman in January 2018. A case officer rejected the complaint in March, finding that the Board had given two statutory reasons for refusing aid. A request for an internal review was refused later that month because the Office considered the subject matter had been dealt with in an earlier complaint. The judgment says the details of that 2015 complaint were unclear, with only a December 2015 letter before the court.
Mr Smith then complained to the Workplace Relations Commission, alleging race discrimination and harassment by the Office. An Adjudication Officer dismissed the substantive complaint, finding no evidence to support the allegations. The Circuit Court dismissed his appeal on 18 April 2019, concluding that he had not established a prima facie case of discrimination.
In the High Court, Mr Smith challenged the Circuit Court’s treatment of the evidence and its application of the burden of proof. Justice Garrett Simons held that a complainant must first establish facts from which discrimination may be presumed; only then does the burden shift to the respondent. He found that the Circuit Court had applied that test correctly and that its findings were not unsupported by evidence, unreasonable or based on an incorrect interpretation of documents.
The judge said there was no evidence that the Office had treated Mr Smith differently from other complainants or that the relevant officials knew his race or ethnicity when handling the complaints. The court also held that it was open to the Office to regard the 2015 and 2018 complaints as sufficiently connected for the purpose of declining a further review. Whether that decision was right or wrong was not the question in the discrimination appeal; the issue was whether the procedure differed because of race.
The High Court noted that Mr Smith’s appeal had been brought in an irregular form, but considered its substance despite that defect. It dismissed the appeal on the point of law and affirmed the Circuit Court’s order. The judgment did not decide whether an Ombudsman investigation is a “service” under the Equal Status Act, leaving that issue open for another case.