Disability
Cases on Discrimination
DEC-S2010-002 – Full Case Report
Equal Status Acts 2000 – 2008
Equality Officer Decision
DEC-S2010-002
A Couple v The Intercountry Adoption Services
Date of Issue 7 January 2010
Key words
Equal Status Acts – Direct discrimination, section 3(1)(a) – Disability ground, section 3(2)(g) and section 4 – Application for a Declaration of Eligibility and Suitability to Adopt – Victimisation , section 3(2)(j)
1 Delegation under the Equal Status Acts
The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. On the 25 July 2006, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to myself, Brian O’Byrne, 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, 2000-2008 on which date my investigation commenced.
As proceedings were still ongoing before the Adoption Board in 2007 and 2008, the Tribunal acceded to requests during this period from the complainants to defer the equality hearing pending the outcome of those proceedings. As required by 25(1) and as part of my investigation, the case eventually proceeded to hearing on 29 October 2009.
2 Dispute
This dispute concerns a claim by the complainants that they were discriminated against on the disability ground by the Intercountry Adoption Services (ICAS) when negative recommendations were made to the Adoption Board with regard to their application for a Declaration of Eligibility and Suitability to Adopt. The complainants maintain that the manner in which the female applicant’s medical condition was assessed by the ICAS constituted less favourable treatment, contrary to the provisions of the Equal Status Acts.
The complainants also claim that they suffered victimisation at the hands of the ICAS. They claim that, having sent a formal notification to the respondents to the effect that an equality complaint was being considered and having submitted FOI requests in relation to their case, that the respondents purposely and deliberately delayed their case further.
The respondents deny the allegations that the couple were discriminated against and victimised and state that their application was considered and decided upon in accordance with standard procedures laid down for assessment of such cases.
3 Summary of Hearing
3.1 The Hearing of this complaint was held on 29 October 2009. The Hearing was attended by the complainants, the respondents and the respondents’ representative. At the Hearing, both parties provided evidence with regard to the background to the complaint and there was general agreement between the parties that the facts of the case were as follows:
· In 1998, the couple applied to the ICAS for approval to adopt a child. Their application was successful, resulting in the Adoption Board issuing a Declaration of Eligibility and Suitability to Adopt in October 2000.
· At that time, the female applicant suffered from rheumatoid arthritis and consequent kidney amyloidosis but, having submitted reports from her consultants, she was deemed sufficiently fit to adopt and care for a child.
· In November 2001, the couple adopted an 11 month old boy from the Ukraine. The child is now 9 years old and the couple say that they have had no problem in looking after him
· In 2001, the Department of Health and Children introduced stricter criteria for adoptions. The new Standardised Framework identified five standards that had to be met before a Declaration could be granted. The standard with regard to an applicant’s health status required that there was a reasonable expectation that they would continue to enjoy good health and be able to fulfill their duties to the child over its period of growing up.
· In November 2002, the couple applied again to be assessed for a further adoption and the assessment proper commenced in May 2003.
· By that point, the ICAS had engaged a dedicated Medical Advisor, Mr Paul Gueret to assess the health status of prospective adoptive parents. Dr Gueret was described as an expert in the field of life expectancy and in estimating morbidity and mortality.
· In the couple’s case, Dr Gueret sought fresh reports from their consultants and conducted a literature search on the internet on the mortality and morbidity experience associated with the female applicant’s condition. In January 2004, he concluded that a worldwide poor prognosis for someone with her condition meant that he was obliged to issue a negative recommendation to the ICAS with regard to her suitability to adopt.
· Regardless of whatever conclusion they arrive at, the ICAS is still required to submit applications to the Adoption Board for decision. In light of Dr Gueret’s views in this case and on the advice of the Board’s own Medical Advisor, the Adoption Board decided in May 2004 that the application should not proceed any further.
· The applicant couple then decided to appeal their case and submitted several updated positive reports from their principal consultant to the ICAS and the Adoption Board between May and November 2004.
· In 2005, the Adoption Board agreed to hear the appeal and first met separately with Dr Gueret and then the applicant couple. The appeal was eventually heard on 13 September 2005 but the couple were not invited to attend.
· The couple also state that at no time in this prolonged process were they ever given the opportunity to meet directly with Dr Gueret.
· Having considered the Appeal and having acquired their own medical reports on the female applicant’s condition, the Adoption Board wrote to the ICAS on 19 September 2005 stating:
“The Board considered this case at its meeting on the 13th September 2005. The Board decided that the applicants should be assessed further.”
· The case was then referred back to the ICAS who decided to seek fresh updated reports from the consultants and doctors who had previously been involved. The couple state that all of the fresh reports submitted pointed towards a positive prognosis from the complainant’s perspective. These were all received by 13 December 2005, at which point the file was referred back to Dr Gueret for further assessment.
· In April 2006, Dr Gueret again decided to issue a negative recommendation in the couple’s case on medical grounds.
· The couple state that they were never given access to Dr Gueret’s medical reports despite having asked for them on several occasions. It was only when they applied under FOI that they were eventually given his reports in July 2006.
4 Conclusions of the Equality Officer
4.1 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
In refuting the allegation of discrimination, the respondents refer to section 14 of the Equal Status Acts which provides that:
Nothing in this Act shall be construed as prohibiting the taking of any action that is required by or under any enactment or order of a court
In relying on this Section, the respondent submits that its actions in this matter are required under Sections 3(1) and 3(2) of the Child Care Act 1991 where:
Section 3(1) states “It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection”, and
Section 3(2) states “In the performance of this function, a health board shall …. regard the welfare of the child as the first and paramount consideration”.
In considering the claim that the respondent’s actions constituted an action that is required under
Sections 3(1) and 3(2) of the Child Care Act 1991 and is, therefore, not prohibited by the Equal Status Acts, I consider that this constitutes an attempt to place an over-reliance on very general provisions contained in the Child Care Act in order to circumvent the anti-discrimination provisions intended under Section 14 of the Equal Status Acts. Accordingly, I find that I cannot accept this argument.
The respondent also claims that they are required to assess suitability for adoption in accordance with Section 13 of the Adoption Act 1952 which states
” (1) The Board shall not make an adoption order unless satisfied that the applicant is of good moral character, has sufficient means to support the child and is a suitable person to have parental rights and duties in respect of the child.
(2) Where the applicants are a married couple, the Board shall satisfy itself as to the moral character and suitability of each of them. “
In considering the claim that the respondent was acting as required under the provisions of Section 13 of the Adoption Act 1952, and is therefore exempted under Section 14 of the Equal Status Acts, I find that this again constitutes an attempt to place an over-reliance on very general provisions contained in Section 13 of the Adoption Act 1952. The complaint before me revolves around the manner in which the complainants’ suitability to adopt was assessed and this is an action that is not specifically prescribed in the Adoption Act 1952.
4.2 In the case before me, the female applicant claims that she was discriminated against by the Intercountry Adoption Services on the grounds of her disability when she and her husband received a negative recommendation from the ICAS with regard to their suitability to adopt.
Section 3(2)(g) of the Equal Status Acts describes the disability ground as follows:
that one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”)
Section 4 of the Equal Status Acts provides that:
(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
4.3 In this particular case, in contending that they were treated less favourably than the manner in which a female applicant with a different disability would have been treated, the complainants are essentially introducing a hypothetical comparator into the equation. In support of their case, the complainants point to Dr Gueret’s own admission that he was not an expert in the field of rheumatoid arthritis or renal amyloidosis (the female applicants medical condition) and his failure to get a “peer review” of her case from another qualified medical consultant.
4.4 In considering whether the female applicant in this case suffered discrimination, I have noted the following:
· Dr Gueret, on his own admission, is not an expert on rheumatoid arthritis or renal amyloidosis. Dr Gueret is a recognised specialist in occupational medicine.
· Dr Gueret has stated that his decision on renal amyloidosis was primarily influenced by internet research
· Dr Gueret never personally met or contacted the applicant couple
· Dr Gueret, it would appear, never spoke directly to any of the medical consultants who had provided documentary evidence supporting the couple’s application, to discuss the specific nature of the female applicant’s medical condition
· The applicant couple were not provided with copies of Dr Gueret’s medical assessments to assist them in their appeals (these documents were only released under FOI in 2006)
· The respondents state that their file on the matter was with the Adoption Board from 2 April 2004 until its return on 4 October 2005. During this time, updated reports from Prof Bresnihan were sent to Dr Gueret and the ICAS but it is unclear whether they were eventually associated with the case file.
· When the case eventually went before the Adoption Board in September 2005, the respondents state that Dr Gueret met the Adoption Board and gave evidence where he explained his findings.
· On 13 September 2005, the Board, having considered Dr Gueret’s evidence and having sought and obtained the opinions of other medical specialists, decided not to make a final decision but instead decided that “the applicants should be assessed further”. This decision was communicated to the parties by letter dated 19 September 2005.
· The ICAS, on being told by the Adoption Board “that the applicants should be assessed further”, gave no apparent consideration to engaging a different medical expert but referred the matter straight back to Dr Gueret .
· When the case was referred back to Dr Gueret for further assessment in late 2005, it would appear that he was not given access to the advice and reports obtained by the Adoption Board. This is substantiated by Dr Gueret himself in a letter dated 13 May 2009 in which he says:
“The problem that caused me most concern when I reviewed the file in 2004-2006 was her renal function. It was mild-moderately impaired. Review of the scientific literature at the time suggested that survival studies from this disease (secondary renal amyloid) were not good. I am now aware that some of the studies I quoted at the time were called into question by other advisors to the adoption board. I did not have sight of these objections nor was I informed of the basis on which these objections were made. Indeed, I was not informed of the basis for any contra-argument, which I would have welcomed.”
4.5 In considering the case before me, I find that I have a grave concern over the manner in which the ICAS dealt with the case following the Adoption Board’s decision of 13 September 2005. I consider, from the evidence provided, that it is clear that the Adoption Board had reservations about Dr Gueret’s recommendation based on their own discussions with him and on the opinions they had received from other specialists and their own Medical Adviser.
However, when the matter was referred back to the ICAS, the file was simply returned to Dr Gueret for further assessment without, it would now appear, the benefit of access to the Adoption Board’s own medical reports and advice.
4.6 Under the provisions of the Equal Status Acts, discrimination is deemed to have occurred where a person with a disability is treated less favourably than a person with a different disability. As I have not been provided with any detailed information as to how the ICAS has treated other specific applicants with different disabilities, for the sake of completeness, I consider that it is worthwhile at this point to introduce a hypothetical comparator to assist in fully evaluating the circumstances of this case.
4.7 The Equal Status Acts provide for the use of a hypothetical comparator in Section 3(1)(a) where it states that discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation.”
4.8 In this particular case, I consider that it is appropriate and beneficial to draw a hypothetical comparison between the treatment afforded the female applicant in this case (with rheumatoid arthritis and renal amyloidosis) and an applicant with a different disability .
If the female applicant had presented with a condition on which Dr Gueret was an expert, I consider that Dr Gueret would have been the ideal choice to assess her case from start to finish. However, while Dr Gueret is undoubtedly a consultant of high repute and eminently capable of assessing patients with a wide range of disabilities and conditions, on his own admission, he is not an expert in the fields of rheumatoid arthritis and renal amyloidosis.
Yet the ICAS does not appear to have taken this fact into account when arranging for the reassessment requested by the Adoption Board. Accordingly, I consider that the ICAS’s decision to refer the matter back to Dr Gueret, instead of to a specialist in rheumatoid arthritis and renal amyloidosis, constituted discrimination in that it resulted in the female applicant, as a person with a disability, receiving less favourable treatment than a “a person with a different disability” would have received contrary to Section 3(1)(a) and Section 3(2)(g) of the Equal Status Acts.
4.9 As stated above, in light of the Adoption Board’s recommendation in this case, I consider that the onus was on the ICAS to source a separate independent opinion of the female applicant’s condition from a specialist or specialists in the fields of rheumatoid arthritis and renal amyloidosis and I find that its failure to do so also constituted “a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities” contrary to the provisions of Section 4 of the Equal Status Acts
With regard to the allegation of victimisation, I have deliberated at length on the evidence before me and find that, while there were delays in the process, that their is insufficient evidence to support the claim that these delays constituted a deliberate attempt to victimise the complainants.
5 Decision
5.1 I consider that the ICAS, in referring the matter back to Dr Gueret rather than engaging a specialist in the fields of rheumatoid arthritis and renal amyloidosis to review her case, treated the female complainant less favourably than they would have treated a female applicant who had presented with a different disability.
Accordingly, I find that the ICAS discriminated against the female complainant and also failed to provide her with reasonable accommodation, contrary to the provisions of Section 3(2)(g) and Section 4 of the Equal Status Acts.
5.2 As the principal objective of the complainants in this case would appear to be the advancement of their adoption application, I do not consider that monetary compensation is appropriate in this instance.
Instead, I order that the ICAS engage a different independent Medical Advisor with expertise in the medical conditions affecting the female complainant to completely reappraise the couples application from a medical perspective with a view to making a fresh recommendation to the Adoption Board . In order to expedite this process, I would suggest that all other measurements of the couple’s suitability to adopt should be deemed to have been already met and they should not be asked to submit any further updated non-medical documentation unless deemed to be absolutely essential.
The engagement of a Medical Adviser should be done in consultation with the complainants and the Adoption Board and the final choice should be of an individual with whom the complainants are happy to engage.
All parties are asked to engage actively and positively in this process with a view to having a final recommendation before the Adoption Board in good time to allow for a final decision to be made by 30 June 2010.
Brian O’Byrne
Equality Officer
DEC-S2007-090 – Full Case Report
Kearney v Budget Car and Van Rentals
1. Dispute
1.1 This dispute concerns a complaint by Mr. Mark Kearney that he was discriminated against by Budget Car and Van Rental on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Act, 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Act, 2000.
2. Summary of the Complainant’s Case
2.1 The complainant, who resides in England, suffers from a disability affecting his hands and feet and has a number of digits missing from each of these limbs. He is employed in the motor industry and through his work has had experience of driving a wide range of different types of vehicles. The complainant has held a full driving licence since 1978 and his disability does not require him to drive a specially modified or adapted car. The complainant and his girlfriend were due to attend a wedding in Ireland on 27th December, 2003 and he made a reservation for flights for them both to arrive into Shannon Airport on this date and to return to England on 29th December, 2003. This reservation was made through the Aer Lingus website on 28th October, 2003 and it also included a reservation for car hire with the respondent. The complainant received confirmation of the car hire reservation from the respondent by e-mail on 28th October, 2003. The complainant went to the respondent’s desk on arrival at Shannon Airport on 27th December, 2003 to collect the hire car that he had reserved and presented his full driving licence to the member of staff on duty. However, he was informed by Mr. Noel Daniels, Assistant Location Manager with the respondent, that there had been a mix up with the Aer Lingus reservation and that there wasn’t a car available for him. When the complainant argued that he had already paid for the car hire in advance and that he had confirmation of the reservation from the respondent, he was informed by Mr. Daniels that the car would have to be an automatic. Mr. Daniels then informed the complainant that no other company would hire a car to him and stated that the respondent couldn’t hire a car to him because he was disabled and that it was illegal to hire cars to people like him. The complainant stated that he became annoyed at this stage and was informed by Mr. Daniels on a number of occasions that the decision regarding whether or not to hire the car was not up to him.
2.2 The complainant’s girlfriend, Ms. Mary Sweeney, who was accompanying him on the trip, approached the respondent’s desk on becoming aware of the difficulties and was asked by Mr. Daniels if she had a full driving licence. When Ms. Sweeney responded that she didn’t have her driving licence with her, Mr. Daniels endeavoured to contact the Driver and Vehicle Licensing Agency (DVLA) in Swansea by telephone to verify details of her licence. While Mr. Daniels was trying to make contact with the DVLA, Ms. Sweeney found her driving licence and Mr. Daniels suggested that the car be hired to her as an alternative. The car that the complainant had reserved was subsequently hired to Ms. Sweeney, who stated that she was an inexperienced driver and therefore, was very uncomfortable having to drive the car throughout the duration of their stay in Ireland. The complainant informed Mr. Daniels that he was very unhappy with the treatment he had been afforded and indicated that he would be taking the matter further. The complainant stated that he has hired cars in other countries on numerous occasions in the past and that he has never encountered any difficulties in doing so because of his disability. The complainant submitted that Mr. Daniel’s decision to refuse to provide him with the hire car was taken purely on the basis of his disability and he contends that Mr. Daniels was clearly not qualified to make an assessment regarding his capability to drive a car. The complainant and his girlfriend were late for the wedding as a result of the difficulties that they had encountered with the respondent.
3. Summary of the Respondent’s Case
3.1 The respondent submitted that it has operated a car hire franchise for Budget Car Rental in a number of locations throughout Ireland and England since 1985. Mr. David O’Malley, Accountant for the respondent, outlined details of the requirements that a person must satisfy in order to hire a car from the respondent, namely the person must have an unendorsed full driving licence for two or more years and be between the age of 23 and 75 years. The respondent submitted that it is necessary in certain circumstances to make an assessment of a person that wishes to hire a car in order to determine if they are covered for insurance purposes to drive the vehicle. By way of example, the respondent submitted that it reserves the right to refuse service to a person that appears to be intoxicated or suffering from fatigue when they present at a location to collect the hire car. The respondent submitted that it provides a car hire service for people with disabilities and it confirmed that it is not necessary for a person with a disability to comply with any additional requirements in order to hire a car from it.
3.2 The respondent submitted that it was experiencing difficulties with reservations that had been made through the Aer Lingus website in December, 2003. The respondent did not have a record of the complainant’s reservation when he presented at its desk in Shannon Airport on 27th December, 2003 in order to collect the hire car. Mr. Noel Daniels, Assistant Location Manager, stated that he attended the complainant on this occasion and that the complainant provided him with confirmation of the reservation that he had made. Mr. Daniels was satisfied that the complainant had a valid reservation, however when he noticed that the complainant had a disability affecting his hands, it raised concerns regarding his ability to drive the type of car that he had reserved. Mr. Daniels informed the complainant about his concerns and explained that it would not be possible to hire a car to him until he obtained confirmation regarding the issue of the insurance cover from the respondent’s insurance company. However, it was not possible to obtain the required confirmation on this particular occasion as it was a Saturday during the Christmas holidays. Mr. Daniels subsequently decided that he could not hire the car to the complainant because of his concerns for the safety of the complainant and other road users and he emphatically denied that he informed the complainant that he wouldn’t hire a car to a person with a disability and that it was illegal to do so.
3.3 Mr. Daniels was aware that the complainant and his girlfriend were in a rush to get to the wedding and he made every effort to accommodate them and sought confirmation from Ms. Sweeney as to whether she had a full driving licence with her, so that the car could be hired to her instead of the complainant. When Ms. Sweeney confirmed that she didn’t have her licence, Mr. Daniels attempted to contact the DVLA in Swansea to verify details of her licence. However, during the course of this telephone conversation Ms. Sweeney located her licence and the car was subsequently hired out to her instead of the complainant. Mr. Daniels apologised to the complainant for any distress or inconvenience caused and explained that he was acting in the best interests of all concerned. Mr. Daniels stated that he was of the opinion that the complainant understood why he had taken this action, however the complainant did indicate that he would be referring the matter to the respondent’s head office. The respondent denies that it discriminated against the complainant on the grounds of his disability and submitted that the decision not to hire the car to him was taken purely on the basis of its concerns regarding the complainant’s insurance cover to drive the vehicle.
4. Conclusions of the Equality Officer
4.1 The complainant in this case has grounded his complaint on the basis of his stated disability. At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that he is covered by the relevant discriminatory ground i.e. in this case that he has a disability. (2) It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not disabled nor had a different disability. If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if his defence is to succeed.
4.2 The first test set out above is whether the complainant, Mark Kearney is covered by the disability ground, i.e. is he considered disabled according to the definition of disability set down by the Equal Status Acts, 2000-2004. In the Act
“disability” means —
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
The complainant suffers from a disability that affects his hands and feet and as a result is missing a number of digits from each of these limbs. I am satisfied that this condition constitutes a disability within the meaning set out above and that therefore, Mr. Kearney is a person with a disability within the terms of the Equal Status Acts, 2000-2004. This fact satisfies the first of the three criteria set out above.
4.3 The second test that of whether the incident complained of actually occurred is my next consideration. In this case it is not disputed by the parties that the complainant had a valid reservation to hire a car from the respondent and it is also common case that the respondent refused to provide the complainant with this car when he presented at its desk in Shannon Airport in order to collect the vehicle. Accordingly, this satisfies the second criterion set out above. The third criterion to be satisfied in order for the complainant to establish a prima facie case of discrimination is that of less favourable treatment, i.e. he must show that the treatment he received was less favourable than that which would have been given to another person in similar circumstances who either did not have a disability or had a different disability. The respondent accepts that the complainant had made a reservation to hire a car and that he satisfied all of the standard requirements it imposed on a person in order to make a valid reservation. When the complainant presented at the respondent’s desk in Shannon Airport on 27th December, 2003 it became apparent to Mr. Daniels that he had a disability. Mr. Daniels contends that he became concerned at this stage regarding the complainant’s capability to drive the car and whether or not he would be covered by the respondent’s insurance to drive the vehicle. The respondent submitted that Mr. Daniels was unable to obtain confirmation from the respondent’s insurance company regarding the complainant’s insurability and it was therefore decided not to hire the car to him. It is accepted by both parties that the respondent proceeded to hire the car to the complainant’s girlfriend who was not suffering from a disability. I am satisfied therefore that the complainant has established that he was treated less favourably than a person without a disability was in the same circumstances, as his girlfriend, a person without a disability, was provided with a hire car by the respondent while he was not. Accordingly, I find that the complainant has established a prima facie case of discrimination on the disability ground.
5. The Respondent’s Rebuttal
5.1 The respondent denies that it discriminated against the complainant on the grounds of his disability and submitted that the decision not to provide him with the hire car on the date in question was taken as a result of the fact it was unable to obtain clarification from its insurers that the complainant was covered to drive the vehicle. The respondent claims that it was acting in the best interests of all parties concerned and that it made every effort to accommodate the complainant and his girlfriend on this particular occasion. I have noted that when the complainant was making the reservation to hire the car from the respondent that he was not requested, or indeed obliged, to disclose that he had a disability. Having regard to the evidence adduced, I am satisfied that the complainant fully satisfied and complied with the standard requirements that were imposed by the respondent in order to make a valid reservation, namely that he held a valid unendorsed full driving licence at the time of the incident and that he was between the age of 23 and 75 years.
5.2 The respondent submitted that if a person with a disability requested the hire of a specially modified or adapted car that it would be necessary in those circumstances to disclose this information to its insurance company. However, I am satisfied that in the present case, the complainant had made a valid reservation to hire a standard unmodified car from the respondent, and I consider that he was fully capable of driving such a vehicle. This conclusion is substantiated by the fact that the complainant held a valid full driving licence to drive the category of vehicle that he sought to hire from the respondent at the time of the incident. I note that there is a dispute between the parties regarding the complainant’s contention that Mr. Daniels stated that he would not hire a car to a person with a disability and that it would be illegal to do so. Having carefully considered the evidence presented, I am satisfied, on the balance of probabilities, that Mr. Daniels did not intentionally set out to discriminate against the complainant and that he believed he was acting in good faith on the date in question when he sought to address the concerns he held regarding complainant’s insurability to drive the vehicle. However, I conclude that these concerns were totally ill-founded and misconceived, and were at variance with the standard requirements that the respondent imposed on a person in order to hire a car. In coming to this conclusion, I have noted that Mr. O’Malley, in his evidence, confirmed that a person with a disability was not required to comply with any additional requirements in order to hire a car from the respondent and also, that there weren’t any additional insurance implications for the respondent when a vehicle was being hired by a person with a disability.
5.3 Having regard to the fact that the complainant fully satisfied all of the standard requirements that were imposed by the respondent in order to hire a car, I am of the view that the vehicle should have been made available to him on his arrival at Shannon Airport. It is clear that there was a hire car available at that particular time as it was subsequently made available to the complainant’s girlfriend. In the circumstances, I find that the decision taken by Mr. Daniels, who was acting on behalf of the respondent, not to honour the complainant’s reservation and provide him with the hire car that he had reserved was clearly based on the grounds of his disability. In the circumstances, I find that the respondent has failed to rebut the prima facie case of discrimination against the complainant on the disability ground.
6. Decision
6.1 On the basis of the foregoing, I find that the complainant was discriminated against by the respondent in terms of Section 3(1) and 3(2)(g) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act.
6.2 In accordance with section 27(1)(a) of the Act, I hereby order that the respondent pay the complainant the sum of €4,500 within 42 days of the date of this decision. I further order, in accordance with Section 27(1)(b) of the Act, that the respondent arrange for comprehensive training of all members of staff in the terms and application of the Equal Status Acts, 2000-2004, with such training to have commenced within three months from the date of this Decision.
Enda Murphy
Equality Officer
20th December, 2007
Equal Status Act 2000
EQUALITY OFFICER DECISION NO: DEC – S2001-020
Maughan v The Glimmer Man Ltd
File Ref: ES/2001/024
Date of Issue: 18th December, 2001
Table of Contents
Summary 3
Dispute and Background 4
Summary of Complainant’s Case 4
Summary of Respondent’s Case 6
Issues for Consideration 7
Evidence at Oral Hearing 7
Prima Facie Case 8
Conclusions of Equality Officer 10
– Family Status 10
– Membership of the Traveller Community 14
– Disability 15
Decision 18
Summary of Decision DEC-S2001-020
Mr John Maughan
(Represented by The Equality Authority)
-vThe
Glimmer Man Ltd
(Represented by McKeever Rowan, Solicitors)
Headnotes
Equal Status Act 2000 – direct discrimination – section 3(1)(a) – three grounds claimed under
section 3(2) – family status 3(2)(c) – disability 3(2)(g)- membership of the Traveller community
3(2)(i) – section 5(1) – refusal of service in a pub – prima facie evidence – section 15 defence.
Background
The complainant is visually impaired and claimed that on 2nd November, 2000, at 4.15 p.m.
approximately, he entered the Glimmer Man pub with his wife (who is also visually impaired but not
as severely as the complainant) his thirteen year old son and his guide dog. The complainant claimed
that he was refused service contrary to the Equal Status Act, 2000, because of i) his family status,
ii) his disability and iii) his membership of the Traveller community.
The respondent claimed that the complainant was not discriminated against contrary to the Act on
the three grounds. It claimed that the reason the complainant was refused service was because it
has a no children policy and the complainant’s son kept coming into the pub while the complainant
was being served there. It claimed that in having a no children policy it is acting in good faith for the
sole purpose of ensuring compliance with the Licensing Acts and is not in breach of the Equal Status
Act, 2000. The respondent also claimed that when parents are consuming alcohol they tend not to
supervise their children properly and that its no children policy is also designed to prevent disorderly
conduct on its premises.
Conclusions of Equality Officer
The Equality Officer was satisfied that the complainant established prima facie evidence of
discrimination on the three grounds claimed. The Equality Officer found that the respondent did not
succeed in rebutting the inference of discrimination on the family status ground but that the
respondent did rebut the inferences of discrimination on the disability and membership of the
Traveller community grounds.
Decision
The Equality Officer found that The Glimmer Man Ltd discriminated against the Mr John Maughan
on the basis of his family status but that it did not discriminate against him on the basis of his disability
or his membership of the Traveller community.
Equality Officer Decision DEC-S2001-020
Complaint under the Equal Status Act 2000
Mr John Maughan
(Represented by The Equality Authority)
-vThe
Glimmer Man Ltd
(Represented by McKeever Rowan, Solicitors)
DISPUTE AND BACKGROUND
1. The complainant is visually impaired and claimed that on 2nd November, 2000, he entered
the Glimmer Man pub with his wife (who is also visually impaired but not as severely as the
complainant) his thirteen year old son and his guide dog. The complainant claimed that he
was refused service contrary to the Equal Status Act, 2000 because of i) his membership of
the Traveller community, ii) his disability and iii) his family status.
The respondent claimed that the complainant was not discriminated against contrary to the
Act on the grounds claimed. It claimed that the reason the complainant was refused service
was because it has a no children policy and the complainant’s son kept coming into the pub
while the complainant was being served there. It claimed that in having a no children policy
it is acting in good faith for the sole purpose of ensuring compliance with the Licensing Acts
and is not in breach of the Equal Status Act, 2000. The respondent also claimed that when
parents are consuming alcohol they tend not to supervise their children properly and that its
no children policy is also designed to prevent disorderly conduct on its premises.
Any documents received were copied to both parties and an oral hearing was held on 24th
April, 2001.
SUMMARY OF COMPLAINANT’S CASE
2. The complainant claims that at 4.15 p.m. approximately on Thursday, 2nd November,
2000, when he entered the Glimmer Man pub with his wife, Margaret, thirteen year old son,
Martin, and his guide dog, the following occurred:
His party approached the bar and they sat down on bar stools.
There were other customers in the pub.
There were three bar staff on duty that day, one male and two females.
He asked the barman for 2 pints of Carlsberg which were for himself and his wife.
The barman replied that he could not serve him because the pub had a no children
policy.
The complainant then sent his son home and his son did not return to the pub.
The complainant was still not served by the barman so he asked to speak to the bar
manager.
At that stage he began talking to the younger of the female bar staff who told his wife her
name was Aisling.
Aisling told him that she couldn’t serve him because the pub serves food and doesn’t
allow dogs on the premises in case dog hairs get into the food.
The complainant then showed Aisling a card which stated that guide dogs are allowed
entry to restaurants, food shops and other food premises.
Aisling then said “this is a drinking house, I suppose you want one”.
The complainant and his wife were then served one pint each and subsequently received
a second pint each when they had finished the first.
During the time when the complainant was drinking his two pints he asked Aisling
whether the reason he had difficulty being served was because of his membership of the
Traveller community. Aisling replied that this was not the reason and that the reason
was because of the risk of dog hairs getting into the food.
When the complainant sought to order a third pint for himself and his wife he was
ignored by the bar staff. Up until this point the staff had been polite to him at all times.
After about half an hour trying to be served a third pint he and his wife left the pub.
2.1 Mrs Margaret Maughan, the complainant’s wife, and their son, Martin, gave evidence at the
hearing in support of the complainant’s version of events.
2.2 The complainant claimed that he was discriminated against by the respondent on the basis of
i) his family status, ii) his disability and iii) his membership of the Traveller community. The
complainant originally claimed that he was also harassed by the respondent on each of these
grounds but he withdrew his allegations of harassment at the oral hearing.
2.3 In relation to the family status ground the complainant claimed that the respondent has a no
children policy and that the respondent would not serve him while his son was in the pub.
He claimed that this is in breach of the Act. He claimed that nothing in the Licensing Acts
prohibit children from being in pubs at the same time as their parents and that section 34(2)
of the Intoxicating Liquor Act, 1998, makes it legal for a child to be in a pub at the same
time as its parents.
2.4 In relation to the disability ground the complainant claimed that he suffered less favourable
treatment than someone with no guide dog would have received. He claimed that the reason
for this was that the respondent initially refused to serve him because of his guide dog and he
was only served when he produced the card. The complainant’s representative provided in
evidence some material which it claimed makes it legal for people with guide dogs to be
served in pubs, restaurants, etc. The material was a copy of a letter from the Department of
Health and Children, enclosing:
i) a copy of section 25 of the Food Hygiene Regulations, 1950,
ii) a circular dated December 2000, from the Department of Health
and Children to the Chief Executive Officer of each health board, and
iii) a circular dated 7th June, 1991, from the Department of Health to
the Chief Executive Officer of each health board.
On the membership of the Traveller community ground the complainant claimed that the staff
on duty would have recognised him to be a member of the Traveller community and that this
was part of the reason why he was refused service.
SUMMARY OF RESPONDENT’S CASE
3. Mr William Fortune said that he is the owner of the Glimmer Man public house for the past
eleven years. He claimed that on 2nd November, 2000, when the incidents complained of
occurred:
He was not on duty himself.
His wife, Mrs Ita Fortune, and a bar man called Mr Stuart Kelly were the only staff on
duty at the time.
Nobody named Aisling was working in the pub and nobody of that name ever worked
there.
When the complainant’s party first entered the pub they were told that they would not be
served because children were not allowed on the premises.
The complainant sent his son outside the pub.
The complainant and his wife were served a pint each.
The complainant’s son came back into the pub and service was again refused when the
complainant ordered a second round of drinks.
The complainant sent his son back outside and he and his wife were served a second
pint each.
The same thing happened again when the complainant sought and received a third pint.
It was raining outside and on each occasion when the complainant’s son came back into
the pub he became more agitated and insistent that his parents leave the pub and go
home.
The complainant became abusive when a fourth pint was refused to him and his wife.
Action taken in good faith by a publican for the sole purpose of ensuring compliance
with the Licensing Acts is permitted under section 15(2) of the Equal Status Act, 2000.
The complainant was refused service because a child under his care was on the
premises while he was consuming alcohol. The policy not to allow children on the
premises is for two main reasons which are in keeping with section 15(2):
i. The respondent is conscious of the obligations which the Licensing Acts,
1833-1999, place on it regarding the consumption of alcohol on the premises by
under eighteen year olds. Its policy of not allowing children on the premises is
designed to prevent a potential breach of the terms of its pub license. The
respondent stated that in particular sections 34 and 35 of the Intoxicating Liquor
Act, 1988 are appropriate in this regard.
ii. Adults having charge of children are consuming alcohol and tend not to
adequately supervise the children, which may endanger the childrens’ safety, and
also be troublesome for customers and staff alike. During his eleven years as
owner of the Glimmer Man pub he has found from experience that children are
likely to engage in disorderly conduct or behaviour when left without supervision
in such circumstances. The respondent claimed that section 13 of the 1872
Licensing Act deals with public order offences and is appropriate in this regard.
The staff on duty did not see the complainant come into the pub and at the time when he
first sought service they did not know that he had a guide dog with him. This was
because when the complainant was sitting at the bar the dog was lying down and was
not visible to the staff from behind the bar.
Although after the complainant had been served the bar staff became aware of the guide
dog’s presence there was no discussion between the complainant and any of the staff on
duty to the effect that he could not be served in case dog hairs got into the food.
No card was produced by the complainant stating guide dogs are allowed entry to
restaurants etc. and the dog was not a factor in the complainant’s refusal. The pub only
serves pre packed food, i.e. sandwiches, crisps, peanuts etc., so hygiene was not an
issue.
There was never any mention of the complainant being a member of the Traveller
community until he brought it up himself when he was leaving the premises.
Mrs Ita Fortune and Mr Stuart Kelly gave evidence at the hearing in support of the
respondent’s version of events.
ISSUES FOR CONSIDERATION
4. Section 3(1)(a) of the Equal Status Act, 2000, provides, inter alia, that discrimination shall
be taken to occur where –
“on any of the grounds specified in subsection (2) ….. a person is treated less
favourably than another person is, has been or would be treated”.
Section 3(2) provides that the discriminatory grounds include the family status ground,
disability ground and membership of the Traveller community ground.
Section 5(1) of the Act provides that:
“A person shall not discriminate in disposing of goods to the public generally
or a section of the public or in providing a service, whether the disposal or
provision is for consideration or otherwise and whether the service provided
can be availed of only by a section of the public”.
The issues for consideration in this complaint are whether or not The Glimmer Man Ltd
discriminated against Mr John Maughan on the basis of the grounds claimed, in terms of
section 3(1)(a) and contrary to section 5(1) of the Equal Status Act, 2000, on 2nd
November, 2000. In reaching my decision in this case I have taken account of all of the
submissions, both oral and written, made to me by both parties.
EVIDENCE AT ORAL HEARING
5. At the oral hearing the respondent’s representative objected to the way in which the
witnesses for the parties gave their evidence because they were not required to provide
sworn evidence. He also objected to the evidence of the parties being referred to as
“evidence” and claimed that the word “statement” was more appropriate.
I have considered this matter and in my view the case of Kiely v Minister for Social
Welfare (1977) I.R. 276 is particularly relevant. As Henchy J. stated:
“Tribunals exercising quasi-judicial functions are frequently allowed to act
informally – to receive unsworn evidence, to act on hearsay, to depart from
the normal rules of evidence, to ignore courtroom procedures, and the like –
but they may not act in such a way as to imperil a fair hearing or a fair
result”.
I am satisfied that the oral hearing was conducted in accordance with the principles of
natural and constitutional justice. I am also satisfied that the absence of sworn evidence did
not prejudice either party or imperil a fair result in any way.
PRIMA FACIE CASE
6. For the complainant’s claim to be upheld on any of the grounds claimed he has to establish
prima facie evidence of discrimination on that ground. In order for the complainant to
establish prima facie evidence on a ground he has to show that he was treated less
favourably than someone in the same circumstances who is not covered by that ground. If
he succeeds in establishing prima facie evidence on a ground, the burden of proof then shifts
to the respondent to rebut the inference of discrimination on that ground.
The complainant claimed that he was discriminated against on the family status, disability and
membership of the Traveller community grounds.
Family Status
6.1 Section 2(1) of the act defines family status, inter alia, as meaning:
“Being pregnant or having responsibility-
(a) as a parent or as a person in loco parentis in relation to
a person who has not attained the age of 18 years,”.
Both parties agree that when the complainant first entered the pub his thirteen year old son
was with him. I am therefore satisfied that the complainant is covered by the family status
ground.
Disability
6.2 Disability is defined in section 2(1) of the Act as:
“(a) the total or partial absence of a person’s bodily or mental
functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a
person’s body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or malfunction,
or
(e) a condition, disease or illness which affects a person’s thought
processes, perception of reality, emotions or judgement or
which results in disturbed behaviour”.
The complainant claims that because of his visual impairment he falls within the scope of this
definition and I accept that this is the case.
Membership of the Traveller Community
6.3 Section 2(1) states that “Traveller community” means:
“the community of people who are commonly called Travellers and who are
identified (both by themselves and others) as people with a shared history,
culture and traditions, including historically, a nomadic way of life on the
island of Ireland.
At the oral hearing the complainant stated that although he does not lead a nomadic lifestyle
at the moment he did so in the past with his parents for a time. He said that he has always
considered himself to be a member of the Traveller community and that his relatives also
identify themselves as Travellers. He said that he lived on a halting site for a number of
years and I consider that he is a member of the Traveller community within the meaning
defined in the Act.
Number of Refusals
6.4 I have noted in this case that the parties agree that at least two refusals of service took
place. The first agreed refusal occurred when the complainant was told he could not be
served because of the no children policy. The second agreed refusal occurred, according to
the complainant, after he was served two pints but the respondent claims that it occurred
after the complainant was served three pints.
The complainant claims that a third refusal of service also took place in between the two
agreed refusals. He claims that the third refusal occurred after his son had left the pub when
he was then told that he could still not be served in case his guide dog’s hairs got into the
food.
The respondent denies that the third alleged refusal occurred but it claims that a number of
other refusals occurred because the complainant’s son kept coming back into the pub after
the complainant had received service. The complainant denies this and claims that his son
went straight home and did not return to the pub.
6.5 Having satisfied myself that the complainant is covered by the three grounds claimed I now
have to consider whether he has established prima facie evidence of discrimination on any of
the grounds claimed when any of the refusals, including the refusals alleged by both parties,
occurred. Both parties agree that when the complainant first entered the pub other people
were being served there at the time. It is agreed that none of them were blind and none of
them were known to be members of the Traveller community. It is also agreed that the
respondent has a no children policy. In these circumstances I am satisfied that the
complainant has established prima facie evidence of discrimination on the three grounds
claimed. It now falls to the respondent to rebut the inference of discrimination on the three
grounds.
CONCLUSIONS OF EQUALITY OFFICER
7. I will now examine the complaint on each of the grounds claimed.
Family Status
7.1 The respondent accepts that it has a no children policy and that it has signs up in the pub to
this effect. To avoid any confusion it is important to note what the respondent’s no children
policy means in practical terms. Its policy is not to always refuse service to parents of
children under 18 years old and only to serve people who have no children under that age.
It does not differentiate between parents and non parents in this way. Rather, its policy is to
refuse parents service when their children under 18 years old are with them on its premises
at the same time. Once the children are no longer on the premises the parents will then be
served in normal circumstances. The respondent claimed that its no children policy applies
to all children no matter what their age i.e. from 1 day to 17 years and 364 days. At the
oral hearing the respondent said that the only circumstances where he might consider serving
parents with children was if the parents did not consume alcohol. However, I got the
impression that the respondent was not very definite about this and he did not state whether
this had ever happened since he introduced his no children policy.
7.2 The complainant has claimed that he was discriminated against by the respondent on the
basis of his family status in that he was unable to avail of the service provided by the
respondent when his son was with him. He claimed that as someone with family status,
within the definition in the Act, that he received less favourable treatment than someone with
no family status i.e. someone who sought service with no children with them, in that he was
initially refused service because his son was with him and the only way the respondent would
serve him was if his son left the pub. He claims that this constitutes discrimination as defined
in the Act.
Section 15(2) of the Act states:
“Action taken in good faith by or on behalf of the holder of a licence or other
authorisation which permits the sale of intoxicating liquor, for the sole
purpose of ensuring compliance with the provisions of the Licensing Acts,
1833 to 1999, shall not constitute discrimination”.
I have noted that the respondent invoked the section 15(2) defence. It claimed that its
reasons for having a no children policy are basically that it is acting in good faith for the sole
purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999. In
particular it is conscious of its obligations to ensure that under 18 year olds do not consume
alcohol on its premises and it is relying on sections 34 and 35 of the Intoxicating Liquor Act,
1988, in this regard. The respondent also claimed that parents tend not to properly
supervise their children when consuming alcohol themselves and that this can result in trouble
for staff and other customers and danger to the childrens’ safety. The respondent claimed
that it was also trying to ensure compliance with section 13 of the 1872 Licensing Act in this
regard.
7.3 I have studied carefully all of the legislation which the respondent quoted. I have also noted
that at the oral hearing the complainant’s representative claimed that nothing in the Licensing
Acts prohibits children from being in pubs with their parents. The complainant’s
representative also claimed that section 34(2) of the Intoxicating Liquor Act, 1998,
specifically allows children to be in pubs when accompanied by their parents. On this point
I have checked the Licensing Acts and there does not appear to be an Intoxicating Liquor
Act, 1998, so I am taking it that the complainant’s representative was actually referring to
the Intoxicating Liquor Act, 1988, and not 1998, as stated.
Section 34(1) of the Intoxicating Liquor Act, 1988, states that:
“Subject to subsection (2) of this section, the holder of a licence of any
licensed premises shall not allow a child to be at any time in the bar of his
licensed premises”.
Section 34(2) of the Intoxicating Liquor Act, 1988, states that:
“It shall not be unlawful for the holder of a licence of any licensed premises to
allow a child to be in the bar of his licensed premises at any time (other than a
time during which the sale of intoxicating liquor is prohibited under the Act) if
such child is accompanied by his parent or guardian”.
I have noted that section 34(1) states that it is subject to section 34(2). On the basis of the
evidence presented it is clear to me that 34(2) of the Intoxicating Liquor Act, 1998, allows
children to be in licensed premises when accompanied by a parent at any time, other than
when the sale of intoxicating liquor is prohibited i.e. before opening time, after closing time,
etc.. In this particular case the complainant sought to receive service from the respondent at
4.15 p.m. approximately, on Thursday, 2nd November, 2000. I have noted that both
parties agree that the complainant was served after his son left the pub and that no evidence
was presented that the sale of alcohol was prohibited at that time. I am satisfied that the sale
of intoxicating liquor was not prohibited by the Licensing Acts at that time.
I have also studied the other subsections of section 34 and section 35 in its entirety. I am
satisfied that nothing in these prohibit children from being in licensed premises with their
parents.
7.4 It is accepted by both sides that the respondent or its staff did not know the complainant’s
party before they came into the pub on 2nd November, 2000. Accordingly, I consider
that the staff on duty had no basis for assuming that the complainant would attempt to give
alcohol to his thirteen year old son. The respondent did not raise this point as an issue in
relation to the complainant specifically and claimed that its no children policy was designed
to ensure that no under 18 year olds consume alcohol on its premises.
7.5 I acknowledge that publicans are obliged by the Licensing Acts not to serve alcohol to
people under 18 years old and that they are entitled to put procedures in place to ensure
that under 18 year olds are not served alcohol. Although I consider the respondent in this
case is to be commended for having a rigorous policy not to serve alcohol to under 18 year
olds I can see no basis for using sections 34 and 35 of the Intoxicating Liquor Act, 1998,
for refusing to serve parents while their children under 18 years are present on the premises
at the same time. In this case I also consider that the respondent’s staff could not have been
acting in good faith under section 15(2) to ensure compliance with these parts of the
Licensing Acts by refusing service to the complainant. This is because they had no previous
knowledge of him or the rest of his party and I have not been convinced that they had any
basis for assuming that any breaches of these parts of the Licensing Acts would occur.
7.6 Section 13 of the 1872 Licensing Act, states:
“If any licensed person permits drunkenness or any violent, quarrelsome, or
riotous conduct to take place on his premises, or sells any intoxicating liquor
to any drunken person, he shall be liable to a penalty not exceeding for the
first offence ten pounds, and not exceeding for the second and any subsequent
offence twenty pounds. Any conviction for an offence under this section shall
be recorded on the license of the person convicted, unless the convicting
magistrate or justices shall otherwise direct”.
I have considered this piece of legislation in conjunction with sections 15(1) and 15(2) of the
Act and I am satisfied they cannot legitimately be used in good faith by the respondent as a
reason for refusing service to the complainant. This is because a reasonable person, having
the responsibility, knowledge or experience of the complainant and his party, would not
have believed that there was any danger of disorder, criminal conduct or damage to
property at or in the vicinity of the pub. I am also satisfied that a reasonable person would
not believe there was a risk of drunkenness, violent, quarrelsome or riotous behaviour in
serving the complainant when he first sought service in the pub with his son. As stated
earlier the respondent’s staff had no previous knowledge of the complainant’s party before
they entered the pub and no evidence was presented to the effect that the staff on duty
suspected that any of the party would be in any way disorderly. Although Mr Kelly said in
oral evidence that he thought the complainant had drink taken when he first came into the
pub this point was denied by the complainant and was not substantiated in any way by the
respondent. I note that the respondent’s solicitor did not mention it as a reason for the
complainant’s refusal in the letter which was sent to me dated 19th February, 2001.
7.7 I am satisfied that the respondent has failed to rebut the inference of discrimination on the
family status ground. The only way the complainant could receive service from the
respondent was to send his son outside the pub. I consider that having a blanket ban on
under 18 year olds being in pubs with their parents is a discriminatory policy against parents
of under 18 year olds on the family status ground under the Equal Status Act, 2000. I am
satisfied that the complainant was treated less favourably by the respondent and that the
respondent directly discriminated against him on the basis of his family status.
7.8 Although there are strong moral and social arguments why parents should not bring children
under 18 years old into pubs with them I consider that under current legislation parents are
entitled to bring their children into licensed premises with them if they wish. However, my
findings on this point should not be interpreted as meaning that publicans must serve parents
when accompanied by their children under 18 years old in all circumstances. This is
because the Licensing Acts require publicans to run orderly houses and to ensure that under
18 year olds do not consume alcohol on their premises. The Equal Status Act, 2000, has
not changed their obligations in this regard.
It is important for publicans to note that there are provisions in the Equal Status Act which
allow them to refuse service to parents who are accompanied by their children under 18
years old. For example, as mentioned earlier, under section 15(2) of the Act where
publicans act in good faith for the sole purpose of ensuring compliance with the Licensing
Acts they can refuse service and not be in breach of the Equal Status Act, 2000. Although
the respondent in this case unsuccessfully invoked the section 15(2) defence there are
situations where I consider it could be successfully invoked. For instance if a publican saw
an under 18 year old consuming alcohol on the premises when accompanied by a parent
then the publican could be entitled to refuse service. Similarly a publican could be entitled to
refuse service in other situations such as if a parent was drunk or if a parent or under 18
year old were disorderly. I consider that publicans could also successfully invoke other
defences contained in the Act but the important point for them to note is that they cannot
have blanket bans on parents who seek service when accompanied by children under 18
years old.
7.9 I now have to consider whether the complainant was discriminated against by the
respondent on this ground at any other time on 2nd November, 2000. In this regard I have
noted that the respondent has alleged that the complainant’s son kept coming back into the
pub after he first left and that the complainant was refused further service on each occasion
when this occurred. The respondent claimed that the complainant became abusive when he
was refused a fourth pint for this reason. The respondent also claimed that this was why he
was refused further service. I have also noted that the complainant denies the respondent’s
version of events and claims that his son went straight home and did not return.
7.10 Having considered this point carefully I consider that it essentially boils down to the word of
one party against the other and that the evidence is inconclusive as to who is correct.
Accordingly, I cannot find that further discrimination occurred on the family status ground.
In any event the complainant claimed that his son did not return to the pub. I consider that if
I were to accept his word in this regard I could not find that any of the further alleged
refusals were based on his family status. This is because no evidence was presented to the
effect that the respondent has a policy to refuse service to parents when their children under
18 years old are not on the premises with them at the same time.
Membership of the Traveller Community
8. I will now deal with the complainant’s claim of discrimination on the membership of the
Traveller community ground.
8.1 There is a conflict between the parties as to how many staff were on duty that day. The two
witnesses who the respondent accepts were there, Mrs Fortune and Mr Kelly, both stated
at the hearing that they did not know that the complainant was a member of the Traveller
community until he raised this point himself when he was leaving the pub after the second
agreed refusal occurred. Their perception is particularly important because they were the
ones who decided to refuse service to the complainant.
8.2 Both parties agree that the complainant was never in the pub before 2nd November, 2000,
but the complainant claimed that the staff on duty would have known he was a Traveller
because it is possible to tell Travellers from non Travellers by their appearance. I believe in
some cases it will be obvious whether someone is covered by a ground covered by the Act.
For example, I consider it was obvious to the respondent’s staff that the complainant was
covered by the family status ground because his thirteen year old son was with him when he
sought service. However, having said this I accept that there are circumstances where
respondents may have some difficulty identifying people who claim to be covered by the
membership of the Traveller community ground.
8.3 The complainant’s representative claimed at the oral hearing that although there was no
direct evidence of discrimination on the Traveller ground that there rarely is in discrimination
cases and that inferences of discrimination can be used to establish that discrimination
occurred. The complainant’s representative also claimed that there was no other apparent
reason for the way the complainant was treated and that this fact contributed to showing that
he was discriminated on the membership of the Traveller community ground. I do not
accept that the claim of the complainant’s representative in this regard is correct. This is
because the complainant has also claimed that he was discriminated against on the disability
and family status grounds and it is clear, therefore, that there could have been other reasons
for the way he was treated.
8.4 No other evidence was presented to the effect that the respondent’s staff knew the
complainant was a member of the Traveller community before he mentioned this fact to
them. On the balance of probabilities I am satisfied that the respondent’s staff, regardless of
whether it was two or three of them, did not know the complainant was a member of the
Traveller community from his appearance or demeanour when the first refusal occurred. I
consider that the respondent has succeeded in rebutting the inference of discrimination up
until the time when the complainant made it known to the respondent’s staff that he is a
member of the Traveller community.
8.5 Both sides agree that after the complainant had been served he disclosed to the
respondent’s staff that he was a member of the Traveller community. I consider that the
position after this fact was made known warrants further investigation and that the timing of
the complainant’s disclosure in this regard is important.
8.6 The key question which needs to be determined is exactly when the complainant told the
respondent’s staff that he is a member of the Traveller community – was it before or after the
respondent decided to refuse further service to the complainant. This is crucial because
from the point of disclosure onwards there is no doubt that the respondent’s staff were
aware that the complainant was a member of the Traveller community and from that point
onwards the respondent has to show that it did not act unlawfully. I have noted that the
parties disagree as to when the complainant made this fact known. The complainant claimed
that it was before service was finally refused but the respondent claimed that it was after the
complainant was refused service as he was leaving the pub.
On the balance of probabilities I am satisfied that the staff did not know the complainant was
a member of the Traveller community until after the decision had been made to refuse him
further service. Accordingly, the respondent has succeeded in rebutting the inference of
discrimination in relation to the membership of the Traveller community ground.
Disability
9. The complainant claims that after his son left the pub he was still not served so he asked to
speak to the manager. He claims that one of the female bar staff named Aisling then told
him that the reason he was not being served was in case his guide dog’s hairs got into the
food. The complainant claims that he then produced a card which stated that guide dogs are
allowed entry to restaurants, food shops and other food premises and that he was then
served. This card was produced at the oral hearing and I am satisfied that it was issued to
the complainant by Irish Guide Dogs for the Blind and not the Minister for the Environment
or the Environmental Officers Association as stated by the complainant in his written
submissions.
9.1 The complainant’s version of events is disputed by the respondent. It claims that the
complainant was served after his son left the pub and that the complainant was not refused
because of his guide dog. It claims that this was because its staff did not know the
complainant had a guide dog at that stage as its staff did not see the complainant come into
the pub and the dog was not visible from behind the bar when the staff were first dealing
with the complainant. It also claims that none of the comments which the complainant
alleges were made and that the complainant did not produce a card from the Minister for the
Environment or anyone else. The respondent also claims that only two staff were on duty
and that it never employed anyone named Aisling.
9.2 In considering the complainant’s claims about this alleged refusal I am conscious that there is
a major conflict in the evidence of the two parties and although both sides had witnesses to
support their evidence none of these could be considered to be totally independent. In these
circumstances I have to judge whose account I consider to be the most credible and I have
taken into account all of the evidence provided.
I have noted in particular that the letter dated 19th February, 2001, from the respondent’s
representative stated that there were complaints from other customers about the guide dog
but at the oral hearing Mr Kelly stated that there were no such complaints. I have also
noted that the letter dated 19th February, 2001, also stated that the complainant was
abusive when he was told his son would have to leave before he could be served but Mrs
Fortune said at the oral hearing that he was not abusive at that time. As both of these
inconsistencies relate to around the time when the complainant alleges this refusal occurred I
consider that they are pertinent to this issue and that they are not helpful to the respondent’s
case.
9.3 In reaching my conclusions in relation to this ground I have also taken into account that Mr
Fortune said at the oral hearing that until this complaint under the Equal Status Act, 2000,
was brought to his attention he had a policy not to allow dogs, including guide dogs, in his
pub. Mr Fortune said that although he had never refused service to someone with a guide
dog before that he would have done so if someone with a guide dog came into his pub. He
said that his no dogs policy came about because one of his customers used to bring a dog
(not a guide dog) into the pub and it was a bit of a hazard because it tended to get in the
way of other customers. Mr Fortune also said that because the only food which the pub
serves is pre packed sandwiches, crisps, peanuts etc., food hygiene was not a contributory
factor in his policy to ban dogs from the pub.
9.4 I consider that Mr Fortune’s evidence on this point is significant and lends credibility to the
complainant’s version of events. In this case the complainant brought his guide dog into a
pub which had a policy not to serve people with dogs, including guide dogs. Although Mr
Fortune also stressed that he never had to enforce this policy I am, nevertheless, satisfied
that the respondent’s staff were aware of the no dogs policy and that they automatically
refused to serve the complainant initially because of it.
9.5 On the basis of the evidence presented I consider that the respondent’s staff saw the
complainant coming into the pub with his dog. I also consider that after the complainant’s
son had left the pub a female member of the bar staff told the complainant that he still could
not be served in case his dog’s hairs got into the food. I am satisfied that the reason the
complainant was refused at this point was because the staff were aware of the respondent’s
no dogs policy. I consider that the complainant then produced the card from Irish Guide
Dogs for the Blind which stated “Guide Dogs are allowed entry to Restaurants, Food
Shops and other Food Premises. Their very special training means that they are not a
risk to hygiene in such premises”. In my opinion, the staff may not have known for
certain until then that the dog was a guide dog and I noted at the hearing that the parties
disagreed as to whether the dog was in a harness and whether the complainant had a white
cane. However, once the card was produced there could have been little doubt that the dog
was a guide dog. I am satisfied that the card sparked a doubt in their minds as to whether
the no dogs policy extended to guide dogs. The staff then decided to serve the complainant
because of the doubts which they had.
9.6 At the oral hearing the complainant claimed that he was discriminated against on the
disability ground because although he was eventually served, he was initially refused service
because of his guide dog. He claimed that this amounted to less favourable treatment on the
disability ground. Having clarified what I consider to have happened I now have to
determine whether the refusal of service before the card was produced constitutes less
favourable treatment on the disability ground.
9.7 In reaching my conclusions on this ground I am satisfied that if a person brought a dog,
which was not a guide dog, into the respondent’s premises they would not have been served
in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant
was not treated less favourably because he was treated the same as anyone else with a dog
would have been treated. However, because of his visual impairment the complainant was
not in the same circumstances as someone else with a dog who was not visually impaired.
This difference is important and to quote the European Court of Justice ruling in the case of
Gillespie and others v Northern Health and Social Services Boards and others (Case
no. C-342/93) “ discrimination involves the application of different rules to
comparable situations, or the application of the same rules to different situations”.
This principle is supported by the ruling in the US Supreme Court case of Jenness v
Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O’Brien
v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38). I believe that
section 4 of the Act is relevant on this point.
Section 4 of the Act states, inter alia:
“(1) For the purposes of this Act discrimination includes a refusal or failure
by the provider of a service to do all that is reasonable to accommodate the
needs of a person with a disability by providing special treatment or facilities,
if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which
subsection (1) refers shall not be deemed reasonable unless such provision
would give rise to a cost, other than a nominal cost, to the provider of the
service in question”.
I consider that allowing a guide dog into a pub with a visually impaired person is
special treatment without which it would be impossible or unduly difficult for the visually
impaired person to avail of the service. The respondent did not raise the question of nominal
cost and no evidence was presented to suggest that allowing a guide dog into a pub would
involve expenditure for the respondent.
9.8 I consider that by showing the card to the staff the complainant was essentially trying to
make them aware of his special circumstances and the way in which his need to bring his
guide dog into the pub differed from the needs of non visually impaired people with other
types of dogs. I am satisfied that once the staff read the card which the complainant showed
them from Irish Guide Dogs for the Blind that they effectively decided to ignore the usual no
dogs policy and provided special treatment to the complainant in line with section 4(1) of the
Act.
9.9 I am aware that the complainant was only served after he produced the card but I do not
consider that he was treated less favourably. Effectively he was treated the same as anyone
else with a dog would have been treated up until the point where he showed that his dog
was a guide dog and that special treatment would be required. I consider that if the staff
were unsure whether the complainant’s dog was a guide dog they were entitled to refuse
service until their doubts were clarified by the complainant. Once it was clear-cut that
special treatment was required the staff decided to ignore the usual policy and served the
complainant. I consider that the card effectively served one of the purposes for which it was
probably designed i.e. to help people with guide dogs gain access to pubs, restaurants, etc..
Taking into account all the circumstances of the case I am satisfied that the respondent has
succeeded in rebutting the inference of discrimination on the disability ground up until this
point.
9.10 I will now consider whether discrimination occurred on this ground at any other time when
the complainant was on the respondent’s premises.
The respondent claimed that the reason the complainant was finally refused service was
because his son kept coming back into the pub and the complainant became abusive when
he was refused further service. The complainant denied the respondent’s version of events
but as I stated previously I considered the versions of both parties and found that the
evidence was inconclusive as to who is correct.
However, both parties agree that the complainant was served at least two pints before
service was finally refused. The respondent claimed at the hearing that because the
complainant was served with his guide dog it shows that he was not discriminated against on
this basis. In considering whether the disability ground was the reason for the complainant’s
final refusal I have to consider whether it is logical that the respondent’s staff would initially
refuse the complainant service because of his guide dog, then serve him at least two pints
knowing that he had a guide dog and then stop serving him because he had a guide dog.
Having thought about this carefully in my opinion such a sequence of events, although
possible, is unlikely. On the balance of probabilities I consider that the respondent has
succeeded in rebutting the inference of discrimination on this ground.
DECISION
10. Taking account of all the evidence presented it is my decision that Mr John Maughan was
discriminated against by The Glimmer Man Ltd on the basis of his family status on 2nd
November, 2000, contrary to the Equal Status Act, 2000. It is also my decision that Mr
John Maughan was not discriminated against by The Glimmer Man Ltd on the basis of
disability or his membership of the Traveller community on the same day.
Under section 27(1) of the Act the types of redress which may be ordered following a
decision in favour of a complainant are:
“(a) an order for compensation for the effects of the discrimination; or
(b) an order that a person or persons specified in the order take a course
of action which is so specified”.
Under section 27(1)(a) of the Act the maximum amount I can award is £5,000 but I do not
think that the maximum would be appropriate in this case. This is because the Equal Status
Act, 2000, only came into operation on 25th October, 2000, and the discriminatory act only
happened just over a week after that. Therefore, despite its clear legal duty to comply fully
with the Equal Status Act, 2000, I consider that the respondent did not properly assess and
realise the full range of new obligations placed on it by the Act. I order that The Glimmer
Man Ltd, pay £2,000 (2,539 Euro) to Mr John Maughan as compensation for the
embarrassment and stress which he suffered.
Under section 27(1)(b) I order that:
i) The Glimmer Man Ltd take down any signs in the Glimmer Man
pub which give the impression that parents cannot be served when
accompanied by their children under 18 years old.
ii) The Glimmer Man Ltd place a sign in a prominent place behind the
bar of the Glimmer Man public house stating that “The owner of this pub is
committed to treating people equally in accordance with the terms of the
Equal Status Act, 2000”. The sign should be left on display for at least one
month thereafter. The letters of the words on the sign should be no less
than 1 inch in height. The sign should be easily visible to anyone who seeks
service there.
Anthony Cummins
Equality Officer
18 December, 2001
DEC-S2003-161 Full Case Report
Kelly v Kelly’s Lounge
Keywords
Equal Status Act, 2000 – Disability Ground Section 3 (2) (g) -Reasonable Accommodation Section 4-Provision of goods and services Section 5 (1)- Establishment of a Prima Facie case -Remarks passed
Delegation under the Equal Status Act, 2000
The complainant referred a complaint of discrimination on the Disability ground to the Director of Equality Investigations. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 the Director has delegated the investigation, hearing and decision in this case and the exercise of other relevant functions of the Director under part III of the Equal Status Act, 2000 to me Mary O’Callaghan an Equality Officer. The hearing of the complaint was held on Thursday 13th November 2003.
Dispute
The complainant says that he was in Kelly’s Lounge with some friends on 25th May 2002 and was seated at the counter talking to another customer when the barman approached him, took his drink from him and told him to go and sit with his mother or he would have to leave. The defendant who was of full age at the time of this incident is disabled due to Down’s Syndrome. He became upset as a result of the actions of the barman and he believes that the barman’s behaviour towards him was discriminatory contrary to Sections 3 and 4 of the Equal Status Act, 2000.
The respondent accepts that his barman did take the complainant’s drink from him and did make the remarks attributed to him by the complainant. He maintains the barman did so because he considered the complainant to be behaving in a “hyper” manner and that the complaint may have been disturbing customers. The respondent says that the complainant and his family were respected customers and that there was no intention to discriminate against the complainant. Evidence was provided at the hearing by the complainant, his mother and two witnesses to a third party statement submitted to the tribunal by the complainant as well as by a former foster child of the complainant’s mother; the respondent and the barman who dealt with the complainant on the date of the incident complained of.
Summary of the Complainants Case
The complainant and his family used to frequent Kelly’s lounge regularly prior to the incident complained of. They had held parties in the pub and had even had a wedding party there. The complainant’s case is that he went to Kelly’s Lounge with his mother and some friends on the evening of 25th May 2002. Initially he sat with his mother and some friends and then he went to the counter to purchase two pints of black currant, one for himself and the other for one of his friends. On returning with the two glasses he asked his mother if he could go back to the counter area to chat with a man he knew from the area. He then returned to the bar counter area with his drink and sat with the man and they were talking. After a while the barman approached him, seized his drink, and told him to go sit with his mother or he would put him out.The complainant’s mother said this incident was not the only time her son had had difficulties with the barman and she said that the barman maintained that the complainant was too young to be in the pub. On one occasion she recalled him saying he would not serve her until “the kids were gone”. She understood him to be referring to the complainant and some of his friends from the day centre he attended. She said that when her son came from the bar area he was upset and crying. She asked him where his drink was and what he had done. He told her he had done nothing. The complainant’s mother said that shortly after that the respondent bar man moved into the function room of the pub and she went to the counter area and retrieved the complainants drink from another barman.
She said that the barman’s attitude toward her had changed suddenly, a while before this incident, after he discovered they were related through marriage. With reference to the way the barman treated her son, she alleged the barman disliked the complainant because of his disability and that this dislike was the reason for his behaviour toward the complainant during the incident complained of. The following morning she phoned the pub to complain and to and speak with the pub owner but the barman told her he was not available. She said she felt he would contact her but when he did not, she believed that the complaint should be pursued all the way and she wrote to Mr. Kelly seeking an explanation and notifying him of her son’s intention to refer the complaint further if he didn’t provide an adequate explanation. Other evidence in the complainant’s case was provided by witnesses to a statement made by the customer with whom the complainant was talking when the bar manager told the complainant to sit with his mother or leave. These witnesses verified that the witness had made the statement submitted to the tribunal that stated that the complainant had not behaved in any manner that would have caused the bar manager to act as he did. The writer of the statement did not feel able to attend the hearing. Evidence concerning an incident at the pub which occurred in 1999 prior to the enactment of the Equal Status Act 2000 in which it was alleged that the bar manager referred to the complainant in an inappropriate manner was provided by a former foster child of the complainant’s mother. This evidence regarding the statement can only be given limited weight as the statement writer was not in attendance. The other evidence referred to an incident which was not in my opinion connected with the incident complained of.
Summary of the Respondent’s Case
The respondent said that he had been the licensee of the pub since 1985. It is a local community pub with a predominantly local business. He said that the pub had access for disabled people and that although it did not have special toilet facilities for the disabled, arrangements were made for disabled customers to use the ground floor toilet. He was not there on the day of this incident as he is semi-retired and does not work in the pub full time. He said that the pub is staffed by a mature bar staff. The respondent said that the complainant and his family were good and valued customers of the pub and that there was a reasonably good friendship between him and the family. They were always very welcome in the pub and that a brother of the complainant still comes to the pub. He said he was very aware of the complainant’s disability and that the complainant was always treated as very special. He said that the complainant had over the years, been accommodated in relation to how he couldbehave in the pub, due to his disability and due the high esteem in which the respondent held the complainant’s family. He said that the complainant had always been allowed to participate in activities in the pub such as singing along with the band, whereas other customers would not get this facility. On the night of this incident Pat Murphy, the staff member involved in this incident, was the manager on duty in the pub. The respondent (licensee) says that on the night in question the pub was very busy and that there was a function underway in the upstairs function room. He said he understood that in the busy environment of the pub the manager became irritated and annoyed by the complainant repeatedly shouting his name and that this led to the manager saying to the complainant that he was to sit down with his mother or he would have to leave. He said that the behaviour would not be tolerated from any customer and that other customers behaving this way would have been put out.
The respondent said that he didn’t query other customers about what had happened because he wouldn’t like to involve other customers in any incidents occurring at the pub. He said he regarded what the manager had told him as a minor incident. He said he hadn’t contacted the complainant’s mother in response to her letter because he was upset by the letter. He felt there was a good relationship between the complainant’s family and himself and he felt that they should have come to him directly. He said he felt threatened by the tone of the letter and that she may be taking legal proceedings. He said he thought at the time “if that is what she wants to do let her”. He said he didn’t believe things should have come to this (The hearing of the complaint). The manager of the pub, Pat Murphy (the bar man involved in the incident complained of) said that he had been working in the pub for seven years and that he knew the complainant and his family during that time. He said that he was aware of the complainant’s disability. The manager said that the pub’s practice was to serve everyone and they had no restrictions on when certain groups of people could use the pub.
On the night of the incident he was working in the pub which was very busy and that when the complainant came to the counter area he was under quite a bit of pressure. He said that while the complainant was at the counter he was continually calling “Pat Pat Pat”. He said he found this annoying and after a while he approached the complainant and told him to sit with his mother or he would have to leave the pub. When asked if this is what he would say to all 18 year olds he was having a problem with in the pub. He said he that not all 18 year old customers would have their mother with them but he thought he wouldn’t. He said he would probably ask the customer to stop and if they didn’t he would ask him to leave. He said the most common reason for intervening with a patron would be where a customer was dancing or singing and generally if they didn’t stop they would be put out of the pub. The manager said that he would not treat a disabled person differently from another customer and would try to do what was best for everyone. He said that although he had thought that the complainant was a bit hyper he had not thought of going to his mother in the first instance, to bring it to her attention.
Conclusions of the Equality Officer
In considering this complaint I must in the first instance consider whether the complainant has established a prima facie case of discrimination. In order to establish a prima facie case of discrimination three criteria must be met. These are:
(1) That he is covered by the relevant discriminatory ground, in this case the disability ground.
(2) That he has been subjected to specific treatment by the respondent.
(3) That he has been treated less favourably than someone who was not disabled, or had a different disability would have been treated in similar circumstances.
I am satisfied that the complainant has shown that he does have a disability and this has not been disputed by the respondent. This fact satisfies the first of the criteria set out above. Both parties have agreed that the treatment by the respondent (bar manager) directed at the complainant and outlined by the complainant did occur and therefore the second criterion outlined above has been met.
Regarding the third criterion it is necessary for the complainant to show that what happened on the occasion complained of was less favourable treatment than that which would be afforded to another person who was not disabled or had a disability which was different from that of the complainant if the circumstances were similar. There was no evidence of any substance that indicated that the complainant’s behaviour would have led anyone to believe that he posed a substantial risk of disorderly behaviour.1 The evidence in this case including the evidence of the respondent (bar manager) that he would not have told another 18 year old customer to go sit with his mother when he became annoyed with him supports the contention that the complainant was subjected to less favourable treatment and overall from the evidence provided by both parties to this complaint I am satisfied that the treatment of the complainant was less favourable than would have been accorded another customer in such circumstances.
At the conclusion of their evidence the respondent (licensee) and his bar manager accepted that the actions taken toward the complainant should not have happened and that what had occurred was wrong, although they stated that they did not mean to discriminate by what was done.
I am satisfied, therefore, on the basis of the facts set out above that the complainant has established a prima facie case of discrimination on the disability ground. In circumstances where the complainant has succeeded in establishing a prima facie case of discrimination, the burden of proof shifts to the respondent and there is an assumption of discriminatory treatment on the part of the respondent, unless he successfully rebuts the case of the complainant.
During the hearing of this case the respondent accepted that what had happened to the complainant during the incident complained of was wrong and that it should not have happened. He said that at no time were the complainant and his family unwelcome customers at his premises and that he wanted to assure them that they would be very welcome if they chose to return to the premises. He said that they would be welcomed at all times. The respondent expressed his sorrow that the situation had come to this and that he felt it was not fair to any of the parties particularly the complainant and his mother that the situation should have deteriorated to this point. The respondent accepted that it would have been wiser if he had responded to the complainant or his mother at an earlier stage subsequent to the incident complained of and that he should have done so. The bar manager also agreed that he should not have treated the complainant in the way that he did.
1 See Section 15(1) Equal Status Act, 2000
Decision and Redress
On the basis of the evidence presented, I find that the complainant suffered discriminatory treatment contrary to Section 3 of the Equal Status Act. 2000 and therefore my decision is for the complainant in this case. I order the following redress be made to the complainant: that the respondent issue a written invitation to the complainant with his mother and four other companions of the complainant’s choice to Kelly’s lounge for a complimentary visit to include the provision of two free drinks of their choice each. This visit is to be on a date of the complainant’s choosing within six months of the date of this decision. In addition, I order that respondent pay to the complainant Derek Kelly the sum of €250 (two hundred and fifty Euros). In reaching this decision I took the following into account.
That the complainant is disabled and that the specific treatment he received from the bar manager on the 25th May 2002 was attributable to the complainant’s disability.
Section 42(1) of the Equal Status Act, 2000 states that “Anything done by a person in the course of his employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employers knowledge or approval.”
The acceptance by all of the parties that the incident complained of occurred and that the treatment of the complainant at Kelly’s Lounge on the 25th May 2002 was wrong.
That the respondent bar owner and the bar manager each apologised directly to the complainant and to his mother for what had occurred on the 25th May 2002, during the hearing of this case.
That the respondent indicated that the complainant and his family are very welcome at the pub at any time and that the complainant’s mother indicated that the family had frequented the respondent’s pub regularly in the past to enjoy the entertainment provided there and to celebrate special occasions.
That there was undisputed evidence that the respondent treated the complainant favourably when he was in the pub in the past. Furthermore that the respondent’s pub does accommodate disabled people and has provided some special facilities including disabled access at the premises.
Mary O’Callaghan
Equality Officer
19th December 2003
EC-S2007-090 – Full Case Report
Kearney v Budget Car and Van Rentals
1. Dispute
1.1 This dispute concerns a complaint by Mr. Mark Kearney that he was discriminated against by Budget Car and Van Rental on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Act, 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Act, 2000.
2. Summary of the Complainant’s Case
2.1 The complainant, who resides in England, suffers from a disability affecting his hands and feet and has a number of digits missing from each of these limbs. He is employed in the motor industry and through his work has had experience of driving a wide range of different types of vehicles. The complainant has held a full driving licence since 1978 and his disability does not require him to drive a specially modified or adapted car. The complainant and his girlfriend were due to attend a wedding in Ireland on 27th December, 2003 and he made a reservation for flights for them both to arrive into Shannon Airport on this date and to return to England on 29th December, 2003. This reservation was made through the Aer Lingus website on 28th October, 2003 and it also included a reservation for car hire with the respondent. The complainant received confirmation of the car hire reservation from the respondent by e-mail on 28th October, 2003. The complainant went to the respondent’s desk on arrival at Shannon Airport on 27th December, 2003 to collect the hire car that he had reserved and presented his full driving licence to the member of staff on duty. However, he was informed by Mr. Noel Daniels, Assistant Location Manager with the respondent, that there had been a mix up with the Aer Lingus reservation and that there wasn’t a car available for him. When the complainant argued that he had already paid for the car hire in advance and that he had confirmation of the reservation from the respondent, he was informed by Mr. Daniels that the car would have to be an automatic. Mr. Daniels then informed the complainant that no other company would hire a car to him and stated that the respondent couldn’t hire a car to him because he was disabled and that it was illegal to hire cars to people like him. The complainant stated that he became annoyed at this stage and was informed by Mr. Daniels on a number of occasions that the decision regarding whether or not to hire the car was not up to him.
2.2 The complainant’s girlfriend, Ms. Mary Sweeney, who was accompanying him on the trip, approached the respondent’s desk on becoming aware of the difficulties and was asked by Mr. Daniels if she had a full driving licence. When Ms. Sweeney responded that she didn’t have her driving licence with her, Mr. Daniels endeavoured to contact the Driver and Vehicle Licensing Agency (DVLA) in Swansea by telephone to verify details of her licence. While Mr. Daniels was trying to make contact with the DVLA, Ms. Sweeney found her driving licence and Mr. Daniels suggested that the car be hired to her as an alternative. The car that the complainant had reserved was subsequently hired to Ms. Sweeney, who stated that she was an inexperienced driver and therefore, was very uncomfortable having to drive the car throughout the duration of their stay in Ireland. The complainant informed Mr. Daniels that he was very unhappy with the treatment he had been afforded and indicated that he would be taking the matter further. The complainant stated that he has hired cars in other countries on numerous occasions in the past and that he has never encountered any difficulties in doing so because of his disability. The complainant submitted that Mr. Daniel’s decision to refuse to provide him with the hire car was taken purely on the basis of his disability and he contends that Mr. Daniels was clearly not qualified to make an assessment regarding his capability to drive a car. The complainant and his girlfriend were late for the wedding as a result of the difficulties that they had encountered with the respondent.
3. Summary of the Respondent’s Case
3.1 The respondent submitted that it has operated a car hire franchise for Budget Car Rental in a number of locations throughout Ireland and England since 1985. Mr. David O’Malley, Accountant for the respondent, outlined details of the requirements that a person must satisfy in order to hire a car from the respondent, namely the person must have an unendorsed full driving licence for two or more years and be between the age of 23 and 75 years. The respondent submitted that it is necessary in certain circumstances to make an assessment of a person that wishes to hire a car in order to determine if they are covered for insurance purposes to drive the vehicle. By way of example, the respondent submitted that it reserves the right to refuse service to a person that appears to be intoxicated or suffering from fatigue when they present at a location to collect the hire car. The respondent submitted that it provides a car hire service for people with disabilities and it confirmed that it is not necessary for a person with a disability to comply with any additional requirements in order to hire a car from it.
3.2 The respondent submitted that it was experiencing difficulties with reservations that had been made through the Aer Lingus website in December, 2003. The respondent did not have a record of the complainant’s reservation when he presented at its desk in Shannon Airport on 27th December, 2003 in order to collect the hire car. Mr. Noel Daniels, Assistant Location Manager, stated that he attended the complainant on this occasion and that the complainant provided him with confirmation of the reservation that he had made. Mr. Daniels was satisfied that the complainant had a valid reservation, however when he noticed that the complainant had a disability affecting his hands, it raised concerns regarding his ability to drive the type of car that he had reserved. Mr. Daniels informed the complainant about his concerns and explained that it would not be possible to hire a car to him until he obtained confirmation regarding the issue of the insurance cover from the respondent’s insurance company. However, it was not possible to obtain the required confirmation on this particular occasion as it was a Saturday during the Christmas holidays. Mr. Daniels subsequently decided that he could not hire the car to the complainant because of his concerns for the safety of the complainant and other road users and he emphatically denied that he informed the complainant that he wouldn’t hire a car to a person with a disability and that it was illegal to do so.
3.3 Mr. Daniels was aware that the complainant and his girlfriend were in a rush to get to the wedding and he made every effort to accommodate them and sought confirmation from Ms. Sweeney as to whether she had a full driving licence with her, so that the car could be hired to her instead of the complainant. When Ms. Sweeney confirmed that she didn’t have her licence, Mr. Daniels attempted to contact the DVLA in Swansea to verify details of her licence. However, during the course of this telephone conversation Ms. Sweeney located her licence and the car was subsequently hired out to her instead of the complainant. Mr. Daniels apologised to the complainant for any distress or inconvenience caused and explained that he was acting in the best interests of all concerned. Mr. Daniels stated that he was of the opinion that the complainant understood why he had taken this action, however the complainant did indicate that he would be referring the matter to the respondent’s head office. The respondent denies that it discriminated against the complainant on the grounds of his disability and submitted that the decision not to hire the car to him was taken purely on the basis of its concerns regarding the complainant’s insurance cover to drive the vehicle.
4. Conclusions of the Equality Officer
4.1 The complainant in this case has grounded his complaint on the basis of his stated disability. At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that he is covered by the relevant discriminatory ground i.e. in this case that he has a disability. (2) It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not disabled nor had a different disability. If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if his defence is to succeed.
4.2 The first test set out above is whether the complainant, Mark Kearney is covered by the disability ground, i.e. is he considered disabled according to the definition of disability set down by the Equal Status Acts, 2000-2004. In the Act
“disability” means —
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
The complainant suffers from a disability that affects his hands and feet and as a result is missing a number of digits from each of these limbs. I am satisfied that this condition constitutes a disability within the meaning set out above and that therefore, Mr. Kearney is a person with a disability within the terms of the Equal Status Acts, 2000-2004. This fact satisfies the first of the three criteria set out above.
4.3 The second test that of whether the incident complained of actually occurred is my next consideration. In this case it is not disputed by the parties that the complainant had a valid reservation to hire a car from the respondent and it is also common case that the respondent refused to provide the complainant with this car when he presented at its desk in Shannon Airport in order to collect the vehicle. Accordingly, this satisfies the second criterion set out above. The third criterion to be satisfied in order for the complainant to establish a prima facie case of discrimination is that of less favourable treatment, i.e. he must show that the treatment he received was less favourable than that which would have been given to another person in similar circumstances who either did not have a disability or had a different disability. The respondent accepts that the complainant had made a reservation to hire a car and that he satisfied all of the standard requirements it imposed on a person in order to make a valid reservation. When the complainant presented at the respondent’s desk in Shannon Airport on 27th December, 2003 it became apparent to Mr. Daniels that he had a disability. Mr. Daniels contends that he became concerned at this stage regarding the complainant’s capability to drive the car and whether or not he would be covered by the respondent’s insurance to drive the vehicle. The respondent submitted that Mr. Daniels was unable to obtain confirmation from the respondent’s insurance company regarding the complainant’s insurability and it was therefore decided not to hire the car to him. It is accepted by both parties that the respondent proceeded to hire the car to the complainant’s girlfriend who was not suffering from a disability. I am satisfied therefore that the complainant has established that he was treated less favourably than a person without a disability was in the same circumstances, as his girlfriend, a person without a disability, was provided with a hire car by the respondent while he was not. Accordingly, I find that the complainant has established a prima facie case of discrimination on the disability ground.
5. The Respondent’s Rebuttal
5.1 The respondent denies that it discriminated against the complainant on the grounds of his disability and submitted that the decision not to provide him with the hire car on the date in question was taken as a result of the fact it was unable to obtain clarification from its insurers that the complainant was covered to drive the vehicle. The respondent claims that it was acting in the best interests of all parties concerned and that it made every effort to accommodate the complainant and his girlfriend on this particular occasion. I have noted that when the complainant was making the reservation to hire the car from the respondent that he was not requested, or indeed obliged, to disclose that he had a disability. Having regard to the evidence adduced, I am satisfied that the complainant fully satisfied and complied with the standard requirements that were imposed by the respondent in order to make a valid reservation, namely that he held a valid unendorsed full driving licence at the time of the incident and that he was between the age of 23 and 75 years.
5.2 The respondent submitted that if a person with a disability requested the hire of a specially modified or adapted car that it would be necessary in those circumstances to disclose this information to its insurance company. However, I am satisfied that in the present case, the complainant had made a valid reservation to hire a standard unmodified car from the respondent, and I consider that he was fully capable of driving such a vehicle. This conclusion is substantiated by the fact that the complainant held a valid full driving licence to drive the category of vehicle that he sought to hire from the respondent at the time of the incident. I note that there is a dispute between the parties regarding the complainant’s contention that Mr. Daniels stated that he would not hire a car to a person with a disability and that it would be illegal to do so. Having carefully considered the evidence presented, I am satisfied, on the balance of probabilities, that Mr. Daniels did not intentionally set out to discriminate against the complainant and that he believed he was acting in good faith on the date in question when he sought to address the concerns he held regarding complainant’s insurability to drive the vehicle. However, I conclude that these concerns were totally ill-founded and misconceived, and were at variance with the standard requirements that the respondent imposed on a person in order to hire a car. In coming to this conclusion, I have noted that Mr. O’Malley, in his evidence, confirmed that a person with a disability was not required to comply with any additional requirements in order to hire a car from the respondent and also, that there weren’t any additional insurance implications for the respondent when a vehicle was being hired by a person with a disability.
5.3 Having regard to the fact that the complainant fully satisfied all of the standard requirements that were imposed by the respondent in order to hire a car, I am of the view that the vehicle should have been made available to him on his arrival at Shannon Airport. It is clear that there was a hire car available at that particular time as it was subsequently made available to the complainant’s girlfriend. In the circumstances, I find that the decision taken by Mr. Daniels, who was acting on behalf of the respondent, not to honour the complainant’s reservation and provide him with the hire car that he had reserved was clearly based on the grounds of his disability. In the circumstances, I find that the respondent has failed to rebut the prima facie case of discrimination against the complainant on the disability ground.
6. Decision
6.1 On the basis of the foregoing, I find that the complainant was discriminated against by the respondent in terms of Section 3(1) and 3(2)(g) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act.
6.2 In accordance with section 27(1)(a) of the Act, I hereby order that the respondent pay the complainant the sum of €4,500 within 42 days of the date of this decision. I further order, in accordance with Section 27(1)(b) of the Act, that the respondent arrange for comprehensive training of all members of staff in the terms and application of the Equal Status Acts, 2000-2004, with such training to have commenced within three months from the date of this Decision.
Enda Murphy
Equality Officer
20th December, 2007
DEC-S2009-079 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 079
PARTIES
Twomey v Aer Lingus
File Reference: ES/2006/0024
Date of Issue:10th November, 2009
Key words
Equal Status Acts 2000-2008 – Direct discrimination, section 3(1)(a) – Family Status ground, section 3(2)(c) – Disability ground, section 3(2)(g) – Victimisation ground, section 3(2)(j) – Reasonable accommodation, section 4 – Disposal of goods and provision of services, section 5(1) – Health & Safety information and procedures on board aircraft- bulkhead seats
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 14th February 2006. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 the 21st July 2008. The hearing of the case took place on the 26th May 2009 and the final correspondence was received on the 19th August 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Ms. Siobhan Twomey, that she was discriminated against by the respondent, on the family status, disability and victimisation grounds in terms of sections 3(1)(a), 3(2)(c), 3(2)(g), 3(2)(j) and 4(1) of the Equal Status Acts, and contrary to sections 5(1) of the Equal Status Acts by failing to provide her with a ‘bulkhead’ seat on board a flight to Chicago, also by failing to supply her with appropriate health and safety information and by victimisation in seating her in an inappropriate seat at the back of the aircraft and in doing so treated her less favourably than passengers without her disability.
3. Background to the case
3.1 The complainant, Ms. Siobhan Twomey, is a paraplegic and accordingly is a wheelchair user. In early 2005 she booked a flight with the respondent to Chicago to travel on the 27th October 2005. She claims that she travelled with the respondent to the United States of America on many occasions in the past and was unhappy with the respondent’s seating policy for disabled people. As a consequence she engaged in a series of correspondence with the respondent, where she complained about the seating policy for disabled passengers on board the respondent’s A330 aircraft on long haul flights. She also made some suggestions to the respondent which she felt would help solve those problems and she sought reassurance that she would be accommodated prior to her trip in October 2005. The problems she had encountered predominately centred around the unavailability of the bulkhead seats for her, a disabled person. The tone of Ms. Twomey’s letters became quite forceful, as she felt that the respondent’s policy was discriminatory against her, a disabled person, and she put Aer Lingus on notice that she may have to take the matter further.
3.2 The bulkhead seats are the seats situated immediately after the physical partition on board an aircraft that in effect divides the aircraft cabin into different compartments. The aircraft of concern was the Airbus A330, which is designed with seating at the left, right and centre of the plane. Ms Twomey wanted to book and avail of the bulkhead seats position at the centre of the aircraft, at Row 31. There are two emergency exit doors on Row 31, one positioned by the bulkhead seats at the left hand side and one on the right hand side. The centre bulkheads seats are where the bassinets for passengers with infants are located, where young infants may be placed so as to give respite to the parent/minder while the aircraft is air bound on long haul flights.
4. Summary of the Complainant’s case
4.1 The complainant, Ms. Twomey, claims that she was refused a bulkhead seat on a flight to Chicago on the 27th October 2005. The complainant stated that she asked to be seated in one of the four seats at the centre of the plane at the bulkhead, Row 31, so she could avail of the more spacious seats and have easier access to the disabled toilets. She claims that she was not looking for a seat adjacent to the exit doors at the left or right side of the aircraft on that row. She claims that she was refused on the basis that she was a person with reduced mobility and that she was told the allocation of such seats to persons of reduced mobility was prohibited under the respondent’s seating policy. The complainant maintains that the four centre seats in the bulkhead should not be classified as “exit” seats.
4.2 Ms Twomey claims that she had travelled with the airline to the United States on many occasions in the past and was able to secure seating at the bulkhead. However, as she was unable to definitively secure these seats at the time of booking, either online or over the phone, she decided to write to the respondent outlining her difficulty with its seating/booking policy and asking for the policy to be reviewed in light of the points she had raised. She also requested permission to get a bulkhead seat for her flight on the 27th October 2005. Ms. Twomey claims she engaged in lengthy correspondence with the respondent and that she became very distressed and unhappy with how Aer Lingus dealt with her concerns.
4.3 The complainant claims that when she arrived at the check-in desk on the day of her flight she was astonished to find that not only had the respondent not provided her with a seat in Row 31, her preferred choice, she was assigned a centre seat further down the plane in Row 38, which would have required two transfers- up and over the armrest and then across the adjacent seat- for her to use the toilet facilities or, if required, to evacuate the plane in the case of an emergency. Ms. Twomey claims that she asked the Aer Lingus representative at the check-in desk to be seated at the bulkhead who replied that she was told not to assign Ms. Twomey a seat in Row 31. The complainant could not remember the full extent of the conversation with the passing of time and was unsure whether the refusal was aimed at her specifically or if it was a general reference that persons of reduced mobility were not allowed to be seated in bulkhead seats. However, at the time she felt that it was addressed to her personally.
4.4 The complainant claims that she is always anxious in the days leading up to a flight, and that she has to arrive in the airport well in advance of her flight to ensure she is top of the queue to try to book the most appropriate seat. She outlined the difficulty she encounters on long haul flights, particularly when she does not get to sit in appropriate seating close to the disabled toilets. She said that for her to visit the toilet she has to be lifted up over the armrest and then over the seats on to an aisle wheelchair disturbing all the passengers around her, which is very awkward, embarrassing and distressing. She claims that the airline discriminated against her by not having a proper seating policy for disabled persons and if bulkhead seating was not available to disabled passengers then aisle seats with movable armrests that lift up should at least be made available. Ms. Twomey claims that when she boarded the plane she asked the cabin crew if there were any seats with movable armrests available. A number of the cabin crew inspected the seats in that section of the plane, however none of the armrests could be moved. Ms. Twomey’s husband also appeared as a witness and confirmed the same.
4.5 The complainant claims that she has in the past been able to negotiate a bulkhead seat with the check-in staff, including her return trip from Chicago to Dublin in 2005. The complainant claims that she felt she was victimised by the respondent in its decision to place her in a wholly inappropriate seat towards the back of the plane and this she believes was because she wrote and complained to Aer Lingus about its policies and stated that she may take further action. The complainant also said that in all the years that she had been in correspondence with Aer Lingus she was never notified that it had changed its policy in 2007 to allow disabled passengers in a centre bulkhead seats and that it was possible to pre-book one of the bulkhead seat by contacting the airline at a specific telephone number. This information, she claims, was only brought to her attention on the day of the hearing.
4.6 The complainant also stated that on previous trips with the respondent she was allowed to sit in the bulkhead seats while accompanied by her daughter when her daughter was under the age of two years of age. However, now that her daughter is over that age they are not allowed to sit in the bulkhead seats. Accordingly, the complainant maintains that the respondent is discriminating against her on the family status ground.
4.7 The complainant also claims that the airline discriminated against her in relation to the health and safety information provided by the respondent. She claims that there is no reference in the health and safety demonstration or information of the procedures in place for the evacuation of disabled passengers at the time emergency. Ms. Twomey claims that the health and safety presentation prior to takeoff and all the other documents related to able-bodied passengers. The complainant referred to a recent EC Regulation concerning the rights of disabled persons and persons with reduced mobility when traveling by air. The complainant outlined that this places a legal onus on the air carrier to ensure, inter alia, that safety information is publicly available on the carriage for disabled persons.
5. Summary of the Respondent’s case
5.1 The respondent refuses to accept that it has discriminated against the complainant. The respondent admits that the complainant was in contact with its customer service department in relation to the use of the bulkhead seats however, it had informed her that unfortunately as these seats constitute part of the “exit row” it was not in a position to offer those seats to a person with reduced mobility as per company policy at the time. The respondent claims that its seating policy was developed on the premise that all the seats on the row where the exits were located were classified as not suitable for passengers who may impede the evacuation of all passengers at the time of an emergency.
5.2 The respondent claims that seats were not allocated until check-in and passengers with infants were given priority to the bulkhead seats, as this is where the bassinettes were situated for passengers with young children. The respondent claims that as a European carrier, it is subject to the requirement of the binding joint aviation regulations. The respondents claim that all its policies comply with all the applicable air safety requirements, Joint Aviation Regulations (Jar-Ops), and that its policies are approved by the Joint Aviation Authority, including the seating policy at that time. It referred to the regulations from where it established its seating policy, namely, “an operator shall ensure that [people with reduced mobility] are not allocated, nor occupy, seats where their presence could; (1) impede the crew in their duties; (2) obstruct access to emergency equipment; or (3) impede the emergency evacuation of the aeroplane”.
5.3 The respondent totally refutes the claim made by the complainant that the check-in staff that Ms. Twomey dealt with were primed by the respondent to target her personally and prevent her from taking a seat in one of the bulkhead seats because she was involved in a series of written complaints against it. The respondent claims that it does not engage in such tactics and the message Ms. Twomey received was the general message in relation to its seating policy at the time. It pointed to the evidence from Ms. Twomey where she stated that when she asked to be moved closer to the toilet, to Row 32, she was accommodated without difficulty and this highlights its efforts to accommodate passengers and not to target or victimise them.
5.4 In addition, the respondent claims that that particular aircraft, Airbus A330, has a number of seats with movable armrests that would be suitable for disabled persons. It claims that it had in fact up to 14 seats with movable armrests, none of which however were in the section of the aircraft that Ms. Twomey was assigned a seat and that would explain as to why it was not possible to move any of the armrests that were tried by the air craft staff.
5.5 With regard to the health and safety presentation and information the respondent claims that it has to be careful with the information it releases due to security concerns in the current climate. The respondent claims it was fully aware of the safety requirements set out in the Jar-Ops regulations and that its health and safety information was fully compliant. The respondent claims that it is aware that it must provide basic information of such a nature under Regulation (EC) No 1107/02006 which came into operation in July 2008, which is a date after this complaint was made. The respondent claims that in the case of an emergency, cabin crew will provide a full demonstration of the procedures to be adopted during an evacuation. Also it claims that the health and safety demonstration at the beginning of each flight is set out in Jar-Ops and each and every Aer Lingus safety demonstration complies with these regulations.
6. Conclusions of the Equality Officer
6.1 Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Discriminatory Treatment – Disability Ground
6.2 Ms. Twomey is a paraplegic and a wheelchair user and I am satisfied therefore that she is a person with a disability within the meaning of the Equal Status Acts. I am satisfied that the incident complained of actually occurred in that the complainant was refused permission to sit in the bulkhead seats on her flight to Chicago on the 27th October 2005. Therefore, the first question that I must address in the present case is whether or not that refusal constitutes discrimination on the disability ground within the meaning of the Equal Status Acts. In order for the complainant to establish a prima facie case of discrimination she must show that the treatment she received was less favourable than that which would have been given to another person, in similar circumstances, who either did not have a disability or had a different disability. In making this decision, I have taken cognisance of all the oral and written submissions made by the parties.
6.3 I have noted that the respondent has claimed that its policy at the time was not to allow persons with restricted mobility to sit in one of the bulkhead seats, as all the seats in this row were classified as an “exit row”. Its reasoning being that at a time of an emergency the persons seated in this row should not impede a speedy evacuation. The complainant has made it quite clear that she did not request to sit in a seat adjacent to the exit doors but instead in one of the four seats at the centre aisle of the bulkhead. I also note that these bulkhead seats are where the bassinettes for passengers with infants are located and priority was given to such passengers for these seats. I also note the complainant’s evidence that she was able to secure a bulkhead centre aisle seat on many other occasions, including her return flight from Chicago in 2005, which would appear contrary to the seating policy deployed by Aer Lingus at the time.
6.4 I am satisfied that the reasons for the refusal by the respondent to allow Ms. Twomey to sit in the bulkhead is based on its assertion that all the seats at the bulkhead formed part of the exit row and that persons seated at the exit row should not impede the crew at a time of an unplanned evacuation. I can understand the reasons why certain persons are prevented from sitting adjacent to the emergency exits in line with safety regulations . This policy seems logically based and in line with best international practice. However, I am somewhat concerned as to the classification of the seating in the centre row of the bulkhead, which the airline itself has since reviewed and changed on foot of this complaint. It is not contested that the respondent’s policy was that disabled passengers were prevented from sitting there, as they may impede a speedy evacuation, whereas passengers with small infants were given priority to occupy these seats because the facility of the bassinette is located there. I am satisfied that had the respondent made a comparison between the passengers it was giving priority to sit at these seats, as opposed to the passengers it prevented from sitting there, namely passengers with a disability such as the complainant, surely the conclusion reached would be that both would cause similar levels of obstruction to staff at the time of evacuation and therefore, I am satisfied that the policy is inconsistent at best.
6.5 It is my opinion that the centre bulkhead seats were not adjacent to the exit doors and that those seated there would not unduly hinder an evacuation. This would also appear to be the conclusion that the respondent reached once it reviewed its policy on foot on this complaint. I am also satisfied that these seats would be the most appropriate seating for a person with a disability who may require additional space and who required assistance to visit the disabled toilets on a long haul flight. Accordingly, I am satisfied that the respondent had an incoherent seating policy that directly discriminated against Ms. Twomey, a disabled person, unfairly and without necessity. Therefore, I find that the complainant has succeeded in establishing a prima facie case of direct discrimination on the disability ground and that the respondent has failed to successfully rebut the inference of direct discrimination in relation to its seating policy.
6.6 In relation to the health and safety in-flight presentation and information, I am satisfied that the respondent provided all passengers on the flight to Chicago on the 27th October 2005 with the same set of instructions and information, or at least no evidence was presented to show the contrary. I note that the complainant felt that the information provided did not include her, a person with a disability and accordingly, she felt that the respondent discriminated against her because the information was not clear on the procedures that the airline had in place for the evacuation of a person with a disability. I have examined the relevant legal regulations and I am satisfied that the respondent has met its requirement under those provisions.
6.7 I note that most recent regulations came into existence in 2008, a number of years after this complaint was referred. I therefore have no jurisdiction to comment on the respondents obligations in relation to the most recent regulations when considering the case at hand. Accordingly, I am satisfied that the complainant was not treated less favourably in relation to the health and safety presentation and information provided by the respondent at the time.
Reasonable Accommodation
6.8 The parties have also made submissions, both in writing and at the oral hearing of the complaint regarding the issue as to whether or not the seating policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts. Having regard to the totality of the evidence adduced, and the fact that I have already found that the respondent has directly discriminated against the complainant on the disability ground under Section 3(2)(g), I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present case. Accordingly, I am satisfied that it is not necessary for me to consider this complaint in the context of section 4 of the Acts any further.
Discriminatory Treatment – Family Status Ground
6.9 The complainant claims that when she travelled with the respondent with her child of up to the age of two, she was given permission to sit in one of the bulkhead seats. However, once her daughter passed that age she was prevented from doing so. Accordingly, she claims that the respondent has discriminated against her on the basis of her family status. I note that section 3(2)(c) of the Acts provides that “For the purpose of this Act, discrimination shall be taken to occur …”, “…where a person is treated less favourably than another …”, where, “…one has family status and the other does not or that one has a different family status from the other”. I note the definition of family status under section 2 of the acts states – “”family status” means being pregnant or having responsibility-
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis…”
6.10 Having regard to the provisions above, I note that Ms. Twomey’s family status, as defined by the legislation, is the same now as it was when she was afforded access to these bulkhead seats in the past. No evidence was presented to me at the hearing or otherwise to show that the complainant was refused access to this seating on the basis of her family status. The evidence adduced at the hearing was that priority for the bulkhead seats was given to passengers with young infants and that persons with a disability were prevented from sitting there. In the circumstances I am not satisfied that the complainant has established a prima facie case of discrimination on the family status ground.
7. Victimisation Ground
7.1 The complainant has claimed that she was subjected to discrimination under the victimisation ground. The specific terms of that ground are set out in Section 3(2)(j) subsections (i) to (v), namely,
“(j) that one –
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,”
(ii) has attended as a witness before the Authority, the Director or a court in connection with any enquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the “victimisation ground”).”
I have noted that the complainant engaged in correspondence with the respondent which commenced with a recommendation by her to Aer Lingus regarding how it could provide disabled persons with a more dignified and comfortable experience on board its aircraft. During the course of the exchange of correspondence the complainant became increasingly displeased and incensed with the respondent. I note that she twice wrote to the respondent prior to taking her trip in October 2005 and mentioned that she was not happy with their response and that she felt the respondent was discriminating against her, a person with disability, and that she would be taking the matter further. I note in these letters and from the respondent’s reply that it was fully advised and aware that the complainant was travelling with it to Chicago on the 27th October 2005. I am also satisfied that Aer Lingus was fully aware that the complainant had a disability and was looking to be seated in the most appropriate seat for her needs, which in the complainant’s opinion were the bulkhead seats.
7.2 I am satisfied that when Ms. Twomey arrived at check-in on the day of the flight she was refused permission to take a bulkhead seat and she was informed that this was because of company policy. The evidence shows that she was assigned a seat in Row 38, towards the back of the airplane. I note the respondent states that seats not pre-assigned prior to check-in are matched with passengers who have not selected a seat on a random basis throughout the aircraft to balance out the plane. However, I note that the seats pre-assigned, in Row 38, to Ms. Twomey and then later assigned to her at check-in namely, Row 32, were not the seats that the respondent claimed to be the most appropriate for persons with a disability, namely the seats with movable armrests. The respondent claims that it does not have a copy of her booking however, it does have the full suite of letters from her outlining the difficulties she faces as a disabled passenger on long haul flights. I note that the respondent said that she did not contact the booking office to pre-select her seat, however she engaged in lengthy correspondence to the same company albeit a different department, the customer service department, who was aware of her plight and needs. I am satisfied that she was assigned an inappropriate seat, in Row 38, and when she asked to move, she was allowed to move but again to a seat that was not the most appropriate to her needs.
7.3 I am also aware that there were a number of other seats that would also allow for a more comfortable travelling experience, namely those seats with movable armrests, also located close to the toilets in the other compartment of the aircraft. I am surprised that when Ms. Twomey contacted the respondent about her request for suitable seating for long haul flights that she was not informed about the movable armrest options available on the aircraft. I am also surprised that when Ms. Twomey presented herself at the check-in desk that her seat allocation, firstly at row 38 and subsequently at row 32, were seats that did not have movable armrests. I note from the respondents evidence that it was of the opinion that seats with movable armrests were the most appropriate seating for persons with a disability, such as Ms. Twomey. I also note that Aer Lingus strictly applied its policy by refusing Ms. Twomey access to a bulkhead seat whereas it did not follow on and provide her with what it deemed the most suitable seating to meet her needs. I have also considered Ms. Twomey’s evidence where she felt that the Aer lingus representative at the check-in who refused to give her a bulkhead seat was directed at her personally (see paragraph 4.3 above). Accordingly, on the balance of probabilities, I am satisfied that the complainant has raised an inference that there was less favourable treatment of her by the respondent on the victimisation ground under section 3(2)(j), which the respondent has failed to rebut.
8. Decision
8.1 In accordance with section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
8.2 I find that, further to section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground section 3(1) and 3(2)(g) by treating her less favourably than someone with a different disability would have been treated in the same or similar circumstances, contrary to section 5(1) of the Acts. I also find that the complainant suffered victimisation contrary to section (3)(2)(j) of the Equal Status Acts.
8.3 In accordance with Section 27(1)(a) of the Equal Status Acts,
– I award the complainant the sum of €1,000 in compensation for the inconvenience caused and for the upset experienced by the respondent in respect of the discrimination suffered.
– I award the complainant be paid an additional sum of €3,000 in respect of the victimisation suffered.
8.4 In accordance with Section 27(1)(b) of the Equal Status Acts,
– I order that the respondent immediately review the communication procedures between the Customer Services department and other departments within the company to ensure that should complaints of a similar nature be received in the future, that they are dealt with in collaboration with other appropriate departments.
– I order that the respondent immediately review its training programmes for all front line staff with responsibility for dealing with passengers with a disability. The training programmes and material therein should include the most up to date information relating to Aer Lingus’ policies.
_____________
James Kelly
Equality Officer
10th November, 2009
DEC-S2007-076 – Full Case Report
Noonan v Greg Price, Appeals Officer HSE South
(formerly South Eastern Health Board)
1. Summary of the Complainant’s Case
1.1 The complainant is disabled due to a combination of medical conditions and complications arising from them. For a number of years she has had osteoporosis which has resulted in compression fractures of her spine and she has also fractured other bones. She also suffers from chronic obstructive pulmonary disease (COPD). Due to the various medications she takes, she has on a number of occasions had medical crises such as temporary kidney failure and blood disorders. The presence of these conditions has significantly deteriorated her ability to get about on foot and she says that due to the discomfort and pain which results from her condition she is unable to utilise public transport. She walks with difficulty and is only able go short distances. She relies on taxis to get to and from the doctor and the various clinics she attends. She says that she would attend her doctor on a weekly basis at a minimum. She would travel by taxi on these occasions and she would also use taxis to get her to the shops where she can get about by using a shopping trolley for support.
1.2 She is a recipient of Supplementary Welfare Allowance and prior to her application for the Mobility Allowance administered by the HSE, she was able to reclaim taxi costs as part of her Supplementary Welfare Allowance. On the advice of her Community Welfare Officer (CWO) she applied for the Mobility Allowance as the refunds she was getting would be no longer available to her. This allowance is a payment to assist those who otherwise would not be able to leave their home due to mobility difficulties. Her application was refused as it was stated she did not meet the criteria to qualify. She was given an opportunity to appeal and appealed to the HSE region concerned. The outcome of her appeal was to uphold the original decision taken on her initial application for the allowance. Following that decision she made further contact with the Appeals officer for the HSE, Mr. Price, who met with her but the decision not to award her the allowance remains.
1.3 Mrs. Noonan alleges that her condition is sufficiently severe to warrant her qualification for this allowance and that the respondent is failing to take sufficient account of the severity and impact of her disability in its evaluation of her application. She considers the treatment and outcome of her appeal to be discrimination against her on the ground of disability. She also alleges that the treatment of her in relation to her appeal is victimisation.
2. Summary of the Respondent’s Case
2.1 Mr. Greg Price, Appeals Officer and Ms Anne Galvin, Superintendent Community Welfare Officer attended the hearing for the HSE. The HSE is the body which administers both the Supplementary Welfare Scheme and the Mobility Allowance in the region where Mrs. Noonan lives. The respondent agrees that Mrs. Noonan has been in receipt of Supplementary Welfare Allowances including a payment which reimbursed her for taxi fares. Following a review of this practice, the CWO dealing with Mrs. Noonan informed her that the taxi fare reimbursements would cease but that she could apply for the Mobility Allowance which may be payable to persons with severe mobility difficulties. Payment of the Mobility Allowance is subject to the applicant satisfying two qualification criteria, a means test and a medical assessment on a defined scale to establish the level of mobility impairment which the applicant has. The respondent says that Mrs. Noonan’s means are such that she satisfied the means test requirement. However, her medical assessment resulted in a determination that her level of mobility was not sufficiently impaired to qualify her for the allowance. The respondent said that on appeal a medical assessment by 2 or 3 other medical practitioners concurred with this finding, while acknowledging Mrs. Noonan’s medical difficulties. The respondent said that the Mobility Allowance scheme was specifically aimed at those who would have no opportunity to leave the confines of their home due to the severity of the disability present, without the assistance of taxi or other specialised transport. The scheme is to assist the individual to meet the cost of occasional journeys. Examples of qualifying disabilities for the allowance in the past were oxygen dependency with severe cardiac impairment and wheelchair dependency with restrictions in arm movement. The medical criteria in the guidelines issued by the Department of Health and Children for the granting of this allowance state as follows:
“The applicant must be unable to walk, even with the use of artificial limbs or other suitable aids, or must be in such a condition of health that the exertion required to walk would be dangerous.
The applicant’s inability to walk has to be likely to persist for at least one year.
The applicant’s condition must be such that moving him/her has not been forbidden for medical reasons.
The applicant should be in a condition to benefit in a change from his or her surroundings.
The applicant should provide Medical Certification from his/her GP.”
2.2 The respondent said that all of the proper procedures in relation to Mrs. Noonan’s application had been followed and that she had not satisfied the medical criteria. Mr. Price said that while he would not have been directly involved in Mrs. Noonan’s assessment he has responsibility for consumer issues and he would have become aware of Mrs. Noonan’s dissatisfaction with the assessment and also her complaint following she contacting his office after her appeal was rejected.. He agreed to speak with her about her application following receipt of her notification of her complaint to the Equality Tribunal. His meeting with Mrs. Noonan lasted about 30 minutes and Ms Galvin was also present. Mr. Price said that other assistance was offered to Mrs. Noonan to help with her difficulties in mobility but she refused these. The type of assistance offered was the provision of various mobility aids, such as walking frames which would enable her to get about independently. He said that such equipment had improved a lot in recent years and could be of significant assistance to someone in Mrs. Noonan’s situation. He said that Mrs. Noonan refused these aids as she indicated that she wished to maintain her dignity for as long as possible and using such aids would infringe on her sense of dignity. He believed that the HSE were providing Mrs. Noonan with access to everything they could to assist her mobility given that she did not qualify for the Mobility Allowance.
3. Conclusions of the Equality Officer
3.1 The complainant in this case has grounded her complainant on the basis of her stated disability. At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that she is covered by the relevant discriminatory ground i.e. in this case that she has a disability. (2)It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not disabled nor had a different disability. If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if their defence is to succeed. In the case of disability further consideration may be made to the issue of the provision of reasonable accommodation to a disabled person, Section 4 of the Equal Status Act states as follows:
4. — (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination…
3.2 The first test set out above is whether the complainant, Irene Noonan is covered by the disability ground, i.e. is she considered disabled according to the definition of disability set down by the Equal Status Act 2000-2004. In the act
“disability” means —
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
I am satisfied the complainant satisfies the first of the three criteria outlined above in that the medical conditions she lives with come within the definition of disability set out in the Equal Status Act 2000-2004. Furthermore, it is not in dispute between the parties that she is disabled, but whether that disability impacts on her mobility to such an extent that she is eligible for the award of a Mobility Allowance as administered by the HSE. In relation to the second criterion, I am satisfied that Mrs. Noonan, having applied for the Mobility Allowance and having appealed the initial refusal to grant her the allowance, was refused the allowance. I accept that this is sufficient to satisfy the second criterion, i.e. that the specific action occurred.
3.3 The third criterion, i.e., whether the specific actions complained of were less favourable than the treatment that would have been given to another person in similar circumstances who either did not have a disability or had a different disability must also be considered in determining whether a prima facie case has been established.
3.4 The specific allowance applied for in Mrs. Noonan’s case is only available to disabled persons, so a person without a disability in similar circumstances to Mrs. Noonan would not be able to avail of the allowance in any event. Furthermore, the allowance is specifically directed at those with disabilities that restrict their mobility so severely that they need such assistance to allow them the occasional trip out. This appears to imply that if a person with a different disability to Mrs. Noonan were to avail of the Mobility Allowance, that person would need first to have demonstrated that he/she has such special needs. What remains to be considered, therefore, in establishing whether discriminatory treatment occurred in Mrs. Noonan’s case is the issue of the provision of reasonable accommodation in accordance with Section 4 of the Act.
3.5 The evidence before me is that Mrs. Noonan suffers from a significant level of disability due to her medical condition. It is clear that this disability impacts on her ability to engage in day to day activities at the fullest level. It is, however, evident that she is able to walk, although with some difficulty, particularly without the assistance of medical aids. She has chosen not to avail of such aids, where offered, for personal reasons. The evidence is also that the particular allowance applied for is to benefit those who cannot walk “even with the use of artificial limbs or other suitable aids”. I conclude therefore, that in terms of this particular allowance, Mrs. Noonan did not meet the medical criteria. It would appear therefore, that Mrs. Noonan and others in her situation have in effect slipped through the net in that she can no longer receive assistance towards her taxi fares through her Supplementary Welfare payment and does not qualify for such a payment through the award of a Mobility Allowance.
3.6 Reasonable Accommodation
In this case the complainant, Mrs. Noonan made an application for a grant of the Mobility Allowance on the prescribed form and on the evidence available to me she was assessed both on the criterion of means(which she satisfied) and was subjected to a medical assessment at both at the application stage of the process and on appeal. There has been no evidence that she was unable to participate in the assessment process or that the provision of additional facilities would have aided her application and assessment for the allowance. The judgment of her medical assessors at both stages of the process was that that her condition did not meet the medical criteria for the provision of the Mobility Allowance. At each of the two stages of the process she was assessed by different medical personnel. I conclude, therefore, that the assessment was conducted in a fair and non discriminatory manner given the limited scope of the particular scheme.
3.7 On the evidence before me in terms of Mrs. Noonan’s application and appeal of her application for the Mobility Allowance, I conclude also that Mrs. Noonan’s disability did not restrict her in participating in the application and assessment process or, that special facilities would have been required to enable her to enter the process.
3.8 I am particularly conscious of the fact that Mrs. Noonan is significantly disabled by her medical condition, although the nature and extent of her disability did not at the time of her application and assessment, bring her within the restrictive and particularly narrow criteria set down for the award of the mobility allowance. I would make the following observation in relation to this case. I have to take account of the service and facilities available to Mrs. Noonan through the HSE Community Welfare Service. The evidence is that she has been offered mobility aids other than the mobility allowance and has not availed of these. I consider that by not availing of this potential assistance and determining its benefit, I am restricted in the scope I have to examine the overall provision of a disability service, including the mobility allowance to someone in Mrs. Noonan’s position. I consider that I can only look at the complainant’s specific application for the mobility allowance in a context where she had not exhausted the services and facilities that were on offer to her.
3.9 Victimisation
The complainant maintains that her treatment by Mr. Price and Ms Galvin represents victimisation towards her. I can only consider victimisation in accordance with the meaning of victimisation defined in Section 3(2) (j) the Equal Status Act 2000-2004. This sees victimisation in the context of action taken toward a person arising from the making of a complaint, their intention to make a complaint or other lawful connection with the making of a complaint under the Act. Any action taken prior to such events could not fall within this definition. In relation to the meeting with Mr. Price and Ms Galvin following the failure of her appeal, I have concluded that the meeting and what happened at it was not victimisation within the terms of the Equal Status Act 2000-2004 although it was prompted by Mrs. Noonan’s notified intention to make a claim of discrimination.
4. Decision
4.1 Having considered all of the evidence in this case, particularly in relation to the extent of Mrs Noonan’s disability and the extremely narrow scope of the Mobility Allowance applied for I conclude that the complainant has failed to establish a prima facie case of discrimination in accordance with the terms or the Equal Status Act 2000-2004 and accordingly her complaint must fail.
4.2 In such a case I cannot make an order for action to be taken but I am making a non-binding recommendation in the knowledge that it is open to the complainant at any time to make a new application for the Mobility Allowance. This is, that given the potentially progressive nature of Mrs. Noonan’s condition, that the respondent in the interest of best practice, would provide her with every assistance in making such an application, if she chooses to do so and that her application would be dealt with in due haste. I would further recommend that the complainant avail of all of the mobility aids offered to her by the HSE to assist in an accurate assessment being made of her condition. While my recommendations herein have no legal effect I would encourage both parties to take the opportunities presented by them.
Mary O’Callaghan
Equality Officer.
15th November 2007
1 Equal Status Act 2000-2004
DEC-S2009-011 – Full Case Report
Equal Status Acts 2000-2008
Equality Officer Decision
DEC-S2009-011
A Complainant v Health Service Executive (South)
(Represented by Mr. Diarmuid Cunningham of Comyn Kelleher and Tobin Solicitors)
Case reference ES/2006/0168
Issued 5 February 2009
Keywords
Equal Status Acts 2000 to 2008 – Discrimination, section 3(1)(a) – Disability ground, section 3(2)(d) – discrimination on ground of disability, reasonable accommodation, section 4(1) – Disposal of goods and provision of services, section 5(1) – Vicarious liability, section 42(2)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A mother referred a claim on behalf of her daughter, the complainant, to the Director of the Equality Tribunal under the Equal Status Acts on 29 December 2006. In accordance with her 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. An investigation in accordance with section 25(1) of the Acts commenced on 8 August 2008. An oral hearing, as part of the investigation, was held in Cork on 11 December 2008.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground in relation to the complainant’s access to a mobility allowance payment administered by the Health Service Executive. The complainant’s mother maintains that the Health Service Executive (“the respondent”) treated her daughter contrary to sections 3(1), 4(1) and 5(1) of the Acts on the ground of her disability on 9 November 2006 when her appeal into her daughter’s application for a mobility allowance was refused. The respondent was notified on 20 December 2006.
3. Case for the complainant
3.1. The complainant has an intellectual disability (Down syndrome) that her mother stated makes her very vulnerable. She is, according to her mother, unable to travel independently. It was submitted that the complainant might be able to take some simple journeys using public transport provided that she could be trained to do so. However, as there are no bus services in the area, this is a moot point.
3.2. The complainant lives in a rural area where she has no access to public transport. This, it was submitted, means that the free travel pass that she has is meaningless. The complainant’s parent submitted that she felt that there is a hierarchy of disabilities and that she felt that it would appear that Down syndrome is at the bottom.
3.3. The complainant’s parent submitted that it was unfair that her daughter could not avail of this grant just because she was able to use her limbs. It was submitted that it is her intellectual ability that restricts her mobility. The complainant’s parent had no complaints about the manner in which the medical assessment had been carried out. She also had no suggestions on how such an assessment process could have been more accessible to her daughter.
4. Case for the respondent
4.1. The respondent submitted that the complainant made an application for mobility allowance on 17 January 2006. She was assessed on 21 July 2006 by a Medical Officer. It was found that the complainant did not conform to the medical criteria laid down. This decision was confirmed by a Senior Medical Officer on 26 July 2006. This decision was appealed and the complainant was reassessed by a different area Medical Officer and again deemed not eligible based on the medical criteria for mobility allowance. This decision was also confirmed by a different Senior Medical Officer.
4.2. A mobility allowance is payable by the Health Service Executive, subject to a means test, to persons with a severe disability. Applicants must be 16 years or older and under 66 years. The allowance provides financial support to eligible persons who are unable to walk or use public transport and is intended to enable them to benefit from a change in surroundings – for example, by financing the occasional taxi journey. Any person applying for the mobility allowance will be assessed according to strict medical criteria set out in the Department of Health Circular 15/79.
4.3. The medical criteria for a person to be eligible for receipt of mobility allowance are as follows:
Is the applicant unable to walk, even with the use of artificial limbs or other suitable aids? (Interpret “unable” as the effective physical incapacity to walk)
Is the applicant in such a condition of health that the exertion required to walk would be dangerous?
(Where the answer to “A” or “B” is “Yes) Is the incapacity permanent?
(Where the answer to “C” is “No”). Is the capacity likely to persist at least one year?
Is the applicant forbidden for medical reasons from being moved?
Is the applicant in a condition to benefit from a change in his surroundings?
The complainant was refused because she did not conform to the medical criteria laid out under criteria A, B and E.
4.4. The respondent referred to Equality Tribunal decision DEC-S2007-076 as a case for consideration. It was submitted that the respondent had acted entirely in accordance with the rules set out in the Department of Health Circular 15/79 and that they are bound by the criteria set out in it. The respondent denies any failure to provide special assistance or facilities to the complainant.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they suffered discriminatory treatment. It is only where such a prima facie case has been established that this onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making this decision I have taken cognisance of both oral and written submissions made by the parties. It is agreed that the complainant is covered by the disability ground as defined in section 2(1) of the Acts. It is not for this Tribunal to consider issues pertaining to differences of treatment that may arise from rural/urban issues.
5.3. As the mobility allowance is governed by a Department of Health Circular No.15/79, and there is no primary legislation governing its specific application, I find that defences set out in section 14 of the Acts are not applicable. While I am satisfied that the Circular is set out by the Department of Health, I find that the Health Service Executive is a correct respondent in accordance with section 42(2).
5.4. Having heard the evidence I am satisfied that the respondent acted entirely in accordance with the rules set out by the Department of Health circular No. 15/79 in relation to this complaint. There is no evidence to support any failure by the respondent to offer special assistance or facilities to the complainant in accordance with section 4(1) in relation to the way in which the assessment process for the allowance was completed. I also note that the complainant’s parent was perfectly happy with the manner the assessment had been carried out and that the complaint is really in relation to the fact that the current assessment criteria is not inclusive of intellectual disability.
5.5. The respondent’s representative referred to DEC-S2007-076 at the hearing. This decision refers to a complaint taken by a person with a physical disability whoalleged that her condition was sufficiently severe to warrant her qualification for the mobility allowance and that the respondent failed to take sufficient account of the severity and impact of her disability in its evaluation of her application. I wish to distinguish this decision from DEC-S2007-076 on the following grounds:
1. The above decision concerns a person with a physical disability, who was assessed in accordance with the criteria set out in Circular 15/79.
2. The complainant in the above decision had been offered special assistance and/or facilities within the meaning of section 4(1) by the respondent which she had rejected.
3. The focus of this decision is concerned with whether the criteria in the Circular established in 1979 is broad enough in its approach to disability as defined in section 2(1) of the Acts. This approach must be broad enough to ensure non-discrimination between a person with a disability and another who has a different disability in accordance with the Acts.
5.6. I note that the aim of the mobility allowance is “for severely handicapped persons ….who would benefit from occasional trips away from home”. Paragraphs 5 and 6 of Circular 15/79 state:
5. “The essential medical criterion for the grant of the allowance is that the applicant is unable to walk, even with the use of artificial limbs or other suitable aids, or is in such condition of health that the exertion required to walk would be dangerous (emphasis in the original text). It is essential that this criterion should be interpreted strictly. This inability to walk has to be likely to persist for at least one year and the applicant must not be forbidden for medical reasons from being moved.”
6. It will be a matter for the Director of Community Care and Medical Officer of Health to decide whether the medical criteria are satisfied in any case.
5.7. Discrimination under the Acts is defined in section 3(1) as “where a person is treated less favourably than another person is, has been or would be treated in a comparative situation”. This comparator type of approach under the disability ground is defined as “that one is a person with a disability and the other either is not or is a person with a different disability (emphasis mine). In a case involving a different disability, this Tribunal must be satisfied that any such a comparator falls within the broad definition given to disability in the Acts. Disability is defined under the Acts as –
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
It is clear that the above definition includes a broad range of physical, intellectual and psychological conditions.
5.8. Having considered the wording of the actual Circular 15/79 and the evidence in relation to the assessment process, I note that there is an obvious failure to assess the intellectual capacity of the applicant in relation to their mobility. I find that the current clinical assessment does not, in its current format, allow for assessment that is compatible with the broad definition of disability as set out in the Equal Status Acts. The concept of mobility in the circular is construed in such a narrow manner that it fails to recognise that in some severe cases a person’s intellectual and/or psychological health may restrict their mobility as effectively as some physical disabilities do. I find that this is a clear omission and it is obvious that the mobility allowance has not been updated to comply with the requirements set out in the Equal Status Acts (enacted in October 2000). The complainant, in order for her not to have been less favourably treated than a person with a physical disability, should have had her intellectual ability in relation to her mobility assessed. This ability should be assessed alongside the physical assessment procedures based on the clinical judgment of a medical officer.
5.9 Based on the foregoing, I strongly recommend that the Health Service Executive (in partnership with the Department of Health and Children if necessary) examine the various allowance schemes governing people with disabilities to ensure that they and the associated assessment processes comply with the requirements of the Equal Status Acts.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of less favourable treatment in relation to the assessment process contrary to sections 3(1) and 5(1) on the ground of her disability. In accordance with section 27(A) I order the respondent to pay the complainant €1500 as redress for the inconvenience caused.
6.3. In accordance with section 27(B) I order the respondent to reassess the complainant’s entitlement to the mobility allowance by taking also into consideration her intellectual condition.
_________________
Tara Coogan
Equality Officer
5 February 2009
DEC-S2009-050 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC–S2009-050
PARTIES
Mrs. Kn and others v The Minister for Education & Science
Date of Issue: 5th August, 2009
Keywords
Equal Status Acts, 2000-2008 – Direct discrimination, Section 3(1)(a) – Indirect Discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1) – Access to Education, Section 7(2)
Delegation under the Equal Status Acts, 2000 to 2008
These complaints were referred to the Director of the Equality Tribunal on 8th January, 2007 and 14th April, 2008 (in the case of Mr. Kn) and on 30th June, 2008 (in the cases of Mr. Kr, Mr. Kh and Miss. Hy) under the Equal Status Acts, 2000 to 2004. On 31st October, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 31st March, 2009 and 1st April, 2009. Final correspondence with the parties following the hearing took place on 21st May, 2009.
1. Dispute
1.1 The complainants claim that they have been discriminated against by the respondent on the grounds of their disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Sections 5(1) and 7(2) of the Equal Status Acts, 2000 to 2008 in terms of the respondent’s policy which requires students attending special schools to leave the school that they are attending at the end of the school year in which they reach their eighteenth birthday.
2. Summary of the Complainants’ Case
Complaint of Mrs. Kn (on behalf of her son Mr. Kn) – Case Ref. Nos. ES/2007/0005 and ES/2008/0049
2.1 The complainant, Mr. Kn, who is aged 16 years, has a learning disability and a language disorder and attends a special needs school. This school caters for children with mild learning disorders and provides a full curriculum to Leaving Certificate and offers the Leaving Certificate Applied to its students. The complainant has a twin sister who attends a mainstream school and both children started primary school on the same day. However, it became apparent at an early stage that the complainant had special needs and he was transferred to a special school in September, 2003 where he has made significant progress. In November, 2005 the complainant’s mother became aware that special schools had received a communication from the Department of Education & Science to the effect that children who reach the age of 18 years should be obliged to leave the school at the end of that school year (referred to hereinafter as the “policy”). The implications of this policy for the complainant were immediately apparent for his mother. Although it was intended that both her children would follow a secondary school curriculum to Leaving Certificate standard, the complainant was facing the challenge that he would not be permitted to return to his school in the academic year following his eighteenth birthday, notwithstanding that he may have reached the final year of a Leaving Certificate programme. Whereas his twin sister, attending a mainstream school, would be permitted to complete her Leaving Certificate cycle without restriction.
2.2 The complainant commenced first year in the senior cycle (i.e. secondary level education) in September, 2007. However, as a result of the policy, it was decided that he would have to complete his Junior Certificate in a two year period rather than the normal period of three years and consequently, he was due to sit his Junior Certificate examinations in June, 2009. This course of action was deemed necessary to ensure that the complainant will have completed his Leaving Certificate Applied Programme in the year in which he reaches his eighteenth birthday. Accordingly, notwithstanding that the complainant may wish to repeat his Leaving Certificate or complete the programme he will be treated differently to his sister in identical circumstances because as a student in a mainstream school she will have the option of remaining on in school. It was submitted that the complainant, who has a disability, has been subjected to a less favourable educational experience while his sister, who has no disability, will be permitted without any impediment to complete her Leaving Certificate in the year in which she is nineteen. It was submitted that the decision to truncate the complainant’s education has proved very challenging and upsetting for him but the school and his parents have no alternative but to pursue this course to guarantee that he will be permitted to remain in school until the year in which he sits his Leaving Certificate Applied in light of the respondent’s policy.
Complaint of Mrs. Kh (on behalf of her son Mr. Kh) – Case Ref: ES/2008/0071
2.3 The complainant, Mr. Kh, who is aged 14 years, has dyspraxia and also attends a special needs school. The complainant commenced education in his local mainstream school but encountered significant difficulties and consequently, lost time in completing the primary school programme as he was required to stay back whilst in mainstream education. The complainant transferred to a special school in September, 2006 following a psychological assessment and is due to commence his secondary education in September, 2009. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday. As a result of this policy, the complainant will be required to skip a year in the secondary school cycle in order to complete the cycle by the year in which he will be eighteen years of age.
2.4 The view of the complainant’s teachers and parents is that he will be forced to enter the senior cycle before he is ready, if he is to be assured the possibility of sitting his Applied Leaving Certificate which it is felt that he has the potential to successfully complete. Because of the implications of the policy, it is planned that the complainant will move from sixth class in primary education directly into second year of the secondary school cycle. The consensus between the complainant’s parents and teachers however, is that to equip him for employment and independent living in accordance with his real potential, he must complete the Leaving Certificate Applied Programme. The stark reality is that he would benefit from extra time, not less, to enable him to achieve his potential within the education system and successfully complete his Leaving Certificate. The consequence of the current policy is that achievements made in building his self-esteem will be lost and he will be subjected to pressure over and above that which should be acceptable. The complainant’s sister, who is 20 months younger, is also due to commence her secondary education in September, 2009 in a mainstream school. It was submitted that she will have the option of completing her secondary cycle in six years whereas the complainant, who has a disability and would benefit from more and not less time, will be obliged to complete his secondary cycle in four years as a result of the respondent’s policy.
Complaint of Mr. Kr (on behalf of his son Mr. Kr) – Case Ref No. ES/2008/0072
2.5 The complainant, Mr. Kr, who is aged 17 years, has learning disabilities and also attends a special needs school. The complainant commenced his primary education in mainstream school but it quickly became apparent that he was struggling and he fell behind and required assistance. He attended a special education facility for a number of years whilst at primary school before transferring back to his local mainstream school where he completed sixth class. Due to the delay in completing the primary cycle where he was required to stay back, he commenced his secondary education at the special needs school at the age of 14 in September, 2006. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday. As a result of this policy, the complainant was forced to skip first year in secondary school and commence immediately in second year. This caused him to be subjected to pressure over and above the normal pressures for a disabled student who has learning difficulties. However, despite this the complainant successfully completed his Junior Certificate in two years and is now following the Leaving Certificate Applied curriculum.
2.6 The complainant was caused to skip first year in the secondary cycle as this was the only conceivable way of enabling him to complete the Leaving Certificate cycle by the year in which he reaches his eighteenth birthday. It was submitted that it is the shared and emphatic view of his teachers and parents alike, that if the complainant is to achieve his potential of employment and independent living, he must complete his Leaving Certificate Applied programme. The considered view of the professionals working with the complainant is that he has the ability to complete the programme and having completed the programme he will be in a position to confirm that he has the standard minimum educational qualification for most employment in the State. It was submitted that the respondent’s policy has a present and serious impact on the complainant and that he has been subjected to additional pressures as a result of this policy.
Complaint of Mr. & Mrs. Hy(on behalf of their daughter Miss. Hy) – Case Ref No. ES/2008/0073
2.7 The complainant, Miss. Hy, who is aged 18 years, has a mild learning disability and attends a special needs school. She commenced education in her local mainstream school but encountered significant difficulties in terms of her education and consequently, she transferred to a special school in September, 2001 (having completed third class in a mainstream primary school). The complainant has made significant progress in terms of her education in the time that she has attended the special school and she is currently following the Leaving Certificate Applied Programme, having completed the Junior Certificate Programme in three years. The complainant is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete the programme she will be nineteen before she can sit the Leaving Certificate Applied examination. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday. As a result of the respondent’s policy she lingers under the very significant apprehension that she will not be allowed to return to the special school that she attends to complete the Leaving Certificate Applied Programme. This is very disruptive to her studies and causes anxiety and heightened insecurity.
2.8 It was submitted that the complainant is a student with the capacity to complete the Programme and she has the potential to successfully sit her Leaving Certificate Applied. It was further submitted that if the complainant is deprived of an opportunity to do so, or is undermined in her ability to do so by the respondent’s policy, the lifelong implications for her and her ability to live independently and secure employment may be compromised. The complainant submitted that the respondent has indicated in correspondence to the complainant’s representative dated 19 June, 2008 that it will be necessary for her to transfer to adult services at the age of eighteen years. It was submitted that a formal application has been made to the respondent on behalf of the complainant for permission to remain at the special school for the school year 2009/10 in order to complete her Leaving Certificate Applied. However, she is still awaiting formal confirmation as to whether this permission will be granted. It was acknowledged that the respondent has indicated in its written submissions (in relation to the present complaint) that the complainant would be granted permission to remain at the school beyond her eighteenth birthday, however the respondent has not formally communicated this decision to her.
Submissions made on behalf of the Complainants
2.9 The complainants also put forward a number of submissions, both in the form of written submissions and at the hearing of the complaint, regarding the substantive issue which can be summarised as follows:
· It was submitted that the anomalous position arising from this policy is that children in mainstream schools who are older by reason of staying back a year or completing a transition year, who seek to repeat their final examinations notwithstanding that they are over 18 years of age, are automatically eligible to do so without permission or approval from the Department of Education & Science whereas a student in a special school is only entitled to remain in the school until the end of the school year in which he/she reaches the age of 18 years and may only continue in education with the permission of the Department, irrespective of whether the student has sat their Leaving Certificate or not.
· It was submitted that education is an area in which there has been significant and relevant recent legislative activity and the relevant legislation governing schools and the provision of education is the Equal Status Acts, 2000 to 2008, the Education Act, 1998, the Education (Welfare) Act, 2000, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. The complainants submitted that the respondent has not identified any statutory requirement within the aforementioned legislation for the restriction implemented by it on access to educational services of children in special needs schools as compared to these in mainstream schools. Accordingly, it appears that the difference in treatment complained of in this case is based on policy and not on a statutory provision. It was submitted that as a non-statutory policy relating to the provision of a service, it falls subject to scrutiny under the provisions of the Equal Status Acts and the fact that there may be no positive duty to compel the State to provide free education to young adults above the age of eighteen years, does not absolve the State through its agents from a duty not to discriminate.
· It was submitted that the provision of education is a service for which the respondent bears overall responsibility and it is clearly a service that comes within the scope of the Equal Status Acts, 2000 to 2008. When governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from those services[1]. It is quite clear that these steps have not been taken in this jurisdiction in light of the policy which is applied to students in special needs schools and not to students in mainstream schools.
· Whilst there are additional obligations on service providers and educational establishments to provide reasonable accommodation to person’s with a disability within the meaning of Section 4 of the Equal Status Acts, it was submitted that the complainants in the present cases are being treated less favourably because of disability rather than their special needs being accommodated and accordingly, the reverse of reasonable accommodation is taking place.
· It was submitted that the implementation of this policy does not and cannot affect students who do not have a disability. The complainants claimed that it is an inevitable consequence of the fact that a child who attends a special needs school has a disability and the only way that these pupils would be granted admission to a special needs school is on foot of a psychological report having been carried out. It was submitted therefore that the implementation of this policy only affects students with a disability who attend a special needs school.
· It was submitted that the alleged discrimination in the present case is a clear case of direct discrimination within the meaning of Section 3 of the Equal Status Acts as the policy in question only affects students with disabilities who attend special needs schools. The complainants submitted that it is not sufficient to get around the prohibition on discrimination (that is provided for in section 3 of the Acts) to argue that students with disabilities who attend mainstream schools are not subjected to the requirement that they leave the school at the end of the year in which they have reached their eighteenth birthday.
· It was also submitted that the policy in question constitutes indirect discrimination against the complainants within the meaning of section 3(1)(c) of the Equal Status Acts. The complainants claim that there is sufficient evidence before the Tribunal to enable it to make a finding that the complainants have been subjected to both direct and indirect discrimination.
3. Summary of the Respondent’s Case
3.1 The respondent stated that special schools are classified by the Department of Education and Science as primary schools and are intended to cater for children and young persons with special educational needs from the age of four years until the end of the school year in which the student reaches his/her eighteenth birthday. Following their departure from the special school the Department of Health and Children/Health Services Executive assumes direct responsibility for young adults with special educational needs who are over the age of eighteen years. The respondent may and does provide funding in respect of the education component of such provision, which generally occurs through the Vocational Educational Committees. The policy that pupils in special schools should transition to adult placement when they reach eighteen years of age is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. These considerations include the appropriateness of adults being educated in an environment with young children and associated child protection issues. The respondent stated that it is important to note the fact that if adults were not in general required to leave special schools, they may block places which would otherwise be available to children with educational needs. It was submitted that the resource implications of this would be that the Minister would have to provide additional special schools or special school placements.
3.2 The Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen years and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/Health Services Executive. This policy permits pupils to remain in the special school beyond their eighteenth birthday on the application of the school. It was submitted that the respondent simply restated this policy by way of letter to all special schools early in 2008 as it had become aware that schools were retaining pupils beyond the age of eighteen years without prior approval from the Department. The types of situations where such an application is made and granted are where the relevant pupil is pursuing a course of study for an examination or qualification and same will not be completed before the end of the school year in which the pupil reaches their eighteenth birthday. The issues which are considered by the respondent upon receipt of whether the retention of the pupil on the school will hinder enrolment of a younger pupil; whether the pupil is pursuing a course such as FETAC/Leaving Certificate Applied; whether the pupil will transfer to adult services after completion of their additional year in school and finally, whether a transition programme will be implemented by the school during the school year to ensure a successful transition. Other issues which may be considered by the Department’s Inspectorate include the age and peer appropriateness of the pupil remaining in the school; whether there is space in the school; whether permitting the pupil to remain in the school would deprive another child of a place in the school and whether the educational benefit to the pupil remaining in the school outweighs the benefit to the pupil of transferring to a post-school placement.
3.3 When an application is approved the pupil remains in the school on an ex-quota basis meaning that the school does not receive additional resources for the pupil. However, in reality and practice that has no impact on the level and quality of education of the pupil. In recent years due to the emphasis on inclusion and the greater number of children with special educational needs attending mainstream schools the numbers attending special schools have fallen. The respondent has not withdrawn or reduced staffing resources in the special schools notwithstanding this decrease in number and in effect, some special schools are now staffed and resourced over and above the levels of support originally envisaged.
Submissions made on behalf of the Respondent
3.4 The respondent also put forward a number of submissions, both in its written submission and at the hearing of the complaints, regarding the substantive issue which can be summarised as follows:
· The respondent submitted that students with the same type or categories of disabilities as the complainants attend mainstream schools. It was submitted that the same rules and policy that apply to non-disabled students in mainstream schools also apply to the disabled students that attend a mainstream school i.e. students with a disability in a mainstream school are automatically permitted to remain in school beyond the year of their eighteenth birthday. It was therefore submitted that the students in special needs schools are not being treated differently because of their disability but rather because of the type of school they attend, which is subject to the election or choice of their parents.
· The respondent submitted that the complainants have not demonstrated that their respective disabilities are different in nature than that of somebody with an equivalent mild intellectual disability who is attending a mainstream school. It was submitted that the complainants have not adduced sufficient evidence (i.e. expert psychological evidence) to establish that their disabilities are of such a nature that would prevent them from being educated in a mainstream school with the appropriate supports. Accordingly, it was submitted that the complainants have failed to meet the essential requirement within Section 3(2)(g) of the Equal Status Acts i.e. that they are persons with a different disability than a person with a mild intellectual disability who attends a mainstream school.
· It was submitted that it is not sufficient in order to succeed in a claim under the Equal Status Acts to show that the complainant is being treated differently than another person even if that difference of treatment arises from one of the grounds enumerated in the Acts, and this is particularly so in the field of education. The mere fact that a complainant is being treated differently or that provision for education is made in a different way does not mean that the complainant is being treated unfavourably. In the area of special educational needs, provision must be differentiated according to the specific needs of each individual[2].
· It was submitted that the test in the education field is whether provision is being made for an appropriate education for the individual and not whether that provision is the same as other pupils. Thus, it would only be if the complainants could establish that the provision which was being made for the appropriate comparator pupils in mainstream schools was appropriate and that the provision which was being made for complainants’ education was not appropriate that they could succeed in establishing discrimination.
· It was also submitted that even if the complainants’ case was that by reason of the Departmental policy of which complaint is made, provision is not being made for an appropriate education, that issue is one to be litigated as an alleged breach of the respondent’s duties under the Constitution, the Education Act, 1998, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. It was submitted that it would be strange if the Oireachtas had enacted detailed and considered educational legislation which could in fact be circumvented by bringing a complaint before the Tribunal under the Equal Status Acts.
· The respondent denies that the policy in question is either directly discriminatory against the complainants within the meaning of section 3(1)(a) of the Acts or that it is indirectly discriminatory against the complainants within the meaning of section 3(1)(c) of the Acts.
4. Issues of Jurisdiction
4.1 The respondent also raised a number of issues, both in its written submission and at the hearing of the complaints, regarding the jurisdiction of the Tribunal to investigate the present complaints under the Equal Status Acts, 2000 to 2008. The submissions made on behalf of both parties in relation to the issues of jurisdiction can be summarised as follows:
Issue of locus standi of the complainants to refer complaints under the Equal Status Acts
Respondent’s submission
4.2 The respondent submitted that the complainants do not have the locus standi to refer a complaint under the provisions of the Equal Status Acts. It submitted that the complainants have based their complaints on a policy that does not currently affect them and even if the Tribunal were to find that the policy amounts to discrimination within the meaning of the Acts, it does not affect the complainants until they are required to leave school or such requirement is imminent. It was submitted that the complaints are premature, in that the complainants are currently in school and are being provided with an education, and therefore, there is, at this point in time, no discriminatory act or otherwise which affects them. In addition to the complaints being premature in time there is nothing to suggest that the complainants will not be permitted to remain in school when the time comes and an application is made by their school in this regard.
4.3 The respondent submitted that the definition of discrimination in section 3(1)(a) of the Equal Status Acts does not incorporate a situation of apprehended discrimination or an act of discrimination that may occur at some point in the future. It was submitted that, in the present cases, the Tribunal is being asked to address a hypothetical situation in relation to what may or may not occur by reference to what the position may or may not be in law when the complainant has reached his eighteenth birthday. The respondent submitted it is well established that the Courts do not entertain hypothetical situations, nor should the Tribunal, for issues which are at this point in time, mute. It was submitted that the Equal Status Acts effectively prohibits discriminatory acts and permits complaints to be made where it is alleged that discriminatory acts have occurred, however there is nothing in the text of the Acts which would suggest that complaints can be made where discriminatory acts are apprehended or anticipated on a contingent basis. The respondent submitted that it would be a revolutionary proposition if the Equal Status Acts were capable of addressing apprehended discrimination, and if this had been the intention of the Oireachtas, in enacting the legislation, the provision for such a contingency would have made explicitly clear in the wording of the Acts.
Complainant’s submission
4.4 It was submitted that the complainants, do in fact, have the locus standi to refer a complaint under the provisions of the Equal Status Acts, 2000 to 2008 on the basis that they are already suffering the effects of this policy. Both Mr. Kn and Mr. Kr have been placed in a situation whereby they are obliged to complete their secondary education in a truncated period of time as compared to students who are attending mainstream school. As the policy dictates that the complainants must leave the school in the year in which they reach their eighteenth birthday, the school and their parents have taken steps to truncate their programme with the result that they have been caused to skip a year of their secondary education. As a result, both of the complainants find themselves in a position whereby they must complete the Leaving Certificate Programme in a shorter time frame than a student who attends a mainstream school i.e. the complainants have only four years in the senior cycle to complete their Leaving Certificate whereas a student who attends a mainstream secondary school, has six years. The decision to truncate their education has proved very challenging and upsetting for the complainants, who have special needs and therefore would benefit from more time rather than less in completing the programme, but the school and their parents have no alternative but to pursue this course to guarantee that they will be permitted to remain in school until the year in which he sits his Leaving Certificate.
4.5 In the case of Miss Hy, she is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete the programme she will be nineteen before she can sit her final examinations. It was submitted that a formal application has been made to the respondent on her behalf for permission to remain at the special school for the school year 2009/10 in order to complete her Leaving Certificate Applied. However, she is still awaiting formal confirmation as to whether this permission will be granted. It was submitted that the policy has already had a negative impact upon her in terms of the stress and anxiety to which she has been subjected as a result of the uncertainty as to whether or not she will be allowed to remain at the school in order to complete her Applied Leaving Certificate.
4.6 In the case of Mr. Kh, he is due to commence his secondary education in September, 2009 at the age of 14 years. It was submitted that he will be forced to enter the senior cycle (i.e. secondary education) before he is ready and if he is to be assured of the possibility of sitting his Leaving Certificate Applied which it is felt that he will have the potential to successfully complete. Because of the implications of the policy, it is planned that the complainant will have to move from sixth class in primary education directly into second year of the secondary school cycle (as he will have only four years available to him in the secondary cycle before he is required to leave the special school). It was submitted that the policy has already had an impact on his education in terms of the plans that have to be put in place in order to ensure that the complainant will be allowed to complete his Leaving Certificate Applied by the end of the school year in which he reaches his eighteenth birthday.
4.7 It was submitted that the wording contained within the definition of discrimination in section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. This section of the Acts has a very wide scope in combating discrimination and it applies to the situation in question in the present cases i.e. an apprehended refusal of permission to remain in the school when the complainants have attained the age of 18 years. It was submitted that this argument is supported by the language used in the definition of discrimination at section 3(1)(a)(iii) where the wording “may exist in the future” is used in relation to the discriminatory grounds. The complainants submitted that the wording within this section is drafted with the intention that it have a very wide scope in combating discrimination, and it was submitted that it applies to the situation that pertains in the present cases, where we are dealing with an apprehended refusal of permission for the complainant to remain at the school following the year in which he has reached his eighteenth birthday.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
Respondent’s submission
4.8 The respondent submitted that the Department of Education & Science is not a “service provider” as defined by the Equal Status Acts and it claimed that the Department was not a provider of education but rather that its role was to provide for education. The respondent submitted that section 7 is the only provision within the Equal Status Acts which governs discrimination in the education sphere and therefore, in order to succeed in the present cases, the complainants must bring their claims within this section of the Acts and demonstrate that the respondent, in exercising its functions in relation to education falls within section 7 of the Acts. It was submitted that in order to do so, the complainants must show that the respondent is an “educational establishment” within the meaning of section 7(1) of the Acts and that it is discriminating against the complainant in one or more of the areas set out in section 7(2) of the Acts. It was submitted that the respondent is not and cannot be regarded as an “educational establishment” and does not fall within the definition of same which is provided for by section 7(1) of the Acts. In light of that fact, the respondent submits that it cannot be guilty of discrimination in relation to access to an educational establishment within the meaning of the Equal Status Acts.
4.9 The respondent does not own, manage or govern the school which is being attended by the complainants and which actually delivers the education which is complained of in these complaints. Instead, it claims that the Education Act, 1998 makes it entirely clear that it is the Board of Management of a school which is obliged to fulfil these functions, and indeed has a specific and recognised right to manage its own affairs in doing so. The respondent referred to the Crowley case[3] in which the relationship between a national school, its teachers and the Department of Education and Science was considered by the Supreme Court. There it was noted that the obligation of the State under Article 42.4 of the Constitution was “to provide for” free primary education and not to supply it directly. It was submitted that the respondent does provide funding to the schools which are delivering the complainants’ education in order to provide for that education but that does not constitute the provision of a service within the meaning of the Equal Status Acts or render the respondent an educational establishment within the meaning of the Acts.
4.10 Even if it is incorrect in its submission that section 7 of the Equal Status Acts is the sole provision governing discrimination in education, the respondent does not fall within any of the remaining meanings of “provider of a service” contained within section 4(6) of the Acts. The respondent does not provide education, so even if the delivery of education constitutes the provision of a service (other than in the sense of section 4(6)(e) of the Acts) this is not one that is provided by the respondent. The respondent is, therefore, not providing a service within the meaning of section 5(1) and is not “a provider of a service” within the meaning of section 4(5) of the Acts. It was therefore submitted that the present complaints against the respondent are fundamentally misconceived and that the Minister is not the appropriate respondent to this complaint.
Complainant’s submission
4.11 The complainants accept that the respondent is not an “educational establishment” within the meaning of section 7 of the Equal Status Acts, 2000 to 2008. However, it was submitted that the provision of education services within the meaning of the Equal Status Acts is not strictly confined to those services that are provided by “educational establishments” within the meaning of section 7 of the Acts. The complainants submitted that the role of the respondent as a service provider within the education sphere is clearly defined in the Education Act, 1998[4] and it was contended that the Minister has a very important role in the control and management on a day to day basis of the school that the complainants attend, which includes, for example, the responsibility for the employment and payment of teachers, the examination and certification system, the evaluation of schools and regulation of school activities through the issue and dissemination of Departmental circulars.
4.12 The complainants submitted that the definition of the word “service” in section 2 of the Equal Status Acts is extremely broad and the Tribunal should give this provision as wide an interpretation as possible in order to achieve the aim and purpose of the legislation i.e. as a social and remedial statute to promote equality and prohibit discrimination[5]. The complainants also submitted that it is clear from the wording included in the long title of the Equal Status Acts that it is remedial legislation that was adopted to address social injustice and consequently, it should be interpreted in a broad manner. Accordingly, it was submitted that the Minister for Education & Science is clearly a service provider in the education sphere within the meaning of section 5 of the Equal Status Acts.
5. Conclusions of the Equality Officer in relation to the issues of jurisdiction
5.1 Firstly, I will first consider the issues of jurisdiction that have been raised by the respondent because, if I find in favour of the respondent on these issues, I am therefore precluded from considering the substantive complaints.
Locus standiof the Complainants to refer a complaint under the Equal Status Acts
5.2 In considering this issue, it was not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education i.e. three years at Junior Certificate level (with the option of completing a transition year) and a further two years at Leaving Certificate level. In the present cases, it was decided that both Mr. Kn and Mr. Kr would have to complete their secondary education in a four year period rather than the normal period of five years to ensure that they would have completed the Leaving Certificate Applied Programme in the year in which they have reached their eighteenth birthday (i.e. in order to comply with the requirements of the policy).
5.3 Having regard to the foregoing, I am satisfied that the effects of the policy have already had an impact on the education of both Mr. Kn and Mr. Kr in terms of the period of time within which they will be afforded in order to complete their secondary education. I accept that the complainants, in effect, will not have to apply to the Minister for permission to remain in the school until they have reached their eighteenth birthday. However, it is clear that the uncertainty as to whether or not they would be allowed to remain at the special school in order to complete the Applied Leaving Certificate, if such an application were necessary at that juncture, has resulted in the decision to skip a year in order to ensure that their secondary education will be completed in compliance with the age requirements of the policy. I am therefore satisfied that the policy has already had a direct impact on both Mr. Kn and Mr. Kr in terms of the duration of time which they have been afforded in order to complete their secondary education.
5.4 In the case of Miss Hy, I note that she is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete this programme she will be aged 19 years before she is due to sit her Leaving Certificate Applied examinations. It was not disputed that students are in general afforded a two year period to complete the Leaving Certificate Applied/Leaving Certificate curriculum irrespective of whether they are attending a special school or a mainstream school. Having regard to the terms of the policy, it is clear that the complainant, upon commencing the Leaving Certificate Applied Programme in September, 2008, would have done so in the absence of any assurance or guarantee that she would be permitted to remain in the school in order to complete this course of education. I am satisfied that the terms of the policy had been clearly communicated to her (by virtue of correspondence received from the respondent) prior to her commencement of this programme of education. I am therefore satisfied that the effects of the policy had a direct impact upon the complainant at that juncture and that it continues to do so on an ongoing basis as it is clearly the case that she will have to apply for permission to remain at the school in order to complete her Leaving Certificate Applied Programme.
5.5 In the case of Mr. Kh, I note that he is due to commence his secondary education in September, 2009 at the age of 14 years. It is planned that the complainant will commence the Junior Certificate Programme at this juncture. I am satisfied that I have not been presented with any evidence from which I could conclude that he will not be in a position to commence the Junior Certificate Programme at this juncture. It is clear that the complainant will be 19 years of age by the time he has completed the five year cycle of education that is normally afforded to students within which to complete the Junior Certificate and Leaving Certificate Applied Programmes. Having regard to the implications of the policy, I am therefore satisfied that the complainant can say with certainty at the present point in time that he will not be afforded the normal period of five years within which to complete the Junior Certificate/ Leaving Certificate Applied Programmes.
5.6 As a consequence of this situation, I accept the complainant’s evidence that it has been necessary to make a decision that he will have to move from sixth class in primary education directly into second year of the secondary cycle in order to ensure that he will have completed the Leaving Certificate Applied by the end of the year in which he will reach his eighteenth birthday. I also accept the complainant’s evidence that it has been necessary to make this decision at the present juncture despite the fact that he would benefit from an additional year of education in the primary cycle. Based on the foregoing, I am satisfied that the requirements of the policy have already had an impact on the complainant’s education both in terms of the duration of time that he has been afforded in the primary cycle and the duration of time which he will be afforded in the secondary cycle.
5.7 I have also noted the complainants’ submission that the definition of discrimination within section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. As I have found that the policy in question has already had a direct impact on the complainants in terms of their education, I am therefore not required to consider the merits or otherwise of this argument any further in order to decide the substantive issue in question in the present cases. Accordingly, I find that all of the complainants do have the locus standi to refer a complaint under the Equal Status Acts, 2000 to 2008.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
5.8 The question that I must address in relation to this issue is whether or not the Minister for Education & Science falls into the category of a “service provider” as defined under the Equal Status Acts, 2000 to 2008. I note that the respondent has submitted that the Minister for Education & Science is not a “service provider” as defined under the Equal Status Acts and that his role is to “provide for education” rather than being a provider of education. In considering this issue, I have taken cognisance of the Education Act, 1998, including the provisions at section 7(1)(c) which state that “each of the following shall be a function of the Minister; to plan and co-ordinate (i) the provision of education in recognised schools and centres for education and, (ii) support services” and section 7(2)(b) which provides that it “shall be a function of the Ministerto monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education”. I am of the view that these provisions clearly indicate that the Minister has a pivotal role to play in planning and co-ordinating the provision of education in recognised schools and centres for education.
5.9 I accept the respondent’s argument that it is not an educational establishment within the meaning of section 7 of the Equal Status Acts, however, I cannot accept that the type of services which it provides in the educational sphere (in accordance with its obligations under the Education Act) do not constitute a service within the meaning of section 2 of the Equal Status Acts. “Service” is defined in section 2 of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… ”. I am satisfied that the types of services provided by the respondent in the educational sphere are covered by the broad definition of “service” within the meaning of the Equal Status Acts. Furthermore, I am of the view that it could not have been the intention of the legislature that such services would be excluded from the remit of the Equal Status Acts.
5.10 I have also taken note of the decision of the Equality Officer in the case of Anastasia Lyamina –v- The Department of Education & Science[6] in which this very issue was decided upon. In this case the Equality Officer took into consideration, as part of his deliberations on this matter, the role and functions of the Minister as provided for in the Education Acts. 1998 and he also had regard to a number of publications by the Department of Education & Science regarding its role in the provision of education within the State. I note that the Equality Officer stated in his findings that “having taken the contents of the Education Act into consideration in addition to the aforementioned publications (Mission Statement, Customer Service Charter and Statement of Strategy of the Department of Education & Science), I have formed the opinion that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts, 2000 to 2008” . In considering this matter, I fully concur with the findings of the Equality Officer on this issue in the aforementioned case. Accordingly, I therefore find that respondent is a “service provider” within the meaning of the Equal Status Acts, 2000 to 2008.
5.11 Furthermore, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainants in the present cases.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Discriminatory Treatment
6.2 In the present case, it was not disputed that all of the complainants have learning disabilities and I am therefore satisfied that they are persons with a disability within the meaning of section 2(1) of the Equal Status Acts. Therefore, the question that I must address in the present case in whether or not the requirement that is imposed upon the complainants, as students who attend a special school, to leave the school in the year in which they reach their eighteenth birthday constitutes discrimination on the disability ground within the meaning of the Equal Status Acts.
6.3 In considering this issue, I am of the view that it is important to take into consideration the nature of the educational services that are provided by special schools to its students in comparison to the services that are provided by mainstream secondary schools. In this regard, I note that special schools are classified by the Department of Education & Science as primary schools and they provide a wide range of holistic educational programmes that are designed to meet the individual needs of the students and that these schools do not focus exclusively on preparing students to acquire certification in terms of State examinations. The special school which is attended by the complainants caters for children with mild learning disorders, and in addition to the provision of holistic educational programmes, it also provides a full curriculum to Leaving Certificate and offers the Junior Certificate/Leaving Certificate Applied to its students. However, the decision as to whether or not a particular student pursues a curriculum that leads to certification is very much dependent on the individual ability of the particular student and it is therefore the case that a certain proportion of students who attend special schools will be deemed not to have the requisite academic ability to pursue such a course. This is in contrast to the services which are provided by secondary schools operating in the mainstream educational sphere whose primary objective is to prepare students to acquire accreditation in terms of state examinations such as the Junior Certificate, Leaving Certificate/Leaving Certificate Applied.
6.4 I have taken note of the evidence of Mr. A, the School Principal (of the special needs school that the complainants attend) that the issue of preparing students to acquire certification in terms of accredited State examinations came into effect for special schools following the introduction of the Leaving Certificate Applied curriculum in 1995. It is clear that the introduction of courses leading to accreditation, such as the Junior Certificate/Leaving Certificate Applied, to the post-primary curricula of special schools at that juncture made it possible for students attending these schools to pursue courses that were also available to students attending mainstream secondary schools. I am of the view that the introduction of such accredited courses to the secondary level curricula of special schools at that juncture would have resulted in the emanation of two different categories of students in terms of their ultimate secondary level educational objectives, firstly, those students who pursue an accredited course of education (such as the Junior Certificate/Leaving Certificate Applied) and secondly, those students who pursue non-accredited individual programmes of education.
6.5 I am of the view that it is important to note that Mr. Kn, Mr. Kr and Miss Hy are all currently pursuing an accredited course of education, i.e. the Junior Certificate/Leaving Certificate Applied at the special school which they attend. In the case of Mr. Kh, he will be commencing the Junior Certificate Programme at the special school which he attends in September, 2009. I would therefore make an important distinction between the two aforementioned categories of students who attend special schools in terms of deciding whether the application of the policy in question in the present cases is discriminatory. I believe that it is necessary to make such a distinction as the implications of the policy will potentially have different consequences for both of these categories of students.
6.6 Based on the evidence presented, it would appear to be the norm that students who are attending special schools (as a result of their disability) would normally commence their secondary education at a more advanced age than their counterparts in mainstream education. It is therefore highly unlikely that such a student will have completed a five year programme of education leading to certification (e.g. the Junior Certificate and Leaving Certificate Applied) by the time he/she has reached the age of eighteen years. This is in contrast to the situation that pertains in the case of a student who attends a special school and who is pursuing a non-accredited programme of education. This category of student would normally pursue an individually tailored course of education and is therefore not subjected to the same requirements in terms of having to complete an accredited curriculum within a defined period of time in order to comply with the requirements of the policy.
6.7 In the present cases, it was not disputed that the school (which the complainants attend) was aware of the terms of the policy upon the introduction of accredited courses. However, it would appear that it did not strictly adhere to the requirement to apply for permission to retain a student after he/she had reached eighteen years of age and a certain amount of discretion was exercised by the school in terms of the application of this policy. I note that it was only when the terms of the policy were re-stated in a Tuairisc Scoile (a School Report carried out by the Department of Education & Science) in May, 2005 that the implications of the policy were formally brought to the attention of the Parents Association by the School Principal, Mr. A. I am satisfied that the potential implications of the policy came more acutely into focus for the parents/teachers of students who were pursuing or intending to pursue accredited secondary level educational courses (such as the Applied Leaving Certificate) at this juncture and following the receipt of subsequent correspondence from the Department of Education & Science which outlined the requirement of schools to comply with the policy.
6.8 I am satisfied that this increased level of awareness of the policy and the uncertainty as to whether any extension to remain in the special school would be granted, if requested, resulted in decisions been taken which resulted in both Mr. Kn and Mr. Kr skipping a year of their secondary education in order to ensure that they will have completed their respective courses of education by the end of the year in which they reached the age of eighteen years and thereby comply with the requirements of the policy. In the case of Mr. Kh, it has also resulted in a decision that it will be necessary for him to move from sixth class in the primary cycle directly into second year of his secondary education in order to ensure that he will have completed his accredited course of education by the end of the year in which he reaches the age of eighteen years. I fully accept that the policy provides the facility whereby students can apply for permission to remain at the school for a further year in order to complete their respective courses and the evidence adduced confirms that the respondent has not to date refused any such application on behalf of a student who was pursuing a course of education leading to certification.
6.9 However, I am satisfied that the option of applying for an extension was of little reassurance to the complainants when decisions were being taken as to when they should commence their respective accredited courses of education given that the permission to grant any such extension was entirely at the discretion of the Department of Education & Science and there was no guarantee that any such application would be acceded to, if it were to be made at some stage in the future. Having regard to the foregoing, and taking into consideration that the complainants have a learning disability and the respective ages at which they commenced or will commence their secondary education, I am satisfied that the requirement to leave the school at the end of the year in which they will have reached their eighteenth birthday puts them at a distinct disadvantage and presents serious, if not insurmountable, difficulties in terms of their ability to complete a course of education leading to a certification (such as the Junior Certificate/Leaving Certificate Applied) by the time they have reached this age.
6.10 In order for me to determine whether the aforementioned disadvantage to which the complainants have been subjected in terms of the implementation of the policy in question constitutes discriminatory treatment within the meaning of the Equal Status Acts, it is necessary to make the appropriate comparison between the complainants and that of their counterparts in mainstream education. It is also necessary for me to decide whether the alleged discriminatory nature of the policy constitutes direct discrimination within the meaning of section 3(1)(a) or indirect discrimination within the meaning of section 3(1)(c) of the Acts. In considering this issue I note that the “disability ground” is defined in section 3(2)(g) of the Equal Status Acts as “that one is a person with a disability and the other either (my emphasis) is not or is a person with a different disability”. I am of the view that the appropriate comparator in this case is either a student without a disability or a student with a different disability than the complainants who attends a mainstream secondary school. Given the nature of the educational services that are provided by mainstream secondary schools it is the case that the comparator will also be a student who is pursuing a course of education leading to accreditation (i.e. the Junior Certificate or the Leaving Certificate/Applied Leaving Certificate).
6.11 I do not accept the respondent’s argument that the complainants in the present cases fail to satisfy the requirements of section 3(2)(g) of the Acts on the basis that they cannot demonstrate they have a different disability than a person with a mild learning disability who attends a mainstream secondary school. I am of the view that it is absolutely irrelevant, when deciding upon the appropriate comparator in this case, that there are also students who attend mainstream schools who have learning disabilities similar or identical to that of the complainants. I am satisfied that the reason the complainants attend a special school is as a direct consequence of the special educational requirements that arise because of their respective disabilities. It is clearly the case that a special school will cater only for students who have a disability and who have been professionally assessed as requiring the services of such a school. Therefore, the policy in question in the present case only affects students with a disability who attend special schools and it does not affect either student’s without a disability or with a different disability to the complainants that attend mainstream schools.
6.12 I have noted that the complainant has also made a supplemental argument that the policy in question is both directly and indirectly discriminatory against the complainants within the meaning of sections 3(1)(a) and 3(1)(c) of the Acts. As I have already stated, I am satisfied that the policy only affects students with a disability who attend special schools and that it does not affect students attending mainstream schools. I am therefore satisfied that the terms of the policy i.e. the requirement for students attending special schools to leave the school at the end of the year in which they reach eighteen, does not constitute “an apparently neutral provision” within the meaning of section 3(1)(c) of the Acts, rather it is a provision which directly affects a specific category of persons, namely disabled students who attend special schools. I therefore find that the issue as to whether or not the policy in question is discriminatory falls to be decided within the provisions of section 3(1)(a) of the Equal Status Acts i.e. direct discrimination.
6.13 In making the apposite comparison in this case, it is not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education i.e. three years at Junior Certificate level with the option of completing a transition year and a further two years at Leaving Certificate level (in some cases the student will be also be facilitated in repeating the final year of the Leaving Certificate programme). It is also the case that a student in mainstream education is not required to have completed his/her secondary education by the end of the year in which he/she has reached their eighteenth birthday. I accept that the Leaving Certificate Applied may not be available in every mainstream secondary school. However, in the mainstream schools where it is, the students who pursue this course are automatically entitled to avail of the same facilities in terms of the duration of time allowable to complete their studies, as those students who pursue the standard Leaving Certificate programme. Having regard to the foregoing, I am satisfied that the policy which requires the complainants (as students who are pursuing or intend to pursue an accredited course which is also available in mainstream secondary education) to leave the special school at the end of the year in which they reach their eighteen birthday, in circumstances where no such requirement is enforced upon students who attend mainstream secondary education, clearly amounts to less favourable treatment on the grounds of their disability within the meaning of the Equal Status Acts.
6.14 I have carefully considered the respondent’s evidence that the implementation of the policy is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. I have also taken into consideration that the Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/HSE. In considering this defence, I accept that the policy may be entirely appropriate in the situation of a student at a special school who has reached the age of eighteen years and who is not pursuing an accredited course of education such as the Leaving Certificate Applied. In such cases it may well be beneficial and in the best interests of that particular student (depending on their individual circumstances) to transfer from the special school to adult services at the end of the year in which he/she has reached the age of eighteen years. However, I cannot accept that the policy serves the best educational or developmental interests of students, such as the complainants, who are pursuing an accredited course of education at a special school. I cannot see any merit in a policy that could preclude such a student from completing an accredited programme of education in the school environment which has developed their ability and confidence to complete such a programme.
6.15 Based on the evidence presented, it is clear that the policy at issue in the present cases had been in existence for a considerable period of time prior to the introduction within special schools of courses leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied). I am of the view that the indiscriminate application of this policy for all students who were attending special schools became untenable at that juncture and it should have been reviewed in order to ensure that students in special schools who were completing courses leading to accreditation were afforded similar facilities to their counterparts in mainstream education in terms of the duration of time that they are allowed to complete these courses. In the circumstances, I find that the complainants have been subjected to less favourable treatment than their counterparts in mainstream education on the grounds of their disability in terms of the requirement that they should leave the special school at the end of the year in which they have reached their eighteenth birthday. Accordingly, I find that the complainants have succeeded in establishing a prima facie case of discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination.
Reasonable Accommodation
6.16 The parties also made submissions, both in writing and at the oral hearing of the complaints regarding the issue as to whether or not the policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts. Having regard to the totality of the evidence adduced, I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present cases. Accordingly, I am satisfied that it is not necessary for me to consider these complaints in the context of section 4 of the Acts.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainants have established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts in terms of the requirement that is imposed upon them by the respondent to leave the special school at the end of the year in which they have reached their eighteenth birthday and that the respondent has failed to rebut the inference of discrimination.
7.2 I hereby make the following order in accordance with section 27(1)(a) of the Equal Status Acts:
· The respondent is hereby directed to pay both Mr. Kn (Case Ref. Nos. ES/2007/0005 and ES/2008/0049) and Mr. Kr (Case Ref No. ES/2008/0072) the sum of €4,000 and to pay Miss Hy (Case Ref No. ES/2008/0073) the sum of €2,000 for the effects of the discriminatory treatment in this case. In the case of Mr. Kh (Case Ref. No. ES/2008/0071), I do not consider an order for compensation to be appropriate. In making this decision, I have taken into consideration that Mr. Kh is due to commence his secondary education in September, 2009 and having regard to the order which I have made in paragraph 7.3, I am satisfied that it will result in him being afforded the same duration of time to complete the Junior Certificate/Leaving Certificate Applied Programmes as his counterparts in mainstream education.
· In deciding upon the quantum of the awards in the cases of Mr. Kn, Mr. Kr and Miss Hy, I have taken into consideration that Miss Hy’s period of education in the secondary cycle has not been truncated to date and she has not been forced to skip a year out of the normal cycle that is afforded to a student who is pursuing the Leaving Certificate Applied Programme. However, I am satisfied that the policy in question has resulted in a great deal of stress and anxiety to her in terms of the uncertainty as to whether she will be allowed to complete this programme of education in the special school which she presently attends. This is in contrast to the situation that pertains in the cases of Mr. Kn and Mr. Kr, both of whom have been forced to skip a year of their education in the secondary cycle in order to ensure that they will have completed the Leaving Certificate Applied Programme in compliance with the respondent’s policy. I am of the view that this course of action has had a serious impact on their education, especially in light of the fact that they are students with a disability who would benefit with being afforded a longer period of time to complete their respective courses of education than their counterparts in mainstream education; however, the policy in question has resulted in a situation whereby they have been forced to complete their secondary education in a truncated period of time.
7.3 In accordance with the provisions of section 27(1)(b) of the Equal Status Acts, the respondent is hereby directed to review the policy that requires students who are attending special schools to leave the school at the end of the year in which they reach their eighteenth birthday with a view to ensuring that students in special schools who are pursuing courses leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied) be afforded the same duration of time to complete these courses as their counterparts in mainstream education.
Enda Murphy
Equality Officer
5th August, 2009
[1]The complainants referred to the case of Eldridge –v- British Columbia (Attorney General) [1997] 3 SCR 624 in support of its submissions in relation to this point
[2]The Respondent referred to the case of the Board of Education of Hendrick Hudson Central School –v- Rowley (in which the Supreme Court of the United States of America commented on the meaning of the phrase “free appropriate public education”).
[3]Crowley -v- Ireland [1980] IR 102 at page 126
[4]Sections 2 and 7 of the Education Act, 1998 refers
[5]The complainant referred to the Supreme Court judgement of McGuinness J. in Western Health Board –v- K.M. (S.C. No. 103 of 2001)
[6]Equality Officer Decision No. DEC-S2009-016 refers
DEC-S2009-051 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC–S2009-051
PARTIES
Mrs. Cr v The Minister for Education & Science
File Reference: ES/2008/0074
Date of Issue: 5th August, 2009
Keywords
Equal Status Acts, 2000-2008 – Direct discrimination, Section 3(1)(a) – Indirect Discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1) – Access to Education, Section 7(2)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 30th June, 2008 under the Equal Status Acts, 2000 to 2004. On 31st October, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 31st March, 2009 and 1st April, 2009. Final correspondence with the parties following the hearing took place on 21st May, 2009.
1. Dispute
1.1 The complainant claims that she has been discriminated against by the respondent on the grounds of her disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Sections 5(1) and 7(2) of the Equal Status Acts, 2000 to 2008 in terms of the respondent’s policy which requires students attending special schools to leave the school that they are attending at the end of the school year in which they reach their eighteenth birthday.
2. Summary of the Complainants’ Case
2.1 The complainant, Miss. Cr, who is aged 13 years, has a learning disability and attends a special needs school. This school caters for children with mild learning disorders and provides a full curriculum to Leaving Certificate and offers the Junior Certificate/Leaving Certificate Applied to its students. The complainant commenced her primary education in mainstream school when she was aged 5 years but she experienced serious difficulties because of her learning disability. Following an assessment by a clinical psychologist whilst in senior infants the complainant was transferred to the special needs school in March, 2003 at the age of 7 years. She has made significant progress during her time at the special needs school and is currently exceeding all expectations. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday.
2.2 The complainant is currently following a Holistic Life Skills Educational Programme. However, her full educational potential has not been assessed and it remains an open question as to whether she has the ability to complete the Junior Certificate and/or Leaving Certificate Applied programmes. Given the strides that she has made, active consideration is being given as to how to maximise her potential at the school by the time she is eighteen years of age and it has been made clear that for her to participate in a formal programme of education (such as the Junior Certificate/Leaving Certificate Applied) to conclusion, she will be required to skip parts of the normal curriculum in order to make up time. In light of the implications of the current policy, it was decided in September, 2008 to fast track the complainant into first year of the senior cycle programme (i.e. secondary level) although educationally she would have benefited from another two years following the primary school programme. It has been necessary to follow this course of action to ensure that the complainant will have the benefit of five years in the senior cycle before she is required to leave the special school upon attaining the age of eighteen years.
2.3 The complainant’s mother claimed that her daughter needs the maximum amount of time available in the special school and that she will not be ready to leave the school by the time she has reached eighteen years of age. It was submitted that she would benefit greatly from having the option of spending an additional or repeat year in the senior cycle. However, the option of an additional year is not automatically available to her as would be the case of a student in mainstream education because of the respondent’s requirement that she transfer to adult services upon reaching the age of eighteen years.
Submissions made on behalf of the Complainant
2.4 The complainant also put forward a number of submissions, both in the form of written submissions and at the hearing of the complaint, regarding the substantive issue which can be summarised as follows:
· It was submitted that the anomalous position arising from this policy is that children in mainstream schools who are older by reason of staying back a year or completing a transition year, who seek to repeat their final examinations notwithstanding that they are over 18 years of age, are automatically eligible to do so without permission or approval from the Department of Education & Science whereas a student in a special school is only entitled to remain in the school until the end of the school year in which he/she reaches the age of 18 years and may only continue in education with the permission of the Department, irrespective of whether the student has sat their Leaving Certificate or not.
· It was submitted that education is an area in which there has been significant and relevant recent legislative activity and the relevant legislation governing schools and the provision of education is the Equal Status Acts, 2000 to 2008, the Education Act, 1998, the Education (Welfare) Act, 2000, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. The complainant submitted that the respondent has not identified any statutory requirement within the aforementioned legislation for the restriction implemented by it on access to educational services of children in special needs schools as compared to these in mainstream schools. Accordingly, it appears that the difference in treatment complained of in this case is based on policy and not on a statutory provision. It was submitted that as a non-statutory policy relating to the provision of a service, it falls subject to scrutiny under the provisions of the Equal Status Acts and the fact that there may be no positive duty to compel the State to provide free education to young adults above the age of eighteen years, does not absolve the State through its agents from a duty not to discriminate.
· It was submitted that the provision of education is a service for which the respondent bears overall responsibility and it is clearly a service that comes within the scope of the Equal Status Acts, 2000 to 2008. When governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from those services[1]. It is quite clear that these steps have not been taken in this jurisdiction in light of the policy which is applied to students in special needs schools and not to students in mainstream schools.
· Whilst there are additional obligations on service providers and educational establishments to provide reasonable accommodation to person’s with a disability within the meaning of Section 4 of the Equal Status Acts, it was submitted that the complainant in the present case is being treated less favourably because of disability rather than her special needs being accommodated and accordingly, the reverse of reasonable accommodation is taking place.
· It was submitted that the implementation of this policy does not and cannot affect students who do not have a disability. The complainant claimed that it is an inevitable consequence of the fact that a child who attends a special needs school has a disability and the only way that these pupils would be granted admission to a special needs school is on foot of a psychological report having been carried out. It was submitted therefore that the implementation of this policy only affects students with a disability who attend a special needs school.
· It was submitted that the alleged discrimination in the present case is a clear case of direct discrimination within the meaning of Section 3 of the Equal Status Acts as the policy in question only affects students with disabilities who attend special needs schools. The complainant submitted that it is not sufficient to get around the prohibition on discrimination (that is provided for in section 3 of the Acts) to argue that students with disabilities who attend mainstream schools are not subjected to the requirement that they leave the school at the end of the year in which they have reached their eighteenth birthday.
· It was also submitted that the policy in question constitutes indirect discrimination against the complainant within the meaning of section 3(1)(c) of the Equal Status Acts. The complainant claims that there is sufficient evidence before the Tribunal to enable it to make a finding that she has been subjected to both direct and indirect discrimination.
3. Summary of the Respondent’s Case
3.1 The respondent stated that special schools are classified by the Department of Education and Science as primary schools and are intended to cater for children and young persons with special educational needs from the age of four years until the end of the school year in which the student reaches his/her eighteenth birthday. Following their departure from the special school the Department of Health and Children/Health Services Executive assumes direct responsibility for young adults with special educational needs who are over the age of eighteen years. The respondent may and does provide funding in respect of the education component of such provision, which generally occurs through the Vocational Educational Committees. The policy that pupils in special schools should transition to adult placement when they reach eighteen years of age is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. These considerations include the appropriateness of adults being educated in an environment with young children and associated child protection issues. The respondent stated that it is important to note the fact that if adults were not in general required to leave special schools, they may block places which would otherwise be available to children with educational needs. It was submitted that the resource implications of this would be that the Minister would have to provide additional special schools or special school placements.
3.2 The Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen years and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/Health Services Executive. This policy permits pupils to remain in the special school beyond their eighteenth birthday on the application of the school. It was submitted that the respondent simply restated this policy by way of letter to all special schools early in 2008 as it had become aware that schools were retaining pupils beyond the age of eighteen years without prior approval from the Department. The types of situations where such an application is made and granted are where the relevant pupil is pursuing a course of study for an examination or qualification and same will not be completed before the end of the school year in which the pupil reaches their eighteenth birthday. The issues which are considered by the respondent upon receipt of whether the retention of the pupil on the school will hinder enrolment of a younger pupil; whether the pupil is pursuing a course such as FETAC/Leaving Certificate Applied; whether the pupil will transfer to adult services after completion of their additional year in school and finally, whether a transition programme will be implemented by the school during the school year to ensure a successful transition. Other issues which may be considered by the Department’s Inspectorate include the age and peer appropriateness of the pupil remaining in the school; whether there is space in the school; whether permitting the pupil to remain in the school would deprive another child of a place in the school and whether the educational benefit to the pupil remaining in the school outweighs the benefit to the pupil of transferring to a post-school placement. When an application is approved the pupil remains in the school on an ex-quota basis meaning that the school does not receive additional resources for the pupil. However, in reality and practice that has no impact on the level and quality of education of the pupil. In recent years due to the emphasis on inclusion and the greater number of children with special educational needs attending mainstream schools the numbers attending special schools have fallen. The respondent has not withdrawn or reduced staffing resources in the special schools notwithstanding this decrease in number and in effect, some special schools are now staffed and resourced over and above the levels of support originally envisaged.
Submissions made on behalf of the Respondent
3.3 The respondent also put forward a number of submissions, both in its written submission and at the hearing of the complaint, regarding the substantive issue which can be summarised as follows:
· The respondent submitted that students with the same type or category of disability as the complainant attend mainstream schools. It was submitted that the same rules and policy that apply to non-disabled students in mainstream schools also apply to the disabled students that attend a mainstream school i.e. students with a disability in a mainstream school are automatically permitted to remain in school beyond the year of their eighteenth birthday. It was therefore submitted that the students in special needs schools are not being treated differently because of their disability but rather because of the type of school they attend, which is subject to the election or choice of their parents.
· The respondent submitted that the complainant has not demonstrated that her disability is different in nature than that of somebody with an equivalent mild intellectual disability who is attending a mainstream school. It was submitted that the complainant has not adduced sufficient evidence (i.e. expert psychological evidence) to establish that her disability is of such a nature that would prevent her from being educated in a mainstream school with the appropriate supports. Accordingly, it was submitted that the complainant has failed to meet the essential requirement within Section 3(2)(g) of the Equal Status Acts i.e. that she is a person with a different disability than a person with a mild intellectual disability who attends a mainstream school.
· It was submitted that it is not sufficient in order to succeed in a claim under the Equal Status Acts to show that the complainant is being treated differently than another person even if that difference of treatment arises from one of the grounds enumerated in the Acts, and this is particularly so in the field of education. The mere fact that a complainant is being treated differently or that provision for education is made in a different way does not mean that the complainant is being treated unfavourably. In the area of special educational needs, provision must be differentiated according to the specific needs of each individual[2].
· It was submitted that the test in the education field is whether provision is being made for an appropriate education for the individual and not whether that provision is the same as other pupils. Thus, it would only be if the complainant could establish that the provision which was being made for the appropriate comparator pupils in mainstream schools was appropriate and that the provision which was being made for complainant’s education was not appropriate that she could succeed in establishing discrimination.
· It was also submitted that even if the complainant’s case was that by reason of the Departmental policy of which complaint is made, provision is not being made for an appropriate education, that issue is one to be litigated as an alleged breach of the respondent’s duties under the Constitution, the Education Act, 1998, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. It was submitted that it would be strange if the Oireachtas had enacted detailed and considered educational legislation which could in fact be circumvented by bring a complaint before the Tribunal under the Equal Status Acts.
· The respondent denies that the policy in question is either directly discriminatory against the complainant within the meaning of section 3(1)(a) of the Acts or that it is indirectly discriminatory against the complainant within the meaning of section 3(1)(c) of the Acts.
4. Issues of Jurisdiction
4.1 The respondent also raised a number of issues, both in its written submission and at the hearing of the complaint, regarding the jurisdiction of the Tribunal to investigate the present complaint under the Equal Status Acts, 2000 to 2008. The submissions made on behalf of both parties in relation to the issues of jurisdiction can be summarised as follows:
Issue regarding the locus standi of the complainant to refer a complaint under the Equal Status Acts
Respondent’s submission
4.2 The respondent submitted that the complainant does not have the locus standi to refer a complaint under the provisions of the Equal Status Acts. It submitted that the complainant has based her complaint on a policy that does not currently affect her and even if the Tribunal were to find that the policy amounts to discrimination within the meaning of the Acts, it does not affect the complainant until she is required to leave school or such requirement is imminent. It was submitted that the present complaint is premature, in that the complainant is currently in school and is being provided with an education, and therefore, there is, at this point in time, no discriminatory act or otherwise which affects her. In addition to the complaint being premature in time there is nothing to suggest that the complainant will not be permitted to remain in school when the time comes and an application is made by their school in this regard.
4.3 The respondent submitted that the definition of discrimination in section 3(1)(a) of the Equal Status Acts does not incorporate a situation of apprehended discrimination or an act of discrimination that may occur at some point in the future. It was submitted that, in the present case, the Tribunal is being asked to address a hypothetical situation in relation to what may or may not occur by reference to what the position may or may not be in law when the complainant has reached her eighteenth birthday. The respondent submitted it is well established that the Courts do not entertain hypothetical situations, nor should the Tribunal, for issues which are at this point in time, mute. It was submitted that the Equal Status Acts effectively prohibits discriminatory acts and permits complaints to be made where it is alleged that discriminatory acts have occurred. However, there is nothing in the text of the Acts which would suggest that complaints can be made where discriminatory acts are apprehended or anticipated on a contingent basis. The respondent submitted that it would be a revolutionary proposition if the Equal Status Acts were capable of addressing apprehended discrimination, and if this had been the intention of the Oireachtas, in enacting the legislation, the provision for such a contingency would have made explicitly clear in the wording of the Acts.
Complainant’s submission
4.4 It was submitted that the complainant, does in fact, have the locus standi to refer a complaint under the provisions of the Equal Status Acts, 2000 to 2008 on the basis that she is already suffering the effects of the policy. In light of the implications of the current policy, it was decided in September, 2008 to fast track the complainant into first year of the senior cycle programme (i.e. secondary level), although educationally she would have benefited from another two years following the primary school programme. It has been necessary for the complainant to follow this course of action in order to ensure that she will have the benefit of five years in the senior cycle before she is required to leave the special school upon attaining the age of eighteen years. It was submitted that the requirements of the policy have placed the complainant in a situation whereby she has been moved prematurely from primary education into the senior cycle in order to maximise her ability by the time that she will be required to leave the special school she is attending.
4.5 It was submitted that the wording contained within the definition of discrimination in section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. It was submitted that this section of the Acts has a very wide scope in combating discrimination and it applies to the situation in question in the present case i.e. an apprehended refusal of permission to remain in the school when the complainant has attained the age of 18 years. It was submitted that this argument is supported by the language used in the definition of discrimination at section 3(1)(a)(iii) where the wording “may exist in the future” is used in relation to the discriminatory grounds. The complainant submitted that the wording within this section is drafted with the intention that it have a very wide scope in combating discrimination, and it was submitted that it applies to the situation that pertains in the present case, where we are dealing with an apprehended refusal of permission for the complainant to remain at the school following the year in which she has reached her eighteenth birthday.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
Respondent’s submission
4.6 The respondent submitted that the Department of Education & Science is not a “service provider” as defined by the Equal Status Acts and it claimed that the Department was not a provider of education but rather that its role was to provide for education. The respondent submitted that section 7 is the only provision within the Equal Status Acts which governs discrimination in the education sphere and therefore, in order to succeed in the present case, the complainant must bring her claim within this section of the Acts and demonstrate that the respondent, in exercising its functions in relation to education falls within section 7 of the Acts. It was submitted that in order to do so, the complainant must show that the respondent is an “educational establishment” within the meaning of section 7(1) of the Acts and that it is discriminating against her in one or more of the areas set out in section 7(2) of the Acts. It was submitted that the respondent is not and cannot be regarded as an “educational establishment” and does not fall within the definition of same which is provided for by section 7(1) of the Acts. In light of that fact, the respondent submits that it cannot be guilty of discrimination in relation to access to an educational establishment within the meaning of the Equal Status Acts.
4.7 The respondent does not own, manage or govern the school which is being attended by the complainant and which actually delivers the education which is complained of in this complaint. Instead, it claims that the Education Act, 1998 makes it entirely clear that it is the Board of Management of a school which is obliged to fulfil these functions, and indeed has a specific and recognised right to manage its own affairs in doing so. The respondent referred to the Crowley case[3] in which the relationship between a national school, its teachers and the Department of Education and Science was considered by the Supreme Court. There it was noted that the obligation of the State under Article 42.4 of the Constitution was “to provide for” free primary education and not to supply it directly. It was submitted that the respondent does provide funding to the schools which are delivering the complainants’ education in order to provide for that education but that does not constitute the provision of a service within the meaning of the Equal Status Acts or render the respondent an educational establishment within the meaning of the Acts.
4.8 Even if it is incorrect in its submission that section 7 of the Equal Status Acts is the sole provision governing discrimination in education, the respondent does not fall within any of the remaining meanings of “provider of a service” contained within section 4(6) of the Acts. The respondent does not provide education, so even if the delivery of education constitutes the provision of a service (other than in the sense of section 4(6)(e) of the Acts) this is not one that is provided by the respondent. The respondent is, therefore, not providing a service within the meaning of section 5(1) and is not “a provider of a service” within the meaning of section 4(5) of the Acts. It was therefore submitted that the present complaint against the respondent is fundamentally misconceived and that the Minister is not the appropriate respondent to this complaint.
Complainant’s submission
4.9 The complainant accepts that the respondent is not an “educational establishment” within the meaning of section 7 of the Equal Status Acts, 2000 to 2008. However, it was submitted that the provision of education services within the meaning of the Equal Status Acts is not strictly confined to those services that are provided by “educational establishments” within the meaning of section 7 of the Acts. The complainant submitted that the role of the respondent as a service provider within the education sphere is clearly defined in the Education Act, 1998[4] and it was contended that the Minister has a very important role in the control and management on a day to day basis of the school that the complainant attends, which includes, for example, the responsibility for the employment and payment of teachers, the examination and certification system, the evaluation of schools and regulation of school activities through the issue and dissemination of Departmental circulars.
4.10 The complainant submitted that the definition of the word “service” in section 2 of the Equal Status Acts is extremely broad and the Tribunal should give this provision as wide an interpretation as possible in order to achieve the aim and purpose of the legislation i.e. as a social and remedial statute to promote equality and prohibit discrimination[5]. The complainant also submitted that it is clear from the wording included in the long title of the Equal Status Acts that it is remedial legislation that was adopted to address social injustice and consequently, it should be interpreted in a broad manner. Accordingly, it was submitted that the Minister for Education & Science is clearly a service provider in the education sphere within the meaning of section 5 of the Equal Status Acts.
5. Conclusions of the Equality Officer in relation to the issues of jurisdiction
5.1 Firstly, I will first consider the issues of jurisdiction that have been raised by the respondent because, if I find in favour of the respondent on these issues, I am therefore precluded from considering the substantive complaint.
Locus standiof the Complainant to refer a complaint under the Equal Status Acts
5.2 In considering this issue, I note that the complainant transferred from mainstream education to the special school which she is presently attending in March, 2003 at the age of seven years having completed junior and senior infants in the mainstream school. The complainant moved from the primary cycle to the secondary cycle of her education in September, 2008 when she 12 years of age. The complainant’s evidence was that a decision was taken (by her parents in consultation with her teachers and School Principal) that she should be fast tracked prematurely into the secondary/senior cycle in order to ensure that she would have the maximum amount of time available in secondary education before she was required to leave the school in compliance with the requirements of the policy. I have also taken note of the complainant’s mother’s evidence that she felt there was no option but to take this decision despite the fact that her daughter (because of her disability) would have benefited from spending more time in the primary cycle.
5.3 Based on the evidence presented, I am satisfied that the effects of the policy have already had an impact on the education of the complainant in terms of the period of time within which she has been afforded in the primary cycle of her education. I accept the complainant’s evidence that it would have been more beneficial for her to have spent a further period of time in the primary cycle of her education. I am satisfied that the reason the decision was taken to truncate her primary education was as a direct consequence of the requirement of the policy which dictates that she will have to leave the special school which she is attending at the end of the year in which she reaches her eighteenth birthday.
5.4 I have also noted the complainant’s submission that the definition of discrimination within section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. As I have found that the policy in question has already had a direct impact on the complainant in terms of her education, I am therefore not required to consider the merits or otherwise of this argument any further in order to decide the substantive issue in question in the present cases. Accordingly, I find that the complainant does have the locus standi to refer a complaint under the Equal Status Acts, 2000 to 2008.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
5.5 The question that I must address in relation to this issue is whether or not the Minister for Education & Science falls into the category of a “service provider” as defined under the Equal Status Acts, 2000 to 2008. I note that the respondent has submitted that the Minister for Education & Science is not a “service provider” as defined under the Equal Status Acts and that his role is to “provide for education” rather than being the a provider of education. In considering this issue, I have taken cognisance of the Education Act, 1998, including the provisions at section 7(1)(c) which state that “each of the following shall be a function of the Minister; to plan and co-ordinate (i) the provision of education in recognised schools and centres for education and, (ii) support services” and the provisions of section 7(2)(b) which states that it “shall be a function of the Ministerto monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education”. I am of the view that these provisions clearly indicate that the Minister has a pivotal role to play in planning and co-ordinating the provision of education in recognised schools and centres for education.
5.6 I accept the respondent’s argument that it is not an educational establishment within the meaning of section 7 of the Equal Status Acts, however, I cannot accept that the type of services which it provides in the educational sphere (in accordance with its obligations under the Education Act) do not constitute a service within the meaning of section 2 of the Equal Status Acts. “Service” is defined in section 2 of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… ”. I am satisfied that the types of services provided by the respondent in the educational sphere are covered by the broad definition of “service” within the meaning of the Equal Status Acts. Furthermore, I am of the view that it could not have been the intention of the legislature that such services would be excluded from the remit of the Equal Status Acts.
5.7 I have also taken note of the decision of the Equality Officer in the case of Anastasia Lyamina –v- The Department of Education & Science[6] in which this very issue was decided upon. In this case the Equality Officer took into consideration, as part of his deliberations on this matter, the role and functions of the Minister as provided for in the Education Acts. 1998 and he also had regard to a number of publications by the Department of Education & Science regarding its role in the provision of education within the State. I note that the Equality Officer stated in his findings that “having taken the contents of the Education Act into consideration in addition to the aforementioned publications (Mission Statement, Customer Service Charter and Statement of Strategy of the Department of Education & Science), I have formed the opinion that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts, 2000 to 2008” . In considering this matter, I fully concur with the findings of the Equality Officer on this issue in the aforementioned case. Having regard to the foregoing, I therefore find that respondent is a “service provider” within the meaning of the Equal Status Acts, 2000 to 2008.
5.8 Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegation of discrimination that has been made by the complainant in the present case.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Discriminatory Treatment
6.2 In the present case, it was not disputed that the complainant has a learning disability and I am therefore satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. Therefore, the question that I must address in the present case in whether or not the requirement that is imposed upon the complainant, as a student who attends a special school, to leave the school in the year in which she will reach her eighteenth birthday constitutes discrimination on the disability ground within the meaning of the Equal Status Acts.
6.3 In order for me to determine whether the complainant in the present case has been subjected to less favourable treatment within the meaning of the Equal Status Acts, in terms of the implementation of the policy in question, it is necessary to make the appropriate comparison between the complainant and that of her counterparts in mainstream education. It is also necessary for me to decide whether the alleged discriminatory nature of the policy constitutes direct discrimination within the meaning of section 3(1)(a) or indirect discrimination within the meaning of section 3(1)(c) of the Acts. In considering this issue I note that the “disability ground” is defined in section 3(2)(g) of the Equal Status Acts as “that one is a person with a disability and the other either (my emphasis) is not or is a person with a different disability”. I am of the view that the appropriate comparator in this case is either a student without a disability or a student with a different disability than the complainant who attends a mainstream secondary school.
6.4 I do not accept the respondent’s argument that the complainant in the present case fails to satisfy the requirements of section 3(2)(g) of the Acts on the basis she cannot demonstrate that she has a different disability than a person with a mild learning disability who attends a mainstream secondary school. I am of the view that it is absolutely irrelevant, when deciding upon the appropriate comparator in this case, that there are also students who attend mainstream schools who have learning disabilities similar or identical to that of the complainant. I am satisfied that the reason the complainant attends a special school is as a direct consequence of the special educational requirements that arise because of her disability. It is clearly the case that a special school will cater only for students who have a disability and who have been professionally assessed as requiring the services of such a school. Therefore, the policy in question in the present case only affects students with a disability who attend special schools and it does not affect either student’s without a disability or with a different disability to the complainant that attend mainstream schools.
6.5 I have noted that the complainant has also made a supplemental argument that the policy in question is both directly and indirectly discriminatory against her within the meaning of sections 3(1)(a) and 3(1)(c) of the Acts. As I have already stated, I am satisfied that the policy only affects students with a disability who attend special schools and that it does not affect students attending mainstream schools. I am therefore satisfied that the terms of the policy i.e. the requirement for students attending special schools to leave the school at the end of the year in which they reach eighteen does not constitute “an apparently neutral provision” within the meaning of section 3(1)(c) of the Acts but rather it is a provision which directly affects a specific category of persons, namely disabled students who attend special schools. I therefore find that the issue as to whether or not the policy in question is discriminatory falls to be decided within the provisions of section 3(1)(a) of the Equal Status Acts i.e. direct discrimination.
6.6 In making the apposite comparison in this case, it is not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education (i.e. three years to complete the Junior Certificate, two years to complete the Leaving Certificate/Leaving Certificate Applied with the option of a transition year). I am also satisfied that a student who is participating in mainstream secondary education is not required to have completed his/her secondary education by the end of the year in which he/she has reached their eighteenth birthday. Having regard to the foregoing, I am satisfied that the implementation of the policy which requires the complainant to leave the special school she is attending at the end of the year in which she reaches her eighteen birthday, in circumstances where no such requirement is enforced upon a student attending mainstream secondary education, is sufficient to raise an inference of less favourable treatment on the grounds of her disability within the meaning of the Equal Status Acts. In such circumstances, the burden of proof shifts and the onus rests with the respondent to rebut the allegation of discrimination if its defence is to succeed.
Respondent’s Rebuttal
6.7 In considering whether the implementation of this policy upon the complainant, as a student who attends a special school, amounts to discrimination on the grounds of her disability, it is important to take into consideration the nature of the educational services that are provided by special schools to its students in comparison to the services that are provided by mainstream secondary schools. In this regard, I note that special schools are classified by the Department of Education & Science as primary schools and they provide a wide range of holistic educational programmes that are designed to meet the individual needs of students and that these schools do not focus exclusively on preparing students to acquire certification in terms of State examinations. The special school which is attended by the complainant caters for children with mild learning disorders, and in addition to the provision of Holistic Educational Programmes, it also provides a full curriculum to Leaving Certificate and offers the Junior Certificate/Leaving Certificate Applied to its students. This is in contrast to the services which are provided by secondary schools operating in the mainstream educational sphere whose primary objective is to prepare students to acquire accreditation in terms of state examinations such as the Junior Certificate, Leaving Certificate/Leaving Certificate Applied.
6.8 I would make an important distinction between students who are pursuing a programme of education leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied/FETAC) and those who are not in terms of deciding whether the application of the policy in question is discriminatory against students who attend special schools. It was not disputed that the Junior Certificate curriculum normally takes a period of three years to complete and the Leaving Certificate/Leaving Certificate Applied curriculum takes a further period of two years to complete irrespective of whether a student is attending a mainstream secondary school or a special school. Based on the evidence presented, it would appear to be the norm that students who are attending special schools (as a result of their disability) would normally commence secondary education at a more advanced age than their counterparts in mainstream education. It is therefore highly unlikely that such a student will have completed a programme of education leading to certification (e.g. the Leaving Certificate Applied) by the time he/she has reached the age of eighteen years and thereby placing these students at a disadvantage when compared to their counterparts in mainstream education. I am of the view that all students who are pursuing such accredited courses, irrespective of whether or not they are attending mainstream education or special schools, should be afforded similar facilities in terms of the duration of time that is made available to them to complete these accredited courses.
6.9 However, in considering this issue further, I have also taken into consideration that a student (such as the complainant) who attends a special school and who participates in a non-accredited course of education is not subjected to the same requirements in terms of having to complete an accredited curriculum or course of education within a defined period of time. In the present case, the complainant commenced the secondary/senior cycle of her education in September, 2008 and she is currently participating in a Holistic Life Skills Education Programme which has been specifically tailored to cater for her individual educational requirements. Based on the evidence presented, I am satisfied that this programme of education has been and will continue to be reviewed and updated on a regular basis (by means of her Individual Education Plan) until she is required to leave the special school at the end of the year in which she reaches her eighteenth birthday and thereby providing her with an education to meet her individual needs.
6.10 The respondent’s evidence was that the policy which requires the complainant to leave the special school at this juncture is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. I have also noted that the Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/HSE. I accept that this policy may be entirely appropriate in the situation of a student at a special school who has reached the age of eighteen years and who is not pursuing an accredited course of education such as the Leaving Certificate Applied. In such cases it may well be beneficial and in the best interests of that particular student (depending on their individual circumstances) to transfer from the special school to adult services at the end of the year in which he/she has reached the age of eighteen years.
6.11 Having regard to the foregoing, I am satisfied that the requirement for the complainant to leave the special school at this juncture will not by necessity result in the termination of her education as it is the case that appropriate measures and facilities have been put in place to accommodate the further educational requirements of such students after they have completed their educational programmes at the special school. In the present case, I have not been presented with any expert or professional evidence from which I could reasonably conclude that it will not be in the best interests of the complainant to transfer to adult services at the end of the year in which she has reached her eighteenth birthday. In the circumstances, I find that the implementation of the policy which requires the complainant to leave the secondary school at the end of the year in which she reaches her eighteenth birthday does not amount to discriminatory treatment on the grounds of her disability within the meaning of the Equal Status Acts. Accordingly, I am satisfied that the respondent has successfully rebutted the inference of discrimination against the complainant on the grounds of her disability.
Reasonable Accommodation
6.12 The parties also made submissions, both in writing and at the oral hearing of the complaint regarding the issue as to whether or not the policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts. Having regard to the totality of the evidence adduced, I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present case. Accordingly, I am satisfied that it is not necessary for me to consider this complaint in the context of section 4 of the Acts.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and that the respondent has succeeded in rebutting the inference of discrimination. Accordingly, I find in favour of the respondent in the present case.
Enda Murphy
Equality Officer
5th August, 2009
[1]The complainant referred to the case of Eldridge –v- British Columbia (Attorney General) [1997] 3 SCR 624 in support of its submissions in relation to this point
[2]The Respondent referred to the case of the Board of Education of Hendrick Hudson Central School –v- Rowley (in which the Supreme Court of the United States of America commented on the meaning of the phrase “free appropriate public education”).
[3]Crowley -v- Ireland [1980] IR 102 at page 126
[4]Sections 2 and 7 of the Education Act, 1998 refers
[5]The complainant referred to the Supreme Court judgement of McGuinness J. in Western Health Board –v- K.M. (S.C. No. 103 of 2001)
[6]Equality Officer Decision No. DEC-S2009-016 refersDEC-S2010-027-Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision
DEC-S2010-027
PARTIES
A Complainant v An Irish Language College
(represented by Philpott, Creedon
File Reference: ES/2007/074
Date of Issue: 26th May, 2010
Keywords
Equal Status Acts 2000-2008 – Direct discrimination, Section 3(1)(a) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 18th July, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 9th September, 2009 and 26th March, 2010.
1. Dispute
1.1 This dispute concerns a claim by the complainant that she was discriminated against by the respondent on the grounds of her disability in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of those Acts in terms of the respondent’s refusal to accept her application for a place on an Irish language course at its college.
2. Summary of the Complainant’s Case
2.1 The complainant has dyslexia and was afforded reasonable accommodation in certain subjects in her Junior Certificate examination in June 2005 in the form of a reader and a marking modification in respect of spelling and grammar. When she received her Junior Certificate, it had annotations attached to the subjects for which she had received an accommodation. The complainant received a grade A in higher level Irish in this examination. In January 2007, the complainant applied for a place on an Irish language course at the respondent’s college. She submitted that the entry requirements for this course as outlined on the application form were that “Standard A, B, and C grades are eligible”. The complainant forwarded her application to the respondent in the belief that she had exceeded the academic entry requirements with the grade A she had been awarded in higher level Irish examination.
2.2 On or around 23rd January, 2007, the complainant’s mother received a telephone call from Ms. A, who identified herself as being from the respondent’s college, asking her to explain the annotations on her daughter’s Junior Certificate results which had been sent with the application form for the course. The complainant’s mother asked if she could speak to the course director, Ms. B, but was informed that she was away and that she didn’t take “those students” and would not want to speak to her. The complainant’s mother stated that there was no discussion whatsoever during the course of this telephone conversation of any special arrangements or accommodations which the complainant might or might not require in order to participate in the course. The complainant’s mother subsequently received an undated memorandum signed by Ms. B stating that her daughter “would suffer a sense of failure, humiliation and lack of self esteem” if she attended the course. The complainant claims that the respondent treated her less favourably on the grounds of disability by refusing to accept her onto the course, despite her having achieved a grade A in higher level Irish in her Junior Certificate examination when the stipulated minimum was a higher level grade C.
2.3 The complainant submitted that other students, including her friends, who received lower grades, but without an annotation on their Junior Certificates, were treated more favourably by being accepted for the course. The complainant claims that the “standard grade” requirement of the college constitutes a bar on students with specific learning disabilities from attending the course in question and is discriminatory under the Equal Status Acts. The complainant submitted that she was unable to attend the Irish course of her choice due to her disability and feels that she may have been disadvantaged as regards her performance in Irish in her Leaving Certificate which in turn could have a detrimental effect on her career.
2.4 The complainant submitted that there was correspondence between both her representative and the respondent’s legal representative regarding this matter following the respondent’s refusal to accept her onto the course. The complainant submitted that in a letter dated 27th February, 2007, the respondent’s representative stated that the reason the complainant was refused admission to the course was on account of the respondent’s inability to provide her with the necessary facilities to enable her to partake meaningfully in the course and it relied upon the nominal cost exemption in section 4(2) of the Acts stating that the college would have to employ additional staff with resultant additional costs. The complainant submitted that the respondent failed to provide any rationale or explanation of the basis of these costs in the context of the complainant’s dyslexia. The complainant submitted that she did not request nor require any special facilities from the respondent in order to participate in the course and that she received no additional assistance in her three years of preparation for the subject of Irish for her Junior Certificate. The complainant claims that the respondent’s reference to the “facilities she received during both her education for and sitting of the Junior Certificate” is incorrect. The complainant submitted that the only facilities she received during her Junior Certificate were in the form of a reader whilst sitting the Irish examination and a marking modification in respect of spelling and grammar in relation to the examination of her paper.
2.5 The complainant submitted that in further correspondence the respondent’s representative stated that attending such a course would put the complainant at a complete disadvantage with other pupils attending and it repeated that based on the respondent’s experience that the complainant would experience a sense of failure, humiliation and lack of self esteem in a highly charged and highly academic course such as the one which its client provided. In a further letter dated 15th March, 2007 the respondent’s representative indicated that the respondent was “prepared to consider offering her a place” on condition that she gave certain assurances such as confirming that no special facilities would be required and that she would agree to fully participate in all aspects of the course. The complainant submitted that she objected to the requests made by the respondent that she give undertakings and guarantees which other students were not asked to give before the college would consider whether or not to give her a place on the course. The complainant submitted that she was in this regard being treated less favourably than other students because of her disability and being asked to contract out of the provisions of the Equal Status Acts.
2.6 The complainant submitted that although she really wanted to attend the course, it was clear to her that in these circumstances she could not realistically take up the offer that was being considered by the college as she felt that she would be under constant scrutiny and subject to unreasonable expectations. The complainant’s representative conveyed this response to the respondent’s representative by letter dated 20th April, 2007. The complainant submitted that she had encouraged her friends to go to the Irish college with her but then had to explain to them why she could not attend which she found upsetting and embarrassing as some of her friends were not aware that she was dyslexic. The complainant submitted that she went instead to a different Irish college in another part of the country with her brother where she was able to complete the Irish course without any difficulties. The complainant submitted that her treatment by the respondent in relation to this matter amounts to direct discrimination on the grounds of her disability.
3. Summary of the Respondent’s Case
3.1 The respondent has been in existence since 1985 and it provides revision courses to both Junior and Leaving Certificate students in the subject of Irish during the summer months each year. The respondent submitted that the Irish courses which it provides are very intensive and demanding on students and these courses are aimed at high achievers in the subject. As a result of the demanding nature of the course the entry requirements are very strict and in order to be accepted onto the Leaving Certificate course it is necessary for a student to have obtained a standard A, B or C grade at higher level in the Junior Certificate.
3.2 The respondent submitted that it received an application from the complainant in January, 2007 to participate in the Irish Leaving Certificate course which was scheduled to take place in August of that year. Ms. A, who is a teacher/administrator at the college, stated that she received a telephone call from the complainant’s mother prior to the receipt of this application during which she sought information and details regarding the nature of the course which was being provided by the respondent. Ms. A stated that she clearly outlined the entry requirements to the complainant’s mother and left her in no doubt regarding the demanding and intensive nature of the course during this telephone conversation. When the respondent received the complainant’s application form and supporting documentation for the course it was clear that there were annotations attached to the language subjects on the accompanying Junior Certificate. Ms. A telephoned the complainant’s mother in February, 2007 to enquire about these annotations and it became clear from this telephone conversation that the complainant was dyslexic and had received accommodations (including a reader) in the subject of Irish during her Junior Certificate examinations.
3.3 The respondent submitted that upon learning of this it immediately understood the implications for a student such as the complainant in terms of her participation in its Irish course. The respondent submitted that the course is very intensive and is broken down into one and a half hours of grammar, essay reading, writing and comprehension in addition to poetry and prose reading. The respondent stated that it was fully aware of the disadvantages of dyslexia for students and it was for this reason that it outlined the concerns which it had for the complainant attending a course such as that which it provided on the basis that it would put her at a complete disadvantage with other students attending the course. It was pointed out to the complainant’s mother that based on the respondent’s experience the complainant would experience a sense of failure, humiliation and lack of self esteem in a highly charged and a highly academic course such as the one which it provided. The respondent came to the conclusion that given the complainant’s disability she would not have been able to participate in such a course without the special facilities that she received in both her education and sitting of the Junior Certificate.
3.4 The respondent submitted that it informed the complainant (in a letter dated 27th February, 2007 from its representative to the complainant’s representative) that the reason she was being refused admission to the course was on account of its inability to provide her with the necessary facilities to enable her to partake meaningfully in the course. The respondent submitted that the cost of accommodating the complainant with the necessary facilities to participate in the course would have been prohibitive (estimated at €4,450) and therefore would have amounted to more than a nominal cost within the meaning of section 4 of the Equal Status Acts. The respondent also acknowledged in this letter that the complainant had indicated that she did not require any special facilities in order to participate in the course. The respondent informed the complainant that it was prepared to consider offering her a place on the course but in doing so she would have to acknowledge that no additional special facilities could be made available and on the basis of her acceptance to participate in every aspect of the course, to complete and submit for correction all exercises given and to attend all classes and study sessions. The respondent submitted that it sought the complainant’s agreement to these conditions on the basis that it did not want to be put in a situation whereby, having agreed to accept her onto the course, the complainant could subsequently make a further complaint that she suffered because of the absence of special facilities. The respondent submitted that the complainant refused to accept this offer of a place on the course (despite the fact that the offer was re-stated in a further letter from the respondent’s representative on 8th May, 2007).
3.5 The respondent submitted that it was acknowledged by the complainant that she was dyslexic and that she had annotations on her Junior Certificate reflecting the support she received while sitting the examination. It was submitted that, in those circumstances, the complainant because of her disability, would have been at a disadvantage when compared to other students who did not have this learning disability and therefore, special facilities would have been required for her to overcome this disability which could have only been provided at considerable and uneconomic cost. The respondent submitted that when it was pointed out that the cost was uneconomic and that she could attend on the course in the full knowledge that the special facilities could not be made available she still would not take up the offer of the course but insisted on not waiving her legal rights. The respondent submitted that the complainant seemed to want to attend the course on the same terms as everybody else and when she was offered a place on the course on the same terms as everybody else, and for the avoidance of doubt, in the full knowledge that special facilities could not be made available, she would not take up the place on those terms. The respondent submitted that the complainant therefore excluded herself from the course and she was not excluded by the respondent. Accordingly, it was submitted by the respondent that there was no discrimination against the complainant in the present case.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Discriminatory Treatment
4.2 In the present case, the complainant has dyslexia and I am therefore satisfied that she is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. The complainant has claimed that she was subjected to discrimination on the grounds of her disability on the basis that the respondent refused to afford her admission to its Irish course which took place in August, 2007 on the same terms and conditions as other students. The respondent denies that it discriminated against the complainant on the grounds of her disability and it claims that because of her dyslexia she would have required special facilities in order to participate in the course on the same terms as the other students. It claims that the provision of the required special facilities could only have been provided to the complainant at a considerable and uneconomic cost. It further claims that when it was brought to the attention of the complainant that the cost was uneconomic and an offer was put forward that she could attend the course on the basis that the special facilities could not be made available she still would not take up the offer of the course but insisted on not waiving her legal rights.
4.3 In considering this issue, I note that the stated entry requirements for admission to the Irish course which the complainant sought to gain admission were “standard A, B and C grades” at higher level in the Junior Certificate examinations. It was not disputed between the parties that the complainant had achieved a higher level grade A in her Junior Certificate Irish examination and she was therefore of the belief that she had exceeded the academic entry requirements when submitting her application to the respondent. It was accepted by both parties that the complainant’s Junior Certificate had annotations attached to the language subjects which signified that she had received an accommodation in those subjects. The respondent gave evidence that Ms. A, Teacher/Administrator, contacted the complainant’s mother by telephone following the receipt of her application in January, 2007 in order to enquire about the significance of the annotations on her Junior Certificate. It was accepted by both parties that complainant’s mother informed Ms. A during the course of this telephone conversation that the complainant was dyslexic and as a result had received certain accommodations in the course of sitting her Junior Certificate Irish examination.
4.4 It was also accepted by the parties that the respondent returned the complainant’s application to her shortly after this telephone conversation together with a handwritten note which stated that “Student does not meet the entry requirements for course Standard Grade A, B and C only”. Having regard to the evidence adduced, it is clear that the respondent took the view that a grade A which was achieved by a person such as the complainant who had been afforded special accommodations in relation to that examination, on the grounds of disability, was not a “standard grade”. I am satisfied that following the telephone conversation between Ms. A and the complainant’s mother in January, 2007, the respondent took the view that the complainant, as a person with dyslexia, did not meet the entry requirements for admission to the course on the basis of the accommodations she had been afforded in her Junior Certificate Irish examination. It is clear that the respondent concluded at that juncture the complainant would not be capable of participating in the course on the same terms as a person who did not have this disability and it therefore decided to refuse her admission to the course. I am therefore satisfied that the complainant was refused admission to the respondent’s Irish course on the basis of her disability i.e. her dyslexia, in circumstances where other students without dyslexia were afforded access to the course. Accordingly, I find that the complainant has succeeded in raising an inference of discrimination on the grounds of her disability. In such circumstances, the burden of proof shifts and the onus rests with the respondent to rebut the allegation of discrimination if its defence is to succeed.
Respondent’s Rebuttal
4.5 The respondent gave evidence that the Irish course which it offered was very intensive and demanding upon students and based on its past experience of students with dyslexia it was of the view that the complainant would not have been able to participate in the course without the special facilities that she was afforded both during her education for and sitting of the Junior Certificate. The respondent argued that the reason the complainant was refused admission to the course was on the basis that the cost of providing these facilities would have been prohibitive and uneconomic. The complainant accepted that she had, in fact, received certain accommodations in the form of a reader and a marking modification in respect of spelling and grammar for her Junior Certificate Irish examination. However, she also gave evidence that, notwithstanding the accommodations she received in her Junior Certificate, she neither requested nor required any special facilities or accommodations from the respondent in order to participate in its Irish course. The complainant argued that her dyslexia did not adversely affect her ability to study the Irish language and she submitted that the respondent was entirely mistaken in its view that she would have required any special accommodations or facilities whatsoever in order to participate in the course.
4.6 In considering this issue, I note that it was accepted by both parties that the complainant’s mother informed Ms. A when discussing the issue of the annotations on her Junior Certificate, in a telephone conversation in late January, 2007, that the complainant was dyslexic. I also note that it was accepted by Ms. A in her evidence that the complainant’s mother informed her during the course of this conversation that the complainant had a mild form of dyslexia and that she would not require any special facilities or accommodations whatsoever in order to participate in the course. I accept the complainant’s mother’s evidence that Ms. A neither sought to obtain any information during this telephone conversation regarding the severity or otherwise of the complainant’s dyslexia nor did she make any enquiries as to how her dyslexia impacted upon her ability to study the subject of Irish. Furthermore, I am satisfied that Ms. A did not make any enquiries during this telephone conversation as to whether or not the complainant would require any special facilities or accommodations in order to participate in the course.
4.7 Having regard to the evidence adduced, I am satisfied that the respondent did not take any of the aforementioned factors into account when assessing the complainant’s application but rather it arbitrarily decided following this telephone conversation that she would not be capable of participating in the Irish course purely on the basis that she was dyslexic and based on the unsubstantiated assumption that she would require special facilities in order to participate in the course. I am satisfied that the respondent’s decision to refuse the complainant’s application for admission to the course was communicated to her in writing in February, 2007 when it returned her application together with the undated note which stated: “Student does not meet the entry requirements for course STANDARD Grades A, B, C only. This is in your child’s own interest as we know from experience that your child would suffer a sense of failure, humiliation and lack of self-esteem as a highly charged academic course such as this”. The respondent has not adduced any evidence to suggest that it could have reasonably concluded at that juncture that the complainant, because of her disability, would have found it impossible or unduly difficult to participate in the Irish course in the absence of special facilities. In the circumstances, I find that this decision by the respondent amounted to discriminatory treatment against the complainant on the grounds of her disability contrary to the provisions of section 5 of the Equal Status Acts.
Ongoing correspondence between the legal representatives of both parties
4.8 It is clear that there was ongoing correspondence between the representatives of both parties following the respondent’s communication of its refusal to afford the complainant admission to the Irish course in February, 2007. It was during the course of this correspondence that the respondent advanced the argument that the complainant would require special facilities in order to participate in the course whereas the complainant reaffirmed her position in this correspondence that she had neither requested nor did she require any such accommodations to facilitate her participation. The respondent also raised the issue during the course of this correspondence that the cost of putting these special facilities in place would have amounted to more than a nominal cost and it relied upon the defence available in section 4(3) of the Equal Status Acts in support of its contention in this regard.
4.9 In considering this issue, I am satisfied that the complainant’s mother had clearly informed the respondent during the course of her telephone conversation with Ms. A in January, 2007 that the complainant would not require any special measures or accommodations in order to facilitate her participation in the course. In doing so, I am satisfied that it was unequivocally communicated to the respondent at that juncture that the complainant, as a person with a disability, did not require any special treatment or facilities within the meaning of section 4 of the Acts. As I have already stated, the respondent has not adduced any evidence to suggest that it could have reasonably concluded at that juncture that the complainant, because of her disability, would have found it impossible or unduly difficult to participate in the Irish course in the absence of special facilities. Having regard to the foregoing, I am satisfied that any issues raised by the respondent in terms of the provision of special facilities, in accordance with the provisions of section 4 of the Acts, were irrelevant after that juncture given that the complainant had already been effectively refused admission to the course in February, 2007. Accordingly, I am of the view that there is no obligation upon me, in the circumstances of the present case, to consider this matter any further in the context of the obligations that are placed upon a service provider within the meaning of section 4 of the Acts.
Offer of a place on the course subject to certain conditions
4.10 The respondent also put forward the argument that it informed the complainant during the course of correspondence between the parties that it was prepared to consider offering her a place on the course subject to her agreement to certain conditions (as outlined in para. 3.4 above) and in acknowledgement of the fact that it could not provide any special facilities to facilitate her participation in the course (this offer was communicated to the complainant’s representative on 15th March, 2007 and subsequently re-stated in a further letter on 8th May, 2007). The respondent argued that the complainant seemed to want to attend the course on the same terms and conditions as everybody else and when she was offered a place on the course on the same terms as everyone else, and for the avoidance of doubt, in the full knowledge that special facilities could not be provided, she refused to take up a place on those terms. The respondent submitted that the complainant, by virtue of her refusal to accept this offer, excluded herself from the course.
4.11 I cannot accept the respondent’s contention that the complainant effectively excluded herself from the course by virtue of her refusal to accept the abovementioned offer on the terms put forward by the respondent. Neither can I accept that the terms which were advanced by the respondent to the complainant constituted an offer to her to participate on the course on the same terms as everyone else. The respondent has not adduced any evidence to suggest that any of the other students who sought admission to the course (i.e. the students without dyslexia) were treated in a similar manner in terms of a request to agree to such conditions in order to secure admission to the course. I am of the view that the terms of participation that were offered to the complainant, in effect, amounted to an offer to participate on less favourable terms than students without dyslexia. In any event, I am satisfied that the complainant had already been effectively refused admission to the course on the grounds of her disability prior to the communication of this offer when the respondent returned her application to her in February, 2007 and informed her that she did not meet the entry requirements.
4.12 Having regard to the totality of the evidence adduced, I find that the reason the complainant was refused admission to the Irish course provided by the respondent was directly attributable to her disability i.e. her dyslexia. Accordingly, I find that the complainant has succeeded in establishing a prima facie case of discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination.
Other Issues
4.13 During the course of submissions at the hearing the respondent referred to the complainant’s participation, as a witness, in the Cahill case where she gave evidence regarding the circumstances surrounding the respondent’s refusal to afford her admission to its Irish course. In the Cahill case Hunt J. found that the system of annotations on the examination certificate of two students who had received accommodations on the grounds of disability in relation to these examinations did not amount to discriminatory treatment within the meaning of the Equal Status Acts (it should be noted that this decision is currently the subject of an appeal to the High Court). The respondent submitted that the complainant had a vested interest in pursuing the present complaint against the respondent. It contended that the reason the complainant would not accept the respondent’s offer to participate in the course (which it proffered during correspondence between the parties’ representatives) was because of her involvement in the Cahill case and her intention to challenge the legitimacy of the annotation system on State examination certificates.
4.14 Having considered this submission, I cannot accept the respondent’s argument in relation to this issue and I am of the view that any involvement which the complainant had in the Cahill case is an entirely independent and separate matter from the issues that have come within my jurisdiction under the Equal Status Acts in the present case.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and contrary to section 5(1) of those Acts and that the respondent has failed to rebut the inference of discrimination. In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €3,500 as redress for the effects of the discrimination.
5.2 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent review the procedures and policies that it has in place in terms of the admission of applicants to its courses with a view to ensuring that these procedures are fully compliant with its obligations under the Equal Status Acts.
Enda Murphy
Equality Officer
26th May, 2010
DEC-S2008-042 – Full Case Report
Equal Status Act, 2000
Equality Officer Decision DEC-S2008-042
X v A Town Council
Keywords
Equal Status Act, 2000 – Section 2(1) – Direct discrimination, Section 3(1)(a) – Discrimination by Association, Section 3(1)(b) – Gender Ground, Section 3(2)(a) – Marital Status Ground, Section 3(2)(b) – Age Ground, Section 3(2)(f) Disability Ground, Section 3(2)(g) – Provision of accommodation, Section 6(1) – Reasonable Accommodation, Section 4(1)
Delegation under the Equal Status Act 2000-2004
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to me, Enda Murphy, 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 Act 2000-2004. The hearing of the case took place on 26th February, 2008. Further information was received from the parties and the final information was received on 4th June, 2008.
1. Dispute
1.1 This dispute concerns a complaint by Mr. X that he was discriminated against by a Town Council on the gender, marital status, age and disability grounds in terms of Sections 3(1)(a), 3(1)(b) and 3(2)(a), 3(2)(b), 3(2)(f) and 3(2)(g) of the Equal Status Act, 2000 in not being provided with a service which is generally available to the public contrary to Sections 4(1) and 6(1) of the Equal Status Act, 2000.
2. Summary of the Complainant’s Case
2.1 The complainant, Mr. X, initially made an application to the respondent for local authority housing on 1st July, 1997 when he was aged 21 years. Mr. X is single and suffers from severe depression and as a result is on permanent anti-depressant medication. During the period since making this application for housing numerous representations have been made to the respondent, on behalf of the complainant, including by his General Practitioner, a Social Worker, and a Mental Health Association, regarding the severity of his illness and his urgent requirement for local authority housing. The complainant claims that the respondent has not recognised that depression is a disability and he contends that it has failed to take his disability into consideration when assessing his application for housing, despite it being made aware of the nature and severity of his disability on numerous occasions since his initial application for housing was submitted. The complainant has resided at his mother’s residence at different intervals and also in rented accommodation since making this application for housing to the respondent. During this period the complainant has endured a somewhat fractious relationship with his mother and the rented accommodation that he has occupied has been of a very poor standard and he has also been subjected to harassment by his landlord, thereby increasing his requirement for local authority housing. However, despite the aforementioned issues and his urgent need for housing, the complainant has never been offered any form of local authority housing by the respondent. The complainant claims that the discriminatory manner in which his housing application has been dealt with by the respondent, and in particular by the Town Clerk, Mr. Y, has contributed significantly towards the deterioration of his illness and has resulted in an urgent requirement that he be allocated local authority housing.
2.2 The complainant further claims that he has been discriminated against by the respondent on the grounds of his age. The complainant contends that the respondent has breached and set aside its own stated letting policy in relation to a number of housing units within its jurisdiction that are reserved for elderly persons. The complainant claims that a number of housing units have been allocated to individuals under the age of sixty years who do not meet the relevant criteria and he claims that several tenants were granted tenancies of these houses which was clearly in contravention of the Council’s stated policy in relation to reserved letting on the grounds of age. The complainant claims that he has requested and pleaded with the Town Clerk, Mr. Y, on numerous occasions to be allocated one of the four units in these estates that were continuously unoccupied, however, the respondent has failed to accede to his requests.
2.3 The complainant claims that he has been discriminated against by the respondent on the grounds of his gender and marital status by virtue of a comment which was written on his original housing application form which states “Single male not recommended”. The complainant has been unable to establish definitively the author of this comment or the date on which it was written. However, it is his belief that this comment was written on 24th May, 1999 as the handwriting clearly matches a similar comment that was written on his housing application to his local County Council on this date. The complainant claims that this comment represents the conclusion of an assessment that was carried out by respondent’s Housing Officer in relation to his application at that particular juncture. The complainant claims that the respondent has failed to justify or explain this “single male not recommended” comment to his satisfaction and he maintains that the decision by the respondent not to allocate him housing in the intervening period was influenced by this comment which he contends clearly demonstrates that he has been subjected to less favourable treatment by the respondent on the grounds of his gender and marital status.
2.4 The complainant also claims that the respondent has discriminated against him by association on the grounds of representations that he has made on behalf of his mother, who suffers from a heart condition, regarding the respondent’s failure to carry out repairs to her council house. The complainant claims that the refusal of the respondent to carry out these repairs and its treatment of his mother have resulted in him clashing with the Town Clerk, Mr. Y on a number of occasions regarding these matters. As a result of these clashes, the complainant claims that Mr. Y has actively participated in discriminating against him in relation to the processing of his application for housing. The complainant also stated that he was involved in a court case during the period 1998 to 2002, which was widely known about in the locality in which he resides. He claims that this court case was openly discussed by members of the Town Council in direct relation to his housing application. The complainant contends that he was subjected to hostility and discrimination by the respondent and its officials as a result of this court case which has had a direct impact on the manner in which his housing application has been processed.
2.5 The complainant also claims that the respondent cancelled his original application for housing in September, 2001 after it had lost an assessment form that he returned to the respondent earlier that year. He contends that the cancellation of his application only came to his attention in February, 2003 at which stage it was necessary to make a fresh application. The respondent informed the complainant that this new application would be backdated to 1997 but it has subsequently failed to explain why the application was lost in the first place. The complainant claims that he should have been contacted by the respondent to inform him that his application had been cancelled.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against the complainant on any of the grounds as alleged. The respondent is empowered to act in the capacity of a housing authority in accordance with the provisions of the Housing Acts, 1966 to 1998 and accordingly, it has the autonomy to allocate local authority housing within its jurisdiction. Mr. Y, Town Clerk with the respondent, informed the Tribunal of the procedures operated by the respondent in relation to the assessment of housing applications and the subsequent procedure of how recommendations and offers of tenancy are made to applicants. When the respondent has constructed or has acquired a scheme of houses it requests the Housing Officer, who is an official employed by the local County Council, to carry out an assessment of the housing applications within its jurisdiction. The Housing Officer is obliged to have regard to the Scheme of Letting Priorities that has been adopted by the respondent when assessing applications for housing. Following this assessment, the Housing Officer, in consultation with the Chief Medical Officer, then makes recommendations, in order of priority, in relation to a number of applications which will be twice or somewhat more than twice the number of houses available. This facilitates offers of tenancy subsequently when casual vacancies arise or where single houses might be acquired by purchase. Part of this process includes identifying different categories of applications and the types of houses available which will, in turn, determine the categories of applications from which recommendations are likely to be made. When the list of recommendations is made by the Housing Officer and the Chief Medical Officer it is then sent to the respondent, having been approved by the Assistant County Manager, Divisional Manager or Director of Service who is at that time Manager of the town. Offers of tenancy are then made to applicants on the basis of that list with the Manager authorising the issue of letters of offer on each occasion.
3.2 Mr. Y, Town Clerk, stated that he did not have the authority to act in the capacity of a Housing Officer and therefore, he did not have any input into the assessment of the housing applications that are recommended for offers of tenancy. However, Mr. Y stated that in his capacity as Town Clerk, he has on approx. three occasions since 1997, been directed by the Town Manager to carry out assessments of applications and to make recommendations. The respondent has received approx. 946 applications for housing in the period 1997 to 2007 and during this period it has only been possible to allocate housing to 80 of these applicants. The complainant made an application to the respondent for local authority housing in July, 1997, and it was accepted that he has not been offered accommodation in the intervening period purely on the basis that his need for housing has not been as urgent as those applicants who have been allocated housing. The respondent accepts that the complainant was suffering from depression and contends that it did, in fact, recognise this condition as a disability. The respondent claims that all details of the complainant’s disability were made known to the Housing Officer and it was confirmed that this disability was taken into consideration when his application was being assessed. Mr. Y stated that the respondent has a number of housing units that are confined to persons with disabilities and some of these units have been adapted specifically for this purpose. These units are normally allocated to persons with disabilities following a process of consultation between the respondent and the Health Services Executive.
3.3 Mr. Y claims that the respondent does not have any small units or flats/apartments within its housing stock which are reserved specifically for single applicants with the exception of three schemes that were constructed specifically as dwellings for elderly persons. In an effort to meet the housing needs for single applicants, who are not elderly, the respondent has on a limited number of occasions let vacant houses in these schemes to younger single applicants. It is considered that having a younger person resident in a scheme may contribute to the sense of security of older residents and it is also the case that a number of such lettings to younger applicants also addressed exceptional circumstances relating to the applicants. Mr. Y denies the complainant’s contention that the respondent has set aside its own stated reserved letting policy in relation to houses that were reserved for this purpose in these estates and he rejects the complainant’s allegation that this constitutes further evidence of discrimination by the respondent against him.
3.4 The respondent also avails of the opportunity presented by Voluntary Housing Organisations to address the housing needs of applicants to the Council, including single applicants, and over the past number of years two such schemes of houses have been developed in the locality by the Cluid (formerly St. Pancras) Voluntary Housing Organisation. A requirement of approved schemes by Voluntary Housing Organisations is that 75% of their tenants must be applicants to local authorities for housing. The respondent claims that details of all of its housing applications, including the complainant’s application, were made available to Cluid as part of the allocation process in respect of these houses. Mr. Y claims that the “Single male not recommended” comment which was written on the complainant’s original housing application form represents the conclusion of the Housing Officer having assessed his application at that particular time. Mr. Y stated that this remark was as a note made by the Housing Officer summarising that the applicant was single and had no family. He denied that this remark was discriminatory in the context of the complainant’s application for housing.
3.5 Mr. Y admits that the complainant’s housing application was cancelled by the respondent in 2003, however he claims that the reason the application was cancelled was as a result of the complainant’s failure to reply to an assessment of housing needs that was been carried out by the respondent at that particular juncture. When the complainant brought this matter to the respondent’s attention his application was immediately re-instated and backdated to the original application date in July, 1997. Mr. Y emphatically denies that he had any personal grievance or difficulties with the complainant or other members of his family and he totally rejects the allegations made by the complainant that these perceived difficulties or the complainant’s involvement in a court case had any bearing, whatsoever, in relation to the manner in which his housing application was processed by the respondent. Mr. Y claims that the complainant’s housing application was dealt with in a non-discriminatory and fair manner and he also contends that the complainant cannot accept that the reason he has not been allocated local authority housing by the respondent is because of the fact that his housing needs are not as urgent as those applicants who have been allocated housing.
4. Conclusions of the Equality Officer
4.1 Section 38A (1) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Section 6(6) of the Equal Status Act, 2000 and Scheme of Letting Priorities
4.2 In considering whether discrimination has occurred on any of the aforementioned grounds, I am obliged to have regard to the exemption that is provided for in Section 6(6) of the Equal Status Acts, 2000 which states that:
“Nothing in subsection (1) shall be construed as prohibiting –
(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or
(b) a body approved under section 6 of the Housing Miscellaneous Provisions) Act, 1992,
from providing in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community.”
In accordance with its obligations under the Housing Acts[1], a housing authority is required to make a scheme determining the order of priority to be accorded in the letting of dwellings, and in doing so, it may specify certain categories of persons to which priority is to be accorded, such as applicants living in dwellings deemed to be unfit or dangerous, applicants living in overcrowded conditions and applicants who lack suitable or adequate accommodation. The respondent in the present case is empowered under the Housing Acts to act in the capacity of a housing authority and it has adopted a Scheme of Letting Priorities in accordance with its obligations under these Acts. The respondent has argued that the provisions of Section 6(6) of the Equal Status Act allows a housing authority to have regard to the different circumstances of applicants when assessing their housing applications and that it facilitates the prioritisation of applications based on the individual circumstances of the applicant. The respondent claims that it is obliged to have regard to its Scheme of Letting Priorities when assessing and making recommendations in relation to applications for housing and it contends that the complainant’s application for housing has been assessed in accordance with this scheme. The issue regarding the scope and the manner in which the exemption provided for in Section 6(6) of the Equal Status Acts should be interpreted has been addressed in a number of previous decisions under this legislation, and in this regard, I have taken note of the decisions of the Equality Officers in Mr. Leo Jones –v- Dun Laoghaire Rathdown County Council, A Complainant –v- A Local Authority and Michael McCann –v- Dun Laoghaire-Rathdown County Council[2]. I have also taken cognisance of the Circuit Court judgement delivered by Hunt J. in the case of Dublin City Council –v- Grace Deans[3] where it is stated that:
“I cannot construe subsection 6 of that section as exempting a housing authority in its entirety from all application of the equality legislation. It appears to me simply to provide that a housing authority is entitled to base its priorities and its housing plan on different treatment to persons based on family size, family status and the other considerations set out in the subsection”.
Having considered this issue, I am of the view that the exemption provided for in Section 6(6) of the Equal Status Act does not allow a housing authority to discriminate against the category of persons outlined therein, but rather that it facilitates the housing authority to prioritise in favour of those categories of persons. I will now proceed to examine the complaint on each of the grounds claimed having regard to the exemption that is provided for in Section 6(6) of the Act.
Gender and Marital Status Grounds
4.3 The complainant, who is single and unmarried, claims that the respondent has discriminated against him on the grounds of his gender and marital status by virtue of a comment written on the original application form that he submitted to the respondent in July, 1997 which states “Single male not recommended”. The complainant contends that this comment was written on 24th May, 1999 and that he was informed by the respondent in correspondence that it represents the conclusion of the Housing Officer having assessed his application. The complainant claims that this comment and decision was reached in the absence of any formal investigation or visit by a Housing Officer and that it was used by the respondent as the basis for the rejection of his application for housing. I am satisfied that this comment is sufficient to raise an inference of discrimination on the grounds of the complainant’s gender and marital status. In such circumstances, the burden of proof shifts and the onus rests with the respondent to rebut the allegation of discrimination if its defence is to succeed.
Respondent’s Rebuttal
4.4 The respondent accepts that this comment was written on the complainant’s original application form and claims that it represents the conclusions that were reached by the Housing Officer, who assessed the complainant’s application, summarising that the application related to a single applicant with no family. The respondent denies that the comment is discriminatory in the context of the complainant’ application. In considering this issue, I believe that it is necessary to examine the procedure that is adopted by the respondent in order to decide upon the applicants that are to be recommended for the allocation of housing. The procedure requires the Housing Officer, in conjunction with the Chief Medical Officer, to carry out an assessment of all applications on hand and to make recommendations in order of priority as to which applicants should be allocated housing. This assessment requires applications to be considered in accordance with the Scheme of Letting Priorities as the basic policy document and the process involves the identification of different categories of applications and the type of houses available, which will determine the categories of applications from which recommendations are likely to be made. I note from the evidence adduced that the respondent has received 946 applications for housing during the period from 1997 to 2007 and that only 80 of these applicants have been allocated housing during this period. I also note that, of the 80 applicants that have been allocated housing during this period, a total of 14 applicants were single at the time of allocation (and of the same marital status to the complainant) and a further breakdown of this figure reveals that 10 of the 14 were single males (and of the same gender as the complainant) and the remaining 4 were female applicants. I am satisfied that these statistics demonstrate that the respondent does not operate a discriminatory policy against single male applicants.
4.5 Having regard to the evidence adduced, I am satisfied that the housing requirements of all applicants were assessed in accordance with the criteria outlined in the respondent’s Scheme of Letting Priorities and accordingly, I find that the reason the applicants who were allocated housing in preference to the complainant was because their need for housing was considered to be more urgent than that of the complainant’s based on an objective assessment carried out in accordance with its Scheme of Letting Priorities. The complainant has not adduced any evidence to show that the housing needs of such persons were not more urgent than his, at the particular time, or any evidence from which I could conclude that this was the case. As I have already stated, I am satisfied that the provisions of Section 6(6) of the Equal Status Act facilitates a housing authority to prioritise in favour of the categories of persons identified therein and that such prioritisation does not constitute discrimination. In the present case, I am satisfied that the respondent was acting in accordance with the provisions of Section 6(6) of the Act, and I find, therefore, that it did not treat the complainant less favourably on the grounds of his gender or marital status. Accordingly, I am satisfied that the respondent has successfully rebutted the inference of discrimination on both the gender and marital status grounds.
Age Ground
4.6 The complainant claims that the respondent has discriminated against him on the grounds of his age on the basis that it has breached and set aside its own stated letting policy in relation to a number of housing units within its jurisdiction that are reserved for elderly persons. The complainant claims that a number of these houses have been allocated to tenants who were under the age of 60 years when their tenancies commenced. He also claims that a number of these houses that are supposedly reserved for the elderly have remained vacant for long periods of time and despite his repeated requests to be allocated one of these houses, the respondent has failed to comply with these requests. The respondent states that it has a number of schemes within its housing stock that are reserved specifically as dwellings for elderly persons and it is the respondent’s policy to let such houses primarily to elderly persons. The respondent claims that very occasionally some exceptions are made to this policy, for example, on the grounds of increasing the sense of security enjoyed by elderly residents where they may rely on a younger and more active person for assistance or where other exceptional circumstances warrant such exceptional letting.
4.7 Having regard to the provisions of Section 6(6) of the Equal Status Acts, I am satisfied that the respondent is not prohibited from providing special housing facilities for the elderly and that such a policy does not constitute less favourable treatment on the grounds of age. Based on the evidence presented, I am satisfied that the respondent has in fact made exceptions to its policy in this regard on a number of occasions and it is clear that a number of houses that are reserved for the elderly have been allocated to persons under the age of 60 years, for example, a number of the tenants who were allocated these houses have respective dates of birth in 1958, 1960 and 1963. However, having regard to the evidence adduced, I find that these individuals were allocated accommodation in preference to the complainant for reasons other than age i.e. that their need for housing was considered to be more urgent than that of the complainant’s based on an objective assessment carried out in accordance with its Scheme of Letting Priorities. I find therefore that the complainant was not treated less favourably on the grounds of his age as a result of the respondent’s failure to allocate him a house that it had reserved for the elderly. Accordingly, the complainant has failed to establish a prima facie case of discrimination on the age ground.
Disability Ground
4.8 The complainant has been diagnosed as suffering from severe depression and I am satisfied that this condition constitutes a disability within the meaning of the legislation, and that therefore, he is a person with a disability within the terms of the Equal Status Act, 2000. The complainant claims that the respondent has not recognised that depression is a disability, and furthermore, that it has failed to take this disability into consideration when assessing his application for housing, despite it being made aware of the nature and severity of his disability on numerous occasions since his initial application for housing was submitted. The respondent claims that it has, in fact, recognised the complainant’s disability, however, it denies that it has discriminated against the complainant on the grounds of his disability and it claims that his housing application has been assessed in accordance with the same objective criteria as all other applications. It contends that the only reason the complainant has not been allocated local authority housing by the respondent is that his housing needs have not been as urgent as those applicants who have been offered and allocated housing.
4.9 I note that the respondent, when carrying out an assessment of the housing needs of applicants, is obliged to consider each individual application in accordance with the list of priorities that are that are identified in its Scheme of Letting Priorities. The Scheme that has been adopted by the respondent makes provision for the prioritisation of applications by persons who are in need of housing on medical grounds and applicants who are deemed to fit into this category are accorded fourth preference in the order of priority in accordance with this policy. I note that the actual assessment of the housing applications made to the respondent is carried out by the Housing Officer in conjunction with the Chief Medical Officer, and I am therefore satisfied that this procedure facilitates an objective assessment of applications based on the criteria identified in the Scheme of Letting Priorities which includes objective consideration on medical grounds.
4.10 Having regard to the evidence presented, I am satisfied that the respondent was fully aware of the precise nature of the complainant’s disability, and furthermore, I am satisfied that this disability was taken into consideration as part of the overall assessment of his application for housing. I am satisfied that the reason the complainant has not been allocated housing by the respondent is not in any way attributable to his disability but rather is as a result of the number of applicants for housing whose needs are objectively greater than his. Accordingly, I find that the complainant has failed to establish that the treatment he was afforded was less favourable than the treatment that would be afforded to another person, in similar circumstances, who was not disabled nor had a different disability.
Reasonable Accommodation
4.11 In the case of disability, in considering whether discrimination has occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
I am now going to examine if the respondent did all that was reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities. In considering the obligations that are placed upon a housing authority to provide reasonable accommodation to a disabled person in terms of an application for housing, I have taken cognisance of the judgement of Hunt J. in the Deans[4] case where it is stated that:
“It seems to me that it is beyond argument in this case that Ms. Deans suffers from a considerable disability which requires reasonable accommodation within the context of Section 4. As I have pointed out in the decision which I have earlier referred to, reasonableness must be judged according to the context of the individual case. The City Council is entitled to bear in mind all of the extensive and considerable social, legal and policy considerations listed by Mr. Connolly as being applicable to the position of a housing authority in making allocations of accommodation, and they are indeed relevant to the decision as to what is reasonable in the particular case.
The housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities. It undoubtedly enjoys a substantial and generous measure of appreciation in dealing with individual applications for reasonable accommodation. All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it, which, of course, would be wrong, because its primary consideration is to the community as a whole and to the community of homeless persons or persons requiring accommodation. Consequently, in my opinion it cannot be forced to make more than a modest or nominal departure from its carefully constructed allocation scheme to meet the needs of any particular individual and its obligations to the disabled must be seen in that context, that they involve no more than a nominal cost and a reasonable approach to the solution of the problems posed by the needs of a disabled person”
4.12 Having regard to the findings of Hunt J. in the foregoing case, I am satisfied that a housing authority is not exempted from the obligation to provide reasonable accommodation to a person with a disability, however, in doing so it must also have regard to the Scheme of Letting Priorities that has been adopted. In the present case, I note that the complainant submitted medical evidence to the respondent from his General Practitioner outlining the nature of his disability and also that representations were made on his behalf by local representatives and a Mental Health Association. I am of the view that the provision of special treatment or facilities in the context of Section 4 of the Act, in the present case, would have placed an obligation on the respondent to give due consideration to the complainant’s disability as part of the overall assessment that was carried out on his application for housing in accordance with the adopted Scheme of Letting Priorities. Having regard to the evidence adduced, I am satisfied that all of the medical evidence regarding the complainant’s disability was made available to the respondent’s Housing Officer and Chief Medical Officer and that this information was, in fact, taken into consideration in the assessment of his application for housing. In doing so, I am satisfied that the respondent has provided reasonable accommodation in its assessment and consideration of the complainant’s applications for housing. In the circumstances, I find it is reasonable to conclude that the only reason the complainant has not been allocated housing by the respondent is as a consequence of the number of applicants for housing whose needs are objectively greater and not as a result of any failure on the respondent’s part to provide reasonable accommodation in terms of the assessment of his application.
5. Discrimination by Association
5.1 The complainant claims that the respondent has discriminated against him by association on the grounds of representations that he has made to it on behalf of his mother regarding its failure to carry out essential repairs to the house she rents from the respondent. The complainant claims that the respondent, and in particular the Town Clerk, Mr. Y, have actively discriminated against him in relation to the manner in which his application for housing has been processed as a result of the representations that he has made on behalf of his mother. The respondent totally refutes this allegation and it denies that the representations that the complainant has made on behalf of his mother have had any influence whatsoever regarding the manner in which his housing application was dealt with. Section 3(1)(b) of the Equal Status Acts, 2000 to 2004 states that:
“(1) For the purposes of this Act, discrimination shall be taken to occur –
(b) where a person who is associated with another person –
(i) is treated by virtue of that association, less favourably than a person who is not so
associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would
by virtue of paragraph (a), constitute discrimination”
5.2 In considering this issue, I note that it is not disputed between the parties that the complainant had made representations to the respondent on behalf of his mother regarding her tenancy. However, based on the evidence presented, I am satisfied that any interaction which occurred between the respective parties, and in particular between the complainant and the Town Clerk, Mr. Y in relation to this matter, did not have any bearing or impact on the manner in which the complainant’s application for housing was processed. In the circumstances, I have found no evidence to substantiate the complainant’s claims that he has been discriminated by association within the meaning of the legislation on the basis that he has alleged.
6. Other Issues
6.1 The complainant claims that the respondent’s Town Clerk, Mr. Y has operated an orchestrated policy of discrimination against him in relation to his housing application and has treated him in a cruel and inhumane manner. The complainant also claims that Mr. Y cancelled his original housing application and that this action constitutes further evidence of the orchestrated campaign of discrimination to which he has been subjected by Mr. Y and other officials that are employed by the respondent. The complainant further claims that he has been subjected to discrimination by the respondent on the basis of his involvement in a court case that took place in the locality within which he resides during the period from 1998 to 2002. He claims that this court case was openly discussed by members of the Town Council and that it had a direct impact on his application for housing to the respondent. Mr. Y totally denies that either he, or any other official employed by the respondent had any personal grievances against the complainant or that any perceived grievances, on the part of the complainant, had any bearing on the manner in which his housing application was dealt with. Mr. Y claims that the complainant’s application for housing was not treated any differently or less favourably than that of any other application. Mr Y also refutes the allegation that the complainant’s involvement in a court case had any bearing on the manner in which his housing application was processed by the respondent.
6.2 Having regard to the evidence presented, I find that the complainant has failed to adduce any evidence to substantiate the claims that there has been an orchestrated campaign of discrimination directed against him by either Mr. Y or other officials that are employed by the respondent in terms of the manner in which his application for housing has been dealt with. It should be noted that in order for a complainant to succeed in establishing a prima facie case of discrimination under the equality legislation it is necessary to demonstrate that that he or she has been treated less favourably than another person would be treated in a comparable situation on any of the discriminatory grounds. In the circumstances, I find that the complainant has failed to demonstrate that the alleged treatment outlined in paragraph 6.1 above amounted to less favourable treatment on any of the nine discriminatory grounds that are provided for in the Equal Status Acts.
7. Decision
7.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the gender, marital status, age and disability grounds in terms of sections 3(1), 3(2)(a), 3(2)(b), 3(2)(f) and 3(2)(g) of the Equal Status Act, 2000 and, accordingly, I find in favour of the respondent in the matter.
Enda Murphy
Equality Officer
3rd July, 2008
DEC-S2007-085 – Full Case Report
Forde v The Body Clinic, Dublin
1. Dispute
1.1 This dispute concerns a claim by Anne-Marie Forde that on 21 May 2004, she was treated in a discriminatory manner by the respondent. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of this and other relevant functions of the Director under Part III of the Equal Status Act. The Hearing of the complaint was held on 8 November 2007.
2. Summary of Complainants’ Case
2.1 The complainant states that both she and her sister had made appointments with the respondent for spray tans to be applied in advance of going on holidays. The Complainant’s sister, Ms. Roisín Cullen, attended for her appointment on the morning of 21 May 2004 and was requested to complete a medical questionnaire which specifically asked whether she suffered from, inter alia, epilepsy. Ms. Cullen explained to the receptionist that she did not have epilepsy but that her sister, the complainant, who was due to attend for an appointment later that day, had a mild form of epilepsy.
2.2 Ms. Cullen was told by the receptionist that the complainant could not receive the spray tan treatment and that she would ring the complainant to cancel the appointment. Ms. Cullen undertook to ring the complainant and tell her of the cancellation as she felt that this would be less of a shock and less embarrassing to her.
2.3 The complainant departed on her holiday the following day and was therefore unable to make alternative arrangements for the treatment.
3 Prima Facie Case
3.1. I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A (1) of the Equal Status Acts 2000 – 2004 states that
“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her it is for the respondent to prove the contrary”.
4. Prima Facie Case – Complainant
4.1 The complainant states that she has a disability, i.e. a mild form of epilepsy, and this is accepted by the respondent. The complainant sought a spray tan from the respondent and had her appointment for same cancelled when the respondent became aware of her disability.
4.2 The complainant’s sister was provided with the spray tan treatment by the respondent as she did not suffer from, inter alia, epilepsy.
4.3 I am satisfied that the complainant has established a prima facie case of discrimination on the disability ground.
5. Summary of Respondent’s Case
5.1 In the Hearing of this complaint the respondent accepted the facts as put forward by the complainant but stated that
the respondent acts at all times in the best interest of customers and staff
the spray tan procedure entails the use of canisters of carbon dioxide which could lead to oxygen deprivation and as a consequence, in the instant case, a seizure.
Medical advice as to the safe use of the spray tan equipment had been sought both before and after the complaint in this matter by the Managing Director of the company
The manufacturers of the spray tan booth gave a recommendation that there be adequate ventilation for the booth
The booth in question, while in use, had been relocated twice due to ventilation problems. The spray tan service ceased in 2004.
6 Conclusions of the Equality Officer
6.1 Having carefully considered all of the evidence presented in this case I am satisfied that the respondent has failed to rebut the inference of discrimination for the following reasons:-
Documentary Evidence presented at Hearing by the respondent indicates that;
The manufacturers of the spray tan booth state that there is no hazard associated with use of the booth.
No restrictions of use are put forward by the manufacturer of the booth.
No direct medical evidence was presented by the respondent as to why the spray tan procedure could not be provided to the complainant.
The respondent indicated that ultimately their insurance providers had imposed the requirement for a medical questionnaire for clients and had insisted that persons suffering from the list of disabilities thereon could not avail of certain services in order to prevent potential legal liability arising.
No details of the extent or nature of the manifestations of the disability were sought. Service was refused specifically because of the existence of the disability.
6.2 It is clear to me from the evidence provided at the Hearing of this complaint that the respondent’s actions in refusing the service to the complainant were primarily on foot of the insurance provider’s insistence that service was not to be provided to persons with, inter alia, epilepsy. It should be noted that under Section 13 of the Equal Status Acts it is an offence to procure or attempt to procure another person to engage in prohibited conduct. This does not in any way excuse the respondent’s actions in imposing the insurer’s conditions in this matter.
7 Decision
7.1 I find that the respondent has directly discriminated against the complainant on the disability ground contrary to Section 5 and in terms of Section 3 (1) and 3(2) (h) of the Equal Status Acts 2000-2004.
8 Redress
8.1 In accordance with Section 27(1)(a) of the Equal Status Acts 2000-2004 I hereby order the respondent to pay to the complainant the amount of €1,000 for the effects of the discrimination.
_________________________
Dolores Kavanagh
Equality Officer
28 November, 2007
DEC-S2002-024 Full Case Report
A Complainant v Café Kylemore
The complainant referred a claim to the Director of Equality Investigations on 3 September, 2001 under the Equal Status Act, 2000. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000, the Director then delegated the case to Marian Duffy, 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 Act, 2000.
1. Dispute
1.1 The dispute concerns a claim by the above named that he was discriminated against by The Kylemore Restaurant on the disability ground in terms of Sections 3(1)(a), and 3(2) (g) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act in that he was refused access to a service which is generally available to the public in the respondent’s premises.
2 Background
2.1 The complainant alleges that he was discriminated against by the respondent contrary to the Equal Status Act, 2000 when he was refused access to a service in the respondent’s restaurant on the 29th May, 2001. The complainant submitted that he was asked to leave the respondent’s premises by the manager and shown a sign stating that the management has a right to refuse entry. He contends that the manager told him she didn’t want alcoholics in the restaurant. The complainant stated that he was discriminated against on the disability ground. The respondent submitted that the complainant was with a group who caused a disturbance in the restaurant the previous day. The complainant visited the restaurant the following day and was advised that he would not be served. The respondent denied that the complainant was discriminated against on the disability ground contrary to the provisions of the Equal Status Act, 2000.
3 Summary of the Complainant’s Case
3.1 The complainant submitted the following:
that he is a recovering alcoholic and that he attends Alcoholics Anonymous. For the past year and a half he regularly frequented the respondent’s restaurant to have either breakfast lunch or coffee and snacks. He would regularly meet friends there either before or after attending a meeting of A.A. in a nearby premises.
On Tuesday 29 May, 2001, he was in the restaurant with a friend and left there at about 12:30 to go to an A.A. meeting. He returned to the restaurant in the afternoon at about 2:30 p.m.. He was at the counter with a tray and was about to purchase some food when the manager called him aside.
The Manager Ms. Catherine Bullman brought him to the door of the restaurant and showed him a sign regarding the manager’s right to refuse entry and then said to him
“we don’t want any alcoholics in here any more – leave”.
The complainant said that he left the restaurant and as a result of the way he was treated he suffered three panic attacks on the street.
In response to the respondent’s case, the complainant denied that he was part of a group which caused a disturbance in the restaurant the previous day. The complainant said that he had heard about the disturbance, but he did not know the person involved. He said that if he had been involved in the trouble he would not have gone back to the restaurant.
The complainant submits that the reason he was asked to leave the restaurant was due to the fact he is an alcoholic in recovery. He states that the staff knew that he and his friends are members of A.A.
A friend of the complainant Mr. A gave supportive evidence on his behalf. However, he was not present in the café at the relevant time leading up to the incident. He said that he is also a recovering alcoholic and attends A.A. with the complainant. He stated that the trouble in the Cafe Kylemore was caused by a person who was drunk. He believes that the complainant was not in the restaurant at the time the trouble occurred.
Mr. A stated that he was in the restaurant on 29 May, 2001 at about 2:20 p.m. waiting for the complainant. He then noticed the manager leading the complainant to the door of the restaurant. He was surprised that the complainant was asked to leave the restaurant.
The complainant’s representative submitted that the complainant was wrongly associated with a group causing trouble in the restaurant and he was so associated because the respondent knew he was a recovering alcoholic. The only reason the complainant was given for the refusal of service was a discriminatory reason, that is the respondent did not want alcoholics in the restaurant.
4 Summary of the Respondent’s Case
4.1 The respondent denied that the complainant was discriminated against on the disability ground in relation to access to a service in the restaurant and submitted the following:
The complainant was in a group of five people in the restaurant, they were having teas and coffees. Ms. Bullman, the manager, said that she recognised three of the group including the complainant. The other two men in the group were not known to her.
Ms. Bullman submitted that they became very loud and aggressive and she asked them to calm down. It was about 12.45 and the restaurant was very busy. At about 13.20 it was necessary to call security as one person in the group (not the complainant) became abusive and caused a disturbance. A security woman arrived and she was pushed aside by the man. He then picked up a chair and knocked items of glass and cutlery off the tables. All the customers fled from the restaurant.
Following the arrival of back up security, the man was physically removed from the restaurant.
Ms. Bullman was not sure if the complainant was present throughout the violent disturbance, but she was sure he was in the group earlier when she had occasion to speak to them about their loud and abusive behaviour. This was before the physical violence occurred.
Ms. Bullman decided that, in future, none of the group including the complainant would be served in the restaurant. She said that she decided on this course of action in order to protect her staff and customers.
Two of the group came into the restaurant later that day and she refused to serve them. The complainant came into the restaurant the following day, 30 May, 2001. Ms. Bullman asked him to step aside and she then explained to him that she was not serving him. She didn’t tell the complainant the reason she was not serving him. She denies she said anything about being an alcoholic. She didn’t know the complainant was an alcoholic and only became aware of this when he submitted the notification of his complaint to her.
She said that she knew the complainant to see for over a year as he was a regular customer as were two of the other people in the group who caused the disturbance. She often saw the complainant in their company.
Ms. Bullman said that she was Manager of the restaurant for 13 years and she never experienced such a violent disturbance before. She has total control in managing the restaurant. Infrequently customers cause problems and are not served for various reasons. However she keeps no list of those who are barred from the restaurant. She refuses service to people who cause disturbance in the restaurant, or for hassling staff or customers. She operates a strict policy in order to protect her staff and customers.
Ms. Bullman said a record of the incident was made in a diary on 29 May, 2001 and that she also made a separate statement for management. Subsequent to the hearing the respondent sent me a copy of a diary entry for 29 May, 2001 and a copy of Ms. Bullman’s statement.
The diary entry was made by the assistant manager, Ms. Lorraine Coughlan and counter signed by the manager, Ms. Bullman. The entry stated: “On Tuesday lunch approx 12:45 two men were shouting at each other loudly. They were asked to leave which one did after spitting on the ground and turned his cup upside down. The other however remained and was very aggressive – He pushed a female security guard and picked up a chair with which to hurl at Catherine. He continued the rant & rave banging trays on the table, sending a bowl smashing on the floor. Eventually four security men arrived & escorted him out.”
Ms. Bullman’s made a further statement to management which was not signed or dated. It was submitted that the statement was made shortly after the incident on 29 May. In the statement Ms. Bullman said that that the complainant was with a group of men in the restaurant at about 12:40 pm. One man in the group was shouting and roaring and they were asked to leave. One man left after spitting on the ground. Another man went berserk and started throwing chairs and banging tables. The statement went on to say that two men from the group visited the premises later in the day of 29 May and Ms. Bullman advised them that they would not be served. The complainant came into the premises the following day, 30 May 2001 and Ms. Bullman informed him that he would not be served. In her statement Ms. Bullman said that the complainant became very cross and said that he would call the Gardaí.
The respondent submitted that the complainant was not discriminated against on the disability ground as Ms. Bullman was not aware he was an alcoholic or that he was in the company of alcoholics. It was also submitted that alcoholism is not a disability within the meaning of the Act and that the complainant is not therefore covered by the Equal Status Act.
5 Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(g) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified… (in this case the gender ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds … are…that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),” Section 5(1) provides inter alia that:
“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as:
“Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred.”1
5.3 I have identified the three key elements which need to be established to show that a prima facie case exists as follows:
– is the complainant covered by the ground?
-in what circumstances was the complainant refused service by the respondent on 29 May, 2001.
-evidence that the treatment received by the complainant was less favourable than a person not covered by the disability ground, or a person with a different disability, would have received in similar circumstances. If and when those elements are established, the burden of proof shifts to the respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases it is not necessary for the complainant to prove that there is a link between the difference in treatment and the membership of the ground, instead the respondent has to prove that there is not. If the complainant succeeds in establishing prima facie evidence, the burden of proof then shifts to therespondent to rebut the inference of discrimination. I am now going to examine the issues I have identified above and consider whether the complainants have established a prima facie case.
5.4 The respondents submitted that the complainant is not covered by the disability ground under the Equal Status Act, 2000 as it is their understanding that alcoholism does not fit within the definition of disability. The complainants representative submitted that alcoholism is an illness and is covered under the definition of disability in the Act. It was submitted that there are medical consequences associated with the abuse of
1 Dublin Corporation v. Gibney
alcohol. The complainant’s witness Mr. A submitted that an A.A. definition of the abuse of alcohol is “physical, mental and spiritual”.
Section 2 (1) of the Equal Status Act, inter alia, provides:
“Disability” means
“(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgements or which results in disturbed behaviour.”
In Black’s Medical Dictionary 39th edition it states inter alia that:
“Alcohol depresses the central nervous system and disturbs both mental and physical functioning…… Persistent alcohol misuse leads to physical, mental, social, and occupational problems, as well as the risk of dependence ….. Alcohol dependence – is the most serious , and can severely disrupt health and social stability…..many researchers consider alcohol dependence to be an illness…..” In relation to addiction the Dictionary states that: “it was not until the mid 18th century that excessive drinking, or ‘inebriety’ as it was then known, came to be regarded as some sort of disease. Alcohol dependency is also described in the Dictionary as a “Drug Addiction or dependence is the compulsion to take a drug repeatedly. The definition of alcoholism by the National Council on Alcoholism and Drug Dependence, Inc, New York, is “Alcoholism is a primary, chronic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterised bycontinuous or periodic: impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notable denial”.2 The Court of Appeal in Northern Ireland in an case concerning the entitlement of a person to a war widow’s pension, under the relevant legislation, where the cause of death was certified as alcoholism the Judge stated: “It was not in dispute that
2 This definition was prepared by the Joint Committee to Study the Definition and Criteria for the Diagnosis of Alcoholism of the National Council on Alcoholism and Drug Dependence and the American Society of Addiction Medicine. Approved by the Boards of Directors of the National Council on Alcoholism and Drug Dependence, Inc. (February 3, 1990) and the American Society of Addiction Medicine (February 25, 1990)
alcoholism is a disease and hence would fall within the definition of an injury contained in the amended Schedule 4 to the 1983 Order.” 3 The definition of alcoholism in Collins English Dictionary and Thesaurus 21st century edition “alcoholism is a condition in which dependence on alcohol harms a person’s health, family life etc.” It appears to me from the above definitions that alcoholism is an addictive disease andthe consequence of that addiction leads to health problems both mental and physical. I am satisfied that the condition of alcoholism comes within the definition of disability in the Equal Status Act, ” a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgements or which results in disturbed behaviour.” and this definition concurs with the accepted medical definition of the disease alcoholism in the various dictionaries. I find therefore that the complainant is covered by the discriminatory ground.
5.5 It was agreed that the complainant was refused a service in the respondent’s the premises and therefore the second key element mentioned above at (b) has been satisfied. I am now going to examine the third key element of the test, to establish if the complainant was treated less favourably by the respondent, than a person without a disability or a person with a different disability would have been treated in similar circumstances.
5.6 The complainant’s case is that he was refused service because he is a recovering alcoholic. He believes that the respondent knew he that he and his friends regularly met in the restaurant for snacks prior to attending A.A. meetings. The complainant said that he was not present when the disturbance took place. He usually left the restaurant at 12:30 to go to the A.A. meeting. On 29 May, 2001 he was in the restaurant with a male friend and they both left at about 12:30 to go to an A.A. meeting. He heard about the disturbance after an A.A. meeting from two friends who
3 The Secretary of State for Social Security and Sandra McLean Court of Appeal NI Citation(2000)2148 Ref: CARC3272 Delivered 17/11/00
were in the restaurant. These friends told the complainant that they had been refused service because of the disturbance. The complainant denied that he knew the individuals involved in the disturbance. He also denies that that he was in the company of four other male customers in the restaurant on 29 May or that Ms. Bullman approached him at any time and asked him to desist from being loud or aggressive.
5.7 The respondent’s case is that the complainant was in the company of individuals who misbehaved in the restaurant and it was for this reason they were entitled to refuse service to the complainant when he next visited the restaurant. Ms. Bullman submitted that the complainant was in the group when she requested them to desist from their loud and aggressive behaviour.
5.8 There was a conflict of evidence in relation to the date the violent incident occurred and the date service was refused to the complainant. The complainant submitted that he was refused service on 29 May, 2001 and the respondent submitted that the refusal of service took place on 30 May, the day after the violent incident occurred. I note from the complainant’s evidence that he was in the restaurant on a Tuesday and from the diary entry produced in evidence by the respondent that the violent incident occurred on Tuesday 29 May, 2001. I also note that the complainant learned about the disturbance at the restaurant from two of his friends after an A.A. meeting and prior to the complainant being refused service. They also told him that they had been refused service because of the disturbance. The respondent’s evidence was that these two men were refused service in the afternoon of 29 May, 2001. I am satisfied therefore from the evidence that the complainant learned, from his friends after an A.A. Meeting on 30 May, about the violent incident and his friends refusal of service in the restaurant. I find on the evidence that the violent incident occurred on 29 May, 2001, that the complainant was in the restaurant prior to lunch on the 29 May and that service was refused to the complainant on 30 May.
5.9 The next issue for decision is whether the complainant was present in the restaurant on 29 May when the violent incident occurred or if he had already left for his A.A. meeting. The complainant’s evidence was that he was in the company of one friend in the restaurant on 29 May and he left at 12:30 p.m. to go to an A.A. meeting. Ms. Bullman’s evidence was that the complainant was in a group of five men, and sometime prior to the violent incident she had to ask them to desist from being loud and using abusive language. In a diary record of the violent incident dated 29 May, 2001 and signed by the manager Ms. Bullman and the assistant manager Ms. Coughlan it mentions two men shouting at each other. The record also states that the two men were asked to leave, one left but the other man became very aggressive and violent and was eventually taken from the restaurant by security.
5.10 As stated above, I am satisfied that the complainant was in the restaurant on 29 May, but I am also satisfied from the respondent’s evidence that the complainant was not present in the restaurant at the time the violent incident occurred. The complainant was a regular customer of the restaurant and he was in the restaurant on that day up to 12:30 when it was his usual practice to leave and go to an A.A. meeting.
5.11 The next matter for decision is whether the complainant was ever in the company of four other men on the day in question and if he was present when Ms. Bullman asked these men to desist from being loud and using abusive language. Ms. Bulman’s evidence was that she knew the complainant well and she was certain he was in a group of five men to whom she spoke about being loud and using abusive language. The complainant denied that he knew these people or that he was in their company at any time on 29 May, 2001. However he provided no corroborative evidence to substantiate his claim that he was not in the company of the people who were loud and used abusive language, or was in the company of the person who caused the disturbance at any time on the 29 May and prior to him leaving for his A.A. meeting. I note from the complainant’s evidence that he said he was with a friend on the day in question but this friend was not called to give evidence. Another friend of the complainant Mr. A gave hearsay evidence in relation to the incident in the restaurant which I cannot take into account in considering the complainant’s case as Mr. A was not present in the restaurant. From the evidence it seems to me that the complainant was a regular and welcome customer of the respondent restaurant up until 29 May, 2001 and that his status as a recovering alcoholic did not create any difficulty for him in getting service. Something happened on the day to lead Ms. Busman to take the decision to refuse service. It seems to me that Ms. Bullman believed that the complainant was friendly with and present in the restaurant in a group of five people who were loud and aggressive and that Ms. Bullman decided for these reasons not to serve any of these customers when they next visited the premises. I am satisfied that the complainant’s behaviour in the restaurant on 29 May would not have warranted a refusal of service. I am also satisfied that the refusal of service was connected to the perception by Ms. Bullman that the complainant associated with people who caused a disturbance in the restaurant. In considering this case I have asked myself would Ms. Bullman have refused service to a person without a disability or a different disability in similar circumstances and I believe she would have taken the same decision. Ms. Bullman’s evidence was that she has to protect her staff and customers from any hassle or violence. I am satisfied that the complainant was not barred from the premises because of his disability or because he associated with persons who have a disability, but he was refused service and barred because the respondent believed he associated with a person who caused a violent disturbance on the premises. Although Ms. Bullman never experienced such violent behaviour in the restaurant I find that if a non-alcoholic associated with a group of people who behaved violently that subsequent service would be refused to the whole group. I find that the complainant was not treated less favourably than a person without a disability or with a different disability would have been treated in similar circumstances.
5.12 The complainant submitted that when Ms. Bullman refused service to him she said that she did not want alcoholics in the restaurant, a remark Ms. Bullman denies making. I find no evidence to support the complainant’s contention that Ms. Bullman made a discriminatory remark to him when she asked him to leave the premises.
Reasonable Accommodation
5.13 Section 4 of the Equal Status Act provides that, inter alia: “(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. I find that, in the circumstances of this case, that the question of reasonable accommodation does not arise.
5.14 I am also satisfied that Ms. Bullman did not know that the complainant was an alcoholic and that he and his friends met in the respondent’s premises prior to attending A.A. meetings. I note that the complainant in evidence stated that a member of staff of the restaurant knew he was a recovering alcoholic, but no corroborative evidence was provided by him at the hearing. I find that Ms. Bullman did not associate the complainant with a group of violent alcoholics or alcoholics at all, as it was not within her knowledge that anyone in the group were alcoholics or recovering alcoholics. I find on the balance of probabilities that the complainant has not established a prima facie case of discrimination.
6. Decision
6.1 I find for the foregoing reasons, that the Kylemore Restaurant did not unlawfully discriminate against the complainant on 29 May, 2001 in terms of Sections 3(1)(a), and 3(2)(g) and contrary to Section 5(1) of the Equal Status Act.
____________
Marian Duffy
Equality Officer
2 May, 2003
DCC-S2005/044 Full Case Report
Carey v McDonalds Restaurant
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act, 2000, the Director has delegated this complaint to me Mary O’Callaghan, 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 Act, 2000.The hearing of the case took place on Tuesday 12th April 2005.
1. Dispute
1.1 This dispute concerns a complaint by Mr. Brendan Carey that he was discriminated against contrary to the Equal Status Act when he went to McDonalds Restaurant in O’Connell Street in Dublin on 9th March 2003. Mr. Carey alleges that the treatment he received was contrary to Section 3 (2) (g) of the Equal Status Act, 2000 i.e., the disability ground, and that in not being provided with a service which is generally available to the public he was subjected to treatment contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 The complainant said that he went to McDonalds Restaurant in Lower O’Connell Street, Dublin with his 3 children on the afternoon of Sunday 9th March 2003. One of the children who was aged 5 months was in a buggy and the others were aged 3 and 5 years. Mr Carey has scarring on his face as a result of injuries received in a car crash some years ago when he was propelled through the windscreen.
2.2 Mr Carey said that when he approached the door to gain access to the restaurant, the security man stopped them at the door and refused to let them in. He said that the security man spoke with broken English. Mr Carey said that after explaining to him that he had come to the restaurant to treat his children, the security man allowed him in and told him to stay downstairs. He said he was a regular customer of McDonalds and this was the first time he had any trouble being served there. Mr Carey said that they wanted to go upstairs in the restaurant but were being prevented from doing so. He asked for the manager and when the manager arrived he explained that he wanted to buy his children a meal. Mr. Carey said he found the manager’s attitude hostile and that the manager then told him he would not be served. No explanation was given for refusing him service. While this was going on Mr. Carey said others were being served and were being allowed up to the upper floor. As far as he was aware he was the only person being refused
2.3 Mr. Carey said he could not see any reason for the security man refusing him entry to the upper floor. There was no problem. No Gardai were called to the incident. All Mr. Carey could think of was that the security man noticed the scars on his face and decided to refuse him because of that. Mr. Carey said he had been back to the same branch of McDonalds with his children a few times since then and had been served.
3. Summary of the Respondent’s Case
3.1 The respondent (HR Manager) said that while they had no defined criteria regarding why people would be refused entry to their restaurants, their security staff operated vigilantly to protect company employees and customers, if they had any cause for concern about a person. They would impose a restriction in order to ensure no incidents occurred. There was no security presence in the upstairs area of the restaurant concerned.
3.2 The respondent said that their restaurant provided specially adapted toilets for their disabled customers and these were on the downstairs level of the restaurant. All staff are given some training in dealing with disabled customers on their orientation course and there are plans that further training will be provided this year. This is part of the policy and procedures of the company.
3.3 The respondent said the security staff work on a rotational basis in the different branches of the restaurant chain so that the same security man could work in a number of different branches of the restaurant. The security man that dealt with the complainant had reported that he recognised Mr. Carey from an incident in another branch of the restaurant previously. She said that the manager who was in the restaurant on the date of the incident reported, no longer worked for the company and neither he nor the security man who dealt with the complainant were present for the hearing. However, both had made written reports at the time of the incident to the human resources department and it was on these that she was relying.1 Her understanding from the reports was that Mr. Carey had approached the counter of the restaurant and asked to speak to the manager. When the manager came Mr. Carey spoke to him in derogatory terms and used strong language. It was at this stage that the manager made the decision not to serve Mr. Carey. The respondent said that there would have been no problem gaining entry in normal circumstances but in this case the security man recognised Mr. Carey and service was refused because of aggressive behaviour towards the manager.
3.4 She said that a person would not be refused entry to the restaurant because of a disability. She said that the restaurant chain had a policy of employing people with disabilities and there were up to 60 disabled people working for the company. They aimed to integrate disabled people and they were keen to maintain a positive image for the company. Mr. Carey was not refused service because of any disability he may have.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainant has succeeded in establishing a prima facie case of discrimination on the disability ground. In order to do so the complainant must satisfy three criteria in relation to his complaint. He must (1) establish he is covered by a discriminatory ground (in this case the disability ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3)there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not covered by the discriminatory ground would have received in similar circumstances.
Section 2 (1) of the Equal Status Act, 2000 defines a Disability as—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
Section 4 of the Act sets out the requirements attaching to service providers in their dealings with disabled people.
(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.
4.2 Mr. Carey submitted that the scarring on his face constituted a disability under the Act and I accept that such scarring comes within the definition of disability set out in Section 2 (1) (c) of the Equal Status Act 2000. I therefore conclude that Mr Carey is covered by the disability ground in relation to his complaint under the Act. It is agreed between the parties that Mr Carey was refused service on his visit to McDonalds on Sunday 9th March 2003 and therefore it has been established that he did suffer the specific treatment alleged in his complaint. The third criterion which he must meet is whether the treatment he received was less favourable than the treatment that any person would have received in similar circumstances and who did not have a disability or had a different disability to Mr. Carey.
4.3 In relation to this third criterion I am conscious of the fact that none of those present for the respondent at the hearing were actually present at the incident complained of. The respondent has provided evidence drawn from reports made by those involved contemporaneously with the incident. The evidence from the complainant, Mr. Carey, is that he did nothing that should have resulted in him being refused service either in the particular branch of Mc Donald’s on the day in question or in any other branch of the restaurant at any time. I can only consider whether the evidence of the complainant or the respondent is more compelling with regard to the reason for the refusal. In the absence of direct evidence from the security man on duty I cannot say whether any incident involving the complainant prior to the incident under investigation did occur. I must consider whether there is sufficient evidence to conclude that the refusal arose due to the complainant’s disability i.e. the scarring on his face. Mr. Carey was accompanied by his children at the time of this incident. I am inclined the view that in a restaurant such as McDonalds something other than Mr. Carey’s disfigurement, which in my experience of the complainant is only apparent on close scrutiny must have prompted the refusal initially at the door of the restaurant and later by the manager at the counter. I note that Mr. Carey’s evidence is that he has been served in McDonalds many times prior to this incident and subsequent to it and that he continues to frequent the restaurant on occasions with his children without problems. I conclude, therefore, that on the balance of probabilities the treatment received by Mr. Carey was not less favourable treatment for the purposes of the Equal Status Act, 2000.
4.4 I have considered the obligations of a service provider under Section 4 of the Equal Status Act 2000 as set out above for completeness of my investigation. This section requires service providers to provide reasonable accommodation in the provision of special facilities for customers with disabilities so long as such facilities do not exceed a nominal cost to the provider. I have considered Mr Carey’s particular disability and have concluded that with regard to the service being provided by McDonald’s, that all necessary facilities for the enjoyment of a meal at the restaurant for someone with his disability were available at the restaurant. There is no indication that anything was said to Mr. Carey regarding his disfigurement and I am satisfied that the restaurant does provide reasonable accommodation for disabled customers. I conclude therefore that the third criterion required to establish a prima facie case of discrimination has not been met by Mr. Carey and therefore, in relation to this complaint the complainant has not established a prima facie case on the disability ground.
5. Decision
5.1 The complainant having failed to establish a prima facie case of discrimination on the disability ground cannot succeed in his complaint and I find for the respondent in this case (DEC-S2005-044). I would, however, like to express a note of concern in relation to the refusal of service as happened here when a customer is accompanied by young children and would recommend that the respondent company bear this in mind in developing procedures for dealing with such incidents in the future.
Mary O’Callaghan
Equality Officer
17th June 2005
DEC-S2006-028 Full Case Report
Two Complainants v A Primary School
Delegation under Equal Status Act, 2000
The complainants referred a claim to the Director of Equality Investigations on 18th April, 2001 under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to Marian Duffy, 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 Act, 2000.
1. Dispute
1.1 The complainants, a mother Mrs. A and her son M alleged that they were discriminated against by the respondent, a Primary School on the disability and Traveller community grounds in terms of Section 3(1)(a) and Section 3(2)(g)(i) and (j) of the Equal Status Act, 2000 and contrary to Section 7(2) of that Act. They also maintain that they were harassed contrary to Section 11 of the Act. They said that they are members of the Traveller community and that they both have a disability.
2. Summary of the complainants’ cases
2.1 M started in 5th class in the respondent’s school in March, 2000 having been at school in England up to then. During the new academic school year commencing in September 2000, Mrs. A said that she was called to the school on several occasions concerning her son’s behaviour. He was sent home on several occasions as it was alleged that he could not remain still and was disrupting classes. The complainant, Mrs. A submitted that her son was bullied and was called names at school, and that management failed to deal with the problems he encountered there. He was constantly blamed for anything that happened. She said that her son had been suspended from school on two occasions for the alleged bullying, fighting and going walkabout during class and for not returning to class after breaks. She submitted that her son was standing up for himself in the face of being called offensive names such as “knacker” and was taunted by other children because he is a member of the Traveller community. Mrs. A said that no action was taken against the other pupils, who called her son names.
2.2 The parents requested that M be transferred from his Class Teacher and he was transferred to the Resource Teacher for Travellers (RTT) where he was very happy as he got on much better with that teacher. Mrs. A said that she would prefer M to stay in the resource class as he appeared to be getting on better with a male teacher. On 26th October, 2001 Mrs. A. was called to the school to attend a meeting about M being returned to his class teacher. The meeting was attended by the Principal, the Class Teacher, the RTT, and the home school liaison teacher.
2.3 During the course of the meeting a Garda entered and Mrs. A then left as she objected to his presence deeming it a private parent teacher meeting called to discuss M’s return to his original class teacher. Mrs. A said that there was no discussion about M’s alleged behaviour nor did the Garda mention anything to her about alleged bullying by M. She was shocked to see the Garda enter the meeting and left in a very distressed state. The Garda told her that he was invited to the meeting by the Principal. Following this meeting Mrs. A took M and her other children out of the school for three weeks. She also complained to the Department of Education about a Garda being present at a parent teacher meeting. Subsequently the Principal arrived at her house to apologise. She submitted that this was at the direction of the Department of Education. The apology was subsequently accepted and M and the other children returned to school. Mrs. A consulted her solicitor who took the case up with the school and warned the school they were considering lodging a complaint under the Equal Status Act. She also had a number of meetings with the school authorities and during some of these meetings she submitted that there was a request to withdraw the complaint lodged under the Equal Status Act.
2.4 In November 2001 an incident occurred during P.E class when a stool was knocked over and a child’s leg was injured. It was submitted by Mrs. A that M was wrongly blamed about the incident, and that the investigation was not fair in that the other children were asked in a questionnaire whether M was to blame or not. M was not asked to fill in the questionnaire. Mrs. A and her husband submitted that they subsequently learned from the mother of the injured party that their son was not to blame.
2.5 Mrs. A said that at one parent teacher meeting, the Principal told her that M suffered from ADD (Attention Deficit Disorder) and she asked that M be assessed. The Principal told her that would take two years and M would have long since departed the school.
Evidence of Mr. A
2.6 After the Garda had been brought into the meeting Mrs. A no longer dealt with the school and Mr. A had made arrangements with the Principal that he would be contacted in the event of a serious problem arising in connection with his son. Mr. A said that the school telephoned him constantly complaining about M. He said he worked in Malahide and had to leave work on many occasions after being called to the school over trivial breaches of the school rules, i.e., being back late from lunch, moving about in class, talking in class, cycling in the yard and not standing still in queues. He also said that M still complained about being called names, so he raised this with the Principal. On one particular day the school telephoned Mr. A on three occasions. In January 2001 Mr. A said that he was called to the school because M had not returned from lunch and he found him in a distressed state sitting in a park near the school threatening to kill himself. Mr. A complained to the Principal about the pressure that M was being subjected to by the school situation, in particular by one pupil who constantly called him names. Mr. A asked that M and this pupil be separated in class and this did indeed happen briefly but after a while they were put together again. Mr. A said that he attended a meeting with the Principal, the class teacher, and the RTT at which he emphasised he was trying to co-operate with the school in order to get the problem resolved. He believed that the school was working against him in that they had failed to resolve the issue about name calling. Mr. A stated that at the meeting he asked at the meeting what he could do to assist M. He said that it would soon come to a point where he would have to take M out of the school. The Principal replied that might be the best thing to do. The class teacher said that M was driving her crazy as he would not sit down in class. The RTT said that he felt that the school could still deal with the situation. Mr. A said that the school did not offer to get any assistance to deal with M, nor did the school staff suggest to him that he should get M assessed. In February 2001 Mr. A decided after another complaint and in the light of the continuous calls to the school during his work that he would take M out of the school.
2.7 M was due to make his Confirmation in May 2001. He had attended the rehearsals, but one week prior to the Confirmation his mother was informed by the Liaison Teacher for Travellers that M was not on the list for Confirmation. Mrs. A telephoned the local priest Fr. D, who was also a member of the Board of Management of the school. He confirmed that M would not be making his Confirmation. Mr. A then went to see Fr. D who said that M would not be confirmed. Mr. A said that the priest’s tone was provocative and when he referred to his wife Fr. D asked “Is that the one with the English accent”. Mr. A said that when he asked why M was not on the list for Confirmation, Fr. D said that the family was suing the school, alleging that they were doing this for money. When Mr. A said that he was going to see the bishop about the Confirmation, Fr. D suggested that he should join the Jehovah’s Witnesses. Mr. A said that he believes that M was not confirmed simply because the family was taking a case under the Equal Status Act against the school.
Evidence of M
2.8 M said in evidence that the other pupils constantly called him “knacker” or “dirty knacker” particularly in the playground. He said that he had gone to school in England and got on well there, and the school knew he was a Traveller. He didn’t like the present school because of the name calling. He had no friends and he did not play sports. He did not like PE as the other children used these occasions to call him names in the school hall. He said that he had fought with children who had called him names because he was upset. He had been suspended for fighting. There was supposed to be an agreement that he would tell the teacher about name calling as it happened. However, when he told the teacher she ignored him. He said that he liked the RTT teacher and he got on well with the four other children in that class.
M went to secondary school in September 2001. The school arranged to have him assessed by a Psychologist who confirmed that he was suffering from ADD.
3. Summary of the Respondent’s Case
3.1 The respondent submitted that M was not discriminated against on the Traveller community ground. The Principal stated in evidence that the school enrols a great number of Travellers and the family had a number of children in the school including two children younger than M who got on very well in the school. Because of the number of Travellers enrolled, the school applied to the Department for a Resource Teacher for Travellers. A teacher who was on the staff of the school was appointed as the RTT. The school was also visited by the Department of Education’s Home School Liaison Teacher for Travellers, Ms. Anne Byrne who would take classes with Traveller children in order to assess their progress.
Evidence of the Principal
3.2 The respondent stated that M was enrolled in the school at the beginning of the 1999/2000 school year. While he did not present major disciplinary problems, his class teacher noted that he had short attention spans, resulting in disruptive behaviour. Some of the children in his class were afraid of him and this was brought to the attention of his parents. When M transferred into 6th class there was a marked deterioration in his behaviour. Complaints were received about M bullying other pupils in his class, misbehaving in the school yard and slamming a door in a child’s face. Parents also complained to the Class Teacher about M’s behaviour towards their children. The Principal said that he could not imagine that M was called names as the other children in the class were afraid of him. The Principal said that he constantly asked M to behave and he had put a system in place to reward good behaviour with a chip voucher. The Principal had a meeting with the parents and brought these incidents to their attention. The parents complained about M being called names. The Principal received a complaint about one particular pupil and he investigated the incident and the pupil concerned was sanctioned. He also told M that he should report any name calling to the teacher. He got a report that M kicked over a bench during PE resulting in a child’s leg being injured. He investigated the incident by a questionnaire excluding M as it is the policy to exclude the pupil who is accused. This investigation exonerated M. The Principal allowed M home for lunch in order to avoid problems in the school yard. However, the problems continued and M was suspended following a further alleged bullying incident in the school yard.
3.3 The Principal met both parents together with his Class Teacher and the Resource Teacher for Travellers. At the meeting both parents were made aware of the M’s behaviour. It was agreed with the parents that one of them would come to the school on a regular basis to see if M was behaving but the parents did not follow through with this agreement. Complaints continued to be brought to the attention of the Principal. He excluded M from PE classes as he considered him a danger to himself and the other pupils.
3.4 M was then transferred to the RTT class for a number of weeks as his Class Teacher could not cope with him. It was not usual for children to be taught full-time in the RTT class, the Traveller children who require assistance with school work are withdrawn from their regular class for one or two classes during the school day. As it was not envisaged that M would be staying full-time in this class, it was decided it was time to transfer him back to his regular class after a few weeks. A meeting was called with Mrs. A to discuss this and also a number of incidents concerning M, which had occurred in the previous days. A meeting took place on 26th October 2000 with Mrs. A, the Principal, the Class Teacher, the RTT, and the home school liaison teacher. While the meeting was in progress a member of the Garda Siochana (Community Garda) arrived at the school to talk to the children about the dangers of Halloween. As one of purposes of meeting Mrs. A included a discussion on M disruptive bullying behaviour, the Principal invited the Garda into the meeting to offer friendly advice as the Garda is regarded as an expert in the area of bullying. The Principal said that he did not warn Mrs. A that he was inviting the Garda to attend. As soon as the Garda entered the meeting Mrs. A objected, leaving the meeting and taking M and her daughter out of school. The Principal said that he subsequently received a telephone call from a Department of Education Inspector seeking to have M returned to school. The Principal went to the family home and apologised for bringing the Garda into the meeting and the children returned to school.
The Principal stated that on one other occasion some years ago he invited a Community Garda to a meeting with a parent. On that occasion a bathroom was flooded in the school and he was having a meeting with the parent and child responsible for the damage. A Community Garda was visiting the school and he invited him to the meeting. The parent and child in question were not members of the Traveller community.
Evidence of the Class Teacher
3.5 The Class Teacher stated that M was in her 6th class. She said that she had an interest in special education, including education for Travellers. She said that she worked to integrate special education classes into mainstream education. She said that the school always welcomed Travellers and pushed hard to have a resource teacher for Travellers appointed by the Department of Education. She said that she also worked closely with the Traveller Liaison Teacher. She said that right from the start she got complaints about M. She had to rearrange the seating arrangements because one parent did not want their child to sit beside M. The complaints mostly related to bullying by M. She attended a number of meetings with the parents of M who suggested that M was called names and bullied. The parents also suggested that they would bring in the Department of Education as they felt that the school had a bullying problem. At one particular meeting it was decided that M would be transferred to the RTT full-time for a period of time.
3.6 The Class Teacher kept a detailed note on M after his father informed her that he was contacting a solicitor about the school. After a number of meetings with the parents an arrangement was put in place for the Class Teacher to telephone his father every Friday afternoon. During one of these conversations with Mr. A the Class Teacher pointed out that M was not bold, but it was her opinion that M was hyperactive. She said that she recognised the symptoms from another child who had ADD and was on medication. She also suggested that it might be caused by an allergic reaction to certain foods and that tests could be carried out by someone qualified in the ADD area. She said that the father said that he did not want M placed on medication and that he would talk to M about his behaviour that evening. She felt the school did its best for M and put all the resources available to it at the disposal of M. However the school had lost teaching posts. A FÁS class room assistant worked with M but had no qualifications in special needs. She said that M liked doing written work and only showed inattentiveness when the class was doing oral work and he had difficulty in communicating orally. She said that the school tended to have children with specific learning needs as other schools in the area tended to refuse admission to these children. She would recognise the symptoms presenting as hyperactive rather than boldness or naughtiness. She said that the school wanted to get to the bottom of M’s problem, but had to depend on the psychological services provided by the Department of Education.
3.7 M was assessed by the school’s the Learning Support Teacher using a standardised test for M’s age group to test his academic level. He scored 10% and the average score is 50%. Subsequently to this he was put on the list to be given to the Department of Education (NEPS) educational psychologist Ms. Mairead Clifford when she visited the school. A list of about 10 pupils was prepared and given to Ms. Clifford. Two pupils were selected for assessment but M was not considered a priority case. If a pupil is assessed the school may be given extra resources to provide extra help to that pupil.
Evidence of the Educational Psychologist (NEPS)
3.8 Ms Clifford said in evidence that she was given a list of 77 pupils including M. Two were selected as a priority by the school to be tested by her for educational support. While she could not recollect a discussion about M with the Learning Support Teacher she was made aware of behavioural problems among the list of 77. She would have advised the school that these pupils needed to see a clinical psychologist and any children exhibiting such behaviour should be referred to a specialised psychological service known as the Lucena Clinic, as they have the psychological services needed. While the parents have ultimate responsibility to have their children assessed Ms. Clifford’s practice was to refer the school to this clinic. Some parents have their children assessed privately. At the time she reviewed the list of 77 Ms educational needs were being met by the Resource Teacher for Travellers, other children on the list of 77 did not have this support. The school also had the visiting teacher for Travellers who also provided extra support.
Evidence of the School Liaison Teacher for Travellers
3.9 Ms. Anne Byrne stated that she is the Department of Education School Liaison Teacher for Travellers. Her job is to liaise between the school and the home and would deal with the enrolment of Travellers in schools. If parents require assistance in dealing with the school she would assist. She would also be asked by the school to obtain parents’ signatures for forms such as admission forms or health forms. She stated that the school was aware that Mrs. A had literacy problems and she was requested by the school to assist in having forms signed. She said that she was shocked when she heard about a Garda being brought into a parent teacher meeting. She knew from the school that M had behavioural and learning difficulties. She was also aware that M complained about being called names in school.
Evidence of Fr. D
3.10 Fr. D a member of the Board of Management of the school and knew the complainants. He said that the reason M was not confirmed was that he had left the school in February, and was not prepared for Confirmation and this was the rule. The rules and regulations about the Confirmation were put in place by the class teachers. Attendance at the school preparation classes were critical to the decision on whether or not M would be confirmed. He had a telephone call from Mrs. A and he told her that M could not be confirmed. He had a visit from M’s father later that day. Mr. A became angry when he was told that M would not be confirmed. Fr. D said that the refusal of the Confirmation had nothing to do with the case lodged against the school. Fr. D accepts that he did mention the case to Mr. A and said that he thought it was strange for him to be suing the school and still want his child confirmed. He also said that the case was discussed by the Board of Management.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Sections 3(1)(a), 3(2)(g) 3(2)(i) and 3(2)(j) of the Equal Status Act and in terms of Section 7 of that Act. In reaching my decision I have taken into account all the submissions, oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be deemed to occur where:
“On any of the grounds specified… (in this case the disability and Traveller community and disability grounds )…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: As between any two persons, the discriminatory grounds … are …
that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground).”
Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds … are …
that one is a member of the Traveller community and the other is not.”
Section 7(2) provides:
An educational establishment shall not discriminate in relation to-
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, or facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student
A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.2 I have identified the key issues to establish a prima facie case as follows:
(i) Are the complainants covered by the discriminatory grounds? (in this case are the complainants members of the Traveller community and have the complainants a disability in accordance with the Act?)
(ii) Is there evidence that they were subject to a specific treatment by the respondent?
(iii) Is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory grounds (Traveller community and disability) or someone with a different disability, would have received in similar circumstances?
(iv) did the respondent’s actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainants’ needs as a persons with disabilities, which made it impossible or unduly difficult for them to avail of the service?
(v) would providing for those needs have given rise to greater than nominal cost to the respondent?
While the complainants do not have to satisfy all the tests above they need to satisfy test (i) (that they is covered by the disability and Traveller community ground) plus tests (ii) and (iii), or test (iv).
Conclusions in Respect of Complainant Mrs. A
4.3 I will deal in the first instance with the case of Mrs. A. I am satisfied that she is a Traveller within the meaning of the Act. The next question for consideration is whether Mrs. A has a disability.
Disability is defined in Section 2(1) of the Act as:
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”.
The complainant submitted that she had literacy difficulties and dyslexia and she submitted a psychological report in support of her case. The report concluded that the complainant was a person of low average intellectual ability who had severe literacy difficulties. It went on to say that she did not have an illness or impairment or specific learning difficult e.g. dyslexia, but that her literacy difficulties arise from personal and family circumstances rather than a cerebral condition. I am satisfied that the complainant’s literacy difficulties are not attributable to “a condition or malfunction which results in a person learning differently from a person without the condition or malfunction” and her deficient literacy skills is not a disability within the definitions of disability in the Act, therefore she is not covered by the ground.
Traveller Community
4.4 As the complainant is covered by the Traveller community ground I have examined test (ii) above and I am satisfied that the complainant was subject to specific treatment in that a member of An Garda Siochana was invited into a parent teacher meeting. I will now examine whether the complainant was subjected to less favourable treatment in the circumstances. The complainant understood that the meeting was called to discuss her son’s return to his mainstream class from the RTT, and she was shocked when a Garda joined this meeting. The Principal said there was no ulterior motive for having the Garda present other than to give the complainant some friendly advice about her son. The Principal stated that the Garda offered to attend the meeting when he informed him that there was a meeting in progress with the complainant to discuss her son’s bullying.
4.5 I am satisfied that the meeting was a private parent/teacher meeting to discuss the return of M to his mainstream class and that the complainant did not give her permission to invite a Garda to attend this meeting. In my view it would be highly unusual for a Garda to attend a parent/teacher meeting, thus I am satisfied that the complainant has established grounds that she was treated less favourably than a non-Traveller would be treated in similar circumstances. I find therefore that she has established a prima facie case of discriminatory treatment.
4.6 The respondent in rebutting the prima facie case referred to another occasion when he asked a Garda to attend a meeting. He said that a number of years ago, a community Garda who happened to be in the school, was called to a meeting with a parent and child (not Travellers) in relation to an incident about a flooded bathroom. I am satisfied from the nature of the evidence that the context of this meeting was not similar to a parent teacher meeting in relation to class matters. The Garda in that case could have been called to investigate damage to school property. I am therefore satisfied that the respondent has failed to rebut the prima facie case and I find that the complainant was discriminated against on the Traveller community ground in relation to this meeting.
5.0 Harassment
5.1 The complainant submitted that she was harassed contrary to Section 11of the Equal Status Act 2000 which provides inter alia that:
11(2) “A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment ……shall not permit another person who has a right to be present in … , to suffer …harassment at that place”.
11(5) “Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”
In support of her complaint the complainant submitted a number of instances which she considered harassment under the Act, namely (i) inviting a Garda into the parent teacher meeting, (ii) the refusal of the respondent principal to make a timely apology to her in relation the Garda presence and only did so after a telephone call from the Department of Education, (iii) constantly being called to meetings in the school, (iv) successive allegations of bullying by M and complaints about minor infringements.
5.2 Mr. & Mrs A submitted that they believed that the reason the Garda was invited to the meeting was M was wrongly associated with troublemakers in the area in which they live. Mrs. A said in evidence that she was aware that M was mentioned at a public meeting in connection with alleged bullying. She said that neither her family nor M was involved but that there are a number of Travellers living in the area with the same surname. They have no connection with these people as she and her family live a settled lifestyle in a private house. She believes that simply because they have the same surname they have been associated with any acts bad behaviour by other Travellers.
5.3 The question which I have now to consider is whether the Principal by allowing the Garda to enter the meeting room permitted harassment of the complainant. The Principal said that when he invited the Garda to the meeting he agreed to come because he recognised the name M and had complaints about him. The Garda in a written statement said that he had received unsubstantiated claims of bullying about M and his name had been mentioned at some public meeting. I am satisfied that this was the reason the Garda was invited by the Principal to the meeting i.e. to discuss issues which were clearly not on the agenda. The evidence supports the contention that the complainant was subjected to the unwelcome act of bringing a Garda into a private meeting, which the complainant clearly understood concerned returning her son to his mainstream class. She did not know in advance that a Garda would be present, nor had her permission been sought. The Principal conceded during the course of the hearing that the situation could have been intimidating for the complainant. It is clear from the evidence presented that the complainant felt intimidated and humiliated by the actions of the Principal and it was agreed that she had left the meeting in a distressed state. If a Garda intended to give friendly advice it should have taken place in a venue other than the school.
5.4 I am satisfied that from the complainant’s perspective, as a member of the Traveller community that it was reasonable for her to find the presence of a Garda at the parent/teacher meeting to be intimidating and for her to feel humiliated by the experience.
The evidence has been that Mrs. A attended the parent/teacher meeting shortly after the occurrence of a public meeting in the school where comments were made about her son. In these circumstances to have a member of the Garda Siochana join the parent /teacher meeting would, in my view, on balance have been intimidating for her. I am satisfied that this would not have happened if the complainant had not been a Traveller. I am therefore satisfied that the complainant has established that she was treated less favourably than a non-Traveller would have been treated in similar circumstances. For the above reasons, I find that that the complainant was harassed in relation to this parent/teacher meeting within the meaning Section 11 of the Act.
5.5 I find that there was no harassment within the meaning of the Act in relation to the other matters raised by the complainant’s representative such as the parents being constantly called over M’s behaviour. It is incumbent upon the Principal to bring his concerns to the attention of parents in order to put strategies in place to deal with unacceptable behaviour or disciplinary issues. This is in line with the Department of Education Circular 20/90 “Guidelines Towards a Positive Policy for School Behaviour and Discipline and The Guidelines on Countering Bullying behaviour in Schools” dated September 1993. Also the school’s Code of Behaviour provides for sanctions for misbehaviour including contacting the parents. There is an obligation on the school to investigate complaints received and to deal with class disciplinary issues and to put appropriate sanctions in place.
5.6 The next question for consideration is whether the complainant was victimised. While the complainant was asked to withdraw the complaint of discrimination, I am satisfied that the Principal did not pursue the issue any further. In the circumstances, I find no evidence of victimisation in relation to Mrs. A contrary to the Act.
Conclusions of Equality Officer in Respect of Complainant M
6.0 Traveller Community Ground
6.1 I am now going to consider whether the complainant M meets the tests outlined above in order to establish a prima facie case. I am satisfied that he is a Traveller. I am also satisfied that he was subject to specific treatment in that he was called names. He was disciplined for various behaviours including suspended from school and he did not get confirmed that year. I am now going to examine the evidence to see if he meets the third test, and establish that he was treated less favourably than non-Travellers would have been treated in similar circumstances. It is complainant’s case that he was constantly accused of bullying and misbehaviour, but that he was being bullied and called names by other children, and his behaviour was a reaction to this treatment. The parents submitted that they investigated the complaints received about M with other parents and found that not all of the incidents complained occurred. The complainant stated that when he complained to the teacher he was ignored. It was also submitted that he was excluded from a questionnaire investigation into an incident in the Gym, from which he was later exonerated and this supports the contention that he was been unfairly picked on because he is a Traveller.
6.2 The respondent denied that the complainant was treated any differently than other children who misbehaved. It was submitted that the school had a policy of admitting Travellers to the school including other members of this family who had got on very well at the school. It also succeeded in getting a RTT (Resource Teacher for Travellers) who provided extra tuition to meet their specific needs (including those of the complainant) in a number of subjects. The school also interacted with the Home School Liaison Teacher for Travellers.
6.3 I am satisfied that the complainant has not established a prima facie case of discriminatory treatment on the Traveller community ground. The complainant was subject to the normal disciplinary procedures of the school when he misbehaved, and his parents were frequently called to the school to be informed of these problems. I note that the school has a code of behaviour policy. I have examined this and also the Department of Education’s Primary Branch Circular 20/90 entitled “Guidelines Towards a Positive Policy for School Behaviour and Discipline and a suggested Code of Behaviour and Discipline for National Schools”. I am satisfied that the Department’s suggested Code was followed by the school in its dealings with the parents and M concerning any misbehaviour. I am also satisfied that any disciplinary measures that the school deemed necessary to apply to a particular situation were applied equally to all children. I am satisfied that the school welcomes Travellers and has supports in place, such as the RTT teacher to help Traveller children integrate into mainstream classes. Consequently I find therefore that the complainant has not established that he was treated less favourably than a non-Traveller who was engaged in similar misbehaviour would have been treated.
6.4 Harassment
The complainant stated that he was harassed in that he was called offensive names and the teacher failed to deal with his complaints. There was one specific complaint of name calling outlined by the complainant at the hearing, and the principal accepted that he had received a complaint from the complainant and this was dealt with by him and the pupil responsible was disciplined. Section 11(2) provides:
“A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment …….shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place”.
Section 11 (3) provides “It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practical to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member”.
6.5 While I accept that the complainant may have experienced a level of name calling, the evidence presented in the case does not support the contention that his complaints were ignored. I am satisfied that the respondent dealt with complaints received and sanctioned one pupil. The complainant was also separated from a pupil in class, and he was asked to report further incidents of name calling to the teacher. He was also given permission to go home for lunch so that he was “out of harms way” in the school yard. I am satisfied that the respondent took steps to prevent harassment of the complainant and the defence in accordance with Section 11(3) applies.
6.6 Disability Ground
I will now consider whether the complainant had a disability in accordance with the Section 2(1) of the Equal Status Act 2000. (Paragraph 4.3 above refers) The complainant was assessed in secondary school by an Educational Psychologist of NEPS (National Educational Psychological Service) in November 2002 and it was concluded in the report produced in evidence that he had a “Borderline General Learning Disability”. A report was also provided from a clinical psychologist who stated that the complainant met the criteria for Attention Deficit Hyperactivity Disorder / Oppositional Defiant Disorder. Accordingly I am satisfied that the complainant has a disability within the definition of the Act.
6.7 I will now examine test (iv) at paragraph 4.2 above that is the treatment of the complainant in the context of Section 4 of the Act which deals with the provision of special facilities for a person with a disability. Section 4 of the Act states, inter alia:
“(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.
The question raised is whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”. This means that the Act requires the complainant to show that the school did not do everything it could reasonably do to accommodate the needs of a pupil with a disability and that they did not provide him with special facilities to meet those needs. The Act in my view places a demanding standard on the respondent. I will now examine the evidence in the context of the above.
6.8 The complainant’s case is that the respondent failed to provide him with a teaching environment suitable to his needs knowing that he had a disability. He was briefly transferred full-time to the RTT class were it was submitted he was happy. It was submitted that the parents said that they requested that he be transferred out of his main class to either the RTT or to another teacher. Instead he was transferred back to the class teacher where he was unhappy. It was also submitted that he should have been referred to the educational psychologist assigned to deal with the school, and that the school failed to treat M in a way which would have made allowances for his disability, or which would have taken his disability into account. Consequently by treating M in such an oppressive manner, by the constant disciplinary measures imposed on him he was put in danger of harming himself. It was also submitted that because of the failure of the respondent to accommodate his needs as a person with a disability and by constantly calling the parents about minor misdemeanours the parents had no choice but to take him out of the school. The parents submitted that they were anxious that their children would be educated as they had missed out on education because they are Travellers.
6.9 The respondent’s position is that the school was not aware that the complainant had a disability. His behavioural difficulties were dealt with appropriately at all times and that he was referred to the RTT for extra tuition a facility that was not available to non-Traveller children. He was also put on the list of pupils referred to the educational psychologist, but he was not selected for assessment as he was not a prioritised on the list and in any event he was already in receipt of the extra resources of RTT.
I note that both the Principal and the class teacher recognised the symptoms of ADD and that there was a pupil in the school with it who was provided with special assistance. Both described in their evidence that they discussed ADD with the complainant’s parents. I also note that his class teacher said that M was not bold or naughty, but that he had a concentration problem, which meant he could not sit still in class for long periods and this got him into trouble. The complainant’s levels of academic progress were also assessed by the Learning Support Teacher and the result of this assessment was considered sufficient to place him on the list for the NEPS educational psychologist, who visited the school. However he was not prioritised and it would appear that neither the class teacher, or the Principal placed sufficient emphasise on his case so that the psychologist would assess him as a priority and measures could be put in place to assist with the problems identified. I find it surprising, given the level of complaints about M, that he was not prioritised. Ms. Clifford in a letter to the complainants stated that she had no record of a request for assessment of M by the school authorities. I note that when he was subsequently assessed by a NEPS educational psychologist in secondary school and was diagnosed with a borderline learning disability and extra supports were put in place for him in that school. It is also relevant that M was subsequently diagnosed by a clinical psychologist with ADHD. I also note from the evidence of Ms Clifford, NEPS Educational Psychologist that she stated that if pupils’ behaviour or emotional problems are brought to her attention she will advise the school to have the pupil assessed by a clinical psychologist. She would have told them that such services are available in the Lucena Clinic. I am satisfied that the respondent recognised that M had a disability and his behaviour was connected to this disability. It was therefore incumbent upon them to seek out facilities for him. It is my view that without special educational facilities it was unduly difficult for the complainant to avail of an education in the school.
6.11 Special facilities, in my view, would have included the school prioritising M for assessment with the educational psychologist and requesting educational supports from the Department of Education to meet his needs. A part of this process would be to seek out information on the procedures for sending M forward for an assessment by a clinical psychologist from the Clinic suggested by Ms. Clifford and to provide the parents with the information/particulars as M’s mother had literacy problems. It would also be fundamental in such situations to consult with the Home School Liaison Teacher for Travellers whose job is to liaise between the school and the parents to obtain through this channel the necessary consents for the actions proposed to be taken by the school.
6.10 The respondent submitted that it was not the schools responsibility to have the complainant referred to a clinical psychologist. I note that the school had numerous complaints about the complainant’s misbehaviour including bullying behaviour and also the complainant’s father had informed the Principal that the complainant was talking about self harm. The father submitted that he took the complainant out of the school because he could no longer cope with all the telephone calls he was receiving from the school about M. I note at paragraph 11 of the Circular 20/90 addressed to the Management Authorities and Principals of National Schools which includes a suggested “Code of Behaviour and Discipline for National Schools” states:
“Every effort will be made to have an emotionally disturbed child referred for psychological assessment without delay. Help will be sought, also, from support services within the wider community, eg Community Care services provided by Health Boards”.
In a further document from the Department of Education entitled “Guidelines on Countering Bullying Behaviour in Primary and Post-Primary Schools” dated September 1993 the document states at page 15 under Programme for work with victims, bullies and their peers that pupils involved in bullying behaviour need assistance on an ongoing basis and amongst other things states that they may need counselling This would, in my view, indicate that the school was in possession of the appropriate guidance on procedures for dealing with the issues raised by the complainants behaviour and it placed a degree of responsibility on the school Principal to seek out appropriate facilities for M as outlined above.
For the above reasons I find that the respondent failed to do “all that is reasonable to accommodate the needs of a person with a disability” in accordance with Section 4(1) of the Equal Status Act, 2000.
6.11 Nominal Cost
Section 4(2) of the Equal Status Act provides:
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
I am satisfied that the cost of seeking out the services required by the complainant to meet his needs as a person with a disability would be no more than a nominal cost for the school.
6.12 Victimisation
I am now going to consider if the complainant were victimised contrary to Section
3(1)(a) and 3(2)(j) of the Equal Status Act, 2000. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified… (in this case victimisation ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(j) provides that: that one
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,” ……
(iv) has opposed by lawful means an act which is unlawful under this Act, …
(v) has given notice of an intention to take any of the actions specified in
subparagraphs (i) to (iv).
and the other has not (the victimisation ground)”
As the complainants have not specifically stated in their complaint form that they were claiming victimisation under the Act, I indicated to both parties that I would consider victimisation in my investigation of the case, in that the complainants complained that the respondent asked them to withdraw their complaints, and they further stated that M was subsequently refused Confirmation which they believed was for discriminatory reasons.. The complainant’s solicitor notified the respondent under Section 21(2) of the Equal Status Act, 2000 of their complaints of alleged discriminatory treatment. The solicitor then wrote to the school Principal on 13th December 2000 stating that the Principal had contacted the complainants regarding the complaints and had requested the Principal to deal through their solicitor in future. The parents submitted that they were asked by the Principal not to sue the school. The Principal confirmed that he asked the parents to withdraw the complaint.
6.13 The parents have also complained that M was refused Confirmation. They submitted that he was preparing for Confirmation in the school and that they had attended all meetings and preparation classes in connection with it. When they removed him from class they were notified about the preparations for Confirmation and M attended all of them. Shortly before the date of the Confirmation they learned that M’s name was not on the school list. When the complainant’s mother contacted the priest, Fr. D, who was also member of the School Board of Management, he informed her that M would not be confirmed. Mr. A then called on Fr. D and he stated that he was informed that M would not be confirmed because the parents were suing the school. Fr. D stated in evidence that the complainant was not confirmed because he had not been to school. The class teacher stated that the teachers responsible for preparing the children for Confirmation made a decision at the beginning of the year, and unlike previous years that children who were not attending school would not be confirmed.
6.14 From the evidence presented, I note that there was a certain level of concern at management level in the school that a notice of intention to lodge a complaint had been given to the school under the Equal Status Act by the complainants. Likewise I note from the evidence of Fr. D that he was not pleased that complaints had been lodged under the Equal Status Act. This conclusion was affirmed by the confrontational manner in which Fr. D presented his evidence. I also note that Fr. D failed to inform the complainant’s father that M could be confirmed in October (1), with the effect that M was denied any opportunity of Confirmation. I have found above that the school failed to provide reasonable accommodation for M. I am also satisfied that the reason he was not at school during the relevant time of the Confirmation was not because he had left the school but because it was unduly difficult for him to attend school without the provision of such special treatment or facilities as discussed above. M therefore was not in the category of children who could be refused Confirmation for non-attendance at school. M then sought to process his case under the Equal Status Act 2000 by lodging a complaint.
6.15 I believe that the decision to refuse Confirmation was made by Fr. D alone and I am reinforced in this view by the evidence of Fr. J another local priest who is currently on the Board of Management who stated that the decision to refuse Confirmation is not a decision within the remit of individual teachers. Fr. D in his capacity as a member of the Board of Management knew about the case and was clearly unhappy about it. For the above reasons, I have come to the conclusion, on the balance of probabilities that the reason for refusing Confirmation was made by Fr. D in his role as a member of management because M had given notice of his intention to take a complaint under the Equal Status Act 2000. I find therefore that the complainant M was victimised contrary to section 3(2)(j)(v) of the Act.
7. Decision
7.1 I find that Mrs. A has been discriminated against on the Traveller community ground in terms of Section 3(1)(a) and Section 3(2)(i) and contrary to Section 7(2) of the Equal Status Act 2000 and harassed contrary to Section 11 of that Act. Under section 27(1) of the Act, redress may be ordered where a finding of discrimination is in favour of the complainant. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
7.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation which I should award to Mrs A in relation to my finding of discriminatory treatment and harassment, I have taken into account the effect of the discrimination. Mrs. A no longer attended meetings in the school as she felt intimidated. The delay in offering the apology resulted in Mrs. A having her children out of school which added to her distress. I note however that Mrs. A ultimately receive a verbal apology from the Principal and I have taken this into consideration in mitigation of the effects of the discrimination. In the circumstances I order the respondent to pay the complainant €850 as redress for the effects of the discriminatory treatment and harassment.
7.3 In the case of M I find that the respondent discriminated against him in terms of Section 3(1)(a), Section 3(2)(g) and Section 3(2)(j) of the Equal Status Act 2000 and contrary to Section 7(2). In considering an appropriate amount of redress I have taken into account the fact that the complainant was unable to complete his primary education and the effect this had on his academic achievements. I order the respondent to pay him €3,000 as redress for the effects of the discrimination. In relation to the victimisation I have taken into account the effect of missing out on Confirmation had on the complainant and I order the respondent to pay him the sum of €2,000 as redress. Further I order the respondent to pay the above amount of €5,000 to the complainant’s mother on behalf of her son M to be used for M’s benefit.
7.4 Finally in accordance with Section 27(1)(b) of the Act, I order the respondent school to put in place a system facilitating early identification of students who have disabilities or learning difficulties with the aim of directing these students to the appropriate educational services quickly in order to ensure that they maximise the benefit of their participation in formal education.
______________
Marian Duffy
Equality Officer
6th April, 2006Equal Status Acts 2000 to 2008
EQUALITY OFFICER’S DECISION
NO:
DEC-S2009-073
Goulding v O’Doherty
(Represented by Mr. Michael MacNamee BL on the instructions of DAS Group)
File No. ES/2006/0082(A)
Date of Issue: 15 October 2009
Keywords:
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) -Disability ground, section 3(2)(d)- Provision of goods and services, section 5(1) – Reasonable accommodation, section 4(1) – nominal cost exemption, section 4(2) – other non-discriminatory practices, clinical judgment, section 16(2)(a)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. James Goulding referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 31 July 2006. In accordance with her 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. An investigation, in accordance with section 25(1) of the Acts, commenced on 17 October 2008. An oral hearing, as part of the investigation was held in Dublin on 23 April 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground. Mr. James Goulding (“the complainant”) submitted that Mr. Michael O’Doherty (“the respondent”) treated him less favourably on the ground of his disability contrary to section 3(1) and 5(1) in that the respondent refused to treat his foot complaint on 15 June 2006 and advised the complainant to seek treatment with another chiropodist. The respondent was notified on 28 June 2006.
3. Case for the Complainant
3.1. The complainant is a person who lives with the HIV virus. He is in receipt of a Chiropody Card that was issued to him by the Health Service Executive on 1 December 2005. This card entitled the complainant, who experiences difficulties with his feet due to his on-going condition and the medications taken to control it, to four visits with a chiropodist per annum.
3.2. The complainant submitted that he was referred to the respondent’s service by the Lord Edward Health Centre (Health Service Executive) for chiropody treatment on 15 June 2006. The complainant submitted that he was in considerable amount of pain as one of his toenails had become infected. The complainant was accompanied by a named friend (who gave evidence at the hearing). Upon entering the clinic, the complainant submitted, the respondent asked the complainant to take a seat by the window and to remove his shoes and socks. It was submitted that the respondent then returned to a patient that he appeared to have been treating when the complainant arrived. After a short period the respondent returned and the complainant showed him his Chiropody Card. The complainant submitted that the respondent queried why he, a young man, was entitled to a podiatry card. While the complainant felt this was an inappropriate question for the respondent to ask, he submitted that he told the respondent about his HIV status. The complainant further submitted that there was no legal requirement for him to do so but that he did not want to hold back any health related information from the respondent whom he viewed as a professional.
3.3. The complainant submitted that the respondent immediately told him that there would be problems or complications with cutting, cross-infection, sterilisation, etc. and that therefore the respondent could not treat the complainant. The complainant submitted that the respondent told him that he needed to be treated by a practitioner who specialised in treating the feet of people with HIV. It was submitted that a practice in Tallaght was mentioned. The complainant submitted a copy of a card to the Tribunal that the respondent gave him. The card stated: ‘Please refer to [a] Chiropodist who [has] specialty in this area’. The complainant submitted that he was upset with this treatment but as he was genuinely concerned about the condition of his foot he asked the respondent to look at his feet. The complainant submitted that the respondent briefly looked at his feet and declared them to be ‘fine’. The complainant submitted that the respondent then placed a bandage of his foot and gave him a couple to take away with him.
3.4. The complainant submitted that the experience left the complainant feeling extremely hurt, angry and upset by what happened at the respondent’s surgery. He submitted that he believed that the respondent judged the complainant by his HIV status and, the complainant submitted, he felt dirty, diseased and degraded by this judgment he believed had been made about him. The complainant submitted that for a moment, because of the way the respondent made him feel, he actually believed that he deserved to be treated in an unequal manner because he was living with HIV. The complainant submitted that he suffered a panic attack outside the surgery.
3.5. The complainant further submitted that, with the help of a named person in Dublin Aids Alliance, the complainant was able to find an alternative chiropodist who, it was submitted, found that his feet were not ‘fine’. It was submitted that the complainant had an infection that required treatment with antibiotics.
3.6. The complainant’s representative also made a number of arguments concerning the international legal principles concerning HIV and discrimination. It was submitted that The International Covenant on Civil and Political Rights, The International Covenant on Economic and Social Rights, The International Guidelines on HIV/AIDS and Human Rights, among others, call for HIV to be considered as a disability and, therefore, afforded the same legal protection as other disabilities.
3.7. In relation to the present case, it was submitted that the complainant was treated less favourably because of ‘the application of different rules to comparable situations, or the application of the same rule to different situations’ as per the European Court of Justice in Case C-342/93 Gillespie and Northern Area Health and Social Services Board. It was submitted that the complainant was directly discriminated against on the basis of his HIV status and on the basis of the stigma related to his condition.
3.8. It was submitted that the suggestion that a clinic with a higher standard of sterilisation of equipment was more appropriate to the complainant was unjustified and unsustainable for, inter alia, the following reasons:
1. The respondent should operate a clinic with adequate sterilisation procedures for patients with HIV;
2. Failure to do so would put all patients at risk;
3. It is a grave concern given that the respondent may be treating patients with HIV who do not know they have the condition;
4. The respondent purports to comply with professional guidelines in his standard of sterilisation and this should be adequate for the treatment of patients with HIV.
3.9 It was submitted that the respondent refused or failed to do all that was reasonable to accommodate the needs of the complainant by providing adequate treatment of facilities, contrary to section 4 of the acts.
3.10. The complainant’s representative submitted Chiropody & Podiatry Infection Control Guidelines (Essex Health Protection Unit: 2005), Health Service Executive Code of Practice for Decontamination of Reusable Invasive Medical Devices (Part 5b: Recommended Practices for Dental Services in Local Decontamination Unit) and Sterilization of health care Products – Moist heat – Part 1: Requirement for the development, validation and routine control of a sterilization process for medical devices (The European Standard EN ISO 17665-1:2006/British Standard BS EN ISO 17665-1:2006), Health Service Executive Dental Service (East) – Revised Guidelines for the use of Steam Autoclaves in HSE managed Dental Clinics (2006), Safe and Effective Use of Bench Top Steam Sterilisers (Irish Medicines Board Safety Notice: SN2008(07), Operational Manual for ISO 13485 -accreditation of Sterile Service procedures in a health care facility, Standards for the decontamination of reusable Podiatry instruments in primary care – Society of Chiropodist & Podiatrists (November 2005-Review September 2007) as examples of existing policy guidelines in relation to sterilisation and infection control guidelines.
4. Case for the Respondent
4.1. The respondent submitted that he did not refuse to treat the complainant on 15 June 2006. It was submitted that the respondent, having discovered that the complainant had HIV status, referred the complainant to a chiropodist the respondent knew had expertise in the area. This referral was made, the respondent submitted, because the respondent believed that the other chiropodist had special facilities that were better suited to handle any difficulties that may have risen regarding possible cuts or infections. The respondent submitted that it has never denied that the complainant’s condition is a disability within the meaning of the acts.
4.2. It was submitted that the respondent’s instant and only concern at the time of the incident was as to the suitability of his practice facilities to the care-needs of the complainant. It was submitted that on knowing the complainant’s HIV status, the respondent believed it was in the best interest of the complainant to be in the care of someone experienced in this specialty [dealing with the feet of a person with HIV status]. The respondent submitted that this type of referral was common in the health service system and that he was treating the complainant just as he would have treated any other patient in need of special care.
4.3. It was submitted that the respondent’s practice is conducted in small, one room, premises. The space is partitioned into a reception desk and waiting area, two treatment areas and an equipment sterilisation area. It was submitted that it is such a confined space that the respondent cannot guarantee that there will be a complete absence of air-borne infected nail dust which arises from the professional thinning of nail-plates using abrading burs (a common practice with elderly clients who make up the majority of the respondent’s client list) and notwithstanding the use of attachments such as vacuum dust-extractors, such dust particles would, the respondent submitted, have prevented a potential hazard for a patient with immunosuppressant condition. The respondent submitted that he owed a duty of a care to the complainant in referring him to a practice specifically geared to deal with an immunosuppressant condition. The respondent submitted that he believed that in doing so he was recognising his duty of care to the complainant and by doing so, was acting in the best interest in the complainant.
4.4. It was submitted that the respondent did not refuse to treat the complainant nor did he discriminate against him on the grounds of his disability or otherwise. It was submitted that the respondent formed the professional opinion that his facilities and his professional expertise were unsuited to the treatment of a person with the complainant’s condition. The respondent submitted that higher standards of decontamination are available in other surgeries than his clinic can offer. It was submitted, that the respondent in good faith and with the complainant’s best interests paramount in his mind, offered to refer the complainant back to the Health Service Executive for onward referral to one of the several facilities that the respondent knew were specifically geared to treating patients with compromised immunity. It was further submitted that in so doing the respondent was recognising his duty of care to the complainant and was acting in the best interest of the complainant. The respondent submitted an expert report supporting this argument to the investigation.
4.5 The respondent submitted that the Health Service Executive normally consults with a practitioner before issuing a treatment card to obtain the practitioners permission to include the patient to his/her list of card-holders. It was submitted that this did not occur in the complainant’s case through no fault of the complainant. It was for this reason that the respondent was moved to inquire about why the complainant was in possession of a Chiropody Card. It was submitted that the card that the respondent wrote and gave to the complainant was intended to be brought back to the Health Service Executive by the complainant so that the complainant could be referred to a clinic that would be best suited to deal with the complainant’s condition.
4.6. It was further submitted that if the Tribunal finds that the respondent discriminated against the complainant (which the respondent denies), then it is submitted by the respondent that the reason for this refusal was because the respondent was concerned that the complainant receive the best possible care as an objective justification for any discrimination against the complainant.
4.7 It was submitted that the respondent’s equipment and facilities meet the appropriate standards of hygiene. It was submitted, however, that specialised facilities which provide further and better protection It was submitted that section 4(2) provides the respondent with a nominal cost exemption. The cost of a vacuum B sterilizer was submitted to the investigation.
4.8. It was submitted that it is a cause of great distress, dismay and regret to the respondent that the complainant was so offended by the respondent’s well intentioned and bona fide actions in advising him, in his best interests, to pursue an onward referral. The respondent denies that he intended to discriminate against the complainant in any way and he is distressed that the complainant felt so discriminated against. The respondent’s distress is further compounded by the fact that the tenor of his discussion with the complainant was at all times professional, cordial, amicable, even-tempered and supportive. It was submitted that the complainant appeared to receive the respondent’s advice in that spirit.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. I have taken cognisance of both written and oral submissions made to this Tribunal while making this decision. Both parties agree that the complainant is covered by the discrimination ground in accordance with section 2(1). It is clear that the complainant did visit the respondent’s premises with a view of obtaining a service within the meaning of section 5(1).
5.3. I do not accept that the respondent made what can be described ‘an offer’ to the complainant in relation to his referral of the complainant to another practitioner. It is clear from the evidence that the complainant was not presented with a choice, but was firmly told to receive treatment elsewhere. While the respondent claims that he was helpful and that this referral was in the best interest of the complainant, it is obvious that the complainant did not receive the service from the respondent that he was seeking. This argument is strengthened by the respondent’s denial that he purported to or did in fact diagnose or treat the complainant’s foot as alleged.
5.4. I note that the respondent argued a number of times that he formed a professional opinion according to which he was not qualified to treat the complainant’s condition [HIV infection]. It is clear from the evidence that the respondent had no expertise of managing HIV nor knowledge of the clinical or policy developments in that field. It is important to point out that the complainant was not seeking treatment for his HIV infection. I find that the complainant presented himself to avail of a service – a foot complaint – that the complainant would have normally provided to his clients. I find that the reason why the respondent refused to provide the complainant with this service was because, having been told by the complainant that the complainant was living with HIV, the respondent decided that he could not manage the complainant’s HIV infection. To support this interpretation, I am particularly mindful of the respondent’s direct evidence where he stated a number of times that in his opinion: “people like that [people with HIV/AIDS] should be wrapped up in cotton wool and treated in specialist institutions”. It is clear that the respondent firmly believed that the complainant’s existing condition posed a health risk to the complainant and the respondent’s other customers who the respondent stated where “elderly”. Furthermore, I find that the respondent’s decision not to treat the complainant’s foot was because the respondent viewed the complainant’s disability as very contagious and believed that the complainant was more vulnerable than persons without HIV would be. Because of this belief, the respondent decided that the complainant should be treated in a ‘specialist’ clinic. This is a situation where the respondent, because of his knowledge of the complainant’s HIV status, applied different rules than he would have applied in a comparable situation with a person without HIV. I am therefore satisfied that the complainant was treated less favourably than a person without his disability would have been treated in similar circumstances.
5.5. Throughout the hearing the Tribunal heard a number of arguments about what would constitute best practice in the field of chiropody in relation to sterilisation and whether more suitable facilities are available with higher standards of contamination would have been available for the complainant. I am quite sure that the answer to the latter questions is yes. The equal status acts are not, however, concerned about what constitutes best practice in policy areas or whether something better might be available elsewhere. Such a defence would render the acts virtually useless. For example, if this was the case any service provider could always excuse their refusal to treat a person by stating that another service provider would be better suited to treat that person and thus relieving themselves from their duties imposed by the acts. The aim of the acts is to protect individuals with a specific social status – clearly defined in the acts – from less favourable treatment that is, would be or could be offered to a person without that social status in similar circumstances. Furthermore, the acts impose an obligation on any service provider to do all that is reasonable to accommodate a person with a disability. It is clear, that a defence of a more suitable service, in the circumstances of this case, is only available in accordance with section 16(2)(a). I am satisfied, having heard the evidence, that the matter before this Tribunal does not fall within the meaning of other non-discriminatory activities set out in section 16(2)(a). This is because I am satisfied that the respondent did not refuse to treat the complainant’s foot condition solely in the exercise of a clinical judgment with the diagnosis of an illness or his or her medical treatment. It is clear that having become aware of the complainant’s HIV status because of the complainant’s disclosure, the respondent decided that the complainant needed specialist care. That is, I find that, if the complainant was not living with HIV or the respondent had not been aware of this fact, the respondent would have been perfectly capable of treating the foot complaint itself.
5.6. While the respondent brought an expert witness to discuss the potential hazards that treating a patient with HIV may cause and the ideal situations that might prevent these situations, I am very mindful that this information was not something the respondent possessed at the time of the incident. I find that, at the time of the incident, the respondent had formed an opinion about HIV as a highly contagious disease and that persons living with HIV were more vulnerable or fragile than others. This is despite admitting that he had no real knowledge about HIV infections nor the clinical developments in the area. While the expert report submitted on behalf of the respondent clearly stated that there are more suitable surgeries available for the complainant, this does not remove the onus placed on the respondent by the equal status acts not to discriminate in the provision of goods and services. It is also important to point out that no evidence was presented to support any argument that such more sterile environments are in any way necessary, just that they would be better or more ideal.
5.7. In such a case where the Tribunal is satisfied that the discrimination was direct in accordance with section 3(1), the issue of reasonable accommodation in accordance with section 4(1) does not necessarily arise. While I note that it was argued that the respondent did not have appropriate facilities in place to manage the issues that the complainant’s on-going condition imposed on the respondent, I find that I was presented with no scientific fact or other legitimate reason that would have supported the idea that the complainant’s condition required any such management.
5.8. I am satisfied that the respondent operated a surgery at the time of the incident that meets all the requirements for a practitioner to practice. Therefore, I am not satisfied that the complainant would have been unable or it would have been impossible for him to avail of the service without special treatment or facilities . In such a case, where section 4(1) does not arise, the Tribunal cannot consider section 4(2) as a defence.
5.9. I am satisfied, having perused the number of policy documents submitted to this investigation about treatments where ‘sharps’ are required and having heard the expert evidence on the day of the hearing, that in this case there is no legitimate reason why the complainant should not receive allied health services such as dental, chiropodist, podiatry, etc the same way as any other person not living with HIV would receive it. It is clear that universal health and safety precautions are in place precisely for this reason. It was pointed out by the complainant’s expert witness – a member of the specialist register of the Irish Medical Council for Genitourinary medicine and HIV – that there are a number of people availing of such services who do not know that they are infected with HIV or any other infection and who could not, for this precise reason, inform a service provider that they are infected with the HIV or any other virus. It was also pointed out that many persons who receive treatment for HIV have similarly working immune systems as persons without HIV. I find that, having heard the extensive expert evidence at the hearing and having perused the support documents submitted to the investigation, good practice sterilisation issues and universal protocols are not necessarily costly or complicated matters. This is not to say, however, that they are not important when providing a health services. The point is that good practices and universal precautions are in place to protect everyone regardless of status and to ensure best health and safety practices for everyone. They are not in place to provide service providers with an exemption from non-discrimination as defined in the acts.
5.10. I note that the Tribunal heard extensive expert evidence from both sides about what would constitute best practice in the field of chiropody. It is not a matter for this Tribunal to determine such matters. I am however compelled to point out that while it seems a rather obvious argument to make, it would seem that universal precautions should be so practiced by all professionals engaging in health and related care.
5.11. It is equally important that persons providing any type of a health service are correctly informed that persons living with HIV are often incorrectly perceived as being unhealthy or wrongly perceived as a threat to public health. It is crucial that these misconceptions are tackled effectively and immediately. It is clear to this Tribunal that it is precisely because of these incorrect and outdated perceptions that resulted in the complainant as being viewed and treated less favourably than a person who is without HIV (or not known to have the infection) would be treated in similar circumstances.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of less favourable treatment contrary to sections 3(1) and 5(1) on the ground of his disability. The respondent has failed to rebut this. In accordance with section 27(A) I award the complainant €6000 for the effects of the discrimination and the humiliation and hurt caused. The amount is to reflect the seriousness of the discrimination experienced by the complainant and to emphasise the importance of a person’s right to receive health care in a non-discriminatory manner.
________________
Tara Coogan
Equality Officer
15 October 2009
DEC-S2006-034 – Full Case Report
Brian Connery v Coiste An Asgard
1. Dispute
1.1 This dispute concerns a claim by Brian Connery that in September 2003 he was treated in a discriminatory manner by the respondent, contrary to Section 5, in terms of Section 3(1) (a) and 3(2) (g) and Section 4 of the Equal Status Act 2000. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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 Act.
2 Complainant’s case
2.1 Circa January 2003 the complainant applied for and was accepted as a passenger/trainee aboard the sail training vessel Asgard II for a sea voyage that was to take place in September 2003. In early September 2003 the complainant was informed in writing by the respondent that he would not be accepted on board the Asgard II for the voyage in question due to the fact that he has Type 1 diabetes. The complainant had previously completed a number of voyages aboard Asgard II without incident.
2.2 The complainant had trained aboard Asgard II as a watch leader. He is also a member of the Cork North Civil Defence water search/recovery unit and has training in advanced first aid and has considerable experience in dealing with emergencies, both medical and rescue. His insulin dependent diabetes has never been an issue.
2.3 While he was notified by the respondent that he was being refused passage on Asgard II as a result of an earlier incident involving an insulin dependent diabetic the complainant does not accept that diabetes was the direct cause of the earlier incident and believes that the incident could have been avoided had the individual in question managed his condition properly at the time.
3 Respondent’s Case
3.1 In August 2003 the Asgard II sail training ship took part in the Tall Ships race in the Baltic, under the command of Captain Colm Newport The trainee watch leader (named) aboard at that time was an insulin dependent diabetic. The latter, who was in extremely fit physical condition and an accomplished international sailor, managed his condition very well and had never before been seasick.
3.2 On 13 August 2003 the Asgard II headed to open sea. The following day winds were blowing at 35 knots and sea conditions were rough. By 16 August the wind was blowing at a consistent 35 knots with squalls reaching 70 knots with heavy overfalls and very rough seas. The trainee watch leader, an insulin dependent diabetic, became unwell and was unable to hold down food or water. He refrained from injecting himself with insulin as to do so without food or liquids in his system could render him comatose. His condition worsened. He began to lapse into unconsciousness and this became a matter of grave concern to the Captain. Two crew members were diverted from their duties to provide care and assistance to the ill crew member.
3.3 On 16 August the crew member’s condition became critical and medical advice was sought via ship to ship telephone, from a doctor (named) who was on board another vessel in the area. Due to the doctor’s concern for the crew member’s condition the Captain requested “medivac” (medical evacuation) at 17.00 hrs on 16 August. A Polish search and rescue helicopter arrived a short time later (circa 18.30hrs) and the crew member was airlifted from the ship in dangerous conditions such that the winch man was injured in the course of the rescue. He was slammed against the rear of the vessel by the high winds and it is understood that his arm was broken as a result.
3.4 The captain immediately abandoned the race and headed for the nearest port to check on the condition of the crew member. A total of 27 of the Tall Ships had to retire from the race due to damage caused by the severe weather conditions. On locating the hospital where the crew member had been taken the Captain was informed that, had the crew member’s condition continued unchecked, he would have died. Consequently the Captain contacted the Secretary of the Irish Sail Training Committee (Coiste an Asgard), Mr. Garry McDonagh and asked him to screen all applications for the upcoming offshore passage between Stavanger and Oban as he, the Captain, was not prepared to take Type 1 diabetics on a sea voyage for fear that a similar incident should arise. The complainant was identified as a Type 1 diabetes sufferer and, after consulting with Doctor Roy Browne, a director with Coiste an Asgard, Mr. McDonagh contacted the complainant by phone and in writing, to inform the complainant that, given his medical condition, it would be unsafe for him to travel on the upcoming sea voyage.
3.5 Mr. McDonagh arranged for a refund to the complainant of all expenses incurred by him and offered the complainant the option of travelling aboard the Asgard II on any trip of his choice, in 2003 or 2004, off Irish coastal waters where it was relatively safe for the complainant and aid could be sought swiftly in the event of an emergency. On circa 21 August 2003 the complainant telephoned Captain Newport who was aboard the Asgard II. The Captain explained to the complainant why he had made the decision not to take him on board for the open sea voyage. As the doctor who had provided medical advice to the Captain in the course of the earlier incident was also aboard at that time, the Captain asked her to speak to the complainant and explain, from a medical perspective, why she would not recommend that it was safe for the Captain to agree to take the complainant on an open sea voyage. The complainant disagreed with the doctor and stated so.
3.6 Medical evidence provided by Doctor Roy Browne at the Hearing of this complaint indicated that the crew member who became ill had, in fact, attempted to control his diabetes in the circumstances. As a result of the severe nausea brought on by the extreme weather conditions the person in question had not taken insulin injections because to do so when he was unable to hold down food or liquids could have caused him to become hypoglycaemic. This would have brought on a coma. As the weather conditions did not abate the nausea continued and in the absence of insulin injections the crew member experienced diabetic ketoacidosis, which in turn exacerbated the nausea being experienced by the crew member. Doctor Browne stated that in circumstances where this condition is not medically controlled within hours, it has a 100% mortality rate.
3.7 It would be unacceptable from the respondent’s perspective, based on the earlier experience, (i) to risk the safety of the complainant, (ii) to risk the safety of the ship or other crew members who would have to be diverted from important duties in difficult sea conditions to tend to him should he become ill in circumstances similar to the earlier incident, or (iii) to risk the safety of air and sea rescue personnel who might have to effect a rescue in difficult circumstances, as was the case earlier. For these reasons it was deemed unsafe to allow the complainant to travel aboard the Asgard II on an open sea voyage.
3.8 The Captain of the Polish air/sea rescue helicopter which effected the rescue of the stricken crew member was presented with an award for bravery by the Irish State for that rescue in such difficult circumstances. Captain Newport of the Asgard II was presented with the Crowther Memorial Shield by Sail Training International, the official world sail training governing body, for “extreme acts of seamanship” for his handling of the Asgard II in the course of the rescue operation.
4 Conclusions of the Equality Officer
4.1 Section 4 (4) of the Equal Status Acts states that “where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination”.
4.2 In the instant case it is clear from evidence presented that the crew member who became ill due to extreme conditions at sea was, at the time, in peak physical condition and was an internationally accomplished sailor who had never previously been sea sick and, in his own opinion, whose diabetes was very well controlled.
4.3 The complainant, in contrast, while having undertaken certain survival training on land with the Civil Defence, had limited experience of sailing and had not undertaken an open sea voyage aboard Asgard II previously. The complainant stated at the Hearing of this matter that he could not guarantee that he would never become seasick in similar conditions to those experienced by the crew member who became ill. The complainant remained adamant, however, that the crew member who had become ill had not properly managed his condition in the circumstances and had waited too long to inform Captain Newport of the extent of his illness.
4.4 The complainant is not medically qualified and was not present during the incident aboard the Asgard II when the crew member with the same medical condition as himself actually became ill. His comments are therefore opinion and conjecture based. The illness of the other crew member coincided with severe weather conditions and it is clear from the medical evidence provided by and on behalf of the respondent that, as long as the severe weather conditions remained, there was little hope of the crew member’s condition stabilising.
4.5 I am satisfied, based on the totality of the evidence presented in this matter, that the complainant’s medical condition is such that, in circumstances where a storm were to arise at sea in the course of an open sea voyage, it would make him vulnerable to experiencing the same nausea experienced by the crew member who fell ill during the August 2003 sea voyage. In those circumstances, the safety of the complainant, the ship, other crew members and air and sea rescue personnel could be compromised by efforts to tend to the complainant. As Coiste an Asgard and Captain Newport do not hold sway over the elements and cannot control weather conditions, the only reasonable way to ensure that this specific situation does not arise again is to ensure that persons with insulin dependent diabetes do not undertake open sea voyages.
4.6 The complainant produced no independent or expert medical evidence with regard to his condition in the course of the investigation or Hearing of this matter.
4.7 I note that, subsequent to the earlier incident, the complainant was not barred from ever sailing on the Asgard II and was, in fact offered a position on board the ship by the respondent for any voyage of his choice in Irish coastal waters, where, if a medical emergency were to arise, the Captain could promptly put in to port and/or seek prompt medical assistance.
4.8 In the circumstances, having considered all of the evidence in this specific matter, I am satisfied, on the balance of probabilities, that Section 4(4) of the Equal Status Acts applies.
5.
Section 14(1)(a) of the Equal Status Acts 2000-2004 states
“Nothing in this Act shall be construed as prohibiting-
(a) the taking of any action that is required by or under-
(i) any enactment or order of a court,
(ii) any act done or measure adopted by the European Union,
by the European Communities or institutions thereof or by bodies competent
under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation
on the State,”
5.1 The respondent submitted a copy of Marine Notice No. 37 of 1984 (S.I. No. 193 of 1984) ( hereinafter “the Notice”) to demonstrate that persons with Type 1 diabetes are prohibited from employment on open sea voyages in specified vessels. I note that Marine Notice No. 37 of 1984 places a permanent restriction on the service of insulin dependent diabetics. The Notice defines restricted service as meaning that the service of a seafarer is restricted to “certain shipping trades, geographical areas, types of ships or jobs…..”. The notice is applicable to “sea-going Irish ships other than fishing vessels and pleasure craft” and prohibits “the employment in such ships of seafarers ………. who fail to obtain a valid medical fitness certificate” within twelve months of the notice coming into force. While the complainant was not an employee of Irish Sail Training at the time in question there is nothing in the Notice to say that sail training vessels are excluded from the scope of the Notice. It is therefore unclear as to whether the complainant would have been required to produce the medical fitness report referred to in the Notice. On this basis I have insufficient evidence before me to determine whether Section 14(1)(a) is applicable to the instant case and I can only view the Notice as persuasive in supporting the respondent’s position that it was unsafe to allow the complainant to undertake an open sea voyage.
6 Decision
6.1 The decision by the respondent to exclude the complainant from open sea voyages because he is a Type 1 diabetes sufferer is covered by Section 4(4) of the Equal Status Act 2000-2004 and does not therefore constitute discrimination on the grounds of disability.
______________________________
Dolores Kavanagh
Equality Officer
12 May, 2006
DEC-S2006-077 – Full Case Report
2 Named Complainants v Minister for Education and Science
omplaints in accordance with the Equal Status Act 2000
The two named Complainants each referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, 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 Act.
Summary of the Complainants’ Case
Complainant A
At the time of the alleged incident of discrimination Complainant. A was a second level student suffering from dyslexia. She applied for ‘reasonable accommodation’ in respect of her leaving certificate examination in 2001. She was refused the ‘reasonable accommodation’ and this was appealed. This appeal was also refused. There was considerable confusion in the correspondence emanating from the respondent. This second refusal was also appealed and she was granted a waiver in relation to the assessment of spelling/grammar in language subjects. The respondent wrote to the complainant advising her of this waiver and that the grades obtained by her in any language subject would be accompanied by an explanatory note which would read as follows:
In the case of English:-
“All parts of the examination in this subject were assessed except the spelling and written punctuation elements.”
In the case of other language subjects:-
“All parts of the examination in this subject were assessed except spelling and some grammatical elements.”
On 1st August 2001, the complainant’s father appealed the decision regarding the proposed notation. The appeal was considered by three members of the Independent Appeals Committee and the Department’s decision was upheld. The Complainant’s father then wrote to the Data Protection Commissioner objecting to the notification on the grounds that it revealed personal, confidential and medical information which invites discrimination without serving any useful educational purpose. In response the respondent contended that the notation was required if they were to afford a level playing field and that applicants had the option to seek reasonable accommodation or not at their election. A complaint was lodged with this Office on 13th February 2002. The complaint alleges discrimination on the grounds of disability on the basis that the presence of a notation on her Certificate reveals the fact that she has a disability and requires her to explain and justify her results and places her at a disadvantage with regard to prospective employment.
Complainant B
At the time of the alleged discrimination the complainant was a second level student suffering from dyslexia. She also applied for ‘reasonable accommodation’ in respect of her leaving certificate examination in 2001. Complainant B was also granted the waiver which would include the notations described above. The appeals procedure was invoked in relation to the notations because the complainant’s father felt it constituted labeling resulting in discrimination against the complainant. The respondent’s position was upheld and the complainant’s father was provided with a copy of the Expert Advisory Group’s report in relation the assessment of candidates with special needs. The complainant’s father sought to have representations made through his T.D. The respondent Minister indicated that the inclusion of an explanatory notation was rooted in the principle of inclusiveness and the making of examinations more open to students with special needs. A complaint was lodged with this Office on 18th July 2002. The complainant alleged discrimination on the basis that a Leaving Certificate containing notations which labels her as a person with a disability had issued.
Both Complainants
From January 2002 on the Equality Authority exchanged correspondence and met with the respondent. The complainants’ representative finally confirmed to me that they had exhausted their direct contacts with the respondent and I began my investigation in 2005. Outline legal submissions were made on behalf of both complainants. A responding submission on behalf of the respondent was made primarily dealing with the complaint from Complainant B although it ultimately served as a response to both cases. Both parties submitted substantial information in respect of the practice in other jurisdictions, in national universities and both presented expert witnesses.
Summary of the Respondent’s Case
The respondent does not dispute the incidents as described by the complainants. What is disputed is that any of the actions taken by the respondent could amount to discrimination. The following is an extract from the respondent’s submission with the complainant’s name altered.
“Complainant B alleges that the Department of Education and Science (hereafter “the Department”) discriminated against her by issuing her with a leaving certificate containing notations which, she claims, label her as a person with a disability. Complainant B further claims that, as a result of the discrimination which she alleges, she will be forced to reveal and explain her disability to prospective employers, even where it has no relevance. Complainant B alleges that she is being treated less favourably than other students who are not placed at such a disadvantage.
The Department denies Complainant B’ s claim. It contends that Complainant B has been given an exemption from an element of the standard assessment in a number of subjects (which exemption is not available to candidates generally). Even though the purpose of the examination regarding that element has demonstrably not been met, Complainant B has benefited through having her grade determined on the balance of her work in each such subject. This places Complainant B, not in a position equal to that of the majority of other candidates, but in a more advantageous position than them.
The footnoting of the fact that Complainant B was assessed on all parts of the examination in each subject except ‘spelling and written punctuation elements’ in English and ‘spelling and some grammatical elements’ in other language subjects, is a necessary balance to protect the integrity of the examination certification process. The relevant certificate does not record that Complainant B suffers from a disability, either directly or by inference.
Where an accommodation is made that simply assists in, or permits, the assessment of a core skill, then no explanatory note is necessary and none is appended to the certificate. Examples of accommodations in this category would included the provision of aural tests by face to face interview, the provision of enlarged or Braille examination papers or of examination papers without graphics, the provision of additional time, and the provision of special examination centres. The excision of a core element of the exam is an accommodation of a different order, however. Such accommodations include the use of tape recorders, word processors, dictation software (with the spell-check facility enabled) or scribes in subjects that involve an assessment of spelling and punctuation skills, or the use of readers in subjects that involve an assessment of comprehension. The grant of an exemption from assessment constitutes a further obvious example of an accommodation of this kind – whether the exemption is from an oral test, an aural test, or the examination of spelling, punctuation and grammar. In the provision of reasonable accommodations, there is nothing arbitrary in the distinction between requiring annotation where the testing of a core competency has been affected (or prevented) thereby, and not requiring such annotation where it has not. The difference between accommodations that affect the testing of core competencies and those that do not is one of the central distinctions that the Complainant’s submissions fail to address.
Complainant B requested the pertinent exemptions in the knowledge that, where granted, they would require the appropriate notation on her Leaving Certificate. Complainant B was informed of the content of the relevant notations when those exemptions were approved.
Complainant B’s spelling and written punctuation in English has not been assessed in her Leaving Certificate examination, nor has her spelling and written grammar in the other language subjects that she has taken at that level (Irish and French). The deletion of the appropriate notation from her Leaving Certificate would misrepresent to any person invited to consider, or to rely upon, that document that Complainant B’s marks in the relevant subjects include, and reflect, an assessment of those skills.
The Department does not accept that the notation concerned labels Complainant B as a person with a disability. The use of tape recorder by a candidate due to a sprained wrist would result in the same notation. Nor does it accept that the existence of the notation ‘forces’ Complainant B to reveal and explain the nature and extent of her disability to a potential employer, even where it is not relevant. Where it is not relevant Complainant B is not obliged to reveal it or explain it. For these reasons, the Department does not accept that any privacy issue arises on Complainant B’s complaint. Even if any privacy issue did arise, it would be counterbalanced by the right to free expression.
The relevant notation appears on Complainant B’s Leaving Certificate, solely because Complainant B requested and received an exemption from the spelling and punctuation or spelling and grammar components of the Leaving Certificate examination in the subjects concerned. This exemption has placed Complainant B, not in a position equal to, but in a position more advantageous than, that of the majority of other students taking those subjects in that exam. The Department does not accept that Complainant B has been treated less favourably than other students. The purported ‘disadvantage’ of the notation can only accrue where the undoubted advantage of the exemption (or similar accommodation) has been obtained. The balance that has been struck by the Department is a reasonable accommodation. To exempt a person from examination in a core competency, and to thereafter conceal that fact by omission on the relevant certificate, would be to confer an unreasonable advantage on the person concerned; to correspondingly disadvantage other candidates; and to undermine the fundamental integrity of the Leaving Certificate examination process.”
The submission provides a substantial amount of background information and then goes on:
“The Department’s Overall Approach
There is no assumption in the Department that the present system is sacrosanct. Nor is there a belief in the Department that absolute objectivity in that examination has been, or can be attained; the Department accepts that absolute objectivity can only ever be strived for. Nevertheless, equity and fairness dictate that that must be the goal. The Department cannot abandon its pursuit of objectivity by unreasonably advantaging one group of candidates (with a particular disability) over the rest. The Department must strive for equity between candidates.
The Department acknowledges that syllabuses, examinations, and forms of assessment continue to evolve. That is why there has been an expert Advisory Group Discussion Paper and Report on Special Arrangements/Reasonable Accomodations. That is why there has been a Task Force on Dyslexia. That is why the National Council on Curriculum and Assessment was established, and why it continues to keep curriculum and assessment under review. That is why a State Examinations Commission has been established to develop, assess and accredit the second level examinations of the Irish state.
Complainant B’s Application For An Exemption
As already set out above, Complainant B requested the relevant exemptions in the knowledge that, where granted, they would require the appropriate notation on her Leaving Certificate. Complainant B was informed of the content of those notes when those exemptions were approved. In respect of her English examination, the relevant note reads: “All parts of the examination in this subject were assessed except spelling and written punctuation elements”. In the case of Complainant B’s other language subjects (which the Department understands were Irish and French) the notation states: “All parts of the examination in this subject were assessed except spelling and some grammatical elements.” The letter of exemption went on to expressly state: “Clearly no explanatory note will be necessary in any subject where the skills listed above are not under assessment”. That is the key principle which underlies the notation procedure and it is important to bear it in mind in considering the practice in, and case-law of, other jurisdictions.
The Complainant’s father appealed against the proposed annotation of her leaving certificate by an undated letter in the Spring of 2001. The unavoidable implication of this appeal would appear to be that the Complainant (or the Complainant’s father on her behalf) was seeking an exemption from a core assessment to which most other students were to be subject; was seeking to have her grade determined solely by reference to the other elements of her work; and was seeking to have the information that – in contrast to the vast majority of other candidates – her spelling and punctuation (or spelling and grammar, as the case might be) had not been assessed at all, withheld by omission from any future ‘user’ of her leaving certificate. Perhaps, it was not appreciated that other candidates could lose marks under the relevant heads, whereas the Complainant could not. The Department replied by letter dated the 31st May 2001, explaining the principles underlying its decision and enclosing a copy of the Expert Group Report. The Minister for Education and Science replied to representations from Seamus Brennan T.D. on the same issue by letter dated the 30th August 2001.
The Complainant instituted the present complaint by the submission of an ODEI 5 Form on the 19th April 2002 and a Form ODEI 2 on the 18th July 2002.
Entirely disregarding the exemption sought and granted; the far-reaching accommodation constituted thereby; and the significant advantage it represents, Complainant B’s complaint seeks to isolate, and focus solely upon, the corresponding annotation on her leaving certificate. This ignores the fact that the annotation is inextricably bound up with the exemption. It does not constitute a free-standing difference of treatment. Had Complainant B received no exemption, there would have been no annotation. It is the exemption which is free-standing. That exemption (coupled with the necessary annotation) is either permissible as reasonably necessary to promote the special interests of dyslexics or else it represents an impermissible discrimination in Complainant B’s favour as against other leaving certificate examination candidates.”
Interaction between Parties
The following is a description of the correspondence and interactions between the parties before the Tribunal’s investigation. This was included in the submissions made on behalf of the complainants.
In the absence of a Response to the First Named Complainant’s notification of complaint, the Equality Authority wrote to the Respondent on the 14th of January, 2002 requesting delivery of the response. By letter dated the 29th of January, 2002, the Respondent replied setting out the rationale for the examination notation practice. The Respondent indicated that whilst the thrust of policies in the area is to make the second level examination system more flexible and responsive to the needs of students who would otherwise have difficulty with some examination subjects because of their special needs. The Respondent contended that examination notation was necessary because it would not be credible for the Department:
“as the national certification authority to conceal the fact that it had not assessed publicised core assessment criteria determined by the National Council for Curriculum and Assessment”.
The Respondent further contended that it would be misleading not to include the examination notation stating:
“if we were unable to make the nature of the assessment modification explicit we would in effect be concealing the fact that standard national assessment did not apply.”
The Respondent continued:
“it is also important to point out that a candidate opts to apply for a particular accommodation and where such an application is approved there is no obligation on a candidate to avail of it. There is no coercion by the Department. It is an elective process for the candidate concerned.”
On the 5th of November, 2002, the Respondent wrote to the Equality Authority further to a meeting held on the 27th of September, 2002 to confirm the basis for the Respondent’s policy to include an explanatory note on examination results. It was clear from the Respondent’s letter that the Respondent’s policy had been the subject of review and the Respondent stated that:
“in considering policy development in this area the core question raised in relation to the State Examination was whether the Department, given current curriculum, should insist on all candidates sitting the same examination in all circumstances, or modify our examinations to be more inclusive and open to students with special needs”.
In justifying examination notation, it was contended on behalf of the Respondent that:
“the Department’s core rationale in this respect is that it has a central role in the certification process. It is responsible for providing and implementing the test instruments and examinations that comprise the national assessment process at second level. In this context the Department has a fundamental role in underpinning the credibility and currency of the certificate examination results, both for the purpose of entry to further education and for entry to the world of work.”
The focus of the Respondent’s submissions in this case to date is on the integrity of the examination process. It is worthy of some comment that there is an assumption that runs through the submissions made by the Respondent that the exam process is sacrosanct that that it is absolutely objective. No evidence is produced to confirm this viewpoint but this view point is clearly discriminatory as it proceeds on the basis that one size fits all, thereby discriminating against students with disabilities.
By letter dated the 12th of August, 2004, the Equality Authority again wrote to the Respondent advising that it had conducted research into the question of examination notation and the integrity of the examination assessment process. Based on this research which showed a range of different practices in other jurisdictions, the Equality Authority contended that the integrity of the examination system would not in any way be compromised by a decision to cease annotating the relevant leaving certificates.
It was pointed out that the examination system had evolved and was capable of evolving further to reflect good educational policy. In their letter, the Authority reminded the Respondent that its perceived role as “gatekeeper for third level institutions and potential employers” and its overarching responsibilities must be exercised in a manner that complies with the Equal Status Act, 2000 which prohibits less favourable treatment on grounds of disability or type of disability and requires reasonable accommodation through the provision of facilities and services.
Complainant’s Legal Arguments
The following is an extract from the complainant’s submissions.
It is respectfully submitted that the Respondent is in breach of Sections 3(2)(g) and 5(1) by providing less favourable treatment to the Complainant on grounds of disability and also breaches section 4(1) by reason of a failure to provide reasonable accommodation within the meaning of the Act.
This submission will be made on the basis of evidence to the effect that standardized are discriminatory because they assume that each student taking the test will read in the same way but a student, such as the Complainant, who has dyslexia cannot process words in the same way as other students. In applying standardized testing to a student with dyslexia, the Respondent insists on testing disability and not ability. The standardized tests used by the Respondent have not been developed with the needs of the disabled student in mind. This, it is submitted is discriminatory and the only means available to the Respondent to alleviate the discriminatory impact without developing an alternative test which permits the testing of the Complainant’s ability, is to accommodate the student. To make the examination system fair in a standardized system such as the Leaving Certificate, however, this accommodation must by adapted to the situation so that, in reality, the student is competing on a level playing field. Were the accommodation properly effected, then there would be no requirement to annotate the results because the test results would properly measure ability.
Accordingly, the need for annotation on the grounds advanced by the Respondents, only exists if there has been no reasonable accommodation in the first instance. Furthermore, the act of causing a notation to appear on an examination certificate perpetrates a whole new act of discrimination. The Complainant is being treated less favourably than other students, the certificate is defaced and her achievements demeaned. The Complainant is further discriminated against in that her right to privacy is not protected in like manner with other students. By annotating the certificate, the Respondent has caused a signal to be sent to the world at large that the Complainant is disabled, in complete violation of her right to privacy protected both under constitutional law and international human rights law. Any accommodation which requires such a breach of a fundamental human right in order to be made available to a student cannot be construed as reasonable within the meaning of the Act which falls to be construed in the light of the Constitution.
Discrimination
The Respondent is guilty of a double discrimination against the Complainant. It forces the Complainant to sit a standardized examination which it contends cannot properly measure the Complainant’s ability as the publication of the results would “conceal” the reality of the test result. To fail to provide an examination system which permits a disabled persons ability to be measured in comparison to others without reference to their disability is discriminatory. It then causes a notation to be inserted on the examination certificate to explain that the Complainant was not tested in various aspects of the subject, thereby suggesting that the Complainant’s result is not a real result which is as meritorious as the result of a student obtaining the same overall grade but without the notation. This is discriminatory. Still worse, if identifies to the world that the Complainant is a person with a disability. This compounds the injury to the Complainant and is discriminatory.
Insofar as the central thrust of the Respondent’s argument in meeting this case is the requirement to uphold the integrity of the examination assessment system and its transparency, the Respondents seem to rely on the need for each student to sit the same examination in order to ensure the integrity of the examination system. The examination system, however, as currently operated gives marks for spelling and grammar. To obtain a standardized examination certificate without notation a student must be assessed in spelling and in grammar. The Respondent’s argument that this is necessary to uphold the integrity of the result, however, fails to take account of the fact that such a test does not represent a fair assessment of the ability or educational attainment of a student with dyslexia and an assessment on the basis of spelling and grammar is not a neutral means of assessing educational attainment. Clearly, students with dyslexia will have greater difficulty performing in such an examination but the result they achieve will not be a true measure of their attainment because they have been assessed in a discriminatory manner by requiring persons with dyslexia to be marked on spelling and grammar before their level of attainment in a language subject can be measured. It is respectfully submitted that the Respondents have failed to justify their requirement that students with dyslexia be assessed as to spelling and grammar before a standardized examination certificate will issue. It is respectfully submitted that there is no objective justification for this requirement within the meaning of the Act.
It is respectfully submitted that the annotation of Leaving Certificates constitutes discrimination against people with learning difficulties. The annotation of scripts does not occur for people who do not have a disability or for people with certain other disabilities. It has been acknowledged by the Respondent that the explanatory notation is used in certain cases of reasonable accommodation and not in others. The impact of the notation is significant in that it undermines the value of the State Examination Certificate and the real attainments of the student at the said examinations by flagging to the world (in particular, prospective employers) that the result does not represent the actual ability of the student in a given subject. This also has a demoralizing impact of the student.
It is worthy of special note that that Irish universities do not themselves generally provide information on grade transcripts about the taking of their own tests under non-standard conditions. Such grade transcripts are essential to securing places for third level graduates in further education (whether in Ireland or abroad) and in securing employment. It seems that unlike the Respondent, Irish universities do not operate under the assumption that employers (whether in Ireland or elsewhere) and others have a right to know that their degree results were obtained under “non-standard” conditions.
It follows that the insertion of a notation on an examination certificate assists a discriminating employer to identify a student with a disability even in advance of interview resulting in the unlawful exclusion of the said student from interview because they have a disability or the less favourable treatment of the student at interview. The Respondent points out that it should not be held responsible for the discriminatory acts of third parties but this is to ignore the fact that it is the practice of the Respondent in annotating test results to indicate the presence of a disability (thereby pre-identifying a candidate for employment as a disabled person) which renders it possible or easier for discriminating employers to effectively discriminate and consequently, the action of annotating directly causes or facilitates discrimination contrary to the whole objective of the Equality code. It is to further ignore the fact that annotation in itself reveals the existence of a disability and thereby offends against the Complainant’s right to privacy as protected under the Constitution and results in an invasion of the disabled person’s constitutional rights thereby resulting in a tangible and immediate less favourable treatment of the Complainant directly related to the act of notating and caused by the Respondent.
The Respondent’s response to this appears to be that the Complainants have elected to use the accommodation and have therefore consented to the publication of private information concerning them and identifying them as disabled persons. This response is unacceptable in law because it fails to comprehend the fundamental basis for reasonable accommodation which is that the person requires the accommodation to enjoy access. Accordingly, the accommodation is not an optional extra which the student can elect to use or not. The accommodation, however inadequate, is required so that the person has access to the examination.
The Respondent provides a service through the establishment of a system which measures educational attainment. In failing to provide for the equal measurement of the Complainant’s level of attainment without also ring-fencing the student as a disabled person, the Respondent actively discriminates against the Complainant. If the student is penalized by the annotation of her test results by reason of reliance on an accommodation, the student continues to be treated less favourably than other students with regard to access to State examinations.
The act of inserting a notation on the certificate is in itself discriminatory. In effect the accommodation given is negatived by the notation. Students with a disability are treated less favourably than other students by the inclusion of the notation which only occurs where a student has a disability (thereby invalidating the accommodation made).
Further because the Respondent has failed to provide reasonable accommodation in ensuring that the examination system is equally balanced for all comers permitting real attainments to be measured on an equal basis (thereby amounting to a failure to reasonably accommodate), the examination system remains discriminatory.
The effect of the notation is to penalize the student for using non-standard accommodation on the presumption that so called “reasonable accommodation” (in the sense envisaged by the Respondent) somehow confers an unfair advantage on the disabled student rather than merely permitting the student to compete on a level playing pitch. If the effect of the accommodation were really to confer an unequal advantage then the accommodation in question is not “reasonable accommodation” within the meaning of the Equal Status Act, 2000.
Reasonable Accommodation
The Equal Status Act, 2000 requires the Respondent to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. The purpose of reasonable accommodation within the meaning of the Act (as opposed to Department literature) is to ensure genuinely equal opportunity and therefore, a legitimate and comparable testing outcome. The purpose of reasonable accommodation within the meaning of the Act is not to confer an unequal advantage on a disabled person (which seems to be implicit in the requirement for a notation system with regard to the Respondent’s scheme) but rather to require the adjustment of the modalities of the examination to enable ability to be accurately recorded and measured. Therefore, the very rationale of “reasonable accommodation” is not to confer an advantage but to ensure a genuinely level playing field for all candidates.
It follows that if the rationale for notation advanced by the Respondent were to be accepted (in essence, the “credibility and currency” of national assessment criteria i.e. comparability), then the Respondent has, per se, failed in its responsibility to provide “reasonable accommodation” in accordance with the requirements of the Act because were reasonable accommodation in place the examination method used would be capable of providing comparable results.
The Tribunal has interpreted “reasonable accommodation” as requiring the giving of consideration to alternative means of providing access. The failure to find or to consider an alternative to notation as a means of assessing educational achievement in a language subject constitutes a failure to provide reasonable accommodation. Furthermore, the requirement to annotate the results posited by the Respondent, if followed to its logical conclusions, evidences a failure to provide reasonable accommodation within the meaning of the Equal Status Act in the manner in which the Respondent provides its so-called reasonable accommodation. The accommodation fails or is ineffective if notation remains necessary to ensure a level playing field. It is respectfully submitted that the provision of an ineffective accommodation amounts to a failure to provide reasonable accommodation.
In short, the assistance that is provided by the Respondent does not constitute reasonable accommodation insofar as the only accommodation which appears to be available to a person with dyslexia is the modification/waiver which the Respondent insists is elective. Reasonable accommodation within the meaning of the Act is not an optional extra and the purpose of reasonable accommodation is to level the playing field. The Respondent appears to consider reasonable accommodation to confer an unequal advantage for a person with a disability but this, it is respectfully submitted, is to wholly misconstrue “reasonable accommodation” within the meaning of the Equal Status Act, 2000. The Respondents are required by section 4 of the Equal Status Act, 2000 to provide “reasonable accommodation” so that a student can be assisted in overcoming a discriminatory barrier. A student who avails of the right to reasonable accommodation cannot then be said to be advantaged because the accommodation was necessary in the first place to protect against discrimination. To annotate the examination script perpetuates the discrimination which reasonable accommodation, properly construed, protects against.
The Right to Privacy and the Meaning of Reasonable Accommodation under the Equal Status Act, 2000
The Complainant enjoys a constitutionally protected right to privacy (Article 40.3). The Complainant also enjoys a right to privacy under the European Convention on Human Rights (Article 8) which has been incorporated into Irish law through the provisions of the European Convention on Human Rights Act, 2003. Insofar as the Respondent has any discretion with regard to the extent or nature of the accommodation it provides in accordance with the Equal Status Act, 2000, it is respectfully submitted that as a matter of law this discretion must be exercised in accordance with the requirements of constitutional justice and in a manner which vindicates and respects constitutionally protected rights.
It is submitted that the failure of the Respondent to respect and vindicate the Complainant’s right to privacy must mean that the accommodation provided does not constitute “reasonable accommodation” within the meaning of the Equal Status Act, 2000 which is presumed to bear a constitutional interpretation and is presumed to require vindication and respect for constitutional rights in the manner in which accommodation is mandated in the Equal Status Act, 2000. Similarly, the Respondent is required to exercise its discretion in a manner compatible with the requirements of the European Convention on Human Rights (section 3, European Convention on Human Rights Act, 2003).
Insofar as it falls on the Tribunal to interpret the meaning of “reasonable accommodation” under the Equal Status Act, 2000 and to judge the treatment of the Complainant by the Respondent in this regard, the Tribunal is respectfully reminded of the duty to construe the provisions of the Act in a manner which is compatible with the Constitution (double construction rule) in the case of any ambiguity and the requirement under the European Convention on Human Rights Act, 2003 to interpret legislation, where possible, in line with the requirements of the Convention.
Respondent’s Legal Arguments
The following is a further extract from the respondent’s submission.
The Equal Status Act 2000
Complainant B claims to have been discriminated against by the Department of Education in the provision of a service, contrary to the terms of Section 5(1) of the 2000 Act. While the Complainant’s submissions do not identify the ‘service’ at issue, paragraph 3 of Complainant B’s ODEI 2 Form would suggest that it is the certification of her tested accomplishment at leaving certificate level. Of course, Complainant B’s accomplishment in the spelling and punctuation elements of English and the spelling and certain grammar elements of her other language subjects has never been tested at that level. It is the simple and neutral annotation to this effect on her leaving certificate which she alleges amounts to discrimination between her and other candidates without exemptions. The marks available to Complainant B in the other tested elements of those subjects have been increased proportionately, so that she was eligible for the same marks total as other candidates, although – unlike them – she could not lose marks for spelling, punctuation or grammar.
Section 5(2)(h) of the 2000 Act
Section 5(2)(h) of the Act, to which the Complainant’s submissions do not refer at all, states:
“Subsection (1) does not apply in respect of-
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those interests.”
Of course, the exemption/annotation arrangement is just such a difference in treatment (of the category of persons who are dyslexic), provided for the principal purpose of promoting for a bona fide purpose and in a bona fide manner, the special interests of dyslexic examination candidates. The Department introduced the exemption/annotation system in the belief that this difference of treatment was reasonably necessary to promote those special interests. The Complainant appears to contend that an undisclosed exemption is, in fact, reasonably necessary instead. In either event, it is difficult to see how Section 5(1) can be properly invoked by Complainant B in respect of a service that squarely falls within the terms of Section 5(2)(h).
Section 3(2)(g)
In the submissions filed on her behalf, the Complainant argues that there has been a breach of both Section 5(1) and Section 3(2)(g) of the Act. Section 3(2)(g) provides:
“As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”
The Department submits that Section 3(2)(g) provides a definition of one of the ‘discriminatory grounds’ (in this case, the disability ground) prohibited by Section 5(1) of the Act. Perhaps this is what the Complainant’s submissions in this respect are intended to convey, in which case there is agreement between the parties on this point.
Section 4(1)
The Complainant’s submissions are unambiguous in asserting the Complainant’s case that the Department has breached both Section 5(1) (whether or not coupled with Section 3(2)(g)) and Section 4(1) of the 2000 Act. Section 4(1) states:
“For the purposes of this Act, discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for a person the person to avail himself or herself of the service.”
Four points must be made concerning this provision. First, it does not constitute a separate prohibition in addition to that provided by Section 5(1) of the 2000 Act but rather an elucidation of what constitutes discrimination on the disability ground contrary to that prohibition. The issue of whether the Section 5(1) prohibition applies at all – in light of the terms of Section 5(2)(h), has already been addressed.
Second, the question must be asked; what is the special treatment that it is alleged the Department failed or refused to provide by way of reasonable accommodation in this case? The Complainant applied for and received an exemption in the examination – by way of special treatment – which was not available to the general body of candidates. This special treatment left her in a position of advantage over the general body of candidates, rather than in a position of equality with them. The annotation on her certificate that certain assessments have not been carried out is a reasonable and necessary measure in light of that advantage. It prevents persons invited to rely upon that certificate from being misled by omission about the nature of the assessments performed. It provides transparency and openness in the certification process for the benefit of candidates generally. And for those two reasons it protects the integrity of the examination and certification process. The Complainant’s argument to the contrary entirely ignores the reasonable accommodation/special treatment already provided to her through the exemption from which she has benefited, save to the extent that she claims an entitlement to it in addition to an entitlement that her leaving certificate should mislead concerning it by an omission that conceals the limited nature of her assessment. Such concealment by omission would call the integrity of the examination process into most serious question.
Third, in invoking the sub-section, no basis is provided for the implicit assertion that, without the excision of the relevant annotation, ‘it would be impossible or unduly difficult’ for the Complainant to avail of the service at issue (i.e. certification of the results of the assessment of her accomplishment at second level). The strained and artificial nature of Complainant B’s claim in this regard is demonstrated by the fact that she has availed of the service concerned. Complainant B sat the certification examination with the benefit of the exemptions that had been sought by her. The ‘impossibility or undue difficulty’ test applies much more neatly to the sitting of the relevant examinations without an exemption than it does to the truthful and accurate certification of actual accomplishment that results.
Fourth, Section 4(1) of the Act falls to be construed in conjunction with Section 4(5). Section 4(5) states:
“This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the Minister of Education and Science, recognised schools and boards of management in regard to students with a disability”.
Section 7(2)(a) of the of the Education Act 1998 provides:
“(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act….”
(emphasis added)
Section 2 of the 1998 Act defines “support services” to include the assessment of students and the conduct of examinations including the Leaving Certificate examination.
The Complainant’s argument, which ignores the foregoing provisions entirely, fails to explain how Section 4(1) of the Act can be invoked in the present case, when that section is expressed to be without prejudice to the provisions of Section 7(2)(a) of the Education Act 1998, which in turn states that support services to students, including students with a disability, are to be provided as the Minister considers appropriate. For the avoidance of doubt, the Minister, having adopted the recommendations of the Report of the Expert Advisory Group, considers the exemption/notation procedure in its present form, to be an appropriate support service.
Section 14 of the 2000 Act
Section 14 of the 2000 Act provides in relevant part:
“Nothing in this Act shall be construed as prohibiting-
(b) preferential treatment or the taking of positive measures which are bona fide intended to-
(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.”
The exemption/notation practice adopted by the Minister by reference to the Report of the Expert Advisory Group is just such preferential treatment or just such a positive measure, intended to cater for the special needs of dyslexic leaving certificate candidates in certain subjects.
The Arguments
A Standardised Test – But Not An Inflexible One
Paragraph 19 of the Complainant’s submission appears to be predicated on the assertion that the Department administers an inflexibile standardised test in the leaving certificate to persons with a disability and, in particular, to persons with dyslexia. As already demonstrated above, that is simply not correct. Special Arrangements for persons with dyslexia have been in place for many years. Those arrangements extend from, at one end of the spectrum, the making of an exceptional effort to decipher and mark scripts, to, at the other end, the grant of facilities such as the use of tape recorder or computer. The grant of an exemption with appropriate annotation, as recommended by the Expert Advisory Group, and as availed of by Complainant B in this case, falls somewhere in between. It is therefore wrong to say that the standardized tests used by the Respondent have not been developed with the needs of the disabled student in mind.
Evidence that the Leaving Certificate is Discriminatory?
At paragraph 19 of the Complainant’s submissions, it is stated that evidence will be adduced to the effect that standardized tests are discriminatory. The Department respectfully requests that the Complainant be directed to provide notice of the nature and content of that evidence in advance of the hearing before the investigating officer, in order that it might be properly considered, and tested if necessary at that hearing.
The Means of Testing and the Accomplishment Tested
The fundamental misconception at the heart of the Complainant’s argument is that spelling, punctuation and grammar are merely the mechanism through which achievement is tested in language subjects. It is certainly the case that spelling, grammar and punctuation are merely part of the means (i.e. the written word) through which achievement (in the form of level of knowledge) is tested in some subjects. So, in a history examination for example, one can test a candidate’s level of knowledge through the spoken word as effectively as through the written word. However, in language subjects, the ability to write with accurate spelling, grammar and syntax is an integral part of the achievement that is being tested.
The Department is not ‘testing disability’ instead of ‘ability’. One might as well say that the driving test is not a test of ability but rather a test of the disability of the vision impaired; or that an oratory competition is a test of the disability of the speech impaired. The Department is testing spelling, grammar and punctuation because these are still considered to be valuable skills (or core competencies) in language subjects. The Department is not seeking to test the disability of persons with dyslexia.
Every testing authority throughout the world acknowledges that not all disabilities can be perfectly accommodated in every circumstance. In particular, in an examination the very purpose of which is to objectively grade candidates according to ability in a particular discipline, a disability in that discipline is extremely hard to accommodate without unfairness to other candidates. In a sight test, can a visually impaired person be accommodated such that he is eligible to receive higher marks than those obtained by a fully sighted person without affecting the overall integrity or credibility of the test? Can a dyslexic person be accommodated in a spelling, grammar or punctuation test such that he is eligible to receive higher marks than those received for spelling, grammar and punctuation by a non-dyslexic person without affecting the overall credibility of that test? This is the difficult problem that the Department faces, and it has sought to deal with it by granting the Complainant an exemption with annotation in this case. It cannot be correct to argue, as the Complainant’s submissions do at paragraph 19, that if an accommodation were properly effected, there would be no requirement to annotate the results because the test results would properly measure ability. The Complainant did not want her ability at spelling, grammar or punctuation properly measured because, due to her disability, that measurement would have been low. The Complainant wanted, and received, a complete exemption from that measurement.
No Discrimination
There is no discrimination in failing to arrange an equitable spelling test between persons with dyslexia and persons without it, just as there is no discrimination in failing to arrange an equitable sight test between fully sighted persons and those who are vision impaired, or a hearing test between those with normal hearing and those who are hearing impaired.
The Complainant is not being treated less favourably than other persons – she has been in receipt of an exemption not available to the vast majority of other candidates. The Complainant’s certificate has not been ‘defaced’; it has been annotated to accurately reflect her accomplishment. In no way has that accomplishment been demeaned by the annotation at issue.
No Breach of any Privacy Right
The Complainant’s privacy rights under both international and domestic law have been, and remain, at all times entirely unaffected by the relevant notation of her leaving certificate. That notation does not send a signal of any kind to anyone – let alone the world at large – that the Complainant is disabled. Even if it did, the leaving certificate examination is a public examination. The Complainant’s leaving certificate is in her own possession. It is a matter for the Complainant to whom she chooses to disclose its contents. The Complainant applied for the exemptions concerned in the knowledge that, if granted, the relevant annotations would result. The annotations concerned do not in any way, shape or form affect any privacy right enjoyed by the Complainant, either under Article 40.3 of the Constitution of Ireland, Article 8 of the European Convention on Human Rights and Fundamental Freedoms, any statute, or the common law. Moreover, there is a countervailing right to freedom of expression under Article 40.6.1° and under Article 10 of the European Convention on Human Rights and Fundamental Freedoms (which includes a right to receive and impart information), which is also recognised in the domestic law of the State pursuant to the European Convention on Human Rights Act 2003.
Preferment not Penalisation
At paragraph 21 of the submission under reply, an extract is set out from the report of a United States disability rights advocacy group, the Disability Rights Advocates Group (DRA). It is difficult to see the relevance of the passage quoted to the facts at issue. This is not a case in which any school has withheld the benefits of doing well from a student using a non-standard accomodation. Complainant B received an exemption from assessment in certain aspects of the relevant examinations and a proportionate increase in the marks awarded to her in respect of the remaining aspects of those exams. Complainant B has, in all probability received higher marks than she would have otherwise received, and exactly the same benefit (i.e. grade) as that of any other person who received the same total number of marks (without the benefit of such exemption). There has been no ‘penalization’ of Complainant B for using the accommodation concerned. There has been no failure on the part of the Department to conduct any appropriate research.
The paragraph of the DRA Report immediately preceding the one quoted in the Complainant’s submission begins with the sentence: “The test results of disabled students who participate in the assessment with accommodations should count for whatever purposes the assessment system has been validated.” The assessment system at issue here (the Leaving Certificate) has been validated for the purpose of assessing overall accomplishment at the end of the secondary school cycle. Complainant B’s marks in the subjects concerned (even though she obtained exemptions unavailable to the majority of other candidates) count towards that assessment in exactly the same way as those of any other candidate.
University Examinations – An Inappropriate Analogy
At paragraphs 4 and 25 of the Complainant’s submissions, heavy reliance is placed on the assertion that the Irish universities do not annotate grade transcripts when tests are taken under non-standard conditions. The implicit suggestion is that a direct comparison between second and third level exam certification is appropriate and instructive. However, no account is taken of any of the following factors:
? It is not stated whether the ‘non-standard conditions’ under which the tests concerned are taken includes the availability of an exemption from assessment of a core competency. It is only where a core competency cannot be tested that a leaving certificate is annotated accordingly. Under any other non-standard condition (i.e. in relation to the provision of any other reasonable accommodation), leaving certificates are not annotated.
? It is not acknowledged that the universities are autonomous in their assessment procedures. Grade transcripts are not centrally certified to provide direct equivalence between universities i.e. identical grade transcripts issued by different universities may be weighed quite differently by their end users. The leaving certificate strives for universal equivalence between the grades obtained by all candidates.
? It is not acknowledged that grade transcripts alone do not constitute the sole measure by which post graduate places are secured. This may be contrasted with leaving certificate grades which, of course, do constitute the sole measure by which eligibility for the majority of places at third level is decided.
In these circumstances, the comparison sought to be made is entirely unhelpful, if not invidious.
Conclusions of the Equality Officer
Prima Facie Case
I must first consider whether the existence of a prima facie case has been established by the complainant.
The matter referred for investigation turns upon whether or not the complainant was discriminated against in terms of Sections 3(1)(a), 3(2)(g), 4 and 5 of the Equal Status Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Where the disability ground is the basis for a complaint I am satisfied that the key issues to establish a prima facie case are as follows:
(i) Are the complainants covered by the discriminatory ground? (in this case have the complainants a disability?)
(ii) Is there evidence that they have been subject to a specific treatment by the respondent?
(iii) Is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?
(iv)Did the respondent’s actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainants’ needs as students with a disability, which made it impossible or unduly difficult for them to sit the Leaving Certificate examinations and receive standard Certificates?
(v) Would providing for those needs have given rise to greater than nominal cost to the respondent?
While the complainants have not got to satisfy all the issues above they need to satisfy test (i) (that they are covered by the disability ground) plus tests (ii) and (iii), or test (iv) (that is that the respondent has failed to provide reasonable accommodation in accordance with section 4 of the Equal Status Act).
If and when those elements are established the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. Where the complainants succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
Essentially this is the approach provided for in the Burden of Proof Directive (Council Directive 97/80/EC). In adopting this approach I am conscious that the Directive is not directly applicable to the complaint in hand under the Equal Status Act, 2000, but I consider that the Directive has persuasive effect in discrimination law. It is notable that the Labour Court and Equality Officers applied the practice of shifting the burden of proof in discrimination cases long before any European Community caselaw required them to do so (as far back as 1983 (Bailieborough Community School v Carroll, DEE 4/1983 Labour Court) and 1986 (Equality Officer: Gibney), and that this was a consistent practice across a spectrum of cases 1. European Court of Justice caselaw did not address the issue of the shift in the burden of proof for the first time until the Danfoss and Enderby cases so this was not done purely in implementation of Community law. It seems to represent an indigenous development in Irish discrimination law, which was in advance of Community law. There is no reason why it should be limited to employment discrimination or to the gender ground. The practice of shifting the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson and by the High Court in Conlon v University of Limerick . While these were both indirect discrimination cases, it seems that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
In considering what constitutes a prima facie case, I have examined definitions from other sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred.” In article 4 of the EC Burden of Proof Directive (Council Directive 97/80/EC) the following definition appears: “when persons who consider themselves wronged….. establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination”. In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court interpreted article 4 of the EC Burden of Proof Directive as follows: ” This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court , and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. “
This shift in the burden of proof has now been formally adopted in the legislation in Section 38A(1) of the Equal Status Act 2000 (as inserted by the Equality Act 2004).
Section 3and 5
Direct discrimination and the Disability Ground
Section 5 states that a person shall not discriminate in providing a service whether its for consideration or otherwise and whether the service provided can be availed of only by a section of the public. I am satisfied that the service provided by the respondent to the complainants amounts to a service in terms of the Equal Status Act 2000. Secondary education and its assessment is a service which is available to the public or a section of the public. Education was evidently intended to be embraced by this legislation as it is mentioned in Section 4 and Section 7. Section 3 of the Equal Status Act, 2000 provides, inter alia:
3. — (1) For the purposes of this Act, discrimination shall be taken
to occur where —
(a) on any of the grounds specified in subsection (2) (in this Act
referred to as ”the discriminatory grounds”) which exists
at present or previously existed but no longer exists or
may exist in the future, or which is imputed to the person
concerned, a person is treated less favourably than
another person is, has been or would be treated,
(2) As between any two persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are:
….
(g) that one is a person with a disability and the other either is
not or is a person with a different disability (the ”disability
ground”),
This suggests that discrimination shall be taken to occur where, on the grounds of a disability, a person is treated less favourably than another is treated. It is agreed by all parties that both complainants had a disability at the time of the provision of the Department’s reasonable accommodation and the issue of the certificates which satisfies (i) above. It is agreed that the complainants sat their Leaving Certificate examination in 2001 and received annotated certificates which satisfies (ii) above. It is also agreed that other students were treated differently at the time of the issue of the certificates. What is at issue is the respondent’s contention that the provision of accommodations to the complainants amounted to a considerable advantage over and above what was available to students who did not have a disability and that this advantage had to be balanced by annotation of their Certificates in order to redress the imbalance between students, to maintain the integrity of the certification system and for transparency purposes. The respondent argues that since the annotation of Certificates only arises where the considerable (usually termed unfair) advantage has been granted, any other treatment cannot be considered less favourable.
The Bundling of Reasonable Accommodation and Annotation
The respondent argues that the annotation arises only because the complainants have applied for and been granted reasonable accommodation. They argue that the annotation can only arise because the complainants have already been treated more favourably than others in the first place. While this arguably displays a fundamental misunderstanding of the reasonable accommodation provisions, Section 4, in the Equal Status Act 2000 in the first place it also assumes that once you provide some form of favourable treatment you are then at liberty to balance this treatment in whatever way is considered appropriate. It also assumes that Section 3 of the Equal Status Act 2000 cannot then be applied to that balancing treatment. It was also argued that Section 4 of the Equal Status Act 2000 cannot stand alone as a definition of discrimination. In my view, however, Section 4 extends the previous definitions of discrimination included in Section 3 by including the failure of a service provider to provide reasonable accommodation as defined. It does not require a link with Section 3. (See the treatment of Section 4 below.) There is an inherent contradiction in the respondent’s argument in this regard since it is argued that Section 4 cannot stand alone while at the same time it is argued that the balancing treatment only arises as a result of Section 4 treatment and should be considered in that light only.
I am satisfied that the mere existence of an alleged reasonable accommodation in terms of Section 4 cannot rule out consideration under Section 3 of other treatments.
Comparator and Less favourable treatment
There are a variety of groups to which the complainants could be compared.
– Students without disabilities
– Students without disabilities and those with disabilities who do not require the exemption from assessment of spelling and grammar.
– All students who have had results adjusted
There is another group of students who have their results adjusted in a similar though different way to those who have applied for exemptions. When the complainants applied for their reasonable accommodation they were assessed on all aspects of their examination except spelling and grammar. Therefore they were assessed only on say 90% of the available marks. Their marks were then rounded up to represent a score out of 100%. With regard to those who sit their examinations through Irish, they are awarded up to an additional 10% for their achievement. However, no note of this is made on their certificates.
– All students who applied for reasonable accommodation. (Not all reasonable accommodations attract annotation.)
I am satisfied that the appropriate comparator is either a student without disabilities or a student with a different disability to that of the complainants and whose disability does not require exemption from a ‘core element’ of a course, or both.
The annotated certificates issued to the complainants are certainly different to the certificates issued in general by the respondent. Therefore those receiving the annotated certificates are being treated differently. The complainants argue that the issue of the certificates with the relevant notations is less favourable treatment in comparison with others. Certainly Complainant A was caused great embarrassment on the day of the results when all her friends wanted to know why her paper was different and what the notes meant when she had not previously revealed her disability. Complainant B described difficulties she perceived arising in an employment where her Leaving Certificate was submitted. In any event the complainants received certificates indicating their scores. The annotation of their certificates indicates that their score was not achieved in standard conditions. The note clearly implies that their score does not reflect the same achievement as it would for a student without the note.
I accept that employers who routinely use leaving Certificates as part of their recruitment process would quickly come to know that the only people with annotated certificates are people who had a disability of some sort at the time they sat the examinations. Those employers would be remiss if they failed to check what the annotation was about in order to ensure that the applicant could perform the job for which they had applied. Therefore in my view the annotation reveals details about the certificate holder which they may not have been otherwise obliged to reveal wherever it was not relevant. The Department has revealed information about the complainants in a manner which can lead to only one conclusion, that they were suffering from a disability at the time of the examinations. In such situations the decision to reveal their disability or not has been taken out of the hands of the complainants.
While the integrity of the certification system is vital, and is correctly something to be aspired to, the Department’s position is entirely undermined in this regard when one considers the adjustment of marks given to those who sit their examinations through Irish. Those students are given an extra 10% in some subjects, 5% in some others. The Department was asked to provide samples of Leaving Certificates of students who sat their examinations through Irish. While the certificates submitted on request relate to the year 2005, these bear no indication that an adjustment has been made and they are not annotated in any way. Therefore an end-user is being misled as to the student’s achievement in the subject at issue. The respondent argued that in the case of an Irish adjustment the student has been examined in all aspects of the subject and no one section has been omitted as is the case with spelling and grammar under their reasonable accommodation arrangements. However, these students are given extra marks which, although they show creditable expertise in Irish, bear no relation to the student’s expertise in the subject being examined. While there has been advice that this practice of adjusting the marks of those who sit their examinations through Irish should be ceased, that is not at issue here. If a policy decision has been taken that such an increase in marks would increase the use of Irish I see no reason why it should be discontinued. What is at issue is the respondent’s treatment of the marks adjustment. Where the marks are adjusted because the subject is taken through Irish no annotation is made with no apparent concern as to the end-user being misled. Where the marks are adjusted on foot of an application for reasonable accommodation because of a disability the certificate is annotated reflecting concern about misleading the end-user. If it is suggested that to annotate the certificates of those who have been granted extra marks for taking the examination through Irish would discourage its take-up then that simply re-enforces the arguments made by the complainants. It would also undermine the position taken by the Expert Advisory Group’s suggestion that annotation would promote the use of accommodations. (This group is described below.) In any event a situation exists where some marks adjustments are annotated and some are not, reflecting an inconsistency in the respondent’s approach.
I find that the complainants have established that they were less favourably treated than others without a disability and others with a different disability when their Leaving Certificates were annotated with regard to the aspects of the courses not assessed in terms of Section 3 and Section 5 of the Equal Status Act, 2000. (See Summary below.)
Section 4
Section 4 states:
4. — (1) For the purposes of this Act discrimination includes a
refusal or failure by the provider of a service to do all that is reasonable
to accommodate the needs of a person with a disability by providing
special treatment or facilities, if without such special treatment
or facilities it would be impossible or unduly difficult for the person
to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities
to which subsection (1) refers shall not be deemed reasonable unless
such provision would give rise to a cost, other than a nominal cost,
to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities
to which subsection (1) refers does not constitute discrimination if,
by virtue of another provision of this Act, a refusal or failure to
provide the service in question to that person would not constitute
discrimination.
(4) Where a person has a disability that, in the circumstances,
could cause harm to the person or to others, treating the person
differently to the extent reasonably necessary to prevent such harm
does not constitute discrimination.
(5) This section is without prejudice to the provisions of sections
7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as
they relate to functions of the Minister for Education and Science,
recognised schools and boards of management in regard to students
with a disability.
(6) In this section —
”provider of a service” means —
(a) the person disposing of goods in respect of which section
5(1) applies,
(b) the person responsible for providing a service in respect of
which section 5(1) applies,
(c) the person disposing of any estate or interest in premises in
respect of which section 6(1)(a) applies,
(d) the person responsible for the provision of accommodation
or any related services or amenities in respect of which
section 6(1)(c) applies,
(e) an educational establishment within the meaning of subsection
(1) of section 7 in relation to any of the matters
referred to in subsection (2) of that section, or
(f) a club within the meaning of section 8(1) in respect of admission
to membership or a service offered to its members,
as the case may be, and ”service” shall be construed accordingly;
”providing”, in relation to the special treatment or facilities to which
subsection (1) refers, includes making provision for or allowing such
treatment or facilities, and cognate words shall be construed
accordingly.
Section 4(5)
The respondent argued that Section 4(1) of the Equal Status Act 2000 falls to be construed in conjunction with Section 4(5). Section 4(5) is quoted above but essentially it states that Section 4 is without prejudice to Section 7(2)(a) (among others) of the Education Act 1998, which states:
(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act;
This suggests that the requirement to provide accommodation in accordance with Section 4 of the Equal Status Act 2000 is without prejudice to Section 7(2)(a) which indicates (taking only the immediately relevant parts) that it shall be a function of the Minister to provide support services to students with disabilities as the Minister considers appropriate. Support services are defined in Section 2 of the Education Act 1998. However, Section 7(2) (a) is itself without prejudice to Section 7(1) which states:
7. — (1) Each of the following shall be a function of the Minister under this Act:
(a) to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person,
(b) to determine national education policy, and
(c) to plan and co-ordinate —
(i) the provision of education in recognised schools and centres for education, and
(ii) support services.
This indicates (again taking only the immediately relevant parts) that it shall be a function of the Minister to ensure that support services are available, to each person resident in the State, which are appropriate to meeting the needs and abilities of that person.
The respondent referred me to Mr. Justice John McMenamin’s judgement delivered on 15th June 2005 in respect of O’Carolan v Minister for Education and Science and others. The applicant had alleged that the Minister had breached a duty under Section 7(1)(a) of the Education Act 1998. The Judge stated: “It will be seen that Section 7(1)(a) provides for a function of the Minister. It does not impose a duty.” The Judge goes on to find that even if it was a duty the proposals before him would have complied with any statutory duty imposed on the Minister under that Section. In that case however, what was in dispute was the selection of a service provider to respond to the specific needs of the appellant. In the cases before me no such customised accommodations or services relevant to the assessed needs of the complainants in particular are at issue.
In response the complainants argue that “In the judgement Mr. Justice McMenamin does not decide the question of whether the section imposes a duty on the Respondent to provide the level of services and the particularity of services being sought in that case as it was not necessary for him to do so in the particular constitutional framework. …. Furthermore, although it was not necessary for Mr. Justice McMenamin to decide the question in O’Carolan it is in fact quite clearly established that where a statutory function is created there is a duty on the part of the person in whom the function is vested to perform that function.”
I am satisfied that Section 7(2)(a) taken as required with Section 7(1) is not in conflict with Section 4 of the Equal Status Act, 2000. While the flow of the legislation is convoluted my interpretation is that the Equal Status Act, 2000 requires the provision of reasonable accommodation for students with disabilities, without prejudice to the function of the Minister to achieve this in a manner he considers appropriate, without prejudice to the function of the Minister to ensure that each person has available to them the support services appropriate to meeting the needs and abilities of that person.
While the respondent argued that the purpose of Section 4(5) is to preclude consideration of reasonable accommodation in respect of support services in education in any investigation under the Act, the complainants argued that the effect of the subsection is to remove the nominal cost provision in subsection 4(2) from such considerations. Wherever exemptions are included in the Act, these are generally specific for example those included in Section 6 and Section 14 (a). Had an exemption been intended, the section could simply have said that and I intend to take a purposive approach to this matter. I find that consideration of reasonable accommodation with respect to support services in education is not precluded by Section 4(5).
Section 4, General
While the term reasonable accommodation is not mentioned in the Act it is commonly used to refer to the requirements of Section 4. Considerable confusion has been created by the adoption of the term by the respondent to describe the accommodations they provide. It is a strongly held belief by those in the Department who attended the hearing that what they provide is reasonable accommodation in terms of the Act. This is contested by the complainants who argue that if the accommodations were in fact in line with what is required by the Equal Status Act, 2000 notation of certificates would not be required. (In addition they argue that a proper reasonable accommodation under the Act would require a different form of assessment of those with disabilities.) The difference of opinion arises from the belief in the Department that any reasonable accommodation given in fact confers an unfair advantage on the recipient. This, in my view, is to fundamentally misunderstand the purpose of Section 4. The purpose of reasonable accommodation is to provide for a situation where people with disabilities can avail of the service on an equal footing with those who have no disabilities. It is to remove a disadvantage rather than confer an advantage. It is to allow them to take part on a level playing field while allowing for their disability.
The Department has decided to offer certain fixed, that is inflexible, categories of accommodations and they require all students with disabilities to fit into one of these. Wherever an accommodation exempts the assessment of a core element of the course, they insist that these accommodations confer an unfair advantage on the students with disabilities over their counterparts without disabilities. The annotation of the certificates is said to balance this unfair advantage.
The respondent in this case has argued that the complainants have always had the option not to use the reasonable accommodation but that they elected to do so. However, just as a person in a wheelchair cannot reasonably be expected to elect to use 30 steps as a means of access, neither can a person with dyslexia be expected to elect to be assessed on the one aspect of their ability affected by the dyslexia when an alternative exists.
Does Section 4 stand alone?
It was argued that Section 4 cannot stand alone without Section 3 of the Equal Status Act 2000. I am satisfied that Section 4 provides for another quite different type of discrimination than that covered by Section 3. Section 3 provides for all situations where less favourable treatment arises. Section 4 provides for situations where treating a person with a disability the same way as you treat people without disabilities creates an inherent unfairness. These provisions are quite different and nowhere in Section 4 is there a requirement that Section 3 must first apply or vice versa. Neither is there provision for compliance with Section 4 providing a get-out-of-jail-free card with regard to any less favourable treatments arising under Section 3. Therefore, with regard to the five key issues I have adopted to identify whether or not a prima facie case has been established in the section called Prima Facie Case above, I am satisfied that the correct approach is that either numbers (i) along with (ii) and (iii) or numbers (i) and (iv) along with (v) would, in general, be sufficient to establish a prima facie case of discrimination. In this case, however, I find that it is necessary to look at both.
Impossible or Unduly difficult?
The respondent asks what was it about the service provided that made it impossible or unduly difficult for the complainants to avail of it. The complainants argue that because of their disability sitting the examinations without any accommodation would have been unduly difficult for them. I am satisfied, based on the evidence presented, that the complainants would have found the relevant examinations unduly difficult without accommodation. However, having availed of the reasonable accommodation in question the complainants were able to sit the examinations. So an accommodation was provided by the respondent which facilitated the sitting of the examinations by the complainants and their certificates were annotated. The latter arrangement has been dealt with under Section 3 of the Equal Status Act 2000. The former still begs the question does the accommodation provided amount to reasonable accommodation under the Act.
What should have been provided that was not?
The complainants argue that if reasonable accommodation was applied properly to people with disabilities the Department would be required to provide different methods of assessment to take account of the various disabilities. With regard to what nominal cost might be the Tribunal has always looked at the capacity of a respondent to meet such costs and has decided such issues on a pro rata basis with large organizations being expected to carry a larger nominal cost. No evidence of such costs was presented to me and in any event I have only the complaints relating to two complainants before me. I cannot go further to consider a type of class action on behalf of any person with a disability.
In their treatment of the O’Carolan case the complainants argued that :
“where a statutory function is created there is a duty on the part of the person in whom the function is vested to perform that function.”
They go on:
“This has been construed by the Courts in other contexts as requiring that all reasonable steps to give effect to the function are taken. The Tribunal is specifically referred to the decision of Mr. Justice Flood in the case County Meath VEC v. Joyce [1997] 3 IR 402 in this regard in which he found in relation to the Housing Acts that although no express statutory duty was created there was “an implied statutory function” which function was implied by reference to the purpose of the legislation and was required to be exercised in a reasonable manner to achieve the purpose of the legislation.”
As I have found that Section 4 without prejudice to S7(2)(a) which is without prejudice to Section 7(1) is applicable, what remains to be addressed is whether or not the Minister provided reasonable accommodation or whether he has taken all reasonable steps to give effect to the relevant functions.
Although the complainants were able to sit their examinations once the accommodation was granted I am not satisfied that the accommodations available were in all respects appropriate. Given that the students applying for special accommodations are each individually assessed at present by the National Educational Psychological Service, (NEPS), to ensure they are eligible for the accommodation applied for, given also the respondent’s fears of providing an accommodation which is greater than what is actually required by a student to avail of the service and given that the accommodations are not specifically meeting the needs of the individuals using the service, I am not satisfied that the respondent has done all that is reasonable to accommodate the needs of the complainants. However, the complainants were able to sit their examinations and provision was made to take account of their disability. Therefore it was neither impossible nor unduly difficult for them to take the examination.
I find that the complainants have failed to establish a prima facie case of discrimination in terms of Section 4 of the Equal Status Act, 2000.
Prima Facie Case – Summary
The annotation of the complainants’ certificates indicates that their score was not achieved in standard conditions and implies that their score does not reflect the same achievement as it would for a student without the note. The annotation of the certificates is directly relevant to the complainants’ disability in that it was applied because they had attempted to sit the examinations in a manner that took account of their disability. I am satisfied that the certificates, as issued, constitute less favourable treatment of the complainants when compared to others issued with certificates without annotation satisfying (iii) above. I find that the complainants have established facts from which it can be presumed that prohibited conduct has occurred and therefore they have established a prima facie case of discrimination on the disability ground in terms of Sections 3 and 5 of the Equal Status Act, 2000.
Respondent’s rebuttal
The respondent has argued that the annotation is required to present a student’s results accurately and to avoid misleading the end-user. It is a necessary balance to protect the integrity of the examination certification system. The Central Applications Office is possibly the largest single end-user of leaving certificates and that Office is provided with the Leaving Certificate results including the annotations when the information is transferred to them electronically by the respondent. However, it appears they ignore this information as an indicator of disability and collect that information from applicants directly. They do, however, accept the grade presented on the certificate without taking account of the mark adjustment indicated by the note. Therefore the CAO apparently does not require this information to be provided by the respondent. The respondent indicated during the hearing that no research has been done to assess whether or not the annotation is of use to other end-users or whether it achieves their goals of maintaining the credibility of the exam system. In the Expert Advisory Group’s (see below) discussion document and report in relation to the assessment of candidates with special needs this annotation is posited. There is no supporting research or justification for it in either document. The Group’s report was adopted by the Minister and has remained in practice since. When asked how many appeals against this annotation have been successful the respondent replied none. Therefore it appears that annotation has been adopted by the Department as best practice and although they advise that all aspects of the process can be appealed, the practice of annotating certificates is absolute and has never successfully been appealed. This position appears to be without foundation or supporting research other than the assertion that it maintains the integrity of the system.
The respondent has failed to present any evidence in support of their assertion that the annotation is necessary to maintain the integrity of the certification process. They have failed to present any evidence that the annotation actually achieves this goal.
Annotations arose as a result of the adoption of the Report of the Expert Advisory Group on Certificate Examinations by the Minister for Education as policy. This Group had originally been established in 1997 and it was asked by the Minister in 1998 to prepare a discussion paper on special arrangements for students with special needs. A Discussion paper was prepared which originally mentioned the annotation and in January 2000 a report was submitted to the Minister. The Report stated that “Most, but not all, submissions were opposed to indicating on certificates that candidates had taken an examination under special circumstances.” No mention is made as to whether the remainder who did not express opposition were in favour of annotation or whether they simply did not reference it. It is not clear why a group of individuals making up the expert group who were initially considered expert in relation to the certificate examination in standard circumstances were also considered expert in respect of examinations taken in special circumstances. Nor is it clear why that group did not need to include new members with expertise in dealing with the assessment of students with special needs to take account of any inherent biases in relation to standards of assessments normally applied and when, or indeed whether, these can be waived.
In their report the Group laid down inter alia the following principles:
“3. Special arrangements should not put the integrity, status or reputation of the examination at risk.
5. Special arrangements are designed to assist a candidate in demonstrating his or her achievements in an examination setting. They are not designed to compensate for a possible lack of achievement arising from a disability.
6. Since a core principle of the Certificate examinations is to ensure equitable treatment for all candidates, arrangements should not give the candidate for whom they are made an advantage over other candidates.
10. A candidate’s disability may be such that it is not possible for him or her to participate in a particular mode of assessment (an aural examination for a candidate with severe hearing impairment), in which case it should be open to a candidate to apply for an exemption from part of the assessment procedure.
11. An alternative procedure is not acceptable where the purpose of an examination would be compromised by its use (e.g. reading a test of reading comprehension to a candidate with a specific reading difficulty).
12. When an element or elements of an examination have been waived, so that the purpose of the examination regarding that element or elements has not been met, or the method of examining has been significantly altered, this should be indicated by the presence of an explanatory note on the candidate’s certificate of results.”
The Respondent’s submission in referring to this report states:
“Under the heading “Treatment and Reporting of Candidate Performance” the Expert Advisory Group stated that those submissions that expressed the view that certificates should not carry an annotation concerning special arrangements seemed to be based on the view that annotation on a certificate always works to the disadvantage of a candidate. The Report went on:
“This, however, is not the case. A scheme in which annotation is applied to certificates can serve to expand the capacity for special arrangements. Furthermore, users of the certificates (e.g. universities) are often prepared to make special provision for candidates when they know that such provision is required.”
The Report concluded in relevant part: “It should be noted on certificates of results if an element or elements of an examination have been omitted or the method of examining has been altered in a substantial way.” While this conclusion, and the reasoning underpinning it, is disparaged on Complainant B’s behalf in the Complainant’s submissions, no countervailing expert opinion is relied upon in doing so.”
While it is correct to say that the complainants did not present countervailing expert opinion, it is also true to say that the respondent has not presented any expert evidence to show how annotation is intended to achieve the goals set it such as maintaining integrity if the examination system and maintaining equality of treatment among students. As previously mentioned, neither has there been any surveys or research into how end users view these goals. It appears that the assertion was made by the Expert Group, without reasoning, after their research into the processes in place in other jurisdictions that certificates should annotated where considered appropriate. No explanation is available as to how annotation could serve to expand the capacity for special arrangements. I have mentioned above that the CAO does not appear to use the footnotes to the certificates as an indication that the holder requires special provision and collects this information from the applicants directly for passing on to the relevant university or college. Indeed the statement “Furthermore, users of the certificates (e.g. universities) are often prepared to make special provision for candidates when they know that such provision is required” appears to suggest that the Expert Group were under the impression that the footnotes were to be used as an indicator that the certificate holder was a person with special needs. This in turn suggests that even though they felt the footnote could indicate a disability they still felt that it should be highlighted. (It should be noted that the Expert Group Report was submitted to the Minister in January 2000 while the Equal Status Act was enacted in October 2000.)
Principle 6 above states :
Since a core principle of the Certificate examinations is to ensure equitable treatment for all candidates, arrangements should not give the candidate for whom they are made an advantage over other candidates.
This is a central theme throughout the respondent’s documents wherever this matter is dealt with. My own reading of these references were such that it was intended that no accommodation should provide the recipient with an unfair advantage but that where their disability was such that an accommodation would allow them to start on an equal footing then no unfairness would arise. In other words the removal of a disadvantage would be acceptable. However, it was clear at the hearing that some accommodations given are considered to confer an unfair advantage to the recipient. This principle as is worded, combined with the respondent’s position about unfair advantage, seems to leave no room for the offering of accommodations in situations where equal treatment would produce an inherent unfairness. I find that this is in direct contradiction with Section 4 of the Act.
In July 2001 the Task Force on Dyslexia, appointed by the Minister for Education and Science to consider the issue of dyslexia, delivered its report. It included the following two recommendations:
Establishment of an Appeals Procedure
In the short term
17) The Department of Education and Science should establish an independent procedure to deal with appeals instigated by parents of children with learning difficulties arising from dyslexia who are dissatisfied with the response of the system to their children’s needs.
Provision of Reasonable Accommodations in State Certificate
Examinations
In the short term
18) In light of recent equality legislation, the Department of Education and Science should refer to the Director of Equality and the National Disability Authority the practice of appending explanatory notes to the certificates of candidates with specific learning difficulties, including those arising from dyslexia, who are granted certain accommodations in state examinations.
In respect of recommendation 17, the following is what was included in the respondent’s Circular S11/2000 introducing the new exemptions in paragraph 5 headed “Changes to the Appeal procedures”:
…The Minister has decided that in future the entire [appeal] group should be drawn from outside the Department. The remit of the appeal group will cover appeals against all elements of a decision regarding special arrangements including any proposed inclusion of an explanatory note on an examination certificate. The appeal group will be required to consider all cases in light of principles set out by the Expert Advisory Group.”
Also in respect of recommendation 17, the following is what is currently available on the respondent’s website in respect of all appeals relating to accommodations:
In cases where a school/parent or candidate is dissatisfied with any aspect of the Commission’s decision in relation to an application for reasonable accommodations, they have access to an independent appeals forum. All members of the appeals group are drawn from outside the Commission. The remit of the appeals group covers appeals against all elements of a decision taken by the Commission, including any proposed inclusion of an explanatory note. All appeals are considered in light of the principles set out by the Expert Advisory Group.
The ‘Commission’ refers to the State Examinations Commission which is the non-departmental public body under the aegis of the Department of Education and Science that has taken over responsibility for examination arrangements which were formally handled by the Department. Both statements above indicate that the appeal process is independent with regard to its personnel. However, since all appeals are considered in the light of the principles of the Expert Advisory Group, and since no appeals relating to annotation have been successful when considered in this light, it would appear that the group is not independent in relation to its operation since it appears to abide by what I believe is simply an unreasoned assertion in the Report that any exemption should be indicated by the inclusion of an explanatory note. This suggests a failure to observe the rules of natural justice and audi alteram partem in particular. I note that this process relates only to applicants who are disabled.
Recommendation 18 suggested revisiting the annotation issue given the Equal Status Act, 2000. The Department stated that they were at all times content that the issue was in accordance with the Act and no reconsideration of the matter took place.
Section 5 (2) (h)
The subsection states:
“5. — (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
(2) Subsection (1) does not apply in respect of —
…………….
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,”
A reading of Section 5 leads to the understanding that it provides for the more favourable treatment of persons belonging to a category of persons in order to promote the interests of that category of persons in a bona fide manner so long as the differences in treatment are necessary to promote their special interests. One would expect complaints in respect of such treatment to originate from persons not in the category since they would by definition be treated less favourably. Could differences in treatment as mentioned in the
Section be intended to include less favourable treatment? While a literal interpretation would suggest that it could, it would be nonsensical since the less favourable treatment would have to be provided for the principal purpose of promoting the special interests of persons in the category.
However, the respondent has presented this as a defence in respect of the claims from the complainants and the category of persons to which they belong.
Throughout this decision I have not accepted that the bundling of what is allegedly more favourable treatment with other treatment can provide cover for less favourable treatment. However, it is my view that it is irrelevant whether the annotation and accommodation be looked at separately or bundled together for the purposes of this Section since neither can be said to have promoted the interests of students with dyslexia or disabilities. The accommodation could arguably be seen as a facility which allowed the complainants sit their examinations without undue difficulty. The complainants did not request that their special interests be promoted. They simply requested access to a service available to others in such a way as would remove any undue difficulty for them arising from their disability. It is difficult to see how the ordinary meaning of the words could be stretched to perceive that facility as a promotion of their interests. In addition, no evidence was presented to show that it is reasonably necessary to annotate certificates in order to promote their special interests were these seen to apply. I am satisfied that Section 5 (h) does not provide a defence for the respondent in this case.
Section 14
14.- Nothing in this Act shall be construed as prohibiting –
(b) preferential treatment or the taking of positive measures
which are bona fide intended to —
(i) promote equality of opportunity for persons who are,
in relation to other persons, disadvantaged or who
have been or are likely to be unable to avail themselves
of the same opportunities as those other persons, or
(ii) cater for the special needs of persons, or a category
of persons, who, because of their circumstances, may
require facilities, arrangements, services or assistance
not required by persons who do not have those
special needs.
This provision is similar in thrust to that of Section 5(2)(h) in so far as it provides for more favourable treatment of certain persons and, again, one would expect complaints to which it relates to originate with persons not receiving the more favourable treatment. As mentioned above I have not accepted that the bundling of what is allegedly more favourable treatment with other treatments can provide cover for less favourable treatment. The wording of the Section is so specific as to leave little room for misinterpretation. It deals with preferential treatment or the taking of positive measures for the promotion of equality of opportunity of disadvantaged persons or the catering for special needs of persons. The relevant persons in this regard are the complainants. The issue of annotated certificates cannot be seen as a positive measure and does not promote equality of opportunity for them nor does it cater for their special needs. I do not accept that this Section provides a defence for the less favourable treatment of those whose interests it aspires to protect. I find that Section 14 does not provide a defence for the respondent in this case.
I am satisfied that the respondent has failed to rebut the prima facie case of discrimination on the disability ground which the complainant’s have established.
Decision DEC-S2006-077
The schemes and processes introduced by the Department over the past number of years to take account of the many disabilities which may present in students taking the certificate examinations should be recognised. These indicate a recognition by the Department of the difficulties faced by these students and a willingness to address them. Indeed their efforts were explicitly recognised by the complainants’ representatives. However, the case was presented in accordance with statute and I am required to issue a decision.
I find that the respondent has discriminated against the complainants in terms of Sections 3 (1), 3(2)(g) in relation to the provision of services in terms of Section 5(1) by annotating their Leaving Certificates with a reference to the aspects of the courses not assessed.
I hereby make the following order in accordance with Section 27 of the Equal Status Act, 2000:
– The respondent is hereby directed to pay each of the complainants €6000 as compensation for the discrimination.
– The respondent is hereby directed to issue new Leaving Certificates to the complainants without the relevant notations.
– The respondent is hereby directed to ensure that all aspects of its appeal process conform with the rules of natural justice, in particular audi alteram partem, instead of adhering rigidly to the principles set out by the Expert Advisory Group regardless of the appellant’s case.
– The respondent is hereby directed to formally investigate the feasability, with a view to its implementation, of creating and implementing a system which can create an individually suited accommodation or group of accommodations which meet the needs of each particular student applying for accommodation, based on their individual assessment, rather than the current practice of assessing each applicant student to grant access to a pre-existing accommodation.
– The respondent is hereby directed to ensure that the range of accommodations which is available at present for students with disabilities continues to be available. This Decision should not serve to justify any regression in relation to the situation which already prevails.
Bernadette Treanor
Equality Officer
3rd November 2006
DEC-E2010-008 – Full Case Report
THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2010 – 008
Colgan v Boots Ireland Ltd.
(represented by Ms Tracy Ennis Faherty B.L., instructed by O’Sullivan Barnicle Solicitors and the respondent’s in-house legal service)
File Reference: EE/2007/222
Date of Issue: 1st February 2010
Claim
1.1. The case concerns a claim by Mr Gary Colgan that Boots Ireland Ltd. discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of failure to provide reasonable accommodation and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 4 May 2007. A submission was received from the complainant on 7 January 2008. On 21 January 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. A supplementary submission was received from the complainant on 21 October 2009. A submission was received from the respondent on 25 November 2009. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 2 December 2009. Additional evidence was requested from the respondent at the hearing and received on 8 December. The complainant was given until 11 January 2010 to make comments or observations on the additional evidence, but did not avail of this option. Once it was clear that the complainant had no further observations, I proceeded with my deliberations.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he sustained an injury on his ankle on 24 November 2006, when a cage fell onto it. He was then dismissed on 8 December 2006. The complainant contends that the respondent did not afford him reasonable accommodation, and that he was dismissed because of his disability.
3. Summary of the Respondent’s Written Submission
3.1. The respondent disputes that the complainant’s injury constitutes a disability within the meaning of the Acts. The respondent further submits that the complainant, who was employed on a 13-week fixed term contract, had his employment terminated due to a re-organisation of work within the respondent organisation. It is the respondent’s case that 13 other temporary workers had their employment terminated on the same date as the complainant, and for the same reason. The respondent denies therefore that the termination of the complainant’s employment is in any way connected to the disability ground as defined by the Acts.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of disability within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In the case on hand, this includes making a finding as to whether the complainant was suffering from a disability as defined in the Acts when the alleged act of discrimination occurred.
4.3. The evidence relating to the complainant’s potential disability can be summarised as follows: There is no dispute that the complaint sustained an injury when the cage fell onto his ankle and punctured the skin on 24 November 2006. These are large, light-weight cages on castors designed to transport lightweight goods of large volume – like Christmas decorations as was the case for the complainant. The day the accident occurred was a Friday. After receiving initial first aid on site (a bandage and a cold pack), the complainant attended the A&E department of Beaumont Hospital, where he was attended to by a nurse practitioner. The nurse practitioner gave the complainant pain medication and further bandages and discharged him home. There was no follow-up appointment.
4.4. The complainant then had the weekend off as rostered and reported to work again on Monday, 27 November 2006, without taking sick leave. In cross-examination, the complainant said that he needed the money from his employment. He did not request any light duties. In response to a direct question from the Tribunal, he said he did not do so because it was “easy enough work”; however, in cross-examination later in the hearing he stated that he was afraid to ask for any adjustment to his duties for fear of being fired. The complainant stated that he was in pain, that he found it difficult to put his work boots on, and that he walked with a limp. This lasted for about three weeks.
4.5. On 23 January 2007, the complainant attended Dr G., a Consultant in Emergency Medicine in Beaumont Hospital. Dr G. found on examination, according to a report furnished to the Tribunal, that the complainant “was able to walk on his tip toes, he had a normal examination of his ankle, he was noted to be minimally tender over the achilles tendon, he had a 5mm wound which was well healed on the lower part of the skin over the achilles tendon. There was no infection of the scar.” Dr G. further noted that he did not expect that the complainant should have any ongoing disability arising from the accident.
4.6. Counsel for the complainant submitted that the above should be interpreted in light of paragraph (c) of the definition of disability in S. 2 of the Acts, which defines disability as “a malfunction, malformation or disfigurement of a part of a person’s body”. The Tribunal was asked to view the injury to the ankle as malfunction, and the scar as disfigurement. Counsel further submitted that the definition of disability in the Acts allows for a state of temporary disablement which, it was submitted, existed for the complainant at the period of time following his accident.
4.7. Counsel for the complainant also drew the attention of the Tribunal to the Labour Court decision of Customer Perception Limited v. Ms Gemma Leydon [EED0317]. In that case, Ms Leydon had worked for the appellant in a business development executive role that required a substantial amount of travelling. In April 2001, she suffered a car accident, as a result of which she was hospitalised for a number of days. She sustained injuries which limited her mobility in her neck, shoulders and back for several months. Her car was written off. Upon release from the hospital, the complainant took time off to complete her college degree, and met with the appellant’s managing director on 1 June 2001, and again on 19 June 2001, to discuss her return to work and her need to be facilitated with time off work to complete a course of physiotherapy treatments. Ms Leydon’s contract of work was subsequently terminated, which gave rise to a complaint of discriminatory dismissal.
4.8. In its reasoning, the Court addressed the question whether Ms Leydon was suffering from a disability within the meaning of the Acts. Ms Leydon’s representative relied on the definition as given in paragraph (c), quoted in paragraph 4.6 above. The Court found that
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a Court of Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter, or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
[…]
Taking the ordinary and natural meaning of the term malfunction (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.
4.9. When one compares the Leydon case to the facts of the case on hand, it becomes clear that the injuries sustained by the respective complainants are very different in severity and impact. Ms Leydon required in-patient hospital treatment and follow-up physiotherapy care. Her mobility was limited for several months. The complainant, on the other hand, was sufficiently treated by the application of first aid, and the attention of a nurse practitioner, without further follow-up, and no time missed from work. He did not request any light duties. With regard as to why he did not do so, I prefer his initial answer in response to my direct question, that this was so because it was “easy enough work”. This is also borne out by the subsequent description of the complainant’s work given by his immediate manager, and by the sketch of the layout of the respondent’s warehouse, which clarified the fairly short distances the complainant had to walk in his work, and which was not disputed by the complainant.
4.10. In making a finding on this matter, I feel bound by the literal interpretation which the Labour Court gave to the meaning of “malfunction” in Leydon. I therefore accept that, following his accident, the complainant sustained a for a short amount of time a minor malfunction of a body part. However, I do not find that the complainant’s injury is of sufficient significance for him to establish a prima facie case that, while that situation lasted, he was disabled within the meaning of the Acts. In so finding, I am guided by the finding of the European Court of Justice in Sonia Chacón Navas v. Eurest Colectividades SA [C-13/05], where the court found that “sickness cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 establishing a general framework for equal treatment in employment and occupation prohibits discrimination.” While I note that the definition of disability in the Acts is wider than that in the Directive, I attach importance to the finding of the court that for a “limitation to fall within the concept of ‘disability’, it must … be probable that it will last for a long time.” As noted in paragraph 4.4 above, the complainant did not avail of sick leave, nor did he even request lighter duties, and there is no dispute that the minor limitations the complainant experienced following his accident did not last longer than three weeks.
4.11. With regard to counsel’s argument that the 5mm scar on his client’s ankle constitutes a disfigurement, I do not accept that such a small scar in a place like someone’s ankle is a disfigurement that engages the protection of the Acts. To follow counsel’s argument would mean, to give just one example, that anybody who has ever undergone an appendectomy would gain lifetime status as a disabled person within the meaning of the Acts on the notion that the appendectomy scar is a disfigurement. This can scarcely have been the kind of protection of disabled persons envisaged by the Oireachtas when passing the Acts. Rather, I am satisfied that the inclusion of “disfigurement” in the disability definition of the Acts is intended to protect the employment of persons with outwardly visible deformities of any kind which, while not impairing them functionally, could cause others to form prejudice against them in the course of their employment. I am therefore satisfied that the complainant has not established a prima facie case that he is disabled on the basis that this small scar on his ankle is not a disfigurement within the meaning of the Acts.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against, or discriminatorily dismiss, the complainant on the ground of disability contrary to Sections 8(1) and 8(6) of the Acts.
________________________
Stephen Bonnlander
Equality Officer
1 February 2010
DEC-E2006-042 – Full Case Report
X v AN ELECTRONIC COMPONENT COMPANY
(REPRESENTED BY IBEC)
1. DISPUTE
This dispute involves a claim by Ms. X that that she was dismissed by the respondent in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts, in February, 2005.
2. BACKGROUND
2.1 The complainant applied for the position of temporary process operator with the respondent in February, 2005. She attended for interview and was successful. She completed a pre-employment medical on 15 February and attended a manual handling training course the next day. She was requested to attend a meeting with the respondent’s Human Resource Manager on 18 February during which she was dismissed. She contends that the respondent imputed a disability to her (back condition) and this was the basis on which it terminated her employment. She submits that this constitutes unlawful discrimination of her contrary to the provisions of the Employment Equality Acts, 1998 and 2004. The respondent rejects the complainant’s assertion and contends that the complainant failed to disclose certain issues in her medical declaration and this constituted a fundamental breach of trust between the parties. It submits that its decision to terminate the complainant’s employment was not based on any discriminatory factors and is not therefore contrary to the employment equality legislation.
2.2 The Equality Authority referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on behalf of Ms. X on 21 July, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 3 August 2006.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant applied for the position of temporary process operator with the respondent in February, 2005. She attended for interview on or around 10 February and was informed she was successful. She completed a medical examination within a week of interview during which she had her vision, hearing and blood pressure checked and her weight/height recorded by an Occupational Health Nurse. She also completed a pre-placement medical questionnaire in which she disclosed her medical history. She states she was not asked any questions about back problems and indicated that she did not suffer back pain/sciatica on the questionnaire because in her view she did not/had not previously suffered from those conditions. The complainant states that she attended a Manual Handling Training Course on 16 February, 2005. This course was delivered by Ms. F, the respondent’s Training Instructor and the complainant successfully completed both the practical and written elements of the course. She states that during the course of the training the Instructor told her on 2/3 occasions to sit up straight so as not to damage/strain her back. She adds that during a break she spoke with the instructor privately and informed her (i) she had difficulty sitting straight because she is heavy chested and she naturally slouches (ii) the issue was cosmetic, not medical and she was exploring options around breast reduction and (iii) she did not have a back problem.
3.2 The complainant states that she received a telephone call from the respondent’s Occupational Health Nurse (OHN) on 17 February, 2005 during which she told the complainant she was annoyed she (the complainant) had not disclosed her back problem on the medical questionnaire. The complainant adds that she informed the OHN she did not suffer from a back problem and that was why she answered the questionnaire in the manner she did. She states that a meeting with the respondent HR Manager was arranged for the next day 18 February, 2005. Prior to this meeting the complainant obtained a letter from her General Practioner (GP) stating that she was fit for employment. The complainant accepts that this letter indicates she had attended her GP in about a year earlier with “mild thoracic pain” but states that it was once off, no abnormalities were found and she had forgotten she had attended. The complainant states she met with Mr. M, the respondent’s HR Manager and Ms. L, another official from the HR Department on 18 February. She handed Mr. M the note from her GP and re-iterated what she had said to Ms. F a couple of days earlier. She states that after a short recess Mr. M informed her that her employment was terminated. She adds that she received confirmation of this a couple of days later in a letter dated 18 February, 2005.
3.3 The complainant states that her mother telephoned Mr. M that afternoon and he informed her that the complainant had been dismissed because she had failed to disclose a back problem in her medical questionnaire. She contends that Mr. M agreed to review the complainant’s situation on the return of the respondent’s OHN and he would revert to her. The complainant states that Mr. M never made any further contact with her. She submits that the respondent, when faced with conflicting information about whether or not the complainant had a back problem, should have conducted a comprehensive medical examination before deciding to dismiss her. She argues that the respondent therefore imputed a disability to her and having done so it failed to explore the concept of “reasonable accommodation” for her in order to determine whether or not she was competent and capable of performing the duties attached to post. She submits that this constitutes less favourable treatment of her on grounds of disability, contrary to the Employment Equality Acts, 1998 and 2004.
4 SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertion that it discriminated against her on grounds of disability. It states the reason it dismissed the complainant was she failed to disclose in the course of the pre-employment medical questionnaire that she had a back problem. It adds that the questionnaire, which is a signed declaration by a prospective employee of his/her medical history, clearly indicates that failure to disclose any issues could result in termination of one’s employment. The respondent states that when Ms. F asked her to sit up straight in the seat in the course the manual handling training the complainant subsequently told her that she (the complainant) suffered from a curvature of her spine due to the size of her breasts and she would be having an operation to reduce them. The respondent contends that the complainant purposely withheld important information from it and that this constituted a breach of trust between the parties which warranted dismissal. It adds that the letter from her GP confirms that the complainant had a back problem.
4.2 The respondent states that it has a policy to attempt to accommodate employees with a disability as long as it is aware of those issues. It adds that it participated in the “Supported Employment Scheme” in 2002 and has current employees with a variety of disabilities. Duties and working arrangements are modified following discussion between the various managers, the HR Department and the Occupational Health Nurse in an effort to accommodate such employees. It further states where the pre-employment medical process indicates any issues the respondent will explore them with the OHN and it Occupational Health Physician before making a final decision. It adds that this did not happen in the complainant’s case because the need was not highlighted by the complainant in the questionnaire.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts, in February, 2005. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 sets out the out the procedural rules to be applied in respect of the burden of proof to be discharged by the parties in proceedings under the Acts. It requires the complainant to establish, in the first instance, facts from which it can be inferred that she was treated less favourably on the basis of the discriminatory ground cited. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 Section 2 of the Acts defines “disability” as inter alia, “the malfunction, malformation or disfigurement of a part of a person’s body”. In my opinion, if a person suffered from a curvature of the spine, such a condition would fall within the definition of disability for the purposes of the Acts. Section 6 of the Acts provides, inter alia, as follows:
“(1) For the purposes of this Act …….. discrimination shall be taken to have occur where –
(a) a person is treated less favourably that another person is, has or would be treated in a comparable situation on any of the grounds specified in subsection (2) ….. ‘the discriminatory grounds’) which –
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned ……..”
The respondent states it became aware through Ms. F that the complainant suffered from a curvature of the spine and Ms. F gave evidence that the complainant had informed her of this on 16 February, 2005. If this is the case, then at that time the complainant had a disability for the purposes of the Acts. If, as the complainant contends, she did not say she suffered from this condition, then in my view the respondent, by taking the word of Ms. F over the complainant and in the absence of any medical opinion, imputed a disability to the complainant. Either way, I find that the complainant is covered by the definition of disability for the purposes of the Act.
5.4 The respondent accepted at the Hearing that the complainant successfully completed the manual handling training course and was considered competent and capable of performing the tasks associated with the post. It states that its decision to terminate her employment was because she had deliberately withheld information about her “back problem” from it. It seems unlikely to me that the complainant would (i) withhold the information at the pre-medical assessment, when she had disclosed other medical history, (ii) tell Ms. F (the next day) that she suffered from a curvature of the spine, (iii) go to her GP to obtain a letter stating the opposite to be the case, but indicating that she had presented a year earlier with mild isolated pain in the shoulder area and (iv) argue so vehemently with Mr. M in the course of the meeting on 18 February, 2005 that she did not suffer from a back problem. In addition I note the evidence of Dr. F, Occupational Health Physician, at the Hearing who stated that he examined the complainant on 26 June, 2006 and she did not have a curvature of the spine. He added that in his opinion the complainant did not suffer from such a condition in February, 2005 and he found no evidence in the course of his examination of her to suggest otherwise. Having assessed all the evidence presented on this issue I prefer, on balance, the complainant’s version of events – i.e. that she informed Ms. F she slouched because of the size of her breasts but that the matter was cosmetic, not medical in nature and that she did not suffer from a back condition. On the basis of my comments above I find that the respondent imputed a disability to the complainant.
5.5 Section 16 of the Acts state that a person with a disability shall be considered fully competent and capable of undertaking the duties attached to the post, if the person would be so fully competent and capable where the employer provides reasonable accommodation (appropriate measures) which do not impose a disproportionate burden on the employer. I note the respondent stated in the course of the Hearing that it did not give any consideration whatsoever to providing reasonable accommodation to the complainant and it therefore cannot rely on the defence provided in that section of the Acts.
5.6 I must now examine whether or not the complainant’s imputed disability was a factor in the respondent’s decision to terminate her employment. The respondent states that the complainant deliberately withheld information about her back problem and I have dealt with this in paragraph 5.4 above. In A Government Department v An Employee (Ms. B) (1) the Labour Court took account of the decision in Nagarajan v London Regional Transport in holding “that the proscribed ground need not be the sole or even principal reason for the conduct impugned, it is enough that it is a contributing cause in the sense of being a significant factor”(2). Having evaluated the evidence presented by both parties I am satisfied that the complainant’s imputed disability was a significant factor in the respondent’s decision to dismiss her. When faced with conflicting information about the contents of the discussions between the complainant and Ms. F, the respondent acted in an impetuous manner and did not, in my view, make adequate enquiries as to the actual fitness of the complainant for the post, an option it could have availed of by referring the complainant to its own Occupational Physician – a process I note it states it would have applied had the complainant declared any ailment on the pre-employment medical questionnaire and a process it had used previously. In light of the foregoing I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. Before leaving this matter I feel it necessary to say that the operation of pre-employment medical examinations/ questionnaires are not per se unlawful. In some circumstances it is necessary for an employer to determine the capability of a prospective employee to perform certain duties or, as the respondent indicated, to examine what needs to be done to accommodate someone with a disability and those mechanisms facilitate those issues. However, employers should exercise caution when using the information obtained from such procedures so as not to fall foul of employment equality legislation.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. I note that the post was temporary in nature and was for a period of 6 months. I am of the view that the financial redress I can order should reflect the fact. I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998 and 2004 that the respondent pays the complainant the sum of €15,000 by way of compensation for the effects of the discriminatory treatment on her, €10,000 of which reflects the loss of income on the part of the complainant (I note she was unemployed for a period in excess of 6 months after the dismissal) and €5,000 for the distress suffered by her as a result of the discriminatory treatment.
____________________________
Vivian Jackson
Equality Officer
8 September, 2006
notes
(1) EDA061
(2) [1998] IRLR 73
Cases Reasonable Accomodation
Roads v Central Trains Ltd.
[2004] EWCA Civ 1541 104 Con LR 62, (2005) 21 Const LJ 456, [2004] EWCA Civ 1541, (2004) 104 Con LR 62, 21 Const LJ 456 Sedley LJ
The questions of principle
It is desirable first to say something about the cross-appeal. Manifestly no single feature of premises will obstruct access for all disabled persons or – in most cases – for disabled persons generally. In the present case, for instance, the footbridge is not likely to present an insuperable problem for blind people. The phrase ‘disabled persons’ in section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability: here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual claimant is that section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability – impaired vision, impaired mobility and so on. Thus the practical way of applying section 21 in discrimination proceedings will usually be to focus the question and the answer on people with the same kind of disability as the claimant.
The personal right created by section 19 of the DDA operates by fastening a cause of action on to the section 21 duty if the effect of a breach of the duty is “to make it impossible or unreasonably difficult for the disabled person to make use” of the service in question. Thus there is a double test, albeit both limbs use the same phraseology: first (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the claimant?
There is a further question of the meaning and effect of section 21(2). What paragraph (d) requires the service provider to do is “provide a reasonable alternative method” of – in this case – access to the eastbound line. Central Trains’ fundamental position was that the station at Ely afforded this, and that this was enough to satisfy the Act. But, as Mr Coppel fairly and rightly accepted, what is reasonable in this special field of law is not always straightforward. Where there is only one practicable solution, it may have to be treated as reasonable even if it is demeaning or onerous for disabled people to use it. If on the other hand there is a range of solutions, the fact that one of them, if it stood alone, would satisfy section 21(2)(d) may not be enough to afford a defence. This is because the policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore [2002] Fam 1, §105: “to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large”. While, therefore, the Act does not require the court to make nice choices between comparably reasonable solutions, it makes comparison inescapable where a proffered solution is said not to be reasonable precisely because a better one, in terms of practicality or of the legislative policy, is available. That was this case.
Against this backdrop, I agree that the judge should have addressed the question of impeded access in relation to wheelchair users as a class before asking and answering it in relation to Mr Roads.The two questions then were:
A. Is it impossible or unreasonably difficult for wheelchair users to use the Station Lane route to get to platform 1?
B. If it is, had Central Trains taken such steps as it was reasonable for them to have to take in order to provide an alternative means of access for wheelchair users?
Both of these questions arise under section 21(2). If they are answered against Central Trains, the judge’s findings entitle Mr Roads to succeed under section 19(1), which makes it:
“… unlawful for a provider of services to discriminate against a disabled person –
…
(b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service …”
It is not disputed that such a failure would amount to discrimination within the meaning set out in section 20.
The evidence
Until 1994 there was a barrow-crossing over the track at one end of the platforms, which might have answered Mr Roads’ problem subject to considerations of safety; but in that year Railtrack closed it. The only way from the south side of the station to platform 1 for those who cannot use the footbridge has since then been the Station Lane route. The sections of road making up that route are not all in Central Trains’ occupation or under their control, so they cannot do anything about its surface. Instead they offer this solution: to take the train west to Ely where there are full facilities for wheelchair-dependent passengers, and to change to the Norwich line there. This option is provided free of extra cost, but it adds over an hour to the 36 minutes ordinarily required for a rail journey from Thetford to Norwich.
It is Mr Roads’ case, in these circumstances, that when he wishes to travel back to Norwich from platform 1 at Thetford, and provided he has given them adequate notice of his requirement, Central Trains should make available to him a taxi adapted for carrying a wheelchair. The evidence before the judge was that no suitably adapted taxi is licensed in the Thetford area. The nearest one is in Norwich, from where it would have to come and to where it would normally return. It was this choice of solutions – a round trip through Ely or the summoning of a taxi from Norwich – that the judge had to make.
Mr Roads is a member of the management committee of the Norfolk Coalition of Disabled People. On their behalf he wrote to Central Trains in February 2002 about the lack of disabled access at Thetford, proposing a foot-crossing and an accessible toilet and offering to work with Central Trains on the problem. In April 2002 there was a meeting. Mr Roads put himself forward as a test case, but to make the point a group of disabled people came along. Neither the meeting nor subsequent correspondence produced any proposal from Central Trains which was satisfactory to Mr Roads and his committee, and these proceedings were consequently issued in October 2002.
To furnish appropriate evidence, Mr Roads gave notice of his intention to travel from Norwich to Thetford and back on a specified date. The letter asked for appropriate arrangements to be made to transport him between the platform at which he would arrive and the platform (platform 1) from which he would then return to Norwich, but there was no response. On the day, 4 December 2002, Central Trains had provided a ramp from the platform to the carriage, but no adapted means of getting from platform 2 to platform 1.
The judge was assisted, as he acknowledged, by honest and helpful witnesses on both sides (allowing for occasional hyperbole) and by well-presented submissions from counsel. In addition to the history briefly recounted above, he learnt that Central Trains had a written policy, approved by the Rail Regulator, for assisting disabled passengers but that they had inherited many stations with defects which they lacked the capital to remedy. They had therefore concentrated their resources on ‘core assistance stations’, of which Ely was one. At Thetford, disabled passengers could avoid difficulties by arriving – at least if they came by car – at the platform from which they were to depart. If this meant arriving at a platform – platform 1 – that lacked a ticket office, the fare could be paid without penalty on the train. Railtrack’s successor, Network Rail, had refused for safety reasons to accept the reinstallation of a foot crossing at Thetford.
Central Trains’ main witness, Christopher Hogan, pointed out that there was no evident reason why a passenger would want to travel to Thetford and then change trains to go back again; though the judge suggested that a passenger who had fallen asleep and overshot his or her station might need to do so. Mr Hogan estimated that a ramped bridge would cost about £750,000 to instal. A lift, he said, was not permissible on a largely unmanned station. He did not consider the Station Lane route a viable option for a person in a wheelchair. The solution was to go on to Ely and change there. Of Central Trains’ 200 stations, about 20 shared Thetford’s problem, though not the length of its detour.
Among the other evidence was that of Clifford Pitchers, the Thetford customer service assistant (once upon a time, I imagine, he would have been the stationmaster). He described how two youngish local residents, Mr and Mrs Griffiths, both dependent on wheelchairs for mobility and living to the south of the station, had for some five years been using Station Lane as a means of access to the Norwich platform. He also described the use of this route by users of manual wheelchairs.
The judge’s decision
The judge rejected a curious submission that the distribution of property rights between Central Trains and Network Rail was such that access between the two platforms was not a service provided by the former; and we have heard no more about it. He held – and this too is now unchallenged – that the layout I have described made it unreasonably difficult “for this claimant as a disabled person” to get by any of the available means to platform 1.
The cross-appeal issue
What is raised by way of cross-appeal is whether the judge would or should have reached the same answer if he had first asked, as he should have done, whether the road access made it unreasonably difficult – it clearly did not make it impossible – for disabled persons, specifically wheelchair users, to change platforms.
Mr Richard Lissack QC for Mr Roads submits in his skeleton argument that this question is irrelevant once it is found that the Station Lane route was unreasonably difficult for Mr Roads. I do not agree: Parliament has posed it as a separate and prior question for the reason given earlier in this judgment. I do accept, however, that it is not necessary, in order to trigger the section 21(2) duty, for the feature in question to cause unreasonable difficulty for all or most disabled persons: any significant impact on, say, wheelchair users as a class will in my judgment suffice. The question may often have to be answered without reference to direct evidence from which some kind of statistical analysis can be made: indeed the assembly of such evidence, whether pro or con, may well be invidious or arbitrary and therefore an inappropriate exercise to attempt. Judges are likelier to be assisted by their own appraisal and, where necessary, expert evidence.
This is how the judge decided whether Station Lane was unreasonably difficult for Mr Roads:
“What are the factors? First of all there is the distance, which is about half a mile, nobody has measured it exactly. But the Claimant very fairly says that the distance itself is not actually the problem, and it is well within the range of his wheelchair. It is a factor nonetheless to be considered, but that is not what he sees as the problem. If it were, I suppose, a beautifully straight flat way the case would be very different. It is really the actual journey that has to be taken that is important and the photographs which both sides have produced are veryhelpful in illustrating that. The journey would have to start off in the station yard outside Platform 2. I am just going to deal with it in one direction. The other direction would have the same problem in reverse. Where the Station Road turns into Canterbury Way there is a footpath but if there is a means of getting on to it there is no means of getting off of it at the other end. So it is inevitable that the Claimant would have to be travelling on the carriageway, and I think that is going to apply at all times through this journey. So it is not a situation where he can get off the carriageway on to a pedestrian footway. Then when he has proceeded out of the station yard into Canterbury Way and along there he then comes to having to travel under the railway bridge. Looking at the Claimant’s photos, we get to number 7 and we see the narrow nature of the road under that bridge where traffic can only go in one direction, and photograph 8 shows it more clearly. So that obviously very considerable care and probably patience would be required of the Claimant, driving his slow moving wheelchair under that bridge and no doubt having to wait until it is free of other drivers and then maybe other drivers coming along in their cars while he is actually going through that narrow throughway. Then when he gets into Station Lane 2 the surface is good but it is plain from the photograph that he has got to stay on the carriageway. There is no footpath, there is simply a grass verge which would presumably be unsuitable for the wheelchair and in any event there are no ramps up to or down from it. Then arriving at the apex at the most northerly part of his journey where he makes his right turn again he cannot go on the pavement. He has got to stay on the carriageway, because although he might be able to get on to the pavement right at the apex, there is no means for him to get off it again. So again he has got to stay on the carriageway. Then he goes down Station Lane 1, which in its early most northern stages is a reasonable sort of surface. There is an odd pothole in it but one would expect him to be able to negotiate that without a problem. But then when we get to photographs 17 to 21 we can see a rather poor broken down roadsurface with lots of potholes. Photograph 19 in particular shows a very poor state. Although it might just be possible as Mr Hogan said for him to manoeuvre his way around that, it would be extremely difficult. Other than the photos the evidence is, as the Claimant says, perhaps with a touch of melodrama, he says it could be dangerous to his life. He could get stuck, he could fall from the chair and he would be stuck. One cannot necessarily exclude that possibility I would not have thought. Certainly there is a risk that if he got stuck his chair might fall and he might be stranded for some period of time.
The Defendant’s witness, taking them globally, their reaction to it is that it is an unsatisfactory surface. It is difficult but it is not impossible. I recall the assertion of the Railway Regulator that it was regarded as impassable. That is perhaps something of an exaggeration, but it was an assertion which was left unchallenged. I have to bear in mind that Mr and Mrs Griffiths actually do it. They follow this route in their electric wheelchairs from time to time, often together. They have done it separately. But they live locally and it may well be that, having done it together and done it a number of times now, they are familiar with it. They live nearby. No doubt if there were a problem they would have a greater local support system. Then I have to bear in mind that there has been an occasion anyway when Mr Pitchers has succeeded in pushing a manual wheelchair customer around that route, but again that is different because if a pothole arises he os there to help.
That is all the evidence about it. I have to make up my mind about it. I am bound to say I find that that particular matter is fairly finely balanced. I have already alluded, and I am sure the Claimant will forgive me if I do so again, to the fact that he is a big and heavy man and would be really helpless if he fell, and he might fall. Also there are plainly problems with traffic, particularly getting underneath that railway bridge, and he has got to be on the carriageway the whole time. On balance I have concluded that I find that it would be unreasonably difficult for the Claimant to cross the railway, cross from one side to the other, in that particular way.”
By far the greater part of this reasoning is general: it is reasoning about electric wheelchair access along Station Lane. At most of the points at which the claimant is mentioned the judge could equally well be speaking of wheelchair users. He considers the evidence about Mr and Mrs Griffiths, whose ability to cope relates principally to the objective section 21 question. He does towards the end take into account Mr Roads’ particular build; but it would have been perfectly permissible to take into account instead the risks to a heavily built wheelchair user. Although, therefore, the judge found the issue finely balanced, I consider that his conclusion that Mr Roads would find it unreasonably difficult to use the Station Lane route is founded upon reasoning which is equally – and in one respect more – applicable to disabled persons, in this case wheelchair users, as a class. It follows that the judge would have answered the antecedent section 21(2) question in the same way had he addressed it as he should have done. It would be captious to allow the cross-appeal purely because he analysed the right materials under the wrong head.
The appeal issue
The judge then turned to the key question of what steps, if any, it was reasonable for Central Trains to have to take in order to provide reasonable alternative access to platform 1. Having posed the choice which I have already described, he said this:
“At first blush the Defendant’s solution seems onerous to the Claimant. It adds an hour or a little bit over to his journey at most time of day and if it is going to be late afternoon or evening it could be an hour and a quarter or I think the maximum contingency was an hour and 40 minutes. I have to look at the whole of the circumstances to assess what steps it would be reasonable for the Defendant to have taken. That involves not just reasonable for the Claimant but reasonable for the Defendant or really reasonable looked at overall it seems to me. So what are the circumstances? First of all this is a journey that the Claimant rarely makes. All the journeys in fact that we have heard about in evidence in this case, and I think there are really only two by train, were related to this particular campaign. So that is only twice in 2002 and judging from the tenor of the rest of his evidence it is not a journey he has made very often. Secondly, the Claimant obviously when he has to travel plans his journeys carefully, as indeed is probably a necessity for him wherever he is travelling because he is likely to encounter some problems. So he is a man who has got to do some planning and does. As we see, he books up in advance and he explains his problems to people in advance. Thirdly, the Defendant’s solution will turn a 36 minute journey into at least an hour and 37 minutes journey or I suppose if one allows for him getting to the station ten minutes or so early to allow for contingencies, I suppose more realistically one would say it turns a three-quarter of an hour journey into about an hour and three-quarters. So it adds a good hour whichever way one looks at it. Fourthly, there is the factor that other disabled persons, Mr and Mrs Griffiths, have been able to circumvent this problem. Obviously there must be other passengers using a wheelchair. The only evidence we have of that is the person who Mr Pitchers pushed in a manual wheelchair and then the doctor who wrote letters on behalf of the Claimant, and I suppose one imagines from the passenger figures that there may be a few others. But it does not seem in scale to be an enormous problem from the point of view of the number of people involved. Fifthly, the evidence before me shows that the type of taxi required, one equipped with a hoist enabled to take a wheelchair with the Defendant [sic] in it, is not readily available. The evidence of Mr Pitchers was that there in only one cab company as far as he was aware in Thetford who had any sort of facility for taking a wheelchair and that was only for an ordinary manual wheelchair, nothing that would take a heave electric wheelchair. The only evidence I had of such a vehicle being available is that of Canary Cabs in Norwich. So one looks at the reality of what will actually happen if the solution proposed by the Claimant is the reasonable one. The Claimant will arrange his journey by train from Norwich to Thetford and then Thetford to Norwich. He will ask for the Defendants to arrange a cab or the transport to get him across from Platform 2 to Platform 1 to make his return journey. He travels from Norwich to Thetford without a problem. He gets off the train with the assistance of the ramp and goes into Thetford for whatever his business there is or whatever his pleasure may be. He then comes back to Thetford Station in order to go to Norwich. The Defendant will have arranged for this specially adapted cab to drive all the way from Norwich to Thetford. It will pick up the Claimant in his wheelchair. It will drive him half a mile round the lanes to get him on to the other side. He will catch his train back to Norwich and, unless it should happen to have some other business in Thetford, the cab will then drive all the way back to Norwich. It seems a most extraordinary, unusual and unreasonable set of circumstances. No one has actually suggested for one moment that to deal with this problem it would be reasonable for the Defendant company to actually keep available for themselves at all times such an adapted vehicle at Thetford Station or perhaps able to serve a number of stations. So they have got to locate one, and there is no evidence of there being one other than at Norwich. Had there been evidence before me of a suitable taxi being available in the Thetford area my decision may well have been different. But on the evidence before me, doing the best I can to evaluate and ascertain what steps it was reasonable for the Defendant to have taken, I conclude that it would not have been reasonable for the Defendant to obtain a suitable vehicle from Norwich for one short passage at Thetford and that, given the problems in this case, it was reasonable for them to offer as the only alternative free travel back to Norwich via Ely, changing at Ely and covering the same ground again.”
Mr Lissack makes a number of, in my view, valid points about this forensic exercise. First, the fact that other wheelchair users managed to negotiate the Station Lane route was not relevant at this stage of the case: it went only to the objective assessment of difficulty, and even in that context was consistent with yet other users being put off even attempting the Station Lane journey. Secondly, the policy of the DDA is not a minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public. Thus access via Ely, while plainly relevant, is not by itself an answer. Thirdly, the fact that the major instances of difficulty given in evidence were generated in order to make the very point in issue is neither here nor there. If anything it tends to support the claim to the extent that, once the point of principle is established, the need to summon an adapted taxi from Norwich may well be rare. And one notes the judge’s provisional view that if the local taxi service in Thetford (and arguably too, therefore, in nearby towns such as Brandon) had been able to provide the required transport, his decision on reasonableness might well have gone the other way.
Above all, it must be remembered that in pre-trial correspondence Central Trains had agreed that the cost of bringing an adapted taxi from Norwich would not be relied on in relation to the reasonableness of making the provision sought: hence the absence of any explicit reference to it in the material passage of the judgment. It needs also to be noted that Mr Lissack’s case is predicated on Mr Roads’ giving Central Trains sufficient notice of his coming journey to enable them to book the taxi to help him reach platform 1. Thus this case does not decide what it will be reasonable for Central Trains to do if a wheelchair user arrives at Thetford without any or adequate prior notice and asks for a taxi to be summoned from Norwich. In such a situation, with or without regard to cost, the comparative time element may be such that it is reasonable to expect the passenger to go via Ely.
In the light of these factors, Mr Lissack goes on to attack the judgment at two specific points. One is the judge’s taking into account against the claimant the small scale of the problem. The other is his failure to consider what able-bodied passengers would make of the inconvenience of having to travel to Ely and back in order to change platforms. The fact that this was likely to be only an occasional problem made it more reasonable, not less (in Mr Lissack’s submission), for Central Trains to solve it when it occurred by summoning an adapted taxi; and if the alternative of going round via Ely was an inconvenience that no able-bodied passenger would be expected to put up with, why (Mr Lissack asks) should Mr Roads? It is only, he submits, if the judge, despite the concession, took the cost of the Norwich taxi into account that he can have arrived at his conclusion that the measure sought by the claimant was unreasonable.
For Central Trains, Mr Philip Coppel submits that the scale of the problem lies squarely within the issues posed by section 21(2)(d), which directs attention to “all the circumstances of the case”. These necessarily include, he submits, both the relative rather than absolute nature of the difficulty (and therefore the fact that other wheelchair users coped) and the infrequency of Mr Roads’encounters with the problem. The awkwardness of the round trip through Ely had been expressly considered in the judgment: “it adds a good hour whichever way one looks at it”.
These competing submissions are not all mutually exclusive. The relative infrequency of the problem is no doubt relevant, but it may point towards the reasonableness, rather than the unreasonableness, of making special provision to meet it. I agree with Mr Lissack, however, that the relevance of the fact that some wheelchair users cope with the Station Lane route is logically spent with the finding that access is nevertheless unreasonably difficult for disabled people generally and for Mr Roads personally. It cannot be brought in a second time to reduce the standard of provision which it is reasonable to have to make to alleviate the difficulty.
Conclusion
I am satisfied that the judge must have been critically influenced, as for reasons peculiar to this case he ought not to have been, by the cost of fetching a taxi from Norwich. It was known to be a sum approaching £50, and if it had not been for the agreement to eliminate it from the case it might legitimately have proved decisive. One sees the issue rising very close to the surface when the judge speaks of arranging “for this specially adapted cab to drive all the way from Norwich to Thetford” and calls it “a most extraordinary, unusual and unreasonable set of circumstances”, contrasting it with what he might well have decided had an adapted taxi been available in Thetford. But on the artificial assumption on which the case was proceeding that the taxi would be cost-free to Central Trains, and on the further assumption that they would have adequate advance notice of Mr Roads’ requirement, it seems to me that the decision could only have gone in Mr Roads’ favour. To require him to spend over an hour – perhaps well over an hour – travelling in the wrong direction and then back again when at no cost to Central Trains a taxi could be waiting to transfer him in minutes to the other side of the track at Thetford could not on any fair view, given the policy of the Act, be called a reasonable alternative method of reaching platform 1.
I would therefore allow the appeal and enter judgment for Mr Roads in the sum fixed by the judge of £1,000 general damages together with £97 special damages. I would add, since the case is supported by the Disability Rights Commission, that although it has made it appropriate to explore some significant aspects of the legislation, what it decides is likely to be of limited impact because of the peculiarity of the real or assumed facts on which both the judge below and this court have had to proceed.
LORD JUSTICE JACOB: I agree.
LORD JUSTICE BUXTON: I also agree. Section 21(2)(d) of the Act provides:
“… it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to –
…
(d) provide a reasonable alternative method of making the service in question available to disabled persons.”
What is reasonable has to be judged here, as always, in all the circumstances of the case. Those circumstances include, in cases such as the present where there are competing solutions, the availability of the one solution when assessing the reasonableness of the other.
In this case therefore, as my Lord has stressed, when assessing whether the alternative method proposed by Central Trains, the Ely solution, was a reasonable method of making the service available, the judge had to have in mind the potential availability of the taxi solution; and that is indeed how the judge did approach the matter. But he rejected the taxi solution because, as he said at page 56B of his judgment:
“The Defendant will have arranged for this specially adapted cab to drive all the way from Norwich to Thetford. It will pick up the Claimant in his wheelchair. It will drive him half a mile round the lanes to get him on to the other side. He will catch his train back to Norwich and, unless it should happen to have some other business in Thetford, the cab will then drive all the way back to Norwich. It seems a most extraordinary, unusual and unreasonable set of circumstances.”
True it is that the provision as described by the judge is elaborate and has some striking features, not least the return of the cab empty to Norwich. But the judge was in my view wrong, in the sense that he took irrelevant considerations into account in reaching the conclusion that he did.
There are two ways in which his judgment has to be criticised. First, the question is whether the steps under review are reasonable “for him” (that is to say, Central Trains) to take. Steps might be unreasonable for a person to take if they unreasonably impact on third parties. But in this case the steps did not. The taxi firm is obliged to drive from Norwich to Thetford, but far from that being inconvenient for them, it is all part of their business. The only inconvenience on the assumptions made in this case for Central Trains is the comparatively small amount of administration that will be required in finding out about Mr Roads’ programme and calling up a taxi to fit in with that programme. Mr Coppel in argument very fairly accepted that that matter could not be described as an unreasonable inconvenience for his clients.
Second, like my Lord I am persuaded that the judge did take into account, albeit not mentioning it, the cost to Central Trains of making these arrangements. Had he not done so, there is in my view no other way in which he could have found that the arrangements were unreasonable for Central Trains. That is borne out by what he said at page 56F:
“Had there been evidence before me of a suitable taxi being available in the Thetford area my decision may well have been different.”
That observation could only be relevant to the cost of making the provision: the administration involved in getting a taxi from Thetford was no different from the administration involved in getting a taxi from Norwich. The judge should not have taken that consideration into account because, by agreement between the parties, it had been excluded from the equation in this case.
This was a case that turned on the reasonableness of arrangements made or proposed and it was very much a matter for the trial judge to assess, with the benefit of the evidence that he had. Normally this court would be most reluctant to interfere with the conclusion to which the judge came. But because he took into account two matters that I have listed that were not open to him to take into account, this court has to reconsider his decision. I would come to the same conclusion on it and for the same reasons as did my Lord.
I would only say one further thing. Had it been open to the judge to take into account the cost of these arrangements to Central Trains there might well have been much more to be said about this case, and much less likelihood that this court would find itself able to intervene. But that is not the case before us today. It may be the case before another court on a further occasion, when the matter will, I fear, have to be looked at de novo and not in the light of this present case.
ORDER: Appeal allowed; judgment entered in favour of the claimant in the sum of £1,097; the claimant’s costs here and below to be paid by the defendants; costs of the appeal summarily assessed at £20,000; the costs below to be assessed if not agreed.
DEC-S2008-077 – Full Case Report
Equal Status Acts 2000 to 2008
EQUALITY OFFICER’S DECISION NO:
DEC-S2008-077
Garcia-Rodriquez v Bus Eireann
File no. ES/2006/0079
Keywords
Equal status Acts 2000 to 2004 – Discrimination, section 3(1) – Discrimination on the ground of disability section 4(1) – Nominal cost, section 4(2) – Disability, section 2(1) – Disability ground, section 3(2)(g) – vicarious liability, section 42(1)
Delegation
1.1. Ms. Analia Garcia-Rodriquez (“the complainant”) referred a claim on 19 July 2006 to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, 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. The investigation under section 25(1) began on 29 July 2008. An oral hearing, as part of the investigation, was held on 9 October 2008.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was treated contrary to section 4 of the Acts by Bus Eireann (“the respondent”) on 27 May 2006 when the bus she was travelling on left her behind while she was using the washroom facilities. The respondent was notified of the complaint 23 June 2006.
3. Case for the complainant
3.1. The complainant, who has a profound visual impairment, was travelling with the respondent from Galway to Dundalk via Athlone. During the second part of the journey, the complainant showed the bus driver her travel pass and asked the bus driver if she could use the toilet facilities in the bus station while the bus was picking up new passengers in Drogheda. The driver replied: “left and through” (instructions to the toilet).
3.2. The complainant made her way to the station where she asked a passer-by for assistance. The passer-by informed her that there were no toilets in the building but that there were public toilets outside it. The passer-by showed the complainant where the toilets were but when they got to them they discovered the toilets were closed.
3.3. The complainant stated that this kind passer-by then informed her that the nearest toilets that she knew of were at the McDonald’s restaurant across the road. The complainant stated that as her need was a very genuine one, she had to make her way to the restaurant. In order for the complainant to get there, she had to cross what she considered a busy road. Upon getting to the restaurant she discovered that there was a queue. When she returned from the toilets she discovered that the bus had left without her. The complainant estimates that she was gone for about 9 to 12 minutes.
3.4. The complainant stated that she was shocked and very upset. All her belonging were in on the bus that has left without her and she had no money. She stated that her initial reaction was to cry but that she pulled herself together and rang the family who she was travelling to stay with (who met with the bus and collected the complainant’s belongings). She then spoke with another passer-by who informed her that there would be another bus travelling to Dundalk in a few minutes and suggested that the complainant explain the situation to the driver to see if she could complete the remainder of the journey on the other bus. The complainant did so and had no difficulties completing her journey on the later bus. This meant she arrived to Dundalk approximately 30 minutes late.
3.5. The complainant met the same bus driver on her return to Galway the next day. She stated that the bus driver apologised to the complainant stating that he had forgotten that the complainant had gone to the toilet and that he had not realised that the complainant had a visual impairment. The complainant was not using her white stick at the time of the incident.
3.6. The complainant stated that she could not understand how basic services were not available to her. She stated that it was unbelievable that she, a person with a profound disability, would have to put her life at risk to access basic facilities and that, due to negligence and urgency, she was left alone and unprotected in unfamiliar surroundings. She stated that while she is aware that she did not experience any less favourable treatment as any other passenger without a disability would have received in a similar situation, she believed that the respondent by treating her in the same manner as a person without a disability would have been treated constituted discrimination on the disability ground.
4. Case for the respondent
4.1. The respondent does not wish to dispute the factual matters presented by the complainant. Nor does the respondent wish to dispute the distress experienced by the complainant as a result of this unfortunate incident.
4.2. The respondent replied to the complainant in a letter dated 3 July 2006. In this letter the respondent states that until February 2006 there station in question had public toilets. The respondent submits that the toilets attached to the bus station – operated by Drogheda Town Council – are closed due to vandalism and other problems. The respondent stated that the staff toilets are available for the public upon request. The respondent submits that the complainant did not ask any of its staff for assistance.
Respondent’s witness:
The bus driver submits that the bus was busy. He further submits that he had no knowledge of the complainant’s disability. He stated that had he known the complainant was visually disabled he would have assisted her in locating the toilets. The driver also stated that the buses have a number of locations outside bus stations where they would stop to allow for passengers to use the toilets. The fact that the complainant had shown him her pass meant nothing as a number of people, belonging to different categories, are given buss passes. He stated that at the time he did not know that the toilets attached to the station were closed due to vandalism.
The driver yet again apologised to the complainant and stated that he had genuinely forgotten that she had gone to the toilets as he was busy assisting new passengers and that, if his memory serves him, there had been an incident involving another passenger that had distracted him.
4.3. The respondent submits that the cost of maintaining toilets on busses is prohibitive. The Drogheda station is currently being fitted with accessible toilets. Further, the respondent submits that a vast majority of its staff have received disability awareness training encouraging staff to have a flexible approach in accommodating people with disabilities.
4.4. The respondent referred to Sections 17(1) and 18(1) of the Acts :
“The Minister may, in agreement with the Minister for Public Enterprise, make regulations requiring that new road or rail passenger vehicles which –
(a) are purchased or leased by an operator of a passenger road service or passenger rail service, and
(b) are to be used for the purposes of either such service
shall be equipped so as to be readily accessible to and usable by persons with a disability”. Section 18 of the Acts refers to regulations relating to station equipment and states: “The Minister may, with the agreement of the Minister for Public Enterprise, make regulations requiring operators of bus and rail stations to provide facilities at those stations so that they are readily accessible to and usable by person’s with a disability.” The respondent submits that the above regulations have not been put into place by the Minister and that until such regulation inform the respondent of what must be done there is no legal requirement for busses to have toilets on them or for stations to have toilets.
5. Conclusions of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making my decision I have taken cognisance of both oral and written submissions made during the investigation.
5.3. Disability in the Act is defined in section 2(1) as:
ii) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
iii) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
iv) the malfunction, malformation or disfigurement of a part of a person’s body,
v) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
vi) a condition, disease, or illness which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour.
I accept that the complainant’s condition constitutes a disability within the meaning of section 2(1)(e).
5.4. Section 4 of the Act defines reasonable accommodation:
(1) “For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such specialtreatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.
(2) “A refusal or failure to provide the special treatment or facilities by which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
5.5. The complainant is correct in identifying that, in the case of a person with a disability, treating him or her the same as they would have treated a person without a disability or a person with a different disability can constitute discrimination in situations where such same treatment would make it impossible or unduly difficult for the person to avail him or herself of the service. The duty to provide reasonable accommodation arises when a service provider becomes aware of the need to provide special treatment or facilities to a person with a disability. In this case I am very mindful of the fact that the complainant never told anyone working with Bus Eireann that she had a disability nor requested information or assistance from such a person. She relied on the information and assistance of persons not associated with the service provider. In such a situation, it would be inherently unjust to hold a service provider responsible for any alleged inaction. If the complainant had been denied access to toilets facilities by a member of staff, the service provider would have a case to answer. In the circumstances of this case, I cannot find that the respondent has failed to provide reasonable accommodation to the complainant.
Decision
6.1. In accordance with section 25(4) I conclude this investigation and issue the following decision:
The complainant has failed to establish a prima facie case of discrimination. Therefore, the complaint fails.
_____________
Tara Coogan
Equality Officer
DEC-E2009-065 – Full Case Report
The Equality Tribunal
Employment Equality Acts
Decision DEC-E2009-0XX
PARTIES
Flynn v Emerald Facility Services
Date of issue: 05 August 2009
Keywords – Employment Equality Acts – Discriminatory Dismissal – Failure to provide Reasonable Accommodation – Disability – Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Noel Flynn that he was subjected to discriminatory dismissal by Emerald Services Ltd on the grounds of disability in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 22 June 2006 under the Employment Equality Acts. On 27 May, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes – an Equality Officer – for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were sought and received from the parties. As part of my investigation, I proceeded to hearing on 24 February 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant submitted that he started employment with the respondent in October 2002 as a contract cleaner. In or about June 2005, the complainant was issued with a written warning from the Area Manager in respect of being drunk at work. Prior to this, the complainant submitted that he had been “upbraided and cautioned on a number of occasions by his supervisors”. The complainant was given verbal warnings by his supervisors about the smell of alcohol and was told that a different facilities company had made complaints about him.
2.2 The complainant submitted that he told his two supervisors that he had a problem. He submitted that he repeatedly told the respondent that he had drunk too much and this was why he smelt of alcohol. The claimant further submitted that by this time he was visibly showing signs of alcoholism – a flushed face and shaking hands.
2.3 The complainant submitted that notwithstanding the plain signs that he was having severe difficulties coping with substance abuse, the respondent did not take remedial action but instead resorted to disciplinary action.
2.4 The complainant submitted that on 9 December 2005, he attended work suffering the effects of alcohol excess. He was told to go home because he smelt of alcohol and was still under the influence. He received a call from his manager telling him not to come in to work for the following two days. When the complainant attended work on the Monday, he found two co-workers doing his work. He rang his supervisor who asked him to leave the workplace and return in the afternoon when the Area Manager would be there. The Area Manager informed him that he had been getting calls about the complainant being drunk. When asked by the Area Manager, the complainant admitted that he had been suffering from the effects of alcohol. The complainant submitted that the respondent was clearly not satisfied with his responses, asked for his security pass and keys and told the complainant that he would get a final warning letter sent to him in writing.
2.5 The complainant submitted that he was therefore dismissed in circumstances where no effort was made on the part of the respondent to engage with the complainant’s difficulties with alcohol. He submitted that he received his P45 on 3 January 2006 but did not receive his final payslip or final warning letter.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant worked for it as a cleaner at Dublin Airport and was one of a number of employees assigned to that contract. The respondent submitted that the complainant confirmed that he had received a written warning from the Area Manager in June 2005, and had received cautions previously from his supervisors.
3.2 The respondent denied being advised by the complainant that he had an alcohol problem or that it formed the view from his demeanour that he was an alcoholic. The respondent contends that on occasion, employees do attend work smelling of alcohol, but it would not immediately signify that an employee had a problem with alcohol.
3.3 The respondent submitted that on 9 December 2005 one supervisor received a phone call from another supervisor asking him to escort the complainant off-site as the client had reported that the complainant was drunk at work and that it wanted him removed and not allowed back onto the site again. Although the respondent could not find the complainant when he came on site, it informed the complainant by phone that he should not report to work on the Saturday or Sunday.
3.4 The respondent submitted that on the Monday morning, it was explained to the complainant that there was to be a disciplinary meeting in the afternoon regarding the incident of the previous Friday and that he could be accompanied by an representative or colleague. At that meeting the complainant confirmed that he had been drinking all night, finishing at about 6.00 a.m., reported late for work, and was still drunk when he reported to work. The respondent further submitted that the complainant did not make any reference to having an alcohol dependency problem
3.5 The respondent submitted that as the complainant was no longer working on that site, he was requested to return his airside ID card. It was also explained to him that he would be relocated to a different site and the respondent offered him the option of a full-time position on a site in Clondalkin. The respondent submitted that the complainant declined the offer as it would be too far for him to travel. It was further submitted that the respondent would continue to seek an alternative full time position for the complainant. An additional site was also suggested but the possibility of employment there did not materialise.
3.6 The respondent submitted that the complainant requested his P45 himself and therefore was not dismissed.
3.7 The respondent submitted that the complainant is contending that there is an absolute obligation upon the company to provide reasonable accommodation for him because he was suffering from a disability and that disability was alcoholism. It further submitted that at no time did the complainant ever indicate to any member of the management that he was suffering from any form of a disability. The respondent submitted that it recognised that it has a responsibility to facilitate employees with reasonable accommodation where that person is suffering from a disability, however, for that to happen it is essential that the company is aware that a disability exists in the first place.
3.8 The respondent denied that the complainant ever informed it that he was suffering from a disability
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent dismissed Mr. Noel Flynn on grounds of disability, in terms of section 6 of the Employment Equality Acts, and contrary to section 8 of those Acts.
4.2 In the course of the hearing, the respondent raised the issue of timelimits and queried whether this matter was outside the scope of the timelimits envisaged by Section 77 of the Acts. During the hearing the complainant gave evidence that he got through Christmas and then requested his P45. Although the respondent disputed this version of events, no convincing alternative timeline was offered. On the balance of probabilities, I accept that the date the complainant was notified of finishing up with the company was when the P45 was issued (dated 30 December 2005). As 26 June 2006 was the date on which the complaint submitted his complaint form to the Tribunal, I find that the complaint falls within the timeframe envisaged under Section 77 of the Acts.
4.3 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”. In considering evidence submitted by both the complainant and the respondent, a number of points emerge:
· On 9 December, 2005, the complainant was told to go home from work because he smelt of alcohol. This arose following a complaint from the respondent’s client.
· The complainant received a call from his manager telling him not to attend work on the following two days.
· On the Monday thereafter, the complainant was requested to attend a disciplinary meeting that afternoon and that he was allowed to bring a representative if he desired.
· The complainant attended the meeting where he was informed that the client did not want him working on the site again and was requested to return his ‘airside ID card’.
· The complainant was offered work on an alternative site but declined the offer as it did not suit him.
· The respondent indicated that it would keep trying to find something else, and suggested one location, but an anticipated vacancy did not arise.
· Within three weeks of the disciplinary meeting, the complainant requested his P45 in order to ‘regularise his social welfare entitlements’ and the employment relationship came to an end.
4.5 During the course of this investigation, the complainant stated that he suffered from a disability in that he suffered from alcoholism. I consider that the complainant is covered by the disability ground because I am satisfied that he did, in fact, suffer from alcoholism but having considered the evidence presented to the Tribunal at the oral hearing, I am further satisfied that he had never stated this to the respondent or asked for reasonable accommodation to be granted.
4.6 Having considered this matter and the manner in which the employee-employer relationship came to an end, I am satisfied that there is not sufficient evidence to find that a dismissal took place. Accordingly, the complainant has not established facts upon which he can rely in asserting that he suffered discriminatory treatment. Therefore this complaint fails.
5. DECISION
5.1 I have investigated the above complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts. The complainant has not established a prima facie case. Accordingly, I conclude this investigation and find against the complainant.
_________________
Conor Stokes
Equality Officer
05 August 2009
DEC-S2010-013 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2010-013
PARTIES
A Complainant v A Supermarket
File Reference: ES/2007/0054
Date of Issue: 2 March 2010
Key words
Equal Status Acts – Section 3(2)(g), Disability ground – Section 15(1) – Disability not obvious – Whether respondent aware of disability – Onus on complainant to show respondent aware of disability – No prima facie case
1. Delegation under the relevant legislation
1.1. On 23rd May, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th October, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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 which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Tuesday, 15th December, 2009. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(g) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably in the course of an incident at the respondent’s premises on 20th September, 2006.
3. Summary of the Complainant’s Case
Evidence re incident in question
Submissions and evidence of complainant
3.1. The complainant has been diagnosed with clinical depression and clinical anxiety which, inter alia, manifest itself in shyness, nervousness and confusion.
3.2. The complainant submitted that, on or about 20th September, 2006, he was standing in the respondent’s premises speaking with a friend, Mr. A, when he was approached by Mr. B, a security guard working for the respondent, who, he submitted, applied strong pressure to his back. In oral evidence, he described this pressure as punches to his back. The complainant submitted that Mr. B asked him to leave the respondent’s premises in question, telling him he was barred. He submitted that he was shocked by this as he had been shopping in that particular store for 20 years without any incident prior to this occurrence. The complainant submitted that when he asked him why he was being asked to leave, Mr. B told him he didn’t have to tell him why.
3.3. The complainant said that he remained in the store for two hours thereafter. In that time, he spoke once more with Mr. B and asked if he could speak with a Manager, which request was initially refused by Mr. B. The complainant said he also asked Mr. B if he would contact An Garda Siochana. He said that he was told later that this had been done and that they would come to the store. Although he later spoke with a manager, he left the store about two hours after entering it in the first instance as the Gardai had not arrived at that stage. The complainant said that he then proceeded to the nearest Garda station to contact them about the incident, although he was informed later that the Gardai did arrive to the store after he had left. The complainant submitted that he returned to the store two days later and was informed that he was barred from the premises and again he was not given a reason as to why. He stated that he has not returned to the store since.
3.4. The complainant stated that, two years previously, he had written a letter of complaint against a member of the respondents staff when, responding to another member of staff who had referred to the complainant as “her best customer”, she had said that he was not her best customer. The complainant submitted that he had never received a reply to the letter of complaint. He also said he could not confirm whether, at that stage, he had told anyone of his disability.
3.5. The complainant denied the respondent’s statement that his invitation to shop in the store had previously been withdrawn because his behaviour towards some of the female staff members (Ms C and Ms D) had made them feel somewhat uncomfortable. He submitted that the respondent told him of this accusation after the events in question took place. He submitted that the real reason why he was excluded from the store was because of his disability.
Evidence of Witness Mr. A
3.6. Mr A said that, on the day in question, he met with the complainant and heard Mr B tell him he shouldn’t be there. He said that when the complainant asked to speak with the Manager, Mr B said the Manager was not there and escorted him off the premises through a side door. He said that he went out the door through which he had come in and chatted with the complainant outside. He said that the complainant was terribly upset.
3.7. In relation to the time of 6:45 p.m. on the DVD of the CCTV footage that was presented in evidence by the respondent, Mr A said that he was sure the incident took place between 12 and 2 in the afternoon as that was the time he went home for lunch. He added that he was in the aisle when he was speaking with the complainant, and so he could not have been the man who was standing with the complainant on the DVD, as the man in question was not in the aisle.
Evidence of Witness Ms. E
3.8. Ms E, a witness for the complainant, said she entered the respondent’s premises on the day in question and saw the complainant standing in the doorway. She said she knew before she got to him that there was something wrong and so she asked him. She said he told her what had happened and she offered him the use of her phone to call the Gardai. She left him briefly and assumed when she returned that he had called the Gardai. She said that he told her he was not going to leave the shop until he got a reason why he was being asked to leave. She was not sure what time of day this incident occurred, but thought it might have been the afternoon.
Submissions re knowledge of complainant’s disability
3.9. While the complainant agreed that it is not always apparent that he had a disability, he said that sometimes it was apparent. He spoke of one individual, Mr X, who still worked for the respondent and to whom he had told he had a disability. He stated that he had passed pleasantries with Mr X but had also told him things about his personal life. He acknowledged that some of the staff members of the store may not have been aware of his disability, in particular anyone he met on the day of the incident in question. The complainant said he did not know who Ms C or Ms D were.
3.10. Mr A said that he knew the complainant for ten years. He said that he had found out about the complainant’s disability through mutual friends, although he had suspected there was something through the symptoms that the complainant displayed. He accepted that he would have a different view on the complainant than someone passing him in the street and that the respondent’s employees might have and said that the complainant was not agitated immediately before the incident in question took place.
3.11. Ms E said she knew the complainant before the incident. She said she was a friend of a neighbour of the complainant who lives a couple of doors away from him. She said that she knew the complainant through “general chit-chat”. She said that when she approached him, she knew there was something wrong as he was standing there and was red in the face. She said he looked like a man who was about to have a heart attack. She said that she was not familiar with his behaviours though admitted that she might know what was a high colour in him better than a staff member of the respondent might.
Additional Submissions
3.12. The complainant submitted a letter from a loss adjustor on behalf of the respondent which referred to an investigation into the incident that was underway. He submitted that this was in response to a letter he wrote to the respondent on 14th November, 2006. He said he received no further information regarding the matters raised. He also noted that the respondent had told him there was no contemporaneous note of the incident in question and yet one was submitted to the Tribunal at the hearing.
3.13. The complainant submitted that the respondent could not rely on Section 15 of the Acts as a defence as there was no evidence of disorderly or inappropriate conduct on his part and that he had been shopping in the respondent store for twenty years. He submitted instead that Mr B was the author of the incident, as a result of listening to gossip and telling people to go to the manageress etc.
3.14. In general, the complainant submitted that he was told only that he was barred and was not told why. He said that he had therefore suffered embarrassment, humiliation and loss of amenity as a result of discrimination by the respondent.
4. Summary of the Respondent’s submission
Evidence re incident in question
Evidence of Mr B
4.1. Mr B stated that Ms C and Ms D had spoken to him about a man they were afraid of who they stated had already been barred from the store. He said that all the managers knew about the earlier incident involving the complainant. He told Ms C to point this person out if he came into the store and so, on the day of the incident in question, she came over and said that the man she had referred to was in the store. He stated that she identified that man as the complainant and then went to a floor manager who then told Mr B that he was to leave the store. Mr B said that he then went over to the complainant, touched his arm and asked him to step aside, which he did. He denied that he punched the complainant in the back but said that the complainant looked shocked. He said he told him that his invitation to treat in the store had been withdrawn. Mr B said that he was unhappy that when the complainant asked him why, he “started looking me up and down”. Mr B said he responded by saying that “you know why” and that the complainant agreed with him. He then pointed the complainant’s way to the side door as he did not want him leaving through the main door.
4.2. Mr B said that the complainant then left the store but came in later and stayed for two hours. He said that the complainant wanted to speak with the Store Manager but, as she was not available, spoke with Ms Y, the Duty Manager. The Gardai were eventually called, though Mr B said he told the complainant they could be a while. Mr B said that he rang the Gardai when the complainant left to tell them that the problem was over but was not aware that they turned up later.
Evidence of Ms Y
4.3. Ms Y, who was working with the respondent for 18 years, was the Duty Manager on the night in question. Though she was not directly involved when Mr B first asked the complainant to leave the store, she did witness the incident. She said that, after Ms C had identified the complainant to Mr B and the Store Manager, she saw Mr B approach the complainant and said the complainant left and came back in. She said that she later approached the complainant with Mr B. Although she didn’t recall what was said, she did know that Mr B had phoned the Gardai, because Ms C was upset, and they were waiting on them to arrive.
4.4. She said that while she had known the complainant as a customer from coming in and out and that he had been ok as a customer as far as she knew, he first came to her attention when Ms C spoke of a customer harassing her, though she said that she didn’t know who the customer involved had been at the time of this incident. She said that Ms C was very upset after the confrontation in question and that Ms D was also upset. As far as she knew, this was the first time the complainant had been barred but she added that Ms C had had been working for the respondent for 12 years and had not reported any other customers.
4.5. Ms Y said that disability was not a motivation in her thinking on the day in question. She said that she was aware the complainant’s invitation to treat had been revoked but it was not apparent that the complainant suffered from a disability, and she was not aware that he did. In that regard, she said that, though the complainant’s mannerisms were obvious at the hearing, his demeanour on the day in question was normal, though he was irate. She said she knew Mr X but he had never said anything to her about the complainant’s disability.
4.6. Ms Y said she had not participated in any investigation and did not did not know about the letter of 14 November, 2006, from the complainant.
Evidence of Ms Z
4.7. Ms. Z, a witness for the respondent, had been the supervisor of Ms. C prior to the incident in question. She described an incident involving Ms C and the complainant following which, she said, Ms C refused to serve the complainant anymore. She said that the complainant sent a letter to them regarding the incident in question also complaining about the incident in question. She said that she rang him and apologised for the way he was served. She indicated that this incident was unrelated to the incident which resulted in him being barred from the store. She said she had moved to a different store operated by the respondent by the time the incident complained of occurred.
Further submissions re incident in question
4.8. In further seeking to establish the time the incident took place, the respondent stated that the complainant was talking to a night security man on the day in question but the complainant denied this.
4.9. The respondent submitted a DVD to the Tribunal which, it submitted, showed that Mr B did not apply strong pressure to the complainant’s back, as alleged. It also submitted that it showed that the incident took place at a later time in the day than that alleged by the complainant.
Submissions re knowledge of complainant’s disability
4.10. The respondent submitted that none of its staff, and in particular its management staff, were aware that the complainant had a disability and the complainant had failed to present any evidence that would show that it was aware of his disability. In fact, it said that the complainant had not made it aware of his disability and, in that regard, disputed that the complainant had the alleged conversation with Mr. X, who was not present at the hearing. Furthermore, Mr B and Ms Y both stated that they knew Mr X and he had not told them about the complainant’s disability. The respondent added that, prior to the hearing, it was still unaware of the nature of the complainant’s disability. Furthermore, it said that the complainant normally presents very well and it wouldn’t be apparent that he was suffering from a disability and Mr B and Ms Y made statements at the hearing to this effect.
4.11. The respondent submitted that its policy towards people with disabilities, both customers and staff, was appropriate.
Submissions re Section 15
4.12. Section 15(1) of the Equal Status Acts (hereinafter referred to as “the Acts”) states, inter alia,: “…nothing in this Act…shall be construed as requiring a person to dispose of goods..or to provide services…to another person (the “customer”) in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods….or the provision of the services…to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought…”
4.13. The respondent denied that the complainant was excluded from the store because of his disability. However, it submitted that, even if the Tribunal was to find that it had discriminated against the complainant on the disability ground in that regard, it was entitled to its defence under Section 15(1) of the Acts as the complainant had previously engaged in disorderly behaviour at the store. In that regard, it submitted that the complainant was asked to leave as he had been identified by two members of staff, Ms C and Ms D, as someone whose invitation to shop in the store had previously been withdrawn because his behaviour towards them had made them feel somewhat uncomfortable. (In that regard, both Mr B and Ms Y stated that Ms C would not attend the hearing because she was terrified of him). It stated that it had a duty and obligation to protect its employees from disorderly conduct and was therefore entitled to take the steps it did in relation to the complainant. In any event, it said that any individual would have been treated the same way in the same circumstances.
Additional Submissions
4.14. The respondent said, in relation to the allegation that Ms C engaged in idle gossip, that she had never made a complaint despite being 12 years working for the respondent.
4.15. The respondent said it could not see how discrimination would have motivated the complainant being asked to leave. It said there was no logical basis for asking him to leave other than the real reason, being that outlined in par. 4.13 above. Therefore, the complainant was not treated any differently, or less favourably, than anyone else would have been treated in the same or similar circumstances. In addition, it stated that the individual involved in the incident was not aware of his disability. It said that the complainant functions in society, at least in the supermarket in question, and it is not readily apparent that he suffered from a disability and there are no visible signs of same. It submitted, therefore, that the complainant had not crossed the threshhold for establishing a prima facie case of either direct discrimination or a failure to provide reasonable accommodation.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Section 15(1)
5.2. The respondent submitted that the complainant’s past behaviour had caused it to withdraw its invitation to treat and, even if I were to find that it had discriminated, that it was nonetheless entitled under Section 15(1) to refuse permission to the complainant to continue to shop in its premises. In looking at whether the respondent is entitled to rely on Section 15(1), the question I have to consider is whether it was reasonable for it to conclude, based, inter alia, on its past experience with regard to the complainant, that there was a substantial risk of criminal or disorderly conduct by him if it allowed him to enter its premises.
5.3. It is clear that the complainant was barred by the respondent based solely on the word of Ms C and Ms D. However, neither of these witnesses were present to substantiate their allegations or to present themselves for cross-examination by the respondent. The evidence presented by the respondent in relation to the alleged incident involving the complainant that led him to have his invitation to treat withdrawn was almost entirely based on hearsay. I also note that, given that he had been barred from the premises where he had shopped for almost two decades without any explanation, the DVD provided by the respondent showed the complainant to be remarkably calm, though clearly upset. There was certainly nothing in the DVD in question to indicate that there was even a remote possibility that he might pose a substantial risk of criminal or disorderly conduct or behaviour or damage to property. His demeanour at the hearing attested to this, as did the testimony of the witnesses on his behalf. I am therefore satisfied that there is no credible evidence of the complainant having carried out any behaviour remotely approaching the high bar required for the respondent to avail of Section 15(1).
Discrimination
5.4. Both parties spent some considerable time focussing their submissions on a number of disputes: the extent, if any, of the physical contact applied by Mr B to the complainant; the time of day the incident took place; who called the Gardai and when they were called. However, these particular disputes are immaterial to the substance of the complaint before this Tribunal, which is that the respondent is alleged to have treated the complainant less favourably than another person, without a disability, or with a different disability, would have been treated in the same or similar circumstances.
5.5. I note that the allegations being made by the complainant rest on the premise that his treatment by Mr. B was, in some way, motivated by his disability. Even if Mr B was not aware of that disability, the complainant nonetheless submits that the reason for his being barred from the respondents premises was related to his disability and so ultimately led to Mr B taking the action that he did. I am satisfied that if the respondent was not aware of the complainant’s disability in that context, then it could not have discriminated against him on that ground, taking into account all the circumstances of the present case. Therefore, the key dispute in this particular complaint is whether or not the respondent was aware that the complainant had a disability. Only if I am satisfied that it was so aware do I need to consider whether the treatment of the complainant was less favourable on the disability ground.
5.6. I am satisfied based on the evidence presented that the complainant has a disability within the meaning of the Acts. I am also satisfied that the complainant has established that a person who became reasonably acquainted with him, but who hadn’t been told by him directly that he had a disability, nonetheless might reasonably become aware of his disability over time, through observation and/or inquiry of third parties. Conversely, I am satisfied, based on all the evidence presented to me regarding the present complaint that, in general, a person whose contact with the complainant was infrequent and/or only in passing would not necessarily conclude that he had a disability. I also note that, while the complainant did not keep his disability a secret, equally he did not advertise it widely.
5.7. It is therefore not enough for the complainant to say that he didn’t have a difficulty telling people about his disability, the inference being that, given how long he had been shopping in the respondent’s premises, the respondent should and would have known about it. The onus is on the complainant to prove his prima facie case and I am not satisfied that any of the respondent’s staff would have known him frequently enough and/or well enough to have become aware of his disability in the context outlined in the previous paragraph. In such circumstances, then, the onus is on the complainant to prove that he explicitly made the respondent aware that he had a disability.
5.8. While I am satisfied that the complainant informed Mr X of his disability, he was not involved in the incident in question and there was no evidence that he informed other members of staff of the complainants disability. In particular, there was no evidence that any member of the management of the respondent, or anyone directly involved in the incident in question, were told by Mr X that the complainant had a disability. I am also satisfied that it cannot properly be inferred from any of the evidence, including the testimony of the complainant, that he had made any existing member of the respondents staff, other than Mr X, aware of his disability.
5.9. Therefore, I do not, on the balance of probabilities, find that the complaint has proven that the respondent was aware of his disability in the context in which the alleged incidents of prohibited conduct took place, as outlined in paragraph 5.5 above. In that context, I must conclude that the treatment of the complainant by Mr B, or any other treatment of the complainant by the respondent in relation to the issues at stake in this complaint, was not connected with the complainant’s disability. Consequently, the respondent did not discriminate against him on that basis, and so the complainant has failed to establish a prima facie case of discrimination on the ground of disability and his complaint fails.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a) , 3(2)(g) and Section 5(1) of the Equal Status Acts.
6.3. Accordingly, the complainant’s case fails.
_____________
Gary O’Doherty
Equality Officer
2 March 2010
DEC-S2004-025 Full Case Report
Maguire v Bob’s News & Deli, Dublin
1. Dispute
This dispute concerns a complaint by Claire Maguire that she was discriminated against on the disability ground by Bob’s News & Deli, Darndale, Dublin. The complainant maintains that she was discriminated against on the grounds of her disability in terms of Section 3(1), Section 3(2)(g) and Section 4 of the Equal Status Act 2000.
2. Summary of the Complainant’s Case
Ms Maguire states that, following a car accident in the 1970s, she became seriously disabled and had to have a number of operations on her back. As a result, she says that she now has great difficulty walking and can only do so for short periods with the help of a cane. Prior to 26 July 2002, the staff of Bobs News & Deli used to facilitate her by getting her groceries for her while she waited outside the door in her motorised four-wheeled scooter. On 26 July 2002, the manager of the shop came outside to her, accused her of being able to walk and told her that in future she was to come into the shop herself if she wanted to purchase goods.
3. Summary of Respondent’s Case
The respondents accept that Ms Maguire was told that in future she would have to come into the shop herself if she wanted goods. They say that she was told this, after the manager Ms Michelle McCullagh, had seen Ms Maguire walking around a large Chain Store with the help of a cane some days earlier. The manager explained that, up to that point, she had believed that Ms Maguire was unable to walk, which is why staff were permitted to assist her when she arrived at the door on her scooter. As it was now obvious that Ms Maguire could walk, Ms McCullagh decided that, for security reasons, staff should remain at their tills and not be leaving their positions to get groceries for Ms Maguire.
4 Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O’Byrne, 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 Act, 2000.
5.2 Principal Items of Evidence – Complainant
Ms Maguire says that her ability to walk changes from day to day depending on the pain and discomfort she is experiencing. When she is able to get around, with the assistance of a cane, she can only do so very slowly and for very short periods.
Ms Maguire’s family purchased a motorised scooter for her to enable her to get around outdoors.
When Ms Maguire first tried to get her scooter into Bobs new shop, which opened in
January 2002, she says that she had difficulty turning around in the store and had to ask staff to move displays to accommodate her. After that she decided not to go into the shop but to wait at the door and let the staff get her goods for her
Ms Maguire said that all the staff of Bobs were most helpful to her and always went out of their way to look after her. Because of the staff’s co-operation, she said that she used to visit Bobs nearly every day in the 6 months leading up to 26 July 2002 and get the groceries she needed.
She also said that the staff were always very friendly and used to put things in her bag for her. She explained that, because of her disability, she would have had trouble trying to carry the bag around the shop herself.
On 26 July 2002, after she had got her groceries as usual, the manager, Ms Michelle
McCullagh, suddenly came out of the shop and called loudly after her. Ms McCullagh
said to her that she had seen her walking around a chain store a few days beforehand and that she “didn’t think you could walk”. Ms McCullagh then informed her that her staff would not be coming out to help her in future and that she could walk into the shop if she wanted anything in future. She said that Ms McCullagh started “roaring ” at her and eventually told her that she was “barred”.
When Ms Maguire got home, she got very upset as Ms McCullagh had “made an
exhibition” of her outside the shop. Her son then went down to the shop and spoke to Ms McCullagh’s father and brother, who are also involved in the business, but got no joy from them.
Because of the incident, Ms Maguire did not return to Bobs for 18 months. She revisited the shop in January 2004 when a friend told her that the layout had been improved and that it would now be possible to negotiate around the floor in her scooter.
Principal Items of Evidence – Respondents
Bobs News & Deli moved to new premises in Darndale in January 2002. The premises is wheelchair accessible and has a number of wheelchair users who have been regular visitors over the past two years.
In the opinion of the respondents, Ms Maguire’s scooter would not have created a
problem in the shop and they questioned her assertion that she could not negotiate around the floor when she tried initially.
The shop was recently redeveloped and it is now even better equipped to cater for
mobility-impaired customers.
Michelle McCullagh has been running the shop with her father and brother for many
years.
Ms McCullagh knows Ms Maguire well from her calling to the shop over the years but
she personally had not dealt with her directly at any stage
Ms McCullagh always assumed that Ms Maguire was permanently disabled as she had only ever seen her in her scooter. For this reason she was happy to allow staff to assist Ms Maguire whenever she called to the door of the shop.
She was fully aware of the practice where Ms Maguire came to the door and called in her order to the girl on the till. The girl then arranged for the goods to be gotten from the shelves and brought out to Ms Maguire who then paid for them.
A few days prior to 26 July 2002, Ms McCullagh came upon Ms Maguire in a large chain store and was “shocked” to see her walking around with the help of a cane. She said that she saw Ms Maguire “hobbling along with a stick” and going up and down a few aisles. She said that she watched her in disbelief as she had always thought that Ms Maguire was permanently confined to her scooter.
When Ms McCullagh next returned to Bobs, she mentioned to staff that she had been
surprised to see Ms Maguire walking around. In response, some members of staff
indicated that they had already known this for some time, as they live in the area and
often see Ms Maguire in the locality.
When Ms McCullagh noticed Ms Maguire outside Bobs a few days later, she went out after her and told her that she had seen her walking around a store a few days earlier and that she had not known that Ms Maguire could get around with the help of a cane.
She then told her that, as she was able to walk, she should not be asking staff to leave their tills to assist her and that, in future, she should bring her stick with her and come into the shop herself to get her goods. She said that the security man could look after the scooter if Ms Maguire was concerned about it.
Ms McCullagh said that, at that point, Ms Maguire got annoyed and asked her if she was “questioning her disability”. Ms McCullagh replied that she was not but that she now knew that she could walk. At no time did they discuss the details of Ms Maguire’s disability.
Ms McCullagh at no time told Ms Maguire that she was barred and expected that she
would be back to visit the shop again
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably
than another person is, has been or would be treated. Section 3(2)(g) of the Act specifies the disability ground as one of the grounds covered by the Act. Section 4 of the Equal Status Act 2000 states that “discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment
or facilities it would be impossible or unduly difficult for the person to avail himself or
herself of the service.
6.2 In this particular instance, the complainant claims that she was discriminated against
on the grounds of her disability contrary to Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Act, 2000 in the manner in which Ms McCullagh dealt with her on 26 July 2002. In cases such as this, the burden of proof initially lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If a prima facie case is established, the burden of proof then shifts to the respondents.
7 Conclusions of the Equality Officer
7.1 At the outset, I must first consider whether the existence of a prima facie case has
been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the disability ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the
treatment someone, not covered by that ground, would have received in similar
circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the
difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.6 What constitutes “prima facie evidence’ and how a “prima facie case” is established
has been documented and considered in previous cases such as Sweeney v Equinox
Nightclub DEC-S2002-031.
7.7 In the case before me, I consider that the following pieces of evidence to be the most
persuasive and compelling:
There is no evidence whatsoever before me to suggest that Claire Maguire ever tried to mislead people into thinking that she could not walk
It is clear that some staff of Bob’s News & Deli were aware for a long time of Ms
Maguire’s ability to walk a little, but were still happy to assist her when she called to the door of the shop each day
Ms Maguire was a regular customer of Bobs and seemed to get on very well with the
shop’s staff
The incident on 26 July 2002 arose directly from Ms McCullagh’s belated and
unexpected discovery that Ms Maguire was able to walk a little
Ms McCullagh’s approach to Ms Maguire on 26 July 2002 appears to have been driven by a perception on Ms McCullagh’s part that Ms Maguire may have been abusing the goodwill of staff in getting them to get her groceries for her
It seems clear, from the testimony of both individuals, that no attempt was made by Ms McCullagh to discuss with Ms Maguire the nature of her illness, the difficulties that she encounters or what could be done to alleviate her difficulties.
7.8 As stated above, Section 4 of the Equal Status Act 2000 states that “discrimination
includes a refusal or failure by the provider of a service to do all that is reasonable to
accommodate the needs of a person with a disability by providing special treatment or
facilities, if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.” Of importance here is the
fact that the Act states that it does not have to be impossible for someone to do something, merely “unduly difficult”.
7.9 The question as to what constitutes “reasonable accommodation” has been addressed in many employment equality cases previously and much emphasis has been placed on the failure of employers to engage in an acceptable level of consultation on the specific needs of a person with a disability. Both the Equality Tribunal and the Labour Court have issued a considerable body of decisions requiring a high standard of consultation in such cases and I can see no reason why similar standards should not be applied in Equal Status cases, considering that the legal provisions are effectively the same. For example, in A Health and Fitness Club v a Worker, (EED037), the Labour Court said that: “before coming to that view [that the employee was not capable to do the job by reason of their disability], the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition, and that the employee is given fair notice [if extreme measures, such as dismissal for incapacity, are under consideration]. The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms, this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability, including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer, either from the employee’s doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable , section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. ……… Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.” Similar principles on the need to consult the person with a disability about their needs and suggestions for “reasonable accommodation”, before making a decision, can be found in A Computer Company v A Worker, Labour Court, EE01/3, 18 July 2001; and in Mr O v A Named Company, (Equality Tribunal DEC-E2003-052)
7.10 There is, of course, an obvious distinction to be made between the employment and
equal status context and that is that one would expect the standard of “reasonable
accommodation” in an employer/employee situation to be higher, since the relationship may be different and more long-term, than that between a service provider and a customer.
However, I consider that the standard must clearly be the same for something as basic as the need to consult with the person with a disability and I also consider that a service provider cannot be deemed to be providing “reasonable accommodation” unless they have taken proper account of the needs and views expressed by the person with the disability, who obviously has first hand knowledge of their condition.
7.11 In the case before me, Ms McCullagh decided herself, on discovering that Ms
Maguire was able to walk, that Ms Maguire was capable of doing her own shopping in Bobs Mini-Mart. This decision was taken without discussion with Ms Maguire as to whether it would be “unduly difficult” for her to use her cane to come into the shop and without consultation on how she was to choose and carry her own goods around the shop.
By not talking to Ms Maguire, I consider that Ms McCullagh did not sufficiently explore
what could be reasonably done to accommodate the needs of Ms Maguire, in accordance with Section 4 of the Equal Status Act 2000. Instead, it would appear that Ms McCullagh took a very “heavy-handed” approach with Ms Maguire and I consider that the treatment afforded Ms Maguire on 26 July 2002 constituted a failure on Ms McCullagh’s part to comply with the requirements of the Equal Status Act 2000. Accordingly, I find that the complainant has established a prima facie case of discrimination and that the respondent has failed to rebut the allegation.
8 Decision
8.1 I find that the complainant was discriminated against, contrary to Section 3(1), Section 3(2)(g) and Section 4 of the Equal Status Act 2000, by Bobs News & Deli on 26 July 2002 on the grounds of her disability.
8.2 In considering the level of redress which would be appropriate, I have taken into account the fact that the evidence before me suggests that the staff of Bobs News & Deli have been most accommodating to Ms Maguire over the years and that there is no evidence whatsoever to suggest that the shop operates any form of discriminatory policy against people with disabilities. I, therefore, consider that what happened on 26 July 2002 was an isolated incident and arose from a “spur of the moment” decision by Ms McCullagh. However, as a result of the incident, Ms Maguire did not frequent the shop again for 18 months. As I have found that discrimination did occur, I order that the respondents pay Ms Maguire the sum of €500 for the humiliation, upset and distress suffered by her. As Ms Maguire is now visiting the shop again, I also order that Bobs News & Deli ensure that all staff are reminded of their obligations towards people with disabilities under the Equal Status Act 2000 and that Ms Maguire is provided with reasonable accommodation and assistance whenever she calls to the shop in the future.
Brian O’ Byrne
Equality Officer
27 February 2004
DEC-S2003-121 Full Case Report
Barnes v John Adams Hair Stylists, Santry
1. Key words
1.1 Equal Status Act 2000 – Direct discrimination, section 3(1)(a) – Disability, section 3(2)(g) – Victimisation, section 3(2)(j) – Supply of goods and services, section 5(1) – Reasonable Accommodation, Section 4(1) – Nominal Cost, Section 4(2) – Prima Facie Case.
2. Dispute
2.1 This dispute concerns a complaint by Alison Barnes that she was discriminated against on the disability and victimisation grounds in terms of sections 3(1)(a) and 3(2)(g) and (j) of the Equal Status Act 2000, in being afforded less favourable treatment by the respondent, in the provision of a service which is generally available to the public, contrary to Section 5(1) of the Act. This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated this complaint to me, Dolores Kavanagh, 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 Act, 2000.
3 Summary of Complainant’s Case
3.1 The complainant, a wheelchair user, states that she was denied access to hairdressing services on 21 April, 2001 when she attended at the respondent premises and sought service there. The complainant had previously availed of the services provided in the respondent salon at the direct invitation of the manager of the premises. She had been treated so well and had found the facilities provided suitable to the extent that she made an appointment to have her hair permed on 21 April 2001. The stylist with whom the appointment was made was aware of Ms. Barnes disability as she had attended to Ms. Barnes on the earlier occasion. When the complainant attended the salon on 21 April 2001 the preferred stylist was unavailable and another was appointed to attend the complainant. This stylist ignored the complainant and addressed herself exclusively to the complainant’s sister. The stylist stated that if the complainant could not get out of her wheelchair and use one of the salons chairs she could not have the required treatment, a perm, as it would not be possible to rinse the perm lotion safely from her hair. Specifically, there was a danger that the perm lotion would run down the complainant’s face and possibly enter her eyes. At the Hearing of the complaint the complainant produced a photo album containing a number of photos of herself, taken over a number of years, in each of which she had her hair permed. She had had the perms applied in another salon on a number of successive occasions and had no difficulty in bending her head back over the sink. The only facility required to ensure her safety on those occasions was that a second staff member assisted in holding her head steady when the rinsing was taking place. The complainant’s sister provided evidence at Hearing which corroborated the complainant’s account. The complainant was embarrassed and humiliated by the behaviour of the stylist attending her and the stylist’s complete failure to even discuss the matter with the complainant
4 Summary of the Respondent’s Case.
4.1 The manager of the respondent premises, the only person to attend at the Hearing of this complaint on the respondent’s behalf, denies that discrimination took place and states that the complainant was simply unfortunate on the day in question in that the staff whowere present handled the matter very badly. The salon is wheelchair accessible and every effort is made to accommodate wheelchair users. In fact a number of wheelchair users who have different disabilities to the complainant have had their hair permed in the salon. This is due to the fact that the type of wheelchair which they use, which differs from the complainant’s , can be pushed back further to the sinks in the salon thus making rinsing much easier. The manager was not present on the day in question and was relating what had been told to him by the manageress who was present on the day, who in turn had been told what had happened by the attending stylist. The manager apologised for any embarrassment caused to the complainant but stated that he still would not attempt to perm the complainant’s hair for the reasons already stated.
5. Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant in relation to each of the grounds under which he has lodged his complaint. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (the disability and victimisation ground in this case)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances. If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5.2 Victimisation Ground The complainant has provided no evidence to establish how she comes within the terms of Section 3(2)(j) , subsections (i) to (v). The complainant has not established that she is covered by the victimisation ground and has not therefore established a prima facie case of victimisation.
5.3 Disability Ground
The complainant is a wheelchair user. This satisfies (a) at 5.1 above. The complainant has given evidence that she was refused service in the respondent premises on the date in question and this has been confirmed by the respondent. This satisfies (b) at 5.1 above. The manager of the respondent salon stated that service was refused as a result of the type of wheelchair used by the complainant, a difficulty that clearly non-wheelchair users simply would not encounter. This satisfies (c) at 5.1 above. I am satisfied that an inference of discrimination by the respondent arises on the disability ground.
6 Disability Ground – Specific Statutory Considerations
6.1 Section 4 of the Equal Status Act provides that
(1) discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. Section 4 of the Act requires all service providers to provide facilities for the disabled in order to allow that they can avail of the service provided without undue difficulty. However, Section 4 also allows that where the provision of such facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable.
6.2 In the matter at hand the complainant has indicated that her wheelchair had not posed any difficulties in the course of her earlier visit to the respondent salon and that the only special facility which she might require in order to safely avail of the required services in the respondent salon is that a second member of staff assists in holding her head steady during the rinsing process. This facility is precautionary as the complainant states that she can bend her head back over the sink without undue difficulty while in her wheelchair. 6.3 The respondent has provided no evidence to show that any effort was made to facilitate the complainant in order to accommodate her, or that the provision of any special facility required would entail anything other than the most minimal of costs. The complainant had previously attended at the respondent premises, albeit for a different treatment to her hair, and had had her hair rinsed without any additional facilities whatsoever being provided. On the earlier occasion the model and dimensions of her wheelchair had not hampered the rinsing of her hair in any way and she had not experienced any water or other material running down her face. While the respondent cites concerns about the possibility of the perm solution getting into the complainant’s eyes as the key reason for refusing the service, no evidence whatsoever was presented to indicate how this might arise on this specific occasion when it did not arise in the course of the earlier visit when the complainant had had chemicals, albeit different chemicals but which are also potentially dangerous, applied to her hair without question. Furthermore, while the complainant affirmed that she was treated very well by the staff of the respondent premises in the course of her earlier visit there, on this specific occasion the stylist appointed to carry out the service to the complainant completely ignored the complainant and spoke exclusively to the complainant’s sister. It was clear in the course of the Hearing that the complainant is clear and articulate in both her thinking and her speech and being ignored in such a manner was humiliating and infuriating to her.
6.4 In the circumstances, taking all of the evidence provided into consideration, I am satisfied, on the balance of probabilities, that the complainant was discriminated against on the disability ground, contrary to Section 3(1) and 3(2) (g) of the Equal Status Act 2000 in terms of Section 5 of that Act.
DEC-S2004-025 Full Case Report
Claire Maguire v Bob’s News & Deli, Dublin
1. Dispute
This dispute concerns a complaint by Claire Maguire that she was discriminated against on the disability ground by Bob’s News & Deli, Darndale, Dublin. The complainant maintains that she was discriminated against on the grounds of her disability in terms of Section 3(1), Section 3(2)(g) and Section 4 of the Equal Status Act 2000.
2. Summary of the Complainant’s Case
Ms Maguire states that, following a car accident in the 1970s, she became seriously disabled and had to have a number of operations on her back. As a result, she says that she now has great difficulty walking and can only do so for short periods with the help of a cane. Prior to 26 July 2002, the staff of Bobs News & Deli used to facilitate her by getting her groceries for her while she waited outside the door in her motorised four-wheeled scooter. On 26 July 2002, the manager of the shop came outside to her, accused her of being able to walk and told her that in future she was to come into the shop herself if she wanted to purchase goods.
3. Summary of Respondent’s Case
The respondents accept that Ms Maguire was told that in future she would have to come into the shop herself if she wanted goods. They say that she was told this, after the manager Ms Michelle McCullagh, had seen Ms Maguire walking around a large Chain Store with the help of a cane some days earlier. The manager explained that, up to that point, she had believed that Ms Maguire was unable to walk, which is why staff were permitted to assist her when she arrived at the door on her scooter. As it was now obvious that Ms Maguire could walk, Ms McCullagh decided that, for security reasons, staff should remain at their tills and not be leaving their positions to get groceries for Ms Maguire.
4 Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O’Byrne, 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 Act, 2000.
5.2 Principal Items of Evidence – Complainant
Ms Maguire says that her ability to walk changes from day to day depending on the pain and discomfort she is experiencing. When she is able to get around, with the assistance of a cane, she can only do so very slowly and for very short periods.
Ms Maguire’s family purchased a motorised scooter for her to enable her to get around outdoors.
When Ms Maguire first tried to get her scooter into Bobs new shop, which opened in
January 2002, she says that she had difficulty turning around in the store and had to ask staff to move displays to accommodate her. After that she decided not to go into the shop but to wait at the door and let the staff get her goods for her
Ms Maguire said that all the staff of Bobs were most helpful to her and always went out of their way to look after her. Because of the staff’s co-operation, she said that she used to visit Bobs nearly every day in the 6 months leading up to 26 July 2002 and get the groceries she needed.
She also said that the staff were always very friendly and used to put things in her bag for her. She explained that, because of her disability, she would have had trouble trying to carry the bag around the shop herself.
On 26 July 2002, after she had got her groceries as usual, the manager, Ms Michelle
McCullagh, suddenly came out of the shop and called loudly after her. Ms McCullagh
said to her that she had seen her walking around a chain store a few days beforehand and that she “didn’t think you could walk”. Ms McCullagh then informed her that her staff would not be coming out to help her in future and that she could walk into the shop if she wanted anything in future. She said that Ms McCullagh started “roaring ” at her and eventually told her that she was “barred”.
When Ms Maguire got home, she got very upset as Ms McCullagh had “made an
exhibition” of her outside the shop. Her son then went down to the shop and spoke to Ms McCullagh’s father and brother, who are also involved in the business, but got no joy from them.
Because of the incident, Ms Maguire did not return to Bobs for 18 months. She revisited the shop in January 2004 when a friend told her that the layout had been improved and that it would now be possible to negotiate around the floor in her scooter.
Principal Items of Evidence – Respondents
Bobs News & Deli moved to new premises in Darndale in January 2002. The premises is wheelchair accessible and has a number of wheelchair users who have been regular visitors over the past two years.
In the opinion of the respondents, Ms Maguire’s scooter would not have created a
problem in the shop and they questioned her assertion that she could not negotiate around the floor when she tried initially.
The shop was recently redeveloped and it is now even better equipped to cater for
mobility-impaired customers.
Michelle McCullagh has been running the shop with her father and brother for many
years.
Ms McCullagh knows Ms Maguire well from her calling to the shop over the years but
she personally had not dealt with her directly at any stage
Ms McCullagh always assumed that Ms Maguire was permanently disabled as she had only ever seen her in her scooter. For this reason she was happy to allow staff to assist Ms Maguire whenever she called to the door of the shop.
She was fully aware of the practice where Ms Maguire came to the door and called in her order to the girl on the till. The girl then arranged for the goods to be gotten from the shelves and brought out to Ms Maguire who then paid for them.
A few days prior to 26 July 2002, Ms McCullagh came upon Ms Maguire in a large chain store and was “shocked” to see her walking around with the help of a cane. She said that she saw Ms Maguire “hobbling along with a stick” and going up and down a few aisles. She said that she watched her in disbelief as she had always thought that Ms Maguire was permanently confined to her scooter.
When Ms McCullagh next returned to Bobs, she mentioned to staff that she had been
surprised to see Ms Maguire walking around. In response, some members of staff
indicated that they had already known this for some time, as they live in the area and
often see Ms Maguire in the locality.
When Ms McCullagh noticed Ms Maguire outside Bobs a few days later, she went out after her and told her that she had seen her walking around a store a few days earlier and that she had not known that Ms Maguire could get around with the help of a cane.
She then told her that, as she was able to walk, she should not be asking staff to leave their tills to assist her and that, in future, she should bring her stick with her and come into the shop herself to get her goods. She said that the security man could look after the scooter if Ms Maguire was concerned about it.
Ms McCullagh said that, at that point, Ms Maguire got annoyed and asked her if she was “questioning her disability”. Ms McCullagh replied that she was not but that she now knew that she could walk. At no time did they discuss the details of Ms Maguire’s disability.
Ms McCullagh at no time told Ms Maguire that she was barred and expected that she
would be back to visit the shop again
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably
than another person is, has been or would be treated. Section 3(2)(g) of the Act specifies the disability ground as one of the grounds covered by the Act. Section 4 of the Equal Status Act 2000 states that “discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment
or facilities it would be impossible or unduly difficult for the person to avail himself or
herself of the service.
6.2 In this particular instance, the complainant claims that she was discriminated against
on the grounds of her disability contrary to Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Act, 2000 in the manner in which Ms McCullagh dealt with her on 26 July 2002. In cases such as this, the burden of proof initially lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If a prima facie case is established, the burden of proof then shifts to the respondents.
7 Conclusions of the Equality Officer
7.1 At the outset, I must first consider whether the existence of a prima facie case has
been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the disability ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the
treatment someone, not covered by that ground, would have received in similar
circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the
difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.6 What constitutes “prima facie evidence’ and how a “prima facie case” is established
has been documented and considered in previous cases such as Sweeney v Equinox
Nightclub DEC-S2002-031.
7.7 In the case before me, I consider that the following pieces of evidence to be the most
persuasive and compelling:
There is no evidence whatsoever before me to suggest that Claire Maguire ever tried to mislead people into thinking that she could not walk
It is clear that some staff of Bob’s News & Deli were aware for a long time of Ms
Maguire’s ability to walk a little, but were still happy to assist her when she called to the door of the shop each day
Ms Maguire was a regular customer of Bobs and seemed to get on very well with the
shop’s staff
The incident on 26 July 2002 arose directly from Ms McCullagh’s belated and
unexpected discovery that Ms Maguire was able to walk a little
Ms McCullagh’s approach to Ms Maguire on 26 July 2002 appears to have been driven by a perception on Ms McCullagh’s part that Ms Maguire may have been abusing the goodwill of staff in getting them to get her groceries for her
It seems clear, from the testimony of both individuals, that no attempt was made by Ms McCullagh to discuss with Ms Maguire the nature of her illness, the difficulties that she encounters or what could be done to alleviate her difficulties.
7.8 As stated above, Section 4 of the Equal Status Act 2000 states that “discrimination
includes a refusal or failure by the provider of a service to do all that is reasonable to
accommodate the needs of a person with a disability by providing special treatment or
facilities, if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.” Of importance here is the
fact that the Act states that it does not have to be impossible for someone to do something, merely “unduly difficult”.
7.9 The question as to what constitutes “reasonable accommodation” has been addressed in many employment equality cases previously and much emphasis has been placed on the failure of employers to engage in an acceptable level of consultation on the specific needs of a person with a disability. Both the Equality Tribunal and the Labour Court have issued a considerable body of decisions requiring a high standard of consultation in such cases and I can see no reason why similar standards should not be applied in Equal Status cases, considering that the legal provisions are effectively the same. For example, in A Health and Fitness Club v a Worker, (EED037), the Labour Court said that: “before coming to that view [that the employee was not capable to do the job by reason of their disability], the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition, and that the employee is given fair notice [if extreme measures, such as dismissal for incapacity, are under consideration]. The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms, this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability, including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer, either from the employee’s doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable , section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. ……… Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.” Similar principles on the need to consult the person with a disability about their needs and suggestions for “reasonable accommodation”, before making a decision, can be found in A Computer Company v A Worker, Labour Court, EE01/3, 18 July 2001; and in Mr O v A Named Company, (Equality Tribunal DEC-E2003-052)
7.10 There is, of course, an obvious distinction to be made between the employment and
equal status context and that is that one would expect the standard of “reasonable
accommodation” in an employer/employee situation to be higher, since the relationship may be different and more long-term, than that between a service provider and a customer.
However, I consider that the standard must clearly be the same for something as basic as the need to consult with the person with a disability and I also consider that a service provider cannot be deemed to be providing “reasonable accommodation” unless they have taken proper account of the needs and views expressed by the person with the disability, who obviously has first hand knowledge of their condition.
7.11 In the case before me, Ms McCullagh decided herself, on discovering that Ms
Maguire was able to walk, that Ms Maguire was capable of doing her own shopping in Bobs Mini-Mart. This decision was taken without discussion with Ms Maguire as to whether it would be “unduly difficult” for her to use her cane to come into the shop and without consultation on how she was to choose and carry her own goods around the shop.
By not talking to Ms Maguire, I consider that Ms McCullagh did not sufficiently explore
what could be reasonably done to accommodate the needs of Ms Maguire, in accordance with Section 4 of the Equal Status Act 2000. Instead, it would appear that Ms McCullagh took a very “heavy-handed” approach with Ms Maguire and I consider that the treatment afforded Ms Maguire on 26 July 2002 constituted a failure on Ms McCullagh’s part to comply with the requirements of the Equal Status Act 2000. Accordingly, I find that the complainant has established a prima facie case of discrimination and that the respondent has failed to rebut the allegation.
8 Decision
8.1 I find that the complainant was discriminated against, contrary to Section 3(1), Section 3(2)(g) and Section 4 of the Equal Status Act 2000, by Bobs News & Deli on 26 July 2002 on the grounds of her disability.
8.2 In considering the level of redress which would be appropriate, I have taken into account the fact that the evidence before me suggests that the staff of Bobs News & Deli have been most accommodating to Ms Maguire over the years and that there is no evidence whatsoever to suggest that the shop operates any form of discriminatory policy against people with disabilities. I, therefore, consider that what happened on 26 July 2002 was an isolated incident and arose from a “spur of the moment” decision by Ms McCullagh. However, as a result of the incident, Ms Maguire did not frequent the shop again for 18 months. As I have found that discrimination did occur, I order that the respondents pay Ms Maguire the sum of €500 for the humiliation, upset and distress suffered by her. As Ms Maguire is now visiting the shop again, I also order that Bobs News & Deli ensure that all staff are reminded of their obligations towards people with disabilities under the Equal Status Act 2000 and that Ms Maguire is provided with reasonable accommodation and assistance whenever she calls to the shop in the future.
Brian O’ Byrne
Equality Officer
27 February 2004
DEC-S2008-029 – Full Case Report
Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-029
Kenny v Sufi’s Cafe
Keywords
Equal Status Acts 2000 to 2004 – Discrimination on ground of disability, section 4(1) – Failure to attend a hearing – Refusal to provide reasonable accommodation to a customer
1. Delegation under the Equal Status Acts 2000 to 2004
1.1. Ms Kenny referred a claim on 18 March 2005 to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, 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 1 November 2007. A hearing was held on 28 April 2008.
2. Dispute
2.1. The dispute concerns a complaint by Ms Kenny that she was treated contrary to section 4(1) on the ground of her disability by the manager of Sufi’s Café on 10 February 2005 when her request to have the lights turned up was turned down. This resulted in Ms Kenny not been able to avail of the service.
3. Case for the Complainant
3.1. Ms Kenny suffers from a condition known as High Myopia and Bilateral Amblyopia. This means that Ms Kenny is rendered effectively blind in low and/or dim lighting. She maintains that in such conditions, any prolonged periods of ‘close work’ such as eating and drinking results in her getting severe headaches, sometimes accompanied by ‘auras’ (flashing lights and similar visual distortions). Ms Kenny adds that since January 2004 she has also suffered from vitreous detachment in her right eye that has resulted in the constant presence of floaters in her visual field, adding to her problems with inadequate lighting.
3.2. Ms Kenny had been a regular customer in Sufi’s Café and her requests for brighter lighting had always been accommodated to enable her to enjoy her refreshments without risk of spillage, breakages or mishaps.
3.3. On the 10 February 2005, Ms Kenny entered the premises after 9 pm. As usual, she requested that the lighting be turned up to allow her to safely negotiate her way over to her seat. This time, however, the manager on duty told her that, speaking on behalf of the owner, Ms Kenny’s request for brighter lighting would no longer be complied with. The manager gave Ms Kenny the following reasons:
1. During a recent electrical fault Ms Kenny remained in her seat and seemed to be able to cope in reduced lighting;
2. Ms Kenny insisted in sitting at a table other than the vacant one by the counter which the manager deemed to have enough light for Ms Kenny’s needs;
3. Ms Kenny was using the premises as a study area;
4. Ms Kenny was questioned on what she would do if she were to enter public house premises to meet a friend where extra lighting was not an alternative; and
5. The extra lighting was causing other customers to enquire whether the café/restaurant was about to close.
3.4. Because of this refusal to turn up the lighting, Ms Kenny claims that she was unable to safely and comfortably enter the premises and enjoy refreshments. This, she maintains, is a failure on behalf of the service provider, to provide her with what she considers reasonable accommodation as outlined in section 4(1) of the Acts.
3.5. Ms Kenny emphasised that she had always, until this incident, received courteous and pleasant service – besides the manager on this occasion – from the owner and staff at Sufi’s. She also pointed out that, while she understands that she needs to inform service providers about her condition, she should not have to continuously justify the reasons for her special requirements.
4. Case for the Respondent
4.1. The respondent failed to attend the hearing on Monday 28 April 2008 despite informing the equality officer of his intention to do so. Therefore, the respondent has presented no evidence to rebut any of the allegations made by the complainant.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In order for the complainant to establish a prima facie case of discrimination on the ground of disability the complainant she must satisfy the Tribunal that the treatment they received constituted less favourable treatment within the meaning of section 4 of the Equal Status Acts 2000 to 2004:
“For the purposes of this Act discrimination includes a refusal or failure by the provider of the a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.
5.3. I am satisfied that Ms Kenny suffers from a chronic visual disability. I also find that her account of the alleged incident is credible and that she had been refused special treatment or facilities by the respondent on 10 February 2005. The question that remains for me to examine is whether the failure to provide Ms Kenny with special treatment or facilities in this context constitutes less favourable treatment on the grounds of disability.
5.4. The complainant bears the initial burden of providing the primary facts upon which she relies in asserting the discrimination occurred. As this burden has been successfully discharged, the probative burden of establishing that the requirement to provide reasonable accommodation was not infringed shifts to the respondent.
5.5. This means that the onus is on the respondent to provide the Tribunal with evidence to support any legitimate justification as set out in sections 4(2), 4(3) and 4(4) to explain why reasonable accommodation was not available
5.6. As the respondent failed to attend the hearing, no such evidence has been presented to it and no legitimate reason established as to why Ms Kenny was refused the special treatment that she had, until 10 February 2005, received. It is unfortunate that a service provider who has had the benefit of engaging with a customer about their reasonable accommodation needs suddenly, and without any explanation, withdraws this treatment and creates a situation where the established customer is faced with a situation where it would be unduly difficult for her to avail of the service.
6. Decision
The complainant has established a prima facie case of discrimination on the ground of disability. In accordance with section 27(1)(a) I order the respondent to pay Ms Kenny €250 for the effects of the distress and unset caused; and
In accordance with section 27(1)(b) I make an order that Sufi’s Café ensures that all of its staff receive training on equality issues across the nine equality grounds and that particular care is taken in this training to ensure that all staff are informed of the service provider’s responsibilities in relation to accommodating diversity including the needs of customers with disabilities.
______________
Tara Coogan
Equality Officer
15 May 2008
DEC-S2007-064 – Full Case Report
Golden v Just Beds
1. Summary of the Complainant’s Case
1.1 The complainant, who was 80 years of age, suffered from a disability which impaired her ability to walk without a walking aid at the time of this incident. She is currently a wheelchair user due to the deterioration of her condition. Together with her husband she went to the respondent premises in 12th January 2004. They were intending to purchase a bed. On arrival the premises was closed for lunch but shortly thereafter the respondent appeared and proceeded to open the shop. By this time another potential customer had arrived, a young woman accompanied by a child in a buggy. The complainant said that when she went into the shop she was looking at beds and was seeking the attention of the respondent for service. She said that the respondent had started to deal with the woman who had come into the shop behind her and at first ignored her. She said she believed that she should have been attended to first. She persisted in attempting to get the respondent’s attention and then proceeded to progress through the shop to look at the furniture. She said that the respondent then called across to her saying “you can’t go in there”. She asked him “how am I to buy a bed?” He responded you cannot go in there because you will scratch the furniture. She said she was still quite near the front door of the shop and she believed he was implying her walking aid would cause damage. She said that the respondent continued to deal with the other customer who was not a disabled person and she overheard him saying “why is she here?” As she persisted in trying to get service she said that the respondent said to her “just go out”. She said she and her husband who was with her left the shop feeling very upset. She said she had purchased furniture there some years previously and she understood that the person who sold it to her was the respondent’s father.
1.2 She said that when they got home they discussed the incident with their son who had not been with them at the shop. Mrs Golden said that as she was still very upset two days later, particularly about why she might have been refused as she had never been refused in a shop previously. Her husband and son decided they should return to the shop and seek an apology. Mrs Golden said she waited in the car outside the shop while the others went in.
Evidence of Mr. Mark Golden (Complainant’s son)
1.3 Mr Golden said that he first found out about the incident when his parents told him about it on his return home from work in Dublin City on the day it happened. He said he found his mother to be quite upset about the incident and he decided with his father that they should seek an apology from the shop owner. He said his father was particularly annoyed as he was someone who could have given his custom elsewhere but had gone to the particular shop because he was keen to support local business in Dun Laoghaire, his native town. He wanted to confront the shop owner immediately about the incident but his father (now deceased) thought that they should let things settle down
1.4 He said that two days after the incident, as his mother was still quite distressed about it, he went to the respondent shop with his father. On their way in they coincidentally met a cousin of his who accompanied them inside. He said his mother remained in the car. Their intention was to seek an apology and that would have been the end of the matter. However, when they approached the respondent and sought an explanation for what had occurred, Mr Golden said that the respondent said that he did not owe anyone an apology and that his store did not have the facilities to deal with his mother’s disability. Mr Golden said he found the response to be flippant as he was prepared to drop the entire episode if he had got an apology. At that point they left the store and there has been no contact between the parties since then.
2. Summary of the Respondent’s Case
2.1 The respondent Mr Robert Furlong is the owner of Just Beds. He has owned the shop since 1993. He said that his father had never worked there so he did not know how the complainant could have dealt with him previously. He recalled the incident complained of reasonably well and he recalled Mrs Golden waiting at the shop with a gentleman when he returned late from lunch on the date of the incident. He said that the recalled the lady with the buggy being there at the time also and he believed it was this lady who entered the shop first. He specifically remembered assisting Mrs Golden entering the shop as he was concerned that her walking aid might get caught in the matting which was near the shop entrance. He said that he then returned to the serve the other customer. After about 10 – 15 minutes Mr. Furlong called across to Mrs Golden to warn her to look out for unassembled furniture which could be in her way as she was moving around the shop. He said that having to wait to be served seemed to irritate Mrs Golden. She then left the shop. He said he did not ask her to leave. As far as he could recall, Mrs. Golden’s husband said nothing.
2.2 He recalled that a day or two later three people came in together about the incident. He said he found that their approach to him was not very pleasant and he refused to deal with them.
2.3 Mr Furlong said that he did not have any specific facilities available on the premises for disabled people but that there was a ramp which disabled people could use to access the shop. This was also used for the movement of furniture. He said that the difficulties in access in the shop related to the nature of his stock which could be in an unassembled state in various places in the premises. He said that he did not have any particular concerns about disabled customers but he felt that Mrs Golden was not the steadiest person on a walking aid he had come across. He said that this was why he called across to Mrs Golden in order to warn her to look out for unassembled furniture such as bed frames and mattresses that might be in her way. He said he was the only person serving in the shop that day and generally this was the case. His recollection was that Mrs Golden had not asked him for assistance regarding any purchase she was going to make. He said that if she had asked he would have made an effort to move stuff out of the way in order for her to get by. He indicated that Mrs Golden would always be welcome as a customer of the shop.
3. Conclusions of the Equality Officer
3.1 The complainant in this case has grounded her complainant on the basis of her stated disability. At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that she is covered by the relevant discriminatory ground i.e. in this case that she has a disability. (2)It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not disabled nor had a different disability. If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if his defence is to succeed. In the case of disability further consideration may be made to the issue of the provision of reasonable accommodation to a disabled person, Section 4 of the Equal Status Act states as follows:
4. — (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination…
3.2 The first test set out above is whether the complainant, Elizabeth Golden is covered by the disability ground, i.e. is she considered disabled according to the definition of disability set down by the Equal Status Act 2000-2004. In the act
“disability” means —
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour 1;
Ms Golden suffers from arthritis which has affected both her knees and did so at the time of this incident. The condition has resulted in her requiring both knees to be replaced through surgery, one unsuccessfully. I am satisfied that the condition with which Mrs Golden lives is a disability within the meaning set out above and that therefore, Mrs. Golden is disabled within the terms of the Equal Status Act 2000-2004. This fact satisfies the first of the three criteria set out above.
3.3 The second criterion, that of whether the incident complained of actually occurred is my next consideration. In this case Mrs Golden has said that she was shouted at and refused service while shopping at Just Beds. The respondent denies that she was refused service and that while he may have raised his voice towards her it was only to draw her attention to the potential hazards that lay in her path around the shop and that he wanted to ensure that she heard him. Regarding the secondary incident, when Mrs Golden’s relatives sought an explanation and apology, it is agreed between the parties that such an encounter did occur. On the basis that on the balance of probabilities an incident/s did occur I accept that the second criterion is satisfied.
3.4 The third criterion to be satisfied in order for the complainant to establish a prima facie case of discrimination is that of less favourable treatment, i.e. she must show that the treatment she received was less favourable than that which would have been given to another person in similar circumstances who either did not have a disability or had a different disability to Mrs Golden. By all accounts the layout of this particular premises, posed potential hazards for customers due to the type of stock and its position within the shop. I conclude, therefore, that while the treatment afforded to Mrs Golden, while not the best of customer service and consideration is likely to be the treatment that would have been afforded to any customer who was making their way through the shop independently on the day of this incident. It remains then to consider the second element of the test, that which arises under Section 4 of the Equal Status Act 2000-2004. Was Mrs Golden provided with reasonable accommodation in the terms set out by section 4 of the Equal Status Act?
3.5 The evidence presented in this case points to a situation where, if facilities to deal with disability existed in Just Beds, their existence was merely a consequence of these facilities being required for other business purposes within the shop. The example of this is the presence of a ramp, the primary aim of which was to facilitate the movement of stock in and out of the premises but which could also be used by disabled customers. In Mrs Golden’s case a ramp was not the particular facility required. In the circumstances where it appears the layout of this shop premises was possibly, in the respondent’s view, hazardous for an unattended customer such as Mrs Golden and where she says herself that she was seeking assistance, I consider that at the very minimum a little time should have been taken by the respondent to enquire from the complainant, Mrs Golden, who he was aware was disabled, if she required assistance. I consider that a gesture as simple as this would have satisfied the criterion of reasonable accommodation in the case without exceeding the nominal cost requirement. It would also appear from the evidence that the provision of an apology following the event may have remedied the situation to the complainant’s satisfaction and brought matters to a conclusion, but this was not forthcoming.
3.6 I consider the shop layout was one, where if a hazard existed it was one that would have existed for all customers not only the disabled but that disabled customers required special facilities in the form of prompt assistance to avail of the services of Just beds. I conclude therefore, that sufficient reasonable accommodation was not made for Mrs Golden in accessing the service provided in Just Beds.
4. Decision and Redress
4.1
I find in favour of the complainant, Elizabeth Golden, in this case in terms of section 4(1) of the Equal Status act 2000-2004. In determining redress under section 27(a) of the Act, I consider that the sum of €350 (three hundred and fifty Euro) is appropriate and I therefore order the respondent Mr. Robert Furlong to pay the complainant this sum within 42 days of the date of this decision. I further order in accordance with Section 27(b) that the respondent put systems in place within his business to ensure that disabled customers receive prompt attention and service when they attend his premises.
Mary O’Callaghan
Equality Officer
10th August 2007
DEC-S2011-015- Full Case Report
Equal Status Acts 2000-2008
DEC-S2011-015
A Parent (on behalf of her son) v A Supermarket
File Reference: ES/2009/048
Date of Issue: 29th March 2011
Decision
DEC-S2011-015
Key words
Equal Status Act, 2000 – 2008, Direct discrimination, Section 3(1) – less favourable treatment – Disability, 3(2)(g) – refusal to provide a service, Section 5(1), Section 4 – refusal to provide reasonable accommodation Section 38A – prima facie case, Section 11 – harassment, Defence – section 11(3).
Delegation under Equal Status Acts, 2000-2008
The complainant on behalf of her son referred complaints to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 22nd April 2009. On the 22nd of November 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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 this date my investigation commenced. A submission was received from the complainant on the 8th October 2009 and from the respondent on 25th November 2009. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 10th of February 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant on behalf of her son that he was discriminated against on the disability ground when the respondent refused to allow his guide dog to stay in the shop. The complainant alleges that the respondent discriminated against her son in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant’s Case
2.1 The complainant submitted that she and her son together with his guide dog entered the respondent’s shop on the 28th January 2009. Her son is 7 years old and suffers from autism and he uses guide dog assistance for over 3 years. They walked around the shop and picked up some groceries and proceeded to the checkout. While they were in the queue they were approached by a member of security and they were asked to leave because dogs are not allowed in the shop. The complainant explained that the dog was a guide dog and pointed out the dog’s high visibility jacket with the identification of the Irish Guide Dogs Association on it. The security refused to accept this and asked them to leave. The complainant then called the manager who again refused to accept that the dog was a guide dog even after she showed him the dog’s ID from the Irish Guide Dogs Association. She said that the manager told them that neither of them was blind and he did not accept that the dog was assisting anyone and threw the ID back at her. He suggested that the dog was a pet and asked her and her son to leave the shop. She said that he was supported all the time by the security officer who was very aggressive towards them and was shouting at her to get out and called her a liar.
The complainant said that she left the shop after paying for the groceries and both she and her son were very distressed. She submits that the treatment they were subjected to constitutes discrimination and harassment of her son because of his disability.
2.2 The complainant contacted one of the Directors of the company and made a complaint. Following a meeting with him the complainant received a letter of apology. She was not satisfied that the respondent understood that discrimination had occurred or that procedures were in place to prevent it happening in the future. She said that she was in the shop without her son but with the guide dog on two other occasions, once she was approached by the manager and she told him she did not want to talk to him. The other occasion was about 6 months later and she was told by the same security guard that dogs were not allowed in the shop, but after she showed him the dog’s jacket he left her alone.
3 Respondent’s Case
3.1 The respondent denies that the complainant was discriminated against. The respondent accepted that the complainant and her son were asked to take the guide dog outside because the security person did not recognise him as a guide dog. The manager said that he recognised the dog as a guide dog but he did not see the guide dog assisting anybody. He said that he tried to explain to the complainant that the security guard may have thought that, because neither she nor her child are blind that they were not entitled to have the guide dog in the store. The manager denied that he said to the complainant that the dog was not assisting anybody and that neither she nor her son is blind.
3.2 The company director submitted that the security guard made an error of judgment and his actions were against company policy. The security guard had full training but the training did not include training about guide dogs. The security guard was disciplined about the incident. After the incident the company reviewed their training and ensured that all the employees were fully trained about all disability issues. They also sought advice from the Irish Guide Dogs Association. After the respondent received the complaint, the operations manager wrote to the complainant and apologised for the incident and offered an explanation. Further correspondence was entered into and the respondent sent the complainant and her son 2 vouchers in the amount of €300.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to the Equal Status Act and if the respondent failed to provide the complainant’s son with reasonable accommodation in accordance with Section 4 of the Acts.
I have also to consider whether the conduct of the respondent constituted harassment contrary to Section 11 of the Acts. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified… (in this case the disability ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds … are … that one is a person with a disability and the other either is not or is a person with a different disability,” and Section
5. — (1) provides: ” A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.
and Section 4 provides : — (1) “For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.”
The burden of proof is set out in Section 38A which provides:
38A. — (1)” Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”
4.2 The complainant submits that they were discriminated against on the grounds of disability when she and he were not allowed to shop accompanied by the guide dog. The respondent accepts that the complainant was asked to leave the shop because of the guide dog.
4.3 I am satisfied that the complainant’s son has a disability and is covered by the Equal Status Acts. I am also satisfied that the complainant was refused a service in the respondent’s shop when she and her son were requested to leave the shop because they were accompanied by a guide dog which was assisting a person with a disability. I note that the respondent accepts that the complainant was requested to leave the shop because of the guide dog. Therefore the matter I have to consider is whether that request constitutes failure to provide reasonable accommodation contrary to Section 4 of the Acts. Section 4 requires a respondent to provide “special treatment or facilities” for a person with a disability to enable them to avail of a service. In this case the complainant’s son was shopping with her in the respondent’s shop and she had in her possession all the identification necessary to establish that the dog which accompanied them was a guide dog assisting a child suffering from autism. The complainant said that the guide dog, which is provided by the Irish Guide Dogs Association, for children with autism, is a new service which is in operation for the last 7 or 8 years. The purpose of the guide dog is to direct children with autism and keep them safe. The dog is registered to her and she has full control of the dog at all times. She submitted that the guide dog is her son’s lifeline he guides him to and from school to the shops and when they are out and about.
4.4 From the evidence, I am satisfied that it would have been unduly difficult for the complainant’s son to go to the shops with his mother without the assistance of his guide dog. I am satisfied therefore that the respondent in asking that the guide dog be removed from the shop failed to provide reasonable accommodation to the complainant’s son. For the foregoing reasons I find that the respondent did unlawfully discriminate against the complainant by refusing to provide reasonable accommodation to a person with a disability in accordance with Section 4 of the Equal Status Acts when she was asked to remove the guide dog from the shop.
4.5 The next matter I have to consider is whether the complainant was harassed contrary to the Acts. Section 11 of the Acts provides inter alia:
11. — (1) “A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (”the victim”) where the victim —
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
…………….
(2) A person (”the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.
………
(5) (a) In this section —
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
….
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
4.6 The complainant submitted that the security officer acted in an aggressive manner towards them when he asked them to leave the store because of the guide dog. She said that he shouted at them to get out and called her a liar and said that they could not have the dog in the store because neither of them were blind. She also said that when the manager came on the scene he disregarded the ID for the dog and threw it back at her. She informed him that the dog was a guide dog. She said that he also shouted at them that neither of them was blind and that the dog was a pet and was not allowed in the store. The complainant stated that her son because of his condition is very sensitive to loud noises and lights and he became very upset at the shouting and when they left the shop a customer had to come to her assistance. She denied that she ever raised her voice. The manager stated that he went to the checkout after he heard commotion. He said that there was shouting by all parties and when he tried to explain to the complainant why the security guard had assumed the dog was not a guide dog the shouting continued. I am satisfied from the evidence that the security man did shout abuse and call names during the course of the incident and he thereby created an intimidating and hostile environment for the complainant and her son while they were shopping in the respondent’s store. I am satisfied therefore that the complainant was harassed contrary to the Acts.
The next matter I have to consider is whether the defence under section 11(3) applies. Section 11(3) provides:
(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.
4.7 I note that when the manager came on the scene he did not make any attempt to stop the abusive behaviour of the security guard and in fact the shouting and abusive treatment continued until the complainant and her son left the shop. I am satisfied that the manager took no steps to prevent the harassment of the complainant and I find therefore that the defence cited above does not apply.
5. Decision
5.1 I find that the complainant was discriminated against on the disability ground contrary to the Equal Status Acts. Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
5.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant’s son. I note his sensitivity to noise and that he was upset and crying after he left the shop. Likewise I note that the respondent did apologise for the incident and offered vouchers to the complainant and her son. Taking these matters into consideration, I order the respondent to pay to the complainant on behalf of her son the sum of €1,500 (one thousand five hundred euro) to compensate him for the discriminatory treatment in relation to his guide dog and the distress and upset experienced by him as a result of the harassment.
___________________
Marian Duffy
Equality Officer
29th March 2011
DEC-S2008-073 – Full Case Report
Equal Status Acts, 2000-2008
Equality Officer Decision No. DEC-S2008-073
Moloney v Park House Hotel
(Represented by Deirdre Gearty, Solicitor,
F.J. Gearty & Co., Solicitors)
Keywords
Equal Status Acts 2000 to 2008 – Direct discrimination, section 3(1) – Discrimination on ground of disability, section 3(2)(g) – Reasonable accommodation, section 4(1) – supply of goods and services, section 5(1) – visually impaired – guide dog – hotel accommodation.
1. Delegation under the Equal Status Acts 2000 to 2008
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On the 26th June 2008 in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts 2000 to 2004, the Director delegated the case to me, James Kelly, 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, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 19th September, 2008.
2. Summary of claim
2.1 This claim concerns a complaint by Mr. Gabriel Moloney that he was discriminated against by the respondent on the disability ground in terms of section 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts 2000 to 2004 in not being provided with a service, which is generally available to the public contrary to section 5(1) of the Equal Status Acts 2000 to 2004. The claim was notified to the respondent by letter on the 28th September, 2006. This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004 on the 1st February, 2007.
3. Complainant’s Case
3.1 Mr. Moloney, the complainant, is visually impaired and is a guide dog owner. He and his brother attended a wedding in Donegal on the weekend of the 4th – 6th of August, 2006 and on their return to home on the Sunday evening Mr. Moloney’s brother’s car experienced mechanical difficulties and broke down in Edgeworthstown, Co. Longford, between 11 – 11:30pm. They were accompanied by Mr. Moloney’s guide dog on that evening. After enquiring locally about the possibility of getting accommodation in the vicinity; they were directed to the Park House Hotel.
3.2 Ms. A was acting manager on duty in the hotel on the night of the 6 August 2006, and after checking room availability she was able to offer Mr. Moloney and his brother the last available room in the hotel for that night. Mr. Moloney states that as a matter of courtesy he informed her that he would be accompanied by his guide dog. Ms. A said that the hotel had a “no dogs allowed” policy and the dog would not be allowed to accompany him on the premises.
3.3 Mr. Moloney and his brother were quite taken back by the refusal to allow the guide dog accompany them and tried to discuss the issue with Ms. A. Mr. Moloney produced documentation which would identify him as a registered member of the National Council for the Blind and he explained that he and his guide dog comply with the guidelines issued by the Irish Guide Dog Association in that he carries special bedding for the dog for stays away from home and that the dog has been specially trained so as not to cause a nuisance or inconvenience to the hotel or its patrons. However, after discussing the issues with Ms. A, she held her position that the hotel had a “no dogs allowed” policy and the guide dog would not be allowed to stay in the hotel. Mr. Moloney felt he had no choice but to leave the hotel and seek alternative accommodation elsewhere, as the offer of the room was not available for the complainant’s guide dog and no alternative arrangement was discussed as an option.
3.4 Mr. Moloney states that they were very upset and highly inconvenienced, in light of the extremely difficult circumstances they found themselves in, insofar as their car had broken down in a small town late on a Sunday night, with the added difficulty and stress of trying to secure accommodation so late on in the night.
4. Respondent’s Case
4.1 The respondent accepts that the treatment accorded to Mr. Moloney and his brother on the night of the 6 August, 2006 was wrong and is regrettable. The manager on duty on the night made an error of judgement and it is now obvious that she was unaware that guide dogs were an exception to the hotel’s “no dogs allowed” policy.
4.2 The respondent apologises for the upset and inconvenience caused and had offered the complainant the opportunity to come and stay in the hotel with a guest free of charge whenever he is passing that way again. The respondent stated that they do not wish to offer any rebuttal of the facts presented.
5. Conclusions of the Equality Officer
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
5.2 In the present case before me for consideration, the complainant is visually impaired and I am satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts 2000 to 2008.
5.3 It is accepted by both parties that the complainant visited the respondent’s hotel on the night of the 6 August, 2006 and I am satisfied that the complainant and his brother, were both initially offered accommodation for the night. It is also accepted by both parties that the complainant was ultimately refused accommodation on the basis that his accompanying guide dog was not permitted on the premises with him. It is also not in dispute that Ms. A was aware that the dog accompanying the complainant was a guide dog. The respondent also concedes that the manager on the night made an error to turn Mr. Moloney away. Accordingly, I find that the complainant was not directly refused access because of a disability but rather because of his requirement to be accompanied on the premises by his guide dog.
5.4 In the case of disability in considering whether discrimination occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.”
5.5. In relation to the above provision, I take note of a previous decision of the Equality Tribunal in the case of Mr. John Maughan –v- The Glimmer Man Ltd DEC-S2001-020, where the Equality Officer considered similar aspects as the case before me and reached the following conclusions;
[9.7]“In reaching my conclusions on this ground I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent’s premises they would not have been served in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) “discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations”. This principle is supported by the ruling in the US Supreme Court case of Jenness v Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O’Brien v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38).
…I consider that allowing a guide dog into a pub with a visually impaired person is special treatment without which it would be impossible or unduly difficult for the visually impaired person to avail of the service. The respondent did not raise the question of nominal cost and no evidence was presented to suggest that allowing a guide dog into a pub would involve expenditure for the respondent.
[9.8] I consider that by showing the card to the staff the complainant was essentially trying to make them aware of his special circumstances and the way in which his need to bring his guide dog into the pub differed from the needs of non visually impaired people with other types of dogs. I am satisfied that once the staff read the card which the complainant showed them from Irish Guide Dogs for the Blind that they effectively decided to ignore the usual no dogs policy and provided special treatment to the complainant in line with section 4(1) of the Act.
5.6 I am satisfied that the manager when confronted with the possibility of having the guide dog accompany the complainant onto the premises relied on the only policy she was aware of, namely, that no pets or dogs were allowed in the hotel. She failed to adequately consider the circumstances that presented to her on that evening, namely, that this was not just a pet, it was a guide dog; the guide dog had a specific purpose and important function, its owner was visually impaired and requires the use of the dog to find his way around. Therefore, the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise. I note from the evidence adduced at the hearing that these points were presented to the manager by the complainant on that night. Mr. Moloney also advised her that the guide dog was specifically trained and that he was equipped with the standard bedding kit so as not to cause any inconvenience to the hotel or its patrons. Once the complainant produced evidence of his disability and outlined his case, I find it hard to understand how a member of staff who had worked with the hotel in a managerial capacity for up to five years failed to at least check if the implementation of the “no dogs allowed” policy could be somewhat inappropriate and discriminatory in such circumstances, and if it could be in some way compromised to meet the needs of the complainant.
5.7 I find that the respondent, by refusing to allow the guide dog to accompany the complainant onto the hotel premises, failed to provide the complainant with special treatment or facilities to accommodate the needs of a disabled person with a visual impairment contrary to Section 4(1) of the Equal Status Acts. As referred to above, Section 4(2) of the Acts sets out the question as to the cost of providing special treatment or facilities to accommodate his needs of a disabled person. As no evidence was presented to me of costs that would incur on the respondent to facilitate the complainant to bring his guide dog onto the hotel premises, I am satisfied that no such costs would occur and that the issue of nominal cost does not arise.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts 2000 to 2008, I conclude this investigation and issue the following decision. I find that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Sections 4 of the Acts. I also find that the respondent did not attempt to rebut the allegation of discrimination.
6.2 In accordance with Section 27(a) of the Equal Status Acts, I award the complainant the sum of €3500 in compensation for the inconvenience caused and for the upset and humiliation experienced. In reaching my decision in relation to the calculation of the redress to be awarded, I have taken into account the respondent’s immediate admission of a transgression under the Equal Status legislation, the offer of an apology and an open offer to the complainant to a free night’s accommodation in the future.
6.3 Furthermore, in accordance with Section 27(b) of the Acts, I order the respondent to produce a written document outlining the hotel’s policy in relation to the treatment of people with disabilities. This document should form part of immediate training for all staff working in the hotel at present and should form part of all induction training for new staff joining the hotel in the future. A copy of this document should be available at the reception area of the hotel as an information guide for staff dealing with the public to ensure that further possible instances, such as this, are avoided.
James Kelly
Equality Officer
The Equality Tribunal
22nd October 2008
DEC-S2008-024 – Full Case Report
Equal Status Act 2000
EQUALITY OFFICER’S DECISION NO: DEC-S2008-024
Wellard v Killester College
Headnotes
Equal Status Act 2000- Direct Discrimination, Section 3(1)(a) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4 – Access to education, Section 7 – Prima facie case.
1. Dispute
1.1 This dispute concerns a claim by Ms. Áine Wellard that she was treated in a discriminatory manner by the respondent, contrary to Section 7, in terms of Section 3(1) (a), 3(2) (g) and Section 4 of the Equal Status Act 2000.The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Acts 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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 Act.
2. Summary of the Complainant’s Case
2.1 The complainant, who is visually impaired, states that she applied in February 2003 to attend a specific course in the respondent college in September 2003. In April 2003 the complainant attended at an “open day” at the college during which she made the college aware of her specific requirements on foot of her disability. A number of e-mails were subsequently exchanged between the complainant and the College regarding the complainant’s requirements to participate in the course. When the complainant attended at the commencement day of college on 11 September 2003 the facilities which she required were not in place. The complainant states that this was discriminatory on the disability ground contrary to Section 7 of the Equal Status Act 2000 in terms of Sections 3(1)(a), 3(2)(g) and Section 4 of the Act.
3. Summary of Respondent’s Case
3.1 The respondent states that every effort was made in good faith to provide special facilities for the complainant to enable her to fully participate in the course for which she had enrolled. These facilities, which comprised, at the complainant’s suggestion, primarily assistive technology for use by the complainant, were paid for out of the College’s own funds as funding is not available in the circumstances from the Department of Education via the Vocational Education Committee until after a student has commenced the course.
The college had expended in excess of 10,000 euro on assistive technology specifically for use by the complainant. On induction day, 11 September 2003, there were some teething problems so that material handed out to other students enrolled on the same course were not immediately available to the complainant. The latter had been assured that they would be made available very quickly. The complainant had stood up in the lecture room and, in the course of a bad tempered outburst, had used profanities about the officer who was to have the material ready for her. She then left the lecture room.
4 Summary of Complainant’s Evidence
The complainant states that
She applied to participate in the Veterinary Assistant Course in February, 2003 at the respondent college
She attended at an open day for the College in April 2003 and spoke with a member of staff who asked about the facilities that would be required by the complainant to attend at her chosen course. The staff member informed the complainant that someone from the college would meet with her prior to commencement of the course to discuss her requirements.
A number of e-mails were exchanged between the complainant and the College between June and September 2003 but a meeting was never scheduled. The complainant pressed for a meeting which was eventually scheduled for 9 September 2003.
At that meeting the complainant was informed that assistive technology which she required had not yet been installed and was due to be installed on college commencement day. i.e. 11 September 2003. She was informed that funding from the Department of Education via the VocationalEducation Committee (VEC) came with the condition that assistive technology could not be installed until after the commencement of the course for which it was required.
She was also informed at the meeting that (i) that she would not necessarily be given course material at the same time as other students in her class but that she would definitely receive it within a week, (ii) that as she was the first visually impaired person to enrol in the college she should expect that some mistakes would be made and (iii) that she would not receive the relevant course material at the induction but should expect to receive it some time later.
During the induction on 11 September 2003 course material was distributed to other students and frequent references were made to it. The complainant did not receive any “readable” documents. She found this confusing and left, venting her frustration. The complainant was informed that the assistive technology was being installed that day on foot of the VEC requirement that it could not be installed until after the commencement of the course for which it is required.
She received her course timetable four days after the induction day , by e-mail.
On 15 September 2003, i.e. the first day of lectures, when she attended at the College she was approached by a member of staff and asked to attend at a meeting. The meeting was attended by the complainant, the Principal and the Vice Principal of the college. In the course of that meeting Ms. Wellard was informed that the manner in which she had vented her frustration on 11 September was unacceptable and that she was required to apologise to two members of staff before she would be allowed to continue with the course.
The complainant was also informed that the assistive technology that had been installed to assist her had cost in excess of 10, 000 euro and that delays in the provision of material to her were due to the college never having dealt with a visually impaired student before.
The complainant could not take notes at the meeting because the Braille lite notebook provided by the college for her use had been taken from her prior to the meeting.
Despite assurances to the complainant that doors in the college would be labelled in Braille this was not done.
At a later date she was informed that she might be unable to attend at the course because Health and Safety legislation prevents the college from allowing her dog on the premises unless he is properly registered.
5 Prima Facie Case
5.1 The key elements required to establish a prima facie case of discrimination on are:
(i) Whether the complainant is covered by the discriminatory ground. (in this case has the complainant a disability?)
(ii) whether there is evidence that the complainant has been subject to a specific treatment by the respondent?
(iii) whether there is evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?
For persons who have a disability discrimination may also arise based on
(iv) whether the respondent’s actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainant’s needs as a person with a disability, which made it impossible or unduly difficult for her to participate in her chosen course
(v)whether providing for those needs would have given rise to greater than nominal cost to the respondent?
6 Prima Facie Case – Complainant
Discrimination
The complainant issued a formal statutory notification to the respondent that discrimination on the disability ground arose in relation to her attendance at the induction day on 11 September 2003. In relation to that specific alleged incident of discrimination the above key elements apply in this case as follows:
(i) The complainant is visually impaired and is therefore covered by the disability ground.
(ii) The complainant states that readable material, including a timetable, was not available to her on the induction day i.e. 11 September 2003. The complainant states that other students had readable material available to them on the day in question. The exact nature of the readable material provided to the other students has not been established by the complainant.
(iii) The complainant provided no evidence to show whether the other students did not have any disability or whether certain of them had a different disability. However, the respondent had indicated to the complainant that she was the first visually impaired student to have attended at the college.
On the basis of the above I am not satisfied that the complainant has established a prima facie case of direct discrimination on the disability ground. The induction day was a preliminary day providing what appears to be preliminary information to prospective students. I note that the complainant had been told in advance, by e-mail, that readable material would not be available to her on that particular day. There is no evidence provided that the lack of readable material on that day impacted on the complainant’s access to, or participation in, her chosen course. It is clear from evidence provided that the respondent had not taken any action to prevent the complainant from participating in her chosen course and was, in fact, actively working on providing the complainant with material in a medium that was suitable to her at that point in time.
While I understand that the complainant would experience a level of frustration in those circumstances, she does not appear to have taken any steps to arrange for an alternative induction, e.g. a one on one discussion with the lecturer providing the readable material to the other students. Instead the complainant reacted in a totally unacceptable manner by having an outburst in the course of which she uttered loud profanities about a lecturer who was not, at that time, present and also causing embarrassment to all who were present.
Reasonable Accommodation
(iv) The complainant was not in receipt of readable material on the induction day. This clearly caused her some frustration. The respondent had arranged for the installation of assistive technology specifically for use by the complainant i.e a brailling machine for the production of material exclusively for use by the complainant and a braille lite notebook etc. While reading material was not available to the complainant on the induction day there was no evidence to the effect that the material would not be available to the complainant subsequently to enable her to participate in her chosen course. I note that the class timetable was issued to the complainant by e-mail on 14 September 2003 i.e. the evening before classescommenced. This was a Sunday which demonstrates that the respondent was dedicating resources to facilitating the complainant on the weekend.
It appears that the complainant was not merely seeking that the respondent would take reasonable measures to ensure that she could participate in her chosen course but was expecting, and indeed demanding, that the measures would be in place from the induction day onward. I do not find that the complainant’s unreasonable expectation in this regard constitutes reasonable accommodation as envisaged by the legislation, particularly where all indications were that the respondent was going to great lengths and expense to accommodate her needs. Nor do I find it unreasonable that any education provider, including the respondent, would wait until the person for whom the assistive technology is required had already commenced the course to ensure that they would actually be availing of the technology and to avoid needless expenditure in the event that the prospective student had a change of heart and did not attend at the course. Ultimately, after a meeting with the Principal and the Vice Principal of the college on 15 September 2003, i.e. the first day of the course, the complainant absented herself from the course.
Having examined all of the evidence in this matter I am satisfied that the complainant has not established that the respondent had failed or refused to provide reasonable accommodation in this matter. While it is not therefore necessary to examine the issue of nominal cost in this matter I note further that the respondent had expended in excess of 10,000 euro from the School Services Support Budget (SSSB) [1] i.e. 33.83% of the SSSB, on equipment exclusively for use by the complainant. There was no guarantee that this money would be reimbursed to the college and this therefore constituted a large commitment from the college to the complainant. This amount does not include the additional costs of dedicating staff resources to producing material for the complainant or the additional costs of training that would be associated with doing so. In the context of overall expenditure by the college this is a considerable sum and, I am satisfied, constitutes in excess of nominal cost for the college.
In all of the circumstances as set out above I find that the complainant has failed to establish a prima facie case of discrimination on the basis of the respondent’s failure to provide reasonable accommodation.
7 Summary of other matters arising
7.1 The complainant has submitted that issues arising subsequent to the 11 September 2003 also constitute discrimination and/or harassment against her by the respondent. Specifically, the complainant states that :
Following the induction on 11 September 2003 it was agreed between the parties that the complainant would defer her participation in the course in question to September 2004 to allow that all of the facilities she required would be put in place by the following year.
Despite a number of unplanned meetings between the complainant and staff of the college the required facilities were not put in place with the result that the complainant could not fully participate in her chosen course from September 2004. The complainant contends that the meetings of themselves constitute a form of harassment as she is aware that another person with a disability who was not required to attend any such meetings.
The complainant was informed that she may not be able to participate in the course because her dog might not be allowed in the college on health and safety grounds.
The college failed to assist in arranging for the complainant to take part in the work placement module of her chosen course. The college failed to provide the complainant with the necessary handouts required for her classes. This disadvantaged the complainant vis a vis other students.
The respondent submits that
The complainant absented herself from the course from 15 September 2003. As the college is committed to providing inclusive education[2] it had committed considerable resources to providing facilities specifically for the complainant to enable her to participate in the course.
The college application procedure invites students to declare whether learning supports are required. Once declared the student is directed to a confidential learning support process which involves collaboration and agreement between the college and the student as to the specific supports required. The latter might include adjustments to learning materials, teaching methodologies, additional tuition or the purchase of assistive technology.
The college denies that the complainant was ever told that she would receive Braille handouts a week or two after other students had received their handouts and that these would be available to the complainant earlier. The 2003 timetable was late in being transmitted to the complainant because of technical difficulties initially and because of the late availability of the timetable for all students.
On 11 September the complainant arrived a half hour after the pre class induction meeting had commenced. Shortly afterward the complainant began to use profane and abusive language about the Director of Inclusive Learning. The Course Co-ordinator who was present lodged a written complaint about the complainant’s behaviour to the Principal. The latter approached the complainant about this on 15 September i.e. the first opportunity he had to do so as the complainant had left the college on 11 September by the time he received the complaint.
Following the complainant’s decision to defer participating in the course until 2004 the college continued the learning support agreement process with the complainant via the college’s visiting Disability Support Officer (DSO).
The respondent refutes the complainant’s contention that no progress was made at meetings with the DSO and can show from minutes of subsequent meetings that there was considerable follow up on issues discussed at these meetings.
Ultimately the complainant withdrew from the learning support process after three meetings and declined to continue with the discussions. Despite this the college put a number of supports in place for the complainant in 2004 which, in addition to the assistive technology, included handouts in Braille, retraining of a member of staff to convert documents to Braille, approval from FETAC for an alternative assessment method for the complainant in relation to the Biology, Animal Anatomy & Physiology modules of the course, a contact list for potential work experience employers and access to a visiting DSO as required. The teaching staff were also converting their teaching materials to electronic format thereby making them accessible to the complainant. Other supports could have been put in place but this would have required the complainant’s involvement which was not forthcoming.
The college was encouraged when the complainant took up her place on the course in September 2004 and continued to work to put appropriate supports in place for the complainant. Issues with regard to certain braille diagrams remained outstanding but the college made every effort to resolve same.
The complainant raised reference in her submissions to the quality of the Braille being produced by the college. The college attended to a number of minor issues arising with regard to the paper margins etc but the quality of the braille was declared by a representative of the National Council for the Blind in Ireland (NCBI) to be of “perfect quality and can easily be read by a blind person”.
The complainant alleges that handouts were not made available to her in braille format. The college’s attendance records indicate that, for the period in which the complainant attended at the college in 2004, the complainant did not attend over 46% of her scheduled classes for which handouts were available and which were not collected by the complainant.
The complainant was offered, and declined, a disk containing all of the handouts (with the exception of certain diagrams) for the entire Animal Anatomy and Physiology module in 2004.
The college refutes that the complainant was ever told that she could not participate in certain practical classes related to the Biology and Animal Anatomy and Physiology modules. However, a proposal for an alternative method of assessment in these modules for the complainant was proposed to FETAC, with the complainant’s agreement, and was approved.
The college has no record of receiving a letter of complaint from the complainant (addressed to the Principal) on 27 October 2004 regarding how she felt she was being treated by staff. Indeed at that time a disciplinary process had been enacted against the complainant on foot of two written complaints from staff members regarding two separate incidents in which the complainant used offensivelanguage and was abusive towards staff. Despite several attempts to meet with the complainant to discuss these complaints she did not attend.
Subsequently the complainant refused correspondence which was forwarded to her by the college and has stated that she has blocked the Principal’s e-mail address on her inbox . Correspondence was ultimately transmitted to the complainant via the Equality Tribunal.
The complainant alleges that the college committed to placing Braille labels on all of the doors in the college. The college committed to looking into this for the complainant and spent a considerable amount of time trying to source Braille labels. The college discussed the matter with the NCBI and the latter indicated that a building orientation session was quite common for visually impaired persons. The NCBI indicated to the college that only one door in the NCBI building is labelled in Braille.
With regard to assisting the complainant in obtaining a work experience placement the college provided her with a list, in Braille, of potential employers and their contact details as is done for any student experiencing difficulties in obtaining work placement. At the same time the Accreditation of Prior Experience and Learning mode was being considered but the complainant declined to meet with the respondent to discuss this further.
In summary the college utterly rejects the allegations made by the complainant of discrimination, failure to provide reasonable accommodation and harassment on the grounds of disability.
8 Conclusions of the Equality Officer
8.1 Having fully considered all of the evidence and submissions presented in this matter by both parties I am satisfied that the complainant has failed to show that the actions of the respondent subsequent to 11 September 2003 amount to discrimination, failure to provide reasonable accommodation or harassment on the grounds of disability as:-
(i) The respondent made every effort to provide supports to the complainant that go well beyond what could be envisaged as reasonable accommodation in terms of theEqual Status Act 2000, not simply in terms of monetary expenditure but also in terms of the range and breadth of facilities and assistance proffered to the complainant.
(ii) The complainant behaved toward staff of the college in an unacceptable manner such that the respondent could, I am satisfied, reasonably have imposed disciplinary sanctions on her for such behaviour.
(iii) The complainant seems to confuse the concept of reasonable accommodation as envisaged by the Equal Status Act with what she personally terms reasonable. The evidence shows that the complainant’s expectations in this regard are unreasonable.
(iv) The complainant used the very existence of measures such as Equality legislation which are designed to protect persons covered by the grounds thereunder from prohibited conduct to inappropriately gain more favourable treatment e.g in the course of a telephone conversation to state that she would be late in submitting an assignment due to difficulties with her computer, the complainant threatened to lodge a complaint of discrimination to the Tribunal against the college if they failed to accept her assignment.
(v) The complainant is not automatically entitled to be accompanied by her dog when attending at the college. The Tribunal has in the past repeatedly found against respondents who fail to permit a registered guide dog access to premises with their visually impaired owners. The fact of this instant case is that the complainant’s dog is not a registered guide dog. The issue of the complainant’s dog was raised with her in the context of the dog jumping up animatedly at a person in the college who was quite taken aback by the experience. The respondent was entitled to raise the issue in the context of health and safety. A duty of care is owed to all students and staff members by the respondent and not just to the complainant. Notwithstanding that the dog is not a registered guide dog I note that the respondent permitted the dog to accompany the complainant to, and in, the college.
(vi) It is clear that the complainant could not possibly have participated in the practical experiments required by the Biology and Animal Anatomy & Physiology modules of the course as they required observations by sight e.g. observing of particular phenomena under a microscope or dissecting matter. Notwithstanding that this could have given rise to legitimate doubts as to whether the course was in fact fundamentally unsuitable for the complainant the respondent made arrangements with FETAC for an alternative method of assessment for the complainant.
(vii) The complainant was in a position to take notes during classes with the aid of the Braille lite notebook with which she had been supplied by the respondent.
(viii) The complainant equates obtaining assistance in achieving a work experience placement with the respondent actually making all of the arrangements for her. No evidence was provided to show why the complainant could not contact potential employers herself and make the necessary arrangements.
(ix) I note that every effort made by the respondent, while not always perfect, was met with a lack of cooperation and intransigence on the part of the complainant which in my experience is unprecedented.
(x) The complainant cut off all communications with the respondent and ensured that brailled documents issued to her by post, e-mails etc did not reach her. In the context of her complaint that the respondent failed to provide various documentation to her, the complainant’s actions could be construed as deliberately obstructive, thus ensuring that the respondent could not achieve the very thing that she is complaining about.
(xi) I am satisfied that the sheer level of time and other resources dedicated to attempting to meet the complainant’s demands, combined with the complainant’s unhelpful and at times unacceptable behaviour, had a detrimental effect on other students and staff morale in general in the respondent college.
There is evidence in this matter indicating that the complainant, whether consciously or otherwise, ensured by her own actions that the respondent could not provide a fluid and meaningful support service to her. Despite this and the considerable cost in terms of time, money and effort involved the respondent persisted in trying to facilitate the complainant.
8.2 It is of some concern to me that the respondent appears to have indicated to the complainant that she could not be accompanied to meetings of a disciplinary nature e.g. the meeting with the Principal and Vice Principal which took place on 15 September 2003 to discuss her outburst on 11 September 2003. In convening such a meeting with any member of staff or student at the college the respondent should have regard to the need to ensure fair procedures, including that the staff member or student is entitled to have a representative present. In the instant case the outcome of the meeting was that the complainant was requested to apologise to two members of staff for her outburst and no disciplinary sanction was imposed on her.
9 Decision
I find that the complainant has failed to establish a prima facie case that she was discriminated against or harassed by the respondent on the disability ground in terms of Section 3(1) (a), 3(2)(g) and 4 and contrary to Sections 7 and 11 of the Equal Status Act 2000.
__________________________
Dolores Kavanagh
Equality Officer
21 April, 2007
[1]Application for funds for learning supports for students with disabilities must be made to the National Office for Equity and Access to Higher Education in the Higher Education Authority (who administer the fund on behalf of the Department of Education and Science). Applications can only be made after a student has commenced a course and the first application date is October. It is often Spring of the following year before approved supports can be put in place under this scheme.
[2]Details provided by the college of education services provided by the college to over 1,850 students of all ages ranging from 17 to 84 years and including some 60 international students. The college also provides education programmes to people attending the Central Remedial Clinic and supports education programmes for some 1,350 students on Literacy and Community Employment Schemes in the local community.
DEC-S2009-025 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC – S2009- 0025
PARTIES
A Complainant v A Taxi Driver
File Reference: ES/2007/0015
Date of Issue: 27 April 2009
Key words
Equal Status Acts 2000-2004 – Section 3(2)(g), disability ground – refusal to allow guide dog in taxi – blind – guide dog – airport – collect party from wedding – DAA official – taxi rank – taxi regulator – Taxi Regulations re guide dogs – failure to provide reasonable accommodation – discrimination – reasonable accommodation
1. Delegation under the relevant legislation
1.1. On 1st February, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts, 2000 to 2008, the Director delegated the case to me, Gary O’Doherty, 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, 2000 to 2008. This delegation took place on 17th October, 2008, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Tuesday, 24th February, 2009. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, in that the respondent discriminated against her by refusing to allow her into his taxi because she was accompanied by a guide dog.
3. Case for the Complainant
Evidence of Complainant
3.1. The complainant is totally blind. She alleges that, at 9.45 p.m. on 5 August, 2006, the respondent refused to take her in his taxi because she was accompanied by a guide dog. She stated that she had arrived that evening into Dublin airport on a flight from Manchester along with two companions, Mr A and Mr B (who was present as a witness at the hearing, the complainant had not asked Mr A to attend), both of whom were also blind. Mr A was also accompanied by a guide dog while Mr B, who had a slight element of sight, carried a white stick. She said that, upon arrival at Dublin, they were met by two airport floor staff, Ms C and Ms D, who accompanied them as far as the taxi rank at the airport. Upon approaching the rank, the complainant said that Mr A stopped to have a smoke, while she and Mr B, accompanied by Ms C, walked up to the first taxi. At that point, Ms C told her there was a problem as the taxi driver of the first taxi, the respondent, was waving at them that he wouldn’t take the dog. The complainant said that she then asked the taxi driver why he was refusing to take the guide dog, stating that he could not refuse to do so unless he had a medical card showing that he was allergic to dogs. She stated that Ms C also complained to the respondent and that the respondent’s response to these complaints was that he could not take the dog as he was collecting guests from a wedding just over an hour later.
3.2. The complainant said that Ms C then went to the next taxi on the rank, which had seven passenger seats, to see if its driver would take them, which he agreed to do. At this point the complainant said she called to Mr A, who was standing some distance away and had therefore not witnessed any of the events outlined at par. 3.1 above. She explained what had occurred and asked him if he would share the taxi with them. The complainant said that all three then got into the seven seat taxi with both guide dogs. She said that when she then asked Ms C to get the number of the respondent’s taxi (with a view to making a complaint against him), the respondent told them that he could take either the complainant or Mr A in the taxi if they put the guide dog in the boot. The complainant responded that guide dogs were not supposed to be put in the boot, and asked if he would put his glasses in the boot. She then proceeded in the seven seat taxi to her destination along with her companions.
Evidence of Mr B
3.3. Mr B essentially confirmed the complainant’s evidence, adding that he had also complained to the respondent when he became aware of his refusal to take the guide dog as had Mr A, once he became aware of the situation. Mr B also stated that, contrary to the respondent’s assertion, there was only one other taxi on the rank at the time of the incident in question.
General submissions
3.4. Mr Peter O’Brien, for the complainant, submitted that additional expense had been incurred from having to take the same taxi as opposed to separate taxis as Mr A was travelling to Cork St and the other two in the group were going to Ballyfermot. He said, however, that the expense could not be considered significant overall and was more of an inconvenience. He stated that it could not have been possible to fit three people, two dogs and luggage in the respondent’s taxi and it must therefore have been clear to the respondent that the complainant and Mr B were travelling separately from Mr A. As proof of this, he submitted that if, as the respondent alleged, Mr A intended on travelling with them, then the respondent could easily have said that there wasn’t enough room in the car instead of refusing to take the guide dog. In summary of the complainant’s case, he submitted that she had been refused service on account of her disability and her disability was the sole reason for the refusal and that the respondent should have allowed the guide dogs to accompany the complainant in the taxi and not in the boot.
4. Case for the Respondent
4.1. The respondent, who is an independent taxi driver, explained that he had arranged to collect a Mr E and a Ms F from a city centre hotel at 1 p.m. on the day in question. He said that Mr E was wearing a suit and Ms F was wearing a gown, but not a bridesmaid’s outfit. He said he took them to a church for a wedding, waited for them, and then brought them back to another hotel for the wedding reception. He arranged with them to collect them that evening from the reception to bring them back to their own hotel. The respondent stated this was an unusual arrangement, but that, when he did certain jobs, he tended to get other jobs as his vehicle was a new Mercedes. In that regard, he added that, on the day following the incident in question, he was hired by Mr E and Ms F to bring them to other destinations within and outside the city. He stated that when he went to collect the couple at the wedding reception, they asked him to come back later. As they had asked him to come back at 12 midnight, he decided to proceed to the rank at the airport to fill in the time.
4.2. The respondent refuted the evidence presented by the complainant with regard to what occurred thereafter. He said that the rank was quite full when he arrived and when he pulled his car up to be next in line to collect passengers, there was a Fiat van behind him and a silver Mercedes behind it. He saw that there were three people next in line, who, he said, were Mr A, Mr B and a female (who he thought was the complainant). However, he said he was surprised when the DAA official, who organises the allocation of passengers to vehicles at the rank, pointed to his car, as he considered that the Fiat van behind him would be better able to accommodate such a large group. He stated that it would have been normal practice in such circumstances to direct the group to the Fiat, but he believed this was not done because the DAA official on duty that night was new and, he believed, temporary. In that regard, he agreed with Mr O’Brien that it could not have been possible for him to fit three people, two dogs and luggage in his taxi. However, rather than accepting Mr O’Brien’s submission, he said that this was all the more reason why the DAA official involved should have sent the party to the Fiat as he was adamant that, from the beginning, the complainant, Mr A and Mr B intended travelling together in the same vehicle.
4.3. Once the complainant and her companions had been directed to his taxi, the respondent said he approached her to explain that he was picking up some customers later who were going to a wedding and he wasn’t sure that he could clean his car in time to prevent the dog hairs (from the guide dog being in the car) getting over the outfits of this couple. He said that the complainant understood his difficulty and agreed with his proposal to obtain another taxi in his place. He added that neither she nor Mr B were confrontational with him at any point during the incident in question, and that, if they had been, he would immediately have let the complainant into the taxi.
4.4. The respondent said that a female DAA official then appeared. He did not confirm whether this official was Ms C but said that she was ‘hyper’ as she walked down to taxis that were waiting further down the rank looking for a taxi to take the group. The respondent said that, while he was trying to indicate to this person that he had already obtained a taxi for the group, two other taxi drivers had gotten out of their cars to smoke and one of them shouted to the complainant and her companions that the respondent didn’t want to take them in his Mercedes. The respondent stated that Mr A heard this comment, just as the complainant and Mr B were getting into the other taxi, and as a result of hearing it, Mr A “lost his head completely” and threatened to have the respondents licence taken off him. The respondent said he tried to calm the situation but was unable to do so. He stated that he went to the taxi driver in the silver Mercedes and asked for suggestions as to how he could “extricate from this mess”. This driver said there was a split rear set and he could accommodate the dogs in the boot, though the respondent did not think it possible to do that in his car. However, he said he did not mention this to the complainant or her companions and had no further communication with them before they left the airport.
4.5. The respondent confirmed that the taxi regulator has strict regulations in relation to passengers with guide dogs and that he was aware of those regulations. He said that the reason why he didn’t say he did not have room for the entire party was because he wanted to tell the truth and so he approached them and explained the real reason why he preferred not to take them. The respondent said that the complainant had simply misinterpreted his motives and he denied that he would ever have a problem in taking a blind person in his taxi.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making this decision I have taken cognisance of all the oral and written submissions made by the parties.
5.2. It is clear from these submissions that there is an almost total conflict of evidence as to what actually occurred in the context of this complaint. I must therefore consider this conflict and extrapolate, on the balance of probabilities, what actually occurred.
5.3. I find the evidence of the complainant and Mr B to be the more compelling evidence in this regard. I believe that they approached the taxi rank, accompanied by Ms C, and sought to obtain a taxi to take them home. I believe that the respondent told them that he could not take them in this taxi, as he was collecting a wedding party later on and he did not wish to have dog hairs in the back of his car that might get on the clothes of those customers. An argument followed between the respondent on the one hand, and the complainant and Mr B on the other. In the meantime, Ms C obtained another taxi, at which point the complainant asked Mr A to join them. Mr A, having heard why they needed him to accompany them, then became involved in the argument with the respondent. I believe that the respondent, who said that he was aware of the taxi regulators policy, and therefore of his responsibilities towards the complainant in the context of the Equal Status Acts, realised that his attempt to circumvent those responsibilities had failed. He therefore attempted to extricate himself from the situation he was in, but only served to exacerbate it by suggesting that the guide dog could be taken in the boot of the car. I believe that the complainant then asked the question whether he (the respondent) would put his glasses in the boot, before closing the door of the taxi and proceeding on her journey along with her companions.
5.4. In the case of a complaint being made on the disability ground, in considering whether discrimination occurred, consideration must be given to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows:
“(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficulty for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.”
5.5. In that context, it is well established in the Tribunal[1] that, where there is an allegation of discrimination similar to the one in question, the general approach taken is as laid out in Mr. John Maughan –v- The Glimmer Man Ltd[2], where the Equality Officer reached the following conclusions;
[9.7]“In reaching my conclusions on this ground I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent’s premises they would not have been served in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) “discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations”. This principle is supported by the ruling in the US Supreme Court case of Jenness v Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O’Brien v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38).
…..I consider that allowing a guide dog into a pub with a visually impaired person is special treatment without which it would be impossible or unduly difficult for the visually impaired person to avail of the service.”
So, as the Equality Officer stated in Gabriel Moloney –v- Park House Hotel[3]
“[a guide dog is] not just a pet…it had a specific purpose and function, its owner was visually impaired and requires the use of the dog to find his way around…the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise.”
The respondent was clearly aware of this, and that, by refusing to take the guide dog, he was in breach of the Acts as the complainant could not travel anywhere without being accompanied by the guide dog. I do not accept his argument that he tried to arrange another taxi for her, in the first instance because I do not believe he did (Ms C arranged the other taxi), and, in the second instance, because even if he had, that does not take away from the fact that he effectively refused service to the complainant because of her disability and he was therefore, in any event, in breach of the Acts. The respondent then insulted and upset the complainant further by suggesting that the guide dog be taken in the boot of his car.
5.6. That the respondent had to collect a couple attending a wedding later on is no justification for refusing to take a person with a disability in his vehicle. In particular in that regard, I note that the relevant couple were invited guests at the wedding and were not wearing outfits that were any more special or unusual than the majority of guests would have been wearing. I also note that, in the context of this complaint, he was collecting them from the end of the wedding reception and not before it began, by which time whether they were attending the wedding or not was irrelevant. In any event, there is nothing in this argument that allows the respondent an exemption from the provisions of the Acts.
5.7. I find that the respondent, by refusing to allow the complainant into his taxi because she was accompanied by a guide dog, failed to provide the complainant with special treatment or facilities to accommodate the needs of a disabled person with a visual impairment contrary to Section 4(1) of the Equal Status Acts. In reaching my decision in relation to the calculation of the redress to be awarded in this case, I have taken into account the following:
– That, in the context of this complaint, the respondent was fully aware of his obligations under the Equal Status Acts;
– That he deliberately and blatantly breached those obligations;
– That, far from trying to make up for or lessen the impact of this breach when he became aware that the complainant was not satisfied with his behaviour, the respondent added further insult to her humiliation by suggesting the guide dog be taken in the boot of his car.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
6.2. I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4(1) of the Acts. The complainant has therefore established a prima facie case of discrimination by the respondent, which the respondent has failed to rebut.
6.3. In accordance with Section 27(1)(a) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €2000 in compensation for the inconvenience caused and for the upset and humiliation experienced by the complainant.
27 April 2009
7.1 The complainant was discriminated against by the respondent on the disability ground in terms of Sections 3(1) (a) and 3(2)(g) and 5(1) of the Equal Status Act 2000. The complainant did not establish a prima facie case of discrimination on the victimisation ground in terms of Sections 3(1) (a) and 3(2) (j) and 5(1) of the Equal Status Act 2000.
8 Redress
8.1 I hereby order, in accordance with Section 27 of the Equal Status Act 2000, that the respondent (i) pay the sum of €1000 to the complainant for the effects of the discrimination and (ii) arranges for the immediate training of all staff of the respondent salon in matters of service provision in compliance with the terms of the Equal Status Act 2000.
DEC-S2008-117 – Full Case Report