Equal Status Act 2000
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-025
Mr Pat Hallinan
V
Moy Valley Resources
I.R.D. North Mayo-West Sligo Ltd.
(Represented by Bourke, Carrigg and Loftus Solicitors)
Keywords
Equal Status Acts 2000 – Disability ground, section 3(2)(g) –Discrimination on the ground of disability, sections 4(1) and 4(6)(b) –nominal cost, section 4(2) - Accessible toilet facilities
1. Delegation
1.1. Mr Pat Hallinan referred a claim to the Director of the Equality Tribunal under the Equal Status Act 2000. 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 Act.
2. Dispute
2.1. The dispute concerns a complaint by Mr Hallinan that he was discriminated against in terms of section 4(1) of the Equal Status Act 2000 when an employee told him that that the facility (Kennedy Glasgow House), which was hosting a training course that Mr Hallinan wanted to participate in, did not have accessible toilets. This meant that Mr Hallinan could not avail of the training programme and thus suffered a loss of a service that would generally be available to the public.
3. Case for the complainant
3.1. Mr Hallinan, a writer and disability worker, is a person with a disability. In January 2004 he attended an all-day event organised at a building managed by Moy Valley Resources. Prior to attending this event, Mr Hallinan, who uses an electronic wheelchair and thus requires accessible toilets, contacted the organisers to enquire whether the facility had accessible toilets. The event organisers (not Moy Valley Resources) told Mr Hallinan that the facility had an accessible toilet. Assured by this confirmation, Mr Hallinan decided to attend.
3.2. While attending the event in January 2004, Mr Hallinan enquired about the whereabouts of the accessible toilet. In reply, he was told that the building itself did not have an accessible facility but that he could use the facilities in a neighbouring building. Mr Hallinan, who had no option but to make his way over to the other building, then discovered that the toilets were not quite accessible to him as they were not large enough to accommodate his electronic wheelchair. While he was able to use the facilities, he was not able to close to door. This added to his embarrassment and discomfort.
3.3. In May of the same year, Mr Hallinan wanted to avail of a ‘train the trainers’ course and another event of interest. Due to the previous experience he had had at the facility, he contacted the venue itself to enquire whether accessible toilets had been installed in the meantime. He was told that they had not been installed. As a result, he felt unable to attend the course. Mr Hallinan had also wanted to attend a conference that was to be held in the same venue later in the month. This, he felt, was no longer possible. Frustrated that he had to continuously check whether the venue had become a viable option for him and, consequently, having to turn down training and conference options, Mr Hallinan lodged his complaint with the Equality Tribunal in August 2004.
3.4. Mr Hallinan argues that the building was renovated in 1997 and that, in line with the 1991 Building Regulations, it should have had an accessible toilet installed as part of the renovation work.
3.5. At the hearing, Mr Hallinan stated that while the toilet across the way was ‘kind of acceptable’ he was not able to close the door. Also, Mr Hallinan maintains, it was not convenient for him to have to use the facilities of another building, especially as it was an office space with employees milling around. The experience was embarrassing to Mr Hallinan and meant that he could not return to the venue until accessible toilets were installed.
3.6. In early 2008 Mr Hallinan, at the invitation of Moy Valley Resources Ltd, visited the premises of Kennedy Glasgow House and inspected the new accessible toilets that had been installed as a result of his complaint. While he identified some issues for consideration, Mr Hallinan is satisfied that he is now able to attend any event at this location.
4. Case for the Respondent
4.1. The respondent, trading under Moy Valley Resources, is a registered company. Officially titled Integrated Resource Development (I.R.D.) –it is a limited company that promotes the advancement of economic prosperity, environmental advancement and social cohesion within the Moy Valley region. It provides business services, enterprise units and community projects. I.R.D. also manages the facilities of Kennedy Glasgow House (the location of the incident).
4.2. The company has charitable status. The building where the incident occurred provides facilities for conferences, group training and meetings. At the time the incident complained of occurred, the venue had standard toilet facilities. The neighbouring building, also under I.R.D. management, had what the management had viewed as accessible toilets. The respondents admitted at the hearing that it became apparent to them that these toilets were not large enough to accommodate Mr Hallinan’s wheelchair but stated at the hearing that until that incident (in January 2004) they had presumed that the toilets in the neighbouring building were accessible.
4.3. The respondent does not wish to contest anything that Mr Hallinan has stated. It was admitted that the venue did not have accessible toilets at the time of the incident and that Moy Valley Resource Centre was not aware of the provisions of the Equal Status Act, particularly in relation to the responsibilities that section 4 of the act imparts on providers of goods and services (subject to exemptions). In relation to the building works carried out in 1997, the respondent is relatively comfortable that the works carried out fully complied with the then building requirements.
4.4. In response to a question as to why accessible toilets were not available in a community space, the respondent maintains that as an organisation with charitable status they did not immediately have the funds available for the installation of accessible toilets. The respondent also maintains that no grants were available for them to carry out the required work. The respondent also stated, when questioned, that asking the landlord (the building is leased) to install accessible toilets was not a viable option. The respondent did not wish to use section 4(2) of the Acts as their defence but stated that as the accessible toilet has since been installed the problem that caused Mr Hallinan to make his complaint is no longer an issue.
4.5. The respondent offered an unreserved apology to Mr Hallinan at the hearing and acknowledged the embarrassment the lack of appropriate facilities caused to him.
4.6. The respondent also requested that should the Tribunal feel that a monetary penalty is necessary that it bears in mind that the toilet is now in place. It was proposed by the respondent that Mr Hallinan’s complaint was about access to accessible toilets and not about money.
5. Conclusions of the Equality Officer
5.1. In order for Mr Hallinan to establish a prima facie case of discrimination he must establish that:
1 He is covered under the relevant discriminatory ground, i.e. the disability ground;
2 The incident(s) complained of actually occurred; and that
3 The treatment constituted less favourable treatment within the meaning of section 4 of the Equal Status Act.
5.2. It is clear to me that Mr Hallinan is a person with a disability. He utilises a motorised wheelchair and thus requires special facilities. The respondents made it plain at the hearing that they are not in any way contesting Mr Hallinan’s claims of less favourable treatment on the disability ground and agree that the incident complained of took place. It was also agreed that the toilets in the neighbouring building were not suitable for Mr Hallinan’s needs and that it is not appropriate to presume that a person with a disability must use facilities in a less favourable fashion to persons without a disability.
5.3. While the Equality Tribunal does not have a role in enforcing the 1991 Building Regulations or any other similar requirements. However, it is apparent that the incident complained of comes within the remit of the Equal Status Act 2000 and I will examine it accordingly.
5.4. The complainant bears the initial burden of providing the primary facts upon which he 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. The respondent is a resource centre with a charitable status. While the legislation deems any special action required from any service provider not reasonable if it creates more than a nominal cost, the onus is on the organisation to demonstrate how the provision of a special treatment or facility would create more than a nominal cost to it.
5.7. I note that the aim of Moy Valley Resource Centre is to offer business and employment development opportunities to the community in North Mayo and West Sligo region. It receives funding from the National Development Plan and Fás among others. The respondents maintain that all of this funding is programme specific and thus not available for structural spending. No accounts, grant applications etc were presented at the hearing to back up any of these claims. The respondents also maintain that there were no grants available to service providers attaining to become disability competent. As no evidence to support any claim that such grants were sought was made available to the Tribunal I cannot accept this statement as a legitimate justification for the absence of such facilities.
5.8. It is obvious, since the introduction of the Equal Status Act 2000, that a facility such as the Kennedy Glasgow House should, in its obligation to ensure non-discrimination, particularly take cognisance of the needs of people with disabilities. A large resource centre that offers facilities for employment, training and development programmes, among others, to the larger community must take these obligations seriously. While I appreciate that it may not be reasonable to presume that providers of goods and services have an expert understanding of all types of reasonable accommodation issues that may arise, the fact is that it is reasonable to assume that a facility serving the wider community would have considered such basic needs as an accessible toilet facility.
5.9. While I appreciate that smaller businesses may find some of these obligations arising from new legislations onerous I can only accept defences outlined in section 4(2), 4(3) and 4(4) of the Act as legitimate reasons for why a service provider may be exempted from the obligations. As no evidence was presented to me at the hearing relating to any of the above I must conclude and concur with the complainant that Moy Valley Resource Centre did fail in their obligation to provide the complainant with reasonable accommodation.
5.10. Section 4 (1) of Equal Status Act 2000 describes discrimination on the ground of disability as:
“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.”
Section 4 (6)(b) defines a “provider of a service” to mean:
“the person responsible for providing a service in respect of which section 5(1) applies”.
5.11. The respondent argued at the hearing that since accessible toilet facilities were built in January 2006 there should be no further need for the complainant to seek any further remedy. I am mindful of the fact that it took the respondent close to two years to step up to their obligations as service providers to rectify this matter. Equally, at the time that Mr Hallinan visited the facility in January 2004 the requirement to provide reasonable accommodation for people with disabilities had been established in law since October 2000 (for employment since 1999). While the respondents admit that they were not aware of the onus placed on them by the Equal Status Act in 2000 I cannot accept ignorance of the law as a defence.
5.12. The respondent’s also stated at the hearing that the discriminatory treatment complained about – the absence of accessible toilets in the resource centre – has since been rectified. This, they argue, means that because the problem complained about has since been put right, there should be no need for further monetary redress or at least not for a large amount. Section 25(4) of the Act, however, compels me to award Mr Hallinan redress for the effects of discrimination. He was without a doubt embarrassed and inconvenienced because of this failure to provide appropriate facilities. While I acknowledge the fact that accessible toilets are now in place and that the respondents have since recognised and apologised for their failure to ensure non-discriminatory treatment of Mr Hallinan, it is clear that Mr Hallinan was de facto denied access to service that was available to the public generally.
6. Decision
6.1. The complainant has established a prima facie case of discrimination on the ground of disability. Therefore, I order the respondents to pay him €750 to compensate for the humiliation and embarrassment caused and for the loss of a service that should have been available to him.
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Tara Coogan
Equality Officer
April 2008