DEC-S2008-048 - Full Case Report

Equal Status Acts, 2000-2008

Equality Officer Decision DEC-S2008-048

Anne Harrington

-v-

The National Concert Hall

(Represented by Ms. Christina Ryan, B.L. on the

instructions of Ivor Fitzpatrick & Co., Solicitors)

Keywords

Equal Status Acts 2000-2004 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability  Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)

Delegation under the Equal Status Acts, 2000 to 2004

This complaint was referred to the Director of the Equality Tribunal on 2^nd August, 2005 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 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.  The hearing of the case took place on 16^th July, 2008.

1.            Dispute

1.1             This dispute concerns a complaint by Ms. Anne Harrington that she was discriminated against by The National Concert Hall on the disability ground.  The complainant maintains that she was discriminated against 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 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 and that she was not provided with reasonable accommodation in attempting to avail of the services that the respondent provided. 

2.            Summary of the Complainant’s Case

2.1             The complainant, who is a wheelchair user, has been a regular attendee of events at the National Concert Hall for a considerable number of years and she was a season ticket holder for the RTE National Symphony Orchestra concerts at this venue during the 2004/2005 season.  The complainant attended these concerts on an almost weekly basis during the course of this season which ran during the months from September to May.  The attendees of these concerts are also entitled to attend pre-concert talks and drinks receptions which are held in the National Concert Hall prior to the actual concert.  The complainant claims that she was unable to gain access to these pre-concert talks and drinks receptions as they were held on the first floor of the building and there was no lift available within the National Concert Hall in order to facilitate her access to this floor.  The complainant claims that the pre-concert talks and drinks receptions were an important part of the overall event and she claims that she was denied access to these events and the social interaction associated with them purely on the basis of her disability.  The complainant claims that it should have been possible for the respondent to hold the pre-concert talks and drinks receptions in the main auditorium or the John Field Room which are both situated on the ground floor in order to facilitate access for people with disabilities. 

2.2             The complainant wrote to the respondent on 29^th November, 2004 to inform it of the difficulties that she was experiencing in gaining access to the pre-concert talks and drinks receptions.  In the subsequent reply that she received the respondent acknowledged the requirement to upgrade its facilities for the disabled in some areas of the building and it outlined the practical difficulties involved from an operational perspective in holding the pre-concert talks and drinks receptions in the main auditorium which is situated on the ground floor.  However, despite these explanations the respondent failed to take any measures to facilitate her access to the pre-concert talks and drinks receptions at that particular time.  The complainant also complained to the respondent’s staff about these difficulties on numerous occasions when she attended concerts during the 2004/2005 season and she claims that, although she always obtained a polite response from staff, no action was taken in response to the complaints.  The complainant stated that she also telephoned the National Concert Hall prior to each of the concerts she attended during the 2004/2005 season to enquire where the pre-concert talks and drinks receptions were scheduled to be held and she claims that the respondent was well aware of the difficulties that she experienced in terms of gaining access to these events.  The complainant formally notified the respondent of its intention to refer a case to the Equality Tribunal as a result of these difficulties by way of letter on 25^th February, 2005. 

2.3             The complainant submitted that the respondent failed to put any alternative measures in place during this period in order to facilitate her attendance at the pre-concert talks and drinks receptions.  The complainant continued to attend the National Concert Hall subsequent to the 2004/05 season and she accepts that the respondent contacted her in August, 2007 and informed her that it had made arrangements to hold a number of pre-concerts talks in the Kevin Barry Room in the adjoining UCD owned section of the building and that lift facilities were available in this part of the building to facilitate her access to the first floor.  The complainant stated that she welcomed this initiative and availed of it on two occasions; however she felt that the respondent had failed to provide her with reasonable accommodation during the 2004/05 season and in the intervening period prior to August, 2007 and she claims that it was totally unacceptable that she was denied access to the respondent’s facilities during this period because of her disability.    

3.            Summary of the Respondent’s Case

3.1             The respondent denies that it discriminated against the complainant on the grounds of her disability and submits that it did all that was reasonable to accommodate her needs by providing special treatment and facilities.  It claims that when special facilities were not provided to the complainant it was because the provision of such accommodation would have given rise to a cost other than a nominal cost.  The respondent stated that as part of the RTE National Symphony Orchestra events at the National Concert Hall, RTE invites all patrons and season ticket holders to pre-concert talks and drinks receptions and the attendance at these pre-concert talks and drinks receptions can vary between 30 and 110 attendees. The respondent stated that these pre-concert talks and drinks receptions during the 2004/05 season were held in the Carolan Room which is situated on the first floor of the building.  The respondent claims that it first became aware of the difficulties that the complainant was experiencing in gaining access to these events when it received a letter from her in November, 2004.  In its response to this letter, the respondent informed the complainant that it was not possible to hold the pre-concert talks and drinks receptions in the main auditorium or the John Field Room which are both situated on the ground floor.  The respondent stated that the performers and orchestras performing the concert require access to the stage in the main auditorium for warm up at the same time that the pre-concert talks are held. It also stated that the John Field Room is used as a foyer area which is required to accommodate the large number of people attending the performance who do not wish to attend the pre-concert talks and this room is also used as a through way from the front to the rear of the house.  The respondent claims that it made every effort to address the concerns that had been raised by the complainant and that it explored all available options to accommodate her with special facilities.   

3.2             The respondent accepts that access to the upper levels of its building is very limited due to there being no lift facility available and it submitted that it has been fully aware for a number of years of the unsatisfactory nature of the access that is available in its building to people with disabilities.  When the complainant referred the present complaint to the Equality Tribunal in 2005, the respondent did not have access to the entire building in which it was located at Earlsfort Terrace, as the medical and engineering faculties of UCD occupied a large portion of the site, and consequently the respondent’s ability to redevelop and upgrade the facilities available to it were significantly limited.  The respondent submitted that the Office of Public Works (OPW) has responsibility for the maintenance and upgrading of the facilities of the National Concert Hall and it has been working closely with both the OPW and the Department of the Arts, Sports and Tourism for a number of years in order to maintain its existing facilities and to make these facilities more accessible to people with disabilities.  The respondent claims that it has been restricted in terms of its ability to install lift facilities in its building as the OPW has responsibility for assessing the scope of any development works required at the National Concert Hall and it makes the relevant arrangements for any work that is sanctioned to be carried out.  There have been ongoing discussions over the last number of years regarding the relocation of the National Concert Hall to a different site and this uncertainty has also had an impact on any decision to upgrade or alter the existing facilities available to the respondent at its present location.  It was decided in 2007 that the respondent would remain at its present location and that the portion of the building owned by UCD would be transferred to the respondent for major redevelopment and it is envisaged that this redevelopment work will address the need for a lift facility and ensure full accessibility for persons with disabilities.   

3.3             The respondent claims that it made every effort to address the concerns that had been raised by the complainant in relation to her access to its facilities.  The respondent submitted that when it was notified by the complainant of her intention to make a complaint under the Equal Status Acts that it wrote to her again to outline the operational difficulties involved in holding the pre-concert talks and drinks receptions on the ground floor of the building and it also clearly outlined the efforts that were being made to upgrade the accessibility to its existing facilities.  The respondent claims that the option of installing a lift in the building in order to facilitate access to people with disabilities had been explored at various junctures in the past.  Ms. Angela Rolfe, Assistant Principal Architect, with the OPW stated that the National Concert Hall is a preserved building and she gave evidence regarding the structural and administrative complexities that would be involved in relation to the installation of a lift in the building.  Ms. Rolfe was involved in the redevelopment planning of the National Concert Hall that has taken place over the last number of years and she stated that plans for the installation of a lift facility had been included as part of a feasibility study had been carried out in 2003 regarding the redevelopment of the building.  Ms. Rolfe stated that it would not have been possible to install a lift in the building in isolation and that this work would have to be carried out in conjunction with the overall redevelopment work.  It was projected at that juncture that the overall redevelopment work would cost approx. €10 million, however Ms. Rolfe stated that a separate costing had not been established for the installation of the lift in the building.  

3.4             The respondent claims that it took all reasonable measures to provide special facilities in order to accommodate the needs of the complainant as a person with a disability and in this regard it put measures in place in August, 2007 whereby an adjoining room in the UCD owned part of the building which had access to a lift was acquired for the purpose of holding pre-concert talks for the remainder of that year.   The respondent submitted that the cost of installing a lift in the part of the building which it owned in order to accommodate the requirements of the complainant would, in the circumstances, have amounted to more than a nominal cost.

4.            Preliminary Issue

4.1             The respondent submitted that the complainant has failed to furnish the specific dates upon which it is alleged that she was discriminated against or the detailed particulars regarding the manner in which the discrimination is alleged to have occurred.  The respondent argued that the complaint referral form (Form ODEI.2) submitted by the complainant states that the first discriminatory act is “continuous from Sept 2004 on a weekly basis at concerts” and it therefore claims that the complainant has failed to provide details of the specific dates of the first and last dates of the alleged acts of discrimination despite the requirement to do so in order to comply with the legislation.  The respondent submits that these dates are relevant in determining whether written notification was sent to the respondent within two months of the alleged incident of discrimination or in the case of repeated incidents, within two months of the date of the last incident.  The respondent further claims that the complainant only submitted a list of the dates upon which it is alleged that discrimination occurred, upon request by the Equality Officer prior to the hearing of the complaint, and it therefore submits that it has been prejudiced in its defence of the allegations.  The respondent submitted that there is no evidence to confirm that the complainant actually attended its premises on the dates as alleged.      

4.2             In considering this issue, I note that the complainant wrote to the respondent on the 17^th February, 2005 to notify it of her intention to refer a complaint to the Director of the Equality Tribunal on the basis that she was being denied access to the pre-concert talks and drinks receptions which were being held in rooms within its building that were inaccessible to her.  The complainant stated in this letter that she was a regular patron of the respondent’s premises and also that she was a season ticket holder for the RTE National Symphony Orchestra concerts for the 2004/05 season.  The respondent replied to this notification on 30^th March, 2005 and sought to explain to the complainant the reasons why it was necessary to hold the pre-concert talks and drinks receptions on the upper levels of the building and to reassure the complainant that it was making every effort to address the issue of accessibility to the building for persons with disabilities.  I also note that the complainant had previously written to the respondent on 29^th November, 2004 to inform it of the difficulties that she was experiencing in attempting to gain access to the pre-concert talks and drinks receptions that were being held in conjunction with the RTE National Symphony Orchestra concerts.  Section 21(2)(a) of the Equal Status Acts, 2000 to 2004 states that:      

“21 - (2) Before seeking redress under this section the complainant –

            (a)  shall, within 2 months after the prohibited conduct is alleged to have occurred, or,   

where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of

                                                           (i)     The nature of the allegation,

                                                         (ii)     The complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act

I am satisfied that the notification letter of 17^th February, 2005 clearly indicated to the respondent that the complainant was a season ticket holder for the RTE National Symphony concerts for the 2004/05 season and that she was a regular attendee of these concerts during that particular season.  I am also of the view that the complainant’s letter of 29^th November, 2004 to the respondent constitutes further evidence that she was a regular attendee of concerts at the respondent’s premises at that particular time.  Having regard to the evidence adduced, I am further satisfied that the complainant did, in fact, attend the respondent’s premises on the dates as alleged and that she was unable to gain access to the pre-concert talks and drinks receptions that were held on these dates.  I am satisfied that the complainant’s notification of 17^th February, 2005 clearly sets out the nature of the allegation of discriminatory treatment that was being made by the complainant and her intention to refer the matter to the Director of the Equality Tribunal.  In the circumstances, I therefore find that the complainant did, in fact, comply with the provisions of Section 21(2)(a) of the Acts in notifying the respondent of the alleged act of discrimination and that her complaint is admissible under the Equal Status Acts. 

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 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.  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 the present case, the complainant is a wheelchair user 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.  I am satisfied from the evidence adduced that the complainant was a season ticket holder for the RTE National Symphony Orchestra concerts that were held at the National Concert Hall during the 2004/05 season.  I am also satisfied that the complainant was unable to gain access to the pre-concert talks and drinks receptions that were held on the respondent’s premises in conjunction with these concerts during that season, due to the fact that the rooms in which these events were held were not accessible to wheelchair users. Accordingly, I find that the specific treatment complained of by the complainant actually occurred.  However, in order for the complainant to establish a prima facie case of discrimination she must also demonstrate that the treatment she received was less favourable than that which would have been afforded to another person, in similar circumstances, who either did not have a disability or who had a different disability.  In considering this issue, I note that the pre-concert talks and drinks receptions to which the complaint was unable to gain access were held in rooms within the building that were situated on the first floor/upper levels of the respondent’s building.  The respondent has argued that it was necessary to hold the pre-concert talks and drinks receptions in these rooms as a result of the lack of availability of a suitable alternative room on the ground floor of the building.  I am satisfied that the requirements for attendance at these events in terms of their location within the respondent’s premises was the same for all of the season ticket holders, or indeed for any other member of the public, that wished to attend.  In the circumstances, I find that the treatment afforded to the complainant was not less favourable than the treatment that would have been afforded to any other season ticket holder or attendee, regardless of whether or not they had a disability, who wished to attend the pre-concert talks and drinks receptions at the respondent’s premises.        

5.3             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:

“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 …”.

The question to be addressed in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities.  This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate her needs as a wheelchair user in terms of providing access to the pre-concert talks and drinks receptions that were held on its premises, and that it did not provide her with special facilities to meet those needs. 

5.4             In considering this issue, I note that the complainant wrote to the respondent on two separate occasions i.e. on 29^th November, 2004 and 17^th February, 2005 to outline the nature of the difficulties that she was experiencing in gaining access to the pre-concert talks and drinks receptions that were being held on its premises.  The complainant also claims that she verbally communicated these concerns and her resultant dissatisfaction with the situation to members of the respondent’s staff on every occasion that she attended a performance at the National Concert Hall on which she was unable to gain access to these events.  I note that the respondent replied to the complainant’s letters and sought to outline the operational difficulties involved in holding the pre-concert talks and drinks receptions on the ground floor of the building and it also provided details of the efforts that were being made to upgrade the accessibility to its existing facilities.  The respondent acknowledged that access to the upper levels of its building was limited due to the non-availability of a lift facility and it provided extensive evidence regarding the efforts that had been made over the last number of years to upgrade its facilities in terms of their accessibility to persons with disabilities.  The respondent also adduced evidence regarding the structural and administrative constraints under which it was operating in terms of its capacity to carry out alterations or modifications to the building and it also argued that, given these constraints, the installation of a lift facility in its building would have amounted to more than a nominal cost.  The complainant stated in evidence that she did not accept the reasons or explanations put forward by the respondent regarding either its inability to install a lift facility on its premises or the operational difficulties that it experienced in terms of holding the pre-concert talks and drinks receptions in a room that was situated on the ground floor of the building.  

5.5             Having regard to the evidence adduced, I am satisfied that the respondent was in fact operating under certain constraints, both structural and administrative, in terms of its ability to install a lift facility in its building and/or to hold these events in a room that was situated on the ground floor at the time the complainant referred this complaint.  In this regard, I have found the following evidence to be persuasive:

• Ms Angela Rolfe, Assistant Principal Architect, The Office of Public Works, gave evidence regarding the structural difficulties and complexities that were involved in relation to the installation of a lift facility on the respondent’s premises. The building is a protected structure and the installation of a lift facility could not have been undertaken in isolation and would also have required planning permission.  A feasibility study that was carried out with regard to the redevelopment of the building (which included the installation of a lift facility) concluded that it would be necessary to close the premises entirely for a period of time in order to facilitate the necessary works.  The cost of the redevelopment work was estimated at €10 million.
• The respondent did not have access to the entire building in which it was located prior to April, 2008 as the medical and engineering faculties of UCD occupied a large portion of the site and consequently, the respondent’s ability to redevelop and upgrade the facilities available to it were significantly limited. 
• It was not possible for the respondent to hold the pre-concert talks and drinks receptions on the ground floor of its premises as a result of a lack of adequate space and due to the structural and operational constraints under which it was operating
• There were ongoing plans over a number of years to either relocate the respondent to a different site or to redevelop the existing site in which it was located.  The uncertainty that this created had an impact on the respondent’s ability to redevelop its existing facilities.
•  In March, 2007 a decision was taken by the Office of Public Works, the Dept. of Arts, Sports and Tourism and the Dept. of Finance that the respondent would remain at the Earlsfort Terrace site and the portion of the building that was being used by UCD would be transferred to the respondent for major redevelopment.  This redevelopment is due to commence in 2011 and the works will address all deficits in accessibility to existing facilities.  

5.6             Having regard to the foregoing, I am satisfied that the failure of the respondent to install a lift facility on its premises in order to accommodate the complainant’s access to the pre-concert talks and drinks receptions or to hold these events on the ground floor of its premises was not unreasonable given the circumstances under which it was operating at that particular time.  Accordingly, I find that the respondent did not fail to do all that was reasonable to accommodate the needs of the complainant in terms of the provision of the aforementioned facilities or special measures.  Section 4 of the Acts also provides 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.  In the circumstances, I am not obliged to consider the issue of nominal cost, as I have found that the respondent did not fail in its obligations under Section 4 of the Acts in terms of the provision of the aforementioned special facilities, however, for the purpose of completeness I propose to do so.  In considering the issue of nominal cost, I note that the respondent did not obtain a separate costing for the installation of a lift facility independently from the other development work that was planned for its premises.  The respondent adduced evidence that the estimated cost in 2003 of the building and structural works that were planned for its premises amounted to approx. €10 million.  I also note the respondent’s evidence that it was not feasible for the installation of a lift facility be undertaken in isolation from the other development works.  Having regard to this evidence, I am satisfied that the installation of a lift facility, given the constraints under which the complainant was operating, would have exceeded the nominal cost requirement under the Acts.   

5.7             Notwithstanding the foregoing, in considering whether the respondent has discharged its obligations under Section 4 of the Acts in the present case, I must examine whether it did all that was reasonable, in the circumstances, to provide special treatment or facilities in order to facilitate the complainant’s access to the pre-concert talks and drinks receptions that were held on its premises.  I am therefore obliged to examine whether the respondent could have implemented any further special measures or facilities, other than the installation of a lift facility or the holding of the pre-concert talks and drinks receptions on the ground floor of its building, in order to accommodate the needs of the complainant.  The question as to what constitutes “reasonable accommodation” has previously been addressed in many employment equality cases and much emphasis has been placed on the failure of the employer to engage in an acceptable level of consultation of 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 am of the view that similar standards should be applied in cases that have been referred under the Equal Status Acts, considering that the legal provisions are effectively the same.  In this regard, I have noted the findings of the Labour Court in A Health and Fitness Club –v- A Worker[1] where it is stated “before coming to the view [that the employee was not capable to do the job by reason of her 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 of the material facts concerning the employees condition, and that the employee is given fair notice [if extreme measures, such as dismissal for incapacity are under consideration].”. 

5.8             I accept that there is an obvious distinction to be made between the employment and equal status context and that one would expect the standard of “reasonable accommodation” in an employment situation to be higher 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 the disability.  In the present case, I am satisfied that the respondent actively engaged in a process of consultation with the complainant when it became aware of the difficulties that she was experiencing in terms of her access to the pre-concert talks and drinks receptions.  In this regard, I note that the respondent corresponded with the complainant on a number of occasions and acknowledged the difficulties that she was experiencing and sought to fully apprise her of the operational and structural difficulties under which it was operating at that particular juncture.  I note that the complainant stated at the hearing of the complaint that the respondent could have made available transcripts or recordings of the pre-concert talks to which she was unable to gain access but that it failed to do so.  However, I am satisfied that the complainant did not request the respondent to provide these facilities at any stage whilst she was experiencing difficulties in accessing these events nor did she indicate to the respondent that the implementation of such measures would have amounted to an acceptable alternative to her attendance at the events.  

5.9             I also note that the respondent put measures in place during the Autumn period of 2007 to hold the pre-concert talks for the Celebrity Concert Series in the Kevin Barry Room in the UCD occupied section of the building which was accessible by lift.  The respondent wrote to the complainant on 28^th August, 2007 to inform her of this measure and it also put arrangements in place for a member of its staff to escort her to the Kevin Barry Room via the lift facility in the event that she wished to avail of these measures.  I note that the complainant attended pre-concert talks that were held in this room on two occasions and she indicated at the hearing that she welcomed this measure.  I am satisfied that the implementation of this measure constituted an attempt by the respondent to provide special treatment and facilities in order to accommodate the needs of the complainant as a person with a disability and it is also further evidence of the process of consultation in which the respondent engaged when it became aware of the difficulties being experienced by the complainant in terms of her access to its facilities.  I accept that this measure was implemented some two and a half years after the complainant first signalled these difficulties, however I am satisfied that it was not possible for the respondent to put such measures in place prior to this juncture given the structural and operational constraints under which it was obliged to operate (as I have already referred to in paragraphs 5.5 and 5.6 above).  Having regard to the foregoing, I find that the respondent did not fail in its obligation under Section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities.   

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.  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), 4(1) and 3(2)(g) of the Equal Status Acts.  Accordingly, I find in favour of the respondent in this case. 

Enda Murphy

Equality Officer

12^th August, 2008