Equal Status Act 2000
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-063
Mr. Pat Hallinan
V
Mayo Education Centre
Represented by Mr. Oliver Mahon B.L. instructed by Mr. Kevin Burke, Kevin M. Bourke Solicitors
File Nos. ES/2003/0469
Date of Issue October 2008
Keywords
Equal Status Act 2000 - Disability ground, section 3(2) - Discrimination on the ground of disability, section 4 – Nominal cost, section 4(2) – Victimisation, section 3(2)(j).
1. Delegation
1.1. Mr. Pat Hallinan referred a complaint of less favourable treatment on the disability ground on 30 July 2003 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, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the other relevant functions of the Director under part III of the Equal Status Act. The investigation under section 25(1) of the Act began on 11 April 2008. An oral hearing, as part of the investigation under the Act, was held in Castlebar on 9 September 2008.
2. Dispute
2.1. The dispute concerns a complaint by Mr. Hallinan (“the complainant”) that he was treated contrary to section 4 of the Act on 5 February 2003 when he attended an equality meeting that was held in the Mayo Education Centre (“the respondent”). The complainant maintains that he was unable to access the main building and the toilets. The respondent was notified on 16 March 2003.
3. Case for the complainant
3.1. The complainant stated that he was invited to attend a meeting organised by the Mayo County Development Board in the Mayo Education Centre. The complainant stated that he had made a phone call on 4 February 2003 to the respondent to ensure that the facility was accessible. The reason why he felt he needed to do so was because he had experienced difficulties with the respondent’s facilities some ten months previously. During this phone conversation the complainant maintains that he told the person who answered the phone that he is a wheelchair user and that he enquired whether the building was accessible. He stated that he was told that it was. However, when he attended on 5 February 2003, the complainant discovered, from his point of view, that:
1. there were no toilets that he could comfortably use;
2. his standard size chair could not fit in the lift;
3. there were several steps to access the area where the meeting rooms are. The entry to the meeting room level has no ramp while there is a ramp to the main lobby area.
3.2. The complainant maintains that as a result of his wheelchair not fitting into the lift he was unable to access the meeting room area. He stated that he and his colleagues had no option but to hold the meeting in an open reception area with no privacy. He stated that it was very unprofessional and embarrassing to him. He states that while the meeting took place it was cut short as the area did not offer them enough privacy to conduct the meeting properly.
3.3. The complainant states that the delay in getting the lift fixed may have prevented him from using the facility. The complainant is disappointed that a new building such as the one managed by the respondent is inaccessible to him.
3.4. The complainant withdrew his complaint of victimisation at the oral hearing.
4. Case for the respondent
4.1. The respondent is a voluntary organisation that is state funded. It provides in-service training facilities to teachers. It also rents facilities to other parties who require meeting rooms.
4.2. The respondent does not dispute the facts as outlined by the complainant. They acknowledge that the complainant did attend the facility and that he could not access the lift. The then Director stated that he profusely apologised to the complainant and that all was done to facilitate the meeting with the resources available.
4.3. The respondent’s staff had even offered to carry the complainant and his chair downstairs. While the respondent submits that the complainant was absolutely right in turning down the suggestion, they wish to submit that the staff were doing all they could to assist the complainant who, through no fault of his own, was experiencing difficulties.
4.4. While the respondent made it clear that it was in no way suggesting that the complainant should use any other chair than one suitable for his needs, it submits that the complainant’s chair was too big to fit the lift whereas a smaller chair would have fitted. The then manager stated in direct evidence that he had concerns about the size of the lift prior to this incident and that in order to investigate the matter he had borrowed a wheelchair from the local hospital and had tested the lift with the architect who had maintained that the lift is wheelchair accessible. The witness stated that the wheelchair (non-motorised) that they used for their test did fit in and the architect had told the witness that the lift was compliant with building regulations.
4.5. The respondent accepts that a member of staff would have told the complainant that the building is accessible. This, the respondent submits, is because the respondent had genuinely thought that the building was accessible because it has what the respondent views as accessible toilets, a ramp and a lift. While it has become apparent to the respondent that there are obvious design flaws that prevent the complainant from using the building freely, they submit that until the complainant had highlighted these issues they had presumed the building was compliant. The respondent stated that it has welcomed the complainant’s invaluable assistance in their endeavour to make the building more accessible to him and to other mobility restricted service users.
4.6. The respondent also submits that the area where the meeting was held on 5 February 2003 has since been used to hold other meetings.
4.7. The respondent submits that there are still on-going problems with the lift. This is despite the fact that the lift is now roomier due to some changes made to it. Reception staff will now enquire about the size of a person’s wheelchair before telling them that the building is accessible. The door to the toilet, after the complainant’s experience, was re-hung in such a manner that it no longer opens into the toilets and has since become more accessible. The respondent submits that an additional ramp could solve access to the meeting room area (however, the accessible toilets are at a different level).
4.8. The respondent receives programme specific funding and makes some income from the room rentals (figure disclosed at the hearing). This money is mainly used to address any funding shortfalls. The respondent submits that as soon as the problems experienced by the complainant had been brought to their attention, they have taken steps to rectify the issues as quickly as possible. The respondent submits that this has at times been slower than they would have perceived as ideal. But as the building is owned by the Department of Education and Science, and most repairs must be carried out through them, the work on the building’s ‘snag’ list has been slow.
4.9. The respondent requests that the Equality Tribunal dismisses the complaint as they maintain that it is unjust under natural justice to hold the respondent responsible for the building’s design faults as the respondent has not had no input in its design nor location and has had to accept the building as it is.
4.10. The respondent further submits that the Equality Tribunal reinstates the Department of Education and Science - as the commissioners of the building and its owners - and Taylor’s Architect’s - as the designers of the building - as the co-respondent’s or as respondents is this complaint.
5. Conclusions of the Equality Officer
5.1. In a complaint of discrimination the onus rests with the complainant to establish the facts which he wishes to rely on in making his complaint. It is only when these facts have been established that it is for the respondent to prove contrary.
5.2. The complaint refers to less favourable treatment on the disability ground. I accept that the complainant’s condition is within the meaning of section 2(1) of the Act. I also accept that the complaint of less favourable treatment arises within the meaning of section 4 of the Act.
5.3. The complainant had named a number of respondents in relation to this claim. The Director had dismissed the other respondents under section 22 of the Act as non-service providers to the complainant. I do not have the power to deal with the respondent’s request to reinstate them.
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 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 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. While it is clear from the complainant’s direct evidence that he was unable to access parts of the building and that the toilet’s design was such he was unable to close the door properly when using it, it is clear that he was able to participate in the actual meeting albeit in circumstances that the complainant deems less than satisfactory.
5.6. It is clear that from the complainant’s own direct evidence that the staff of the centre were helpful and that alternative arrangements were immediately put in place to enable the meeting to take place
5.7. It is also clear that the building itself is supposed to be accessible. It is not for this Tribunal to examine a service provider’s compliance with building regulations. Instead, it is for me to decide whether the service provider did do all that is reasonable to accommodate the needs of the complainant. As all of the matters complained of by the complainant refer to structural changes such as ramps, resizing of the lift and refitting the toilet door, it is not reasonable, within the meaning of this Act, to presume that they could have been rectified then and there. I also find that it is not reasonable to presume that a service provider has the relevant experience to assess accessibility for all. In this case, it is clear that the respondent did all that was reasonable on the day. It is also clear that section 4(2) exempts the respondent from the type of reasonable accommodation requirement presented by this complainant as the service does not have the financial means to solve all of the above issues.
5.8. I have not been presented with any evidence to suggest that the respondent has refused or failed to provide special treatment or facilities to the complainant. It is clear that the respondent did all it could in the circumstances of the case to accommodate the complainant. It is also clear that the respondent had investigated accessibility issues and I am mindful of the fact that the then Director had taken the steps to himself inspect the lift and to raise his concerns with the design people. It is also clear that the respondent has been apologetic for the limitations of the building and has done all that is reasonable to rectify the situation since this unfortunate incident.
5.9. The complainant withdrew his complaint of victimisation at the hearing. He stated that is was a matter that would have risen if the Director had not dismissed the other named respondents in this complaint. The complaint of victimisation is not relevant in relation to this respondent.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
The complainant has established a prima facie case of discrimination on the disability ground. However, the respondent has successfully rebutted the complaint on reasonable accommodation and nominal cost issues.
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Tara Coogan
Equality Officer
October 2008