THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC–S2009-020
PARTIES
Ms. Feyi Banjoko
(represented by Mr. Brendan McDonald, Solicitor,
Coughlan White O’Toole Solicitors)
and
Ms. Linda Mellon t/a Dolmen Nursery
& Montessori School
File Reference: ES/2007/0083
Date of Issue: 31st March, 2009
Equal Status Act 2000-2008
Equality Officer Decision DEC-S2009-020
Ms. Feyi Banjoko
(Represented by Mr. Brendan McDonald, Solicitor,
Coughlan, White, O’Toole Solicitors)
-v-
Ms. Linda Mellon t/a Dolmen Nursery
& Montessori School
Keywords
Equal Status Acts 2000-2004 - Direct discrimination, Section 3(1)(a) – Gender Ground, Section 3(2)(a) – Marital Status Ground – Section 3(2)(b) - Family Status Ground, Section 3(2)(c) – Disability Ground, Section 3(2)(g) - Race Ground, Section 3(2)(h) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 26th 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 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 24th February, 2009.
1. Dispute
1.1 This dispute concerns a complaint by Ms. Feyi Banjoko that she was discriminated against by the respondent, Ms. Linda Mellon t/a Dolmen Nursery & Montessori School in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(c), 3(2)(g), 3(2)(h) and 4(1) of the Equal Status Acts, 2000 to 2008 on the basis of the respondent’s refusal to allow her daughter to be dropped off and collected from its crèche by way of taxi for a period of time after the complainant had sustained serious neck injuries in a road traffic accident.
2. Summary of the Complainant’s Case
2.1 The complainant’s daughter was aged 4 years when she commenced attendance at the respondent’s crèche in March, 2006 and it was the complainant’s normal practice to drop off and collect her daughter from the premises on each day of attendance. The complainant was involved in a car accident on 12th June, 2007 in which she suffered serious neck injuries and as a result of these injuries she was unable to drive for a period of time. During this period the complainant was unable to drop off or collect her daughter from the respondent’s crèche each morning and evening. The complainant’s husband was out of the country at this time and as she did not have any alternative transport arrangements the complainant engaged the services of a registered taxi service to transport her daughter to and from the crèche for the period in which she was incapacitated. The complainant contacted the crèche on Friday, 15th June, 2007 in order to inform it of this arrangement and she stated that her daughter was dropped off and collected from the crèche by way of taxi without any difficulties on both Monday, 18th and Tuesday, 19th June, 2007.
2.2 The Manager of the crèche, Ms. A, contacted the complainant at approx. 19:45 on Tuesday, 19th June, 2007 and informed her that the crèche would not allow her daughter to be dropped off and collected from the premises by the taxi service on the basis that this arrangement was in contravention of its policy. The complainant was extremely surprised and upset by this as the crèche had not raised any objection with the arrangement on the previous two days. The complainant explained the difficulties that she was experiencing in terms of the transportation of her daughter to and from the crèche following the road traffic accident and she advised the crèche that she had established the taxi service was registered and that it had proper health and safety procedures in relation to the drivers that it employed. The complainant offered to indemnify the crèche of any responsibility for her daughter arising out of the arrangement and she personally delivered this letter of indemnity and a letter of authorisation to the crèche when her daughter was being dropped off the following morning (Wednesday, 20th June, 2007). The complainant also delivered a letter of complaint to the crèche on this occasion regarding its refusal to permit the transportation arrangement for her daughter that she had put in place.
2.3 The complainant stated that she received a number of telephone calls from the proprietor of the crèche, Ms Linda Mellon later that morning in which the issue was discussed. Ms. Mellon informed the complainant that the crèche would not allow her daughter to be collected by the taxi service nor would the crèche collect her daughter from school and bring her to the crèche that afternoon. The complainant stated that she was extremely distressed by the respondent’s refusal to grant permission for the transportation arrangement that was in place and she was left with no option but to withdraw her daughter from the respondent’s crèche and enrol her in an alternative childcare facility. The complainant’s daughter ceased attendance at the respondent’s crèche on 20th June, 2007 and was placed in another childcare facility which permitted the complainant to transport her daughter to the premises by way of taxi. The complainant accepted that she had decided to withdraw her daughter from the respondent’s crèche prior to the alleged incident of discrimination and that she had made arrangements to have her daughter enrolled in another childcare facility. The complainant claims that she has been discriminated against by the respondent on the basis of its refusal to allow her daughter to be transported to and from the crèche by way of the taxi arrangement that she had put in place following her involvement in a car accident.
3. Summary of the Respondent’s Case
3.1 The respondent operates a crèche and Montessori school which was established in 1996 and which can provide childcare facilities for up to twenty two children. The complainant’s daughter enrolled at the crèche in March, 2006 and the complainant was made aware at that juncture of the respondent’s policy regarding the dropping off and collection of children at the premises. It was the crèche’s policy not to permit children to leave the premises unaccompanied by their parent/guardian or the alternative person that had been named on the enrolment registration form. In the event that the parent/guardian or alternative named person was unable to collect their child the crèche would only release the child to a responsible adult whose name and contact number had been furnished to it prior to the time of collection. The complainant contacted the crèche on Friday, 15th June, 2007 and informed a staff member that she was in hospital following a car accident and would therefore be unable to pick up her daughter that evening but would make arrangements with a friend to collect her. The complainant also informed the staff member that she would make further contact with the crèche in relation to who would be bringing/collecting her daughter to and from the crèche over the next few days.
3.2 The complainant accompanied her daughter to the crèche in a taxi on Monday, 18th June, 2007 and informed the staff member on duty that she would be bringing her to the premises by way of taxi as she was unable to drive following her car accident. The respondent understood from this that the complainant would be accompanying her daughter in the taxi on each occasion she was dropped off and collected from the premises; however, the complainant’s daughter was not accompanied in the taxis that collected her that evening or upon arrival at the crèche the following morning (Tuesday, 19th June, 2007). The respondent’s staff had serious concerns about releasing an unaccompanied child to an unnamed taxi driver and this matter was reported to the crèche’ manager, Ms. A., who was on maternity leave but had been on the premises on that date. Ms. A. contacted the complainant by telephone at 19:45 that evening and reiterated the crèche’s policy regarding the dropping off and collection of children. She also informed the complainant that the crèche was extremely concerned for the welfare of her daughter in terms of the taxi arrangement which she wished to put in place. The complainant became annoyed during this telephone conversation and Ms. A informed her that she would be passing the matter to the proprietor of the crèche, Ms. Linda Mellon. The respondent contacted a number of different agencies for advice on the matter as this was the first occasion since the crèche was established that a parent/guardian had requested such an arrangement be put in place in relation to the dropping/collection of a child to and from the premises. Based on the advice obtained the respondent subsequently amended its policy to state that it would not permit a child to be collected by a taxi unless he/she was accompanied by a responsible adult in the taxi.
3.3 The proprietor of the crèche, Ms. Linda Mellon, had been apprised of the situation involving the complainant by her staff and she contacted her by telephone on Wednesday, 20th June, 2007 in order to discuss the matter. Ms. Mellon informed the complainant that she could not permit any of her staff members to allow her daughter to be dropped off or collected from the premises in a taxi without being accompanied by their parent/guardian as it was in contravention with the crèche’ policy which was in place for the protection and welfare of the children in her care. Ms. Mellon informed the complainant that the crèche could only provide care for her daughter if she was collected and dropped off in accordance with this policy. The respondent stated that the complainant withdrew her child from the crèche on Wednesday, 20th June, 2007. The respondent strenuously denies that it discriminated against the complainant on any of the grounds claimed and it stated that the safety and welfare of her daughter was its foremost concern at all stages; however, it submitted that the crèche could not continue to care for her daughter if the complainant refused to abide by its policies.
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, 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. I will now proceed to examine the complaint on each of the grounds claimed.
Gender, Marital Status and Race Grounds
4.2 The complainant claims that she was discriminated against by the respondent on the gender, marital status and race grounds. In considering this issue, I am satisfied that I was not presented with any evidence from which I could conclude that the respondent’s refusal to allow the complainant’s daughter to be dropped off and collected from the premises by way of taxi was in any way attributable to her gender, marital status or race. I am satisfied that the respondent would not have permitted the parent/guardian of any of the children that attended its crèche to transport their child to and from the premises by means of such an arrangement regardless of their gender, marital status or race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the gender, marital status or race grounds.
Family Status Ground
4.3 The complainant also claims that she was discriminated against by the respondent on the family status ground. Section 2(1) of the Equal Status Acts, 2000 to 2008 defines family status, inter alia, as meaning:
“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, …”
In the present case, the complainant is the parent of a child under the age of 18 years who was enrolled at the respondent’s crèche and I am therefore satisfied that the family status ground is applicable to her in this case. However, I am also satisfied that all of the other parents/guardians who had a child enrolled at the crèche also had the same family status as the complainant i.e. they were also the parent or guardian of a child under the age of 18 years who were enrolled at the respondent’s crèche. As I have already stated, I am satisfied that the respondent would not have permitted the parent/guardian of any of the children that attended its crèche to transport their child to and from the premises by means of such an arrangement regardless of their family status. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.
Disability Ground
4.4 The complainant has also claimed that she was discriminated against by the respondent on the grounds of her disability. In the present case, it was not disputed that the complainant sustained serious neck injuries as a result of her involvement in a car accident in June, 2007 which rendered her incapable of driving her daughter to and from the respondent’s crèche (as was her normal practice). I am satisfied that the condition affecting the complainant at the time of the alleged incident of discrimination in June, 2007 constitutes a disability within the meaning of Section 2(1) of the Equal Status Acts, 2000 to 2008. It was accepted by both parties that the respondent would not permit the complainant to drop off and collect her daughter from the crèche by way of taxi following her involvement in this car accident and that this refusal ultimately resulted in the complainant’s daughter terminating her attendance at the crèche. However, 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 parent/guardian who had a child enrolled at the crèche who either did not have a disability or who had a different disability. In considering this issue, I am satisfied that the respondent would not have permitted the parent/guardian of any of the children that attended its crèche to transport their child to and from the premises by means of such an arrangement irrespective of whether or not they had a disability. In the circumstances, I am satisfied that the complainant was not subjected to less favourable treatment on the grounds of her disability. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.
Reasonable Accommodation
4.5 In the case of disability in considering whether discrimination occurred, consideration must be also 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 that I must address 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 person with a disability in terms of its refusal to permit her daughter to be transported to and from the premises by means of the taxi arrangement the complainant had put in place following her involvement in a car accident.
4.6 In considering this issue, I note the undisputed evidence of the complainant that she was unable to drive for a period of time following her involvement in a car accident on 12 June, 2007. The complainant claims that she made arrangements to have her daughter transported to and from the crèche by way of taxi following this accident as she did not have any alternative means of doing so at that time. It was not disputed that the complainant contacted the crèche and informed the Acting Manager, Ms. B, that her daughter would be transported to and from the premises by way of taxi commencing on Monday, 18th June, 2007. However, it would appear that there was some confusion regarding the manner in which the arrangement would work in practice as the respondent claims that it was under the impression the complainant would accompany her daughter in the taxi on all occasions. I note that the complainant did, in fact, accompany her daughter in the taxi to the crèche on the Monday morning and that it was only when the taxi arrived at the crèche that evening (without the complainant) in order to collect her daughter that an issue arose regarding the appropriateness, or otherwise, of the arrangement. I accept that the members of staff working in the crèche had genuine concerns regarding the arrangement at this juncture and as a result of these concerns the matter was subsequently brought to the attention of the crèche manager, Ms. A, who in turn referred the matter to the proprietor of the crèche, Ms. Linda Mellon.
4.7 The respondent has claimed that it had never previously encountered a situation whereby a parent/guardian had requested their child to be transported unaccompanied in a taxi to and from its premises and it was submitted that such a request was in breach of its stated policy which the complainant had agreed to adhere to upon the enrolment of her daughter. I note that the policy which the crèche had in place at the time of enrolment of the complainant’s daughter in March, 2006 stated that “Should you have someone other than the parents collecting your child, please inform staff of the name and status of the collector”. I am satisfied that it was clearly stated within the respondent’s policy that there was a requirement on the parent of a child to inform the crèche of the name of an individual who would be collecting the child from the premises should the parent not be in a position to do so. It was not disputed by the complainant that she was made aware of this policy upon the enrolment of her daughter at the crèche. I accept that the complainant notified the respondent of the name of the taxi company that she had engaged to drop off and collect her daughter from the premises, however given the nature of the arrangement it was likely that her daughter would be transported to and from the premises on each occasion by a different taxi driver. Having regard to the foregoing, I am satisfied that this arrangement was not in compliance with the respondent’s stated policy regarding the dropping off and collection of children to and from the premises.
4.8 The respondent also submitted that it could not agree to the taxi arrangement which the complainant sought to put in place as it raised serious concerns regarding the safety and welfare of the child. I have taken note of the Child Care Act, 1991 (as amended) and the Child Care (Pre-School Services) Regulations, 1996 which make legislative provision for the operation of childcare facilities, such as the respondent’s crèche, and this legislation clearly places an obligation on the service provider to take all reasonable measures to safeguard the health, safety and welfare of children attending the service (Section 52 of the Child Care Act refers). It is also clear that any failure by a service provider such as the respondent to adhere to its obligations in this regard could have very serious consequences both for service provider in question and the children under its care. Having regard to these obligations, I am satisfied that it is incumbent on the provider of a childcare facility, such as the respondent, to exercise extreme diligence and caution in terms of the policy that it implements in relation to the dropping off and collection of children from its premises. I accept that the complainant had informed the respondent that she was satisfied the taxi company concerned was a reputable firm and that she would not have entrusted this firm with the safety and welfare of her daughter if she had any concerns in this regard. However, notwithstanding the complainant’s assurances, I am satisfied that the respondent’s refusal to permit the complainant to transport her daughter to and from its premises by way of the taxi arrangement was not unreasonable in the circumstances of this case especially in light of its obligations under the Child Care Act and the resultant duty of care that it had to protect the safety and welfare of the child in question. Having regard to the foregoing, I find that the respondent’s refusal to facilitate this taxi arrangement did not amount to a failure to do all that was reasonable to accommodate the needs of the complainant as a person with a disability within the meaning of Section 4 of the Equal Status Acts.
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 failed to establish a prima facie case of discrimination on the gender, marital status, family status, disability and race grounds in terms of Sections 3(1), 3(2)(a), 3(2)(b), 3(2)(c), 3(2)(g), 3(2)(h) and 4(1) and of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
31st March, 2009