THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009-081
PARTIES
Aine Wellard
and
Health Service Executive
(Formerly South Western Area Health Board)
File Reference: ES/2007/0153
Date of Issue: 27th November, 2009
Decision No. DEC-S2009-081
Keywords
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1)(a) - Disability ground, section 3(2)(g) - Reasonable accommodation, section 4 - Disposal of goods and provision of services, section 5(1) - Establishment of a prima facie case - Non attendance at the hearing.
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 30th October 2007. 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 11th December 2008. A hearing, in accordance with section 25 was scheduled for the 12th November 2009.
2. Dispute
2.1. The complainant, Ms. Aine Wellard, claims that she was discriminated contrary to section 5(1) by the respondent on the grounds of her disability contrary to section 4(1) of the Equal Status Acts on the 10th July 2007. The complainant maintains that the respondent failed to provide her with reasonable accommodation in accordance with section 4(1), in that, it failed to provide the supporting documentation and labelling accompanying her medical card in Braille. The complainant claims that she notified the respondent of her complaint on the 6th September 2007.
3. The hearing
3.1. A hearing, in accordance with section 25 of the Acts, was scheduled for 10:30am in the offices of the Tribunal on the 12th November 2009. A letter informing both parties of this arrangement was sent by Registered post on the 25th June 2009. The letter sent to the complainant was in Braille. I am satisfied that both parties were provided with ample notice in relation to the hearing.
3.2 Neither the complainant nor the respondent were in attendance at 10:30am on the day of the hearing. I waited until 11:15am to allow both parties sufficient time to present themselves or to contact the Tribunal to offer an explanation for the delay. However, neither party presented themselves at the offices of the Tribunal and no contact was received.
3.3 I contacted An Post and requested a confirmation of the delivery of both registered letters. An Post have provided me with evidence of the delivery of both letters.
3.4 Accordingly, I am satisfied that both parties were notified of the date and time of the hearing. I am also satisfied that no attempt was made to contact the Tribunal to inform of any delay. Finally, I am satisfied that ample time was provided for the parties to present themselves at the hearing so as to provide evidence.
4. Conclusion
4.1 Section 38A (1) of the Equal Status 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 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. Decision
5.1. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I issue the following decision. As part of my investigation under section 25 of the Acts, I am obliged to hold a hearing. I find that the complainant's failure to attend such a hearing was unreasonable in the circumstances and that any obligation under section 25(1) has ceased. As no evidence was given at the hearing in support of the allegation of discrimination I conclude the investigation and find against the complainant.
________________
James Kelly
Equality Officer
27th November 2009