DEC-S2010-040-Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS

Decision No. DEC-S2010-040

PARTIES

Mary Dalton

-V-

Citizen's Information Centre, Dun Laoghaire
and
Comhairle (now the Citizens' Information Board)

Key words
Equal Status Acts - Section 3(2)(g), Disability ground - Section 3(2)(j), Victimisation - Section 4, Reasonable Accommodation - Relationship between parties - No prima facie case

1. Delegation under the relevant legislation

1.1. On 26 October 2005, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts against the first-named respondent. On 24 November 2005, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts against the second-named respondent. On 31 January, 2006, the complainant referred a further claim of victimisation to the Director of the Equality Tribunal under the Equal Status Acts against the first-named respondent. On 25 September, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated these complaints to me, Gary O'Doherty, 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 which date my investigation commenced.

1.2. I indicated to the parties at an early stage that I intended on holding a single hearing to deal with both matters as they were related cases. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on 29 June, 2010. (Three earlier hearings had been adjourned at the request of the complainant in light of exceptional circumstances that were outlined in her adjournment requests). All parties were in attendance at the hearing.

2. Dispute

2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondents on the Disability ground and victimised by the respondent contrary to the Equal Status Acts in terms of Sections 3(1)(a), 3(2)(g) and 3(2)(j) and Section 4(1) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts, in that the respondents treated her less favourably in their treatment of her when she sought to avail of their services and that they victimised her after she made a complaint against them to the Tribunal.

3. Summary of the Complainant's Case

3.1. The complainant stated that she has a disability in that she has been diagnosed with Chronic Fatigue Syndrome and endochrine failure as well as hypertension and scoliosis.

3.2. She stated that, in 2002, she attended the first-named respondent to seek legal advice on a particular matter. She stated that she complained in polite terms to the Manager of the Citizens' Information Centre, Dun Laoghaire (CICDL) about a member of staff being present during a consultation she had with a named solicitor, solicitor A. She said that this drew "enormous wrath" from the Manager and that this conversation was "spread around" as she was told about it by someone in the street in Dun Laoghaire. She stated that she also noticed that when she later attended the first-named respondent a number of people were acting in a hostile manner towards her, and she surmised that someone must have mentioned her criticism. She said she wrote to the first-named respondent to say that she felt there had been a breach of confidentiality and that she was subsequently barred from accessing the services of the first-named respondent.

3.3. The complainant stated that she later saw solicitor B in a private capacity and independently from either respondent. She stated she was dissatisfied with her treatment by solicitor B and took a complaint against him to the relevant authorities. (Solicitor B volunteered with the first-named respondent.)

3.4. The complainant stated that, in September 2005, she sought to make an appointment to consult with a solicitor with the first-named respondent. However, she said that this appointment was cancelled by the first-named respondent and she was told that she remained barred.

3.5. The complainant said that she had written to the second-named respondent, who had a watching brief over the first-named respondent, in relation to these matters, but received only stonewalling and remained barred. In relation to its offer that she could obtain Citizen's Information Centre (CIC) services in other offices, the complainant said that she should not be expected to travel when she was owed an apology. However, she said she agreed to meet with the Chief Executive Officer ("the CEO") of the second-named respondent in an effort to resolve the matter but "was only told more lies by the CEO and that there is a limit to the lies she can subject herself to".

3.6. The complainant said that the respondents failed to provide her with reasonable accommodation because they told her she couldn't see a solicitor and that this behaviour was "extremely dangerous".

3.7. The complainant made a number of allegations about certain treatment of her by the respondent subsequent to her making her claim to the Tribunal. She submitted that this treatment amounted to victimisation. In particular, she referred to communications she had with another solicitor who worked with the first-named respondent, solicitor C. She said the respondents' had refused to deal with her and had done so in a humiliating way when she was just pointing out shortcomings on their end. She said that this behaviour was punitive because she was taking a complaint to the Tribunal.

3.8. In response to the respondent's submission that it was not aware of her disability, the complainant said that a named member of the first-named respondent ("the staff member") who was working there in 2002 was aware of her disability. She said that she also mentioned her disability to solicitor A in 2002 when she met with him and that the other people in the room who were present with solicitor A when she made her complaint were aware of her disability. However, she was not sure if she had put this in writing.

3.9. The complainant stated that the respondents' behaviour was highly unusual and that for someone to be barred from having made an observation was sinister. She said they were bullying her because they saw her as helpless. She said that they would have "stood down their behaviour" if she did not have a disability. The complainant said that she ran into a lot of lies and abuse from the respondents, and as a consequence of their actions she had no recourse to legal representation.

4. Summary of the Respondents' Case

4.1. The respondents' were jointly represented. They stated that the name of the second-named respondent had been changed from Comhairle to the Citizens' Information Board (CIB) in 2007. They said that the first-named respondent had some paid staff but that other functions, including solicitors functions, were carried out by volunteers. The second-named respondents' function at the time was to oversee and support the Board of CICDL; CICDL had its own customer complaints procedure, but complaints could also be taken to Comhairle where customers were not satisfied with the CICDL procedure.

4.2. The respondents' said, in relation to the events of 2002, that the Manager sought to explain to the complainant that it was standard practice that a volunteer would sit in with a solicitor during a consultation. However, he had taken the view that the complainant had been abusive and unreasonable in her interaction with him over the phone. The second-named respondent said that the complaint against the Manager and the allegation of breach of confidentiality was dealt with fully by Comhairle. The second-named respondent said it received this complaint on 17 December 2002. Ms Z, who works for the second-named respondent and was present at the hearing, said that she suggested a meeting between the complainant and the Manager, in which Ms Z would participate, but that the complainant refused this offer. There was no further contact with the complainant until September 2005.

4.3. With regard to the events of 2005, and in particular the decision to discontinue providing legal services to the complainant, the respondents' said that the complainants' complaint against solicitor B had raised a conflict of interest issue for many of the solicitors who volunteered with the first-named respondent, some of whom worked in the same office as solicitor B. They also referred to the "collegiality of the solicitors" who volunteered for the first-named respondent. They stated that the ability of this "collegiality" to act for the complainant was brought into question both as a result of this conflict of interest and of her complaint that her confidentiality had been breached. In any event, as sometimes one solicitor would have to be replaced by another and because they were all volunteers, the first-named respondent was not satisfied that it could ensure that the solicitor present at the time the complainant wished to meet with one would be a solicitor who was prepared to deal with the complainant. Therefore, the respondents' said they told the complainant that it was advisable in the circumstances and in her own interests to seek legal advice elsewhere.

4.4. In response to the allegation of victimisation in this regard, the respondents' said that the notification in relation to the complaint to the Tribunal was issued on 24 September 2005 and the board met in November 2005, but that the decision had been taken in a letter sent to the complainant prior to her making the complaint, earlier in September, 2005. They also said that there was an error in this letter, in that it indicated that all the services of CICDL were being withdrawn when, in fact, services other than legal services were still being made available to the complainant.

4.5. The respondents' said that every effort was made to engage with the complainant both verbally and in writing and it provided extensive detail of this communication, both at the hearing and in its written submissions. They stated that at all times the complainant was offered alternatives to obtaining advice at CICDL. For example, they said that she could meet with the Manager (along with Ms Z), and that if she needed taxis to take her to other CIC centres, these would be arranged. However, they said she became increasingly difficult in terms of her verbal conversations. In that respect, they took issue with the complainant in respect of the number of staff who were subjected to personalised attacks by her, and that she refused to engage in any meaningful manner. They said that they engaged with the Department of Social and Family Affairs at high levels in respect of her concerns but that every offer that was made was refused as she wanted only to deal with CICDL and it became clear that the solicitors concerned were not willing to engage with her.

4.6. In particular, the respondents' pointed to a meeting that was arranged between the CEO and the complainant. However, as the CEO outlined in a letter to her, the respondents' submitted that the complainant had made offensive and unwarranted remarks about the staff of the second-named respondent in the course of that meeting. Therefore, she was asked to refrain from having further communication with the respondents' in relation to the matter until the Tribunal hearing.

4.7. In any event, the respondents' submitted that they were not aware the complainant had a disability until 25 September 2005, when she first mentioned she had M.E. It did not deny that the complainant mentioned her disability to solicitor A. However, they said that such meetings were totally confidential and there would have been no reason for anyone to mention it. They stated that there was a very strong ethos of confidentiality within the CIC's and that everyone working or volunteering there know that confidentiality is paramount. They said that there are occasions within CIC's where it is necessary to exchange information but none of this information "goes out the door". It said that the staff member was subject to the same confidentiality requirements as everyone else, that it would not have been appropriate for her to talk about the complainant to anyone and that she did not do so.

4.8. In relation to the claim of victimisation, the respondents' said that there was a long history of interaction prior to any complaint being made and that it was made clear before the complainant made her complaint that the service of legal advice would be made available through other centres, and that remains the case. They said that the decision not to provide the legal advice service of CICDL to the complainant had already been made before she brought her complaints to the Tribunal. The respondent also gave detailed evidence in respect of its interaction with the complainant subsequent to her making her claim to the Tribunal, including the aforementioned meeting it arranged between her and the CEO.

4.9. In short, the respondents' said that anyone in similar circumstances would be treated in the same way as Ms Dalton was.

5. Conclusions of the Equality Officer

5.1. Section 38(A) of the Equal Status Acts 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties.

5.2. I must consider whether the respondent has discriminated against on the disability. As the relevant ground is the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.

5.3. I am satisfied that the complainant has a disability within the meaning of the Acts. There are five principal aspects to her complaint, and I will consider these in order. They are:
 The treatment of the complainant by the first-named respondent in relation to its refusal to provide services in general and/or certain services to the complainant;
 The treatment of the complainant by the second-named respondent in relation to its handling of her complaint against the first-named respondent in that regard;
 The failure of the respondents to provide her with reasonable accommodation;
 The alleged ultimate denial of representation to the complainant by the respondent;
 The allegation of victimisation.

Treatment/Denial of Service by first-named respondent

5.4. The series of events of 2002 and early 2003 are relevant to my investigation only as background. However, the following outcomes of these events are germane to the investigation: the complainant was dissatisfied with the response she received regarding her complaint at that time but let the matter rest and a significant number of the solicitors who volunteered with the first-named respondent indicated that they were not prepared to offer advice to the complainant.

5.5. The first issue for me to consider is whether the treatment of the complainant by the first-named respondent in September 2005, and subsequently, was discriminatory on the ground of disability. I found the evidence of the complainant to be more credible than that of the first-named respondent, not least because of certain inconsistencies in the first-named respondent's evidence. In particular, I note the first-named respondent stated that it erred in its letter of September 2005 in that it said it would not provide any services to the complainant, when it actually meant it would not provide legal services to her. I do not accept this contention: both respondents had ample opportunity to clarify this in subsequent correspondence and it is clear from the complainant's correspondence that she understood she was banned from availing of all the services being offered by CICDL and that this was the basis of her complaint. Indeed, the first-named respondent wrote to the Tribunal on 27 October 2006 stating that the complainant "had been barred from the Centre since November 2002."

5.6. Consequently, I am satisfied that the first-named respondent refused to provide any services to the complainant. I am also satisfied that at least some members of staff of the first-named respondent were aware of the complainant's disability, and certainly some of those directly involved in the circumstances surrounding this complaint were so aware. However, it is not enough on its own for the complainant to say that simply because she had a disability and the respondent knew about it, the behaviour in question must be discrimination. The burden of proof is with her, and she must adduce evidence from which it could be presumed that the reason for the first-named respondent not providing these services was related to her disability.

5.7. The complainant alleges that the Manager discriminated against her in refusing to deal with her because of her disability. It is clear from the evidence presented by both sides, both oral and documentary, that the reason why the Manager would not deal the complainant was because he considered that she had become abusive towards him. It had nothing to do with her disability and the Acts do not require a service provider to deal with an abusive customer where it would deal with someone of a different status on the relevant ground in the same way. I am satisfied that was the case in the present complaint.

5.8. I am also satisfied that other members of staff of the first-named respondent, including the relevant Solicitors, did not wish to deal with the complainant for similar reasons. It is also clear that a number of solicitors would not advise the complainant because of a perceived conflict of interest as the result of her complaint against one of their colleagues. I find the arguments that the "collegiality" of solicitors were not in a position to advice her to be weak ones at best. In addition, I am not convinced that the respondent could not have made alternative arrangements with the complainant to ensure she was advised by a Solicitor who was prepared to provide that advice. However, it is also clear that such a task would have been fraught with great difficulty given the complainant's behaviour and attitude towards the first-named respondent, and in light of its previous dealings with her. While it would appear that a person who was not as difficult to deal with as the complainant may have been provided with those services in the same or similar circumstances, that had nothing to do with the complainant's disability.

5.9. In short, the facts upon which the complainant seeks to rely in proving her prima facie case do not raise any presumption of prohibited conduct on the part of the first-named respondent. Therefore, she has failed to prove her prima facie case with regard to this aspect of her complaint.

Treatment/Denial of Service by second-named respondent

5.10. The complainant could not provide any evidence that the first-named respondent made the second-named respondent aware of the complainant's disability; indeed, there was no evidence that it was aware of her disability prior to being told about it directly by the complainant in correspondence dated 25 September, 2005. In any event, I am satisfied that both respondents took the issue of confidentiality seriously, and there was no reason for the first-named respondent to inform the second-named respondent of the complainant's disability when it was of no relevance to her complaint against it. The treatment of the complainant by the second-named respondent did not alter subsequent to being informed of her disability; if anything, it became more sympathetic to her situation. In short, there is no evidence to indicate that the complainant's disability was a factor in its treatment of her. I am satisfied that it was not.

Reasonable Accommodation

5.11. The complainant submitted that the respondents failed to provide her with reasonable accommodation because they told her she couldn't see a solicitor and that this behaviour was "extremely dangerous". However, this is irrelevant to the issue of reasonable accommodation as the responsibilities of the respondents' in this regard are to provide special treatment or facilities without which it would be impossible or unduly difficult for the complainant to avail of their services. The complainant did not adduce any evidence that she required any such special treatment or facilities. Therefore, she has failed to prove her prima facie case of discrimination in that regard.

Alleged denial of representation

5.12. The question of whether the complainant was denied representation, per se, is a constitutional issue and a matter for the Superior Courts. However, I must consider whether the reason why the complainant was denied access to the respondents' solicitors was related to her disability. In that regard, and for the same reasons as outlined in paragraph 5.8 above, I do not believe that the complainants disability was a factor in this decision. In this regard, I would add that I am satisfied the vast majority of the relevant solicitors were unaware of the complainants disability.

Allegation of victimisation

5.13. The complainant made a separate victimisation claim against the first-named respondent, while a similar claim against the second-named respondent was included in her initial complaint form. However, the vast bulk of the incidents referred to in the complainant's evidence occurred well before she made her claim to the Tribunal, the claim upon which she grounds her allegation of victimisation. She was already barred from the respondent's premises before that, and the disputes she had with both respondents were well in train long before she issued the notification in relation to her claim.

5.14. There was undoubtedly a serious deterioration of the relationship between the complainant and both respondents after the claim had been made. Indeed, those relationships soured to such a degree that the Garda Síochána became involved. However, it is clear that the complainant contributed handsomely to the deterioration in that relationship, and it is quite likely that the deterioration would have occurred even if she had not made her complaint to the Tribunal. If the decision of the complainant to take a case to the Tribunal had a direct impact on the relationship between the parties, it was to embolden the efforts of the second-named respondent to try and resolve the matter without recourse to the Tribunal or any other legal mechanisms. That it failed in those efforts is nothing to do with the complaint.

5.15. In short, I am not satisfied that the deterioration of the relationship between the complainant and the respondents subsequent to the complainant making her complaint to the Tribunal was caused by her decision to make that complaint. Therefore, it was not victimisation within the meaning of the Acts. (In that context, it should be noted that much of the evidence relating to the deterioration of that relationship has not been included in the summary of the evidence, particularly as it includes allegations made against third parties).

6. Decision

6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:

6.2. 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)(a) , 3(2)(g) and Section 5(1) of the Equal Status Acts.

6.3. I find that the complainant has failed to establish a prima facie case of victimisation in terms of Sections 3(1)(a) and 3(2)(j) of the Equal Status Acts.

6.4. Accordingly, the complainant's case against each respondent fails.

_____________
Gary O'Doherty
Equality Officer
12 August 2010