THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2012-004
PARTIES
A Complainant
(represented by MJ O'Connor Solicitors)
and
A Choir
File Reference: ES/2009/0004
Date of Issue: 13th January, 2012
Keywords
Equal Status Acts 2000-2008 - 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, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 21 January, 2009 under the Equal Status Acts, 2000 to 2008. On 28 February, 2011, in accordance with his powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, 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 to 2008 on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to hearing on 22 November, 2011.
1. Dispute
1.1 The complainant claims that he was discriminated against by the respondent on the grounds of his disability in terms of sections 3(1), 3(2)(g) of the Equal Status Acts, 2000 to 2008 in terms of the respondent's refusal to allow him to become a full member of its choir.
2. Summary of the Complainant's Case
2.1 The complainant has Sotos Syndrome, which is a rare genetic disorder characterised by excessive physical growth during the first two or three years of life, and he is considered to have a mild intellectual disability and his main difficulty is with mathematical calculation. However, when it comes to musical lyrics and scores, it was submitted that the complainant's accomplishments are above average and that he had performed with a number of other choirs prior to joining the respondent's choir. The complainant had also been a pupil of a well known soprano and voice coach since 2006 and it was submitted that he is an accomplished singer and performer. The complainant submitted that he wished to join a choir in his locality and that his family had a strong attachment to the respondent's choir as his grandfather had previously been a member. The complainant attended at the premises of the respondent's choir in or around October, 2007 and requested to join the choir. On his first night, the complainant was introduced to the choir by his mother on the basis that she knew the premises where the choir practised and was familiar with many of the choir's members. The complainant submitted that he subsequently attended rehearsals for many months in the same manner as the other choir members, signing in each night, paying the €5 per night which was accepted and receiving music sheets and a folder for music.
2.2 The complainant attended for rehearsals on 9 October, 2008 which was for the local opera festival but was told by the choir's Chairman, Mr. A, not to sign in and to leave the premises. The complainant claims that he was told that he had missed rehearsals, had failed a voice test, that he was too immature for the choir and that he was disturbing other members of the choir. The complainant, in response to these issues, submitted that he had missed only one rehearsal during the period of time that he was with the choir and claimed that he was not informed that full attendance was a requirement to become a full member of the choir. The complainant's mother stated that she had concerns that he was not being notified of rehearsal dates by the choir and that he had not been specifically notified of the start up date in September, 2008 following the summer break. The complainant stated that he had never been asked to take a voice test and he denied that he was too immature for the choir as he was 21 years old at that time. He submitted that the choir was actively encouraging young members to join which was evidenced by their recruitment campaign at that juncture. The complainant also denied that he had disturbed other members of the choir and he submitted that no specific instances were provided by the respondent to support this allegation or that he had ever been reprimanded about his behaviour during his time with the choir.
2.3 The complainant stated that he was totally shocked and very upset by the manner in which he was informed that he would not be allowed to become a full member of the choir. The complainant's mother stated that she spoke to the Chairman of the choir, Mr. A, on 10 October, 2008 and that he promised to call to see her and the complainant at home to explain the matter. The complainant's mother contacted Mr. A again some time later to enquire when she might expect a call from him. However, Mr. A subsequently failed to call to the complainant's house and the meeting which he had promised never took place. The complainant's mother received a telephone call from Mr. A some time later to say that there had been a three hour meeting regarding the complainant's participation in the choir and it had been decided that the decision for him to leave the choir would stand on the basis that he was disruptive and was not suitable to an adult male choir. The complainant submitted that he received a letter from Mr. A (on behalf of the choir) on 11 November, 2008 to confirm the aforementioned decision.
2.4 The complainant disputes the respondent's contention that it was unaware of his disability when it took the decision to exclude him from the choir. The complainant submitted that representations were made to the choir's committee about his exclusion from the choir and that these representations were made specifically on the issue of his disability. It was submitted that if the committee was unaware of the complainant's disability at the time of making the decision to expel him they became aware of it subsequently when the choir member made representations on his behalf. The complainant submitted that the choir and the committee had an opportunity to reconsider the decision but failed to do so and moreover, they failed to consider what reasonable accommodation could be afforded to the complainant to allow his continued participation in the choir.
2.5 The complainant submitted that he was not afforded any opportunity to appeal or challenge the decision to exclude him from the choir and that it was in effect a unilateral decision by the committee to expel a member without due process or case. The complainant submitted that the reasons given by the respondent for his exclusion from the choir were spurious and there can be no other conclusion other than that he was singled out for different treatment because of his disability. It was submitted that anyone else with the complainant's vocal ability would have been warmly welcomed to the choir; however, despite being in the choir for a year, it was felt that the complainant was merely tolerated and it was hoped for and anticipated that he would just leave himself. It was submitted that the complainant was treated less favourably by being allowed to remain in the choir for a year under these conditions and eventually being asked to leave in a dreadful manner on the basis that he was perceived, because of his disability, to be less able than others in spite of his proven ability to sing. The respondent submitted that the manner in which the complainant was treated amounts to discrimination on the grounds of his disability contrary to the Equal Status Acts.
Evidence of Mr. D
2.6 Mr. D stated that he was a member of the respondent's choir from 1994 until 2008 and that he had served as a member of the choir's committee during this period. Mr. D stated that he was a member of the choir when the complainant joined in October, 2007 and in his opinion the complainant was a "fine singer". Mr. D confirmed that upon first appearance the complainant looked to have a disability. Mr. D stated he did not agree with the respondent's contention that the complainant had been disruptive or that he was unable to take direction from the Musical Director. Mr. D stated that, in his experience, the complainant had not engaged in any type of behaviour that would not have been the norm among the other members of the choir. He confirmed that no other choir member had previously been expelled for being unable to "follow direction" from the Musical Director.
2.7 Mr. D stated that he made representations on behalf of the complainant to both the choir and its committee when he became aware of the decision not to allow him become a full member of the choir. Mr. D stated that he expressed his horror to the other choir members regarding this decision. Mr. D stated that he explained the complainant's disability to the choir members and indicated to them that his ejection from the choir was a terrible mistake. Mr. D stated that he tried to convene an Extraordinary General Meeting (EGM) in relation to the matter and that he required 25% of the members' signatures for this purpose; however, he was only able to obtain nine signatures. Mr. D stated that he left the choir as a result of the manner in which the complainant was treated which he felt was totally unjustified.
3. Summary of the Respondent's Case
3.1 The respondent submitted that its choir was formed in 1941 and that it is the longest existing male voice choir in Ireland. The respondent explained that a person who wishes to become a full member of the choir is obliged to complete a probationary period which normally lasts for a period of six months. The choir's committee would then consult with the Musical Director following the completion of this probationary period to establish if the person is suitable to become a full member of the choir. The respondent submitted that if the person is deemed suitable the prospective name of the person is brought before the committee and the person is ratified for full membership of the choir. The respondent submitted that the main reasons why a person would not be deemed suitable for full membership include voice suitability and failure to adhere to the requirement to attend a minimum of seventy five per cent of rehearsals.
3.2 The respondent submitted that the complainant joined the choir in October, 2007 and he was introduced by his mother to the Chairman and then to the Musical Director, Mr. B, at that juncture. The choir was preparing for its annual concert at that juncture and was at the "polishing stage" of preparation for this event. The respondent submitted that it was explained to the complainant that the choir would not be learning any new material at that juncture, being so close to the annual concert; however, the complainant was informed that he was welcome to sit in on rehearsals and listen to the choir. The respondent submitted that it was not aware that the complainant had a disability when he joined the choir and that this information was not brought to its attention during his period of participation in the choir. The respondent's Musical Director, Mr. B, stated that he voice tested the complainant on the second occasion that he attended for rehearsal and it was obvious that he would sing top tenor in the choir. Mr. B stated that he asked the complainant to sit wherever he liked in the top tenor section; however, after a period of time the complainant moved to the second tenor section of the choir so that he could sit beside a friend of his. Mr. B stated that he gave the complainant the benefit of the doubt regarding this matter and as he was "musically minded" it was hoped that he would be an addition to the second tenors. However, Mr. B stated that the situation did not turn out as he had hoped.
3.3 Mr. B stated that the complainant engaged in disruptive behaviour during rehearsals and he had to constantly ask him to desist from talking whilst other sections of the choir were learning their parts. Mr. B stated that he found the complainant's concentration levels to be poor even to the point where on occasions he was not even singing the correct piece let alone the correct page. Mr. B stated that the complainant's level of attendance during his period of participation in the choir was not anywhere near the required seventy five percent attendance rate. Mr. B stated that as it was coming to the end of the complainant's probationary period in June, 2008, he was asked by the committee if he deemed the complainant suitable to become a full member of the choir. Mr. B stated that he, as Musical Director, advised the committee that did not consider (for the foregoing reasons) that the complainant would be an addition to the choir. The respondent submitted that based on the recommendation of the Musical Director, Mr. B, and in compliance with its constitution, the committee decided that the complainant was unsuitable for full membership of the choir.
3.4 The respondent submitted that during its committee meeting on 16 June, 2008 it was agreed that the Public Relations Officer, Mr. C would inform the complainant of this decision during the summer recess as the complainant's family were known to him. However, at the first committee meeting of the new season on 17 September, 2008 it was brought to the respondent's attention that Mr. C had not communicated the decision to the complainant. The respondent submitted that this period was a very busy time for the choir due to preparation for the annual concert. The respondent submitted that the complainant attended for rehearsals on 9 October, 2008 and was approached by the Chairman, Mr. A, and asked to step outside the choir hall for a private discussion. The respondent stated that the complainant was informed by Mr. A that he was no longer a member of the choir due to his poor attendance at rehearsals, his disruptive behaviour and his inability to follow instruction. The respondent submitted that prior to its next committee meeting another member of the choir (Mr. D) requested to address the committee to make an appeal on behalf of the complainant and was allowed to do so. The committee discussed at length his appeal and permission was also granted to address the body of the choir on the complainant's behalf and indeed to seek an EGM in accordance with the choir's constitution. After addressing the choir the member was unsuccessful in gaining the requisite level of support (i.e. twenty five per cent of the membership). This member subsequently left the choir as the vast majority of the members fully supported the committee in its decision to refuse full membership to the complainant. The respondent submitted that its committee has subsequently had several meetings to discuss this case.
3.5 The respondent denies that the decision to refuse the complainant full membership of the choir was in any way attributable to his disability and it claims that the first time it was made aware of his disability was when the member sought to address the choir after the decision had been taken. The respondent submitted that it acknowledged the complainant's ability to sing solo; however, he was not deemed suitable for full membership of its choir due to the aforementioned reasons.
4. Issue of Jurisdiction
4.1 The respondent has argued that it is a voluntary organisation and that it does not provide goods or services to the public within the meaning of the Equal Status Acts. The respondent submitted that a choir does not come within the scope of the Acts and therefore, the Tribunal does not have any jurisdiction to investigate the present complainant. In considering this issue, I note that "service" is defined in section 2 of the Acts as "a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes ...... ". There follows an illustrative list of examples among which are facilities for entertainment, recreation or refreshment. I am of the view that a choir such as the respondent's can be considered as an entertainment or recreational facility which is available to the public generally or a section of the public. I therefore find that the respondent in the present case is a service provider within the meaning of the Acts. Accordingly, I find that I do have jurisdiction to investigate the present complaint 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 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 he can rely in asserting that prohibited conduct has occurred in relation to him. 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.
5.2 The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against him on that ground. As the complaint is on 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.
Direct Discrimination on the Disability ground
5.3 In order for the complainant to raise an inference of direct discrimination in the circumstances of the present case, it must be demonstrated that the treatment he received in terms of the respondent's decision not to allow him become a full member of the choir 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 the present case, it was not in dispute between the parties that the complainant was allowed to join the choir in October, 2007 and that he participated in the choir for approx. eight months until the decision was taken by the respondent that he would not be suitable to become a full member of the choir. The respondent has claimed that a decision was taken in June, 2008 at the end of the complainant's probationary period that he would not be suitable for full membership of the choir. The respondent claims that this decision was taken for the following reasons, namely: because he had not attended the requisite number of rehearsals, due to his disruptive behaviour and because he failed to take direction from the choir's Musical Director. The complainant disputes the veracity of the reasons put forward by the respondent and he claims that the real reason why he was refused full membership of the choir was directly attributable to his disability.
5.4 The complainant has Sotos Syndrome and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. The respondent has claimed that it was not aware of the fact that the complainant had a disability either when he initially joined the choir in October, 2007 or when it made the decision not to allow him to become a full member of the choir in June, 2008. The complainant accepts that the fact of his disability was not explicitly brought to the attention of the respondent when he initially joined the choir in October, 2007 or during the subsequent months of his participation in the choir. However, notwithstanding the foregoing, I note that the nature of the complainant's disability is characterised by a distinctive facial appearance and in the circumstances, I find it very difficult to accept that the other members of the respondent's choir would not have been aware that the complainant had a disability (albeit that they may not have been aware of the precise nature of his disability). In this regard, I have noted the evidence of Mr. D (who was also a choir member when the complainant initially joined) who stated that "on first appearance the complainant looked to have a disability". In the circumstances, I am therefore of the view that it is not unreasonable to assume that the respondent (and its other members) were aware that the complainant had a disability prior to the date that it made the decision to refuse him full membership of the choir in June, 2008.
5.5 I note that the complainant's ability to sing was not a factor in the decision to refuse him full membership of the choir and the respondent acknowledged that he was a capable singer. Indeed, it is clear from the evidence adduced that the complainant was an accomplished singer and had gained considerable experience as a singer prior to joining the respondent's choir. I have found the complainant to be very credible witness and I accept his evidence that he did not engage in disruptive behaviour or any other form of behaviour that would not have been the norm amongst other members during his period of participation in the choir. The complainant's evidence in relation to this issue was corroborated by Mr. D, who was also a member of the choir during the complainant's period of participation. I have found Mr. D to be a very reliable and credible witness and I note that he totally refuted the respondent's evidence that the complainant had been disruptive or unable to take direction from the Musical Director, or indeed, that he had engaged in any type of behaviour that would not have been the norm among the other members of the choir. Furthermore, I have noted that Mr. D was so dissatisfied with the manner in which the complainant was "ejected" from the choir and the alleged reasons for this course of action that he ultimately resigned from the choir after the respondent had refused to change its decision.
5.6 I also note that it was not in dispute that the respondent (and/or its Musical Director) did not bring any of the alleged behavioural difficulties to the complainant's attention at any stage during his period of participation in the choir. Neither was it in dispute that the first indication the complainant was given that his continued participation in the choir was in jeopardy was when he was informed by the Chairman, Mr. A, on 9 October, 2008 that the decision had been taken not to allow him become a full member of the choir. In the circumstances, I find it difficult to accept that the respondent would not have brought these alleged behavioural difficulties to the complainant's attention or warned him that his continued participation in the choir was at stake if, in fact, he had been engaging in such disruptive behaviour. It is clear that the complainant was neither afforded the opportunity to address the alleged behavioural difficulties whilst a member of the choir nor the facility to appeal the ultimate decision to refuse him full membership of the choir. I have also found the respondent's evidence regarding the complainant's alleged poor attendance at rehearsals to be less than convincing. Having regard to the foregoing and based on the totality of the evidence adduced in the present case, I do not accept the veracity of the reasons propounded by the respondent for the refusal to allow the complainant to become a full member of the choir.
5.7 In A Technology Company v A Worker the Labour Court set out what it - and consequently this Tribunal - should address in assessing that there was no discrimination whatsoever by a respondent. It stated that it "must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived because of their disability to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution". The Court added, in adopting the approach considered by the UK Court of Appeal in Wong v Igen Ltd & Others that "if the protected factor or characteristic is more than a "trivial influence" in the impugned decision, a claim of discrimination will have been made out.". Although the aforementioned case relates to employment equality law, I am satisfied that the principles enunciated therein can also be applied in the context of a disability claim under the Equal Status Acts. In the circumstances of the present case, I am not satisfied that the respondent's decision to refuse the complainant full membership of the choir was totally unconnected to the fact of his disability. Accordingly, I find that the complainant has established a prima case of discrimination on the disability ground in terms of the decision not to allow him become a full member of the choir and that the respondent has failed to rebut the inference of discrimination so raised.
Reasonable Accommodation
5.8 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 in accordance with the provisions of section 4 of the Acts. 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 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]". 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.
5.9 In the present case, I note that the respondent did not raise any issues regarding the complainant's ability to sing nor did it seek to adduce any evidence that his ability to sing was a factor in the decision to refuse him full membership of the choir. In the circumstances, I am satisfied that the complainant's disability did not adversely affect his ability to participate in the choir and therefore he did not require any special treatment or facilities in order to physically participate in the choir. However, I am of the view that the respondent also had an obligation to provide reasonable accommodation to the complainant, as a person with a disability, in terms of the process which led to his exclusion from the choir and the manner in which this decision was communicated to him in October, 2008. It is clear that the respondent did not bring any of the alleged behavioural difficulties to the complainant's attention during his period participation in the choir. Neither did the respondent give the complainant any prior indication that it was considering the ultimate sanction of excluding him from the choir as a result of these alleged difficulties. It is clear that Mr. D made representations to the respondent (both the committee and other choir members) on the complainant's behalf, specifically on the grounds of his disability, when he became aware that a decision had been taken to exclude him from the choir. The respondent had the opportunity to reconsider its decision at that juncture or at the very least to explain to the complainant (and/or his mother) the reasons why the decision was taken to exclude him from the choir. However, it is clear from the evidence adduced that the respondent totally failed to consult or engage with the complainant either when it was contemplating the decision to refuse him full membership of the choir or after the representations had been made to the choir on his behalf by Mr. D. Accordingly, I find that the respondent failed in its obligation under section 4 of the 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.
6. Decision
6.1 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:
(i) the complainant has established a prima facie case of discrimination on the disability ground in terms of sections 3(1), 3(2)(g) and contrary to sections 4(1) and 5(1) of the Equal Status Acts and that the respondent has failed to rebut the inference of discrimination.
(ii) Under section 27(2) the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant's son. In the circumstances, I order the respondent to pay to the complainant the sum of €2,500 (two thousand five hundred euro) to compensate him for the effects of the discriminatory treatment.
(iii) I also order, in accordance with section 27(1)(b) of the Acts, that the respondent re-admit the complainant to its choir as a full member with immediate effect, if he so wishes.
Accordingly, I find in favour of the complainant in this case.
Enda Murphy
Equality Officer
13th January, 2012