DEC-S2013-012

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000-2011

Decision DEC–S2013-012

PARTIES

Ann Pratt

(represented by Mr. Michael Clancy B.L.

on the instructions of

the Irish Traveller Movement Independent Law Centre)

and

Majella Gleeson t/a Jella's Tots

(represented by Flanagan & Co. Solicitors)

File Reference: ES/2011/066

Date of Issue: 19th November, 2013

Keywords: Equal Status Acts, 2000-2011 - Direct discrimination, Section 3(1)(a) – Traveller community Ground, Section 3(1)(i) – Discrimination by an Educational Establishment, Section 7(2)

Delegation under the Equal Status Acts, 2000 to 2011

This complaint was referred to the Director of the Equality Tribunal on 13th April, 2010 under the Equal Status Acts, 2000 to 2011. On 1st October, 2012, in accordance with his 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, 2000-2011 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 23rd May, 2013. The final correspondence with the parties concluded on 11th June, 2013.

1. Dispute

1.1 The complainant claims that she was discriminated against by the respondent on the grounds of her membership of the Traveller community in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts, 2000 to 2011 and contrary to section 7(2) of the Equal Status Acts, 2000 to 2011 on the basis of its refusal to provide pre-school services to her two children at its child care facility.

2. Summary of the Complainants' Case

2.1 The complainant, who is a member of the Traveller community, intended to enroll on a Back to Education Initiative course in October, 2010 and she sought assistance from North Tipperary LEADER Programme (NTLP) to secure pre-school places for her two children (who were aged two and half years and seven months at that juncture). Ms. A, Coordinator of the Traveller Programme for the NTLP, contacted the respondent on behalf of the complainant, in or around the end of September, 2010 for the purpose of ascertaining whether or not the respondent had space at her pre-school facility for the complainant's two children. Ms. A also enquired as to whether the respondent would be in a position to take the complainant's two children for four mornings per week commencing in October, 2010. The complainant submitted that these questions were answered in the affirmative by the respondent and she provided a quotation of €25.00 per morning for the provision of the pre-school services. Ms. A communicated to the respondent that she would put measures in place to secure funding from various agencies and that she would revert when this process was completed.

2.2 Over the course of late September and early October, 2010, Ms. A secured funding for the pre-school services on behalf of the complainant. The complainant submitted that Ms. A contacted the respondent again on 13th October, 2010 by telephone for the purpose of re-confirming the availability at the pre-school for the two children, confirming commencement dates for them and to confirm that she had obtained funding for the complainant's two children. The complainant submitted that during the course of this telephone conversation it was agreed between the respondent and Ms. A that the two spaces were still available for the complainant's children and that they were due to start at the pre-school facility on Monday, 18th October, 2010 (the same day as the complainant was due to commence her course with the Back to Education Initiative). It was also agreed that Ms. A would ensure that the complainant would present herself at the respondent's pre-school facility on 15th October, 2010 to register the children and complete any necessary paperwork and that she would be accompanied by an NTLP Development Officer, who would assist her in filling out any forms as required.

2.3 The complainant submitted that Ms. A informed the VEC that the complainant's children would be attending the respondent's pre-school and Ms. A. duly liaised between the NTLP Development Officer, Ms. B, the complainant and the respondent and it was arranged that the latter three would meet at the pre-school on 15th October, 2010 at 11 a.m. for the purpose of registering the complainant's children and completing the necessary paperwork. The time and purpose of the meeting was confirmed by Ms. A with the respondent by way of telephone on 14th October, 2010. On 15th October, 2010 at approx. 11 a.m. the complainant and Ms. B arrived at the respondent's pre-school as arranged. Ms. B proceeded to the pre-school while the complainant finished a cigarette by the car. Ms. B was greeted at the door with a smile by the respondent, however, it was submitted that when the complainant approached the pre-school the respondent's face 'dropped'.

2.4 The complainant and Ms. B were briefly shown into two rooms at the pre-school and the respondent proceeded to inform them that there was no room for the complainant's infant child because the space for this child at the pre-school had been filled the previous week. The complainant submitted that the respondent indicated that her infant quota was now almost certainly filled and that she needed to confirm this with the HSE in the context of student to carer ratios. The complainant submitted that the respondent had not mentioned any difficulty in taking the infant in the course of any of the previous conversations with Ms. A. Notwithstanding the above, the complainant indicated to Ms. B that she could make alternative arrangements for her infant's care and that she wished to proceed with the registration process for her older child. Ms. B informed the respondent of this and she produced a VEC form for the purpose of having the respondent complete same in order to secure VEC funding for the older child; however, the respondent refused to sign this form and repeated that she needed to contact the HSE notwithstanding the fact that the respondent had never indicated that there was no room for the older child.

2.5 The complainant submitted that Ms. B later contacted Ms. A to inform her of the events that had taken place during the course of the complainant's visit to the respondent's pre-school. On Monday, 18th October, 2010, Ms A telephoned the respondent to discuss the issue whereupon she was informed that there was no space available at the pre-school. The complainant submitted that Ms. A had clarified at all times with the respondent that there were spaces available for the complainant's two children and that the meeting which had been arranged on 15th October, 2010 was for the purpose of facilitating the complainant to fill out the requisite forms and register her two children at the pre-school. The complainant submitted that there was never any mention of a lack of places during the conversations between Ms. A and the respondent prior to the meeting on 15th October, 2010.

2.6 In summary, the complainant submitted that the respondent had previously indicated her willingness and capacity to accept the complainant's two children into the pre-school, but that upon meeting with the complainant the respondent reversed her position and withdrew the offer of providing the pre-school facilities. The complainant submitted that the reason why the respondent reversed this decision was on account of their membership of the Traveller community and it is claimed that the respondent's actions amounted to discrimination contrary to the Equal Status Acts.

3. Summary of the Respondent’s Case

3.1 The respondent submitted that she has in excess of twenty years' experience working in the childcare area and has operated her own childcare facility since 1999. The respondent submitted that childcare legislation dictates the manner in which she is obliged to operate the facility and in particular, the nature of the facilities to be provided, the qualification and vetting of staff and the number of children that can be registered at any given time. The respondent submitted that she may have varying numbers of children enrolled in the facility whether on a part-time or full-time basis, ranging in age from 6 months upwards and representing a broad spectrum of backgrounds, nationalities and different cultures. The respondent submitted that she is subject to spot checks by the HSE so as to monitor the childcare facility and its adherence to the legislative regulations.

3.2 The respondent accepts that she received a telephone call from Ms. A in or about mid-September, 2010 inquiring as to the availability of pre-school places for two children on a part-time basis. The respondent was provided with details of the approximate age of the two children and on that basis was in a position to confirm availability at that particular juncture. The respondent submitted that Ms. A did not provide any further details such as date of birth, parental details or confirmation of the proposed starting date for the children during the course of that conversation. The respondent submitted that Ms. A did not leave a contact number and, in particular, she did not request that places (or a place) be reserved on a provisional basis for the complainant's children. Therefore, the respondent took the conversation as a general inquiry only which would not have been unusual in such circumstances. The respondent submitted that she has a defined and uniform procedure before accepting and registering a child at the childcare facility i.e. once it is confirmed to her that a parent or party making the contact express an interest in reserving a place the respondent at that stage will organise to meet with the parent and child to review this facility. The respondent will then take more detailed particulars such as the date of birth of the child, name of the parent/guardian and the approximate starting date.

3.3 The respondent submitted that on 6th October, 2010 a six month old baby was registered at the creche on a full-time basis which had an immediate effect on the availability of child spaces available. The respondent accepts that she received a further telephone call from Ms. A in or about mid-October, 2010; however, the respondent does not accept Ms. A's account as to the purpose of this telephone call (as outlined above in para. 3.2 above). The respondent's recollection of this telephone call was that Ms. A informed her that she had secured funding for placement of two children and discussed methods of payment with her but at that stage still did not confirm that she required the places for the two children and did not confirm a starting date. The respondent submitted that she also has a recollection of a subsequent telephone call with Ms. A on or about 14th October, 2010 and she understood the purpose of this call was to confirm a meeting and to show the premises to the complainant (who at that time was unknown to her) and to determine whether the childcare facility was satisfactory to her.

3.4 The respondent submitted that the complainant and Ms. B visited her pre-school facility on 15th October, 2010; however, she does not accept the complainant's contention that "her face dropped" when the complainant approached the pre-school on this occasion. The respondent submitted that the complainant and Ms. B were shown the entire facility, including the baby and toddler rooms, and were introduced to staff members during the course of this meeting. The respondent submitted that when showing the complainant and Ms. B around the baby-room she confirmed to them that she had taken on a new baby and as a consequence there was no longer a space available for the complainant's baby. The respondent submitted that she was handed a form by Ms. B which had the names of the complainant's two children on it; however, the respondent could not sign this form as she had already confirmed that there was no space available for the complainant's baby. The respondent submitted that she felt the complainant and Ms. B did not believe her that there was no space available for the baby so she informed them that she would check with the HSE to confirm that her ratio for babies at the childcare facility was, in fact, full. The respondent submitted that she was neither asked nor did she refuse, at any stage, to take the complainant's older child only into her childcare facility. The respondent submitted that she could, and would, have taken on the complainant's older child if she had been asked to do so.

3.5 The respondent submitted that she received a further telephone call from Ms. A on 18th October, 2010 enquiring as to what had happened with the complainant during her visit to the childcare facility on the previous Friday. The respondent submitted that she informed Ms. A that she did not have a space available for the complainant's baby as she had already registered another baby on 8th October, 2010. The respondent submitted that she did not register any other children at her pre-school facility until May, 2010 when further spaces became available as a consequence of three children from one family leaving the facility.

3.6 In summary, the respondent denies that she has subjected the complainant to discrimination on the grounds of her membership of the Traveller community or that the reason she was unable to accept her baby in the pre-school was in any way attributable to this fact but rather was as a consequence of her not having a space available at the required point in time for the complainant's baby.

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 2011 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.

4.2 I am satisfied that the respondent’s childcare facility i.e. being a pre-school service within the meaning of Part VII of the Child Care Act, 1991 is an “educational establishment” within the meaning of section 7(1) of the Equal Status Acts. It is clearly stated within the provisions of section 7(2) of the Equal Status Acts that an educational establishment shall not discriminate in relation to the admission or the terms or conditions of admission of a person as a student to the establishment. Therefore, the question that I must decide in the present case is whether or not the complainant was subjected to discrimination by the respondent on the grounds of her membership of the Traveller community within the meaning of section 7(2) of the Equal Status Acts in terms of her attempt to obtain admission for her two children to its childcare facility.

4.3 The complainant claims that the respondent had confirmed her willingness and capacity (over the telephone) to accept her two children into the pre-school but that upon meeting with the complainant on 15th October, 2010 she reversed her position and withdrew the offer of providing pre-school facilities. The complainant claims that this reversal of the respondent's position was on account of her being a member of the Traveller community. The respondent denies that there had been any agreement to register or reserve places for the complainant's two children in her pre-school facility prior to the meeting on 15th October, 2010 and she claims that the purpose of this meeting was to afford the complainant an opportunity to view the facilities in advance of a decision being taken regarding the registration of the children at the facility. The respondent claims that as a consequence of her having registered an infant child in the facility a week prior to this meeting (on 15th October, 2010) the spaces which had previously existed were no longer available to the complainant's two children. The respondent claims that the non-availability of places for the complainant's children was not in any way connected to the complainant's membership of the Traveller community but rather was attributable to the fact that there was no space available to register any other children in the pre-school at that juncture.

4.4 In considering this issue, I note that it is not in dispute between the parties that there were a number of telephone conversations (i.e. three in total) between the respondent and Ms. A (on behalf of the complainant) in the weeks prior to the complainant's visit to the pre-school facility on 15th October, 2010 during the course of which there was discussion regarding the availability of places for the complainant's two children at the pre-school facility. It was agreed that the initial telephone conversation took place in or around mid-September, 2010 which was in the nature of a general enquiry by Ms. A as to whether the respondent had availability at that juncture to accommodate the complainant's two children at the pre-school facility. It was not is dispute that the respondent had confirmed availability of spaces for the complainant's two children at that juncture. It is also agreed that there was a further telephone call between Ms. A and the respondent on 13th October, 2010 in relation to this matter; however, the nature of the issues discussed and the agreed outcome arising from this conversation are very much in dispute between the parties and are central to the core issue in this case i.e. the claim of discriminatory treatment.

4.5 The complainant, on the one hand, claims that the respondent confirmed during this conversation that the two spaces were available for her children at the pre-school facility and it was agreed that they would commence at the facility on Monday, 18th October, 2010 (the same day as the complainant was due to start her course with the Back to Education Initiative). The complainant also claims that there was an agreement with the respondent that the complainant and Ms. B, NTPL Traveller Development Officer, would present at the pre-school on 15th October, 2010 for the purpose of registering the two children and completing any necessary paperwork to complete the registrations. The respondent, on the other hand, denies that there was any agreement made during the conversation on 13th October, 2010 to reserve places for the complainant's two children at the pre-school or that they would be commencing at the facility the following Monday. The respondent claims the telephone conversation on this date was purely for the purpose of making arrangements for the complainant to visit the pre-school on 15th October, 2010 before any decision would be made on their registration which was in keeping with her normal procedures in such circumstances.

4.6 On balance, I have found the evidence on behalf of the complainant (i.e. the evidence of Ms. A) to be more compelling in relation to this issue and I am satisfied that there was, in fact, an agreement between the respondent and Ms. A during the telephone conversation on 13th October, 2010 that there were two places available for the complainant's children in the pre-school facility at that juncture and that the purpose of the visit on 15th October, 2010 was to complete the registration of both children. In coming to this conclusion, I am satisfied that the respondent was fully aware from the previous telephone conversations with Ms. A prior to this date that the complainant was seeking places at the pre-school for her two children. I have taken note of the fact that the respondent has claimed that there was no place available for the complainant's infant child on 15th October, 2010 due to the fact that she had registered another infant at the facility on 6th October, 2010. However, I have serious difficulty in accepting that the respondent would not have informed Ms. A of this fact during the conversation on 13th October, 2010 (or during a follow up conversation between them on 14th October), if in fact, it was the case that there was not availability for the complainant's two children at that juncture. I have also taken into consideration that the respondent has not presented any documentary evidence to the Tribunal to confirm that the infant ratio at the pre-school was full as a result of registering the infant on 6th October, 2010 (despite the fact that the provider of a pre-school service within the meaning of Part VII of the Child Care Act, 1991 is required by legislation to keep records of such information).

4.7 Based on the evidence adduced, I am satisfied that the respondent's position in relation to the acceptance of the complainant's children at the pre-school changed when the complainant and Ms. B presented at the facility on 15th October, 2010 to complete the registration of the two children. I have taken note of the respondent's evidence that the fact of the complainant's membership of the Traveller community had not been expressly communicated to the respondent prior to her visit to the pre-school on this date. I have also found the evidence of the complainant and Ms. B to be very credible that the respondent's demeanour totally changed when the complainant came to the door of the premises on 15th October, 2010. Based on the evidence adduced, I can only conclude that the reason why the respondent informed the complainant and Ms. B that there was no space for her infant child at the facility on this occasion was wholly attributable to the fact of her membership of the Traveller community.

4.8 I also note that there was a dispute between the parties regarding the situation that pertained regarding the respondent's willingness or otherwise to afford admission/register the complainant's older child during the course of the meeting on at the pre-school facility on 15th October, 2010. The respondent claims that she was not requested at any stage to admit the complainant's older child only and that she could not sign the registration/funding forms presented to her on behalf of the complainant by Ms. B on this date as these forms contained the names of both children. However, I am satisfied from the evidence adduced that the complainant made it clear to the respondent at this meeting that she would have been prepared to proceed with the registration of her older child only. The respondent has not presented any credible evidence to suggest that there was no space available for the complainant's older child and I am of the view that the respondent had ample opportunity at the meeting on 15th October, 2010 to communicate her willingness to accept the complainant's older child if she had in fact been willing to do so. Having regard to the totality of the evidence adduced, I find that the complainant has succeeded in establishing a prima facie case of discrimination on the Traveller community ground in terms of her attempts to obtain admission of her two children to the respondent's pre-school facility and I also find that the respondent has failed to rebut the inference of discrimination in the circumstances of the present case.

5. Decision

5.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the respondent has discriminated against the complainant on the Traveller community ground in terms of section 3(2)(i) and contrary to section 7(2) of the Equal Status Acts in terms of the manner in which it dealt with her application for the admission of her two children to the respondent's pre-school facility. Accordingly, I find in favour of the complainant in relation to this matter.

5.2 Under Section 27(2) of the Equal Status Acts the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award in this case, I have taken into consideration the complainant's evidence that she was unable to obtain alternative childcare arrangements for her children with the consequence that she was not in a position to commence her course of education with the Back to Education Initiative in October, 2010. In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €4,000 in totality as redress for the effects of the discrimination.

Enda Murphy

Equality Officer

19th November, 2013