Equal Status Acts 2000-2011
Decision: DEC-S2013-014
A Parent (on behalf of her son)
v.
A Music Teacher
File Reference: ES/2012/094
Date of Issue: 28th November 2013
Key words: Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Disability - 3(2)(g), refusal of a service - Section 5(1), Section 38A – burden of proof, prima facie case, redress – Section 27(1)
Delegation under Equal Status Acts, 2000-2011
The complainant on behalf of her son referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2011 on the 30th July 2013. On the 27th of September 2013, in accordance with his powers under section 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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 this date my investigation commenced. A submission was received from the complainant on the 19th February 2013. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 25th October 2013.
1. Dispute
1.1 The dispute concerns a claim by a parent (hereinafter referred to as the complainant) on behalf of her son (hereinafter referred to as J) that he was discriminated against on the disability ground by a music teacher (hereinafter referred to as the respondent) concerning the provision of music lessons. The complainant alleges that the respondent discriminated against J in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant's Case
2.1 The complainant, on behalf of J, submitted that he has a disability (ADHD and Autism) and in April 2012 he commenced music lessons with the respondent. It was recommended to her that playing string instruments would improve his fine motor skills and when he was 6 years old she booked him in for music lessons with the respondent. She said that she knows the respondent as he is living nearby and he was advertising music lessons. She explained to him the nature of J’s disability. The complainant said that she sat outside during the lessons and it seemed to her that J was getting on fine. J had approximately 6 lessons with the respondent and the following 3 were cancelled for various reasons including the fact that the respondent worked elsewhere. She said that she noticed then that the respondent appeared not to be interested in J and on one occasion the lesson finished after 10 minutes with the respondent saying that J did not want to do the lessons. However she said that J replied and said that he wished to continue.
2.2 On the 18th of May the complainant said that she received a telephone call from the respondent to say that he believed that the lessons were not working out and it was too hard to teach J. The complainant went on to say that the respondent made reference to J’s disability and she queried him about what he meant. The complainant said that she was upset by the telephone call and she called the respondent an offensive name and said he was discriminating against J because of his disability. She then ended the call. The respondent telephoned her to say he was not saying anything about J’s special needs. He telephoned her back again but she refused to take the call. She said that she knew that the respondent was not happy with J and believes he had a problem because he could not read. She said that J could only read small words at the time. She said that she managed to get another teacher to give him lessons the following week and he is still learning to play the guitar. The complainant submits that J was discriminated against on disability ground in relation to the termination of the lessons.
3 Respondent's Case
3.1 The respondent denies that he discriminated against J because of his disability. The respondent stated that he gives music lessons in addition to working as a driver in his father’s business. On occasions he has to cancel lessons because of his driving duties. He has up to 25 students per year both adult and children. He said that he had taught children with disabilities and his policy is not to refuse anyone who wants lessons. He said that he was delighted to give lessons to J as he knew the complainant and they lived near one another. The complainant informed him of J’s disability. After a few weeks J complained that his fingers were sore and he also could not read the notes provided for practice. He said that he thought J was 8 years old when he commenced the lessons. On the 18th of May he telephoned the complainant to cancel the lesson because of business commitments. It was not unusual for him to cancel because of work commitments. In the conversation with the complainant he suggested that it may be better if the complainant left the lessons for a few years because he was finding it hard. He does not think he said anything about J’s disability. He said that he was not cancelling but advising the complainant. He said that she refused to listen to him and called him an abusive name. He tried to ring back a number of times but the complainant refused to answer the phone.
3.2 In his submission to the Tribunal he said J did not have his practice notes with him when he came for the lesson. He said that he gives all students handout notes which they are expected to practice at home and to bring to the lesson the following week. He said that he was concerned about home practice and progress. He said that when he learned that J could not read he drew pictures of the notes he had to practice. The complainant told him there was no point in giving him notes because he cannot read. He said that A was too young to learn and he believed it would be better if the complainant waited a number of years.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was directly discriminated against on the disability ground contrary to the Equal Status Act as regards the music lessons. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that:as between any two persons, the discriminatory grounds ...are ... that one is a person with a disability and the other either is not or is a person with a different disability,” and
Section 5.—(1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
4.2 The burden of proof is set out in Section 38A which provides:
38A.—(1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.3 I am satisfied that J has a disability and is covered by the Equal Status Acts. The next matter for consideration is whether the respondent refused to continue to give J music lessons and thereby discriminated against him on the disability ground contrary to Section 5(1). The complainant submits that J was discriminated against on the disability ground when the respondent cancelled the lessons and did not arrange any further lessons. The respondent states that he believed that J was too young and he was merely advising that she should leave the lessons until J was older and he disagrees that he made any reference to J’s disability. There is a clear conflict of evidence in relation to the contents of the telephone call but on balance I found the complainant’s version of events more convincing. The complainant was upset about something the respondent said and she fairly admitted in evidence that she was abusive to the respondent. I have concluded from her evidence that there was a reference by the respondent to J’s disability and it was this that upset her. I am satisfied that the lessons were cancelled in that phone call for reasons connected with J’s disability. I note from his evidence that the respondent thought the A was too young at 6 years old to learn the guitar because it too hard on his fingers and he was also concerned that J was not practicing at home the lessons provided in a handout. However the complainant was advised to get music lessons as therapy for J’s motor skills. I am satisfied that the complainant had certain difficulties in partaking in the music lessons because of his disability and it is my view that the lessons were cancelled for these reasons. I am not convinced that the respondent did not take children under 8 years old. I note that the advertisement states that the music lessons were for all ages. I am satisfied therefore that J was treated less favourably than a child without a disability would have treated in similar circumstances. I find therefore that the complainant has raised a prima facie case of discriminatory treatment on the disability ground. I also find that the respondent has failed to rebut the prima facie case raised.
5. Decision
5.1 I find that the complainant was discriminated against on the disability ground pursuant to section 5(1) of the Equal Status Acts. Under section 27(1) of that Act redress may be ordered where afinding is in favour of the complainant. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
5.2 Under the above Section the maximum amount of compensation I can award is €6,348.69. 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 child. I note that the complainant succeeded in getting guitar lessons elsewhere for J the following week. In considering the amount of compensation to award I have also taken into consideration the fact that the complainant was abusive to the respondent on the telephone and refused to engage with him on the matter when he subsequently telephone her. Taking all of the above into consideration, I order the respondent to pay to the complainant on behalf of J the sum of €200 (two hundred euro) to compensate him for the discriminatory treatment.
___________________
Marian Duffy
Equality Officer
28th November 2013