THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2011
Decision DEC – S2014 – 022
PARTIES
Ms A. (on behalf of her sister Ms B.) (represented by Mr Ken Kaar, B.L., instructed by Ian Mallon Solicitors)
and
A Leisure Facility (represented by Ms Claire Bruton, B.L, instructed by Ronan Daly Jermyn, Solicitors)
File Reference: ES/2012/0125
Date of Issue: 9th December 2014
Keywords: Notification requirements – S. 21 – exceptional circumstances – respondent awareness of substance of complaint – prejudice against respondent – disability – reasonable accommodation pursuant to S. (4) was provided by respondent staff tasked with doing so.
1. Claim
1.1. The case concerns a claim by Ms A., on behalf of her sister Ms B., that a Leisure Facility discriminated against her sister on the ground of disability contrary to Section 3(2)(g) of the Equal Status Acts 2000 to 2011, in terms of failure to provide reasonable accommodation in connection with the provision of a public facility within the meaning of S. 2 of the Acts.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 13 September 2012. The complainant later indicated to the Tribunal that her complaint form should be used as a submission. A submission was received from the respondent on 11 January 2013. On 4 July 2014, in accordance with his powers under S. 25 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 2 September 2014. The last piece of correspondence relating to the complaint was received on 4 September 2014.
2. Summary of the Complainant’s Written Submission
2.1. Ms A. submits that she and her sister, whose disability is quadriplegic cerebral palsy, holidayed at the respondent’s premises in July 2012. She states that she had previously requested accommodation on behalf of her disabled sister. Ms A. states that she received a bungalow that was not adapted to the needs of a severely disabled person such as her sister, with no ramps, no side barriers for any bed, and no wash area for a wheelchair user.
2.2. She states that ramps, bed barriers and a toilet chair were provided after she alerted reception. With regard to the house itself, Ms A. states that a manager called to the house and promised that they would be relocated, but that the manager did not make contact after that.
2.3. Ms A. further states that the holiday complex was unsuitable for a wheelchair user, with steep hills and steps to all attractions. She further states that there were difficulties when her sister wanted to use the swimming pool. A lifeguard on duty offered assistance, but since Ms B. did not know him, she was distressed by his presence. She did, however, use the pool. Afterwards, Ms B. displayed discomfort at the idea of using the public showers amidst people who were unknown to her. Ms A. and Ms B. were eventually directed to a shower area for disabled users, but Ms A. states that it was very small and that it was a struggle to use it. The water, which according to Ms A. was very cold, came on automatically, causing Ms B. to jump and slide off the back of the shower chair. Ms A. managed to avert injury to her sister, but strained her own back while she attempted to manage the situation. She had to receive medical attention as a result.
3. Summary of the Respondent’s Written Submission
3.1. The respondent raises a preliminary point in its submission, namely, that the notification process set out in S. 21 of the Acts was handled incorrectly by the complainant, and that therefore, the Tribunal is barred from investigating the matter. The respondent states in particular that Ms A.’s original letter of complaint to the respondent does not comply with the requirements of the Equal Status Acts, in that it does not mention in any way that the complainant was thinking of taking legal proceedings under the Acts. The respondent submits that no exceptional circumstances exist in this case which would allow the Tribunal to waive the requirement of S. 21.
3.2. With regard to the complainant’s substantive complaint, the respondent denies that it failed to provide reasonable accommodation to the complainant. It states that it is committed to provide services to patrons with disabilities, and enjoys very good relationships with a number of organisations which serve the needs of people with disabilities.
3.3. The respondent states that on 21 May 2012, Ms A.s reserved accommodation for nine people. She did not request wheelchair facilities in her booking form, nor did she contact the respondent’s helpline in this regard. The respondent further states that Ms A.s made no reference to the need for wheelchair-accessible facilities when checking in. As soon as the respondent’s staff were aware of the complainant’s problems, they visited the house and explained that the wheelchair-accessible houses were occupied at the time. A larger house was offered to Ms A., which according to the respondent, Ms A. refused. A ramp was organised immediately, and the respondent’s general manager provided bed rails and a toilet/shower chair which were his own personal property.
3.4. The respondent denies that it never contacted Ms A. after that, and states that a member of its customer care team checked in on her and her sister repeatedly. It also states, with regard to the episode at the swimming pool, that Ms A. thanked the staff at the pool for how well they were looked after. It further states that the alternative shower area for disabled users was made available to the complainant.
4. Conclusions of the Equality Officer
Preliminary issue: Notification
4.1. The preliminary issue for decision in this case is whether the notification process laid down in S. 21 of the Acts was carried out correctly by the complainant, and therefore, whether this Tribunal has jurisdiction to investigate the matter.
4.2. S. 21(2) to (4) of the Equal Status Acts say about the notification requirements that:
(2) Before seeking redress under this section the complainant—
(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —
(i) the nature of the allegation,
(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,
and
(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.
(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.
(3) (a) On application by a complainant the Director or, as the case may be, the Circuit Court may—
(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or
(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and where such a direction is given, this Part shall have effect accordingly.
(b) In deciding whether to give a direction under paragraph (a) (ii) the Director or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—
(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and
(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.
(4) The Director or, as the case may be, the Circuit Court shall not investigate a case unless the Director or the Circuit Court, as the case may be is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.
4.3. There was no dispute between the parties that the notification requirements set out in the Acts were complied with in a somewhat haphazard fashion. In particular, Ms A.’s original letter of complaint to the respondent does not contain any indication that she was intending on bringing proceedings on behalf of her sister, and can therefore, by itself, not be regarded as constituting notification within the meaning of the Acts. This letter was sent to the respondent within the two-months time limit set out in the Acts. The ES1 form, which is not a statutory form but has been designed to help complainants meet the notification requirements under the Acts, was sent directly to the Tribunal, along with the official ES3 complaint form, on 13 September 2012. This would have been within the four-months time limit to which the Director may extend the notification process, if reasonable cause is shown, and was sent on from the Tribunal to the respondent. An information document produced by the Tribunal and entitled “Information on using form ES1” was also appended to the complaint.
4.4. In her evidence on this point, Ms A. stated that she is struggling with literacy problems, and that one of her children filled out the two complaint forms for her. I accept Ms A.s evidence on this point. This fact, together with the fact that the complainant Ms B. is severely disabled and not capable of bringing any complaint on her own, must be a factor in weighing up the notification requirements in the Acts against Ms B.’s right to access to the justice system.
4.5. The main purpose of the notification procedure of the Equal Status Acts, as set out in S. 21, is to make a potential respondent aware of complaints in a timely manner. This is only fair, since discriminatory conduct in the provision of goods and services can at times relate to fairly transient encounters, which may soon slip the mind of relevant witnesses etc. It also establishes a respondent’s right to be warned of potential litigation before the litigation occurs, and gives the respondent a possibility to clarify complaints and thereby, potentially, avert legal proceedings altogether. These are important rights, especially since respondents are vicariously liable under the Acts for conduct of staff members.
4.6. On the other hand, S. 21(3)(a)(ii) gives the Director the power to waive the notification procedure altogether if he or she is satisfied that exceptional circumstances prevail. In other words, the respondent rights outlined in the preceding paragraph are not absolute.
4.7. As set out above, in making any such decision, S. 21(3)(b) sets out that the Director shall have regard to
(i) “the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and
(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”
4.8. I am satisfied that the original letter of complaint which Ms A. wrote, or had written for her, to the respondent’s managing director, did put the respondent on notice about Ms A.’s and Ms B.’s unhappiness with their holiday, and it is clear from the letter that difficulties in accommodating Ms B.’s disability were at the centre of this. In fact, the letter contains the substance of Ms B.’s eventual complaint, with the only oversight, from the perspective of the notifications requirements under the Acts, that a potential complaint to the Tribunal is not mentioned. I am satisfied that this letter meets the requirement set out above, to make the respondent aware of the circumstances in which the alleged prohibited conduct occurred.
4.9. I am also satisfied that while being notified of the litigation against it by the Tribunal rather than through the notification process may have hampered the respondent’s ability to resolve the matter without any recourse to legal action, it did not prejudice it in terms of Tribunal proceedings, especially since the current Tribunal case work backlogs mean in practice that nearly two years elapsed between the filing of the complaint and the hearing date, as set out in paragraph 1.1. above.
4.10. Taking into account all of the above, I consider the circumstances in which Ms B. and Ms A. find themselves, in terms of disability and educational attainment, unusual enough to be considered exceptional within the meaning of the Acts, and in the interest of securing Ms B.s access to justice, hereby waive the notification requirements pursuant to S. 21(3) of the Acts, acting on the delegated powers of the Director as set out in paragraph 1.2. above.
4.11. I will now proceed to consider the merits of the substantive case.
Substantive Case
4.12. The main issue for decision in this case are whether the complainant was discriminated against on the ground of disability because the respondent failed to provide her with reasonable accommodation.
4.13. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. 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 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.
4.14. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.15. Ms A., at the hearing of the complaint, gave very extensive and credible evidence of her and her sister’s experience while they were holidaying at the respondent facility. Ms A.’s own evidence in this matter can be summarised as follows: While there were problems in booking one of the respondent’s accessible bungalows, possibly owing to Ms A.s literacy difficulties – she mentioned the need for accessible accommodation on the telephone, but did not fill out the booking form under the appropriate heading – the respondent staff made every effort to cope with the situation and accommodate Ms B. as best as possible. The managing director lent some relevant equipment from his personal possessions, which is normally used to care for his own disabled son. The family was offered an accessible bungalow when one became available, but declined the offer. Every effort was made to facilitate Ms B.’s use of the swimming pool facilities. Some difficulties with moving Ms B.’s wheelchair around the premises were caused by the misreading of signage by Ms A. and other members of her family. The respondent provided some photographic and map evidence to help clarify these matters. These clarifications were not disputed by Ms A.
4.16. In total, while the holiday experience of Ms A. and Ms. B and their family may not have been as ideal as Ms A. had hoped – and I accept Ms A.s evidence that both for economic and logistical reasons, it is hard to organise a holiday which all family members, including Ms B., can enjoy and afford – there was nothing whatsoever in Ms A.s evidence to suggest that the respondent failed in its duty to provide reasonable accommodation as defined in S. 4(1) of the Acts. In fact, I am satisfied that the respondent, and all staff members who were tasked with assisting Ms B., did so to the best of their ability, according to Ms A.’s evidence, and thus provided reasonable accommodation to Ms B. within the meaning of the Acts. Accordingly, Ms B.’s complaint must fail.
5. Decision
5.1 Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that the Leisure Facility who is the respondent in this case did not discriminate against Ms B. on the ground of her disability, pursuant to Sections 3(1), 4 and 5(1) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
9 December 2014