THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS
DEC- S2014-027
A Parent (on behalf of her son)
(represented by Inclusion Ireland)
versus
A Theatre Group
File reference: ES/2013/0019
Date of issue: 23 December 2014
Keywords: Equal Status Acts, Disability, Failure to provide reasonable accommodation,
Dispute
1.1 The case concerns a claim by a parent, (hereinafter referred to as ‘the complainant’) on behalf of her son (hereinafter referred to as C) whom she submits was subject of discrimination by a Theatre Group (hereinafter referred to as ‘the Respondent’) on the grounds disability contrary to section 3 of the of the equal status Acts 2000 to 2011 (hereinafter referred to as ‘the Acts’) in its’ failure to provide C with reasonable accommodation, pursuant to Section 4 of the Acts when he was not allowed to participate in a programme operated by the respondent. The complainant submitted that the respondent in providing services had failed to meet its obligations under the Acts.
1.2, The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 6 March 2013. On 26 September 2014, in accordance with his powers under S. 75 of the Employment Equality Acts, and under the Equal Status Acts , the Director delegated the case to me, Peter Healy, 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. Submissions were received from both parties and a hearing was held on 5 December 2014 as required by Section 25(1) of the Acts.
Background
C has Aspergers Syndrome and Attention Deficit Hyperactivity Disorder (ADHD). The complainant states that C developed Tourette’s syndrome during the period under investigation. The complainant claims that the respondent ended the participation of C in a drama group because of his disabilities.
Summary of the complainant’s submission
2.1 C was accepted by the respondent, following recruitment workshops, to participate in a mainstream drama group for young people. The complainant submits that C participated for about a year in his group ending on 4 October 2012.
2.2 The complainant submits that on 4 October 2012 the director informed the complaints mother through a phone call that C was being excluded from the respondent’s programme, specifically that he was not return because the respondent did not have special funding for special needs and that they could not accommodate Cormac due to health and safety reasons. The complainant submits that the director also informed the complainant that the respondent would have no room as new members were coming aboard.
2.3 The complainant submits that a dossier of health and safety issues relating to C submitted by the respondent to her and this Tribunal, is dubious and that the complainant was never informed of any of them. The complainant also disputes that her son was verbally abusive.
2.4 The complainant contends that C was excluded due to behaviours associated with his disability. The complainant submits that she was never given the opportunity to address alleged behaviour.
Summary of the respondent’s submission
3.1 The respondent rejects all aspects of the complaint. The respondent submits that C was not excluded from his drama group but that the second year of his project had been cancelled due to lack of numbers.
3.2 The respondent submits that recruitment continued for year one of a new programme but that C had already completed that programme.
3.3 The respondent submits that it had legitimate health and safety concerns about the behaviour of C and their own lack of specialist capacity in dealing with him.
3.4 The respondent submits that from the outset that the complainant misled the respondent regarding the nature and extent of C’s disabilities and her insistence that C receive no special treatment. They submit that it was only six weeks into the term when the complainant informed the respondent that C has Asperger’s syndrome and a year later that he also has ADHD and Tourette’s syndrome.
3.5 The respondent submits that it became apparent from day one that C seemed extremely nervous and this led to concerns. Managers of the drama group consulted C’s application form for any special requirements but nothing was indicated.
3.6 The respondent submits that the C’s behaviour became an increasing matter of concern as on occasion he would go missing and also he would on occasion refuse to co-operate with the groups instructors.
3.7 At the beginning of the second year, following consultation between a number of staff it was agreed that the complainant would be contacted by phone to discuss the respondent’s concerns about C’s ability to participate effectively.
3.8 The respondent agrees that a call was made to the complainant on 4 October 2012. They do not agree with the complainant’s account of that phone call. The respondent submits a senior member of staff Ms A was selected to speak with the complainant. The respondent submits that Ms A introduced herself and stated that there were concerns about C’s ability to continue involvement in the drama group. The respondent submits that in response to this the complainant became highly emotional and extremely hostile to such a degree that she would not allow Ms A to speak.
3.6 The respondent submits that two further calls took place with the same result.
Conclusions of the Equality Officer
4.1 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 age and disability grounds).... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(2) provides that: as between any two persons, the discriminatory grounds are,
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),.,”
In the instant case it is clear that the complainant has a disability under the Acts and this is not contested by the respondent.
4.2 In regards to reasonable accommodation, Section 4 of the Acts provide:
4.(1) For the purposes of this Act discrimination includes a refusal or failure by
the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, 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.
4. (4)Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably
necessary to prevent such harm does not constitute discrimination.
4.3 Section 38A (1) provides that the burden of proof is: " 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 he 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.
4.4 The complaint seeks to establish that C was excluded from the respondent’s services. Having heard all of the evidence I am satisfied that the following are the relevant facts in relation to this particular element of the complaint.
· It is agreed that C participated fully in the drama group for the first year of its operation and that his participation was of very significant positive benefit to him.
· During that first year, the two members of staff who dealt directly with C, invested significant time and personal effort to accommodate unusual behaviour by the son with very positive outcomes.
· Staff for the repondent sough expert advice on dealing with C’s disabilities when they were informed of them, in order to make his experience more effective.
· The respondent had genuine concerns about the ability of the C to participate in the drama group and as it became more performance orientated and sought to engage with the complainant in order to consider how best C’s needs could be met.
· The second year of the drama group did not proceed as there were not enough participants.
I find that the respondent provided reasonable accommodation for C to allow him to complete year one. As the second year of C’s drama group did not proceed; all participants were effected in the same manner and I find that C was not discriminated against on the ground of his disability. Before the decision to cancel the second year had been taken I am satisfied that it had been the intention of the respondent (following consultation with the complainant) to include C in the group, in some capacity to be agreed.
4.5 Central to the consideration of this complaint is the phone call made on the 4 October 2011 as it took place before the decision to cancel year two of the group. At hearing the respondent presented four witnesses who were present at the meeting to establish the reason for the phone call and two witness of the phone call itself. Having heard all of the evidence I accept the account of this phone call put forward by the respondent, specifically that the complainant was very emotional and reacted in a highly aggressive manner. I find in relation to the call that,
The reason for the call was to constructively engage the complainant in accommodating the needs of C.
The complainant would not engage in that process despite two further calls being made.
The respondent made every reasonable attempt to engage with the complainant before ceasing efforts to do so.
Decision
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 25 of the Acts I find that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her son on the ground of disability.
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Peter Healy
Equality Officer
23 December 2014