EQUAL STATUS ACTS
DECISION NO. DEC-S2015-024
PARTIES
Mr. Rimantas Paskauskas
-v-
St. James Hospital
FILE NO: ES/2013/0097
Date of issue: 1st of December, 2015
1. Dispute
This dispute involves a claim by the complainant
that he was discriminated against by the respondent, on grounds of disability and race, contrary to section 3(2)(g) & (h) of the Equal Status Acts, 2000-2012 .
2. Background
2.1 The complainant, referred a complaint under the Equal Status Acts, 2000-2012 to the Equality Tribunal on the 30th of August, 2013. The complainant has been a patient of St. James Hospital for the past 10 years and has received treatment there for his diabetes and for related conditions. The complainant submits that as a patient he has been treated less favourably than other patients and submits that this is due to his race and his disability.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2012, the Director delegated the case on the 7th of May, 2015 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2012. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 16th of October, 2015. Final correspondence in relation to this matter was received on the 10th of November, 2015.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainant submits that he has been a patient of the respondent hospital for 10 years and that he has been receiving treatment there as an outpatient in the Diabetic clinic for his diabetes.
3.2 The complainant submits that he also attends a number of other clinics in the hospital including the Eye clinic and Rheumatology clinic due to a number of complications and conditions he has experienced with his diabetes.
3.3 The complainant submits that he has on a number of occasions received less favourable treatment at the Diabetic clinic and that this is due to his race and disability.
4. Summary of Respondent’s case
4.1 The respondent submits that the complainant is a patient of the hospital and that he regularly attends clinics there for the treatment of his diabetes and other conditions.
4.2 The respondent submits that the complainant was not discriminated against on grounds of race and or disability by the respondent.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of race and disability in terms of sections 3(2)(g) & (h)of the Equal Status Acts, 2000-2012 . In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’
Section 3(2)(g) & (h) provide that: as between any two persons, the discriminatory grounds of disability and raceare,
(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”),
and
(h) that they are of a different race colour, nationality or ethnic or national origins (the “ground of race”),
5.3 The complainant is required to establish 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. I am satisfied that the respondent is providing a service within the meaning of section 2 of the Equal Status Acts.
5.4 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 the 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.
5.5 The complainant at the hearing submitted that he was a person with a disability for the purposes of the Act. The complainant advised the hearing that he suffers from Diabetes for which he has been receiving treatment at the respondents Diabetic Clinic. The complainant submits that he attends a number of other clinics in the hospital including the Eye clinic and Rheumatology clinic due to a number of complications and conditions he has experienced with his diabetes. The complainant submits that he suffers from a number of other medical conditions and disabilities as follows: Diabetes Type 1, Diabetic Retinopathy, Pancreatitis, Diabetic Neuropathy, Osteoarthritis, Rheumatoid Arthritis and Osteoporosis.
5.6 The complainant submitted documentary evidence of his disability and conditions. The respondent did not dispute that the complainant suffers from these conditions and agreed that he has been receiving treatment in St. James’ hospital for such disability and conditions. I am satisfied from the totality of the evidence adduced that that the complainant is a person with a disability for the purpose of the Acts.
5.7 Cancelled Appointments
5.7.1 The complainant advised the hearing that he has on a number of occasions had his appointments changed or cancelled without notice by the respondent. The complainant at the hearing had difficulty recalling appointment’s cancelled or changed without notice. When directly questioned in relation to specific dates and times when this treatment had taken place the complainant was unclear as to when exactly this had happened but did refer to one specific appointment which had been scheduled on the 9th of August 2013. The complainant advised the hearing that he had a Rheumatologist appointment scheduled for the 9th of August, 2013. He stated that because he lives in North County Dublin it takes a lot of time and effort for him to travel to appointments at the Hospital. The complainant advised the hearing that he had on the date in question set off at very early in the morning to make his way to St. James’ hospital in time for his appointment. He stated that he arrived at the hospital and went to check in at reception for his appointment only to be told that the appointment had been cancelled due to a doctor’s holiday. The complainant stated that he was told by the receptionist that the respondent had phoned him a about this and that his appointment had been cancelled for that day. The complainant advised the hearing that there were no other patients waiting in the waiting area on that day and that there did not seem to be anyone else around.
5.7.2 The respondent advised the hearing that the complainant’s appointment for the date in question had been cancelled. The respondent stated that all appointments for that clinic had been cancelled due to the fact that the Consultant was on holiday and that all patients including the complainant had been advised of this in advance and that appointments had been re scheduled. The respondent submitted that the complainant had received a phone call in this regard and that his appointment for that date had been rescheduled. The respondent advised the hearing that all other patients with appointments scheduled on that day had received the same treatment. The respondent submits that the complainant’s appointment for the 9th of August 2013 had been cancelled and brought forward to the 26th of March, 2013, an appointment which the complainant had attended.
5.7.3 The complainant prior to the hearing had submitted documentation indicating that he had, in early July received a message from the respondent reminding him to do a blood test on 24th of July, 2013 in advance of his appointment with the rheumatologist on the 9th of August, 2015. The complainant submits that he was to be out of the country on the 24th of July and so he went to the blood test laboratory on the 22nd of July, 2013 and had a blood test thereby changing this appointment himself. The Blood laboratory facilitated him by carrying out the test on this date at his request.
5.7.4 The complainant submitted that he then showed up to his appointment on the 9th of August only to be told that it was cancelled. He submits that the hospital advised him that his appointment had been cancelled and brought forward to the 26th of March, 2013, an appointment which he had attended. The complainant’s issue seems to relate to the fact that he received an instruction to attend the hospital for blood tests in advance of an appointment which had been cancelled. This also led the complainant to believe that his 9th of August appointment was in fact going ahead. The respondent submits that his next Blood test appointment was scheduled for the 18th of September, 2013 with a follow up appointment with the Rheumatologist on 1st of September, 2013.
5.7.5 The respondent’s response to the complainant’s complaint indicates that the message sent to the complainant in July regarding the need for a blood test in advance of the 9th of August appointment was sent to him in error given that the 9th of August appointment had already been cancelled and had been brought forward to the 26th of March, 2013.
5.7.6 The respondent advised the hearing that they have a system whereby patients are automatically sent messages requesting them to attend for blood tests in advance of Consultant appointments in order that the results of these tests can be reviewed by the Consultant in advance of the appointment. The respondent indicated that occasionally mistakes can happen with such processes and a patient might show up for a test and an order for Blood tests might not be on the system but the respondent stated that the Blood laboratory staff will oblige the patient and carry out the test anyway. Similarly it can happen that a reminder could be sent to a patient which should have been cancelled.
5.7.7 The respondent’s position is that the complainant and all other patients with appointments scheduled for the 9th of August 2013, with that Consultant, were cancelled and that the complainant was notified of this by phone. The respondent following the investigation of the complainant’s complaint to them about this matter clarified the situation regarding the appointment and apologised if it had been unclear to the complainant that his appointment had been brought forward to the 26th of March, 2013. The respondent also advised the complainant that any further changes to appointments would be notified to him in writing in the future.
5.7.8 It would appear from the totality of the evidence adduced here that all patients appointments with Dr. M were cancelled for the date in question due to his being on annual leave, irrespective of race and or disability, and that the complainant was notified of such cancellation and that his appointment was rescheduled for an earlier date, which he attended. The issue regarding the complainant receiving a message to attend a blood test in advance of a cancelled appointment, appears to be due to an error by the respondent. The complainant has adduced no evidence to support his assertion that this treatment amounts to discrimination on grounds of race and or disability. I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race and/or disability in relation to this matter.
5.8 Left waiting for hours after appointment time
5.8.1 The complainant prior to the hearing had submitted that he was often left waiting in the waiting area for a number of hours despite having a set appointment time. The complainant stated that he had on a number of occasions been left waiting for up to two or two and a half hours to see the doctor or consultant. He submits that this is due to his race and disability. The respondent advised the hearing that the complainant and other patients can be left waiting for hours and that this is due a shortage of staffing and resources at the hospital as well as staff changes. The respondent stated that all patients are treated the same in this regard and that it is unfortunate but unavoidable. The complainant has adduced no evidence to support his assertion that this treatment amounts to discrimination on grounds of race and or disability. I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race and/or disability in relation to this matter.
5.9 Refusal of an Insulin pump
5.9.1 The complainant also submitted that he was not granted an insulin pump despite requesting one from the respondent on a number of occasions throughout the years. The complainant submits that this refusal amounts to discrimination on grounds of race and disability. The documentation submitted in support of this assertion indicates that this request was considered by three doctors at the respondent hospital and that the complainant was deemed by these doctors to be an unsuitable candidate for an insulin pump due to medical reasons specific to his condition. The complainant has not provided any evidence that the refusal of an insulin pump amounts to less favourable treatment on grounds of his disability or race.
5.9.2 It is thus clear from the totality of the evidence adduced that the complainant has not established a prima facie case of less favourable treatment on the grounds of race and/or disability. I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race and/or disability in relation to this matter.
5.10 Treatment via Internet- Time Limits
5.10.1 The complainant advised the hearing that he had been told by the respondent that he could receive treatment for his diabetes via the internet instead of attending the hospital. The respondent at the hearing disputed that the complainant was ever advised that he could be treated over the internet and sought evidence of same. The complainant in referring to this allegation sought to refer to a number of emails which he had sent to the respondent during the Christmas period of December 2011.
5.10.2 The complainant in respect of this allegation has raised issues which occurred almost two years before the referral of his complaint to the Equality Tribunal. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It is also possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, firstly however, establish that a discriminatory act occurred within the limitation period (see the decision of the Labour Court in Cork County VEC v. Hurley EDA 24/2011). In the instant case I have found that the allegations of discrimination which relate to incidents within the time limit specified by the act, do not amount to discrimination on grounds of race and /or disability thus I am satisfied given the foregoing and given the totality of the evidence adduced that that the earlier alleged incidents such as the allegation regarding treatment over the internet, are statute barred.
6. DECISION OF THE EQUALITY OFFICER.
6.1 In reaching my decision, I have taken into account all of the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
(i) the complainant was not discriminated against by the respondent on grounds of on grounds of disability and/or race, contrary to section 3(2)(g) & (h) of the Equal Status Acts, 2000-2012 .
___________________
Orla Jones
Adjudication Officer/Equality Officer
1st of December, 2015