Equal Status Acts 2000-2012
DEC-S2015-018
Andrew Ennis
-v-
Gaelic Athletic Association (Leinster Council)
(represented by Matthew J. Shaw, Kelly Caulfield Shaw Solicitors)
File reference: ES/2013/0042
Date of issue: 18th November 2015
Keywords: Equal Status Acts, Disability, Severe back injury, Reasonable accommodation, Harassment, Section 14(b) of Equal Status Acts, Severe back pain, Definition of service, Section 11(3) of Equal Status Acts
Dispute
1.1 The case concerns a claim by Mr Ennis against the Leinster Council of the GAA. His claim is that he was discriminated on the grounds of disability in terms of 3(2)(g) of the Equal Status Acts 2000 to 2012 [hereinafter referred to as ‘the Acts’]. He also claims harassment and failure to provide reasonable accommodation.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 7th May 2013. On 26th February 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 1st April 2015 as required by Section 79(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 84 (3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 The complainant has a severe back injury. He has had three major operations in relation to it. He cannot stand for long periods. He is a beneficiary of tax concessions regarding VRT, excise and VAT toward the purchase of a car and the ongoing motoring costs as per the scheme contained in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, (SI 353 of 1994). The medical criteria for this scheme are very strict. He is a major GAA supporter. When he attends matches at Pairc Tailteann, Navan Co. Meath he is normally allowed in free of charge and as well as allowed sit in Wheelchair Access area (even though he does not normally use a wheelchair) on production of Disabled parking permit.
2.2 On 11th November 2012 he tried to attend a Leinster Intermediate Hurling Semi-Final between Kiltale (Meath club and Oylegate-Glenbrien (Wexford club) but was told that he would have to pay €5 even though he had shown his permit. Mr Ennis submits that he explained that he normally got in for free. He was informed by the steward at the stile that the Leinster Council (as opposed to the Meath County Board) was in charge that day. Mr Ennis submits that this man was unnecessarily aggressive. Mr Ennis submits that the steward would not give him his name. Mr Ennis states that the steward had no identification on him, nor was he wearing a Hi-Viz vest saying ‘Maor’. The only identifier was that he was wearing a jacket with the Wexford colours. At this stage a queue was beginning to form behind Mr Ennis. Mr Ennis submits that the conversations went a bit like this:
Steward: You might have got in free of charge before but Leinster council is in charge today and nobody is getting in free. You don’t look disabled to me.
Mr Ennis (showing his permit again which has his photo on it): Are you a medical person?
Steward: No, but that doesn’t change the fact that you are not getting in here. That does not look much like you.
Mr Ennis: Can I speak to your supervisor?
Steward: He won’t be available until half-time
Mr Ennis: You have not heard the last of this. I will complain to the highest authority in the land.
Steward: I wish you luck with that
Mr Ennis states that the steward turned his back on him as Mr Ennis attempted to photograph him with his phone. The complainant submits that he was never more embarrassed in his life. He submits that he was too embarrassed to attend other matches at Pairc Tailteann because of the way he was treated.
Summary of the respondent’s case
3.1 The Leinster Council of the GAA submits that is their policy to charge all adults for entry unless the person is a wheelchair-user. The respondent also points out that all stewards at GAA matches are unpaid volunteers. Quite often their attendance occurs on an informal basis. Counties are requested to provide stewards for certain matches and ongoing training is provided. The GAA currently run a two day course with Portobello College for stewards. However, this training is voluntary. The Leinster Council submits that it impresses on their stewards the need to treat people politely and fairly at all times.
3.2 The respondent accepts the facts as the complainant stated – i.e. that a volunteer was rude and abrasive. It is a matter of regret to the respondent. However, the respondent points out the complainant was not refused service. He was merely asked to pay an admission fee for a Leinster Club game. The respondent also submits that allowing the complainant to pay nothing is beyond reasonable accommodation.
Conclusions of the Equality Officer
4.1 Section 38(A) of the Equal Status Acts 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties.
4.2 I am satisfied that a back injury so severe that he qualifies for a disabled parking permit, as well as the Disabled Driver tax concession scheme, is a disability within the meaning of Section 2 of the Acts.
4.3 I am also satisfied that the Leinster Council of the GAA is providing a service as per the following definition:
‘‘service’’ means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes —
(a) access to and the use of any place,
(b) facilities for —
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies; [my emphasis]
4.4 I accept the respondent’s contention that Mr Ennis was not refused a service. To enter the ground and view the match on this occasion, he would have to pay an admission fee. I appreciate that Mr Ennis was not normally charged at this venue. However, this was a provincial match run by the Leinster Council as opposed to the Meath County Board. Section 16(1) allows different admission prices to different people in limited circumstances. Mr Ennis points out that he was treated differently than other people with different disabilities i.e. wheelchair-users. The Leinster Council submits that it makes no apology for this positive discrimination measure towards wheelchair-users. They submit wheelchair-users have particular mobility and access challenges i.e. they usually need to be accompanied by somebody else (who is charged full price) that people with other disabilities or those without disabilities do not face. I find that the respondent is entitled to avail of the defence in Section 14(b):
Nothing in this Act shall be construed as prohibiting—
...
(b) preferential treatment or the taking of positive measures which are bona fide intended to —
(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or
(ii) cater for the special needs of persons, or category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.
4.5 The respondent submits that the complainant seeking free admission is beyond reasonable accommodation. Section 4.1 of the Acts states:
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.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
4.6 The respondent did not refuse service nor did the complainant require special treatment or facilities to avail of the service. I also accept the respondent’s contention that to allow everybody with a disability in free would entail much more than a nominal cost. The respondent points out it is not a profit-making enterprise; all gate receipts are pumped back into the support and promotion of Gaelic games. For these reasons, I am satisfied that the respondent did NOT fail to provide reasonable accommodation.
Harassment
4.7 The complainant also claims harassment. Section 11 of the Acts states that a person shall not harass another person where he avails or seeks to avail himself of any service provided by the person. The person who is responsible for the operation of any place at which goods, services or accommodation facilities are offered to the public shall not permit another person who has the right to be present in that place or to avail himself of the service, to suffer harassment at that place.
4.8 The complainant gave cogent evidence which the respondent did not refute that the attitude of the steward he encountered on 11th November 2012 was hostile. Comments like ‘You don’t look disabled to me’ clearly form a nexus to the ground of disability. Offensive comments like ‘That does not look like you’ imply that Mr Ennis was masquerading as disabled. Meanwhile a queue of people was forming behind him who could witness this altercation. That this occurred in his hometown adds an other nuance. I am satisfied that this behaviour meets the definition of harassment in Section 11 i.e. any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person.
4.9 Section 11(3) states it is a defence for the respondent to prove that s(he) took reasonably practicable steps to prevent the harassment. I empathise with the respondent that the stewards are volunteers and are often asked to help out on an ad-hoc basis. The respondent cannot have the same control over volunteers as it could have over employees. However, in this case the Leinster Council could not (or chose not to) even identify who the steward was! Neither action assists their case. The steward did not allow Mr Ennis to speak to his supervisor at the appropriate time. These stewards are the public face of the GAA and this one was clearly not suited for a customer-facing role even in a voluntary capacity. Insufficient steps were to taken to prevent the harassment. For these reasons, I am satisfied that the complainant was harassed on the ground of disability and the respondent is not entitled to avail of the Section 11(3) defence.
Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
· that the complainant has established a prima facie case of harassment on the ground of disability and the respondent is not entitled to avail of the statutory defence
· that the complainant was not refused reasonable accommodation
5.2 Therefore, as per Section 27(1)(a), I award the complainant €500 in compensation for the effects of the prohibited conduct. In considering redress, I am cognisant that the person that harassed Mr Ennis was a volunteer and that there was only one incident of harassment. However, Mr Ennis is entitled to be treated courteously (even if there was a dispute over whether he should be charged admission or not) without offensive remarks being made about his disability.
_________________
Orlaith Mannion
Adjudication Officer/Equality Officer