DEC-S2016-072

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-072

PARTIES

A Complainant

-v-

A Public Service Provider

(Represented by Comyn Kelleher Tobin Solicitors)

FILE NO: et-156418-es-15 & 156774-es-15

Date of issue: 10th of November, 2016

1. Dispute

This dispute involves claims by the complainant
that he was discriminated against by the respondent, on grounds of disability and victimisation contrary to section 3(2) of the Equal Status Acts 2000-2015. There is also a claim of failure to provide reasonable accommodation.

Background

2.1 The complainant, referred complaints under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 26th of May 2015 The complainant, who is deaf, submits that he was discriminated against by the respondent in respect of a neurology appointment.

He also submits that the respondent did not provide him with reasonable accommodation for his deafness and that he was victimised by the respondent.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 4th of April, 2016 to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. 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 4th of May, 2016. Final correspondence in relation to this matter was received on the 30th of August, 2016.

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.

Summary of complainant’s case

3.1 The complainant submits that

he is deaf and has difficulty communicating with people,

he received a letter from the respondent on the 5th of November, 2015 asking him to confirm that he wished to remain on Dr B’s Neurology waiting list,

he confirmed that he wished to remain on the list,

he received another letter from the respondent dated the 4th of February, 2015 asking him to contact the Central Referrals Office by phone, within 5 days to arrange an appointment with Dr B,

he was unable to phone due to his deafness, but his brother phoned on his behalf and was advised that an appointment would issue in the post,

the complainant also sent emails to the respondent on the 5th and 6th of February, 2015 seeking an appointment,

the appointment was not received in the post and the complainant received a letter from the respondent on the 19th of February stating that he had been removed from Dr B’s waiting list,

he wrote to the respondent on the 24th of February, 2015,

the complainant was restored to the list and received a letter of appointment on 2nd of March, 2015.

4. Summary of Respondent’s case

4.1 The respondent submits that

they issued letter to all those on Dr B’s neurology waiting list on the 5th of November, 2015 asking persons to confirm that they wished to remain on Dr B’s waiting list,

a reply was received from the complainant confirming that he wished to remain on the list,

the respondent then issued an offer letter to the complainant on the 4th of February, 2015 asking him to phone the Central Referrals Office, within 5 days, to arrange an appointment with Dr B,

the respondent was not aware that the complainant was deaf and this was not notified to the respondent until receipt of a complaint, from the complainant, dated the 24th of February, 2015,

the respondent accepts the complainant’s assertion that his brother phoned the respondent, on his behalf, following the letter of 4th of February, 2015,

due to human error, no record was kept of the phone call made by the complainant’s brother on the complainant’s behalf and so the complainant was removed from the waiting list,

the emails sent by the complainant on 5th and 6th of February were not received by the appropriate section until the 10th of March, 2015 as they were sent to a national email address, as no direct email address was provided for responding to the letter of offer from the Central Referrals Office, this has since been changed by the respondent,

a letter issued to the complainant on the 19th of February 2015 stating that he had been removed from Dr B’s waiting list, as no contact had been made seeking an appointment, this letter stated that he could be reinstated to the waiting list if he contacted his GP within 28 days and requested reinstatement,

the complainant wrote to the respondent on the 24th of February, 2015, advising them that he is hard of hearing and referring to the fact that he was removed from the list despite his efforts to contact them and arrange an appointment,

the respondent, once alerted to the fact that the complainant should not have been removed from the list, immediately reinstated him to the list and issued him with a letter of appointment on 2nd of March, 2015,

a letter of apology was issued to the complainant on 10th of March, 2015,

the respondent investigated the complaint made by the complainant and as a result of this have extended the time period of reply to letters of offer for appointment from 5 to 10 days and have introduced a dedicated email address for replies to appointment offers as an alternative means of communication for those who have difficulty communicating by phone,

the respondent notified the complainant of the investigation of his complaint and of the outcome of same.

Preliminary issue re Section 42

4.1 The complainant referred the present claims against two named officials of the Public Service Provider. At the hearing an application was made by the solicitor for the respondent Public Service Provider, to remove the names of the officials named as respondent and for the name of the respondent organisation and the employer of the individuals named, to be retained as the name of the respondent in these matters. The respondent in seeking such amendment of the named parties, referred to Section 42 of the Equal Status Act. The complainant told the hearing that he had no objection to the removal of the names of the individuals named in his claims and stated that he had only named such persons as they were the officials he had dealt with in his correspondence with the respondent.

4.2 In considering this issue, I have taken into consideration the provisions of section 42(1) of the Equal Status Acts regarding vicarious liability which provides:

"Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval."

4.3 The named officials are employees of the respondent and acted in the course of their employment with the respondent, in respect of their interactions with the complainant in the present case. Having regard to the foregoing and the provisions of section 42(1) of the Acts, I am satisfied that the Public Service Provider and not the named officials, is the correct respondent for the purpose of these claims.

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 disability and on the victimisation ground, in terms of sections 3(2) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. 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)’’

5.3 Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(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”),

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/she 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. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

5.5 It is submitted that the complainant is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

5.6 The complainant advised the hearing that he is deaf. He stated that he can hear to some extent with hearing aids and lip reading but that his deafness is quite severe and he added that he is in the process of getting a cochlear implant above in Dublin. The complainant advised the hearing that he also has epilepsy, which is controlled by medication. The hearing of the claim was conducted with the assistance of a Speed Typist. I am satisfied from the totality of the evidence adduced that the complainant is a person with a disability for the purpose of the Acts.

6. Discrimination on grounds of disability and failure to provide reasonable accommodation.

6.1 In making my decision I must consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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. 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, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.

6.2 The complainant has also submitted a claim of failure to provide reasonable accommodation. In this regard the relevant sections of the Equal Status Acts are sections 4 (1) and 4 (2):

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.

6.3 The complainant advised the hearing that he received a letter from the respondent on the 5th of November, 2014 asking him for confirmation that he wished to remain on Dr B’s Neurology waiting list. The complainant stated that this letter contained a form and a request that the form be completed and returned within five working days, if he wished to remain on the waiting list. The complainant told the hearing that the letter also stated that a failure to return the completed form, would result in the respondent making an assumption that the recipient no longer required an appointment with Dr B and in such circumstances the recipients name would be removed from the waiting list.

6.4 The respondent advised the hearing that this validation letter and form was sent to all those on a waiting list for appointments with Dr B’s Neurology Clinic. The respondent stated that such letters are standard and are issued occasionally to ensure that waiting lists are kept up to date and accurate and to improve the efficiency with which the waiting list is operated.

6.5 The respondent stated that this letter and form is a means of ensuring that they have up to date records but that an appointment doesn’t necessarily follow that letter. Witness for the respondent, Ms. C stated that following receipt of the complainant’s reply, the system was updated with his details, but she added that the respondent was not at that stage in a position to offer him an appointment because there were people waiting longer for an appointment within the same urgency as the complainant.

6.6 The respondent advised the hearing that an offer letter was then sent to the complainant on the 5th of February 2015, asking him to contact the respondent and arrange an appointment. Witness for the respondent Ms. C stated that all patients were given five days to reply to this offer letter.

6.7 The complainant advised the hearing that he considered a five day response period to be too short and stated that delays in delivery of the letter could lead to a person being unable to respond to the letter within the five day period, with the result that they could then be removed from the waiting list for lack of reply. The complainant advised the hearing that he has raised this issue with the respondent. Witness for the respondent Ms. C stated that the period of 5 days which is quite short was found to be effective as a longer time period for reply could lead to people forgetting about the letter and they could then be removed from the waiting list. The respondent advised the hearing that it had however taken on board the complainant’s comments in respect of 5 days being too short, especially given that postal delays could occur, and that it has since increased the time period for replying to this type of letter to 10 days.

6.8 The complainant advised the hearing that this offer letter requested that the recipient reply to the letter, by phoning the validation office, within 5 days of receipt. The complainant advised the hearing that he is unable to communicate by phone due to his hearing impairment and that he was thus unable to phone the respondent. The complainant advised the hearing that the respondent letter had offered no alternative to contacting by phone and had not provided any other contact details such as an email address to facilitate those who were unable to make contact by phone.

6.9 The complainant advised the hearing that his brother had phoned the respondent on his behalf on the number provided and that he had been advised that an appointment would issue to the complainant by post following the phone call. The complainant also advised the hearing that he himself had also replied to the letter of offer by sending emails to the respondent’s general email address on the 5th and 6th of February, 2015 to which he received no acknowledgement or reply.

6.10 The complainant advised the hearing that he did not receive the appointment as advised to his brother by phone but that the next communication he received from the respondent was a letter dated 19th of February, 2015, stating that his name had been removed from the waiting list, as he had failed to reply to the offer letter. This letter also stated that the complainant should contact his GP, if he wished to be returned to the waiting list and that his GP could request that he be reinstated to this waiting list, once such request was made within 28 days of his removal from the list.

6.11 Witness for the respondent, Ms. C advised the hearing that the complainant was removed from the waiting list due to human error and due to the fact that no record had been kept of the phone call received from the complainant’s brother requesting his appointment. The respondent went on to state that it did not remove the complainant from the list until the 19th of February despite having requested the initial reply by 9th of February, thereby extending the time period by ten days. The respondent advised the hearing that it is aware that delays can happen and that there can be circumstances which prevent people from replying to the letter of offer, with the given timeframe and that it is, in view of this, that the respondent then gives people another chance be reinstated to the waiting list within 28 days of being removed from same.

6.12 The complainant advised the hearing that he should not have been removed from the waiting list as, apart from his brother phoning to make an appointment for him, he himself had also sent emails to the respondent on 5th and 6th of February 2015 in response to the letter of offer. The respondent advised the hearing that the email address to which the complainant sent the emails was in fact a national general email address and that the emails did not reach the appropriate section until after his complaint was made. The respondent advised the hearing that the email address in question was not at the time routed through any individual personal email and so it was only checked intermittently. The respondent stated that this has since been changed and that emails to this email address are now routed through a personal email account in order that all emails sent to that address are seen upon receipt.

6.13 The respondent also advised the hearing that the letter of offer of appointment has also now been changed to include an email address to which recipients can reply within the timeframe, in lieu of phoning the respondent, where a patient has difficulty making contact by phone.

6.14 The respondent advised the hearing that it was not aware that the complainant was deaf, prior to issuing the offer letter seeking a reply by phone. The respondent stated that the complainant did not advise them that he was deaf. The complainant did not dispute this but stated that he had, when completing the form seeking an update of patient details, included his mobile number and the words ‘text only’ beside it. The respondent advised the hearing that it was unaware that the complainant was deaf or that he would have difficulty communicating by phone. The respondent stated that it only became aware that the complainant was deaf, upon receipt of his complaint dated the 24th of February, 2015. The respondent advised the hearing that it had, immediately upon receipt of this letter, reinstated the complainant to the list and had issued him with an appointment by letter dated 2nd of March, 2015. The respondent stated that it had following notification that the complainant was deaf communicated with him in written form by letter and email.

6.15 The respondent advised the hearing that the complainant had contacted the Neurology Department on the 24th of February, 2015 after notification that he had been removed from Dr B’s waiting list. This letter from the complainant advised the respondent that the complainant had in fact made contact with them and had requested an appointment. The respondent advised the hearing that it had immediately upon receipt of this letter reinstated the complainant to the list and provided him with an appointment by letter dated 2nd of March, 2015. The respondent advised the hearing that the complainant was not discriminated against by them and had suffered no less favourable treatment on grounds of his disability.

6.16 The complainant submits that he was removed from Dr B’s waiting list due to the fact that he is deaf. The complainant submits that he received an offer letter for an appointment requesting that he reply to such letter within 5 days, by phoning the respondent to make an appointment. The complainant stated that he was unable to comply with this request, due to the fact that he is deaf, but stated that his brother had phoned the respondent on his behalf and that he himself had also emailed the respondent seeking an appointment. The complainant stated that despite this he was still removed from the waiting list and was advised of this by letter dated 19th of February, 2016.

6.17 The respondent advised the hearing that it was not aware that the complainant was deaf when it issued the offer letter requesting that contact be made, by phone, within 5 days, the respondent advised the hearing that this letter was issued to all those who were on the waiting list. The respondent accepts that the complainant had complied with the request to reply to them within 5 days, via a phone call from his brother, but stated that, due to human error, on their part, the complainant had been removed from the waiting list by mistake and was then notified by letter dated 19th of February 2015, that he had been removed from the list. This letter also stated that the complainant could be reinstated to the list by contacting his GP. The complainant then wrote to the respondent advising that he had requested an appointment via a phone call from his brother and via emails from himself and so should not have been removed from the waiting list. The respondent advised the hearing that as soon as this error was brought to their attention the complainant was reinstated to the list and provided with an appointment within a week of receipt of this letter.

6.18 Both parties agree that the complainant was removed from the waiting list when he should not have been removed, as he had complied with the request to make contact within 5 days and that the complainant was reinstated to the list upon his request and was granted an appointment on 2nd of March, 2015. The complainant submits that this removal from the list was due to the fact that he could not comply with the request to reply by making a phone call within 5 days. The complainant has submitted that he did however comply with this request by asking his brother to make the phone call on his behalf and by emailing the respondent.

6.19 The respondent stated that the complainant should not have been removed from the list, given that he did comply with the request to contact them within 5 days for an appointment, but that he was removed due to human error. The respondent also advised the hearing that it has now extended the time period for replying to such letter and that it also provides a dedicated email address, to which replies can be sent as well as a phone number. The respondent also added that the complainant was not disadvantaged by being removed from the list, as those who replied to the letter of 5th of February, 2015 within the 5 days were provided with a letter of appointment within 6 weeks, and the complainant despite being removed and restored to the list, was still issued with an appointment within the same 6 week time frame as those who had not been removed from the list.

6.20 Based on the totality of the evidence adduced in relation to these matters, I am satisfied that the complainant was not discriminated against by the respondent on grounds of his disability in relation to these matters and that the respondent’s treatment of the complainant does not amount to a refusal or failure 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.

7 Victimisation

7.1 The complainant, in his complaint form to the Tribunal indicated that he was victimised. The complainant when questioned at the hearing, did not however, adduce any evidence to substantiate the claim of victimisation. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant has not adduced any evidence of adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.

8. Decision

8.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.

the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and

the complainant was not discriminated against by the respondent on the victimisation ground contrary to section 3(2)(j) of the Equal Status Acts, 2000-2015, and

the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failureto 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.

___________________

Orla Jones

Adjudication Officer/Equality Officer

10th of November, 2016