ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002529

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 24/08/2016

Workplace Relations Commission Adjudication Officer: Orlaith Mannion

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Acts 2000 -2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

EQUAL STATUS ACTS 2000-2015

A complainant

(represented by Colin Morrissey, English Leahy Solicitors)

versus

A hotel

(represented by Deirdre Lyons, Butler, Cunningham and Molony Solicitors)

File reference: CA-00003527/ADJ-00002529

Keywords: Equal Status Acts, Disability, Failure to provide reasonable accommodation, Multiple Sclerosis, Section 4(4) defence

Dispute

1.1 The case concerns a claim by a man that he was denied a service because of his disability. His claim is that he was discriminated against on the grounds of disability in terms of 3 (2)(g) of the Equal Status Acts [hereinafter referred to as ‘the Acts’]. He claims that the respondent failed to provide reasonable accommodation.

1.2 The complainant referred a complaint under the Acts to the Workplace Relations Commission on 29th March 2016. In accordance with his powers under Section 16 of the Workplace Relations Act 2015 the Director General delegated the case to me, Orlaith Mannion, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced. and a joint hearing was held on 24th August 2016 as required by Section 79(1) of the Acts.

Summary of the complainant’s case

2.1 The complainant previously lived with his mother and her partner who was blind. However this was no longer suitable so he became homeless. The complainant was staying in a homeless accommodation facility. On 29th October 2015 it was full and it was suggested that the complainant check into a nearby hotel.

2.2 A care worker from the homeless agency rang the local hotel to book a room and was told that there was one available. The complainant and care worker went to the hotel to check in. The complainant submits that when the receptionist saw him walking on two crutches, suddenly there were no rooms available. The manager was called but he sided with the receptionist. As a result, the complainant had to sleep on a couch in the homeless shelter.

Summary of the respondent’s case

The respondent argues that an ES1 form was not sent to the hotel within two months and therefore, the case should be dismissed.

The respondent accepts that there was an enquiry about a room but that the complainant’s disability was not mentioned. The receptionist gave direct evidence that she had 35 years of experience in the hotel sector. When she saw the complainant’s stooped posture and that he was walking with the help of two crutches, she formed the belief that he needed a disabled room rather than a standard room. A disabled room in the respondent’s hotel has more space, it has an emergency cord and it contains a shower rather than a bath. All ensuite bathrooms attached to standard rooms contained baths. The receptionist stated that she thought that he would not be able to climb into a bath. Unfortunately the hotel had no disabled rooms available that night but did the following night. She booked him into a disabled room for the next night. There are 87 standard rooms and 6 disabled rooms in the respondent’s hotel.

She submits that the complainant was unhappy with this. He said that he would not need a shower or the emergency cord. He is not a wheelchair-user. The Manager was called and he reiterated the message that the hotel welcomed his custom but for health and safety reasons they believed a disabled room was essential for the complainant especially as he would be staying alone.

The complainant did not stay the following night despite a provisional booking being made.

The respondent submits that the Multiple Sclerosis Association have their meetings and Christmas party in the hotel. It maintains that it does not discriminate against people with disabilities.

Conclusions of the Equality Officer

Preliminary issue – time limits

4.1 Regarding the appropriate notification, I am satisfied that the respondent was on notice of the complaint when the complainant’s representative wrote to the respondent on 22nd January 2016. The ES1 form is not a statutory form. I accept that this letter meet the notification under Section 21 of the Acts in that it describes the nature of the allegation and the complainant’s intention, if not satisfied with the respondent’s response, to seek redress. However, it was sent almost three months after the alleged incident of discrimination. The complainant’s representative submits that there were mitigating circumstances. The complainant is now living in a care facility 100 miles from where he used to live (and where his solicitor is located). He does not have a car and both locations are not easily accessible to each other by public transport. Therefore, there was a delay in the complainant instructing his solicitor. To the respondent’s credit they did not object to the extension of time for notification requirements at the hearing. I am satisfied that the complainant has given reasonable cause for the time limit to be extended to four months as per Section 21(3).

4.2 Turning to the substantive issue I am satisfied that Multiple Sclerosis a disability as defined in Section 2 of the Acts. It is worthwhile to quote all of Section 4 of the Acts:

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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(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.

(5) This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to the functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.

(6) In this section—

‘‘provider of a service’’ means—

(a) the person disposing of goods in respect of which section 5(1) applies,

(b) the person responsible for providing a service in respect of which section 5(1) applies,

(c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6(1)(c) applies,

(e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section, or

(f) a club within the meaning of section 8(1) in respect of admission to membership or a service offered to it’s members, as the case may be, and ‘‘service’’ shall be construed accordingly;

‘‘providing’’, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly. (my emphasis)

First of all, I am satisfied that the complainant genuinely believes himself that he was discriminated against. I also empathise with him having to sleep on a couch especially with the nature of his disability. However, having seen the complainant come in and out of the hearing room (in fact the WRC changed hearing rooms to facilitate his disability) I can understand how the receptionist formed the belief that a disabled room would be more suitable for him. Less than a year later the complainant lives in a care facility. On the night in question the six disabled rooms were occupied but he was offered a disabled room for the following night. Therefore, I find that the respondent can avail of the defence in Section 4(4) i.e. in the circumstances the respondent thought the complainant could cause harm to himself in a non-disabled room and that is why they treated him differently to somebody without a disability or a different disability.

Decision

5.1 I have concluded my investigation of this complaint. I have decided that the respondent is entitled to avail of the defence in Section 4(4).

Adjudication Officer     Orlaith Mannion

Date: 25 November 2016