Complainant

Respondent

Anonymised Parties

A Customer

A Dating Agency

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00008040-001

03/11/2016

On 3 November, 2016, the Complainant lodged a complaint with the WRC, stating that on 17 May, 2016, she had been denied service at the Respondent Dating Agency on the grounds of her visual impairment .The Respondent denied the claim. I have exercised my discretion in deciding to anonymise the parties in this case.

The Complainant attended the hearing in the company of her Personal Assistant; she described herself as being totally blind.

The Complainant submitted her complaint on 3 November, 2016, which incorporated a copy of her Original complaint to WRC, a copy of ES 1 form and a copy of a submission made by the Complainant to the Irish Human Rights and Equality Commission seeking assistance under the Equal Status Acts. The Complainant also made a written submission to the WRC on 28 December, 2016. All documents were copied to the Respondent.

The Complainant told the hearing that she had heard advertisements on the radio for the respondent Dating Agency .On May 17, 2016, she rang the Agency number and enquired about joining .She mentioned that she was totally blind and she was immediately met with a rejection from Ms C who handled the call, who stated “Absolutely not, how would you meet people?”

The Complainant became very distressed and asked her to stop. She had not given any administrative details of herself at that stage and requested to be put onto the Manager.

By way of background, the complainant told the hearing that she had been with the Guide Dogs in the past and had travelled with them to the UK. She had completed mobility training .She knew that when she joined the Dating Agency, she could be sent anywhere to avail of the service.

The Complainant clarified for the hearing that the service she asked for was her intention to join the Dating Agency. She did not give her age in the initial stages of the hearing.

The Complainant recalled then speaking to the Owner of the Agency, Ms D, who explained to her that her name would be placed on a waiting list and “it takes time”. She was informed by Ms D that the Agency would be in touch with her. The Complainant did not like her tone and she never received a confirmation of the waiting list. The Complainant ended the call.

The Complainant submitted that she felt” totally discriminated against and blocked out of the system”. The Complainant told the hearing that her daughter was the first visually impaired professional in a particular sector and it disturbed her to be accused by the Respondent of “only being in it for the money”.

When asked what redress she sought, the complainant stated that she felt that the company was not open to her as a person with a disability .There was no room for negotiation, the company had made up its mind.

During cross examination , the complainant confirmed that she had heard of the company from her daughter .She wasn’t aware that the company had completed an administrative form on her .She confirmed that she   had been on a waiting list before that .She had no recollection of being asked about Travel flexibility .She re-affirmed that she was denied the service and recalled Ms C stating :

“Absolutely not, how would you see anyone? She recalled Ms D hung up the phone on her.

The Complainant stated that she wished to see the company policies on joining .She felt obliged to disclose her blindness .The Complainant denied seeking to join two dating agencies and re-affirmed that she was not accepted at the Respondent Agency due to her disability .She recalled Ms C stating that “ she was not a size 10”.

The Complainant submitted that she didn’t understand why a waiting list was mentioned and why she was associated with that list by Ms D?

The Complainant stated that Ms D hung up when she called back the next day and told her to “ never ring back “ .The Complainant denied that she was deliberately testing the company based on her daughters previous experience 2-3 years before as a member .She understood that it was a British company and felt that Private Companies could do what they liked in Ireland .

In response to questions from the Equality Officer, the complainant confirmed that the first phone call lasted 10 minutes .the Complainant confirmed that she had made a second call on the following day as she felt bad and wanted to sort things out.

The Complainant confirmed that she had not sought specific reasonable accommodation, but rather “just to join”. She was not asked her dress size but was told “You are not a size 10 “by Ms C.

Thee Respondent denied the claim of discrimination .On June 10, 2016, Ms D on behalf of the company responded to the Complainant’s ES 1 form.

The Respondent submitted that the information on the ES1 form was “totally inaccurate”.

“I spoke to you on the phone and stated that I have a waiting list and your name and details would be entered on that list ….. We have an inclusive policy and treat all enquiries with respect and courtesy “

The Respondent submitted   written submissions to the WRC   on 18 December, 2016 and 24 April, 2017 , which were both copied   to the complainant .

On 18 December, 2016 submission , the Respondent submitted that Ms C had responded to the complainants call in May 2016.The Complainant was given information about the company, how the process works, and prices. The Respondent submitted that Ms C explained that the company has a waiting list and takes on new members once they are confident that they can provide a guaranteed number of introductions and satisfactory service .The Complainant was requested to furnish details.

The Complainant had stated that she was totally blind and needed assistance .Ms C asked her if she would be in a position to travel around the country to meet prospective introductions to which the claimant became irate and asked to speak to a Manager .Ms D confirmed the policy and told the complainant that her name would be placed on the waiting list and she would be contacted in the future.

On 24 April, 2017, the Respondent re-iterated the rationale for the company waiting list. The Respondent also submitted that the complainant’s daughter had been a past member of the Agency following an initial refusal, due to apprehension on the specific requirements sought .The Respondent submitted that the complainant called the office on two occasions at that time to canvas for her inclusion in membership. The Complainant’s daughter was eventually accepted, but was unhappy with the service. This culminated in an out of court settlement and her file was closed. The Respondent submitted that they had not made the connection between the two occurrences until they received the letter from the WRC .The Respondent sought a cessation in the “continuing harassment “.

Evidence of Ms C :

Ms C had worked as the first point of contact in Sales and Administration for a period of 3/4 months. She recalled the complainant’s call on May 17, 2016.She recalled giving “ The Spiel” in introducing the service and began to complete the inquiry form in term of

1 Location

2 Age

3 Name

She recalled the complainant stating “by the way I am blind”. MS C stated that she didn’t bat an eye lid as the company doesn’t ask regarding any of the grounds of Disability .Ms C went on to the Travel Flexibility section of the form and the Complainant responded by stating :

“Why are you asking me this?” She became very irate and accused Ms C of discrimination .Ms C began to cry and she passed the phone over to Ms D, who was sitting opposite her. She didn’t get to the stage of discussing meeting /introductions /interviews .She had not made mention of size 10 dress.

During cross examination , the complainant put to Ms C that she did not have the conversation as stated with her and had said   instead “ Absolutely not “ in response to her request to join the Agency. Ms C denied this.

Ms C had retained a copy of the Inquiry form ,but not the log of calls for that day as they had been redacted on the computer .Ms C was not aware of an equal opportunities policy at the company.

Evidence of Ms D

Ms D was the owner of the company and had 9 years experience in the Business, building on a background in Counselling a Coaching .She recalled the phone call from the complainant on May 17.She saw that Ms C was visibly upset by it and asked her to pass the call to her.

By way of background, Ms D explained that the percentage of female: male queries at the Agency stands typically at 70% female and 30% male .The Company works on a 50% female and 50% male ratio in the first instance, thus a waiting list is generated .Given the information received from the complainant on the call, there was sufficient information for the waiting list.

1 City location of Complainant

2 Names and Age of the Complainant.

The Respondent submitted a copy of the company Terms and Conditions of Membership

Ms D submitted that she had never spoken to the complainant before, but found it hard to reason with her in seeking to explain the waiting list. Ms D submitted that the complainant did not listen, was angry, accusatory and confrontational .She did not ask for reasonable accommodation .The Complainant had not received any details on the Agency in advance of the call.

During cross examination, The Complainant put to Ms D that she had told her that she was on a waiting list and not going onto the list. MS D confirmed that any female applicant in the 40 -65 year bracket automatically joins the waiting list .She denied that the complainant was refused service. Ms D recalled that the Agency had a blind service user as a customer in August 2013 .

The Complainant submitted that she and Ms D had spoken the next day, wherein she was told by Ms D not to ring the company again .Ms denied this, stating that she was in the UK on business the next day and had not spoken to her .Ms D confirmed that the first conversation was 10 minutes duration, but there had not been a second call.

I have carefully considered the written and oral submissions in this case. I have reflected on the evidence adduced .The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts and whether she was refused reasonable accommodation on disability grounds ? Both parties submitted their desire for me to treat he matter very seriously. I believe that I have done as requested.

I have considered the Complainant’s submission on request for assistance from IHREC contained in the body of her complaint and find that this document is covered by legal privilege as an exchange between a claimant and her Legal Advisor. The IHREC were not on record for the complainant in this case.

The burden of proof required in this case is set out in Section 38A of the Acts.

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 her , it is for the respondent to prove the contrary

Section 38 A of he Equal Status Acts is analogous with Section 85A of the Employment Equality Acts and I note the commentary of the Labour Court in Dyflen Publications ltd V Ivana Spasic ADE /08/7,

“ … the court should d consider the primary facts which are relied on by the complainant in their proper context .It also indicates that in considering if the burden of proof shifts, the court should consider any evidence adduced by the respondent .”

The Complainant introduced herself to the hearing as a blind person and this was not disputed. I accept that the complainant had a disability in accordance with Section 2 of the Acts.

In considering the evidence adduced, I noted that there were a number of inconsistencies in the complainant’s presentation, in particular in relation to the content of the phone call. The complainant stated that she herself had hung up the phone during the initial conversation .During cross examination , she stated that Ms. D had in fact hung up the phone .I was struck by these inconsistencies . I found that the complainant had a strong desire to recount her story in evidence, which was welcomed by me; however, I found that she was not keen to receive questions or clarifications on her evidence. I appreciate that the complainant recounted feeling excluded from the Agency. I must, however consider the facts of the case and apply the law to those facts.I explained to the complainant that cross examination was permitted by both parties to test the evidence adduced .

I have considered the copy of the Enquiry form submitted by the   Respondent at hearing .This detailed :

The full name of the complainant ,with a corrected spelling of   the second last letter of the surname.

The Date of the Enquiry

The Age of the complainant given as 57 , later amended at hearing to 64 .

Phone number

Location

The form was then followed by 11 unpopulated components and concluded in the words “ waiting list “

It is clear to me that the complainant was aware of her daughters past involvement with the Agency and did at times indicate that she may have got confused by the two separate encounters .I accept that the Respondent was aware of the historical experience with the complainants daughter .However, I must also accept that the Respondent had not made the connection on May 17.

The Complainant had not received a copy of the terms and conditions of membership at the time when she reported prohibited conduct of exclusion from joining the Agency on May 17 and 18, 2016. I was struck by the cogent evidence of Ms. C in relation to her recall of her giving the “introductory spiel” and initial questioning. Ms. C presented a very plain and open account of her

“Front of house role “and I took from her presentation that she was very keen to put the Agency in a positive light for customers. It was very clear from Ms. C’s demeanor that she remained very distressed by the events described by the complainant .It was clear that she held a very different recollection of events . I found that I preferred Ms. C’s account over the complainants, as her evidence was consistent with the submission of the Enquiry form .I noted that the submission of the Enquiry form at hearing was a point of unease for the complainant .

I was also struck by the evidence of Ms. D, who sought to assist her colleague, Ms. C’s difficulty during the phone call. I accept this evidence. I noted that the respondent had not submitted a customer log of the phone call and I also noted that the company did not seem to have a complaints policy for dissatisfied customers.

However, I accept Ms. Ds evidence that she did not participate on the phone call reported by the complainant as taking place on May 18. I did not receive phone records from either party; however, I accept that the Respondent was not in the office and in the UK on that date.

The complainant held a strong view that she was excluded from joining the Agency. I could not establish any evidence which supported this contention. I find that the Respondent sought to engage the complainant in conversation and it was the complainant who severed the connection, thus curtailing the process mid stream and leaving the enquiry stage in limbo . I found the complainant’s submission that UK companies have considerable lea way in Ireland as justification for her action to be misplaced in this case .The complainant submitted that she wished to join the agency as a private citizen and I could not find any evidence of a bar to this request or evidence that she had been treated less favorably than her comparator, a sighted person. On the contrary, I found that the Respondent depicted a scenario where the complainant was welcomed to join the Agency. On several occasions during the hearing, I asked the complainant, how she saw a resolution in the case and asked whether, she now wished to join the Agency, to which she was non committal.

However in the case of a complaint being made on the disability ground, consideration must be given to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows in Section 4(1) and 4(2).

1. 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 herself of the service.

4(2) A refusal or failure to provide the special treatment or facilities to which sub section 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.

The Complainant told the hearing that she had not requested any particular service outside of joining the Agency. She confirmed that she had not requested special treatment or facilities in this regard .I did not receive any details of where the complainant may have referred to any special measure or reasonable accommodation being required to facilitate such joining .It was clear that she did not understand the concept of a waiting list and I was struck by the complainant’s admission at hearing when she stated that she had never had cause to be placed on a waiting list before May 17, 2016.I found the reason expounded for the practice of the Waiting list to be governed by market forces and non discriminatory . I accept that a decision to seek to join a Dating Agency may well be accompanied by some moments of apprehension; however, I found that the complainant did not demonstrate a visible interest in the procedures around the workings of the Agency as described by the Respondent and I found this to be unusual.

I could not establish that the complainant was denied reasonable accommodation.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

In reaching my decision, I have taken into account all the submissions, written and oral that were made to me.

I have found that 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.

I have found that the complainant was not discriminated against by the respondent on grounds of disability pursuant to Section 4 of the Equal Status Acts 2000-2015, in respect of 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 herself of the service.

Discrimination on disability grounds , Reasonable accommodation .