Complainant

Respondent

Anonymised Parties

A Resident

A Property Management Company

Representatives

Ms Ellen   O’Callaghan B.L. Instructed by Community Law &    Mediation Northside

Mr Fíonán Ó    Muircheartaigh B.L. Instructed by Mackey O'Sullivan    Binchy Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010280-001

16/03/2017

The specifics of the complaint relate to a request by the   complainant to have a stair lift installed in the Apartment block where he   resides to enable him to access his home without undue difficulty. The   complainant in this case is claiming that he was directly discriminated by   the Respondent on the grounds of disability and indirectly discriminated   against on the basis of age. The complainant also alleges that he was   victimised and harassed by the Respondent for seeking reasonable   accommodation in relation to his disability.

The Respondent raised a preliminary objection in relation   to the application of the Equal Status Acts, 2000-2015, “the Acts”. The   Respondent contends that it is an Owners Management Company for the purposes   of the Multi-Units Development Act, 2011 and does not provide goods or   services to the Public or a section thereof. The Respondent contends that it   provides services to private members and its actions are governed by the   policies determined by the Management Company. The Respondent’s position is   that the Equal Status Acts do not apply and therefore no jurisdiction exists   for the Workplace Relations Commission (WRC) to adjudicate on the complaint.

The complainant does not accept the preliminary objection   of the Respondent. The complainant contends that Section 5(1) of the Equal Status   Acts, 2000-2015 provides as follows:

5. —(1) A person shall   not discriminate in disposing of goods to the public generally or a section   of the public or in providing a service, whether the disposal or provision is   for consideration or otherwise and whether the service provided can be   availed of only by a section of the public.

Section   2 of the Equal Status Acts   2000-2015 defines service as follows:

“ 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;

The complainant’s position is that the Respondent clearly   provides a service i.e. the management and maintenance of the common areas of   the apartment complex. On that basis the complainant contends that the Respondent   is covered by the Acts and the WRC has jurisdiction to adjudicate on the   complaint.

The complainant purchased his home in 1989 and lives on   the 3^rd floor of his apartment block. The complainant estimates   that he has to climb approximately 30 steps to reach his home. He contends   that due to multiple health issues and difficulties accessing his residence,   he first mentioned his need of a stair lift in 2013. The complainant contends   that he formally raised the issue again in October 2016 at a meeting of the Board   of Directors of the Owners Management Company. The complainant contends that   his request was refused again and no valid reasons were provided to him. The   complainant contends that he was humiliated by the other members of the Board   by their refusal to accept his need of a stair lift or to make any efforts to   reasonably accommodate his needs as a person with a disability in compliance   with the legislation. The complainant contends that he was directly discriminated   against on the grounds of his disability and indirectly on the grounds of his   age as his request for the installation of a stair lift was refused. The   complainant also contends that he was victimised and harassed by the   treatment he received at board meetings of the Owners Management Company and   by social exclusion and isolation of a personal nature on the part of the   other members of the board towards him.

The Respondent refutes the allegations made by the   complainant. The Respondent’s position is that it has always treated the   complainant with respect and consideration. The Respondent contends that it   went to great efforts to facilitate and help the complainant in his   difficulties but could not agree to the installation of the stair lift as   requested. The Respondent stated that it had provided the complainant with a   reserved parking space directly outside the door of his apartment block as it   was mindful of his disability. The Respondent contends that it also arranged   for a Fire Safety assessment to be carried out in relation to installing the   stair lift. The Respondent contends that it far exceeded its obligations   under the legislation

The Respondent also contends that it did not Harass the   complainant at meetings or victimise him as a result of him seeking the   installation of the stair lift.

The Respondent’s evidence is as follows:

Mr A – Fire Safety   expert.

Mr A gave evidence. He is a fire safety specialist   consultant with an MSc in fire safety and has been in business for 29 years.

The witness confirmed that he had been contacted in   relation to assessing the stair well of the complainant’s apartment block.   The witness confirmed that the stairs are 1000mm wide which is the minimum   width allowed under building regulations.

In relation to the stair well the witness confirmed that   the stair lift would take up approximately 700mm of the width of the stairs   while it was in use and would also cause an obstruction to others even when   not in use.

The witness gave evidence that the installation of a stair   lift within that space would be in breach of fire safety regulations, would   increase the risk of a fire and therefore a fire safety certificate would not   be provided. This in turn would result in issues regarding insurance cover.

In cross examination Mr A was asked if he had considered   the installation of a lift on the premises. Mr A confirmed that it was the   installation of a stair lift that was the subject of his assessment and   report. The installation of a lift had not been part of his assessment.

Ms B, a colleague of Mr A also gave evidence on the issue   of the stairs width. Ms B confirmed that the installation of the stair lift   would result in the building being non-compliant with the Building   Regulations Technical Guidance Documents K, B and M which relate to stairway   design, fire safety and access/use respectively.

Ms C – Respondent   Witness

Ms C gave evidence in relation to the compliant. Ms C   resides in the same apartment block as the complainant. The witness gave evidence   that the Management Board, (of which the complainant is a director) agreed a   policy in April 2014 in relation to requests to alter the common areas of the   apartments. It was accepted as part of this policy that making alterations to   common areas was not permitted.

The witness gave evidence in relation to the complainant’s   request for a stair lift and his perceived harassment and victimisation as   result of his request. The witness said that the complainant made the request   in October 2016 and that on the basis of the policy agreed in April 2014, the   request was denied.

The witness stated that there was no further mention of   the issue and the complainant attended the Management Board’s Christmas   Dinner on 1^st December 2016. The witness stated that she was   shocked when she subsequently received notification of the complaint.

The witness said that the complainant was not   discriminated against in any way. The witness stated that the complainant had   been provided with his own car parking space right outside the front door of   his apartment block. This had been provided as the Management Board were   aware of the complainant’s difficulties and wanted to assist in any way   possible.

In relation to the complainant’s assertions that he was   harassed at the meeting of 12^th October 2016 and subsequently   victimised by other members of the board, the witness stated that that is not   the case. The witness confirmed that the complainant stopped attending   meetings of the board after submitting his compliant but at no point was he   isolated or ignored as a result of his request for a stair lift. The witness   stated that she often met the complainant in the apartment block or in the   local shops and always said hello and asked him how he was doing. The witness   said that once the compliant was submitted and legal advice had been sought,   she felt it was inappropriate to discuss the matter directly with the   complainant.

In cross examination, Counsel for the complainant stated   that that the complainant was refused accommodation at the meeting of 12^th   October 2016 and there was no further contact made to him on the issue.   Counsel stated that there was no response to the ES1 compliant form which   proves that there was no engagement on the issue either procedurally or   substantively.

Ms D Respondent   Witness

Ms D gave evidence in relation to the compliant. Ms D is a   Board Member of the Respondent. The witness stated that the complainant was   not treated differently to anyone else at any time. The witness gave evidence   that the complainant was never ignored or isolated. The witness stated that   the Respondent was mindful of the proceedings that were in place and that she   was doing her job under those constraints but was always polite to the   complainant in their interactions.

The witness also gave evidence in relation to the   installation and Insurance costs relating to the stair lift. The witness   stated that a grant had been obtained for the installation of the stair lift   but that the installers would not carry out the installation without an indemnity   from the insurers. The witness stated that the Insurers would not issue a   blanket indemnity to a third party in relation to the installation and   associated costs.

This complaint relates to direct discrimination on the grounds   of disability and indirect discrimination on grounds of age. The complainant   is also alleging harassment and victimisation within the meaning of the Acts   which he claims occurred after he made his request for a stair lift at a   meeting on 12^th October 2016.

Preliminary   Objection:

I find that the Respondent is providing a service to the   public or to a section of the public in its management and maintenance of the   common areas of the apartment blocks. Furthermore, vacant apartments could be   rented by members of the public and all residents could be visited by members   of the public. Accordingly, I find   that I have jurisdiction to adjudicate on the complaints.

Discrimination:

Discrimination on the grounds of disability is defined   under Section 4 of the Equal Status Acts 2000-2015 as follows:

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.

Harassment:

Harassment   is defined under Section 11 of the Equal Status Acts 2000-2015 which   at relevant parts states as follows:

1. (1) A person shall not sexually harass or harass (within the meaning   of subsection (4) or (5)) another person (“the victim”) where   the victim—

( a)   avails or seeks to avail himself or herself of any service provided by the   person or purchases or seeks to purchase any goods being disposed of by the   person,

( b)   is the proposed or actual recipient from the person of any premises or of any   accommodation or services or amenities related to accommodation or,

Victimisation:

The   victimisation ground is defined under Section 3(2)(j)(v) as follows:

3(2) As between any two persons, the   discriminatory grounds (and the descriptions of those grounds for the   purposes of this Act) are:

( j) that one—

(v) has given notice of an intention to take any   of the actions specified in subparagraphs (i) to (iv), and the   other has not (the “victimisation ground”).

Burden of Proof:

Section 38A of the Equal Status Acts, 2000-2015 provides   as follows in relation to the Burden of Proof:

1. (1) 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.

The Burden of Proof in cases of discrimination rests   initially with the complainant. If the Complainant raises facts from which an inference of   discrimination can be drawn, the burden of proof then shifts to the   Respondent.

The burden of proof is dealt with by the Labour Court in the   decision of Southern Health Board v   Mitchell [2001] ELR 201 where it determined that:

“The   first requirement is that the claimant must establish facts from which it may   be presumed that the principle of equal treatment has not been applied to   them. This indicates that a claimant must prove, on the balance of   probabilities, the primary facts on which they rely in seeking to raise a   presumption of unlawful discrimination.

“It is only if those   primary facts are established to the satisfaction of the Court, and they are   regarded by the Court as being of sufficient significance to raise a   presumption of discrimination, that the onus shifts to the respondent to   prove that there is no infringement of the principle of equal treatment”

In Queally Pig   Slaughtering Limited T/A Dawn Pork and Bacon V Tkac EDA1618 the Labour   Court also deals with facts from which   an inference of discrimination can occur. It cites Cork County Council v McCarthy EDA21/2008 which provides that:

“it is for the Court to decide from the   facts proved whether the inference or presumption contended for can be   properly drawn from those facts.”

The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that:

“mere speculation or assertions, unsupported   by evidence, cannot be elevated to a factual basis upon which an inference of   discrimination can be drawn.”

Naming of the   parties

The complainant requested that the parties be named in the   Adjudication Decision. The Respondent requested that the parties be   anonymised. I am of the view that it would be more appropriate to anonymise   the parties due to the facts and sensitivities surrounding the details of   this case.

Substantive   Findings

I find that the complainant has a disability within the   meaning of the Act and has experienced declining health in recent years. The   complainant outlined his health issues at the Adjudication hearing and the   struggles that he experiences on a daily basis. As a solution to the   complainant’s difficulties in accessing his home, he identified the need of a   stair lift which he feels would greatly improve his quality of life. I accept   that the cost of the installation of the stair lift would be covered by a   grant and that the ongoing costs relate to maintenance and running costs as   well as insurance charges. I accept that the complainant was unable to   clarify if the ongoing costs associated with the stair lift would result in   more than a “nominal cost” to the Respondent. Ms D in her evidence for the   Respondent outlined the difficulties with the insurers and Mr A outlined that   a fire safety compliance certificate would not be issued if a stair lift was   fitted in that stairwell. I find that, realistically the likelihood of   obtaining an insurance quote in those circumstances would be virtually   impossible.

I find that the Respondent, at its meeting on 12^th   October 2016 refused the complainant’s request for the installation of the   stair lift. The respondent cited its policy of April 2014 which prevents the   alteration of the common areas in the apartment blocks. This policy was   agreed by the Board and the complainant was a member of the Board at the time   the policy was agreed. In reality, this policy could have been changed/   amended with board agreement so I do not accept that its existence was a valid   reason for refusing to install the stair lift. However, I find the refusal   does not in itself indicate the presence of discrimination.

I accept the evidence of the Respondent that the matter was   not raised again between October 2016 and December 2016 and that the   Respondent was of the view that its decision had been accepted by the   complainant.

I accept the Respondent’s evidence that it provided a   designated parking space directly outside of the apartment block for the   complainant and that it had discussed and considered other ways that it could   assist the complainant in his difficulties.

I find that on the balance of probabilities the Respondent   did not harass the complainant at meetings as a result of his request for the   installation of the stair lift.

I accept the Respondent’s evidence that it was the   complainant himself that stopped attending meetings and thereby distancing   himself from the activities of the board and the related social interaction. On   that basis I find that there is no evidence to suggest that the complainant   was victimised as claimed.

The complainant said at the adjudication hearing that he   would have to try a hand rail to see if it would be of any assistance to him   in accessing his home. I note that the offer of a handrail was made to the   complainant but was refused by letter dated 25^th May 2017 from the   complainant’s representatives

In light of the difficulties facing the complainant I   would strongly urge the Respondent to review its position in relation to the   fitting of a hand rail without delay and to consider the possibility of   placing a stool or a small chair on each landing for the complainant to use   if necessary.

Based on the written and oral submissions of the parties   and all of the evidence adduced at the adjudication hearing, I find that the   complainant was not directly discriminated against on the grounds of   disability or indirectly on the age ground. Accordingly, the complaint is not   well founded. I also find that the complaints of Harassment and Victimisation   are not well founded.

Discrimination, Disability, Harassment, Victimisation,   Burden of proof.