EQUAL STATUS ACTS 2000 AND 2012
DECISION NO. DEC-S2017-008
PARTIES
Complainant
A Citizen
v
A Local Authority
(Represented by D. Keaney BL and the County Law Agent)
File reference: ES/2014/0095
Date of issue: 15 February 2017
HEADNOTES: Equal Status Acts – Disability – Discrimination – Reasonable Accommodation
1. Dispute
1.1 This dispute concerns a claim by the Complainant that he was discriminated against by Local Authority AW Council on grounds of “disability” in terms of Sections 3(1)(a), 3(2)(g) and failure to provide “reasonable accommodation” in terms of Section 4(1) of the Equal Status Act, 2000-2012
1.2 The Complainant referred his claim against Local Authority, AW Council, to the Director of the Equality Tribunal under the Equal Status Acts on the 27th May 2014. On the 9th December 2016 in accordance with section 25 of the Equal Status Act 2000 to 2014, the Director of the Equality Tribunal then delegated the case to me, Michael McEntee, an Equality and Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director on which date the investigation under Section 25 commenced. Submissions were received from both sides and as part of my investigation I proceeded to a hearing on the 9th January 2017.
1.3 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 83 (3) of the Workplace Relations Act 2015.
2 Summary of Complainant’s submission
The initial issue that gave rise to this complaint was the closure of the lift at ABC Shopping Centre in the Local Authority area. The closure of the lift made access to the upper floors, where HSE facilities were located, almost impossible for persons with a disability.
The Complainant made repeated representations, without success, by phone and e mail to Respondent AW in relation to the closure of this lift. No replies were received although the Complainant’s PC showed “Read Receipts” for the e mails. The only communication that took place was by telephone with the Disability Officer of the Council in February 2014. The Officer explained that her remit was with Council buildings only but that she would seek another officer of the Council respond to the Complainant. No further communication or follow up ensued.
On the 24th April 2014, the Complainant sent a form ES-1 to the Council. No reply was received.
The Complainant stated that the actions of the AW Council were
(1) discriminatory in their refusal to reply to his communications – it being clear that they were coming from a disabled person
(2) failed to provide “reasonable accommodation” by effectively refusing to deal with his communications -it being again, at all times clear, that they were coming from a disabled person.
3: Summary of Respondents Submission
The Respondent AW Council maintained that
3:1 They were not the “Service Provider” as required by Sections 4(1) and 5 (1) of the Equal Status Act – the “Service Provider” being the owners and operators of the privately-owned Shopping Centre.
3:2 Notwithstanding the basic point at 3:1 above the Council in a detailed submission reliant on the Building Control Act ,1990, maintained strongly that in any event they did not have any Statutory powers in this case. Relevant Sections of the Building Control Act ,1990 Act are quoted below.
Section 6(4) – the Council is
“not under a duty to ensure that a building or works – comply with the building regulations or be free from any defect”
and Section 5 (1)
An enforcement notice shall not be served, in respect of the building or works concerned, after the expiration of the period of five years commencing on the date of –
(a) the completion of the building or the works ---
The Building, the Shopping Centre involved, was completed in 2008 and the five-year exclusion would have precluded any complaints made in 2014.
Furthermore, the Shopping Centre being completed in 2008 could not be covered by the Building Control (amendment regulations) of 2009 - S.I. No 351 of 2009 -section 8 regarding Disability AccessCertificate.
3:3 In summary the AW Council was not the Service Provider and did not have a legal responsibility for the operation of the lifts in the referenced Shopping Centre.
3:4 The Council accepted that the handling of the Complainant’s communications and correspondence had left a lot to be desired. They expressed their complete regrets in this regard.
4 Conclusions /relevant Law
4:1 The key question in this case is whether the Complainant can establish a prima facie case of Discrimination. It was accepted that the Complainant was disabled.
4:2 The matter turns upon whether or not the Complainant was discriminated against contrary to Section 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4:3 Service Provider
Regarding the question of whether or not the AW Council, the Respondent, was a “service provider” – this has a twofold aspect – regarding the Shopping Centre management / lifts etc. they were clearly not but in their dealing with the correspondence from the Complainant they clearly were.
4:4 Relevant Law
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified... (in this case the disability ground) .... A person is treated less favourably than another person is, has been or would be treated.
Section 3(2) provides that:
“as between any two persons, the discriminatory grounds ... are ... (g) that one is a person with a disability and the other is not or is a person with a different disability the disability ground”
Section 5(1) provides that:
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.
4.5 Burden of Proof
The burden of proof is set out in Section 38A of the Equal Status Act, 2000 which provides that:
" 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."
Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon 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 Labour Court continued
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4:6 Pertinent Facts
In the case in hand it was accepted by the Council that on a purely Customer Service level they had “let the ball slip”.
It was now recognised that as a member of the public and a citizen of the State the Council should have dealt with the correspondence, e mails etc. from the Complainant in a much better fashion.
The Council representatives at the hearing were apologetic.
The Law Agent in his reply to the ES1 Form stated at point 7 of his reply
“I cannot explain why you were not directed to an appropriate staff member when you telephoned and or/e mailed AB County Council. I can say however that in my experience as Law Agent for the past 17 years this is the first query relating to the Building Regulations that has come across my desk and it may be that the persons to whom you addressed your e mail quite simply did not know what to do.”
The Council representative pointed to the very difficult situation faced by Local Authorities in 2013/2014 with large numbers of staff reductions & redundancies /early retirements etc. contingent on the economic recession.
None the less the communications from the Complainant were never replied to directly.
Form ES-1 was returned by the Council, completed in full, to the Equality Tribunal on the 30th October 2014. The Council stated that as they understood that this form would be copied by the Tribunal to the Complainant, this had satisfied any needs to reply directly to the Complainant.
The completed reply form the Council eventually made its way to the Complainant on the 8th January 2015
4:7 Conclusions & final question after having heard the evidence
The key question now is: was the behaviour detailed above simply bad Customer Service that could have applied to any member of the public or was it specifically discriminatory behaviour directed against a disabled person.?
In considering the evidence and the oral presentation of the parties I came to the following conclusions
The Complainant had been eminently reasonable and in fact patient in his dealing with the Council. In his correspondence, it was clear that he was Disabled.
4:8 However under Section 85 (a) of the Equality Acts quoted above at Section 4 (5) of this Adjudication (and used as a Guideline in regard to “the burden of proof”) I could not find sufficient prima facie evidence to sustain a case of discrimination and or failure to provide “Reasonable Accommodation” in the AW Council handling of his initial complaint.
In other words, there was not sufficient proof that the Complainant was discriminated against because of his disability per se as opposed to any to any other member of the public contacting the Council. Failings in customer service could equally have applied to all parties - disabled or not. This case is, in the final analysis, one of a breakdown of “customer service” in regard to the behaviour of a Public Body.
4:9 The breakdown in customer service and the negative experiences of the Complainant in his dealing with the AW Council were accepted by the Council representatives. This is a matter that needs to be addressed in any revisiting and refreshing of their Customer Services Charter.
5 Decision
5:1 In reaching my decision, I have considered all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
A case of discriminatory treatment on the grounds of Disability and Failure to provide Reasonable Accommodation to the required level of prima facie evidence, has not been established in this instance. The claims have to be dismissed.
________________
Michael McEntee
Equality Officer /Adjudication Officer
15 February 2017