Complainant

Respondent

Anonymised Parties

A Mother on behalf of her Son

A Barber Shop

Act

Complaint Reference No.

Date of Receipt

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

CA-00006172-001

22/07/2016

This case concerns a claim by the Complainant, Ms A on behalf her son , P that on March 31, 2016, he was refused a hair cut on grounds of his disability at a named Barber Shop. The Respondent, Mr B has denied the claim .There is a jurisdictional issue regarding the notification requirements which will be addressed.

The Respondent denied any claim of discrimination .The Respondents Solicitor confirmed on behalf of her client that the complainant had attended the Barber shop on the stated date of 31 March, 2016.

The Respondent opened his Barber business in the middle of January, 2016.The complainant went public with her complaint on radio and local media .The respondent contended that this impacted very badly on his business and he sold the business on 7^th November, 2016 for in or around the same price he paid for the lease.

The Respondent gave evidence to the hearing. He recalled 31 March 2016 and the complainants arrival to his shop .He recalled that the complainants son stated that he did not want a hair cut .He suggested to the complainant that maybe he could try and tried to move the complainants son to the barbers chair .He did not touch him .The child refused to sit in the chair and he attempted to cut his hair whilst sitting in the wheelchair ,but the child was upset .Mr B submitted that he thought he was afraid given that he was a first time visitor at the shop .Mr B told the hearing that he placed a towel over the child’s shoulders but he kept moving his head and he did not want to hurt him. He was unable to cut his hair and asked him to leave and politely held the door open.

He recalled the complainant returning to the shop, when he was cutting hair and he made no response to her. She returned another time, but by that time he was afraid and did not permit her to enter.

Mr B stated that there were differences between cutting adults and children’s hair .Some times they leave with half a hair cut and he wouldn’t charge for that. However, if someone was upset, he would have to point blank refuse to cut the hair .He had been unable to cut Ms As sons hair, he stopped as he understood that he would harm him.

During cross examination, Mr B stated that the complainant’s son refused to get out of the wheelchair when she tried to assist him. He stated that he did not call the Gardaí following the third visit of the complainant to his shop as” he did not want to make it bigger than it was”. He recalled that the complainant threatened his business during her second visit .There was no CC TV as he was in the process of obtaining quotes following the commencement of the business . He did not record any notes of the incident as he thought he was in the right. Mr B submitted that he had cut some of the complainant’s son’s hair.

Mr B submitted that the first visit lasted 15 minutes, the second visit came an hour later where the complainant shouted and threatened his business and on the third occasion, the complainant tried to force the door open.

Mr B stated that it was 17 August 2016 before he knew there was a problem; he felt threatened by the media exposure and had difficulties in communicating through English, which prevented him giving his side of the story to the media.

The Respondents representative confirmed that the first notification under the Equal Status Acts was received by the respondent on 28 July 2016.The Respondent believed that he had made a genuine effort at reasonably accommodating the complainants son in his quest for a hair cut .The respondent had not refused a hair cut and had instead offered a temporary suspension of the hair cut accompanied by an offer of a return to the shop to continue the cut. The claim of discrimination was denied as being unfounded.

The Respondent submitted that Section 4 of the Equal Status Act on reasonable accommodation was adhered to when special treatment was provided to ensure that the complainant’s child would be able to avail of his service as a barber.

The Respondent submitted that the notification required under the Acts were not complied with by the complainant.

Section 21 of the Equal Status Acts 2000-2015 provides that a person who claims that prohibited conduct has been directed against him/her may, subject to Section 21(1) seek redress via the Workplace Relations Commission or the Circuit Court.

In accordance with S.21 (2) of the Acts, the complainant is obliged to follow a certain course of action.

(2) Before seeking redress under this section the complainant —

( a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —

(i) the nature of the allegation,

(ii) the complainant ’s intention, if not satisfied with the respondent ’ s response to the allegation, to seek redress under this Act ,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

I have established from the documentation before me, that the complainant first made contact with the WRC on 7 July, 2016 .On this date , she submitted an email of enquiry to an email address of the Equality Tribunal and titled the correspondence :

Discrimination against disabled little boy.

The WRC responded on July 8 outlining a course of action for the complainant to take to enable the WRC to process her Equal Status Complaint .She was also advised of the on line complaint form option and the requirements /procedures under the Acts .

The complainant’s complaint was received by the WRC on July 22, 2016. On 28 July the WRC wrote, in acknowledging the complaint, identified that the complaint received did not satisfy the legal requirements of notification as set out above. The complainant was directed to

1 Notify the Respondent within the four month window by 30 July 2016 and retain evidence of same.

Or

Apply for permission to dispense with the notification requirement setting out the exceptional grounds why such dispensation should be granted.

The complainant explained the time delay on August 3,2016 ,stating that she was guided by the advice of the Radio Station, where she thought “ it was my word against his “

The Respondent submitted an initial response to the complainant dated 3 August, where he disputed the facts of the complaint and explained that he had business difficulties .He made a further submission on August 11, where he referred to the expiration of time limits in the case and indicated that if the matter came before the civil courts, he was prepared to counter sue.

The complainant submitted a number of reasons for the delay in notification.

1 She had submitted a Solicitors letter, which was not responded to.

2 The Radio Station had hosted another person who had also expressed difficulties in securing a hair cut at the shop.

3 The Radio station contacted her after this incident and she decided to act.

I have carefully considered both parties submissions in relation to the obligatory notification procedure for a complaint under the Equal Status Act.

I found that the complainant submitted a somewhat fragmented complaint in this case. Firstly, there was the Introductory letter meant for the Equality Tribunal .This was followed by the further requested details and a copy of the Solicitors letter, which were then collectively furnished by the WRC to the respondent on 28 July 2016.

I am satisfied that the complainant did not comply with the strict requirements of Section 21(2), where notification to the respondent was obligatory “before seeking redress under this section “. The undated Solicitors letter did not mention the Equal Status Act .I must conclude from this that the Respondent was not on formal notice of a complaint of discrimination until 28 July 2016, through the WRC complaint process .While the complainant was offered the option of compiling an ES1 form in support of her complaint, she chose not to do so.

In County Louth VEC V Equality Tribunal and Brangan[2009]IEHC 370, Mc Govern J. said that EE1, a non statutory form ,was only intended to set out in broad outline , the nature of the complaint .It was permissible to amend a claim set out therein

“So long as the general nature of the complaint remains the same “.

In Clare County Council V Director Of Equality Tribunal [2011]IEHC 303, Hedigan J in applying Brannigan,

“….. Complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein”

On this occasion, the Law requires that the Equal Status Acts is mentioned in the antecedent documents prior to seeking redress. I have found that the reference to the Acts was omitted in these documents.

(3) ( a ) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may —

(I) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction.

I must therefore deny the complainant a Direction on access to Section 23(3) (i) by way of reasonable cause.

Having heard both parties submissions in relation to Section 23(3)(ii) of the Act ,the basis of which permits me to issue a Direction that subsection 21(2) should not apply on exceptional grounds ,I have given careful consideration to the parties positions .

The complainant, a lay litigant stated that she had a strong arguable case and one for which she sought redress for an alleged act of discrimination directed towards her son. The respondent, represented legally was very clear that there should be no further relaxation to the statutory time limits on notification.

Section 21 (3) ( a ) of the Acts provides that : On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may —

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

And, where such a direction is given, this Part shall have effect accordingly.

  ( b ) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including —

(I) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(Ii) The extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.  

In considering the antecedent documentation in this case , I was struck by the fact that the respondent had not responded to the Solicitors letter .I noted that he had responded promptly on notification of the complaint once furnished by the WRC . I noted that there was no date of origin on the letter and my copy had a copied date of 13 July 2016. It may have been possible for the parties to have resolved this case if an earlier intervention had taken place outside the media spotlight.

The Labour Court has recently considered a definition on exceptional circumstances in Stablefield ltd V Ana Lacraniora Manciu in DWT 1714, a case taken under the Organisation of Working Time Act, 1997.

 This Court has, in a number of cases, considered the application of the test to determine whether exceptional circumstances apply. InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110(cited inKylemore Services Group/Home Fare Services Limited v Terrie Clarke(DEC-E2015-160) the Court stated:

“Exceptional Circumstances

The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered (seeR v Kelly[1999] 2 All ER 13 at 20 per Lord Bingham CJ.)”

I have considered all the relevant circumstances surrounding the granting or otherwise of exceptional circumstances on fair and reasonable grounds in this case.

The Complainant is a Lay litigant, without apparent knowledge that the Equality Tribunal had ceased to exist at the time of 31 March, 2016 .The Workplace Relations Commission had come into being on 1 October, 2015 and was the correct body to oversee her claim .The complainant confirmed that she took legal advice prior to her first contact with the WRC in July 2016.I have studied the Solicitors letter carefully and found that it was undated and non specific in nature .It did not illicit a response from the respondent .

The complainant then confirmed that she relied on the Radio Station to guide her next steps which brought her to the WRC on 7 July 2016. She made an earnest plea at the hearing that her complaint be investigated both for her sons sake and to stop it happening to anyone else . I presented the WRC Explanatory Notes on the Equal Status Acts to both parties at the hearing .The Complainant confirmed that she sought further legal advice after the hearing and confirmed that she now understood the points discussed at the hearing on the notification period. This communication was shared with the respondent on 25 April, 2017 and did not illicit a response.

The Respondent was legally represented and had furnished two responses to the initial complaint in advance of the hearing .These both served to contest the complainant’s version of events and to explain that his business was compromised .However; I was struck by the apparent threat of retaliation through the civil courts contained in the 11 August response.

I am satisfied that the respondent was fully aware of the circumstances in which the alleged prohibited conduct occurred. His evidence was very clear on his recall of his three interactions with the complainant on March 31, 2016.

I am also satisfied that the respondent had access to legal advice from his reception of the complaint on July 28, 2016 as he makes reference to it in his communiques .Therefore, I cannot establish any risk of prejudice to the respondents ability to deal with the complaint .I am also satisfied that he had a support person in attendance at the hearing to assist him in understanding English as well as being legally represented at hearing.

I have considered the Title of the Equal Status Act 2000 as revised January 1, 2016.

An Act to promote Equality and prohibit types of discrimination , harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access , to provide for investigating and remedying certain discrimination and other unlawful activities ……..

It is not disputed that the complainant did not comply in full with the statutory notification procedures as set down under the Acts. I am permitted to consider her plea for inclusion in an investigation of her complaint, based on her set of circumstances outlined at the hearing. I have considered how this plea for inclusion might compromise the respondent.

I find that the complainant was ill advised and over reliant on the media to guide her on the correct course of action to be followed in seeking redress under the Equal Status Acts 2000-2015.However, I am satisfied that it was her clear intention from the outset to seek redress under discrimination laws rather than personal injuries. The evolution of the WRC in replacing the Equality Tribunal while, well publicised constituted a special knowledge not normally to be expected to be in the hands of a Lay litigant. I find that the complainant was confused between the changeovers between these two bodies. I note that she did not act on the suggested course of action outlined in the WRC letter of July 28, 2016 and I find that to be a stark missed opportunity.

However, I find that the complainant narrowly missed out on compliance with the notification procedures within a two month period by omission of reference to the Equal Status Act during the course of her Solicitors letter sent to the respondent. The complainant presented a strong case for inquiry into an allegation of discrimination. Given her clearly stated intentions on her preferred course of action at hearing, and my findings that the respondent was not compromised as set down in Section 21(3) (b) of the Acts. I find that it would be wholly unfair and unreasonable to deny her an investigation into her complaint.

For the reasons I have cited, I have found that the complainant has satisfied the test for exceptional circumstances and I grant her request for permission to dispense with the notification requirement in relation to stating her intention, if not satisfied with the respondent response to seek redress under the Equal Status Act provided for in  Section 21 (2) (2) (ii) of the Acts.

“ the complainants intention if not satisfied with the respondents response to the allegation to seek redress under this Act “

I make this Direction on exceptional grounds in accordance with Section 21 (3) (a) (ii). I now wish to proceed with the investigation accordingly.

Findings and Conclusions

I have listened carefully to both parties submissions. The respondent presented a written submission with legal arguments .The Complainant made an oral presentation .I have considered both submissions.

Section 38(a) of the Equal Status Act, 2000-2015 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 she can rely on in asserting that prohibited conduct has occurred in relation to her situation.

In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant? .It is only where such a prima facie case has been made out by the complainant that onus shifts to the respondent to rebut the inference of discrimination raised.

The complainant alleged that she was discriminated against on disability grounds. She did not make a complaint under Section 4 of the Act on reasonable accommodation.

Discrimination is defined in Section 3 of the Act where –

Discrimination shall be taken to occur –

(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 S.3(2) referred to as discriminatory grounds .

Section 3(g) refers to Disability grounds

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)

It was not disputed that the complainant had a disability and I accept that the complainant had the condition of mild cerebral palsy in accordance with Section 2 of the Act.

It was not disputed that the complainant entered the respondents shop on March 31, 2016 seeking a hair cut and was refused , which resulted in a departure from the shop .It is the circumstances of the refusal and departure that are vehemently in conflict . The Respondent submitted that it was a temporary suspension to facilitate a cooling off period post the complainant’s distress. The Complainant submitted that it was a strict refusal without engagement and linked to the presence of the wheelchair.

From that moment on there is considerable conflict in this case .I found that the media had a very large influence for both parties on the evolution of events post March 31, 2016. I asked the respondent at hearing, whether he operated a complaints procedure for customers?, he did not.

I have sought to unravel this conflict. I found inconsistencies in both presentations made at the hearing. The complainant omitted to mention that they were a party of four( her two daughters) in attendance at the barber shop in the first instance .I found this surprising. The Respondent submitted that the complainant was invited back to take up and finish the hair cut , yet I found his evidence inconsistent on this point .I also found that an absence of any notes or records on such an event as described to be unusual .I found the complainant to be very consistent and compelling   in her evidence of the alleged refusal to undertake the requested hair cut .It was clear that the event was very distressing .I was particularly struck by the reference that her son did not have a scissors cut and one was not requested on this day.I also preferred the complainants ‘ evidence on the timing and sequence of all three visits to the Barber shop on March 31, 2016 .I must therefore, resolve the conflict in favour of the complainant .

I have found that the complainant was refused a hair cut in the manner submitted. I found it regrettable that the respondent did not engage in a positive customer relations manner on the complainant’s subsequent two visits to the shop on the same day.

As the complainant has demonstrated that a prima facie case of discrimination exists, has the respondent managed to rebut this?

The Respondent submitted that he did not refuse a hair cut and gave extensive evidence of commencing a hair cut which was then brought to a premature conclusion through the complainant’s son’s tremors .He contended that he had been wronged and his business damaged as a result of the complainants actions on the media.

I have no role in commenting on the media coverage of this case, This investigation is squarely directed at the facts of the case as presented which centre on the events of March 31, 2016.

The respondent denied having anything to do with phone calls received by the complainant from a Turkish number. I must accept that no proof was submitted in relation to these phone calls and I must conclude that they are irrelevant to this case.

I have not found a consistency in the respondents evidence .He told the hearing that he cut some of the complainants sons hair and this was disputed .Perhaps most of all, I was struck by the evidence given of his stated offer of a return to finish the hair cut .The Respondent did not make reference to this in his evidence of the second exchange with the complainant on 31 March, 2016.

While I appreciate that money was not exchanged in return for a hair cut, neither was there any customer record pro-offered by the respondent. Given that his evidence centred on commencing the hair cut, I would have expected to see reference to a customer record.

The respondent addressed the question of reasonable accommodation , yet the complainant was clear that the request was for a hair cut and her son just happened to be in his wheelchair , which he used sporadically .She did not request reasonable accommodation, special treatment or facilities .

I have found that the respondent has not managed to rebut the inference of direct discrimination.

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.

I have concluded my investigation and issue the following decision .I have found that the complainant has established a prima facie case of direct discrimination on the grounds of disability and this has not been rebutted by the respondent.

Therefore, as per Section 27(1) (a) of the Acts, I order the respondent to pay to the complainant €2,000 in compensation for the effects of the prohibited conduct.

The Respondent told the hearing that he was no longer in business at this Barber Shop. I recommend that that prior to undertaking another business that the Respondent should undertake an approved course covering Irish Equality Legislation.The purpose of which is to promote an understanding that the access to goods and services enjoyed by persons with disabilities should mirror those enjoyed by the all of society .

Discrimination on Disability Grounds