ADJ-00004934

Complainant

Respondent

Anonymised Parties

A Complainant

A Financial Institution

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00006933-001

01/09/2016

The complainant, referred a complaint under the Equal Status Acts, 2000-2015 to the Work place Relations Commission on the 1stof September, 2016.       The complainant, who has a disability submits that he was discriminated against by the respondent in respect of accessing a service provided by the respondent. He also submits that the respondent did not provide him with reasonable accommodation for his disability and that he was harassed by the respondent.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. Written submissions were received from both parties.   As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 13^th of April, 2017.

The complainant submits that:

he is disabled due to a brain injury and as a result has no feeling power or movement in his left arm and has limited mobility in his left leg,

he attended the respondent’s premises on the 9th of June, 2016 seeking to reinstate a Direct Debit,

the respondent premises was very busy at the time and the queue of people went out as far as the front door,

he went to the Loans Department and waited for a desk to become available,

he was attended to by a female staff member at the desk and explained to her that he was unable to stand in line due to disability as a result of a condition called dystonia,

he states that the staff member at the desk refused to carry out the transaction at the desk and directed him to the Information desk where he could carry out the transaction,

he was unable to carry out his transaction at the Information desk to which he was directed as, due to his disability he cannot stand in line or queue for long periods,

he explained his disability to the staff member and she eventually agreed to deal with his transaction which was to reinstate a Direct Debit,

the staff member was unhelpful and did a lot of mumbling under her breath which was offensive,

she placed the documents on the counter for him to sign but there was no seat and he could not sign as he was unable to do so while leaning against the counter as he has no feeling or movement in his left arm,

he was unable to carry out his transaction or to access the service as the staff member refused to help him at the information desk,

following this he left the premises,

The respondent submits that

the complainant received more favourable treatment in his interaction with the respondent,

the complainant attended the respondent’s premises on the date in question and indicated that he needed assistance in carrying out his business,

the complainant approached a desk in the Loans Department which was not staffed at the time,

A staff member Ms. C attended the desk upon seeing the complainant there and enquired if she could help him,

The complainant explained that he wished to reinstate a Direct Debit which he had cancelled,

The Loans desk does not deal with such transactions and so Ms. C directed him to another desk where he could carry out his transaction,

The complainant explained to Ms. C that he could not go to the other desk as he had a disability which meant he could not stand in line or queue for long periods,

Ms.C then proceeded to deal with the complainant’s transaction at the Loans Desk,

Ms.C asked the complainant for details of his account and of the proposed Direct Debit, she proceeded to prepare and print the relevant form to carry out the
transaction,

The complainant turned and left without completing the form, and without explanation,

The complainant following this visit lodged a complainant about Ms. C and the manner in which she dealt with the complainant.

 The issue for decision by me now is, whether or not the respondent discriminated against and or harassed the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(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 subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g) 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”),

Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

It is submitted that the complainant is a person with a disability for the purposes of the Act.   Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

The complainant advised the hearing that he is a person with a disability.   The complainant submits that he suffered a brain injury as a child following which he was left with no feeling, power or movement in his left arm.   The complainant also submits that he has limited mobility in his left leg and is unable to stand for long periods of time.   The respondent does not dispute that the complainant is a person with a disability.   I am satisfied from the totality of the evidence adduced that the complainant is a person with a disability for the purpose of the Acts.

Discrimination on grounds of disability, harassment and failure to provide reasonable accommodation.

In making my decision I must consider whether the existence of a prima facie case has been established by the Complainant.   Section 38A of the Equal Status Acts 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.  

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(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 subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

The complainant has also submitted a claim of failure to provide reasonable accommodation. In this regard the relevant sections of the Equal Status Acts are sections 4 (1) and 4 (2):

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.

Section 11(5) of the Equal Status Acts, 2000-2015 sets out the definition of harassment as follows;

“Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”

The complainant advised the hearing that he entered the respondent’s premises on the 9^th of June, 2016 with the intention of reinstating a Direct Debit.     The complainant advised the hearing that upon entering the respondent’s premises he found the place to be extremely busy and that the queue was out as far as the front door. The complainant stated that he looked to his left to the Loans Department and no one was there. He stated that the first vacant desk he saw he went to it.  The complainant told the hearing that he was attended to by a female staff member identified as Ms. C at the desk and explained to her that he wished to cancel a Direct Debit. He stated that Ms. C directed him to the Information Desk and told him that she could not deal with him. The complainant advised the hearing that he then told Ms. C that he could not go to the Information desk as he was unable to stand in line due to his disability. The complainant at the hearing went on to state that the desk to which he was being directed was not suitable for a person with his disability as there was no seat in front of the desk and he would have to stand to be dealt with at the counter.

The respondent advised the hearing that the desk in question is a wheelchair accessible desk with a low counter and that it does not have a seat in front of it for this reason. The respondent went on to state that the desk at which the complainant had approached Ms. C had a high counter and also did not have a seat at the counter.   The respondent stated that the desk next to the one which the complainant approached which was also vacant when the complainant approached the Loans area, did have a seat in front of it and a lower counter and was vacant when the complainant entered the premises but that the complainant walked past this chair and desk which was attended and approached the desk without a chair and which was unattended at the time. The respondent at the hearing provided CCTV footage of the relevant incident which showed the complainant attending at the counter.

The complainant went on to state that after he advised Ms. C of the fact that he could not attend at the other desk due to his disability and his inability to queue or stand in line he stated that she reluctantly agreed to carry out his transaction at the Loans desk. The complainant stated that Ms. C had done a lot of mumbling under her breath and was clearly not happy at having to deal with him. The complainant prior to the hearing had submitted that Ms. C had called him ‘stupid’ but he later withdrew this claim and stated that it did not happen.

The complainant advised the hearing that Ms. C had asked him for his account details and had proceeded to carry out his transaction. He stated that Ms. C then printed off a document and placed it on the counter for him to sign. The complainant told the hearing that he was unable to sign the document as he was leaning against the counter and as he had no movement in his left arm he was unable to balance himself and sign the document without it being held for him. The complainant stated that Ms. C was unpleasant and hostile towards him and so he turned and left the premises.   He stated that Ms. C called him back as he was leaving but that he did not return.

The respondent manager advised the hearing that Ms. C had worked for the respondent for over 20 years and that she was the most pleasant and helpful staff member and that no customer had ever had any issue or made any complaint about her.

Witness for the respondent Ms. C gave evidence at the hearing, Ms. C denied mumbling under her breath or being in any way negative towards the complainant.   Ms. C advised the hearing that she had attended the Loans desk upon seeing the complainant approach the desk and that she had sought to assist the complainant. Ms. C advised the hearing that she had directed the complainant to another desk upon discovering that his transaction was not appropriate to the Loans desk and that it would more appropriately be dealt with at the other desk. Ms. C stated that the complainant then advised her that he could not attend the other desk due to his disability which meant that he could not stand in line or queue for long periods. Ms. C stated that she had then proceeded to assist the complainant at her desk and to help him carry out his transaction despite the fact that such a transaction would not normally be dealt with at the Loans Desk. Ms. C stated that she had not been aware that the complainant had a disability until he advised her of this as he had approached the counter unaided and had walked past a lower counter with a chair in front of it instead seeking to be dealt with at the higher counter. Ms. C stated that she had not at any point been anything but helpful to the complainant and was surprised and shocked when he turned and left the premises without completing his transaction.  

The respondent at the hearing presented CCTV footage of the incident which while it did not contain any sound the visual picture supports the respondent’s assertion that Ms. C assisted the complainant in carrying out his transaction despite the fact that he had attended at the Loans Department which would not in the normal course of events deal with the reinstatement of Direct Debits. Ms. C stated that this function is normally dealt with at the Reception/Information counter which is a disability friendly counter.   The CCTV footage shows the complainant walking to the Loans counter which was unattended, the complainant walked past the first counter which is a disability friendly counter with a lower counter and a chair in front of it. The CCTV shows Ms. C engaging with the complainant and initially pointing towards the Information desk. It then shows a discussion between Ms. C and the complainant after which she starts to look at and use her computer while engaging with him. Ms. C then turns to a calendar on the wall pointing at dates, which the respondent explains is to arrange the direct debit on the complainant’s account and all the while she is engaging with the complainant. Ms. C can then be seen turning back to the computer and typing at which point the complainant turns and walks away.   Ms. C stated that she was in the process of completing the relevant forms which she had to print off for signing by the complainant.   Ms. C stated that the complainant left before she had given him the forms to sign. The CCTV footage supports the respondent’s and Ms. C’s version of events and shows that the interaction between the complainant and Ms. C took about seven minutes in total.

 
Ms. C advised the hearing that she was shocked and upset at the accusations made against her by the complainant and stated that she had treated him in a pleasant and courteous manner and could not understand why he had later made a complaint about her. Ms. C at the hearing was visibly upset and presented as a credible and consistent witness and on balance I prefer her version of events.  

From the evidence adduced by both parties, it is clear that the complainant was not prevented from carrying out his business in the Credit Union on the day in question and that he was assisted by Ms. C in carrying out his transaction and in availing of the respondent’s services.

Based on the totality of the evidence adduced in relation to these matters, I am satisfied that the complainant was not discriminated against or harassed by the respondent on grounds of his disability in relation to these matters and that the respondent’s treatment of the complainant does not amount to 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 himself or herself of the service.

In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.

(i)                  the complainant was notdiscriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and

(ii)                that the complainant was not harassed by the respondent on the ground of disability in terms of Section 11 (5) of the Equal Status Acts, 2000-2015.

(iii)               the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the 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 himself or herself of the service.

Equal Status, Disability, Harassment, Reasonable Accommodation