Complainant

Respondent

Anonymised Parties

A Complainant

A Bank

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00006934-001

02/09/2016

The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Work place Relations Commission on the 2^nd of 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 victimised and 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 24^th of February, 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,

he attended the respondent’s premises on the 14^th of July, 2016 seeking to cancel a Direct Debit from his account with them,

he requested assistance in carrying out the banking transaction and Ms. C was sent to help him with the transaction,

he was attended to by Ms. C at the respondent’s premises who shouted at him in a loud voice and threw a clipboard at him during the interaction,

the clipboard hit him on the chest and fell to the ground, he struggled to pick up the clipboard due to his disabled left arm,

the complainant completed his business and left the premises,

the complainant made a number of phone calls following this incident and complained to the respondent about Ms. C’s treatment of him during the incident,

the complainant was later advised that the respondent had investigated the matter and the respondent apologised to the complainant for any inconvenience he was caused at having to wait for assistance and for not having an office available where he could be dealt with on the date in question, due to the bank being busy,

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 respondent was very busy at the time but proceeded to engage Ms. C to assist the complainant personally with his transaction,

Ms. C obtained the relevant details to carry out the Direct Debit cancellation and once advised by the complainant that he was unable to fill out the form himself, she proceeded to fill out the form for him in his presence,

The complainant with the assistance of Ms. C completed the transaction which was the purpose of his visit,

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

The respondent investigated the complainant and advised the complainant of the outcome of its investigation.

The issue for decision by me now is, whether or not the respondent discriminated against and/ or harassed the complainant on grounds of disability and on the victimisation ground, 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 advised the hearing that he wears a sling on this arm and a plastic apparatus to prevent him from developing a ‘claw hand’. The complainant also submits that he has limited mobility in his left leg and is unable to stand for long periods of time.   The complainant submitted a letter from his doctor as evidence of his disability.   The letter supports the complainant’s account of his disability.   The respondent advised the hearing that it 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 14^th of July, 2016, about noon, with the intention of cancelling a Direct Debit from his account.   The complainant advised the hearing that upon entering the respondent’s premises he found the place deserted. He stated that there was no one around apart from two individuals in high vis jackets sitting on seats and whom he states were laughing at him. The complainant confirmed that these two persons were not employees of the respondent.  

The complainant stated that he approached a teller in the coin area and asked the man behind the counter if he could call someone to help him as he has a disability.     The complainant told the hearing that the man at the desk made a phone call, shortly after which, Ms. C appeared and approached the complainant. The complainant stated that Ms. C approached him and was walking fast and spoke very loudly to him. The complainant told the hearing that he had asked Ms. C to lower her voice as it was very loud.   He stated that he then explained to Ms. C that he wanted to cancel a direct debit and that he gave her his debit card to enable her to do this.   He stated that Ms. C then left to carry out his request and was gone for about 10 or 15 minutes.   The complainant stated that he considered this to be a long wait and that he had in the past carried out this same transaction and it had only taken a few minutes. The complainant stated that while he was waiting Ms. K came out of her office and upon seeing him asked if he was alright. The complainant told the hearing that he replied to Ms. K telling her that he had been waiting for 10 minutes and asked if she could find out what the delay was. He stated that Ms. K left the area and when she returned she told him that Ms. C would be with him shortly.

The complainant told the hearing that Ms. C then returned to him with a clipboard and a form attached to it. He told the hearing that Ms. C pushed the clipboard at him and that it hit off his left arm and chest before falling to the ground. He stated that he was unable to catch it with his left arm as he has no feeling or movement in his left arm. The complainant advised the hearing that he then looked at Ms. C and told her that she hadn’t “a clue how to deal with a disabled person”. The complainant stated that he signed the form to complete his transaction and left the premises.

The respondent advised the hearing that the bank was very busy on the day in question and that all staff were busy with customers at the time the complainant entered the premises. The respondent corroborates the complainant’s version of events up to the point where Ms. C approached the complainant to assist him.   Witness for the respondent, Ms. C advised the hearing that she had approached the complainant and had asked how she could help him.   She stated that the complainant had indicated that he wanted to be dealt with in an office and away from the public area but she stated that this wasn’t possible as all offices were occupied at the time.   Ms. C advised the hearing that she told the complainant that there was no office available and she directed him to a quieter seating area outside of the offices and away from the main teller area.   Ms. C stated that the complainant had told her that he wanted to cancel a direct debit and gave her his debit card to facilitate this.

Ms. C told the hearing that she had initially suggested to the complainant that he could use online banking to carry out the transaction, at which point the complainant advised her that he had a disability and couldn’t use online banking. Ms. C stated that she then took the complainant’s card and went to her computer to get the complainant’s details and to find the relevant form for the transaction. Ms. C advised the hearing that this did take a few minutes as she had to go back to her computer, look up the complainant’s details and find the relevant form, which she then printed off and attached to a clipboard before bringing it to the complainant to fill in the relevant details. Ms. C advised the hearing that she sat beside the complainant and passed the clipboard to him to allow him to fill in the details, Ms. C stated that the complainant then advised her that he was unable to fill in the form himself due to his disability. Ms. C stated that the complainant told her at this point that he found her to be ‘unhelpful’. Ms C advised the hearing that prior to this she was not aware of the complainants disability, she stated that once the complainant told her he had a disability which prevented him from filling out the form she proceeded to fill out the form for the complainant so he wouldn’t have to do anything other than sign the form. Ms. C at the hearing denied that the clipboard fell to the floor or that she threw the clipboard at the complainant. She stated that she had sat beside the complainant to fill out the form and that she was not at a distance from him to throw or drop the clipboard. The complainant prior to the hearing had submitted that Ms. C threw the clipboard at him but at the hearing he clarified that what he meant was that she had pushed the clipboard at him and specifically at his left arm in which he has no power or movement and so was unable to catch the clipboard and stop it from falling.

The complainant at the hearing was very detailed in his account of the incident.   Ms. C did not provide as much detail in her version of events but then the complainant is only one of many customers Ms. C deals on a daily basis in her role as a bank official.   It is clear from the evidence adduced that the complainant sought to access a service and that he succeeded in accessing that service with the assistance of Ms. C.   The complainant entered the respondent’s premises with the intention of cancelling a direct debit from his account and it is clear from the evidence adduced that he succeeded in completing this transaction.   The issue of whether or not Ms. C pushed the clipboard at the complainant’s arm causing the clipboard to fall to the floor, is a matter of dispute between the parties.  

Witness for the respondent, Ms. C, advised the hearing that she had never met the complainant before that day and that she was unaware that the complainant had a disability until he advised her that he was unable to use online banking due to the fact that he had a disability.   The complainant advised the hearing that he was on the day in question wearing a plastic sling on his arm though no evidence was adduced to suggest that the complainant provided specific details of his disability to Ms. C.   The complainant in his evidence has given a detailed account of the clipboard being pushed towards his left arm and falling and I find that it is not inconceivable that Ms. C could or may have attempted to hand the clipboard to the complainant in his left hand but that he was unable to catch it with this hand or stop it from falling due to his disability.   The complainant at the hearing, when questioned about the clipboard stated, “I don’t know if she threw it at me or if it fell as my left hand is dead”.     He also added that “the level of her voice was what caused me my distress”.   Based on the evidence adduced by both parties I am satisfied on balance that the clipboard could or may have fallen in the manner described by the complainant and given that the complainant has no movement in his left arm he may not have been able to stop it from falling.   I am not, however satisfied, that such an incident amounts to evidence of discrimination against or harassment of the complainant on grounds of his disability.  

Witness for the respondent Ms. K. advised the hearing that she knew the complainant, as a customer of the bank and that she was aware from previous dealings with him, that he had a disability. Ms. K advised the hearing that she was unsure exactly what the complainant’s disability related to, but that she was aware that he did not like to, or was unable to queue.   The respondent advised the hearing that the complainant had suffered no less favourable treatment on grounds of his disability but had in fact been treated more favourably, as they were aware that he did not like to queue, and so assigned Ms. C to personally deal with the complainant as soon as he advised the teller that he was a person with a disability who was in need of assistance.  

From the evidence adduced by both parties, it is clear that the complainant was not prevented from carrying out his business in the bank on the day in question and that he was assisted by Ms. C in carrying out his transaction.   It is also clear from the evidence adduced that the complainant was not happy with the way in which he was dealt with by Ms. C.     The complainant in his evidence stated that Ms. C ‘walked too fast’ and ‘spoke too loudly’ and he advised the hearing that his first comment to Ms. C was to ask her to lower her voice as he considered that her voice was too loud. The complainant also indicated that he was unhappy with the length of time it took Ms. C to complete the transaction which had previously been completed in a much shorter time.     The complainant stated that he also told Ms. C that she hadn’t “a clue how to deal with a disabled person” after the clipboard had fallen to the floor. It is clear from the evidence that, in spite of the comments/ remarks made to her by the complainant, Ms. C continued to assist the complainant in completing the transaction which he sought to carry out.   I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant with the assistance of Ms. C carried out his transaction and availed of the respondent’s services as he had intended.

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.

Victimisation

Section 3(2)(j) of the Equal Status Acts 2000-2015 sets out the definition of victimisation as follows:

that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(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”).          

The complainant, in his complaint form to the Tribunal indicated that he was victimised.   The complainant when questioned at the hearing, did not however, adduce any evidence to substantiate the claim of victimisation. The complainant advised the hearing that he is still a customer of the respondent and that he doesn’t want his account with the respondent to be closed, he also stated that he wanted a guarantee from the respondent that there would be no reprisals from the respondent following his complaint.   The respondent advised the hearing that the complainant continues to avail of its services and that there is no question of his account being closed or of any reprisals.     I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant has not adduced any evidence of adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.

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.

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

the complainant was notdiscriminated against by the respondent on the victimisation ground contrary to section 3(2)(j) of the Equal Status Acts, 2000-2015, and

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.

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.