ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006433
Parties:
| Complainant | Respondent |
Parties | Ms. Marian Kane | Mr. Fergal Harrington |
Representatives | In Person | David Gaffney, Gaffney Solicitors |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00008654-001 | 03/11/2016 |
Date of Adjudication Hearing: 17/07/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant has outlined that during her seeking to join a Dating agency that she was refused reasonable accommodation an was discriminated against. The Respondent has denied the claim. |
Summary of Complainant’s Case:
The Complainant submitted that she had been denied reasonable accommodation in consideration of her blindness by the owner of a Dating Agency. She outlined that she had applied to join the Agency over the telephone on May 12, 2016, had submitted a €50 deposit only to have it returned shortly afterwards. She contended that she had experienced discrimination. The Complainant submitted her ES1 form on 14 June 2016. She received a response from Mr Harrington, the respondent dated 16 June, 2016, which denied the claim. The Complainant submitted her formal complaint to the WRC on 3 November ,2016. This was further amended by the complainant. The Complainant submitted a written statement to the WRC on 27 June 2017, which can be summarised as: The Complainant rang the Respondents Dating Agency on 12 May 2016,where she expressed an interest in joining the Agency .The Complainant outlined that the Respondent had been initially very engaging and pleasant , but this changed when she mentioned her blindness .She outlined that she had previously been refused membership of another Agency and hoped that the Respondent was not about to repeat this .She submitted that the Respondent advised her to pursue a case for Discrimination against the first Agency . The Complainant submitted that she had explained that she did not hold a credit card and agreed to send a postal order for €50 as a deposit. This was accepted by the Respondent and a provisional follow up appointment was made to meet with him in Cork in June. The Complainant rang the Respondent the next day, may 13, and confirmed that the postal order was in train and sought a receipt on arrival. The Complainant outlined that she had asked him how many people with disabilities or visually impaired people were on the books? She found that the respondent became aggressive in response to this question. The Complainant submitted that she offered to do a promotional advertisement for the company. The Respondent did not answer. The Complainant went on to say that she could travel with Guide Dog assistance. The Respondent confirmed his support for the Guide Dog Association. The Complainant described that her efforts to ascertain information on visually impaired people were met with positive regard by the respondent, who said he could prove this for her. The Complainant submitted that the Respondent then changed his approach and accused her of seeking to “opt out”. The Complainant stated that the Respondent said that she was “wasting his time”, which she denied. The Complainant followed up the call at 2.30 pm on May 16 from her mobile. She also wished to check on her deposit. She spoke with the Respondent. The Complainant submitted that the Respondent pressed her to confirm whether she was taking the June appointment in Cork? She asked whether he would be there to interview her himself? The Respondent became very angry and accused her of threatening his business. The Complainant submitted that she challenged him that “he didn’t want to take me on because of my eyesight “. The Respondent confirmed that he would return her deposit. The Complainant stated that she was not heard, was crying and she believed that she had been discriminated against.
She received carriage of the returned postal order on the following day. The Complainant outlined that she had no intention of harming the business built up by he and his wife, she merely wished to join the Agency. The Complainant submitted that the Respondent had informed her that he was not obliged to allow her to join as his Company was a Private Company. At the commencement of the hearing, the Complainant was canvassed for her views on the potential to anonymise/publicise the party’s names in the decision in her case. The Complainant, after much consideration, confirmed that she wanted the respondent named in person rather than his business name and she had no objection to her name being incorporated in the decision. EVIDENCE OF THE COMPLAINANT The Complainant gave her evidence in the company of her Personal Assistant. The Complainant outlined that on May 12, 2016 she rang the Respondent seeking to join his Dating Agency. He answered the phone himself and she disclosed that she had “an eye problem”. She gave him some background of an unhappy experience she had with another agency and that she hoped she wouldn’t have a repeat of the experience. She submitted that the Respondent told her to do something about it. She then went on to disclose that she was “totally blind” and felt that the respondents attitude changed. He told her that she would need to make a payment, but she didn’t have a credit card. She agreed to send a deposit to secure her place on the next step of membership application, the planned interview in Cork in June. The Complainant submitted that she rang again the next day , Friday , May 13 and inquired as to how many people with disabilities were on his books ?She noticed that his attitude changed .The Respondent told her that he had three people listening to the conversation .She was informed that everyone was accepted at the agency and there was no problem with disability .He confirmed that he could prove this .The Complainant offered to make a promotional advertisement for the Agency ,to which there was no answer . She recalled that the Respondent began to shout at her and remonstrate at her questions. The Complainant explained that she might have to defer her meeting in June as she was supposed to go to Hospital at the end of May and suggested a postponement until the end of July. She spoke with the Respondent again on the following Monday, where the Respondent told her that she was indecisive on dates and was wasting his time. The Complainant outlined that the Respondent refused to deal with her, as she was nothing but trouble and he confirmed that he was returning her deposit. The Complainant offered to travel with Guide Dog assistance, but felt that no matter what she said, the respondent was not prepared to accept her. She stated that she was sobbing at this point and she heard the Respondent caution her against ringing back. The Complainant explained that her interest in the number of visually impaired customers was for her own perusal. She contended that she was unwelcome from the moment that she mentioned her disability. She found the whole experience very difficult and upsetting and sought redress for the discrimination. During cross examination, the complainant confirmed that the conversation had gone well between the parties during the first phone call which concluded on the mutual; agreement to forward the postal order for €50. When asked, her intention surrounding her questioning on policies and number of customers with visual disability, she responded that she wished to find out about the company and what would be required of her in joining. The Complainant denied that the initial conversation on May 12 was “lovely” as it became aggressive once she disclosed her disability. She confirmed that she still sent on her deposit. The Complainant confirmed that three conversations transpired between the parties rather than the initially reported two. The Complainant denied that she had asked questions regarding persons in wheelchairs and re-affirmed that her questions were around persons with visual impairment, which she contended were normal questions to ask. She confirmed that she was scoping out the possibilities for being matched up “down the road”. She confirmed that the shouting followed the request for statistics. She submitted that the Respondent had not mentioned wheelchairs during the second call. The Respondent Solicitor asked the Complainant whether she had ever contacted the Agency before? The Complainant initially stated “No” and then confirmed that she had made contact two years previously. The Complainant denied that she deliberately pressed the Respondent to arrive at a situation where he returned her deposit. The Complainant advised the Respondents Solicitor that “he wasn’t there”. The Complainant confirmed that she believed that she had been discriminated against on Monday 16 th May where she was sobbing following being told that “she was trouble “and was refused a service. She denied that she was an abusive person. The Complainant denied that the Respondent had called her on that day and confirmed that she remembered ringing him. The Complainant explained some reservation that she didn’t have witnesses to corroborate her evidence but stated that her funder of personal services would not provide the cover for them to attend. In response to questions from the Adjudicator, The Complainant submitted that she sought reasonable accommodation in asking to join the Respondents agency as a blind person. She had been blind for the past 25 years and functioned with the support of Personal Assistants and Guide Dogs. She confirmed that she had communicated her desire to be matched up with someone. She had not received any documentation on terms and conditions or an application form in advance of her requesting to join on May 12. She confirmed the duration of the three phone calls with the respondent: 2 May 13 afternoon: 10 minutes 3 May 13 6 minutes The Complainant submitted that she would have liked to have got the opportunity to join the agency and was disappointed when her pleadings were not heard. The Complainant confirmed that she had not appealed to the company following her unsuccessful phone call on May 16. The Complainant summed up her case by submitting that it was easy for the Respondent to prepare a Collective Arrangement in response to her claim of discrimination. She was adamant that she had been referred to as “trouble “on Monday, may 16 and she was sobbing on the phone. She had been looking forward to joining the Agency but had been totally discriminated against,
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Summary of Respondent’s Case:
The respondent denied the claim of Discrimination. The Respondent responded to the Complainants ES 1 form on June 16, 2016 which can be summarised as: The Respondent was prepared to secure full recordings of the conversations which transpired with the complainant over the three phone calls on May 12, 16 and 17, 2016. The Respondent outlined his understanding of the first of these calls, where the complainant had given positive feedback during the call before mentioning her negative experience at a comparator Agency where she remarked that she had been declined in person and wheelchairs were not permitted either .He indicated that the complainant stated that she ought to have advanced proceedings at that time .The Respondent stated that he did not dwell on that and went on to present the Agency in a positive light where “ our doors are open to people from all walks of life with or without disabilities as long as they are open to the policies set out “The Respondent held an appointment for the complainant on foot of a €50 deposit . On receipt of the postal order on May 16, the Respondent called the complainant to confirm receipt. The Complainant was undecided on her availability for the June appointment and the July dates were not to hand by the Respondent at that time .A conversation followed over the course of 20 minutes as to why the complainant now felt that “ the Agency was not as sensitive to her needs and they should be “ .The Complainant took offence and was offered her deposit back until “ such time as you were ready avail of the service “ The Complainant confirmed June 2 appointment . On the next day, may 17, the Complainant called again stating that she had been upset by the previous day’s exchange and accused the Respondent of not being as open to people with disabilities as they had previously stated. The Complainant sought: 2 How many members are completely blind as opposed to being visually impaired. The Complainant stated that she had been in contact with the Equality Board that morning and she intended to take this to “the very end “and publicise the case. The Respondent stated: “I said that your assertion was defamatory and false, the difficulty we have is not with your disability, it is that you are being threatening and twisting everything we say. for that reason alone, we are returning your deposit.” The Respondent has been represented by two firms of Solicitors during this process. On May 17, 2017, the First firm entered a submission which incorporated two testimonials from previous customers. The document referred to a professional linkage between the Respondents Agency and the Irish Guide Dogs. It referred to a blog section of the web site where the Agency, run by the Respondent had invested in an accessibility tool to permit increased font size. There was also provision for alt tags for all images so that audio readers can explain the site. The Respondent submitted that the Complainant had made enquiries regarding the possibility of her daughter becoming a member in 2012.The Company offered a membership to her daughter, who was blind. The Respondent contended that the Complainant had not been denied membership based on her disability but in circumstances where she exhibited clear signs that she did not qualify under the membership policy due to her irrational, unreasonable and threatening behaviour. The Respondent contended that the Complainant had not satisfied the burden of proof in the case as she had not demonstrated that she had been treated less favourably than someone else is, was or would have been. The Complainant was furnished with an appointment in Cork in the aftermath of her disclosure of blindness. EVIDENCE OF THE RESPONDENT The Respondent explained that he was the Owner of the Dating Agency mentioned in the case. He outlined the process surrounding joining the Agency, which had been in operation for 7 years. He set out the payment of Deposit procedure by a Pay Pal derivative. This is followed up by a 1 hour long meeting in the country locations of Cork, Limerick and Galway, when the applicant is based outside Dublin. He stated that he had found this complaint to be very difficult for him and his business as he understood that he had endeavoured to welcome the complainant to the membership. The Agency guarantees 5 Introductions over an indeterminate period and the Agency had accentuated its accessibility for visually impaired prospective customers using an “Alt TAG” He had personal experience of walking Guide Dogs as well as an ongoing Liaison with the Irish Guide Dogs and he had found the allegation levied by the complainant to be hurtful. He had not maintained a log of calls to the business but recalled the Complainants first phone call on Thursday 12 May 2016, which lasted approximately 20 -22 minutes. He rebutted the complainants evidence on her recall that he advised her that she ought to have sued the first Dating Agency company. He stated that he had a lovely conversation with the complainant which culminated in an agreed appointment for the complainant at an agreed venue at 12 noon on June 2. She agreed to forward a €50 postal order to clinch the booking. There was no awkwardness between them. There was no contact between the parties on the Friday, 13. On Monday ,16, May, he confirmed receipt of the postal order during a phone conversation which lasted 20-23 minutes. He was informed that the complainant anticipated a Medical procedure at the end of May and may not now be available on June 2. He recalled that the format of the conversation was based on yes/no answers. The Complainant began to request statistics on disabled customers on the call and he assumed that he was being “set up” and became aggrieved. He agreed to share the information once her application was complete. He recalled that when he was unable to issue a potential July meeting date, he told the complainant that he could return her deposit now or she could contact the Agency later to which she replied that she had been discriminate against because she was blind. The Complainant persevered in seeking statistics of the “ fully blind “ customers The Respondent knew that the conversation was not going well and he believed that he was being backed into a corner where the complainant needed him to be seen to refuse the appointment .The Complainant then confirmed her intention to attend the June 2 meeting .He submitted that he had received the deposit .He stated that he had not heard tears on any of the three conversations he had with the complainant . He described a “flip in the complainant’s personality” during the third conversation the next day. She became litigious and confirmed that she had sought external advice. The Respondent read out an email compiled On May 17 which served as his contemporaneous record of the calls. He outlined that the complainant was very aggressive towards him in her pursuance of statistics. During cross examination, The Respondent re-affirmed that June 2 was the eventual agreed date for them to meet. The Complainant disputed this evidence. The Respondent stated that this was the reason the deposit was maintained as it was linked to an agreed date. In response to questions from the complainant, the respondent confirmed that he had not enclosed an explanatory letter to the returned postal order. The Respondent confirmed that the complainants behaviour had altered radically between May 16 and 17. The Complainant denied calling on Monday 16, yet the Respondent rebutted this. In answer to the Adjudicators question, the Respondent stated that he had no doubt about the final conversation regarding the decision taken to return the postal order. He was 4 feet away from the others in the office Evidence of Ms RM, Office Administrator: Ms RM is the Respondents wife. She was not present for the first call with the complainant but she did receive feedback from the Respondent that he was upbeat surrounding a call from a potential customer, who was blind and had been rejected by their competition. She recalled being present in the office during the second conversation with the complainant. She recalled that he was uneasy on the phone regarding a July date. She observed that the Respondent could not seem to complete a sentence as the caller was interrupting him. She understood that June 2nd had been agreed. The Respondent was rattled when he finished on the call, saying that the complainant was extremely unreasonable and accused him of discrimination. Ms RM recalled that the complainant had called back the next day on 17 May, and from the beginning began to threaten the Respondent, by saying that she wasn’t wanted because of her blindness. She pursued the Respondent on statistics of blind people and their relative success at the Agency? Ms RM recalled the Respondent seeking to adopt a measured tone but was met by the Complainants threats by shouting that “anyone who knows me knows that I will take this to the very end”. She noted that the Respondent was upset by these remarks and sought to sought to explain that he ran an inclusive business. She heard him confirm that her deposit was to be refunded not because she was blind but because she was threatening and aggressive. She noted that the Respondent was very upset at the prospect of the complainant seeking to ruin their business and she advised him to make notes. He shared with her that he wondered whether the complainant had engineered the entire situation? He said that the complainant had screamed at him and confirmed that she had heard those screams. She did not hear the complainant pleading or sobbing. During Cross examination, Ms RM described the Lay Out of the open plan 4 desk Office which permitted her to hear some of the content of the latter two calls. She confirmed that she was a Director of the company. She confirmed that she had not heard noise during the Monday call but had heard the Complainant shouting during the Tuesday call. Evidence of Ms Client Account Manager 1 Ms PA 1 worked as a client account manager for the past 4 years and recalled receiving carriage of the postal order from the complainant. She was aware of the Respondent earlier conversation with the complainant which referred to an earlier period of dissatisfaction with another agency and “we were looking forward to making her experience with the Respondent s Agency a very positive one. She was aware that the complainant had arranged to meet the Respondent on an agree date in June in Cork Ms PA1 recalled hearing the call the next day, where she understood that the Respondent was being pushed to give out numbers on client’s disabilities. She observed that the Respondent was visibly upset and shaken after the call. She gave evidence of steps normally taken by the office to accommodate visual impairment. This might involve calling venue to check on bathrooms, ramps and emergency issues. During cross examination, Ms CAM 1 confirmed the reason that she hadn’t heard of her before was because she dealt with existing clients and everyone at the office is involved in different jobs. She confirmed that the Respondent had been rattled after the Monday call, where he was trying to explain. The Respondent summed up the response in the case by re-affirming that three conversations had anchored the events of the case and not two as advanced by the complainant in her statement .The action surrounding the return of the postal order was not related to the complainants disability and instead to her aggressive outbursts .The Respondents representative outlined that the complainant had deliberately mislead the hearing with regard to her account of seeking membership in the interest of notoriety and public attention .He submitted that the last thing the complainant wanted was to become a member
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Findings and Conclusions:
I have carefully considered both presentations in this case. The Complainant was represented in person and accompanied by a Personal Assistant who remained by her side during the hearing and during several breaks that ensued. The Respondent was represented by two firms of Solicitors and the current Representative came on record shortly in advance of the hearing . The Complaint was lodged by the Complainant where the Respondents name was cited as Fergus Harrington , subsequently amended to Fergal Harrington .It was accepted by the parties that Mr Harrington ran a Dating Agency . I concluded the hearing on 17 July, 2017, without making a request of either party for supplemental information. The Complainant made three further written statements and the Respondent made two. I have not taken these documents into account in arriving at my conclusions as these submissions were not canvassed by me, nor do I judge them relevant to the complaint at the heart of this case. In short, they have not aided me in my decision-making process. It is of note that the hearing in this case followed one period of postponement where the complainant was scheduled to present another case before the WRC. It is of further note that the presiding complaint in this case was lodged on 3 November 2016 and was required to be amended on two occasions to address the inclusion of: 1 The name of the Respondent 2 The Address of the Respondent 3 Date of Alleged Discrimination The Complainant had not made a request for additional information in accordance with Section 6 of the ES1. She submitted a copy of an application for assistance from the Irish Human Rights and Equality Commission (IHREC) I consider this document to be covered by Legal Privilege. The Complainant was not represented by the IHREC on the day of hearing. It is also important for me to incorporate the Complainants evidence where she spoke of not having witnesses available to her due to restrictions placed on her by her funder of personal services. I informed her that all witnesses were welcome at the hearing. The Complainant has made a complaint that she was denied reasonable accommodation by the Respondent on firstly May 12, 2016, this was subsequently amended to May 17 by the complainant during the hearing. She complied with all the pre-requisite requirements set down under Section 21 of the Act. I am satisfied that the complainant is in possession of the disability of blindness in accordance with Section 2 of the Act. I endeavoured to make her presentation to the hearing as comfortable as possible by allowing her breaks and access to a vacant room adjacent to the hearing room for refreshments. The Complainant submitted that she was distinctly uncomfortable with the process surrounding cross examination and I sought to remedy this by an explanation of the process as well as facilitating breaks. Section 5 of the Act outlines: Section 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 provide can be availed of only by a section of the public. “Reasonable Accommodation “is referred to in the Judy Walsh’s book entitled Equal Status Act , “As an obligation to adjust rules, standards, policies or physical environments to meet the specific needs of people covered by a protected ground. It involves removing barriers and often treating people differently, to secure equality of opportunity. Reasonable accommodation obliges service providers to take a protected characteristic into account when providing access to education, housing and so on “ Section 4 of the Equal Status Acts 2000-2015 provides that Discrimination on ground of disability. 4
(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. (3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. (4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination. ……. (6) In this section— “provider of a service” means— (a) the person disposing of goods in respect of which Section 5(1)) applies, (b) the person responsible for providing a service in respect of which Section 5(1) applies, ……. (d) the person responsible for the provision of accommodation or any related services or amenities in respect of which Section 6((1)(c) applies, …… and “service” shall be construed accordingly; “providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly. I am satisfied that the Respondent operates a Dating Agency and this provision is contained in Section 4 (6)(b) of the Legislation. I found a marked number of inconsistencies in the presentation of material in this case. I found that the Respondent was not aided by a phone log of calls or the earlier recordings of the three calls referred to in his ES1 response. The Complainant was not aided by the absence of proof of what date she received the returned postal order. I found some discrepancy in the sequencing of the three calls in the case. I accept that there were three phone calls between the parties. May 12, 16 and 17. I accept that the complainant is mistaken regarding her reference to a call on May 13. I found that the Respondent was inconsistent on the composition of all three calls ,where lines blurred somewhat between the alleged content of call 2 and 3 in terms of the timing of the reference to the request for Statistical data .However, I must accept on the evidence before me that that such a conversation occurred at least on one occasion .I found it surprising that the complainant had not advanced that request for statistical data within the ES1 form given the close proximity in time of 14 June ES1 submission and the date of the alleged discrimination of May 17 . I also found there were occasions during the hearing where the complainant appeared overwhelmed at having to present her case and advance questions of the witnesses. I afforded her a reasonable time with breaks to achieve this goal. However, I was struck by the many admonishments directed at the Respondent and his witnesses via personal criticisms and I endeavoured to minimise these exchanges as they served as an unnecessary distraction. I have considered the evidence given by the complainant and I accept that the first telephone call passed without incident between the parties. The Complainant confirmed that she was not required to complete an application form and she had not seen the Membership Policy, which I noted to be undated. I had some reservations that this document may not have been in existence during the events of this case . I accept that the Complainant and the Respondent engaged positively on the topic of membership on May 12 .I found that the parties agreed to have a follow up meeting on June 2 .By that stage , the complainant had shared details of her disability with the Respondent and plans were made to move forward towards active membership .I found the approach adopted by the Respondent , on the accommodation of the postal order in part payment and the scheduled follow up appointment to undertake the profiling as reasonable . I have considered both parties evidence of what surrounded the central call in the case , that of May 16 .The parties differed on their recollection of the scheduling timing and longevity of the call and they also differed on the content .I listened carefully to both parties recollection of the second call and I found that the complainant genuinely believed that this call co incited with May 13 .However, based on the corroborated evidence of the Respondent in addition to the contemporaneous email dated May 17 , 2016, I find that the sequence of the calls to be properly structured as 1, May 12. 2. May 16 3. May 17 A Service Provider has a duty to provide special treatment or facilities, only if without such special treatment or facilities, it would be impossible or unduly difficult for the disabled person to avail of the service. In the instant case, the complainant asked to join the Agency and the formalities associated with joining were well underway by May 16. I found some shortfalls in credibility in the complainant’s evidence on her recollection of the conversation of May 16. I prefer the version expounded by the Respondent as I was struck by his description of the rising sense of danger and apprehension following the inquiries on statistical data on customers with disabilities submitted by the complainant. On probing, the complainant confirmed that she had not asked to be matched with a person with a disability but rather this information was required by her for “down the road “purposes but she had not shared this purpose in real time with the Respondent. I found this evidence to be implausible. I found the lack of follow though by the complainant on the ES1 to be unusual. In Dublin City Council V Deans in the Circuit Court (unreported),15 April 2008, Hunt Found “that the housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities …All that is commanded to do by the Equality Legislation is to devise a “reasonable “solution to a problem, not to achieve perfection and not to give in to every demand made of it …” Looking at the specific facts of the case, I find that the Respondent adopted a reasonable approach to the complainant’s application for membership. I note that he did not refer to an exchange surrounding the Membership Policy directly with the complainant and the case was not aided by the solo voyage of the returned postal order without an attached explanatory note. A Prime facie case of direct discrimination establishes three things 1 The Complainant is covered by the relevant discriminatory ground 2 There was specific treatment by the respondent 3 The treatment was less favourable that the treatment that was or would have been afforded to another person in similar conditions. The burden of proof set out in Section 38A of the Act, is on the balance of probabilities. When those elements are established the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. The onus is then on the respondent to disprove this inference. I am satisfied that the complainant was blind and covered by a ground of Disability. I accept that the Respondent curtailed the complainant’s application for membership on May 17, 2016 by stating his intention to return the postal order for €50. However, I have not established that the complainant was treated less favourably than the treatment that was or would have been afforded to another person in similar conditions. As stated previously, I found certain inconsistencies in the complainant’s evidence outside the simple sequencing of the calls. She identified that the less favourable treatment occurred for the first time on the first call. I find that this is disproved by the overriding transaction of her submission of the position order. However, I was struck by the context and background she attributed to her request for statistical data for her personal use, which was hotly contested by the respondent. I found her rationale implausible in this regard. I have reflected on the Respondents evidence that he felt that he was being lured into a trap by the complainant shortly after the commencement of the second call on Monday, May 16. I found him to be a very focussed witness, very much in touch with the concept of equal opportunities and very proud of his Trading position which he attributed to hard work. I found him to be discerning and open in his approach to the hearing. However, I also noted that the experience of being accused of a Discriminatory practice had been hard for him and he was keen that his account of events be considered and heard. There is a clear dispute on what took place in this case. I have endeavoured to examine all the surrounding events. I did give some consideration to the testaments submitted by the Respondent on satisfied customers, one of whom was visually impaired. However, I did not consider they had probative value when they did not attend as witnesses. The Complainant has submitted that she was denied membership because she was blind and was consequently denied reasonable accommodation. The Respondent has submitted that he was prepared to accept the complainant into membership and had activated the usual procedure, up to and including a scheduled follow up appointment. A Commercial transaction had sprung into being. However, I have found that this was undermined by the successive approach adopted by the complainant ,where she sought to distance herself from the transaction on one hand and on the other hand initiated an elaborate fact finding exercise which she argued went to the root of reasonable accommodation of her disability .This was an inconsistent approach and strayed outside the realm of reasonable accommodation , where the Service Provider is obliged to consider the needs of the disabled person ,if without such special treatment it would be impossible or unduly difficult for the person to avail herself of the service . I found the Respondent to be inclusive in his approach to the complainant. I have found that the Complainant did change tack in her approach to the Respondent from the second call onwards. I accept the cogent evidence of the Respondent and his witnesses that he was truly shaken following this call and the subsequent call. I accept that the complainant shouted. I have found that the curtailment of the membership process by the Respondent was following a difficult exchange with the complainant which was couched in threats of litigation and accusatory attacks, which became very personal. I have found that the Respondent curtailed the membership process for the complainant considering her hostile approach which was not attributed to her disability. I found his approach proportionate in the face of the hostile and inconsistent approach adopted by the complainant. I found that his actions were directed at protecting his business and he was genuinely afraid of the complaints levied at him by the complainant. In making this finding, I am guided by the Respondents demeanour at the hearing. In making this finding, I have taken account of all the evidence before me and to the accounts submitted that the business is a highly-charged business with raised expectations from customers. I found that the exchange between the parties on May 16 and 17, 2016 veered outside that norm and was truly extraordinary. I have not, however, found it discriminatory or a denial of reasonable accommodation.
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Decision:Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordancewith 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 not established a prima facie case of Discrimination in contravention of Section 4 of the Act on reasonable accommodation. The treatment of the complainant was not less favourable than the treatment that was or would have been given to another person (a person without a disability) in similar circumstances. I find for the Respondent.
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Dated: 17/11/17
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Reasonable Accomodation , Disability . |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006433
Parties:
| Complainant | Respondent |
Parties |
Representatives | In Person | David Gaffney, Gaffney Solicitors |
Complaint:
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Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 |
CA-00008654-001 | 03/11/2016 |
Date of Adjudication Hearing: 17/07/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant has outlined that during her seeking to join a Dating agency that she was refused reasonable accommodation an was discriminated against. The Respondent has denied the claim. |
Summary of Complainant’s Case:
The Complainant submitted that she had been denied reasonable accommodation in consideration of her blindness by the owner of a Dating Agency. She outlined that she had applied to join the Agency over the telephone on May 12, 2016, had submitted a €50 deposit only to have it returned shortly afterwards. She contended that she had experienced discrimination. The Complainant submitted her ES1 form on 14 June 2016. She received a response from Mr Harrington, the respondent dated 16 June, 2016, which denied the claim. The Complainant submitted her formal complaint to the WRC on 3 November ,2016. This was further amended by the complainant. The Complainant submitted a written statement to the WRC on 27 June 2017, which can be summarised as: The Complainant rang the Respondents Dating Agency on 12 May 2016,where she expressed an interest in joining the Agency .The Complainant outlined that the Respondent had been initially very engaging and pleasant , but this changed when she mentioned her blindness .She outlined that she had previously been refused membership of another Agency and hoped that the Respondent was not about to repeat this .She submitted that the Respondent advised her to pursue a case for Discrimination against the first Agency . The Complainant submitted that she had explained that she did not hold a credit card and agreed to send a postal order for €50 as a deposit. This was accepted by the Respondent and a provisional follow up appointment was made to meet with him in Cork in June. The Complainant rang the Respondent the next day, may 13, and confirmed that the postal order was in train and sought a receipt on arrival. The Complainant outlined that she had asked him how many people with disabilities or visually impaired people were on the books? She found that the respondent became aggressive in response to this question. The Complainant submitted that she offered to do a promotional advertisement for the company. The Respondent did not answer. The Complainant went on to say that she could travel with Guide Dog assistance. The Respondent confirmed his support for the Guide Dog Association. The Complainant described that her efforts to ascertain information on visually impaired people were met with positive regard by the respondent, who said he could prove this for her. The Complainant submitted that the Respondent then changed his approach and accused her of seeking to “opt out”. The Complainant stated that the Respondent said that she was “wasting his time”, which she denied. The Complainant followed up the call at 2.30 pm on May 16 from her mobile. She also wished to check on her deposit. She spoke with the Respondent. The Complainant submitted that the Respondent pressed her to confirm whether she was taking the June appointment in Cork? She asked whether he would be there to interview her himself? The Respondent became very angry and accused her of threatening his business. The Complainant submitted that she challenged him that “he didn’t want to take me on because of my eyesight “. The Respondent confirmed that he would return her deposit. The Complainant stated that she was not heard, was crying and she believed that she had been discriminated against.
She received carriage of the returned postal order on the following day. The Complainant outlined that she had no intention of harming the business built up by he and his wife, she merely wished to join the Agency. The Complainant submitted that the Respondent had informed her that he was not obliged to allow her to join as his Company was a Private Company. At the commencement of the hearing, the Complainant was canvassed for her views on the potential to anonymise/publicise the party’s names in the decision in her case. The Complainant, after much consideration, confirmed that she wanted the respondent named in person rather than his business name and she had no objection to her name being incorporated in the decision. EVIDENCE OF THE COMPLAINANT The Complainant gave her evidence in the company of her Personal Assistant. The Complainant outlined that on May 12, 2016 she rang the Respondent seeking to join his Dating Agency. He answered the phone himself and she disclosed that she had “an eye problem”. She gave him some background of an unhappy experience she had with another agency and that she hoped she wouldn’t have a repeat of the experience. She submitted that the Respondent told her to do something about it. She then went on to disclose that she was “totally blind” and felt that the respondents attitude changed. He told her that she would need to make a payment, but she didn’t have a credit card. She agreed to send a deposit to secure her place on the next step of membership application, the planned interview in Cork in June. The Complainant submitted that she rang again the next day , Friday , May 13 and inquired as to how many people with disabilities were on his books ?She noticed that his attitude changed .The Respondent told her that he had three people listening to the conversation .She was informed that everyone was accepted at the agency and there was no problem with disability .He confirmed that he could prove this .The Complainant offered to make a promotional advertisement for the Agency ,to which there was no answer . She recalled that the Respondent began to shout at her and remonstrate at her questions. The Complainant explained that she might have to defer her meeting in June as she was supposed to go to Hospital at the end of May and suggested a postponement until the end of July. She spoke with the Respondent again on the following Monday, where the Respondent told her that she was indecisive on dates and was wasting his time. The Complainant outlined that the Respondent refused to deal with her, as she was nothing but trouble and he confirmed that he was returning her deposit. The Complainant offered to travel with Guide Dog assistance, but felt that no matter what she said, the respondent was not prepared to accept her. She stated that she was sobbing at this point and she heard the Respondent caution her against ringing back. The Complainant explained that her interest in the number of visually impaired customers was for her own perusal. She contended that she was unwelcome from the moment that she mentioned her disability. She found the whole experience very difficult and upsetting and sought redress for the discrimination. During cross examination, the complainant confirmed that the conversation had gone well between the parties during the first phone call which concluded on the mutual; agreement to forward the postal order for €50. When asked, her intention surrounding her questioning on policies and number of customers with visual disability, she responded that she wished to find out about the company and what would be required of her in joining. The Complainant denied that the initial conversation on May 12 was “lovely” as it became aggressive once she disclosed her disability. She confirmed that she still sent on her deposit. The Complainant confirmed that three conversations transpired between the parties rather than the initially reported two. The Complainant denied that she had asked questions regarding persons in wheelchairs and re-affirmed that her questions were around persons with visual impairment, which she contended were normal questions to ask. She confirmed that she was scoping out the possibilities for being matched up “down the road”. She confirmed that the shouting followed the request for statistics. She submitted that the Respondent had not mentioned wheelchairs during the second call. The Respondent Solicitor asked the Complainant whether she had ever contacted the Agency before? The Complainant initially stated “No” and then confirmed that she had made contact two years previously. The Complainant denied that she deliberately pressed the Respondent to arrive at a situation where he returned her deposit. The Complainant advised the Respondents Solicitor that “he wasn’t there”. The Complainant confirmed that she believed that she had been discriminated against on Monday 16 th May where she was sobbing following being told that “she was trouble “and was refused a service. She denied that she was an abusive person. The Complainant denied that the Respondent had called her on that day and confirmed that she remembered ringing him. The Complainant explained some reservation that she didn’t have witnesses to corroborate her evidence but stated that her funder of personal services would not provide the cover for them to attend. In response to questions from the Adjudicator, The Complainant submitted that she sought reasonable accommodation in asking to join the Respondents agency as a blind person. She had been blind for the past 25 years and functioned with the support of Personal Assistants and Guide Dogs. She confirmed that she had communicated her desire to be matched up with someone. She had not received any documentation on terms and conditions or an application form in advance of her requesting to join on May 12. She confirmed the duration of the three phone calls with the respondent: 2 May 13 afternoon: 10 minutes 3 May 13 6 minutes The Complainant submitted that she would have liked to have got the opportunity to join the agency and was disappointed when her pleadings were not heard. The Complainant confirmed that she had not appealed to the company following her unsuccessful phone call on May 16. The Complainant summed up her case by submitting that it was easy for the Respondent to prepare a Collective Arrangement in response to her claim of discrimination. She was adamant that she had been referred to as “trouble “on Monday, may 16 and she was sobbing on the phone. She had been looking forward to joining the Agency but had been totally discriminated against,
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Summary of Respondent’s Case:
The respondent denied the claim of Discrimination. The Respondent responded to the Complainants ES 1 form on June 16, 2016 which can be summarised as: The Respondent was prepared to secure full recordings of the conversations which transpired with the complainant over the three phone calls on May 12, 16 and 17, 2016. The Respondent outlined his understanding of the first of these calls, where the complainant had given positive feedback during the call before mentioning her negative experience at a comparator Agency where she remarked that she had been declined in person and wheelchairs were not permitted either .He indicated that the complainant stated that she ought to have advanced proceedings at that time .The Respondent stated that he did not dwell on that and went on to present the Agency in a positive light where “ our doors are open to people from all walks of life with or without disabilities as long as they are open to the policies set out “The Respondent held an appointment for the complainant on foot of a €50 deposit . On receipt of the postal order on May 16, the Respondent called the complainant to confirm receipt. The Complainant was undecided on her availability for the June appointment and the July dates were not to hand by the Respondent at that time .A conversation followed over the course of 20 minutes as to why the complainant now felt that “ the Agency was not as sensitive to her needs and they should be “ .The Complainant took offence and was offered her deposit back until “ such time as you were ready avail of the service “ The Complainant confirmed June 2 appointment . On the next day, may 17, the Complainant called again stating that she had been upset by the previous day’s exchange and accused the Respondent of not being as open to people with disabilities as they had previously stated. The Complainant sought: 2 How many members are completely blind as opposed to being visually impaired. The Complainant stated that she had been in contact with the Equality Board that morning and she intended to take this to “the very end “and publicise the case. The Respondent stated: “I said that your assertion was defamatory and false, the difficulty we have is not with your disability, it is that you are being threatening and twisting everything we say. for that reason alone, we are returning your deposit.” The Respondent has been represented by two firms of Solicitors during this process. On May 17, 2017, the First firm entered a submission which incorporated two testimonials from previous customers. The document referred to a professional linkage between the Respondents Agency and the Irish Guide Dogs. It referred to a blog section of the web site where the Agency, run by the Respondent had invested in an accessibility tool to permit increased font size. There was also provision for alt tags for all images so that audio readers can explain the site. The Respondent submitted that the Complainant had made enquiries regarding the possibility of her daughter becoming a member in 2012.The Company offered a membership to her daughter, who was blind. The Respondent contended that the Complainant had not been denied membership based on her disability but in circumstances where she exhibited clear signs that she did not qualify under the membership policy due to her irrational, unreasonable and threatening behaviour. The Respondent contended that the Complainant had not satisfied the burden of proof in the case as she had not demonstrated that she had been treated less favourably than someone else is, was or would have been. The Complainant was furnished with an appointment in Cork in the aftermath of her disclosure of blindness. EVIDENCE OF THE RESPONDENT The Respondent explained that he was the Owner of the Dating Agency mentioned in the case. He outlined the process surrounding joining the Agency, which had been in operation for 7 years. He set out the payment of Deposit procedure by a Pay Pal derivative. This is followed up by a 1 hour long meeting in the country locations of Cork, Limerick and Galway, when the applicant is based outside Dublin. He stated that he had found this complaint to be very difficult for him and his business as he understood that he had endeavoured to welcome the complainant to the membership. The Agency guarantees 5 Introductions over an indeterminate period and the Agency had accentuated its accessibility for visually impaired prospective customers using an “Alt TAG” He had personal experience of walking Guide Dogs as well as an ongoing Liaison with the Irish Guide Dogs and he had found the allegation levied by the complainant to be hurtful. He had not maintained a log of calls to the business but recalled the Complainants first phone call on Thursday 12 May 2016, which lasted approximately 20 -22 minutes. He rebutted the complainants evidence on her recall that he advised her that she ought to have sued the first Dating Agency company. He stated that he had a lovely conversation with the complainant which culminated in an agreed appointment for the complainant at an agreed venue at 12 noon on June 2. She agreed to forward a €50 postal order to clinch the booking. There was no awkwardness between them. There was no contact between the parties on the Friday, 13. On Monday ,16, May, he confirmed receipt of the postal order during a phone conversation which lasted 20-23 minutes. He was informed that the complainant anticipated a Medical procedure at the end of May and may not now be available on June 2. He recalled that the format of the conversation was based on yes/no answers. The Complainant began to request statistics on disabled customers on the call and he assumed that he was being “set up” and became aggrieved. He agreed to share the information once her application was complete. He recalled that when he was unable to issue a potential July meeting date, he told the complainant that he could return her deposit now or she could contact the Agency later to which she replied that she had been discriminate against because she was blind. The Complainant persevered in seeking statistics of the “ fully blind “ customers The Respondent knew that the conversation was not going well and he believed that he was being backed into a corner where the complainant needed him to be seen to refuse the appointment .The Complainant then confirmed her intention to attend the June 2 meeting .He submitted that he had received the deposit .He stated that he had not heard tears on any of the three conversations he had with the complainant . He described a “flip in the complainant’s personality” during the third conversation the next day. She became litigious and confirmed that she had sought external advice. The Respondent read out an email compiled On May 17 which served as his contemporaneous record of the calls. He outlined that the complainant was very aggressive towards him in her pursuance of statistics. During cross examination, The Respondent re-affirmed that June 2 was the eventual agreed date for them to meet. The Complainant disputed this evidence. The Respondent stated that this was the reason the deposit was maintained as it was linked to an agreed date. In response to questions from the complainant, the respondent confirmed that he had not enclosed an explanatory letter to the returned postal order. The Respondent confirmed that the complainants behaviour had altered radically between May 16 and 17. The Complainant denied calling on Monday 16, yet the Respondent rebutted this. In answer to the Adjudicators question, the Respondent stated that he had no doubt about the final conversation regarding the decision taken to return the postal order. He was 4 feet away from the others in the office Evidence of Ms RM, Office Administrator: Ms RM is the Respondents wife. She was not present for the first call with the complainant but she did receive feedback from the Respondent that he was upbeat surrounding a call from a potential customer, who was blind and had been rejected by their competition. She recalled being present in the office during the second conversation with the complainant. She recalled that he was uneasy on the phone regarding a July date. She observed that the Respondent could not seem to complete a sentence as the caller was interrupting him. She understood that June 2nd had been agreed. The Respondent was rattled when he finished on the call, saying that the complainant was extremely unreasonable and accused him of discrimination. Ms RM recalled that the complainant had called back the next day on 17 May, and from the beginning began to threaten the Respondent, by saying that she wasn’t wanted because of her blindness. She pursued the Respondent on statistics of blind people and their relative success at the Agency? Ms RM recalled the Respondent seeking to adopt a measured tone but was met by the Complainants threats by shouting that “anyone who knows me knows that I will take this to the very end”. She noted that the Respondent was upset by these remarks and sought to sought to explain that he ran an inclusive business. She heard him confirm that her deposit was to be refunded not because she was blind but because she was threatening and aggressive. She noted that the Respondent was very upset at the prospect of the complainant seeking to ruin their business and she advised him to make notes. He shared with her that he wondered whether the complainant had engineered the entire situation? He said that the complainant had screamed at him and confirmed that she had heard those screams. She did not hear the complainant pleading or sobbing. During Cross examination, Ms RM described the Lay Out of the open plan 4 desk Office which permitted her to hear some of the content of the latter two calls. She confirmed that she was a Director of the company. She confirmed that she had not heard noise during the Monday call but had heard the Complainant shouting during the Tuesday call. Evidence of Ms Client Account Manager 1 Ms PA 1 worked as a client account manager for the past 4 years and recalled receiving carriage of the postal order from the complainant. She was aware of the Respondent earlier conversation with the complainant which referred to an earlier period of dissatisfaction with another agency and “we were looking forward to making her experience with the Respondent s Agency a very positive one. She was aware that the complainant had arranged to meet the Respondent on an agree date in June in Cork Ms PA1 recalled hearing the call the next day, where she understood that the Respondent was being pushed to give out numbers on client’s disabilities. She observed that the Respondent was visibly upset and shaken after the call. She gave evidence of steps normally taken by the office to accommodate visual impairment. This might involve calling venue to check on bathrooms, ramps and emergency issues. During cross examination, Ms CAM 1 confirmed the reason that she hadn’t heard of her before was because she dealt with existing clients and everyone at the office is involved in different jobs. She confirmed that the Respondent had been rattled after the Monday call, where he was trying to explain. The Respondent summed up the response in the case by re-affirming that three conversations had anchored the events of the case and not two as advanced by the complainant in her statement .The action surrounding the return of the postal order was not related to the complainants disability and instead to her aggressive outbursts .The Respondents representative outlined that the complainant had deliberately mislead the hearing with regard to her account of seeking membership in the interest of notoriety and public attention .He submitted that the last thing the complainant wanted was to become a member
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Findings and Conclusions:
I have carefully considered both presentations in this case. The Complainant was represented in person and accompanied by a Personal Assistant who remained by her side during the hearing and during several breaks that ensued. The Respondent was represented by two firms of Solicitors and the current Representative came on record shortly in advance of the hearing . The Complaint was lodged by the Complainant where the Respondents name was cited as Fergus Harrington , subsequently amended to Fergal Harrington .It was accepted by the parties that Mr Harrington ran a Dating Agency . I concluded the hearing on 17 July, 2017, without making a request of either party for supplemental information. The Complainant made three further written statements and the Respondent made two. I have not taken these documents into account in arriving at my conclusions as these submissions were not canvassed by me, nor do I judge them relevant to the complaint at the heart of this case. In short, they have not aided me in my decision-making process. It is of note that the hearing in this case followed one period of postponement where the complainant was scheduled to present another case before the WRC. It is of further note that the presiding complaint in this case was lodged on 3 November 2016 and was required to be amended on two occasions to address the inclusion of: 1 The name of the Respondent 2 The Address of the Respondent 3 Date of Alleged Discrimination The Complainant had not made a request for additional information in accordance with Section 6 of the ES1. She submitted a copy of an application for assistance from the Irish Human Rights and Equality Commission (IHREC) I consider this document to be covered by Legal Privilege. The Complainant was not represented by the IHREC on the day of hearing. It is also important for me to incorporate the Complainants evidence where she spoke of not having witnesses available to her due to restrictions placed on her by her funder of personal services. I informed her that all witnesses were welcome at the hearing. The Complainant has made a complaint that she was denied reasonable accommodation by the Respondent on firstly May 12, 2016, this was subsequently amended to May 17 by the complainant during the hearing. She complied with all the pre-requisite requirements set down under Section 21 of the Act. I am satisfied that the complainant is in possession of the disability of blindness in accordance with Section 2 of the Act. I endeavoured to make her presentation to the hearing as comfortable as possible by allowing her breaks and access to a vacant room adjacent to the hearing room for refreshments. The Complainant submitted that she was distinctly uncomfortable with the process surrounding cross examination and I sought to remedy this by an explanation of the process as well as facilitating breaks. Section 5 of the Act outlines: Section 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 provide can be availed of only by a section of the public. “Reasonable Accommodation “is referred to in the Judy Walsh’s book entitled Equal Status Act , “As an obligation to adjust rules, standards, policies or physical environments to meet the specific needs of people covered by a protected ground. It involves removing barriers and often treating people differently, to secure equality of opportunity. Reasonable accommodation obliges service providers to take a protected characteristic into account when providing access to education, housing and so on “ Section 4 of the Equal Status Acts 2000-2015 provides that Discrimination on ground of disability. 4
(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. (3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. (4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination. ……. (6) In this section— “provider of a service” means— (a) the person disposing of goods in respect of which Section 5(1)) applies, (b) the person responsible for providing a service in respect of which Section 5(1) applies, ……. (d) the person responsible for the provision of accommodation or any related services or amenities in respect of which Section 6((1)(c) applies, …… and “service” shall be construed accordingly; “providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly. I am satisfied that the Respondent operates a Dating Agency and this provision is contained in Section 4 (6)(b) of the Legislation. I found a marked number of inconsistencies in the presentation of material in this case. I found that the Respondent was not aided by a phone log of calls or the earlier recordings of the three calls referred to in his ES1 response. The Complainant was not aided by the absence of proof of what date she received the returned postal order. I found some discrepancy in the sequencing of the three calls in the case. I accept that there were three phone calls between the parties. May 12, 16 and 17. I accept that the complainant is mistaken regarding her reference to a call on May 13. I found that the Respondent was inconsistent on the composition of all three calls ,where lines blurred somewhat between the alleged content of call 2 and 3 in terms of the timing of the reference to the request for Statistical data .However, I must accept on the evidence before me that that such a conversation occurred at least on one occasion .I found it surprising that the complainant had not advanced that request for statistical data within the ES1 form given the close proximity in time of 14 June ES1 submission and the date of the alleged discrimination of May 17 . I also found there were occasions during the hearing where the complainant appeared overwhelmed at having to present her case and advance questions of the witnesses. I afforded her a reasonable time with breaks to achieve this goal. However, I was struck by the many admonishments directed at the Respondent and his witnesses via personal criticisms and I endeavoured to minimise these exchanges as they served as an unnecessary distraction. I have considered the evidence given by the complainant and I accept that the first telephone call passed without incident between the parties. The Complainant confirmed that she was not required to complete an application form and she had not seen the Membership Policy, which I noted to be undated. I had some reservations that this document may not have been in existence during the events of this case . I accept that the Complainant and the Respondent engaged positively on the topic of membership on May 12 .I found that the parties agreed to have a follow up meeting on June 2 .By that stage , the complainant had shared details of her disability with the Respondent and plans were made to move forward towards active membership .I found the approach adopted by the Respondent , on the accommodation of the postal order in part payment and the scheduled follow up appointment to undertake the profiling as reasonable . I have considered both parties evidence of what surrounded the central call in the case , that of May 16 .The parties differed on their recollection of the scheduling timing and longevity of the call and they also differed on the content .I listened carefully to both parties recollection of the second call and I found that the complainant genuinely believed that this call co incited with May 13 .However, based on the corroborated evidence of the Respondent in addition to the contemporaneous email dated May 17 , 2016, I find that the sequence of the calls to be properly structured as 1, May 12. 2. May 16 3. May 17 A Service Provider has a duty to provide special treatment or facilities, only if without such special treatment or facilities, it would be impossible or unduly difficult for the disabled person to avail of the service. In the instant case, the complainant asked to join the Agency and the formalities associated with joining were well underway by May 16. I found some shortfalls in credibility in the complainant’s evidence on her recollection of the conversation of May 16. I prefer the version expounded by the Respondent as I was struck by his description of the rising sense of danger and apprehension following the inquiries on statistical data on customers with disabilities submitted by the complainant. On probing, the complainant confirmed that she had not asked to be matched with a person with a disability but rather this information was required by her for “down the road “purposes but she had not shared this purpose in real time with the Respondent. I found this evidence to be implausible. I found the lack of follow though by the complainant on the ES1 to be unusual. In Dublin City Council V Deans in the Circuit Court (unreported),15 April 2008, Hunt Found “that the housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities …All that is commanded to do by the Equality Legislation is to devise a “reasonable “solution to a problem, not to achieve perfection and not to give in to every demand made of it …” Looking at the specific facts of the case, I find that the Respondent adopted a reasonable approach to the complainant’s application for membership. I note that he did not refer to an exchange surrounding the Membership Policy directly with the complainant and the case was not aided by the solo voyage of the returned postal order without an attached explanatory note. A Prime facie case of direct discrimination establishes three things 1 The Complainant is covered by the relevant discriminatory ground 2 There was specific treatment by the respondent 3 The treatment was less favourable that the treatment that was or would have been afforded to another person in similar conditions. The burden of proof set out in Section 38A of the Act, is on the balance of probabilities. When those elements are established the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. The onus is then on the respondent to disprove this inference. I am satisfied that the complainant was blind and covered by a ground of Disability. I accept that the Respondent curtailed the complainant’s application for membership on May 17, 2016 by stating his intention to return the postal order for €50. However, I have not established that the complainant was treated less favourably than the treatment that was or would have been afforded to another person in similar conditions. As stated previously, I found certain inconsistencies in the complainant’s evidence outside the simple sequencing of the calls. She identified that the less favourable treatment occurred for the first time on the first call. I find that this is disproved by the overriding transaction of her submission of the position order. However, I was struck by the context and background she attributed to her request for statistical data for her personal use, which was hotly contested by the respondent. I found her rationale implausible in this regard. I have reflected on the Respondents evidence that he felt that he was being lured into a trap by the complainant shortly after the commencement of the second call on Monday, May 16. I found him to be a very focussed witness, very much in touch with the concept of equal opportunities and very proud of his Trading position which he attributed to hard work. I found him to be discerning and open in his approach to the hearing. However, I also noted that the experience of being accused of a Discriminatory practice had been hard for him and he was keen that his account of events be considered and heard. There is a clear dispute on what took place in this case. I have endeavoured to examine all the surrounding events. I did give some consideration to the testaments submitted by the Respondent on satisfied customers, one of whom was visually impaired. However, I did not consider they had probative value when they did not attend as witnesses. The Complainant has submitted that she was denied membership because she was blind and was consequently denied reasonable accommodation. The Respondent has submitted that he was prepared to accept the complainant into membership and had activated the usual procedure, up to and including a scheduled follow up appointment. A Commercial transaction had sprung into being. However, I have found that this was undermined by the successive approach adopted by the complainant ,where she sought to distance herself from the transaction on one hand and on the other hand initiated an elaborate fact finding exercise which she argued went to the root of reasonable accommodation of her disability .This was an inconsistent approach and strayed outside the realm of reasonable accommodation , where the Service Provider is obliged to consider the needs of the disabled person ,if without such special treatment it would be impossible or unduly difficult for the person to avail herself of the service . I found the Respondent to be inclusive in his approach to the complainant. I have found that the Complainant did change tack in her approach to the Respondent from the second call onwards. I accept the cogent evidence of the Respondent and his witnesses that he was truly shaken following this call and the subsequent call. I accept that the complainant shouted. I have found that the curtailment of the membership process by the Respondent was following a difficult exchange with the complainant which was couched in threats of litigation and accusatory attacks, which became very personal. I have found that the Respondent curtailed the membership process for the complainant considering her hostile approach which was not attributed to her disability. I found his approach proportionate in the face of the hostile and inconsistent approach adopted by the complainant. I found that his actions were directed at protecting his business and he was genuinely afraid of the complaints levied at him by the complainant. In making this finding, I am guided by the Respondents demeanour at the hearing. In making this finding, I have taken account of all the evidence before me and to the accounts submitted that the business is a highly-charged business with raised expectations from customers. I found that the exchange between the parties on May 16 and 17, 2016 veered outside that norm and was truly extraordinary. I have not, however, found it discriminatory or a denial of reasonable accommodation.
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Decision:Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordancewith 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 not established a prima facie case of Discrimination in contravention of Section 4 of the Act on reasonable accommodation. The treatment of the complainant was not less favourable than the treatment that was or would have been given to another person (a person without a disability) in similar circumstances. I find for the Respondent.
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Dated: 17/11/17
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Reasonable Accomodation , Disability . |