Complainant

Respondent

Anonymised Parties

A HGV Driver

A Public Safety Authority

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00008295-001

21/11/2016

The issue in contention was alleged failure to provide “reasonable accommodation” by the Respondent (A public Safety, Education and Training Body) to the Complainant on the grounds of Discrimination. The Complainant has a Dyslexia Disability.

The Complainant is this case was a most genuine individual clearly motivated by the needs and interests of the Dyslexia community. The bringing and diligent pursuit of the claim over two lengthy hearings with a large volume of evidence presented was a major highlighting for all Public Bodies of the needs of the Dyslexia community. For this he must be complimented.

The Complainant lodged a Form ES1 with the WRC on the 22nd November 2016. On the ES1 form the Complainant alleged that he had not been provided with “Reasonable Accommodation” in regard to his disability of severe Dyslexia. The accommodation to take the form of policies, procedures and other correspondence to be issued in an audio format so that the Complainant can process and understand the material. The unique needs of a severe Dyslexic had to be recognised by a specific Reasonable Accommodation as provided for in the Equal Status Acts.

In Form ES2 of December 2017 and accompanying submission the Respondent body denied all discrimination. They pointed to extensive previous correspondence with the Complainant (going back as far as 2012) on the issue of his disability. They had initially offered to provide PdF versions of all materials to enable a Text to Speech software programme provide the Complainant with an audio version of Training Materials. This was in keeping with the Report from the Complainant’s Educational Psychologist. Special assistance at Training Courses was also offered.

At an initial Adjudication Hearing at the WRC in December 2017 the Respondent had indicated that they were in the process of producing special CD Audio versions of their materials. The Complainant was asked to await the production of the CDs during early 2018.

The CDs were produced, at considerable costs to the Respondent Organisation and made available to the Complainant.

It is regretted that the Complainant did not find the CDs adequate and decided to continue with his claim.

The Respondent referenced Section 4(1) of the Equal Status Acts and maintained strongly that all their actions had more than discharged all requirements therein. Extensive legal precedents were quoted in support of their case.

The Respondent also pointed to a number of what they felt were procedural flaws in the Complainant’s claim namely the non- serving of the ES1 Form or a Formal Complaint on the Respondent as per Section 21(2) of the Acts and difficulties with specific dates of alleged discrimination in regard to attempting training courses in the 6 months prior to December 2016 -the date of the initial ES1 form. On these technical grounds alone, the claim had to be fail.

However, the Respondent was anxious to emphasise that the bona Fides of the Complainant were absolutely genuine and acknowledged that his claim was primary motivated by a desire to assist those citizens of the State who have a Dyslexia diagnosis.

3:1       Legal and General Observations

This case was marked by extensive Complainant Oral submissions and extensive written and oral Respondent submissions.

The case centred largely on Section 4(1) of the Equal Status Act quoted below for information.

Discrimination on ground of disability.

4

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.

In context, the case could well be described as one that had a high degree of Public Interest concerning the Dyslexia condition and much of the Complainant’s evidence could well be seen as motivated by what could be called the overall Spirit or Guiding essence of the Equal Status Acts and related Equality legislation.

However, good intentions notwithstanding, guidance in this Adjudication decision can be found in learned comments of Mr. Justice Hunt in the Circuit Court case of Deans v Dublin City Council(unreported Circuit court ,15th April 2008)

Here Judge Hunt commented that section 4(1) does not require a service provider to

“submit to every wish expressed by a disabled person …all that is commended 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 that is made of it”.        P34 of stenographic report of case.

This line of reasoning is reinforced in the case of Cahill v Minister for Education [2017] IESC 29. Furthermore Mr. Justice MacMenamin referred at Pars 63 to the procedural requirement “of engagement between the process provider, and the recipient”. This requirement can be looked at in this case.

The question of what is “reasonable” has been discussed in numerous legal precedents and in summary the legal view is that it cannot impose a severely disproportionate cost on a Respondent.

However Legal precedents notwithstanding each case must be seen on its own facts and particular evidence.

These will be considered below.

3:2         Consideration of the Evidence presented.

3:2:1       Technical Issues relating to the procedural aspects of the Claim.

Reviewing the evidence there can be no doubt but that the Complainant’s case could be severely prejudiced by a failure to properly observe Section 21(2) in regard to procedural requirements relating to the ES1 Form and the dates of the alleged Discriminatory Treatment. However, in the overall context of the claim and the particular difficulties of the Complainant with severe dyslexia I allowed the claim to proceed.

3:2:2       Provision of Reasonable Accommodation

The evidence presented clearly showed that the Respondent made strenuous efforts and produced a set of Audio CDS to address the Complainant’s needs. The costs of production came to approximately €36,000 Euro. These actions have to be seen in context of the earlier offer to produce PdF versions and a pattern of regular engagement with the Complainant regarding how to address his needs. Comments of Justice Mac Menamin quoted above should be referenced here.

At the Oral Hearing the Respondent undertook to, in the next review of the CDs, incorporate any additional comments made by the Complainant.

There can be no doubt that this entire programme was a more than adequate effort to provide “Reasonable Accommodation”.

3:3     Conclusions

Having reviewed all the evidence both written and oral I came to the following conclusion.

The Respondent has satisfied all the requirements of Section 4 of the Equal Status Acts and the discrimination claim against it must fail on this ground. Reasonable Accommodation was provided.

On the above ground the claim fails and is dismissed.

Act

Complaint/Dispute Reference No.

Summary Decision/ please refer to Section Three above for detailed reasoning.

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

CA-00008295-001

Claim is Dismissed as Reasonable Accommodation was provided.