ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00006688

Parties:

 Complainant        Anonymised Parties     Respondent

A Men’s shed member                                  A Men’s shed  

Representatives

Complaint:

ActComplaint/Dispute             Reference No.            Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00009082-001 13/01/2017  

Date of Adjudication Hearing: 30/11/2017 Workplace Relations Commission Adjudication Officer: Andrew Heavey

Procedure:

In accordance with 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 is a founding member of the Respondent organisation. The complainant’s case is that he was discriminated against on the grounds of disability by the Respondent. The complaint was submitted to the Workplace Relations Commission on 13th January 2017.

Summary of Complainant’s Case:

The complainant contends that he was discriminated against by the Respondent on the grounds of his disability. The complainant is a founding member of the Respondent organisation. The complainant has had a number of health issues over the years including a number of strokes, cardiac issues, cancer and the onset of vascular dementia. The complainant also has hearing and memory loss as well as difficulties with his balance. The complainant contends that despite his health issues, he leads a full and active life with some minor restrictions. The complainant contends that the discrimination is ongoing as he has been prevented from attending the Men’s shed on the basis of his health problems. The complainant stated that in April 2015 an eight-week horticultural course was advertised. The complainant expressed an interest in attending but contends he was not permitted to attend unless he had a Carer with him. The complainant contends that an EGM was held in May 2015 as a result of complaints that had been made and that it was at this meeting that the complainant was alleged to have accepted that the Committee had the right to request any member to be accompanied to the Men’s Shed. The complainant stated that he did not hear what was said at that meeting and did not agree that he needed to be accompanied by a carer either on the training course or at all. The complainant contends that his attendance at the Men’s shed was intermittent in late 2015 and much of 2016 due to health issues. The complainant’s position is that he visited the Men’s shed in or around August 2016 with a view to re-joining its activities and that a letter subsequently issued from the Men’s shed on 1st September 2016 telling him that he could not attend unless he was accompanied by a named qualified adult. The complainant contends that the decision of the Committee in its letter of the 1st September 2016 is discriminatory. The complainant stated that at no time on previous visits to the Men’s shed did he become ill or cause injury to himself or anyone else. The complainant stated that there is no medical requirement for him to be accompanied and that he has been certified medically fit to attend the Men’s shed. The complainant contends that the Respondent’s actions are discriminatory, unnecessary and unreasonable. The complainant is seeking a written apology, to be posted up on the Men’s Shed Facebook page and for the apology to be read out at the next committee meeting and at the next AGM.  

Summary of Respondent’s Case:

The Respondent refutes the complainant’s position. The respondent contends that at its EGM in May 2015, the complainant was asked if he accepted that the Committee could request a member to be accompanied and if he would be prepared to attend the Men’s Shed on that basis. The Respondent contends that the complainant confirmed his understanding of what had been asked of him and agreed to attend the Men’s shed on that basis. The respondent stated that there had been a number of complaints made by the complainant and that there were also complaints made by others against him. The Respondent stated that the EGM of May 2015 had been arranged to resolve any issues that were threatening the viability and future of the Men’s Shed. The respondent stated that it was not seeking to restrict the complainant’s attendance at the Men’s Shed in any way but that it was mindful of the difficulties that the complainant had experienced and the possible risks that were present because of the complainant’s health issues. The respondent stated that it informed the complainant in writing on 1st September 2016 that there was no requirement for him to re-join the Men’s shed as he was still an honorary member. The respondent stated that it informed the complainant that he was welcome to return to the Men’s shed once he was accompanied by a named qualified adult as agreed. The respondent stated that the complainant responded to its letter and denied that he had ever agreed to be accompanied by a named qualified adult while visiting the Men’s shed. The respondent contends that the complainant was then asked not to attend until the matter was resolved. The respondent does not accept that it discriminated against the complainant on the grounds of his disability. The respondent stated that there had been an incident where the complainant stumbled into another person while in the tool shed/workshop, although thankfully no injuries occurred to either person. The Respondent stated that the complainant accepted he should not be in the workshop/tool shed but continued to go there. The respondent stated that the complainant had stumbled on occasion while in the allotment and that this was frustrating the other members of the Men’s shed due to the possible damage that could occur as a result. The Respondent stated that it was acting in the complainant’s best interests and in line with its Health and Safety statement as well as its duty of care to its other members who attended the Men’s shed. The respondent contends that the requirement to have a named qualified adult to accompany the complainant is the most appropriate solution in the circumstances and is not discriminatory.  

Findings and Conclusions:

The Provision of a service Section 2 of the Equal Status Acts 2000-2015 defines a Service as follows: “service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

( a) access to and the use of any place,

( b) facilities for— (i) banking, insurance, grants, loans, credit or financing, (ii) entertainment, recreation or refreshment, (iii) cultural activities, or (iv) transport or travel,

( c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

( d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies; I accept that the Men’s shed is involved in the provision of a service as defined in the legislation and that I have jurisdiction to adjudicate on the complaint.

Discrimination Discrimination on the grounds of disability is defined under Section 4 of the Equal Status Acts 2000-2015 as follows: 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.

Burden of Proof Section 38A of the Equal Status Acts, 2000-2015 provides as follows in relation to the Burden of Proof: 38A.(1) 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. The Burden of Proof in cases of discrimination rests initially with the complainant. If the Complainant raises facts from which an inference of discrimination can be drawn, the burden of proof then shifts to the Respondent. The burden of proof is dealt with by the Labour Court in the decision of Southern Health Board v Mitchell [2001] ELR 201 where it determined that:   “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”   I find that in the instant case, the complainant has discharged the burden of proof in relation to the alleged discrimination.  

Substantive Findings In relation to the complaint I find as follows: It is accepted by all involved in this complaint that the complainant suffers from a number of health issues which can cause difficulties in certain situations. The parties both alluded to loss of hearing and balance as well as other difficulties that the complainant experiences on a daily basis. The complainant accepts that certain limitations and restrictions should apply to his attendance at the Men’s shed. At the Adjudication hearing the complainant accepted that he should refrain from going into the workshop and gave a commitment that he would not do so again. The complainant said that he had forgotten he should not go into the workshop. The complainant supplied a Doctor’s certificate to confirm that he is fit to attend the Men’s shed and this certificate did not include a provision that a companion was required to attend with him. The complainant stated that despite his difficulties he was able to travel independently and had never injured himself or anyone else in the course of his daily activities. The Respondent insisted on the complainant being accompanied at all times while visiting the Men’s Shed even if he only intended dropping in briefly. The complainant said that this was discriminatory and unreasonable. The complainant stated that not only was it not required, it would be impossible for him to arrange. He stated that he would not be able to attend the Men’s shed as a result of this restriction. On the basis of all the information available, I accept the complainant’s contention that he is fit to attend the Men’s Shed without being accompanied by a named qualified adult. In relation to the respondent, I find that it genuinely believed that it’s actions were appropriate and necessary to protect the complainant and its other members from any difficulties and possible injuries that could occur as a result of the complainant’s presence at the Men’s shed. I also accept that it did not intend to deliberately prevent the complainant from attending the Men’s shed. However, the reality of the situation is that the Respondent unilaterally placed an unsuitable and unreasonable restriction on the complainant’s attendance on the basis of his health difficulties which I find to be discriminatory. I note that in the Minutes of the EGM held in May 2015 a committee member commented that: “Members of the group either have, or will have health issues that have or will impact on their ability to participate fully in certain activities. As a group we need to be aware and tolerant of our fellow members and provide support, care and instruction as needed”.

I find that this is precisely the point in relation to Men who attend at Men’s sheds. The members of these groups come together for social interaction and come from all different walks of life. They are a mixture of retired and unemployed as well as other men who join for the mutual benefits that membership of the Men’s Sheds bring. It is contrary to the ethos of the Men’s Shed not to support and accommodate those with health difficulties who may wish to attend.

Naming of the parties I have decided to anonymise the parties to this complaint based on the sensitivities of these issues and because of the inevitable embarrassment and humiliation that would arise if the parties were identified. Redress The complainant stated specifically that he was not seeking compensation. On the basis of the discrimination that occurred in this particular case, compensation, if sought, would have been at the higher end of the levels of compensation permitted under the Act. The redress sought included a written apology to be posted on the Men’s shed facebook page and to be read out at the next Committee meeting and at the next AGM.    

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. Having considered the written and verbal submissions of both parties and all of the evidence adduced at the hearing of this complaint, I find that the complainant was discriminated against on the basis of his disability and that the Respondent failed to reasonably accommodate the needs of the complainant in facilitating his attendance at the Men’s shed. In relation to the complaint I order the following: that the Respondent puts in place an appropriate locking mechanism in the toolshed/workshop to protect the health and safety of the complainant and other users of the service. that the complainant be allowed to return to the Men’s shed immediately thereafter without being accompanied by a qualified named adult, that the Respondent formulate admittance policies and procedures and ensure that these are compliant with the Equal Status Act, 2000. that the Respondent arrange Disability Awareness training for all Committee members and for all members who attend at the Men’s shed and that the respond conduct a Health and Safety Assessment of the Men’s shed to ensure the above measures comply with Health and Safety legislation and best practice. The Respondent is not required to provide a written apology as requested by the complainant as I am of the view that it would not best serve the ongoing and future relationships of the parties to this complaint.  

Dated:   30th January 2018         Workplace Relations Commission Adjudication Officer: Andrew Heavey  

Key Words: Discrimination, disability, reasonable accommodation.