EQUAL STATUS ACTS
DECISION NO. DEC-S2018-010
Parties:
A Complainant on behalf of his son
-v-
Irish Prison Service
(Represented by Anthony Hanrahan BL, instructed by Chief State Solicitors Office)
File reference: et-155927-es-15; et-155931-es-15; et-157422-es-15; et-158678-es-15.
Date of issue: 19 April 2018
Background to the Claim
1.1 The complainant referred complaints to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 21 and 22 April 2015 and on 2 July 2015. On the 6 December 2016, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 24 January, 2017.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.
Dispute
2.1 The complainant is alleging that he is being discriminated against by the respondent by association with his son who has a disability in relation to access to a service. The complainant alleges that the respondent discriminated against him in terms of Section 3 of the Equal Status Acts and contrary to Section 5 of that Act.
Summary of the Complainant's Case
3.1 The complainant is currently serving a sentence of imprisonment in Mountjoy Prison. He is alleging that he has been discriminated against on grounds of disability by association, in that, he is being refused appropriate visits to see his son K. K is 8 years old. K was born with Cystic Fibrosis. The complainant states that he first brought the issue of accessing appropriate visits to see his son K to the Prison authorities in 2011. He states that the area for the visits was unsuitable as his child requires a disinfected area. The complainant asserts that while he brought the matter to the attention of the Governor, he remained on screen visits. He submits that subsequently, he was given access to a family room in St. Patrick’s Institution but that there was not much in the line of toys or play materials and that the area badly needed to be cleaned. The complainant states that he had 2 /3 visits with his son K in St. Patrick’s Institution.
The complainant submits that the visiting arrangement in the lifer’s box in the main prison were inappropriate. He states that the toys retained in the area were soiled and never washed and that he would have to disinfect the area down himself. He states that there were bins outside the area with bad odours from same which was a health risk for his son. He states that he submitted medical reports to the respondent from his son’s medical social worker and a consultant regarding the needs of his son K and his susceptibility to infection. However, he states that the respondent did not act on same. The complainant submitted that he is concerned regarding the effect the lack of visits with K is having on K vis a vis his other son A who gets to have more regular visits with him. The complainant states that he requested a transfer to a low security environment such as the Training Unit Place of Detention or an open prison but that these requests were turned down. In conclusion, the complainant is alleging that he was discriminated against on grounds of disability by association and he states that he was not provided with reasonable accommodation in relation to visits from his son K.
Summary of the Respondent's Case.
4.1 The respondent states that the complainant is currently serving a sentence of imprisonment which was imposed in respect of a conviction for obstructing Gardaí who were pursuing a teenage boy to whom the complainant had been see handing a gun. At the time of his sentencing, the complainant had 106 previous convictions, including convictions for armed robbery and firearms offences. The respondent states that the complainant was housed in Mountjoy prison until he committed a serious assault on prison staff on 23 August 2015 following which he was transferred to Castlerea Prison on 27 August 2015 and then to the Midlands Prison for the purposes of maintaining good order and security. He had requested a transfer back to Mountjoy Prison and was granted a transfer and returned to Mountjoy on 24 June 2016. The respondent states that the complainant has two sons A and K. K was born on 30 November 2010 and has been diagnosed with Cystic Fibrosis and Tracheobronchomalacia.
4.2 The respondent submits that in October and November 2013 the complainant’s then solicitor requested that he be brought under escort from the main prison in Mountjoy to the Training Unit Place of Detention, a semi-open low security prison, for visits from K or alternatively that he be transferred to the Training Unit Place of Detention in the Mountjoy campus or to an open prison. The respondent states that in a letter from a representative of Prison Service to the complainant’s solicitor, it was pointed out that the Governor of Mountjoy had “taken extensive measures to have the visiting room disinfected prior to any visit and has gone out of his way to take a compassionate approach to this issue.” In the letter, it was further stated “your client will not be transferred to either the Training Unit or to an open centre due to the risk to the safety and security of the public, due to the security and operational needs of the Training Unit and open centres and due to the serious nature of his offences and length of sentence left to serve.”
4.3 The respondent states that on 23 July 2014, the Prison authorities wrote to the complainant advising that he should remain P19 free (i.e. not breach prison discipline) and “strive towards getting an incentivised/enhanced regime”. The respondent submits that on 30 March 2015, St. Patrick’s Institution was partially closed as a young offender’s detention centre and it became possible for the complainant to be brought to receive visits from K in the visiting room in St. Patrick’s Institution in the area now referred to as Mountjoy West. The respondent asserts that the complainant submitted an ES 1 notification to it in relation to his complaint on 11 April 2015 and it replied on 1st May 2015 and the complainant subsequently submitted an ES 3 complaint on 30 June 2015. In his letter of 11 April 2015, the complainant claims he had received “no replies” from the respondent to requests he had made regarding the visiting arrangements in respect of his son K. However, the respondent maintains that it had written to the complainant in respect of this issue on numerous occasions including on 28 January 2014, 23 July 2014 and 18 August 2014.
4.4 The respondent states that on 1 May 2015, Mr. L of the Prison Service wrote to the complainant in response to his ES 1 form. Mr. L pointed out that the complainant had been permitted family visits in a family room in Mountjoy West, in a room which is sanitised and disinfected before every visit. Mr. L stated that such rooms were normally available only for well-behaved prisoners but that the Governor had granted an exception in his case on a humanitarian basis. Mr. L further pointed out that, contrary to the impression given by the complainant in his ES 1 form, the respondent had in fact written to him on numerous occasions. Mr. L also explained that the complainant’s behaviour in being threatening and abusive to staff, assaulting staff, damaging prison property and being in possession of a mobile phone meant that he was not suitable for a low security environment.
4.5 The respondent states that the complainant had previously requested that he be brought under escort from the main Mountjoy Prison to the Training Unit Place of Detention for the purposes of visits from K. However, the respondent submits that as this would involve more than a nominal cost, the decision of the respondent not to bring the complainant under escort from one prison to another must be seen as reasonable in accordance with section 4(2) of the Acts. The respondent asserts that within a prison, each Officer is assigned a task e.g. visits, reception, tuck shop, landings etc. The respondent submits that tasks are identified following joint task review reports carried out between management and staff representatives for each prison. Staff are rostered to cover the allocated daily/nightly tasks. There are currently 691 prisoners in Mountjoy Prison. The respondent states that the Governor has to take into account the need to maintain good order and safe and secure custody within a prison. It states that non-identified tasks require extra staff. In terms of nominal cost in the within case, this would involve the recalling of 3 officers on “Additional Hours” for 8 hours each to facilitate any special visit that the complainant had with his son K as it would be considered outside the allocated tasks for the prison. The respondent submits that leaving the recalling of staff aside, there also has to be certain security measures put in place for the safety of all to ensure no incidents occur with the movement of the complainant to any area. The respondent states that these security measures involve allocating staff to certain areas to ensure no other prisoners are in the vicinity and to allow the movement of the complainant. The respondent reiterates that the complainant is a very high security risk and can be a danger to other staff and prisoners, hence the need for certain security measures to be put in place.
4.6 The respondent asserts that the complainant is a serious security threat as he is a Protection prisoner who had made enemies while in custody or prior to custody through his own admission. In addition, the respondent states that protection assessment interviews recorded on prison records states by the complainant’s own admission he has enemies while in custody or prior to custody. The respondent submits that the complainant had made several requests for a transfer to the Training Unit or to an Open Centre but all such requests were refused based on the nature of the complainant’s crime, his sentence and his disciplinary record while in custody. The respondent submits that to allow the complainant a visit with his son K in the Training Unit would mean that due to serious security concerns surrounding the complainant, the Prison authorities would have to infringe on the work and training routine already in place for other prisoners in the Training Unit. Their visits would have to be deferred for the period of time the complainant was having his visit. The respondent asserts that the Training Unit prisoners would also have to be locked down to some degree to ensure everyone’s safety. The respondent states that the logistics of moving the complainant to the Training Unit for the purpose of a visit would also entail a Three-person escort (given the complainant’s history of violence towards staff) to and from the Training Unit while also ensuring that all trustee in-mates (ground workers etc.) were not in the vicinity during the transfer. The respondent reiterates that all reasonable efforts have been made to accommodate visits for the complainant and his son K when requested so as to not infringe on the rights and safety of the other prisoners in the prison complex. Indeed, the respondent states that two of the visits that the complainant had in St. Patrick’s Institution with his son K were on dates when the complainant was housed in the main prison. Accordingly, the respondent states that the complainant cannot base his complaint on section 4(1) of the Acts. In addition, it submits that the complaint made on behalf of his son K under section 4(1) of the Acts must fail as the request for special treatment in this case involves more than a nominal cost as previously outlined. In any event, the respondent argues that it is dubious whether the provision of visiting facilities in prison constitutes the provision of a service for the purposes of section 5(1) of the Acts.
4.7 The respondent submits that these complaints are grounded on vague assertions by the complainant as to the level of hygiene in certain rooms connected with prison visits and on his own assessment of whether the conditions in these rooms would be damaging to K’s health. The respondent submits that it does not accept that any rights of either of the complainants have been interfered with by the visiting arrangements which have been made available. The respondent states that the complainant provided a letter from Dr. Z of 8 June 2011 which states “K has a genetic respiratory condition which puts him at risk of recurrent infection with low threshold of admission in the hospital to stabilise his condition and the susceptibility to infection and the high risk to acquire atypical micro-organism”. A further letter from a social worker was also submitted stating “As a result of his condition and susceptibility to infection, normal visiting arrangements may not be appropriate for K. I would respectfully ask that K’s condition may be taken into account when facilitating visits with his father.” However, the respondent states that what has not been provided is any evidence that the visiting arrangements offered by the respondent were not appropriate for K. The respondent states that for instance, there is no evidence that any medical social worker in fact visited the prison or any other prison to assess the visiting arrangements.
4.8 The respondent asserts that the complainant in his ES3 form stated that the lifer’s visiting box “was extremely unhygienic and dirty... was regularly used by other prisoners and their families and was never cleaned properly”. However, the respondent argues that no attempt at any independent assessment of the cleanliness of the lifer’s box has been made to attempt to rebut the respondent’s position that it was cleaned and sanitised before each of the relevant visits. The respondent cites the case of Foy v Governor of Cloverhill Prison, concerning a challenge to the reasonableness of directions given by the Governor of Cloverhill Prison in respect of visits, Charleton J. stressed at paragraph 24 of his decision “any such challenge requires evidence”. The respondent submits that a second point on which there is a complete lack of evidence from the complainant is his assertion that there would be less likelihood of infection if K was having visits in the Training Unit Place of Detention in the Mountjoy Campus or in an open prison rather than in the main prison. The respondent contends that as stated in the letter from Mr. L of the Prison Service to the complainant dated 18 August 2014, there is no basis for believing that the visiting facilities in the main prison are less hygienic than those in the Training Unit Place of Detention or in an open prison. The respondent submits that these complaints must fail due to lack of evidence. Although it has been established that K’s condition makes him at heightened risk of infection in general, no evidence has ever been provided to the respondent showing that the hygiene conditions in any of the prison visiting rooms are inadequate to allow safe visits by K to his father. In addition, the respondent states that no evidence has ever been put forward to show that hygiene conditions in the visiting rooms in the main prison in Mountjoy are of a lower standard of hygiene than those in equivalent rooms in the Training Unit Place of Detention or in an open prison.
4.9 The respondent submits that even if the complainant had presented any evidence that the visiting rooms in the Training Unit Place of Detention or in an open prison are more hygienic than those in the main prison in Mountjoy, the complainant would still be unable to overcome the fact that he is not suitable for transfer to a low-security environment such as the Training Unit Place of Detention or an open prison. The respondent states that the complainant is a prisoner with a poor prison disciplinary record and has multiple convictions for offences involving firearms and violence. The respondent submits that the complainant also previously assaulted a member of prison staff. The respondent submits that it is entirely justified in refusing his request to be transferred to a low-security prison as it is obliged by statute to refuse such a request in order to maintain good order, safety and security in the prison. The respondent maintains that the decision on whether it would interfere with the good order of the prison and the safety and security of prisoners and staff to transfer the complainant to the Training Unit Place of Detention or to an open prison is one which is well within the respondent’s expert role to make, and is not one with which any other adjudicating body, court or tribunal should interfere. In this regard, the respondent cites the case of McDonnell v Governor of Wheatfield Prison. The respondent contends that the courts have repeatedly found that decisions relating to the maintenance of good order, safety and security in prisons are primarily matters for the prison authorities and that the courts should only interfere with such a decision where it “flies in the face of fundamental reason and common sense”. In this regard, the respondent also cites the cases Walsh v Governor of Midlands Prison and Foy v Governor of Cloverhill Prison. The respondent also submits caselaw regarding Hogan v Governor of Mountjoy Prison where it stated “judges cannot double-job as micro-managers of the Irish Prison system”.
4.9 The respondent contends that the placing of the complainant in a low-security unit or open prison as he requested, would be in breach of their duty to maintain good order and discipline in the prison system. The respondent does not accept that there has been any discrimination in this case. The respondent submits that it is legally obliged to respond to the complainant’s requests in the way that it has, for the purposes of maintaining good order, safety and security. The respondent states that in the instant case, there has been no curtailment of the complainant’s rights as regards visits and that the complainant has received special treatment in having been permitted to receive visits in Mountjoy West and in the visiting box normally reserved for prisoners serving life sentences. The respondent states that following the complainant’s serious assault on a prison officer in Mountjoy Prison in August 2015, it was necessary to transfer the complainant to Castlerea Prison and from there to the Midlands Prison in the interests of good order, safety and security. The respondent asserts that the complainant has a history of violence and misconduct and is quite clearly not a suitable candidate for transfer to a low security facility such as the Training Unit Place of Detention in the Mountjoy Campus or to an open prison. In conclusion, the respondent submits that the complainant’s case must fail due to (a) a lack of any evidence of discrimination (b) the fact that it is for the respondent to find an appropriate balance of rights consistent with the requirement to maintain good order, safety and security and (c) the fact that the respondent is legally obliged to act as it did. The respondent submits that the complainant as a person without a disability cannot rely on section 4(1) of the Acts in relation to reasonable accommodation. The respondent further submits that the complainant’s son K’s complaint of direct discrimination must fail for the same reasons as set out at (a) (b) and (c) above. It further submits that K’s complaint of failure to provide “reasonable accommodation” also fails due to a lack of evidence and because the special facilities requested would involve more than a “nominal cost” for the purposes of section 4(2) of the Acts.
Conclusions of the Equality Officer
5.1 The matter referred for investigation is whether or not the complainant was discriminated against pursuant to Section 3(1) and 3(2) of the Equal Status Act and in terms of Section 5 (1) of that Act which prohibits discrimination in the provision of a service. In reaching my decision, I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
5.2 Section 5.- (1) provides: " 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 provided can be availed of only by a section of the public".
Section 2 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,”
5.3 The respondent has argued that it is dubious as to whether the complainant’s claim comes within the definition of service as set out in the Equal Status Acts. However, having examined the issue, I am satisfied that the prison authorities are required to have interactions with the relatives of prison detainees and the management of visitation rights for same. The list set out in Section 2 under the definition of “service” is not an exhaustive list. I am satisfied that access to visits of family member of prisoners amounts to a service under the Act as defined above. I am also satisfied that the service is available to a section of the public i.e. to the relatives of persons detained in prisons. I find, having regard to section 5 above, that the complainant and his son were availing of a service from the respondent and therefore the within complaint of alleged discriminatory treatment comes within the scope of the Act and I therefore have jurisdiction to investigate the complaint.
5.4 I have to consider whether the complainant has established discriminatory treatment on the disability ground by association with his son K.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur :
“On any of the grounds specified.... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that:
As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
that one is a person with a disability and the other either is not or is a person with a different disability (the ‘‘disability ground’'),
Section 3(1)(b) of the Acts state that
“(1) For the purposes of this Act, discrimination shall be taken to occur –
(b) where a person who is associated with another person –
- is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
- similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination”
- 5.5 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. I am satisfied that the complainant was associated with a person who has a disability, namely his son K.
- 5.6 Having carefully examined the totality of the evidence in the instant case, I find that the complainant has not adduced evidence to demonstrate that he was treated less favourably on the grounds of disability by association with his son K in relation to access to visits with him. While the complainant has argued that he received no replies to his requests and concerns relating to visits from his son K, I am satisfied from the lengthy documentation submitted that there was ongoing contact and significant consultations by the respondent with the complainant relating to visits by his son K. While the complainant requested to be transferred to a low-security unit or open prison, I am satisfied that given the previous conduct of the complainant including serious assaults on prison staff and a number of P19 breaches (I note in a letter from the complainant to the WRC dated 5 February2016, the complainant himself notes that he has had 73 incidents of misconduct in prison); he was not an appropriate candidate for transfer to such a unit. In any event, I am satisfied that no evidence whatsoever was presented to show that hygiene conditions in the visiting rooms in the main prison in Mountjoy were of a lower standard of hygiene than those in equivalent rooms in the Training Unit Place of Detention or an open prison. There was no report provided by either the complainant’s legal representative or the medical/social work team to state that the visiting areas of the various prisons where the complainant was incarcerated were inadequate or unsuitable for K to visit. In examining the evidence, I am cognisant of the High Court decision in Walsh v Governor of Midlands Prison where Charleton J. made the following comments.. “It is a matter for the prison authorities to decide which prison is most suitable for the custody of, and the rehabilitation needs of, any prisoner. As to how a prison is to be conducted, that is a matter for the governor of each institution, subject to the prison rules.”
- 5.7 At hearing, a witness for the respondent Mr. B who is a Training Officer and has significant experience in the area of Industrial cleaning gave testimony. He stated that he is very involved in the training of in-mates in cleaning and using chemicals in conjunction with health and safety procedures. He provides a VTEC course comprising 20 modules to in-mates in this regard. Mr. B gave testimony in relation to cleaning and hygiene arrangements at the prison complex. He stated that through the Red Cross, a pack relating to cleaning products is given to the prisoners to keep their own areas clean. Mr. B stated that prior to visits of K, he would get a request to go and clean the visiting area and he would carry out a deep clean on same; he would dust the area down first and then use milton to disinfect the room. It would be hoovered out and a deep clean on the area would be undertaken. Mr. B stated that the other prisons have similar Training Officers who would perform such similar tasks. The respondent states that the facility of receiving visits in the lifer’s box in Mountjoy was given as a special facility to the complainant. When this area was closed down, the complainant was given access to visiting arrangements in the family room. The respondent makes the point that this is a historic claim but since appropriate measures/ reasonable accommodation were put in place since 2015, there is no basis to a complaint of discrimination. Indeed, the respondent submits that the complainant himself had stated to them that he was happy with the system put in place regarding visiting arrangements for K from 2015 onwards.
- 5.8 Having adduced the totality of the evidence in the instant case, I find that the complainant has not established a prima facie case of discrimination on the disability ground by association with his son K. I am satisfied from the documentation submitted that there was significant engagement by the respondent back and forth in relation to requests by the complainant in relation to adequate arrangements for visits from his son K. I am satisfied that reasonable accommodations were provided to the complainant by the respondent, in that, visits in the lifer’s box were given to the complainant in 2015 as a special arrangement and following the closing down of that facility, visits were arranged for the family room. I accept the testimony of Mr. B (Training Officer) in relation to him undertaking a deep clean of the visiting area prior to visits from the complainant’s son K. I am satisfied given the evidence from the respondent at 4.6 above that to provide an escort for the complainant from the main prison to the Training Unit for the purpose of visits with his son K would constitute more than a nominal cost and accordingly would be an unreasonable demand on the prison authorities. For all of the foregoing reasons, I find that the complainant has not demonstrated a prima facie case of discriminatory treatment under the Acts and therefore his complaint fails.
6. Decision
- 6.1 Inreaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
- 6.2 For all of the foregoing reasons, I find that the complainants have not established discriminatory treatment on the disability ground. Accordingly, I find in favour of the respondent in the matter.
- _____________________
Valerie Murtagh
Adjudication Officer
19th April, 2018