ADJ-00009526

Complainant

Respondent

Parties

Tristan Forde

Naionra Bheanntrai (Amended on consent at hearing)

Representatives

Ms Sarah Daly, B.L instructed by Michael Powell Solicitors

Mr Ben Shorten,B.L. instructed by O'Mahony Farrell O'Callaghan Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00012444-001

12/Jul/2017

This is a complaint of discrimination on grounds of Disability in accordance with the Equal Status Legislation, which is denied by the Respondent. The case is taken on behalf of the Complainant by his parents. In my preparation for the hearing, I noted that an ES1 form had not been appended to the complaint form and I resolved to explore this omission directly with the parties on the day of the hearing as Preliminary issue. The hearing was originally scheduled for February 28,2018, but was postponed due to neither party being able to travel through the snow. Both parties made extensive written submissions on the substantive issue of the complaint.

At the outset of the resumed hearing date, I sought sight of the ES1 form to establish my jurisdiction in the case. I was informed that an ES1 form had not been completed as the parties understood that they could seek a waiver at the hearing. I adjourned the hearing for a 40-minute period to allow both parties to prepare oral submissions on the omission of an ES1 form from the case. I directed both parties to Section 21 of the Act and asked for submissions as a Preliminary Issue.

The Complainant submitted that he received less favourable treatment contrary to the provisions of the Equal Status Acts by treating him differently to other able bodied children by being denied access to preschool education.

The Complainant is a four-year-old boy who has a diagnosed condition of Dravet Syndrome, a severe form of epilepsy. This case is taken on Tristan’s behalf by his parents. The Complainant commenced attendance at the Nursery following an assessment process on 17 January ,2017.

The Complainants Mother, had been requested by the staff to remain on standby in the school grounds while he attended the Nursery. Both parents submitted that they had provided all educational and medical supports for both the complainants condition and his medication, but he had not thrived at the Nursery. The Complainant was the sole recipient in Ireland of a validated medication regime to assist in the control of his frequent seizures. This treatment had been sourced in the United States and had been adapted to Ireland.

The Staff at the school expressed a concern that the complainant’s medication was an illegal substance and had intimated a reservation surrounding its use in the Nursery setting.

Counsel for the Complainant outlined that shortly after his attendance commenced at the nursery, the complainant had received a letter dated 3 February 2017

“ In light of the Complainants complex difficulties and in light of our Naoinras obligations to ensure the health , safe and welfare of the complainant and all children and employees in the Naira, we feel that is in the interests of all parties that before, we can accommodate the complainant further our Naoinra needs to take some time to carry out a full and objective Assessment as to our Naoinra capacity to accommodate the complainants needs and in particular how best the Naoinra environment and available resources can meet his special educational and medical needs. To allow us to do this, and in the interests of the complainants safety and well-being we have reluctantly taken the decision to discontinue the complainants attendance with us for the present time pending a full assessment to determine whether the Naoinra is the correct place for the complainant and how best we can accommodate his needs ………”

The Complainant was withdrawn from the Nursery along with his brother who was also in attendance.

The Complainants parents completed the Leaving Programme form on 15 February, 2017. Counsel argued that the Respondent ECCI form had been completed by the complainant and this constituted written notification of their dissatisfaction with the service and their intention to progress matters on the grounds of exclusion.

Counsel for the Complainant submitted that the July 12 complaint to the WRC followed an unsuccessful encounter with another Government Body which had been approached for support and representation. The Complainant was advised by the WRC that   the 2-month notification (ES1Form) could be waivered in the Counsel confirmed that no ES1 form was in being in the case.

On 12 July 2017, the complainant lodged a complaint under the Equal Status Acts 2000-2015.The complaint outlined that he had been discriminated against and refused an education because of his disability and medication regime. The parents submitted that the Nursery contended that his medication regime was illegal. The Complainant submitted that he had been excluded in the school group and his personal care had been neglected there.

Counsel confirmed that there was no ES1 form in the case and the Respondent had not been notified through that medium. Instead the complainant had contacted both the named Government body and The Workplace Relations Commission. The Complainant did submit that the Respondent had been on notice of a complaint on local radio on 8 February, 2017, but confirmed that official notice had not been forwarded to the WRC.

Counsel submitted that Section 21 of the Act provides for a discretion to waiver the requirements of Section 21 on exceptional circumstances. She argued that the complainant had been pro-active and understood the time limit could be waivered. They had no knowledge that the notification was an obligation. The Complainant had made extensive submissions seeking a waiver of Section 21 on exceptional grounds in the case.

Counsel submitted that the Complainant was represented by his parents at the time the complaint was lodged, who were both lay practitioners. The period surrounding the complainant’s withdrawal from the Nursery had been a very upsetting and busy time for the family.

The Complainants representatives had addressed the Respondent submission and had not identified that Section 21 was at issue. The Respondent understood exclusion issues were at play as these were documented on the leaving form. The family had removed their second child at the same time as the complainant.

Counsel submitted that the parties had not met on the issue prior to the complaint being lodged or in the immediate aftermath, consequently, the complainant had a strong desire to be heard on the circumstances of the case which had resulted in his exclusion.

Evidence of Mr A, Complainants Father:

The Complainant was removed from school by his parents. One week later, Mr A contacted a named government body to ascertain if they would assist the complainant in taking a case of discrimination? The Government body confirmed that they would consider it. Documentation was submitted and the Government Body said that they would like to look at it. Three to four months passed, he felt that he had to make the complaint himself.

He rang the WRC and lodged his complaint the next day. He was not informed that completion of ES1 was necessary. He had placed the matter in the hands of his advisors and assumed that they would take care of it. He understood there was flexibility on the notification period.

Feedback from the complainant indicated that he is due to commence attendance at main stream school this coming September and his health has since improved considerably.

The Respondent runs a Community Nursery and furnished an initial response to the claim on August 11, 2017.The claim of discrimination was denied. On the day of hearing, Counsel for the Nursery outlined that several staff had been greatly affected by the claim and were on sick leave.

The Complainant registered at the Naoinra in January 2017. On his Registration form dated January 9,2017, the complainant’s conditions of “Dravet Syndrome -Epilepsy ““verbal problems “were disclosed. He was recommended to have a Special Needs Assistant and a specific medication regime.

The Nursery made all reasonable efforts to accommodate, facilitate and integrate the complainant into the Nursery. The Complainant was found to have had more significant developmental and care management difficulties than was first believed.

The Nursery took on board concerns of staff, Insurers, supervisory bodies and Legal advice and sought to undertake a full and objective assessment of the complainant’s requirements On February 3, 2017, The Nursery wrote to the Complainants parents asking to temporarily discontinue the complainant’s attendance at the Nursery for the present time pending a full assessment to determine whether the Nursery was the correct place for the Complainant?

The Respondent sent another letter to the Complainant on February 10,2017 seeking a meeting with his parents to discuss moving ahead” with a collaborative assessment process”. There was no response.

On February 13, the Nursery received a request to execute a form allowing the complainant to leave the Nursery. This form was titled Child Leaving Early Childhood Care and Education Programme (ECCE) and was signed by the Head of the nursery on 15 February and signalled that the last date of attendance at the service was February 1, 2017. Reasons for leaving were detailed as “exclusion issues”.

The Respondent addressed the Preliminary issue of notification contained in the August 2017 submission in the following manner.

“It is submitted that this claim should not be assessed on the basis that the complainant has not within two-month time limit under Section 21(2)(a) of the Equal Status Act 2000 as provided the notification required under the said provision to the Respondent “

In response to the Preliminary issue , Counsel for the Respondent submitted that the WRC do not give legal advice and the complainant should have been aware of the notification requirements in the claim .The complainant sought representation from a specialised Government body and was now legally represented .The purpose of Section 21 is an opportunity for the parties “ to fix things “ in the event of a wrongdoing and serves as a first call in that regard .It is both sensible and practical and is required to be actioned .Counsel argued that the waiver of Section 21 requirements were not justified in the case .

Counsel argued that his client was at a disadvantage by the application for a waiver of Section 21 requirements on exceptional grounds. He submitted that the complainant left the Nursery on 13 February 2017, the limitation on notification to 4 months by extension did not assist the parties in this case as the time limits are copper fastened. The Complainant had not alerted the Respondent to any issue prior to submission of the complaint of discrimination to the WRC in July 2017. The Nursery had been denied an opportunity to resolve matters.

He submitted that the Respondent submission of August 2017 had not been picked up on by the complainant. There has been a fundamental failure to observe the requirements outlined in Section 21 of the Act.

I have considered the application of the Complainant to secure a waiver of the terms of Section 21 in this case. I have heard the Respondent opposing submission. I have considered the documentation referred to in the pleadings.

The WRC has published a Guide to Equal Status Acts for the Complainant (September 2017). This sets out the two-step process in accordance with Section 21 of the Act, which ought to accompany a complaint of Discrimination in relation to the provision of services.

1 There is a requirement to write to the respondent within 2 months of the alleged incident, setting out the nature of the complaint and saying that if you are not happy with their reply, you may seek a remedy under the Equal Status Acts. The complaint is not valid unless this measure has been adhered to.

2 The WRC provides an ES1 form to assist that process and this must be lodged within 6 months of the date of the incident. A copy of this form should accompany any complaint before the WRC. The WRC is hindered from dealing with the complaint until a month has passed since the respondent has been notified.

If notification has not been issued to the respondent within the 2 months, the complaint is said to be out of time. There is provision to seek an extension of time to 4 months from the date of the incident.

In this case, the complainant openly acknowledged that the ES1 or a substitute form had not been submitted in accordance with the notification requirements of Section 21(2). The central argument rested on the complainants being lay litigants and busy people at the time of the complaint, July 2017. The date of alleged discrimination was submitted as 13 February 2017.

The Respondent was clear that they were first notified of the complaint by the WRC in July 2017 from where they responded in August 2017.

The Complainant is seeking that the complaint goes ahead in the absence of the notification procedure outlined in Section 21.

Section 21 (3) (a) of the Acts provides that: On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may —

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

And, where such a direction is given, this Part shall have effect accordingly.

  ( b ) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including —

(I) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(Ii) The extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

I reviewed the documentation received by the WRC in this case. The complaint was received on 12 July 2017 and made reference to a waiver of the 2 month notification period .This was shared with the Respondent on 17 July 2017. The Complainant then submitted a written chronology as background to the claim which was received by WRC on 21 July ,2017. Given that the 4-month window of time for notification had been exceeded, an extension of time in accordance with Section 21(2) is a moot point and of no benefit in this case. The written chronology did not address the notification requirements .

I am being asked to decide on whether the particular circumstances advanced by the complainant amount to sufficient grounds to grant an exceptional circumstance to waiver the requirements outlined in Section 21.

Firstly, it was clear to me at hearing of this Preliminary issue that the complainant had a strong desire to be heard. Counsel for the complainant had submitted that the family had been very distressed by the complainant’s experience at the school and understood that they stood a good chance of securing a waiver of the notification requirements.

Secondly, it was clear to me that the Respondent had not been notified of the claim in advance of the initiation of the WRC process and stood aggrieved at being denied an opportunity to remedy the situation.

This caused me to go back and review the foundation document in this case, that of the Complaint form from July 2017. I found a 6-page document and focussed on page 4 “Complaint Specific Details”

The Complainant has ticked Disability as the grounds for the complaint. The first incident of discrimination was listed as 17 January 2017 and the most recent date was listed as 13 February 2017.The Complainant referred to a failure to give “reasonable accommodation”, Education, Provision of Goods and Services. This demonstrated a full adherence to questions asked.

However, my attention was drawn to the next request “You must forward a copy of the ES1 form and proof of postage to WRC “

The complainant did not comply with this requirement and the date of notification was not populated in detail. This was a key omission. I appreciate that the Complainants were lay Litigants but the reference to the obligatory form of notification was unduly omitted. I appreciate that the complainant is a first-time complainant and not well versed in the WRC procedures. I accept that he understood that he could turn up and seek a waiver of notification. However, the WRC Adjudication Service is not an Advisory service and I am bound to apply the facts of the case to the law in question, in this case Section 21(2) of the Act.

The Complainant had a personal responsibility to oversee compliance with the complaint form. I note that the question of whether a response from the service provider in the form of an ES2 form was received was in turn answered in the negative. This demonstrated for me at least that some consideration was given to this section of the form.

I have been asked to grant exceptional circumstances and waiver the notification requirement, which has been strongly opposed by the Respondent.

The Labour Court has deliberated on a definition on exceptional circumstances in Stable field ltd V Ana Lacraniora Manciu in DWT 1714, a case taken under the Organisation of Working Time Act, 1997.

 This Court has, in a number of cases, considered the application of the test to determine whether exceptional circumstances apply. InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110(cited in Kylemore Services Group/Home Fare Services Limited v Terrie Clarke(DEC-E2015-160) the Court stated:

“Exceptional Circumstances

The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered (see R v Kelly[1999] 2 All ER 13 at 20 per Lord Bingham CJ.)”

I have considered the circumstances of the case. I accept that the complainants were lay litigants and were very troubled by their experience in the school. They were keen for me to hear that the matter had been raised on local Radio in February 2017 and that along with the Leaving form were notifications that the complainant intended on taking the matter further.

However, the respondent made a preliminary response to the claim in August 2017 and specifically referred to the ES1 omission. This was not addressed prior to hearing. I appreciate that Mr A understood that he would secure a waiver of the notification requirements, however, my responsibility in this case is to determine if exceptional circumstances exist to justify that requested waiver.

Both parties were legally represented at hearing. Legal Representatives only came on record in January 2017 for the Complainant. The Respondent had legal representation from the outset.

I could not identify unusual, special or uncommon circumstances underlying the omission to comply with the requirements of Section 21(2). I appreciate that the Family was aggrieved and ran out of patience waiting for a response of a request for support from a separate Government Body. However, this does not meet the Test set out in Stable field ltd. It does not form an exception. The notification period does provide for an opportunity to address the cause for concern and equips both parties with a valuable window to explore and resolve matters prior to advancing a formal complaint.

The former Equality Tribunal dispensed with notification requirements in Ennis V O Mahoney’s Football and Hurling Club DEC-S2010-031, The Equality Officer found that the Respondent was sufficiently on notice that Mr Ennis regarded the incident (surrounding car parking) as a serious matter that he intended to take further. The Claimant in that case had placed the respondent on notice within 24 hours of the incident.

 I am satisfied, considering the tone of the complainant's letter to the respondent of 30th August 2006, and given that it was written by a member of the respondent's club, that any reasonable person reading the relevant letter could only conclude that the writer took the subject matter very seriously indeed. Indeed, in its own submission that the phrase "will ye do something, or will I?" did not meet the notification requirements, the respondent agreed that this phrase did indicate the complainant intended taking the matter further. Furthermore, and while I note the respondent's submission that the Secretary of the County Board did not have any authority in relation to the subject matter of the letter, nonetheless the promptness and seriousness of his response indicates that the matter was one to be taken seriously by its intended recipient, even if judged only in the context of this person as a neutral observer. In all the circumstances of the present complaint, then, I am satisfied that the respondent was under no illusion as to the strength of the complainant's concern about the matters raised and that it was on notice that he intended taking the matter further. I would add that, in that context, I believe that virtually the only conclusion the respondent could have drawn was that the complainant intended to take the matter to the Tribunal. 

I have found that the Complainant did not place the Respondent on notice of the claim until mid-July 2017. It may have helped the parties to engage on this issue much sooner and I note that the Respondent had offered to meet with the Complainants family prior to his cessation of attendance at the Nursery and this was not taken up. I found the gap in time from February 2017 to July 2017 without notification or action for resolution to be protracted and not capable of meeting the test for exceptional circumstances. I also found that it disadvantaged the respondent who was largely in the dark on the complainant’s intentions under the Equal Status Act and this is distinguished from the Ennis case in that regard.

In conclusion, based on the above findings, I must record that I am not able to apply a waiver on the notification requirements provided for in Section 21(2) of the Act. I have not established or arrived at a set of exceptional circumstances which prevented compliance with statute.

I have considered all the relevant circumstances surrounding the granting or otherwise of exceptional circumstances on fair and reasonable grounds in this case. While I have great empathy with the circumstances of the case introduced by the complainant I am constrained by the parameters of Section 23 and I find that the complainant has not met the test for exceptional circumstances.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have considered the application to waiver the notification requirements contained in Section 21(2) of the Act and in accordance with Section 23(3)(a)(ii), I find that the submissions made by the complainant do not meet the test for exceptional circumstances. I cannot grant the waiver as requested and I must conclude that I do not hold the jurisdiction on which to proceed with an investigation in this case.

Statutory Notification period as a Preliminary Issue.