DEC-S2019-005

EQUAL STATUS ACTS

DECISION NO. DEC-S2019-005

PARTIES

Mr Stephen McDevitt

Represented by

Eithne O’Doherty, Barrister, as Friend

v

HSE

Represented by

Niamh McGowan, Barrister

instructed by McMullin Solicitors

File reference: et-154902-es-15

Date of issue: 13th February, 2019

HEADNOTES: Equal Status Acts – Discrimination on the grounds of disability – access to premises

1. Dispute
3. This dispute concerns a claim by the complainant that he was discriminated against by the respondent on the grounds of his disability contrary to section 5 of the Equal Status Acts.

1.2 The complainant referred his claim against the Respondent to the Director of the Equality Tribunal under the Equal Status Acts on 31st March 2015. On 15th October 2018, in accordance with her powers under section 25 of the Equal Status Act 2000 to 2015, the Director General of the Workplace Relations Commission then delegated the case to me, Shay Henry, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General on which date the investigation under Section 25 commenced. Submissions were received from both sides and as part of my investigation I proceeded to a hearing on the 28th November 2018 which was adjourned and reconvened on 8th January 2019.

1.3 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 83 (3) of the Workplace Relations Act 2015.

1.4 At the outset of the hearing both parties agreed that the appropriate respondent was the HSE and not the named employee of the respondent hospital.

2 Complainant’s submission

2.1 At the outset of the hearing the complainant clarified that the complaint related to Section 2 of the Act relating to ‘access to and use of any place’. The complainant also clarified that he was not pursuing a claim of indirect discrimination. The claim is in respect of direct discrimination and failure to provide reasonable accommodation, harassment, and victimisation.

2.2 The complainant had previously been an employee of the respondent. Following the termination of his employment he took a case regarding bullying and unfair dismissal and received a favourable determination from the EAT on 25th January 2008. Following further proceedings in the Circuit Court the complainant was reinstated by the respondent to complete his apprenticeship. This was not completed as the complainant was dismissed.

2.3 The complainant suffers from depression and it was because of this disability that he was referred by the mental health services for rehabilitation with the respondent in 1999. He also suffers from PTSD as a consequence of the behaviour of some of the respondent’s staff. He is on the national rehabilitation register.

2.4 Instead of discussing with the complainant, how the hospital might accommodate him with his disability, the respondent chose to harass him and to deny him access to the hospital.

2.5 While visiting his father in October 2013, he was invited by the foreman of the respondent’s Maintenance Dept to drop in to the staff canteen to catch up with his previous colleagues and to feel free at any time to put the kettle on. He did this on various occasions between January 2014 and October 2014. Prior to this he had been joining staff at the coffee dock during their morning breaks at their invitation. He was also participating in the Men’s Shed which had use of a building on the respondent’s property. In mid-October, on his way into the maintenance canteen, the complainant was approached by the Maintenance Manager who greeted him cordially. Some days later the complainant received a letter from the same manager objecting to his presence.

2.6 Shortly afterwards the complainant read in the paper about an investigation into a hidden camera in the Maintenance Department. The complainant believes that he was the target of the camera as a manager with the respondent, charged with responsibility for investigating the camera affair, confirmed that the surveillance was directed at a former employee of the respondent. The complainant believes that it was because of his disability that he was enticed into the canteen and also that the camera had been installed. He believes that a person without his disability would not have been manipulated in this way.

2.7 When the internal investigation into the camera incident was complete the Maintenance Manager decided that the complainant was to be excluded from the hospital. He did this through entrapping the complainant by loitering around the recycling area on the approach to the canteen. In issuing the letter to the complainant the Maintenance Manager discriminated against the complainant on the grounds of disability and harassed him.

2.8 Since then, the complainant has been treated differently in accessing all the respondent services. He is now approached by security on all visits and asked his business and if he has an appointment.

2.9 The complainant wrote on two occasions to the Maintenance Manager but received no reply. Instead he received a letter from the General Manager. The complainant wrote on three occasions to the General Manager but received no reply. Instead he received a letter from solicitors threatening legal action.

2.10 On another occasion, on 9th February 2015, when he was hand-delivering letters, the complainant was chased by the General Manager through the hospital. The complainant had to seek medical assistance as a result.

2.11 There were two further incidents involving the Facilities Manager. On one occasion, in April 2015, he pursued the complainant until the complainant took refuge in the chapel where the Facilities Manager continued to follow him.

2.12 On a second occasion when the complainant had been at the Mens Shed and had accessed the main building through a rear door, the Facilities Manager forced the complainant to exit the building by a different route and body slammed him against the wall to prevent him using the same entrance by which he had entered in the first place.

2.13 On 10th December 2015 the complainant attended the restaurant in the hospital when Christmas lunch was to be served to staff and members of the public the Catering Manager informed him that he was not welcome. The Catering Manager emphasised that if he did not comply the complainant would be removed by security.

2.14 As a consequence of his treatment the complainant now has a phobia about using the respondent’s services.

3 Respondent’s Submission

3.1 The complainant is a former employee of the HSE and completed a form ES3 on 1st April 2015 in which he alleges he is a person with a disability and that he was harassed or allowed to be harassed, victimised, and discriminated by association. At the hearing the complainant dropped the claim of discrimination by association and/or indirect discrimination.

3.2 The complainant is not a person with a disability within the meaning of the Equal Status Acts and there is no evidence presented to verify any alleged disability.

3.3 The complainant has not been denied any ‘service’ or refused access to any service provided by the HSE. The service required to be provided is detailed in Section 7 of the Health Act 2004.

3.4 The complainant was not the victim of direct discrimination. He was not informed that because he had a disability he was not permitted access to the hospital. He was informed his access to the hospital was restricted by virtue of the fact he was informed by the Hospital personnel that his access to the building generally was restricted. He was expressly informed this did not apply if he had a genuine reason to attend the Hospital or if he required access to any of its services. This direction is in no way connected to any alleged disability on the part of the complainant.

3.5 The respondent contends that its instruction to the complainant in terms of access to the hospital is not a restriction of any ‘service’ contemplated by the Equal Status Act. The Act defines ‘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,

In this context ‘access to and use of any place’ usually means physical access.

3.6 The complainant was not denied access to the hospital and he was never denied access to the services of the HSE. He is physically able to access the hospital and indeed he entered multiple times both for direct services and ancillary activities such as the Mens Shed. He was informed he was not entitled to attend at the hospital and to the parts of the hospital which were for employees only and/or to attend at the hospital when he did not have a purpose for being there. The hospital is not a public place or a place that the public have unfettered access to. Any person who behaved in an identical way to the complainant and who does not possess a disability would be treated in an identical way to the complainant. There is therefore no evidence of any disadvantage to the complainant.

3.7 The complainant continued to attend the hospital without seeking to utilise the services including four visits to the HR section, three years after his employment had ended.

3.8 In relation to the question of victimisation the complainant’s own submission states that this was because he had taken the HSE to the Employment Appeals Tribunal. This, while denied, is unrelated to the Equal Status Act.

4        Conclusions

4.1 Discrimination

Section 38A (1) of the Acts provides that the burden of proof is:

"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."

It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

4.2 The first issue to be decided is whether the complainant has established that he has a disability within the meaning of the Act. The Act defines disability as;

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

4.3 The definition of disability is the same in the Employment Equality Acts and simply sets out in general terms conditions and impairments which can be considered to be a disability for the purposes of the Acts. The definition does not require that a disability meet a particular threshold of severity for the condition or impairment. I note that the complainant is on the national rehabilitation register and am satisfied based on the evidence presented that the complainant suffers from a disability for the purposes of the Act.

4.4 The complainant is claiming direct discrimination, harassment and victimisation. At the hearing the complainant argued that the respondent was in breach of the Section 2 of the Act which, in defining service states;

“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,

4.5 The complainant argues that there was an obligation on the respondent to provide reasonable accommodation to the complainant in relation to accessing the hospital. In relation to reasonable accommodation Section 4 of the Act states;

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.

4.6 ‘Access to’ a building or enterprise must be seen in the context of the service provided ie. access to a building in order to avail of the service. A fundamental question therefore is whether or not the complainant was seeking to access a service when asked to leave the hospital. The Health Act 2004 describes a wide range of services to be provided by the hospital. However, this does not extend to providing a center for social interaction, whether with previous colleagues at work or otherwise and there is therefore no obligation on the respondent to make any accommodation for the complainant in this regard.

4.7 If there was any misunderstanding in this regard for example, where the complainant believed that he was entitled to be there by invitation of ex colleagues, this was clearly superseded by the formal communications from the responsible persons acting on behalf of the respondent. At this juncture I don’t believe there should be any misunderstanding on the complainant’s behalf that he is entitled to access the hospital for the services it provides and not for other reasons such as social interaction with ex colleagues. It is for hospital management to determine what parts of the hospital, or other facilities on the campus, are available to the public and all members of the public, including the complainant should abide by that decision.

4.8 I note the assurances given that the complainant will be afforded full access to the services provided by the respondent. The position of the respondent was articulated concisely in the Maintenance Manager’s original letter of 24 October 2014 in which he stated;

‘Only hospital staff members and other authorised staff have approved access to areas such as the staff room, workshop etc. From an organisational safety and security perspective, members of the public cannot have unfettered access to all areas of the hospital. I would like you to desist from entering these areas reserved for staff only. As a member of the public you are of course welcome to attend the hospital as a service user or visitor.’

4.9 When present in the hospital to access the services which the respondent provides, the complainant should be entitled to use the restaurant designated for public use on the same basis as any other member of the public.

4.10 As the complainant was not prevented from accessing a service provided by the respondent, a prima facie case of discriminatory treatment has not been established in this instance and therefore I find that the complainant was not discriminated against on the disability ground pursuant to Section 5 of the Acts.

4.11 Harassment

The Act defines harassment as follows;

11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

(c) is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7 ) at which the person is in a position of authority.

4.12 The respondent gave evidence of a concern that the complainant might be mistaken by a member of the public to be an employee of the respondent. They were also concerned for the safety of their employees based on number of incidents which occurred both on the respondent’s property and outside. The evidence given by both parties in relation to the facts surrounding the various incidents which occurred had considerable overlap. What was different was the individual interpretation of these encounters with each side sometimes feeling threatened by the other. This was understandable and arose in a context of mutual mistrust. However, it was open to the complainant to avoid these interactions whereas the respondent, where they felt there was a concern for members of the public or staff, had a duty to act. The respondent has a duty of care to both the public and to its employees to ensure their safety and therefore should ensure that no unauthorised person is given access to restricted areas of the premises. This would include all work areas, whether used informally as a canteen or otherwise. The incidents which occurred between the complainant and various members of the respondent’s management must be seen in this context. In many of the instances complained of the complainant was not availing of the services of the respondent. In all instances the respondent took the necessary measures to ensure its duty of care to the public and staff which measures would apply equally to any member of the public regardless of disability. I find that the measures taken were reasonable and, as the complainant failed to establish a link between his disability and the actions taken by the respondent, this does not constitute harassment under the Act.

4.13 Having regard to the evidence adduced, I am satisfied that the complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment contrary to Section 11 of the Acts.

4.14 Victimisation

The next element of the claim that I must decide relates to the complainant’s claim that he was subjected to victimisation contrary to the Act. The definition of victimisation contained in section 3 of the Acts has essentially three ingredients. It requires that the complainant had taken action of a type referred to as a protected act; that the complainant was subjected to adverse treatment by the respondent and; that the adverse treatment was in reaction to the action having been taken by the complainant. The complainant has not advanced any such evidence in this instance and therefore I conclude that he was not victimised within the meaning of the Act. At the hearing the complainant argued that he was victimised as a result of his involvement in the CCTV incident and therefore, not in relation to a protected action under the Equal Status Acts. Having carefully examined claim of victimisation, I find that the complainant has not established a prima facie case in this regard.

5        Decision

5.1. I have investigated the above complainants and make the following decision in accordance with section 25 of the Equal Status Act 2000 to 2014 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

The complainant has failed to establish a prima facie case of discrimination in this instance and therefore I find that the complainant was not discriminated against on the disability ground pursuant to Section 5 of the Acts.

The complainant has failed to establish a prima facie case of harassment in this instance and therefore I find that the complainant was not harassed pursuant to Section 11 of the Acts.

The complainant has failed to establish a prima facie case of victimisation in this instance and therefore I find that the complainant was not victimised pursuant to Section 3 of the Acts.

 ____________________

 Shay Henry

 Adjudication/Equality Officer

13th February, 2019