Complainant

Respondent

Anonymised Parties

A service user

A job placement service

Act

Complaint Reference No.

Date of Receipt

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

CA-00019308-001

27/04/2018

The complainant was referred to the respondent job placement service. He claims discrimination, harassment and a failure to provide reasonable accommodation. The respondent denies the claims.

In the complaint form, the complainant outlines that he has been discriminated against on grounds of disability, that the respondent failed to provide reasonable accommodation and that he was subjected to harassment.

The complainant served the ES1 form on the respondent on the 22nd February 2018. It is addressed to the respondent and the personal advisor by name. It cites the 19th February 2018 as the most recent date of discrimination and that it has been ongoing since 2017. It outlines that the complainant told the personal advisor at the first interview of his PTSD and his trouble with writing. The personal advisor told the complainant that he had dyslexia and not to return as he would not find full-time employment. The complainant was then informed he had to attend appointments even if he would not secure full-time employment. The personal advisor kept insisting that the complainant go onto a disability payment.

The complainant stated that the personal advisor sought to move him to full-time employment that paid less than his current part-time role. The complainant said that he broke down at an interview and the personal advisor asked that he apply for disability. The complainant said that the personal advisor laughed when the complainant produced a letter from his counsellor and told that the complainant that he would not be released from the respondent. The complainant said that he was berated by the personal advisor on the 19th February 2018 when the complainant said he had a medical appointment the following day and could not attend his appointment with the respondent.

At the hearing, the complainant outlined that he first dealt with a named personal advisor, who told him that he could not find employment for the complainant, so he should not come back. The complainant was required to attend appointments. The personal advisor told the complainant that he had to give up his part-time employment and take up a full-time role. The complainant outlined that he had worked as a barber for the last 35 years.

The complainant outlined that the personal advisor told him to come in and play solitaire, to ensure that the respondent was paid. The complainant said that he brought in a GP certificate, but the personal advisor laughed at him. The complainant had not been able to attend the February appointment as he had a doctor’s appointment that same day. The personal advisor told the complainant ‘I am not happy with this, pal, I have not seen you since December.’ The complainant was unhappy with the attitude of the personal advisor.

The complainant outlined that the personal advisor diagnosed him as dyslexic. The personal advisor wanted the complainant to go onto a disability payment. The complainant complained about this and met the deputy business manager, who told the complainant that he should sign in and go home. The complainant attended two more appointments and then had no more involvement with the respondent.

The complainant said that he is now on disability benefit. He applied for it in June and was awarded the payment in December. The complainant outlined that he was depressed because of these interactions with the respondent.

The complainant said that the respondent had put him through hell. The respondent should have taken his mental health into account but insisted that he attend every month. The respondent acknowledged that it would not be able to find him full-time employment at the first interview in 2017. It did not take account of his mental health. He said that the respondent offered him no service. He had been paused on the service in June 2018 and his application for disability was refused in November 2018, but later successful in December 2018.

The respondent outlined that it is contracted by a Government Department to deliver a service. The complainant was referred to it as he worked casual hours and was in receipt of jobseeker’s allowance. The respondent submitted that there was no breach of the Equal Status Act.

The respondent outlined that the service is tailored to the needs of each client. It is obliged to meet clients face to face and has an agreed complaints process. The complainant’s complaint was addressed by the deputy business manager and then escalated to the operations director. The respondent said that the complainant had shared with the respondent his diagnosis of post-traumatic stress disorder. It was normal practice for a personal advisor to raise a client’s entitlement to disability allowance. It was a matter for the Department to consider whether the client was entitled to payment.

The deputy business manager said that she met with the complainant and told him that she was happy to take over the service from the named personal advisor. The complainant started on the 24th August and made the formal complaint on the 26th February. The offer was made in January or February. The complainant asked that the service be delivered by phone, but the contract requires one to one meetings. The respondent offered that the complainant could access the service elsewhere.

The deputy business manager outlined that the service is a job activation programme with those in established part-time employment. The aim is to get alternative full-time employment with the same employer or elsewhere. The respondent did not put the complainant forward for any other opportunities.

The deputy business manager said that the complainant asked how he could get off the activation process. She replied that she would contact the Department, who told her to pass back the complainant’s file. The Department later notified the respondent that the complainant’s status was paused pending a disability allowance application. The complainant was then referred back to the service for a short period and then awarded disability allowance on appeal. The complainant was not now eligible for the activation process.

The respondent outlined that the personal advisor had a different take on his interactions with the complainant. The respondent said that these issues were addressed internally. It submitted that the complainant’s account was exaggerated, and the personal advisor had sought to gain a rapport with the client. It was unfair to say that the personal advisor laughed. The respondent said that it enquired to see if clients had access to the supports they need when they share additional barriers, i.e. a health issue.

In respect of a named vacancy, the respondent outlined that the personal advisor spoke to the complainant about re-scheduling the appointment. It was moved to the following Monday. On the 22nd February, the deputy business manager took over the service with the client. The complainant was upset and did not want to come into the service. The deputy business manager wanted to encourage him, and he referred to legal action. The respondent dealt with his complaints. The respondent had not referred the complainant to the Department as not cooperating, so there was no danger to his entitlement to his payment.

The respondent outlined that if the complainant did not want to participate in the service, he had to speak to the Department. The respondent received a modest payment when a client starts, and it is a payment according to results, i.e. if the client obtains sustainable employment. The respondent had to meet its contractual commitments, i.e. a monthly face to face appointment.

The complainant interacted with the respondent following a referral from a Government Department. The respondent provides an activation service where it sources interviews and arranges meetings between clients and potential employers. The respondent carries out this function under contract with the Department. The purpose is that the client secure full-time sustainable employment. The respondent outlined that it was obliged to report non-attendance to the Department and this could lead to a reduction in payments a client received. No such referral was made in this case.

Equal Status Act – service

The Equal Status Act defines ‘service’ as ‘a service or facility of any nature which is available to the public generally or a section of the public’ and includes ‘a professional or trade service’. The definition of ‘service’ specifically excludes a service or facility to which the Employment Equality Act applies.

Having considered the evidence and the documentation, I find that the service provided by the respondent is a service within the ambit of the Equal Status Act. It falls within the above definition of service and I find that it is not covered, for example, by the vocational training provision in section 12 of the Employment Equality Act.

The respondent provides a placement service for clients and develops supports to assist clients secure full-time employment. It does not provide a system of instruction regarding the performance of an occupational activity that might be considered as exclusively concerned with this activity.

I, therefore, find that the respondent provided a service within the ambit of the Equal Status Act.

Equal Status Act – burden of proof

The complainant asserts discrimination, failure to provide reasonable accommodation and harassment in contravention of the Equal Status Act. Section 38A provides “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 complainant is required to establish facts that may give rise to an inference of discrimination (the ‘prima facie’ case) and the burden of proof then shifts to the respondent to disprove the inference of discrimination.

Equal Status Act - disability

This is a claim of discrimination, the failure to provide reasonable accommodation and harassment on grounds of disability. It was not disputed that the complainant has a disability within the ambit of the Equal Status Act, in this case post-traumatic stress disorder.

Discrimination / reasonable accommodation

The Equal Status Act prohibits discrimination in the provision of a service. In cases of disability, discrimination specifically includes the failure to provide reasonable accommodation. The duty arises where the ‘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.’ A ‘special treatment or facility’ is not reasonable if it gives rise to a cost ‘other than a nominal cost.’

Harassment

Section 11 prohibits the harassment of those accessing a service. It provides that the ‘responsible person’ shall not permit another person to suffer harassment. It is a defence for the responsible person to show that they took ‘such steps as are reasonably practicable’ to prevent harassment. In this case, the ‘responsible person’ is the respondent. Harassment is defined as ‘unwanted conduct’, being conduct that has ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

Vicarious liability

Vicarious liability is a legal concept where one person is held to be legally liable for the wrong of another. Section 42 of the Equal Status Act provides ‘Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.’ Section 42 also provides a defence for an employer: ‘the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.’

Application to the case

The complainant worked part-time and was also in receipt of a payment from the Department. He was referred to the respondent by the Department as part of an activation initiative, i.e. to secure full-time employment.

As set out, the complainant outlined that he had unhappy relationship with the personal advisor, an employee of the respondent. This included a ‘diagnosis’ of dyslexia, being laughed at and told that he would not find full-time employment. The complainant said that he was pushed to go on a disability payment, which he later did (following a successful appeal). The complainant referred to the stress and anxiety caused by attending appointments at the respondent’s local office.

The respondent outlined that it operated the job placement and other support services under contract with the Department. This required regular face-to-face appointments and the respondent was required to report non-attendance to the Department. The respondent did not accept that the interactions were as described by the complainant and that they were exaggerated. It referred to addressing this internally.

I accept that the respondent is required to meet participants on the activation programme ‘face-to-face’. I note that when the complainant raised issues with the local office, the respondent offered to deliver the service from a different office. I also note that the business manager took over the service from the personal advisor following his complaint and sought to address the complainant’s concerns.

Taking these facts into account, I find that the complainant has not established a prima facie case of discrimination or of a failure to provide reasonable accommodation. When the complainant raised issues, for example, in his meetings with the business manager and the ES1 form, the respondent made proposals and offered accommodation.

The respondent did not accept the complainant’s portrayal of his interactions with the personal advisor. This is, therefore, a conflict of fact. I listened to the complainant at the hearing, and he gave a cogent account of these interactions. This is supported by the ES1, which is a contemporaneous record of his account. I did not have the benefit of the personal advisor’s direct evidence, nor of any of his contemporaneous notes. I accept that the respondent spoke to the personal advisor and accurately relayed what he told it. I must, however, accept the complainant’s cogent account, which is supported by contemporaneous documentation and not contradicted.

It follows that the conversations with personal advisor took place as described by the complainant. I, therefore, find that he was berated and laughed at, in particular when he mentioned disability. The complainant broke down in one such conversation and he suffered stress and anxiety. I do not think that much was created in terms of rapport.

I find that these acts violated the complainant’s dignity and created a degrading and humiliating environment for him. I find that the complainant has established a prima facie case of harassment, which was has not been rebutted by the respondent.

I find that the respondent is vicariously liable as these acts were committed by its employee during the ordinary course of his employment, i.e. meeting clients. It has not established that it took the reasonably practical steps to prevent this from taking place. It was equivocal whether it took place as described but stated that it had been dealt with.

It follows that there was a contravention of the Equal Status Act in that the complainant was subjected to harassment on the disability ground. The complainant spoke of the effect this had on him, in particular over the series of appointments. I note that the respondent did act once the business manager became involved. The contravention and the harassment took place, so an award of redress is warranted. Taking these factors into account, I award redress of €1,000.

CA-00019308-001

I decide that the complainant has not established a prima facie case of discrimination or of a failure to provide reasonable accommodation. I decide that the complainant was subjected to harassment on the disability ground in contravention of the Equal Status Act. I decide that the respondent shall pay to the complainant €1,000 as redress for this contravention.

Equal Status Act / disability

Discrimination / reasonable accommodation / harassment