Complainant

Respondent

Anonymised Parties

A Child

A Childcare Facility

Representatives

Jill Griffin, Solicitor of Farrell McElwee Solicitors

Peter Clarke, Solicitor of Clarke Jeffers & Co Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031911-001

29/10/2019

The issue in contention is a complaint of Discrimination on Disability Grounds by a Parent alleging that his son was not provided with “Reasonable Accommodation” by a Creche. The alleged Discrimination was the refusal of the Creche to accept the child into their facility for the Summer months of 2019.

The Junior Complainant - Child A - began with the Respondent Facility in January 2019 as part of the ECCE Scheme. The pattern of attendance was initially three full days but was reduced to three mornings at Parental request. There were some issues with the child’s interactions with other children and these were reported to the child’s parents. They arranged for a referral to a Speech Therapist who identified that the child was showing some markers for ASD. It was recommended that an attendance of five mornings a week might be beneficial. The Respondent indicated that this would not be possible. At the Respondent’s suggestion the assistance of the AIM (Access and Inclusion Model) programme was sought. Child A was assessed by AIM in March 2019 as requiring Level 4 supports. The AIM assessor again suggested a five mornings a week programme, but this was refused without explanation by the Respondent. The Child’s Speech Therapist attended the Facility on the 11th June and suggested various strategies to the Respondent. At no stage was One to One care mentioned by the Speech Therapist.

On the 14th June 2019 Child A’s father contacted the Respondent to ascertain if Child A could attend on a five-day basis over the Summer to provide continuity prior to the full school term in September. The Respondent indicated that this attendance would not be possible.

The Child’s mother attended a meeting with the Respondent Principal Ms XA on the 17th June 2019. The Principal stated that the Child could not attend outside of ECCE times and would in any event require one to one care. As the ECCE was ending on the 28th June Child A could not attend over the Summer months.

This refusal was profoundly shocking to the Parents as other children were allowed attend over the Summer months. This was, they believed, direct Discrimination against their son due to his disability and ASD markers. The Respondent indicated that Child A had “Challenging Behaviours” and needed one to one care. They could not facilitate this over the Summer as their staff levels were reduced. AIM supports were said to be only available during ECCE times.

The Complainants maintained that the Respondent deliberately misunderstood the needs for one to one care for Child A. This was never a requirement. The Respondent failed in their duty to offer Reasonable Accommodation as required by Section 4 of the ES Act,2000. The refusal to accept Child A during the Summer months was a clear discriminatory act. Child A was improving but still had occasional behavioural challenges. The Crèche simply did not want to deal with this situation over the Summer months.

Any additional costs, if any, (ref to ES Act, 2000, Section 4(2) were clearly “nominal” to a large facility such as the Respondent.

In Legal arguments, the Complainant’s Representative discussed the standard of “Reasonableness” as had been considered by Ms. Justice Laffoy in Cahill v Minister for Education [2017] IESC 29. The onus was on the Respondent to do what was Reasonable and they clearly failed in this duty.

Creches are governed by SI 1604/2006 and particularly Reg No 8 (Management and Staffing) and Reg No 14. The staffing requirement is one adult to 11 children. The initial refusal to accept the Child on a 5 day a week basis as mentioned by the Complainant was based on these Regulations. To accept Child A, as requested, would breach the Regulations. It was not done on any Discriminatory basis. This was fully explained to the Child’s father and the suggestion that there was no explanation given was denied.

Various interactions with the Speech Therapist were referred to. It was pointed out that an AIM Level 4 application had been made in conjunction with the parents. A Level 4 application is the first stage in making a Level 7 application – for a full time one to one assistant.

The Respondent maintained that Child A had displayed behavioural challenges since January and they had assigned, from their own resources, an additional staff member to his Class Room. There was an issue of the welfare of the other children in the Class Room and the additional staff member was there to assist with this as well.

The contact with Child A’s father on the 14th June was described by the Creche Principal Ms XA as was the meeting with Child A’s mother on the 17th June. It had been explained that the ECCE was finishing on the 28th of June. Child A was under the ECCE scheme and it was their understanding that he would not be back until September. On initial enrolment in January the Creche understood from Child A’s mother that, as she was a Techer, she would not need childcare for the Summer months.

The request for Summer attendance was a new proposition for them coming as it did in mid-June.

The Respondent did not have the staff resources over the Summer to facilitate a five-day pattern for Child A. It was also their professional view that, both for Child A and for the other Children in his Room, additional staff over the normal compliment would be required.

It was simply a matter of available resources and there was nothing discriminatory in their refusal. It would have applied to any child. Attendance over Easter and other lesser breaks was possible as Creche staff levels were maintained at normal levels. The Summer period was a time when most Creche staff took holidays and or time off to attend to their own children. It was pointed out that Government standards required Creche staff to be suitably qualified. Getting qualified Summer relief staff was a virtual impossibility.

Getting staff of the required qualifications over the Summer period was a virtual impossibility and the Creche operated on a bare skeleton staff basis in July and August. Child A had been enrolled on the basis of finishing in June when ECCE scheme came to an end. The request for Summer attendance came very late in time. The Creche Summer Attendance Inquiry Form of early June had a return date of the 14th June, but it appears was never submitted by the Complainants.

The Respondent creche had a most honourable record, for almost 20 years. of dealing with all Children and a wide variety of special challenges had been coped with successfully. Child A had his issues but since January the Creche had done everything that was reasonable including providing an extra staff member at their own expense.

Child A was enrolled for September 2019 and would have been welcomed back irrespective of any outcome from AIM regarding a one to one teacher.

For the record the Respondents noted that a formal diagnosis of ASD was not made until August 2019 at which time Child A had left, two months previously, the facility. At no time during Child A’s period with the Creche was any formal diagnosis of ASD or any other disablement condition ever made. It was recognised that Child A had behavioural challenges, but these had been addressed by allocating an extra staff member to his Room.

In Legal arguments the Respondent commented on Cahill v Minister for Education [2017] IESC 29 and advocated that the standards of Reasonableness suggested by Ms. Justice Laffoy could apply to the Respondents case. They had done very thing that was possible to do within the limits of available resources and no discrimination had taken place. Other case Law was also quoted in their favour.

3:1       Relevant Law and Key Issues

3:2     Burden of Proof

The requirements in relation to the burden of Proof in an Equal Status Case are set out by Section 38A of the Act.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the [ Director of the Workplace Relations Commission] under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary

In plain English this requires the Complainant to basically make a valid “inference” that, in this case, an act of Discrimination occurred. This does not equate to proving a case but simply raising an Inference that the case merits , in this instance, WRC Adjudication.

It then moves to the Respondents to rebut the complaints. The complaint was one of a failure to provide Reasonable Accommodation – in this case access to the Respondent Creche during the months of July and August. An allied complaint of Access to Goods and Services was also contained on the original WRC complaint form.

From reviewing the evidence, I was satisfied that an appropriate Inference existed, and the case could proceed.

3:3     The relevant Law is Section 4, Disability, of the Equal Status Act, 2000 and in addition Section 7 Educational Establishments

Discrimination on ground of disability.

4

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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

Educational Establishments -Section 7 (4)(b)

(4) Subsection (2) does not apply—

( b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.

3:4         Key Questions.

3:4:1     Had the Complainant a Disability?

In considering a Disability complaint the first key question is whether or not the Complainant actually had a Disability at the time of the Complaint.

Disability is defined by the Act as follows.

“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;

In this case, as pointed out by the Respondent, a formal Diagnosis of ASD was not made until August 2019 – almost 8 weeks after Child A had left the Creche concerned.

None the less, the Speech Therapist had from February raised concerns regarding “ASD Markers” in the context of Child A’s challenging behaviours. The AIM application and the placing of an extra staff member in the Class Room further indicated that all parties were aware of special difficulties with Child A. The Respondent was a very experienced Creche operator and it was clear to me that they knew, even before a formal Diagnosis, that Child A had special challenges.

To accept that Child A had a Disability in June 2019, when the question of non-admission to the Creche Summer programme arose, would raise the bar quite high for the Respondents, particularly if relying on ES Act,2000, Section 4 (2) greater than a Nominal Cost as a defence for non-inclusion in the Creche in July and August.

The only answer has to be, in my view that all Parties recognised that Child A had difficulties, but these were lay opinions formed in the absence of a formal medical diagnosis.

In considering this case I came to the view that Child A had a Disability (thus allowing the case to proceed) but the arguments were border line between a formal Diagnosis and an experienced lay person’s view.

This brought the question of Reasonableness in non-inclusion for July and Augustcentre stage

3:4:2       Reasonableness

In ADJ-00023366 the Adjudicator, Ms. Buckley, draws on Cahill v Minister for Education [2017] IESC 29.

I quote from Adj 23366

“In her decision in Cahill quoted above Ms. Justice Laffoy at paragraph 65 held that “the service provider is only required to do all that is reasonable, in my view, imports the concept of proportionality into s. 4(1), subject to cost limitation in s. 4(2) and subject also to the provision of special treatment or facilities being expressly limited to enabling the disabled person to avail of the service or to do so without undue difficulty. 

At paragraph 73 Ms. Justice Laffoy goes on to state

“It envisages that a balance is to be maintained between the needs of the disabled person and how those needs are met by the provision of special treatment or facilities to the extent necessary to enable the disabled person to avail of the service, or to do so, without undue difficulty, on the one hand, and the effect of such provision on the service provider in the overall context of the position of the service provider, as the provider of the service, on the other hand.”

In summary the question is - how reasonable was if for the Respondents to decline admission in July and August?

Oral evidence from the Creche Principal, Ms XA ,supported by extensive written submissions were important.

In her evidence, which I found professional, she explained that the Creche had made provision for Child A’s return in September and noted the very high probability of AIM Level 7 support being available. AIM support was not a critical factor and Child A was completely welcome regardless.

The request for attendance over July and August had been considered but in the context of staffing challenges, particularly of securing qualified staff, and the need to maintain approved staff/student ratios, they had been unable to facilitate Child A. The situation was complicated by the fact that the Creche had experience of Child A and his interactions in the School room which had necessitated extra staff. This situation of extra staffing was an impossibility for the Creche operating on a skeleton Summer basis.

Child A had been enrolled for the ECCE programme which ended on the 28th June. The Creche expectation was, from January enrolment, that he would be off when his mother was on Summer Holidays. It was prepared, without reservation, to accept Child A back in September.

Ms XA was cross examined by the Legal representatives for the Complainant. She maintained at all times that Child A was a nice young boy but with some challenging behaviours. They had done everything that was reasonable.

She maintained that, regrettably, for Staff issues and Child/Adult ratios over the July August period they could not accommodate him. There was no suggestion of Discrimination. It would have happened to any other child requesting, late in June, Summer attendance.

Having carefully reviewed the written materials and listened carefully to the Oral evidence of Ms XA I came to the view that her version of events, while at first instance credible, was also open to the Complainants’ interpretation.

The staffing issue was difficult but the Creche involved was a major operation employing some 28 full time staff and some 10-part timers. The Summer Attendance Inquiry had a closing date of the 14th June. The first request for Summer Attendance had come from Child A’s father on the 14th June. Child A’s attendance might have been a headache but not an impossible one.

Taken with the earlier difficulties in getting a five-day week attendance the Complainant’s suggestion that the Creche regarded Child A as a “difficulty” they could do without over a Summer period of reduced staffing appears credible.

After much reflection I came to the view that the Complainant’s version of events was more credible. Discrimination on Disability/Reasonable Accommodation grounds appeared to be a stronger case than the staffing issues raised by the Respondent.

3:5   Conclusion:

3:5:1     Complaint of Failure to provide Reasonable Accommodation

Taking Ms. Justice Laffoy’s observations quoted above in Section 3:4:2 as precedent I had to come to the view that the actions of the Respondent regarding July and August, were not of a standard of Reasonableness such as to sufficiently rebut the Disability Discrimination claim.

The Creche, of the size concerned, albeit operating on a Summer staffing programme should have been able to secure the qualified staff or reorganise internally to cater for the situation. The Govt Regulations referred to are not so inflexible as to make it impossible for a large Creche to manage a situation such as described.

Legally there was no formal diagnosis of a Disability by June although I did not make this a major obstacle in considering the case. There was sufficient evidence from the AIM application and the Speech Therapist to arrive at a Disability situation.

On overall balance and having considered all the evidence both Oral and Written I had to deem that there was a valid case of a discrimination of the Grounds of Failure to provide Reasonable Accommodation during July and August.

The complaint is well founded. Discrimination took place.

3:5:2     Provision / Access to Goods and Services

This complaint was inextricably linked to the Reasonable Accommodation complaint and is as consequence is also technically well founded.

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.

The Complaint of Failure to provide Reasonable Accommodation is deemed to be well founded in the context of the Equal Status Act 2000.

Likewise, the Complaint of Discrimination in the Provision of Good and Services is also technically well founded but has to be seen as an incidental extra.

Regarding the Reasonable Accommodation discrimination Section 27 of ES Act, 2000 sets out the Redress which may be ordered.

27. — (1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

( a ) an order for compensation for the effects of the prohibited conduct concerned; or

( b ) an order that a person or persons specified in the order take a course of action which is so specified.

In view of all the circumstances I do not deem that an order under Section 27:1 (a) for financial compensation is warranted.

However, under Section 27:1 (b) I direct that the Creche concerned review their Summer Admission procedures with particular reference to any children who may have a recognised Disability or are having serious behavioural issues prior to any formal diagnosis.

A copy of revised Summer Attendance proposals to be forwarded to the Complainants for review prior to being forwarded to the Workplace Relations Information/Advisory Unit for information.