Complainant

Respondent

Anonymised Parties

A Service User

A Charity

Representatives

  N/A

Seamus Given Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030088-001

02/08/2019

The complainant alleged that she was, in nine separate respects, discriminated against on the grounds of family status as well as disability and that, as a result of that discrimination, the respondent failed to provide goods/services to her daughter.

The complainant made a number of allegations against the respondent which she claimed amounted to discrimination. She stated that the respondent failed to carry out a school inspection in 2016 and did not alert the school of her child’s condition, which meant that she had no access to a safe toilet. She also claimed that she requested and was refused a buggy on numerous occasions before ultimately receiving it. She alleged that the reasons for refusing to give her the buggy and the ensuing delays caused her significant physical and mental stress. It was also claimed that she was told by an employee of the respondent, Ms A, to use her domiciliary allowance to buy a car as that was what the allowance was for. It was further alleged that the complainant’s daughter did not receive physiotherapy and that she (the complainant) was accused of cancelling the treatment when the physiotherapist had in fact cancelled. She also claimed that no feeding mats were ever offered to her which meant that she had to get them from another charity. It was also alleged that both she and her husband were refused an external audit of their complaints. She also claimed that the terms of an apology given to her by the organisation in respect of Ms A’s behaviour were inadequate. She also alleged that her complaints were not dealt with properly and that the centre in her local area was very run down compared to a centre in another area.

The respondent disputed that any of the complaints made by the complainant amounted to discrimination. It was also stated that all of the complaints were addressed and dealt with by way of correspondence. 

Preliminary Points:

1.       Given that the complainant in this matter is a minor, represented by her mother, I have exercised my discretion and chosen to anonymise the decision.

2.       Section 21 (2) of the Act sets out the notification steps that a claimant must take. Specifically, it provides

“Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

And

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission… question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.”

While no such notification was made by the complainant, I note that Section 21 (3) of the Act provides as follows:

(a)    On application by a complainant the Director of the Workplace Relations Commission or

(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 complainant 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 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.

Therefore, in order for me to dispense with the statutory requirement for the complainant to have complied with Section (2) of the Acts so as to enable me to hear the substantive matter, I must be satisfied that:

(i)                   “it is fair and reasonable in the particular circumstance of the case” to dispense with the requirement for the complainant to have done so

Given the ongoing relationship between the parties, the respondent’s long-standing awareness of the issues and the absence of any prejudice, there are grounds to dispense with the notification requirement and I must now examine whether or not the different complaints have been made within the statutory time limits.

3.        

Section 21(6)(a) of the Act states:

Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the

date of its most recent occurrence.

The Complaint Form was filed on 2 August 2019, and accordingly, the six-month limitation period commenced on 3 February 2019. I note however that

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”.

And refer to the case opened to me by the respondent, namely Cementation Skanska v Carroll which draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation where Costello J stated:

“…in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one… the plaintiff has to show is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

While the complainant stated in her evidence that she was not aware of the statutory periods, I consider that this is not “a justifiable excuse”, as Costello J envisaged above, to warrant an extension of time under Section 21 (6) (b) and do not therefore have jurisdiction to hear the following complaints which relate to a time period outside of the six-month time limit as stated by Section 21(6)(a).

1.       The respondent failed to carry out a school inspection in 2016, failed to alert the school of her child’s condition, and did not have access to a safe toilet

2.       The complainant requested and was refused a buggy on many occasions before ultimately receiving the buggy and after 2.5 years of disagreements the buggy was given to her. She contests the reasons for refusing to give her a buggy. She says that this caused her major mental and physical stress. The complainant ultimately received the buggy on 18 December 2018

3.       In January 2017, she says she was told by a Manager of the respondent to use her domiciliary allowance to buy a car as that was what it was for and the manager would not allow her a six week break in the appointments, resulting in her feeling threatened, as a consequence of which she purchased a second-hand car and lost money

4.       The respondent’s daughter did not receive physiotherapy between May 2018 and January 2019, and that she was accused of cancelling physiotherapy when the physiotherapist had in fact cancelled

5.       No feeding mats were ever offered to her daughter, as a consequence of which she had to get them from another charity. This complaint relates a period between 2013 and 2016

The following complaint does not relate to any conduct by the respondent and is also outside of my jurisdiction

6.       One of the centres operated by the respondent is state of the art while the centre which the respondent’s daughter attends is very run down.

Given that the following complaints relate to prohibited conduct alleged by the complainant in the six-month period prior to the matter being referred, I will consider whether or now the complainant was discriminated against in relation to these three complaints.

7.       The complainant and her husband requested and were refused an external audit of their complaints in the Response to collated queries received from the complainant between 3 and 8 April 2019.

8.        The terms of an apology given to her in relation to one of the respondent’s manager was inadequate. Specifically, an apology from one of the respondent’s managers is in a letter dated 29 May 2019 to the complainant, “in response to your queries, XXXX asked that an apology from her was included. Her apology was in respect of any distress she may have caused you (the complainant) and XXX (the complainant’s husband). She believes anything she had agreed to do had been completed.”

9.       The complaints made in letters dating from 3 April 2019 to 29 May 2019 were “not dealt with properly”.

Discrimination

Prior to making a decision on whether or not the respondent engaged in prohibited conduct, I must examine Sections 3 and 4 of the Act.

Section 3(1)(a) of the Acts state that discrimination occurs when one of the conditions set out in 3(2) of the Acts is satisfied, and a person is treated less favourably than another person is, has or would be treated.

Section 3(2) sets out the discriminatory grounds covered by the Acts. Included in these grounds is:

(c) that one has family status and the other does not or that one has a different family

status from the other; and

(g) 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’); and

Section 38A(i) provides as follows:

“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 burden of proof is on the complainant to establish a prima facie case of discrimination on the grounds of disability/family status. It is only if she establishes this prima facie case that the burden of proof shifts to the respondent.

In Dr Teresa Mitchell v The Southern Health Board [2001], the Labour Court considered the extent

of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out. It stated that the claimant must:

“Establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

The Court went on to hold that a prima facie case of discrimination is established if the claimant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on the relevant grounds. If the complainant does not discharge the evidential burden, the claim cannot succeed.

To determine whether the complainant has established a prima facie case, a three-tier test is employed:

First, the Complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In considering the third tier of the test, no evidence was adduced by the Complainant to support her contention, nor was a comparator provided either in terms of a person who did not have a disability or had a different family status. The fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not, therefore, been proven. 

Section 4 of the Act states:

. — (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.

(5) This section is without prejudice to the provisions of sections 7(2)( a), 9( a) and 15(2)( g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.

(6) In this section—

“provider of a service” means—

(a) the person disposing of goods in respect of which section 5 (1) applies,

(b) the person responsible for providing a service in respect of which section 5(1) applies,

(c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6(1)(c) applies,

(e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section, or

(f) a club within the meaning of section 8(1) in respect of admission to membership or a service offered to its members,

as the case may be, and “service” shall be construed accordingly.

“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.

Having reviewed the three complaints made in time, in conjunction with Section 4 above, I note that, in relation to complaints numbers 7 and 9, the Respondent’s complaints policy, details of which were provided to the complainant, provides 2 options for an external review. It would therefore be reasonable for the complainant to have had her complaints reviewed by either of these 2 external bodies if she wanted an external review or believed that her complaints were dealt with inadequately. I am also satisfied that, in relation to complaint number 8, the manager’s apology was adequate in respect of any perceived shortfall in the service provided.

I find that the respondent did not engage in any prohibited conduct

Reasonable accommodation; disability; family status