Complainant

Respondent

Parties

Anne Marie Davy

MCD Productions

Representatives

Self

Peter Ryan RA Consulting

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031535-001

13/10/2019

The case is concerned with the events of the 4th of July 2019 when the Complainant who has what she describes as a “hidden” disability attended a concert organised by the Respondent MCD Productions. The complaint is one of discrimination by a person, organisation/company who provides goods, services, or facilities. The specifics of the complaint relate to her interactions with members of the security company during which she was refused access to the disability bathroom facilities. She alleges there were two incidents on the night where she says her having a disability was questioned by different members of the security staff when she tried to access the disabled bathroom. The security provider operates as a separate entity from the named Respondent.

The name of the event organiser and therefore the correct name of the Respondent as intended by the Complainant was addressed. She had notified the WRC of the name she intended as the Respondent. The notification was issued by the WRC to another, connected company. MCD Productions confirmed that theirs was the correct name for the respondent organisation (which is not a limited company)for the purposes of the hearing and the decision.

At the hearing issues were explored and debated in some detail following written submissions from the parties. The core issues for consideration are concerned with the liability or otherwise of the named Respondent for the actions of an employee of another the security provider. If it is determined that the Respondent is liable for the actions of the security provider, the primary question which follows is whether there was discrimination against the Complainant and if so, in what form. If it is found that there was discrimination and that the Respondent is deemed liable for the actions of the security provider, whether the steps taken to ensure no occurrence of the events described by the Complainant were such that there is no liability and /or there ought not be any redress for the actions of what was described as a rogue employee (in relation to the first incident). There is some dispute about the second incident. The question of the inference to be taken from the failure of the named Respondent to reply to the notice of possible legal proceedings also arises for consideration.

On the question of anonymity of the parties, while disclosing the name of the Complainant does involve detailing some personal medical issues including her personal need to access a disability bathroom, she said she had no objection to being named. The Respondent both in terms of answering the complaint and on the matter of anonymity expressed extreme concern for the implications of a decision upholding the complaint and disclosure of the name of the entity given the strict terms imposed by the OGB where in their tender documentation they state:

“An economic operator who answers “yes” in any of the situations set out in paragraphs 2.1.a to 2.1.i will be excluded and please indicate if any of the following situations have applied within the last three years or currently apply to your organisation... has in the performance of any public contract failed to comply with the applicable obligations in the field of environmental, social and labour law applying at the place where the works were carried out or the services provided, as established by EU law, national law, collective agreements or by international environmental, social and labour law listed in Annex X of Directive 2014/24/EU.”

Having considered the aspect of anonymity carefully, I have opted to disclose the names of the Respondent and the Complainant. I am satisfied that the Complainant never hid her disability from the Respondent from the outset of her dealings with them or indeed with the security staff and so this decision discloses nothing she was not prepared to put into the public domain when necessary. Crucial to this ruling regarding anonymity, the Complainant has raised a matter of public interest in highlighting the extent to which there is a requirement on service providers to ensure that the provision of support services to those with disabilities is not linked either in theory or in practice to a subjective understanding of what is constitutes a disability including the related differentiation between different disabilities in terms of access to facilities. The complaint raises an issue of whether imposing a barrier to access to separate facilities is in itself a form of different treatment which poses an additional and discriminatory burden on those with disabilities. It is possible to conceive the circumstances which occurred in this case arising again and so, there is a responsibility to ensure that the Respondent in this case and others who are providing the same services at events such as this one (of which there are many and varied) understands their obligations towards those who have disabilities in general including those with hidden or at least less obvious disabilities. There is also I believe an obligation on those who engage subcontractors who interface with the public in their stead, to stipulate what is required of them in terms of ensuring that there is no discrimination against those with disabilities, hidden or otherwise.

A face-to-face hearing of this case was postponed due to the onset of restrictions of public movement related to Covid-19 and the request of the Complainant to hold the hearing remotely was facilitated with a remote hearing in December 2020.

The Complainant purchased tickets to attend an outdoor concert on the grounds of Trinity College Dublin on the 4th of July 2019. The main organisers were MCD Productions and it is the Complainant’s understanding that they were responsible for all access and security arrangements and therefore they are ultimately responsible for the acts of discrimination against her when members of the security team denied her access to the bathroom intended for disabled persons.

On the day of the concert the Complainant had an exchange of emails with MCD which was as follows:

“Hi

I shall be attending the above concert tonight but note that bags and backpacks will not be allowed. I am an oncology patient and have additional medical needs and need to carry medical supplies/appliances with me. I also have an ostomy so require access to an accessible bathroom. Could you please let me know what I should do as I don’t want my bag confiscated on arrival.”

MCD replied:

“We do understand your request regarding your needs. With this, I must stress & outline the below when entering the concert site.

When approaching security at the venue, please explain your situation supported by medical documentation if and where possible. I would advise this is done before security conduct their search, and with this, you will be permitted entry to the venue with your requirements. We also understand your request re backpacks, and can advise therefore that small bags and small backpacks will be permitted but we advise to bring as little as possible with you to the event cause it makes searching at entrances quicker and easier.”

On the following day, the Complainant emailed MCD Productions outlining her experience the previous evening and the basis of what is now her complaint under the Equal Status Act:

“I am pleased to advise that I had no issue on entering. I am however disappointed to report that during the concert I was refused access to the disabled bathroom facilities - despite the fact that I politely told the attendant I had a medical need to use it. the attendant looked me up and down and asked what was wrong with me. I was upset, shocked and humiliated having to explain I have had part of my bowel and rectum removed (as well as other organs) and have a stoma and need access to disabled bathroom to change. Clearly there was a lack of training on his part and I immediately reported the incident to the [security] staff to pass on to the management team. One female attendant allowed me access and apologised for her colleague’s behaviour. She also told him that he should never question why someone wishes to use the disabled bathroom facilities. I passed my details on to another security attendant [named] and I am currently awaiting a phone call from X, one of the event managers, to discuss further.”

She went on to describe the inadequacy of the facilities within the accessible bathroom where there was no hygiene bin and she then carried her ostomy bag out of the bathroom where she placed it a bin bag being used by a cleaning attendant and continued:

“This was the first concert I had attended since receiving my diagnosis two years ago and I was really looking forward to it but unfortunately what should have been an enjoyable evening sadly was not due to missing part of the concert trying to address the above issues. To make matters worse, I attempted to use the disabled bathroom a second time, just as the concert ended, and was refused again! There was a different attendant who clearly had been made aware of the earlier incident as he tried to backtrack when I told him this was the second time it had happened.”

The summary of the second incident is that after the concert when she went back to use the bathroom, she was again challenged by a member of the security staff about her entitlement to use the facilities. She said she told him this was the second time this had happened, at which point he did move back the barrier and she thinks he may have apologised, but she had enough at that stage and walked away. Her friend said that they should not let it go and subsequently spoke to a named person whom she knew only by his first name but whom she understood to be the site manager.

There followed some telephone calls and exchanges of correspondence between the Complainant and the Respondent. Some of those communications were with representatives of the security company and she was advised by the CRU at Trinity College that MCD were responsible for the organisation of the event. Dissatisfied with the way her issues were being addressed, primarily down to delays, on the 6th of August 2019 she issued a notification of possible legal action contrary to the Equal Status Acts 2000-2015 on grounds of disability. In that correspondence she sought replies under ten headings included in which were an enquiry as to why when she set out her medical needs in advance of the concert what steps if any were taken to ensure those needs would be met; what investigations were undertaken regarding her complaint; what steps were in place to ensure something similar did not happen again. She received no reply to this communication addressed to MCD Productions.

At the hearing and in response to the submission of the Respondent the Complainant questioned the policy of having a barrier in front of the disabled facilities and contended this practice represented a form of discrimination.

The treatment which she experienced twice on the night of the concert, represented different and discriminatory treatment of her compared to a wheelchair disability who would have an evident visible disability and would not be refused access to the facilities. She was embarrassed agitated and upset by the treatment she received when she was looked up and down by the first security operative as if to ask where was her disability or where was her wheelchair. He told her he had been instructed to only allow entry to people in wheelchairs.

The summary of the second incident is that after the concert when she went back to use the bathroom, she was again challenged by a member of the security staff about her entitlement to use the facilities. She said she told him this was the second time this had happened, at which point he did move back the barrier and she thinks he may have apologised, but she had enough at that stage and walked away. Her friend said that they should not let it go and subsequently spoke to a named person whom she knew only by his first name but whom she understood to be the site manager.

She questioned whether the training to the named employee of security company was adequate and in particular she questioned the validity and robustness of such training including the training documentation which was made available by the security provider. She noted that a significant number of policy documents were signed by the named employee, 12 in all, where he signed a document under multiple headings “Information and pre-employment record” dated 13th of December 2018. Commenting on a document entitled [security provider] steward briefing disabled toilet duty” and a version for the 14th of February 2019 prepared by the manager from the security company who attended the hearing, she describes the document as commendable but stated that it did not provide evidence that this training had in turn been provided to the steward in question who may not have been someone regularly employed on disabled toilet duty. She noted that the penultimate paragraph of the training document stated: “If the disabled toilet is designed for wheelchair users, then customers who are wheelchair users should be given priority over those that are not” and asserted that this contradicts the information in the previous paragraphs in relation to avoiding assumptions regarding disabilities and that the statement itself is discriminatory in its own right as it differentiates between different forms of disability. Noting the contention of the security company that, when questioned as to his actions on the night, the employee in question, said that he was confused, the Complainant suggested that it was not surprising in the circumstances given the contradictory documentation and guidance.

The Complainant rejected as irrelevant the reference by the Respondent to the particular employee’s ethnic origins; the reference to “a chancer mentality in Irish society”; references to social events where merriment exists, and alcohol is being consumed as providing a justifiable reasoning for the various issues she encountered at the event as each entirely irrelevant to the   discriminatory actions of the security provider acting on behalf of MCD as the event organiser.

In respect of the law the Complainant’s position is that, as the event organisers MCD are liable for the facilities provided at the venue and for ensuring that there is no discrimination; that as the refusal to allow her access to the facilities for the disabilities on at least one occasion is not disputed, she has established a prima facie case of discrimination; that the act of discrimination does not have to be intentional to be unlawful.

The Respondent’s position in summary is that they are not vicariously liable under the Equal Status Act for the conduct of an employee of the security company; that in any event every reasonable effort was made to ensure that no act of discrimination could occur through the provision of appropriate disability awareness training; that such training is provided and the policy clear to employees as demonstrated by the reaction of a female employee approached by the Complainant after the first incident who provided access to the bathroom and corrected the first security operative who had refused the access; and that the problem stems from the conduct of the security worker in question who when questioned was remorseful and visibly upset stating that he “got confused”. He was described as a rogue employee in terms of his conduct on the night. The employee in question has not been in touch with his employer since he was questioned about the incident, and his whereabouts are unknown.

A manager from the security company gave evidence as a witness regarding the night in question, the training measures which had been introduced by the same manager and the instruction and direction which was given to all employees including the disability training and related policies provided to the first named employee who it is said acted contrary to the training provided on the night in question. He outlined his own professional background, knowledge and personal understanding of the issues involved.

Respondent submission:

“While training, policies, procedures and briefings did apply and continue to apply, recognition should also be given to the fact that hidden/invisible disabilities are just that. We should also be mindful of a “chancer mentality” which exists in Irish society and may be particularly evident during social events, where merriment exists and where alcohol has been consumed.

Once the first incident on the night was notified to MCD and the security company there was extensive engagement with the Complainant and apologies were provided. Initially the position of the Complainant was that she would accept complimentary tickets to a point where she rejected an offer of compensation and was still maintaining that she wished to proceed with her case notwithstanding the apologies and the offers to resolve the matter. She displayed no concern for the future employment prospects of people who worked for them across events in light of the stipulation in the procurement policy referenced in the Background to this decision.

MCD submitted that despite requesting related guidance from the independent statutory body which provides information and advice on policy and practice relevant to the lives of persons with disabilities, the NDA has, so far, not offered clarity (CF. email of February 4th, 2020). Employers and service providers wishing to preserve the rights of persons with disabilities should not be shamed, nor exposed to mass claims, as a consequence of their inability to see what is hidden or invisible- particularly when there is an absence of guidance from experts and legislators. If the experts find this challenging, the impossibilities facing employers and service providers should not, in justice, be ignored.

The Respondent representative posed the question what else could have been done by the security company on the night. Accessible facilities were available for those with disabilities, the individual employee of the security company had received training, that employee had breached the guidance and policy of his employer, the Respondent and the security company had apologised to the Complainant and sought to compensate her for what had occurred. Regarding the alleged second incident, this was not raised by the Complainant in the complaint document or in the notice of legal proceedings on August 6th, the person referenced as spoken to by the Complainants friend is not an employee of either MCD or the security company. On the specifics of this second incident, it is evident that the security person did offer access to the complainant after she spoke to him and she then refused to use the facilities.

Regarding the legal considerations it was submitted that section 3(1)(a) of the Act states that discrimination should be taken to occur where “a person is treated less favourably than another person is, or would have been treated”. Importantly, it was not clear that the Complainant had a disability (she alleges that she was “discriminated against on the basis of having a hidden/invisible disability”). Accordingly, she was not treated less favourably than any other patron (either with a hidden disability or with no disability) who may have sought access to the accessible toilets which were being manned by the steward in question. The Complainant was granted access to the accessible toilet facilities on the first occasion - albeit after some discussion. In relation to the second alleged occasion, there is no evidence other than her account to support this allegation. She does say that this second security employee “may have realised he’d made an error as he began to open the gate and I think he may have also apologised as I turned to walk away but I carried on walking...”. It is emphasised that neither MCD nor the security company have any information in respect of the second alleged incident.

The fact is that the Complainant was granted access when she referenced her condition (immediately on the second alleged occasion and after intervention on the first).

“To this end, the actual/eventual consequence associated with Mr D’s failure to treat Annemarie as favourably as someone with an apparent or visible disability was not to preclude access. Rather it was a disbelief or perhaps cynicism (we can only speculate) given the “chancer mentality” which can exist in Irish society - followed by access a couple of minutes later.”

Addressing the response to the Complainants email prior to the concert, there was a response, and her concerns about her bag and belongings were addressed. It was not reasonable to expect that every member of the security staff would then be informed that a customer might present on the evening with a particular disability. There were thousands of concert goers that evening.

Reasonable accommodation in the form of accessible toilet facilities were available and provided as per section 4 of the Act. Posing the question as to whether it was the intention of either contractor to discriminate against people with disabilities and replying no, that the intention was to ensure that accessible toilets were reserved for the exclusive use of those with a disability. It was submitted that in the spirit of justice these organisations certainly should not be punished for their good intentions. Every effort had been made to comply with both the legislation and the spirit of the legislation through specific training, policy development/implementation, staff meetings and the issuance of relevant guidelines - the organisation should not be penalised for the actions of an employee who chose not to follow same. Similarly, the livelihoods of staff should not be jeopardised (through public contract preclusion) because of a wish to shame the Respondent.

‘Extremely serious consequences arise as MCD is required to bid for public contracts and allegations of findings of discrimination can be detrimental in such cases.’

‘MCD now risks; financial penalty public shame the loss of public contracts(exclusion from tender processes)and unfavourable media coverage. This arises not from any unreasonable or unfair action on its part, but because an entry level employee in a third-party contractor company failed to follow the guidelines, instructions, policies and procedures which are and were in place and which he received training and instruction on.’

‘..the livelihoods of staff should not be jeopardised(through public contract preclusion) because of a wish to shame the respondent.’

In relation to the failure to respond to the notice of legal proceedings and the related questions, that request was not addressed to anyone. It appears to have been passed to a now former member of staff at a particularly busy time. The Respondent was unable to locate the document but there was no deliberate intention or decision not to respond.

The following are the extracts from the Equal Status Act 2000 which were considered in arriving at a decision in this matter in the order in which they arise:

Section 42, Vicarious liability:

“(1) 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.

(2) Anything done by a person as agent for another person, with the authority (whether or express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that 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.”

Part I section 2 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”.

““discriminate” means to discriminate within the meaning of section 3(1) or 4(1)”.

“3(1)[ For the purposes of this Act discrimination shall be taken to occur - (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation... (c) where an apparently neutral provision [would put a person] referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary]

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act are) ….

(g) that one is a person with a disability and the other either is not or is a person with a disability (the “disability ground”)”.

Section 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.”

Section 5(1) is the opening section of Part II of the Act, titled “Discrimination and related activities.” This section specifically addresses the disposal of goods and the provision of services.

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.’

Subsection (6)(b) tells us that a “service provider” is, “(b) the person responsible for providing a service in respect of which section 5(1) applies”.

Section 26:

“If, in the course of an investigation under section 25, it appears to the [Director of the Workplace Relations Commission] - (a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b) ... the [Director of the Workplace Relations Commission] may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).”

Findings

There can be no question but that the Complainant was both humiliated and extremely embarrassed by the treatment of her by not one, but two members of the security staff at the event on July 4th, 2019. In arriving at this conclusion, the evidence of the Complainant, that there were two separate incidents on that night, one during and one after the concert is preferred. While in correspondence between the Complainant and various parties they tended to place more emphasis on the first incident, it is a matter of fact that in her first communication to the Respondent (05/07/2019) the Complainant stated: ‘To make matters worse I attempted to the disabled bathroom a second time, just as the concert ended, and was refused again!’ Nothing in her notification of possible legal action [within the Equal Status Act] delivered on August 7th, 2019, which forms part of the procedures leading to the WRC, could be interpreted as implying that she was referring to only one incident on the night. The conclusion is that the Respondent made no effort to enquire into that second incident, preferring to hold the so-called rogue employee responsible for the only incident which was investigated. It is not unreasonable to conclude that it is convenient for the Respondents to rely on this narrative for the purposes of their defence, as to acknowledge the occurrence of the second incident or to accept that the behaviour in that instance did also occur, would severely underline the contention that in effect but for that rogue employee, all was or would have been well.

In her notification letter, the Complainant also raised other issues: failure to provide ‘reasonable adjustment’ -a reference to the absence of any bin within the bathroom where she could dispose of ostomy bag and the fact that the disabled toilet was behind a barrier, unlike the general toilet and the discriminatory distinction made to her on the night between a person with one disability and another, specifically the access allowed to or confined to those in wheelchairs. The Respondent points to the absence of any previous reference to the toilets being reserved for the use of those with wheelchairs, now being contended before the hearing. However, as the underlying principle behind the refusal to allow the Complainant access to the bathroom facilities, was the differentiation between her and a wheelchair user and her right to access on the same basis as the wheelchair users, the question of access being reserved is implied within the complaint, if not expressly stated and the Respondents point is not regarded as having any bearing on the matters to be decided.

Overall, I found the evidence of the Complainant regarding the events on the night of the concert compelling, consistent with her communications with various parties, especially MCD, and detailed clear recollections on every point at issue. Noting the Respondent did endeavour to resolve the matter with the Complainant, while apologies were issued in respect of the first incident from an early stage, the failure to put their own house in order by following through quickly on earlier and far less expensive terms together with the failure to address the notice of legal proceedings did nothing to assuage the Complainant. If anything, it is reasonable to conclude they intensified her sense of wrong, and a failure to understand or genuinely recognise that hers was not merely a sense of grievance but a real feeling of having been wronged and a growing sense of having been discriminated against. Having heard the complaint in full and the reasoning set out by the Respondent, it is not difficult to understand her increasing scepticism about their bona fides in this matter i.e., that they really understood and by extension, accepted, what was issue and their responsibilities and indeed those of the security provider whom they engaged and with whom they have worked closely for many years, according to their own evidence.

Preliminary Issue-Liability of the Respondent

The preliminary question which arises is whether the named Respondent selected by the Complainant is the correct one. That this question arises, is because the employees with whom the Complainant experienced her difficulties on the night were employees of the security company and not the Respondent. The security company had operational responsibility for the bathroom facilities. To decide the preliminary point, the terms of the legislation at Section 42 must be applied. As subsections (1) and (3) refer to the employee and the employer, these have no relevance in the case of MCD who was not the employer in this case. This leaves the applicability of subsection (2) for consideration:

‘Anything done by a person as an agent for another person, of that other person shall, in any proceedings brought under the Act, be treated for the purposes of this Act as done also by that person with the authority (whether expressed or implied and whether precedent or subsequent’)

MCD were the organisers of the concert and as such, had a contract with the complainant which included an implied right to the availability of all the necessary health and safety facilities at the venue. Based on that contract, the complainant emailed MCD about her needs on the day of the concert-and they replied to her directly. There was no distinction drawn to her attention between the existence of a separate security provider, or that the security provider had sole responsibility for the bathroom facilities. The reality is that when MCD subcontracted the operation of the security and access arrangements to the security provider, the security provider became the agent of MCD, and in becoming that agent did so with the implied authority of MCD ’that other person’. Thus the ‘other person’ in this case MCD, does not have to approve of anything done by their agent per se, or even be aware of it, but they are vicariously liable for what is done by that agent. Correspondingly they had an obligation to ensure that the agent, acting with their authority, did so in terms stipulated by them and not relying on the agent to get it right on the night so to speak. Moreover, once they were informed by the complainant of her needs as a disabled person on the morning of the concert, they took on a direct responsibility for ensuring those needs were met but did nothing to inform the security provider of those needs.  

This connection between a security provider and a contracting entity, in that instance, a retailer, was decided in ADJ-00023461 where the Adjudication Officer, relying on earlier Decisions Axinte v Q Bar Dublin DEC-S2205-094 (also concerning the actions of a contracted security guard) decided that it was the retailer and not the security provider who were the correct Respondent. In her Decision she gave as her reasoning:

‘The full panoply of goods and services provided by the store includes the safety and security of staff and customers. The retail store entrusts the respondent to carry out this function on their behalf when dealing with customers trying to access their store and to use their judgement as to who should and should not be admitted to the store. The [security company] is responsible to the retail store for how it exercises its function.’

If there were any remaining doubt about the liability of the Respondent in this case for the actions of the security company, including its employees at the venue, the extent of their control over the security provider is demonstrated in the email to the complainant on the day of the concert, giving her detailed advice as to how to approach security regarding her belongings down to the sort of bag she should bring, indicating a significant degree of closeness between MCD and the operations of the security provider, tending more towards an expressed authority and not one at considerable remove such as might be taken from the term ‘implied’ authority in subsection 42 (2) of the Act.

Applying the same reasoning as in the earlier Decision, taking account of the terms of the legislation and the facts in this case, the conclusion is that MCD Productions are the correct respondent for the purposes of this complaint and are liable for any discrimination against the Complainant in this case.

Complaint of Discrimination

The Complainant has a disability within the meaning of Section 5(1) of Part 11 of the Equal Status Act-a total or partial absenceof a person’s bodily functions….’On the night in question she required access to bathroom facilities for the disabled for the reason she explained at the hearing and are not necessary to detail in this decision. She required a hygiene bin to be available in the bathroom to dispose of her ostomy bag. None was provided because of which she had to carry the item from the bathroom and dispose of it in a bin bag being used by an attendant who was picking up rubbish, adding to her discomfort about the whole situation(apart altogether from the matter of hygiene). The facilities for the disabled provided or on behalf of MCD were inadequate for her needs. Section 4(1) of the Act applies- ‘failure of the provider [MCD] to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service’.

For the Complainant, the absence of a hygiene bin rendered the full use of the bathroom facilities and her right to privacy and an adequate disposal mechanism, unduly difficult. The Respondent failed to do all that is possible to accommodate her needs, in breach of Section 4(1)of the Act.

There was a barrier in front of the facilities for the disabled. That barrier immediately provided a distinction between able bodied people and the disabled. The former did not require any permission to access the general bathroom facilities for their use-whereas the complainant was subject to scrutiny by a member of the security staff as would, logically, any disabled person-through an assessment of needs and implicitly, whether they were in effect chancing their arm trying to obtain access to the facility. In terms of the access to bathroom facilities, the Complainant was treated differently and less favourably than an able-bodied person. The Respondent discriminated against the Complainant in limiting her freedom to use the bathroom facilities necessary for her need. Any objective justification for the barrier, such as to protect the facility from abusing the facility intended for those with a disability is negated by the fact that the person with the disability, unlike the able-bodied person, is required to justify their need to access any bathroom facilities-whereas the able-bodied person can use the general facility without restriction or approval. In placing the barrier in front of the facilities required by the Complainant as a person with a disability and implicitly subjecting the complainant to scrutiny regarding her genuine need for such access, the Respondent discriminated against the Complainant under Part 1 Section 3(1) (a) –‘where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on the ground specified in Section 3(2)g ‘that one is a person with a disability and the other is not….’Another person in this instance is a person without a disability as defined and therefore has no need for special facilities.

On the night in question, the Complainant was required to justify her claim to be entitled to access the bathroom for those with a disability. She endured scepticism and humiliating treatment on two occasions, most notable the first, compounded by the second. There was an absolute refusal to allow her access at all the first time and only after she had embarrassed another employee of the security provider on the second occasion was the barrier moved back to allow her to enter. The Complainant was subjected to discrimination in that she was twice refused access to the facilities for the disabled notwithstanding that she had a disability. The difference in her treatment from a person with a disability in wheelchair is that the latter disability would have granted her automatic approval to enter the bathroom albeit also having been scrutinised by the security operative and having to obtain permission to do so. This conclusion is supported by the document presented by the security operator headed: (Provider name) Steward Briefing-Disabled Toilet Duty ‘If the disabled toilet is designed for wheelchair users, the customers should be given priority over those that are not.’ This stands in contradiction with the earlier clause: ’Not all disabilitiesare visible or obvious, and stewards should not make assumptions about whether a customer has a disability or not even if the disability is not obvious. Customers may wish to use the disabled toilets for a variety of reasons. Comments such as ‘you are not disabled’ are not acceptable.’

The version provided was dated 12.02.19-the training list- a pre -employment sheet signed by the employee involved in the first incident was dated 13/12/2018-and the version of the document he signed under disability awareness was not presented. Neither is it known what actual training or documentation he received. Frankly, given the list of documents the Complainant signed on the day, the Complainants scepticism regarding the extent of his training is justified.

The guidance notes to the employees of the security provider dated February 2019, draws a distinction between those who use a wheelchair and those with a disability who do not. The first security person told the Complainant his instructions were to provide access only to those with a wheelchair. The actions of the second security person on the night who refused her access, lend credence to the statement of the first employee and is not accepted as a matter of coincidence or one which could lead to an acceptance of the Respondent argument that the acts of discrimination can be attributed only the first employee of the agent of the Respondent went ‘rogue’.

In refusing her access to the bathroom facilities reserved for those with disabilities, the Respondent discriminated against the Complainant, a person with a disability, as defined, under Section 3(1) of Part 1 of the Equal Status Act, on the ground specified at section 3(2)(g) ‘and the otheris not or is a person with a different disability’.

Regarding the application of Section 26 to the facts of this case, the failure of anyone acting on behalf of the Respondent to reply to the notification of possible legal proceedings properly served by the Complainant is noteworthy. The absence of any attention to that correspondence, served by registered post leads to the not unreasonable inference that, while the Respondent subsequently sought to settle the matter with the complainant, there is more concern with the implications for the reputation of the respondent than any sincere recognition of their responsibility in the matter or any recognition that the conduct of the employees of their agent, acting with their authority, amounted to discrimination rather than a matter of inconvenience down to the actions of a ‘rogue ‘employee.

In terms of redress, compensation for the discrimination against the Complainant is justified.

The compensation provided for in the Decision takes into to account the repeated acts of discrimination, the failure of the Respondent to act in response to the Complainants notification of her needs and the need to provide a deterrent against future breaches of this nature by encouraging the Respondent to take on a more direct and meaningful engagement with their agents in the matter of access to disabled facilities at events which they organise.

In addition to the redress, it is found necessary to issue an order requiring the Respondent to take specified actions. In this regard, at the hearing of the complaints neither the Respondent Representative or the security provider were able to cite or refer to as existing or having recently read, if at all, terms governing the contract between the Respondent and his agent setting out the requirements in terms of the provision of and access to bathroom facilities for those with any and all manner of disabilities, as defined. Accepting the personal bona fides of the representative of the security provider at the hearings, it was self-evident that any initiatives on the part of the security provider to improve the understanding of the employees of their obligations in relation to those with disabilities were his alone, based on his knowledge and background. The documentation he has provided discriminates against those with a hidden disability in terms of priority access to wheelchair users. There is no evidence that the Respondent set out their own requirements to their agent in contractual terms, their standards and the policies and practices to be followed when acting with their authority so as to avoid discrimination on grounds of disability , as a matter of course.

The Complaint by the Complainant that the Respondent engaged in prohibited conduct under the Equal Status Act is well founded. The prohibited conduct amounted to discrimination against her on grounds of disability under Section 3(2)(g) and a failure to provide a reasonable accommodation under Section 4(1).

(a)The Respondent is ordered to pay the Complainant €7000 compensation for the effects of the prohibited conduct.

(b)The Respondent is ordered to set out in writing to service providers who are their agents at each event organised by the Respondent, details of the policies and practices which the service provider, acting with the authority of the Respondent, is expected to apply or operate in relation to the provision and management of facilities for persons with a disability so as to comply with the relevant provisions of the Equal Status Act 2000.

Disability, Reasonable Accommodation, Vicarious Liability