Complainant

Respondent

Anonymised Parties

Trainee

Organic Farm

Representatives

Maria Watson BL instructed by Maureen Gourley Free Legal Advice Centres

 David O’Regan BL instructed by Michael O’Donnell Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00032525-001

27/11/2019

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

CA-00032526-001

27/11/2019

The Complainant is a US citizen who described himself as a lifelong environmental activist, with a special interest in food justice.  In furtherance of this interest the Complainant signed up as a paid member of the Irish branch of a training and campaigning organisation (hereinafter “the Organisation”) at the end of April 2019. On 9 June 2019 the Complainant contacted a host farm, the Respondent, through the Organisation's website and expressed an interest in working and gaining experience on the farm.  The farm grows fruit, edible flowers, salad leaf, vegetables and herbs on 0.6 hectares. The Respondent is considered a host farm for the Organisation’s volunteers which provides food and accommodation in return for assistance in working on the farm. The Complainant accepts at all times that he was a volunteer. He flew from his then residence in the Caucasus to take up the opportunity to work on the Respondent’s farm. The Complainant is HIV positive to the degree that is not transmissible and was on antiretroviral medication.

 The Complainant alleges that he was a service user within the meaning of Sections 3 and 6(1)(c) of the Equal Status Act, 2000 – 2020 and that he was discriminated against by the Respondent in that he was treated less favourably on the ground of his disability. He alleges that he was asked to leave the farm by the managing partner when it was discovered that he was HIV positive.  The Respondent denies discriminating against the Complainant and submits that the Complainant was asked to leave the farm, because it was believed that the Complainant was not physically able to carry out the tasks allotted to him, which in turn created a health and safety risk.

The Complainant further submits that he was in receipt of vocational training, as defined under section 12 of the Employment Equality Acts 1998-2015, and that this training was terminated by the Respondent when it was discovered that he was HIV positive. The Respondent denies that he provided vocational education that fell within the scope of the foregoing section.      

Complainant’s Evidence:

The following is a summary of the Complainant’s evidence:

There was an exchange of emails 0n 9 June 2019 between the Complainant and the managing partner (hereinafter ’the Respondent’). In that correspondence it was agreed that the Complainant would work for the Respondent as a volunteer on the farm. It was further agreed on the phone that the Complainant’s training would be for a period of three months.

The Complainant arranged his travel from the Caucasus, where he was then living, to the Respondent’s farm in rural Ireland.  He flew in to Dublin airport and arrived at the local railway station on Friday 15 June 2019 where the Respondent picked him up. He was not due to commence work until the following Monday but carried out work on the farm by way of odd jobs. There were no complaints about this work and the Respondent complimented him on his efforts.

He commenced work on Monday 17 June 2019 but on the second day, Tuesday 18 June, the Complainant was harvesting salad greens, when the Respondent approached him and said that he had been watching his gait and noticed that he had a slight limp. The Complainant responded truthfully and told him that his limp was caused by the antiretroviral medication that he was taking to treat HIV. He also explained that his viral load was undetectable which meant that he could not transmit the virus. The Complainant reassured the Respondent that his being seropositive would not affect his ability to work on the farm, and that this was evidenced by the two days of hard work that he had already put in.

After the Complainant disclosed his HIV status, he was told by both partners in the Respondent business later that evening that he could not continue working on the farm with immediate effect and that he had to leave the farm by Friday afternoon or by Saturday morning at the latest.

The Complainant asked to use the residential Wi-Fi to organise travel, but the Respondent refused this request and the Complainant had to walk 3 km to a pub, even though he was a non-drinker.

He had no money as he had used all his money on the air fare and he needed to contact his fiancé to arrange a flight to the UK. Upon his return to the farm, the Respondent would not allow him to shower, though his clothes were soiled from the days’ work. He was also disallowed a shower on the following morning.  On the following morning the Respondent drove him to the railway station but refused to shake his hand.

The Complainant felt humiliated and distressed by his experience as he was literally stranded in a foreign country, unwashed with no money, and only soiled farm clothes to wear.  

Cross Examination:

In cross examination the Complainant denied that he was put through an interview process by the Respondent prior to engagement with regard to the state of his health and special needs. The Complainant stated that he was not asked any questions about his health. He stated he was informed that it was the Organisation’s policy that there is no requirement by Volunteers to disclose personal health issues to host farm owners.

The Complainant did not accept that the observations of the Respondent were that his efforts at physical work on the previous day were less than satisfactory.

Complainant Legal Argument:

CA-00032525-001: Section 12 of the Employment Equality Acts 1998-2015

The Complainant submits that he held a position engaging in occupational training of organic farming and horticultural business while pursuing his vocational training within the meaning of section 12 of the Employment Equality Act which provides in its relevant part:

12.— (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility,

(c) in the manner in which any such course or facility is provided, or

 (d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

The Complainant submits that a finding be made that he has been discriminated against and as a result had his vocational training terminated under section 12 of the Employment Equality Acts which interfered with his right to work and earn a livelihood by engaging in occupational training of organic farming and horticultural business with the Respondent.     

CA-00032526-001: Equal Status Act 2000-2015

The Complainant relies on the definition of discrimination under Section 3 of the Equal Status Act which provides:

 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 F10 [ on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(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.

3(2) As betweenany, the discriminatory grounds (and the description 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 different disability (the “disability ground”),

The Complainant also relies on the section 4 of the Equal Status Act with regard to ‘reasonable accommodation” where it states:

 4 (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service…

… (6) (6) In this section—

“provider of a service” means—

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

Further, the Complainant relies on the definition of discrimination, in Section 6(1)(c) and (3) of the Equal Status Act which provides:

. — (1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c)is without prejudice to —

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

The Complainant cites the following cases:

Mr A v A Dental Practice DEC-S2014-006:

In this 2012 case a person with toothache was asked to go to a Dental Hospital by a dentist as a result of his declaration of his HIV status, upon questioning by the dentist.  He remained in pain and the Dentist was dismissive of the complainant at the time. The Dentist admitted liability at an early stage of the Tribunal hearing. However, though recognising the conciliatory stance of the Dentist and his subsequent actions in seeking to recompense the complainant, the Equality Tribunal of the time awarded €3,000, which was just below half the maximum award in recognition of the severity of the incident.

Goulding v O’Doherty DEC-S2009-073:

In this case a chiropodist refused to treat a complainant who was living with the HIV virus. The complainant told the respondent of his HIV status though there was no legal obligation to do so. The complainant established a prima facie case less favourable treatment contrary to sections 3(1) and 5(1) of the Act on the grounds of his disability. The respondent failed to rebut this. The complainant was awarded €6000 for the effects of the discrimination, humiliation and hurt caused. The amount was to reflect the seriousness of the discrimination experienced by the complainant and to emphasise the importance of a person’s right to receive health care in a non-discriminatory manner.

The Complainant submits that in this instant case that once he disclosed his HIV status to the Respondent, he was informed that he must leave the farm and had he known of his HIV status at interview he would not had offered the volunteering position. Further, to aggravate matters the discrimination was so overt that the Complainant was refused permission to use the shower facilities and he had to find a way out of rural Ireland. Furthermore, he had to source funds to purchase a flight out of Ireland with limited internet access.

The Complainant submits that that a finding be made that he that he has been discriminated against on the grounds of disability under the Equal Status Act by being treated less favourably in the provision of services and ceasing to provide accommodation and make an award of compensation in respect of same.

Summary of the Respondent’s evidence:

The Respondent described himself as the Managing Partner in the Respondent business partnership. This business was set up with his then civil partner at the relevant period in 2019. It was a small unregistered organic enterprise where approximately 20 people worked per season growing and harvesting organic salad leaves and vegetables in a physically demanding work environment.   It is a small business where profits on average are €20,000 per year before tax.  He accommodated the Organisation’s volunteers in a residential cabin where there was always food available in a fridge and some basic washing facilities. Showers are provided in the main residential house on Mondays, Wednesdays and Fridays. He lives in this house with his partner and child.  He had been registered with the Organisation for 17 years. He provides elementary training and work experience for volunteers who work on the farm, who are in turn provided with food and accommodation.

He interviewed the Complainant by phone prior to engaging him on the farm. He had asked the following questions:

1.      Can you work?

2.      Are you healthy?

3.      Do you have any special needs?

4.      Do you have allergies?

5.      Are you on any medication?

The Complainant declared that he could work, was healthy, had no special needs nor allergies and was not on medication. On the Friday 14 June 2019 the Respondent picked up the Complainant at the local railway station but he observed that he was pale and did not look healthy. He observed that he had a noticeable limp. Whilst he was working on the Monday painting, weeding and chopping wood, the Respondent noticed a distinct lack of mobility and flexibility. His work rate was not good, and he seemed not to be able to carry out fundamental tasks like chopping wood, painting and weeding. He was concerned about his balance.  During that day the Respondent had a deep conversation with the Complainant where the Complainant imparted personal details about the difficulties and violence that he (the Complainant) as a gay man had encountered in his travels in Europe.

On the Tuesday morning the Respondent set about teaching the Complainant the skill of harvesting salad leaves. This was a difficult job which involved cutting the leaves with a penknife whilst crouching and stretching. The Respondent noticed a lack of mobility and told the Complainant that they needed to have a conversation. He suggested to the Complainant that he (the Complainant) was maybe more suited to an administrative role within the Organisation’s network and that he could not allow him to carry out any further physical tasks. The Complainant then made it known to the Respondent that he had HIV and that his limp was a side effect of the medication he was on. The Respondent said that he told the Complainant that he could stay until the weekend to make whatever arrangements were necessary.

The Respondent was not aware of the time of day the Complainant had gone to the pub in the local village to use the Wi-Fi. Later that evening the Complainant returned to the farm in the company of two fellow volunteers, one French and one German, and there was a distinct tension and sense of confrontation in the air. The Complainant said that he had no option but to leave the following morning and asked the Respondent to take him to the railway station. The Complainant asked if he could have a shower that evening. The Respondent refused on the basis that his partner and child were asleep in the main residence at that late hour. The Complainant then made rapid steps towards him, which the Respondent found to be menacing behaviour, and put up his hands in defence. The Complaint started screeching in his face. The Owner brought the Complainant to the railway station. early the following morning.

Cross-examination:

The Owner accepted that he provided a service in training volunteers in the skills of organic farming while providing accommodation and food in return for assistance on the farm.  He accepted that it was a reasonable request by the Complainant to request a shower before departing. He denied concocting the five questions he had purportedly asked the Complainant in the pre-work telephone interview. He refuted the allegation that he had knowledge of the Complainant’s HIV status before terminating his training on the farm.

Legal Argument:

CA-00032525-001: Section 12 of the Employment Equality Act 1998 (as amended):

The Respondent refutes the complaint that it provides vocational training as defined under section 12 of the Employment Equality Act, and otherwise, in the alternative, that it in anyway discriminated against the Complaint in providing training. The type of training provided by the Respondent is not certified nor part of any recognised course. There are no diplomas, certificates or awards of any kind given upon completion.

CA-00032526-001: Equal Status Act 2000, as amended.

The Respondent ended the volunteering relationshipnot because of the Complainant’s HIV status but becauseof the objective justification on the grounds of health and safety and particularly the Respondent’s obligation under the Safety Health and Welfare at Work Act 2005. It was clear to the Respondent that the Complainant was not capable of carrying out physical tasks necessary on a small holding. He was a danger to himself and to his fellow volunteers. The Respondent submits that the disclosure by the Complainant of his HIV status was after the Respondent had made the decision to terminate the arrangement therefore no complaint of discrimination on disability grounds can be sustained.

CA-00032525-001: Section 12 of the Employment Equality Act 1998 (as amended) – Vocational Training.

The Complainant submits that he had his vocational training terminated on account of his disability. The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary…

Section 12 of the Employment Equality Act 1998 (as amended) provides:

12.— (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility,

(c) in the manner in which any such course or facility is provided, or

 (d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

In The Commissioner of An Garda Síochána v Singh Oberoi [2014] E.L.R. 17. Feeney J. emphasised that the requirement contained in subs. (2) that, for the vocational training of a Garda Reserve to be covered by the section, such training must be exclusively concerned with training for the carrying on of an “occupational activity”. The Garda Reserve, in his opinion, was not such an activity.

The first issue to determine is whether the Complainant had a disability. It was not disputed that the complainant has a disability within the ambit of the Employment Equality Act, in this case HIV status and the resulting effects of the antiretroviral medication needed to treat such a condition.

The Complainant in evidence spoke about his interest in organic farming but I was not convinced he intended to take up full-time occupational activity in this area at the conclusion of training. I note that the training was unregulated and did not confer certifiable skills and awards at the conclusion of such training. I note also that it was common case that the Complainant was a volunteer. In applying the logic of Feeney J. in Singh Oberoi I find that the end product for the Complainant was not to be a whole-time organic farmer therefore I conclude that section 12 of the Employment Equality Act does not apply in this instance. The Complainant did not establish the primary fact that he was a recipient of vocational training which gives rise to an inference of discrimination (the ‘prima facie’ case). Therefore, I find that the Complainant was not discriminated against under the Employment Equality Acts 1998-2015

CA-00032526-001: Equal Status Act 2000 -2015

The Complainant asserts discrimination in the provision of services, the ceasing of the provision of training, accommodation and failure to provide reasonable accommodation for the Complainants disability in contravention of the Equal Status Act, on the ground of his disability. It is not disputed that the Complainant was fully compliant with section 21 of the Act with regard to proper notification of the Respondent. 

The Equal Status Act, in its relevant part in relation to discrimination provides at section 3

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 F10 [ on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(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.

3(2) As betweenany, the discriminatory grounds (and the description 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 different disability (the “disability ground”),

Section 4 of the Section 4 deals with reasonable accommodation:

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…

… (6) (6) In this section—

“provider of a service” means—

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

 Section 6(1)(c) and (3) of the Act provides:

— (1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c)is without prejudice to —

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.  

The burden of proof is described at Section 38A of the Act where it states:

 “Where in any proceeding’s 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. It was not disputed that the complainant has a disability within the ambit of the Equal Status Act, in this case HIV status and the effects of the antiretroviral medication needed to treat such a condition. It is common case that colleague volunteers who had not a disability were retained by the Respondent on the farm.  It was not disputed that the Respondent was providing a training and experiential service on the organic farm for volunteers who were  provided with accommodation and food. The consideration for such services was that that the volunteers would provide labour on the farm. Therefore, I find that the Complainant has established a prima facie from which an inference of prohibited conduct occurred under the Equal Status Act.

Some material facts and the credibility of both the Complainant and the Respondent are at issue. The Complainant asserts that he worked diligently on, over the weekend, and on his first official day and was complimented by the Respondent. However, on the following day whilst cutting salad leaves, the Complainant stated that the Respondent approached him after observing his gait and commented on a limp that the Complainant had displayed. The Complainant then decided to disclose his HIV status at that point and, by his own account stated to the Respondent that the condition was not transmissible and that the limp was as result of the medication he took to treat the condition. The Complainant asserts that his HIV status was the determining reason for him being told to leave the farm.  The Respondent, on the other hand, gave evidence that he had questioned the Complainant about his health, medication and any perceived weaknesses prior to engagement but that the Complainant had somewhat misled him by asserting that he had a clean bill of health.  The Respondent stated that he believed that the Complainant was just not up to the physicality needed for the arduous tasks on the farm after observing him over two days, as well as on the day he collected him from the railway station. The Respondent stated that he told the Complainant that he was finished at the farm on account of his incapacity before the Complainant disclosed his HIV status to him.

The Respondent gave evidence that he conducted a verbal questionnaire/interview with the Complainant by phone with an emphasis on medical issues, where he stated the Complainant did not fully disclose his medical status.  It was vehemently denied by the Complainant that the Respondent asked such questions prior to his arrival on the farm.  It was not disputed that the Complainant and the Respondent were members of a worldwide organisation promoting organic and sustainable farming that ostensibly had policies of inclusivity where there was no requirement to answer questions purportedly asked by the Respondent.  The Complainant exhibited an email thread between himself and the Respondent prior to taking up the offer of engagement on the farm. It would be expected that if such an emphasis was placed on medical vetting, as the Respondent asserted, that such would be referred to in the email exchange. There was no reference to capability, for medical reasons or otherwise. I find on this point, on the balance of probabilities, that the Respondent conducted no medical vetting procedure in a phone conversation with the Complainant.

The Complainant carried out a number of tasks that weekend and on the Monday of his first official day of work. This consisted of painting a fence, weeding and chopping wood. The Complainant said he was complimented by the Respondent. The Respondent denies complimenting him but instead gave evidence of the clumsiness of the Complainant in carrying out the basic tasks; commenting on how little nettles he removed and his awkwardness in painting the fence, as examples. I noted that that the Respondent did not bring any of these perceived shortcomings   to the attention of the Complainant, neither at the weekend nor on the first official day of training on Monday. The description of the Complainant carrying out tasks as narrated by the Respondent lends itself to a description of incompetence, as distinct from incapability. The core nature of the relationship between the Complainant and the Respondent was for the Respondent to teach him the skills of organic farming; thus, changing him from an obviously incompetent volunteer into one with some competency in this area. It was also striking that the Respondent did not notice any physical impairment of the Complainant during this period of demanding physical work.

On the Tuesday the Respondent gave evidence that he noticed that the gait of the Complainant, whilst cutting salad leaves, convinced him that he was not able for the job and he made the decision to terminate his time on the farm on the basis of health and safety concerns. The Respondent asserts that he made the decision on that basis before the disclosure of the HIV status by the Complainant. The Complainant gave evidence that the Respondent remarked upon his gait whilst in the salad patch and it was at that stage that he disclosed his HIV status to the Respondent and further that the side effect of his medication results in a slight limp. Otherwise, he declared that he told the owner that he was fully fit and that the HIV status was of a nature that was not transmissible. I found the account of Complainant on the sequence of what transpired to be more plausible. This plausibility is strengthened when subsequent happenings are examined.

Upon being told that his time on the farm was finished the Complainant made it known to the Respondent, in undisputed evidence, that he had no money, very little clothes and needed to contact his fiancé in the UK by internet to forward on money for a flight and accommodation. The Respondent said he could stay on the farm until Friday at the latest, but the Complainant said this was not feasible under the circumstances.  It was also not in dispute that the Complainant was not allowed to use the internet in the main residence. The Respondent gave evidence that he was aware that the Complainant had to walk to the local public house to use the WIFI. The Respondent originally stated that this was a distance of 1.9km but the Complainant’s representative submitted uncontested evidence that the distance was in fact 3km. In light of this, I cannot accept the Respondent’s claim that the Complainant’s impairment was so serious and obvious as to raise health and safety concerns on the farm when it was clear that the Complainant was able to walk 6km in a round journey without apparent difficulty.

 Another issue of credibility arose in the Respondent’s evidence with regard to what transpired later evening. The Respondent attested that he became concerned when the Complainant confronted him after he (the Complainant) returned   from the public house in company with two other volunteers. He asserted that the Complainant made rapid steps towards him and started screeching into his face when the Respondent refused him the opportunity to have a shower prior to his departure on the following morning. The Complainant strenuously denied these allegations. He said he was a non-drinker and clearly went to the pub to use the Wi-Fi to contact his fiancé. He asserted that he came from the non-violent Quaker tradition, was a peace activist and formerly taught conflict resolution skills to children. He stated he would never contemplate using or threatening violent behaviour towards another human being. He said he was refused a shower that night and the following morning before his departure for the train. He stated that he had felt grimy from the day’s work and the only clothes he had for travel were those on his back.

Overall, I found the evidence of the Complainant regarding the events of Tuesday 18 June 2019 to be compelling and he detailed clear recollections on every point at issue. I preferred the evidence of the Complainant over that of the Respondent when finding the material fact   that the Complainant was asked to leave the farm because of his HIV status.  I therefore find that the Respondent did not disprove the inference of discrimination raised by the Complainant.   

The Equal Status Act prohibits discrimination in the provision of a service. I find that the Respondent had engaged in prohibited conduct in discriminating against the Complainant on the grounds of disability and treated him less favourably in the provision of services under section 3 and the in cessation of the provision of accommodation under section 6(1) of the Equal Status Act 2000 (as amended). The issue of reasonable accommodation in accordance with section 4(1) does not necessarily arise. 

The Complainant spoke of the effect the prohibited conduct had on him, in particular, the distress of being stranded in a foreign country with no money and just the clothes on his back. He further described the sheer disappointment and humiliation in the manner of the termination of what to him was to be a fulfilling and pleasant experience of learning the skills of organic farming. I found the conduct of the Respondent upon learning of the Complainant’s HIV status to be unacceptable and transgressed not only the law, but was also below the threshold of acceptable conduct that reasonable people expect when affording equal opportunity to those with a disability. The aggravating factors, as identified above, demand that the redress be on the higher end of the scale therefore I direct the Respondent to make compensation of €8,000 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00032525-001: Section 12 of the Employment Equality Acts, 1998 -2015.

The Complainant did not establish the primary fact that he was a recipient of vocational training which gives rise to an inference of discrimination (the ‘prima facie’ case) therefore I find that the Complainant was not discriminated against under the Employment Equality Act 1998 (as amended).

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.

 CA-00032526-001: I find that the Respondent had engaged in prohibited conduct in discriminating against the Complainant on the grounds of disability and treated him  less favourably in the provision of services under Section 3 and the in the cessation of the provision of accommodation under Section 6(1) of the Equal Status Acts, 200-2015.

The aggravating factors in this case demand that the redress be on the higher end of the scale therefore I direct the Respondent to make compensation of €8,000 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

Employment Equality Acts 1998-2015, Equal Status Acts 2000 – 2015, Disability, HIV Status, Prohibited Conduct.

Complainant

Respondent

Anonymised Parties

Trainee

Organic Farm

Representatives

Maria Watson BL instructed by Maureen Gourley Free Legal Advice Centres

 David O’Regan BL instructed by Michael O’Donnell Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00032525-001

27/11/2019

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

CA-00032526-001

27/11/2019

The Complainant is a US citizen who described himself as a lifelong environmental activist, with a special interest in food justice.  In furtherance of this interest the Complainant signed up as a paid member of the Irish branch of a training and campaigning organisation (hereinafter “the Organisation”) at the end of April 2019. On 9 June 2019 the Complainant contacted a host farm, the Respondent, through the Organisation's website and expressed an interest in working and gaining experience on the farm.  The Respondent is a horticultural business partnership of two people. The farm grows fruit, edible flowers, salad leaf, vegetables and herbs on 0.6 hectares. The Respondent is considered a host farm for the Organisation’s volunteers which provides food and accommodation in return for assistance in working on the farm. The Complainant accepts at all times that he was a volunteer. He flew from his then residence in the Caucasus to take up the opportunity to work on the Respondent’s farm. The Complainant is HIV positive to the degree that is not transmissible and was on antiretroviral medication.

 The Complainant alleges that he was a service user within the meaning of Sections 3 and 6(1)(c) of the Equal Status Act, 2000 – 2020 and that he was discriminated against by the Respondent in that he was treated less favourably on the ground of his disability. He alleges that he was asked to leave the farm by the managing partner when it was  discovered that he was HIV positive.  The Respondent denies discriminating against the Complainant and submits that the Complainant was asked to leave the farm, because it was  believed that the Complainant was not physically able to carry out the tasks allotted to him, which in turn created a health and safety risk.

The Complainant further submits that he was in receipt of vocational training, as defined under section 12 of the Employment Equality Acts 1998-2015, and that this training was terminated by the Respondent when it was discovered that he was HIV positive. The Respondent denies that he provided vocational education that fell within the scope of the foregoing section.       

Complainant’s Evidence:

The following is a summary of the Complainant’s evidence:

There was an exchange of emails 0n 9 June 2019 between the Complainant and the managing partner (hereinafter ’the Respondent’ in the summary of evidence, argument and conclusion but, for the avoidance of doubt, the Respondent for the sake of the proceedings and redress is the business partnership as named). In that correspondence it was agreed that the Complainant would work for the Respondent as a volunteer on the farm. It was further agreed on the phone that the Complainant’s training would be for a period of three months.

The Complainant arranged his travel from the Caucasus, where he was then living, to the Respondent’s farm in rural Ireland.  He flew in to Dublin airport and arrived at the local railway station on Friday 15 June 2019 where the Respondent picked him up. He was not due to commence work until the following Monday but carried out work on the farm by way of odd jobs. There were no complaints about this work and the Respondent complimented him on his efforts.

He commenced work on Monday 17 June 2019 but on the second day, Tuesday 18 June, the Complainant was harvesting salad greens, when the Respondent approached him and said that he had been watching his gait and noticed that he had a slight limp. The Complainant responded truthfully and told him that his limp was caused by the antiretroviral medication that he was taking to treat HIV. He also explained that his viral load was undetectable which meant that he could not transmit the virus. The Complainant reassured the Respondent that his being seropositive would not affect his ability to work on the farm, and that this was evidenced by the two days of hard work that he had already put in.

After the Complainant disclosed his HIV status, he was told by both partners in the Respondent business later that evening that he could not continue working on the farm with immediate effect and that he had to leave the farm by Friday afternoon or by Saturday morning at the latest.

The Complainant asked to use the residential Wi-Fi to organise travel, but the Respondent refused this request and the Complainant had to walk 3 km to a pub, even though he was a non-drinker.

He had no money as he had used all his money on the air fare and he needed to contact his fiancé to arrange a flight to the UK. Upon his return to the farm, the Respondent would not allow him to shower, though his clothes were soiled from the days’ work. He was also disallowed a shower on the following morning.  On the following morning the Respondent drove him to the railway station but refused to shake his hand.

The Complainant felt humiliated and distressed by his experience as he was literally stranded in a foreign country, unwashed with no money, and only soiled farm clothes to wear.   

Cross Examination:

In cross examination the Complainant denied that he was put through an interview process by the Respondent prior to engagement with regard to the state of his health and special needs. The Complainant stated that he was not asked any questions about his health. He stated he was informed that it was the Organisation’s policy that there is no requirement by Volunteers to disclose personal health issues to host farm owners.

The Complainant did not accept that the observations of the Respondent were that his efforts at physical work on the previous day were less than satisfactory.

Complainant Legal Argument:

CA-00032525-001: Section 12 of the Employment Equality Acts 1998-2015

The Complainant submits that he held a position engaging in occupational training of organic farming and horticultural business while pursuing his vocational training within the meaning of section 12 of the Employment Equality Act which provides in its relevant part:

12.— (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility,

(c) in the manner in which any such course or facility is provided, or

 (d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

The Complainant submits that a finding be made that he has been discriminated against and as a result had his vocational training terminated under section 12 of the Employment Equality Acts which interfered with his right to work and earn a livelihood by engaging in occupational training of organic farming and horticultural business with the Respondent.     

CA-00032526-001: Equal Status Act 2000-2015

The Complainant relies on the definition of discrimination under Section 3 of the Equal Status Act which provides:

 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 F10 [ on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(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.

3(2) As betweenany, the discriminatory grounds (and the description 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 different disability (the “disability ground”),

The Complainant also relies on the section 4 of the Equal Status Act with regard to ‘reasonable accommodation” where it states:

 4 (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service…

… (6) (6) In this section—

“provider of a service” means—

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

Further, the Complainant relies on the definition of discrimination, in Section 6(1)(c) and (3) of the Equal Status Act which provides:

. — (1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c)is without prejudice to —

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

The Complainant cites the following cases:

Mr A v A Dental Practice DEC-S2014-006:

In this 2012 case a person with toothache was asked to go to a Dental Hospital by a dentist as a result of his declaration of his HIV status, upon questioning by the dentist.  He remained in pain and the Dentist was dismissive of the complainant at the time. The Dentist admitted liability at an early stage of the Tribunal hearing. However, though recognising the conciliatory stance of the Dentist and his subsequent actions in seeking to recompense the complainant, the Equality Tribunal of the time awarded €3,000, which was just below half the maximum award in recognition of the severity of the incident.

Goulding v O’Doherty DEC-S2009-073:

In this case a chiropodist refused to treat a complainant who was living with the HIV virus. The complainant told the respondent of his HIV status though there was no legal obligation to do so. The complainant established a prima facie case less favourable treatment contrary to sections 3(1) and 5(1) of the Act on the grounds of his disability. The respondent failed to rebut this. The complainant was awarded €6000 for the effects of the discrimination, humiliation and hurt caused. The amount was to reflect the seriousness of the discrimination experienced by the complainant and to emphasise the importance of a person’s right to receive health care in a non-discriminatory manner.

The Complainant submits that in this instant case that once he disclosed his HIV status to the Respondent, he was informed that he must leave the farm and had he known of his HIV status at interview he would not had offered the volunteering position. Further, to aggravate matters the discrimination was so overt that the Complainant was refused permission to use the shower facilities and he had to find a way out of rural Ireland. Furthermore, he had to source funds to purchase a flight out of Ireland with limited internet access.

The Complainant submits that that a finding be made that he that he has been discriminated against on the grounds of disability under the Equal Status Act by being treated less favourably in the provision of services and ceasing to provide accommodation and make an award of compensation in respect of same.

Summary of the Respondent’s evidence:

The Respondent described himself as the Managing Partner in the Respondent business partnership. This business was set up with his then civil partner at the relevant period in 2019. It was a small unregistered organic enterprise where approximately 20 people worked per season growing and harvesting organic salad leaves and vegetables in a physically demanding work environment.   It is a small business where profits on average are €20,000 per year before tax.  He accommodated the Organisation’s volunteers in a residential cabin where there was always food available in a fridge and some basic washing facilities. Showers are provided in the main residential house on Mondays, Wednesdays and Fridays. He lives in this house with his partner and child.  He had been registered with the Organisation for 17 years. He provides elementary training and work experience for volunteers who work on the farm, who are in turn provided with food and accommodation.

He interviewed the Complainant by phone prior to engaging him on the farm. He had asked the following questions:

1.      Can you work?

2.      Are you healthy?

3.      Do you have any special needs?

4.      Do you have allergies?

5.      Are you on any medication?

The Complainant declared that he could work, was healthy, had no special needs nor allergies and was not on medication. On the Friday 14 June 2019 the Respondent picked up the Complainant at the local railway station but he observed that he was pale and did not look healthy. He observed that he had a noticeable limp. Whilst he was working on the Monday painting, weeding and chopping wood, the Respondent noticed a distinct lack of mobility and flexibility. His work rate was not good, and he seemed not to be able to carry out fundamental tasks like chopping wood, painting and weeding. He was concerned about his balance.  During that day the Respondent had a deep conversation with the Complainant where the Complainant imparted personal details about the difficulties and violence that he (the Complainant) as a gay man had encountered in his travels in Europe.

On the Tuesday morning the Respondent set about teaching the Complainant the skill of harvesting salad leaves. This was a difficult job which involved cutting the leaves with a penknife whilst crouching and stretching. The Respondent noticed a lack of mobility and told the Complainant that they needed to have a conversation. He suggested to the Complainant that he (the Complainant) was maybe more suited to an administrative role within the Organisation’s network and that he could not allow him to carry out any further physical tasks. The Complainant then made it known to the Respondent that he had HIV and that his limp was a side effect of the medication he was on. The Respondent said that he told the Complainant that he could stay until the weekend to make whatever arrangements were necessary.

The Respondent was not aware of the time of day the Complainant had gone to the pub in the local village to use the Wi-Fi. Later that evening the Complainant returned to the farm in the company of two fellow volunteers, one French and one German, and there was a distinct tension and sense of confrontation in the air. The Complainant said that he had no option but to leave the following morning and asked the Respondent to take him to the railway station. The Complainant asked if he could have a shower that evening. The Respondent refused on the basis that his partner and child were asleep in the main residence at that late hour. The Complainant then made rapid steps towards him, which the Respondent found to be menacing behaviour, and put up his hands in defence. The Complaint started screeching in his face. The Owner brought the Complainant to the railway station. early the following morning.

Cross-examination:

The Owner accepted that he provided a service in training volunteers in the skills of organic farming while providing accommodation and food in return for assistance on the farm.  He accepted that it was a reasonable request by the Complainant to request a shower before departing. He denied concocting the five questions he had purportedly asked the Complainant in the pre-work telephone interview. He refuted the allegation that he had knowledge of the Complainant’s HIV status before terminating his training on the farm.

Legal Argument:

CA-00032525-001: Section 12 of the Employment Equality Act 1998 (as amended):

The Respondent refutes the complaint that it provides vocational training as defined under section 12 of the Employment Equality Act, and otherwise, in the alternative, that it in anyway discriminated against the Complaint in providing training. The type of training provided by the Respondent is not certified nor part of any recognised course. There are no diplomas, certificates or awards of any kind given upon completion.

CA-00032526-001: Equal Status Act 2000, as amended.

The Respondent ended the volunteering relationshipnot because of the Complainant’s HIV status but becauseof the objective justification on the grounds of health and safety and particularly the Respondent’s obligation under the Safety Health and Welfare at Work Act 2005. It was clear to the Respondent that the Complainant was not capable of carrying out physical tasks necessary on a small holding. He was a danger to himself and to his fellow volunteers. The Respondent submits that the disclosure by the Complainant of his HIV status was after the Respondent had made the decision to terminate the arrangement therefore no complaint of discrimination on disability grounds can be sustained.

CA-00032525-001: Section 12 of the Employment Equality Act 1998 (as amended) – Vocational Training.

The Complainant submits that he had his vocational training terminated on account of his disability. The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary…

Section 12 of the Employment Equality Act 1998 (as amended) provides:

12.— (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility,

(c) in the manner in which any such course or facility is provided, or

 (d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

In The Commissioner of An Garda Síochána v Singh Oberoi [2014] E.L.R. 17. Feeney J. emphasised that the requirement contained in subs. (2) that, for the vocational training of a Garda Reserve to be covered by the section, such training must be exclusively concerned with training for the carrying on of an “occupational activity”. The Garda Reserve, in his opinion, was not such an activity.

The first issue to determine is whether the Complainant had a disability. It was not disputed that the complainant has a disability within the ambit of the Employment Equality Act, in this case HIV status and the resulting effects of the antiretroviral medication needed to treat such a condition.

The Complainant in evidence spoke about his interest in organic farming but I was not convinced he intended to take up full-time occupational activity in this area at the conclusion of training. I note that the training was unregulated and did not confer certifiable skills and awards at the conclusion of such training. I note also that it was common case that the Complainant was a volunteer. In applying the logic of Feeney J. in Singh Oberoi I find that the end product for the Complainant was not to be a whole-time organic farmer therefore I conclude that section 12 of the Employment Equality Act does not apply in this instance. The Complainant did not establish the primary fact that he was a recipient of vocational training which gives rise to an inference of discrimination (the ‘prima facie’ case). Therefore, I find that the Complainant was not discriminated against under the Employment Equality Acts 1998-2015

CA-00032526-001: Equal Status Act 2000 -2015

The Complainant asserts discrimination in the provision of services, the ceasing of the provision of training, accommodation and failure to provide reasonable accommodation for the Complainants disability in contravention of the Equal Status Act, on the ground of his disability. It is not disputed that the Complainant was fully compliant with section 21 of the Act with regard to proper notification of the Respondent. 

The Equal Status Act, in its relevant part in relation to discrimination provides at section 3

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 F10 [ on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(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.

3(2) As betweenany, the discriminatory grounds (and the description 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 different disability (the “disability ground”),

Section 4 of the Section 4 deals with reasonable accommodation:

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…

… (6) (6) In this section—

“provider of a service” means—

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

 Section 6(1)(c) and (3) of the Act provides:

— (1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c)is without prejudice to —

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.  

The burden of proof is described at Section 38A of the Act where it states:

 “Where in any proceeding’s 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. It was not disputed that the complainant has a disability within the ambit of the Equal Status Act, in this case HIV status and the effects of the antiretroviral medication needed to treat such a condition. It is common case that colleague volunteers who had not a disability were retained by the Respondent on the farm.  It was not disputed that the Respondent was providing a training and experiential service on the organic farm for volunteers who were  provided with accommodation and food. The consideration for such services was that that the volunteers would provide labour on the farm. Therefore, I find that the Complainant has established a prima facie from which an inference of prohibited conduct occurred under the Equal Status Act.

Some material facts and the credibility of both the Complainant and the Respondent are at issue. The Complainant asserts that he worked diligently on, over the weekend, and on his first official day and was complimented by the Respondent. However, on the following day whilst cutting salad leaves, the Complainant stated that the Respondent approached him after observing his gait and commented on a limp that the Complainant had displayed. The Complainant then decided to disclose his HIV status at that point and, by his own account stated to the Respondent that the condition was not transmissible and that the limp was as result of the medication he took to treat the condition. The Complainant asserts that his HIV status was the determining reason for him being told to leave the farm.  The Respondent, on the other hand, gave evidence that he had questioned the Complainant about his health, medication and any perceived weaknesses prior to engagement but that the Complainant had somewhat misled him by asserting that he had a clean bill of health.  The Respondent stated that he believed that the Complainant was just not up to the physicality needed for the arduous tasks on the farm after observing him over two days, as well as on the day he collected him from the railway station. The Respondent stated that he told the Complainant that he was finished at the farm on account of his incapacity before the Complainant disclosed his HIV status to him.

The Respondent gave evidence that he conducted a verbal questionnaire/interview with the Complainant by phone with an emphasis on medical issues, where he stated the Complainant did not fully disclose his medical status.  It was vehemently denied by the Complainant that the Respondent asked such questions prior to his arrival on the farm.  It was not disputed that the Complainant and the Respondent were members of a worldwide organisation promoting organic and sustainable farming that ostensibly had policies of inclusivity where there was no requirement to answer questions purportedly asked by the Respondent.  The Complainant exhibited an email thread between himself and the Respondent prior to taking up the offer of engagement on the farm. It would be expected that if such an emphasis was placed on medical vetting, as the Respondent asserted, that such would be referred to in the email exchange. There was no reference to capability, for medical reasons or otherwise. I find on this point, on the balance of probabilities, that the Respondent conducted no medical vetting procedure in a phone conversation with the Complainant.

The Complainant carried out a number of tasks that weekend and on the Monday of his first official day of work. This consisted of painting a fence, weeding and chopping wood. The Complainant said he was complimented by the Respondent. The Respondent denies complimenting him but instead gave evidence of the clumsiness of the Complainant in carrying out the basic tasks; commenting on how little nettles he removed and his awkwardness in painting the fence, as examples. I noted that that the Respondent did not bring any of these perceived shortcomings   to the attention of the Complainant, neither at the weekend nor on the first official day of training on Monday. The description of the Complainant carrying out tasks as narrated by the Respondent lends itself to a description of incompetence, as distinct from incapability. The core nature of the relationship between the Complainant and the Respondent was for the Respondent to teach him the skills of organic farming; thus, changing him from an obviously incompetent volunteer into one with some competency in this area. It was also striking that the Respondent did not notice any physical impairment of the Complainant during this period of demanding physical work.

On the Tuesday the Respondent gave evidence that he noticed that the gait of the Complainant, whilst cutting salad leaves, convinced him that he was not able for the job and he made the decision to terminate his time on the farm on the basis of health and safety concerns. The Respondent asserts that he made the decision on that basis before the disclosure of the HIV status by the Complainant. The Complainant gave evidence that the Respondent remarked upon his gait whilst in the salad patch and it was at that stage that he disclosed his HIV status to the Respondent and further that the side effect of his medication results in a slight limp. Otherwise, he declared that he told the owner that he was fully fit and that the HIV status was of a nature that was not transmissible. I found the account of Complainant on the sequence of what transpired to be more plausible. This plausibility is strengthened when subsequent happenings are examined.

Upon being told that his time on the farm was finished the Complainant made it known to the Respondent, in undisputed evidence, that he had no money, very little clothes and needed to contact his fiancé in the UK by internet to forward on money for a flight and accommodation. The Respondent said he could stay on the farm until Friday at the latest, but the Complainant said this was not feasible under the circumstances.  It was also not in dispute that the Complainant was not allowed to use the internet in the main residence. The Respondent gave evidence that he was aware that the Complainant had to walk to the local public house to use the WIFI. The Respondent originally stated that this was a distance of 1.9km but the Complainant’s representative submitted uncontested evidence that the distance was in fact 3km. In light of this, I cannot accept the Respondent’s claim that the Complainant’s impairment was so serious and obvious as to raise health and safety concerns on the farm when it was clear that the Complainant was able to walk 6km in a round journey without apparent difficulty.

 Another issue of credibility arose in the Respondent’s evidence with regard to what transpired later evening. The Respondent attested that he became concerned when the Complainant confronted him after he (the Complainant) returned   from the public house in company with two other volunteers. He asserted that the Complainant made rapid steps towards him and started screeching into his face when the Respondent refused him the opportunity to have a shower prior to his departure on the following morning. The Complainant strenuously denied these allegations. He said he was a non-drinker and clearly went to the pub to use the Wi-Fi to contact his fiancé. He asserted that he came from the non-violent Quaker tradition, was a peace activist and formerly taught conflict resolution skills to children. He stated he would never contemplate using or threatening violent behaviour towards another human being. He said he was refused a shower that night and the following morning before his departure for the train. He stated that he had felt grimy from the day’s work and the only clothes he had for travel were those on his back.

Overall, I found the evidence of the Complainant regarding the events of Tuesday 18 June 2019 to be compelling and he detailed clear recollections on every point at issue. I preferred the evidence of the Complainant over that of the Respondent when finding the material fact   that the Complainant was asked to leave the farm because of his HIV status.  I therefore find that the Respondent did not disprove the inference of discrimination raised by the Complainant.    

The Equal Status Act prohibits discrimination in the provision of a service. I find that the Respondent had engaged in prohibited conduct in discriminating against the Complainant on the grounds of disability and treated him less favourably in the provision of services under section 3 and the in cessation of the provision of accommodation under section 6(1) of the Equal Status Act 2000 (as amended). The issue of reasonable accommodation in accordance with section 4(1) does not necessarily arise. 

The Complainant spoke of the effect the prohibited conduct had on him, in particular, the distress of being stranded in a foreign country with no money and just the clothes on his back. He further described the sheer disappointment and humiliation in the manner of the termination of what to him was to be a fulfilling and pleasant experience of learning the skills of organic farming. I found the conduct of the Respondent upon learning of the Complainant’s HIV status to be unacceptable and transgressed not only the law, but was also below the threshold of acceptable conduct that reasonable people expect when affording equal opportunity to those with a disability. The aggravating factors, as identified above, demand that the redress be on the higher end of the scale therefore I direct the Respondent to make compensation of €8,000 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00032525-001: Section 12 of the Employment Equality Acts, 1998 -2015.

The Complainant did not establish the primary fact that he was a recipient of vocational training which gives rise to an inference of discrimination (the ‘prima facie’ case) therefore I find that the Complainant was not discriminated against under the Employment Equality Act 1998 (as amended).

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.

 CA-00032526-001: I find that the Respondent had engaged in prohibited conduct in discriminating against the Complainant on the grounds of disability and treated him  less favourably in the provision of services under Section 3 and the in the cessation of the provision of accommodation under Section 6(1) of the Equal Status Acts, 200-2015.

The aggravating factors in this case demand that the redress be on the higher end of the scale therefore I direct the Respondent to make compensation of €8,000 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

Employment Equality Acts 1998-2015, Equal Status Acts 2000 – 2015, Disability, HIV Status, Prohibited Conduct.