Complainant

Respondent

Anonymised Parties

Trainee Organic Farmer

Organic Farming Training Association

Representatives

Maureen Gourley Free Legal Advice Centres

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-00032527-001

27/11/2019

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

CA-00032529-001

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 Respondent at the end of April 2019. The Respondent is a registered educational charity. They facilitate people coming to Ireland, from around the world, to spend time learning about sustainable agriculture, ways of life and helping on organic farms.   The Respondent requires a yearly subscription. On 9 June 2019 the Complainant contacted a host farm through the Respondent's website and expressed an interest in working and gaining experience on the farm. The Complainant alleges that he was discriminated against at the host farm on the basis of his disability and had his training and accommodation terminated. He submits that the Respondent was in breach of section 12 of the Employment Equality Act in not providing him with vocational education because of his disability and further, that the Respondent did not reasonably accommodate his disability in the provision of the Respondent’s services when called upon by the Complainant.     

The Complainant is HIV positive to the degree that is not transmissible and was on antiretroviral medication. He considers himself to be fit and healthy in all other respects for the purpose of farm training. The Complainant paid a yearly subscription to the Respondent who display a list of host organic farms on its website for volunteers interested in learning the skills of organic farming. These farms provide training, accommodation and food in return for assistance from volunteers in harvesting the produce. 

The Complainant took the opportunity to sign up with a host farm from the Respondent’s register. The Complainant arranged his travel from the Caucasus region where he was then living, to the host farm in rural Ireland.   He commenced work with the host farm on Monday 17 June 2019, but he submits that his training was terminated on Tuesday 18 June 2019 on account of his disability. The Complainant submits that he advised the Respondent’s Complaint’s Manager of the circumstances surrounding his leaving the host farm at the time. The Complainant exhibited a chain of emails between himself and the Complaints Manager to show that his concerns were not addressed by the Respondent.

The Complainant in his correspondence to the Respondent, amongst other things, wrote ‘as an NGO striving to build a sustainable global community (the Respondent) had both a legal and moral responsibility to disassociate itself from farms that engage in discriminatory practices'. He further advised of his intention to seek redress under the Equal Status Acts. Notwithstanding this correspondence, the Complainant submits that the host farm in question remained on the Respondent’s website as a potential host for 8 weeks following the said incident. He asserts the farm was eventually removed on 10 August 2019 but reinstated shortly after 5 September 2019 and without any proper investigation into the complaints made by the Complainant.

Legal Argument;

CA-00032527-001: Section 12 of the Employment Equality Acts 1998-2015

The Complainant submits that the Respondent failed to provide opportunities for him to avail of occupational training of organic farming without being subject to discrimination on grounds of disability, and that this training came within ‘vocational training’ as defined 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.

CA-00032529-001 – Reasonable Accommodation under Section of the Equal Status Acts 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 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 cites Section 4 of the Section 4 which 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…

The Complainant submits that the failure of the Respondent to construct robust policies to accommodate his disability on a host farm, the consequent failure to accommodate his concerns and not to investigate the alleged discrimination, amounted to a transgression of his right to be reasonably accommodated. He also submits that there was no proper recognition of his disability.

The Respondent did not attend at the hearing. 

The Complainant submits that the Respondent did not satisfactorily ensure that the vocational training it provided was free from discrimination, and that as a result of this failure, he subsequently suffered discrimination on account of his disability.

CA-00032527-001: Section 12 of the Employment Equality Acts 1998-2015:

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 Employment Equality 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 might give 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-00032529-001 – Reasonable Accommodation under Section of the Equal Status Acts 2000-2015

The complainant asserts discrimination in the provision of services in that the Respondent failed   to provide reasonable accommodation for the Complainants disability in contravention of the Equal Status Acts. 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 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,  

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

 “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary…”

 The Complainant is required to establish facts that may give rise to an inference of discrimination (the ‘prima facie’ case) and the burden of proof then shifts to the Respondent to disprove the inference of discrimination. I am satisfied 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. The Complainant paid a yearly subscription to the Respondent who in turn provided access to a network of suitable organic farms for accommodation and training purposes. The documents submitted by the Complainant, particularly the exchange of emails with the Respondent, suggest that after the Complainant had disclosed his disability and experiences at a host farm to the Respondent, no special facilities were afforded to the Complainant nor was there evidence of a meaningful investigation into the material facts as to what transpired at a host farm. Indeed, a reasonable reading of the exchange of emails points toward a lack of familiarity with what HIV status entails. I also detected a certain antagonism from the Respondent in its attempts to dissuade the Complainant from going further with his complaint. On the balance of probabilities, I find that the Complainant was treated less favourably than a person without HIV status, would have been treated.  Therefore, I find that the Complainant has established a prima facie casefrom which an inference of prohibited conduct occurred under the Equal Status Acts.  The Respondent was not present to prove the contrary therefore I find that the Respondent engaged in prohibited conduct by not reasonably accommodating the disability of the Complainant, contrary to Section 4 of the Equal Status Acts.

Redress:

Section 27 of the Equal Status Acts 2000-2015 provides for redress, where it states in its relevant part:

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

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

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

I do not believe compensation to be an appropriate remedy in this instance, but I order the Respondent to carry out the following course of action:

 That the Respondent would immediately, upon receipt of this decision, carry out an independent audit of its inclusivity policies, if any, particularly with regards to its obligations under the Equal Status Acts 2000-2015 and to meaningfully address any shortcomings that may arise from such an audit. Furthermore, that the Respondent should draft a comprehensive equality and diversity policy which identifies prohibited conduct on all grounds referred to within the Equal Status Acts 2000-2015. This policy should be distributed to all members as well as being prominently displayed on its website.  

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-00032527-001: 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-00032529-001 – Reasonable Accommodation under Section of the Equal Status Acts 2000-2015

I find that the Complainant has established a prima facie casefrom which an inference of prohibited conduct occurred under the Equal Status Acts. The Respondent was not present to prove the contrary therefore I find that the Respondent engaged in prohibited conduct by not reasonably accommodating the disability of the Complainant, contrary to Section 4 of the Equal Status Acts.

I do not believe compensation to be an appropriate remedy in this instance, but I order the Respondent to carry out the following course of action:

That the Respondent would immediately, upon receipt of this decision, carry out an independent audit of its inclusivity policies, if any, particularly with regards to its obligations under the Equal Status Acts 2000-2015 and to meaningfully address any shortcomings that may arise from such an audit. Furthermore, that the Respondent should draft a comprehensive equality and diversity policy which identifies prohibited conduct on all grounds referred to within the Equal Status Acts 2000-2015. This policy should be distributed to all members, as well as being prominently displayed on its website.   

Equal Status Acts 200-2015, Disability, HIV status, Reasonable Accomodation.