Complainant

Respondent

Anonymised Parties

A Parent

A Creche

Representatives

Darren Lalor B.L instructed by  Philip Hannon & Co Solicitors

MP Guinness B.L. instructed by  Gleeson McGrath Baldwin

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033949-001

23/01/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent gave their evidence under affirmation while another witnesses for the respondent gave evidence under oath.

The complainant’s son has a disability, Autism.  This contention was supported by a medical report and was accepted by the respondent.  It is clear from the narrative of the complaint form that the parent was taking the complaint on behalf of her son and this aspect of the complaint was accepted by both parties from the outset.

ES1 notification was sent to the respondent on 20 September 2019 which was within the two-month timeframe envisaged under the Act.

The complainant submitted that her son was directly discriminated against the respondent when it treated him less favourably than another, when it refused to allow her son to use its services despite a successful application process and by refusing to provide her son with services by revoking his place at the respondent creche

The complainant also submitted that the respondent failed in its duty to provide her son with reasonable accommodation.

The complainant submitted that she made initial contact with the respondent on 8 August 2019.  She informed the manager of her son’s diagnosis and indicated that the manager was very supportive.  The complainant submitted that she completed application forms for both her children and an AIM (Access and Inclusion Model) Informed Consent form for her son with a disability.

The complainant submitted that at all times she disclosed to the respondent all the information with respect to her son and an up to date report on his progress and needs.

The complainant submitted that at no time prior to 3 September 2019 did the respondent inform her that there was any difficulty regarding the provision of a service to her son.

The complainant submitted that she was provided with a letter that stated, amongst other things, that it was clear that her son required a higher level of care than the centre could provide.  The letter continued that it regretted that the respondents centre “is not the right setting for him as we will not be able to meet those additional needs adequately”.  The complainant submitted that the respondent’s reasoning was based on a specialist report which was not up to date, and without any assessment by AIM and any further assessment by the respondent.

The complainant submitted that the respondent prevented her son from accessing his rights guaranteed by the United Nations Convention on the Rights of the Child by failing or refusing the child access to AIM.

The complainant submitted that she is seeking compensation for the effects of the acts of discrimination by the respondent under Section 21 of the Equal Status Act.

The respondent denied discriminating against the complainants child.

The respondent submitted that the complainant did attend its premises seeking to enrol her son(s) in the creche.  The respondent submitted that although she had started the application process, it was not complete until all of the information it required was provided and considered.  The respondent submitted that it had requested up to date reports regarding the complainant’s son and a report from the previous creche provider during the application process.

The respondent submitted that although the complainant attended its premises on 16 August with a completed application form, the deputy manager sought the remainder of the documentation that was outstanding – medical reports and a report from his previous creche.  The respondent also emailed the complainant to say that it had a place for the complainants second son, the email also included application forms for the second child and a reminder that medical and other documentation was outstanding for the first child.

The respondent submitted that on 29 August it received the medical, psychiatrists report and a letter from the previous creche.  The medical report dated 27 September 2018 indicated that the child would need an SNA in a classroom situation and that “an ASD class in a mainstream school would meet his complex needs”.  The respondent submitted that the respondent was not in a position to offer the child a place due to the current level and qualifications of its existing staff.  It also submitted that the ratio of staff to students would reach unacceptable levels given that the child required a 2 staff to 6 pupil ratio (ASD ratio), and the creche ratio was 2:16.

Having considered the information received from the complainant, the respondent took the decision that it was not equipped in its current format to cater for the child’s needs as laid out in the documentation submitted.

The respondent submitted that in October 2019, it invited the complainant to assist in the completion of the AIM (Access Inclusion Model) application which would assist it to put the appropriate resources in place.  The respondent noted that it indicated that it would be prepared to offer the child a place subject to the appropriate supports being provided through AIM.  The respondent indicated that the process would usually take 4 – 6 weeks once the application was submitted followed by a school visit and a further 3 weeks to receive a notice of what level of support was necessary for the child.  Then the recruitment of an appropriately qualified person would take place.  The respondent noted that it was aware of this timeframe as it had subsequently followed this process for another child in the creche.

The respondent attempted to contact the complainant when it became clear that she had not turned up on the day her son was due to take up the service.  Evidence of the attempts by the respondent to contact the complainant on 2 September was given at the hearing and this was not contested.

The respondent submitted that although the complainant had started to application process for her son, this process was not complete until all the information it requested was provided, including the medical report and the not from the previous service provider.  The medical report outlined, in detail, the educational requirements of the child.  This was in the possession or the complainant for almost a year prior to seeking the services of the respondent.  Despite this however, the report was only furnished to the respondent two working days prior to the start date.  It is difficult to see how any service provider could be expected to provide such additional resources within the timeframe that the submission of the documentation from the parent allowed.

I also note that the complainant only provided the letter from the previous childcare provider on 29 August, despite being in possession of the document since 16 August.  This letter contains a number of physical safety concerns for the other users of the respondent’s service arising from the possible attendance of the complainant’s son.  In the circumstances, it is difficult to see how any service provider could provide services where such safety concerns have been raised at such a late stage.

I note that the complainant made the following statement “At all times, the complainant, disclosed to the respondent its servants and agents with all information in respect of (the child’s) progress and needs and kept the respondent, its servants, and agents, always up to date in respect of (the child’s) progress and needs”.  It is difficult to see how this statement outlines the real position in circumstances where the complainant kept such information to herself and did not share the relevant reports with the respondent until two days prior to the commencement date of the service provision.

The respondent sought to make contact with the complainant on the date she sought as the start date of the service for her son.  She had informed them that she would be unavailable until 2 September.

It is not possible for a service provider to provide a service in the absence of all available information where such is requested in good time.  The complainant submitted the medical reports, the AIM consent form and the report from the previous service provider to the respondent on 29 August 2019, for a starting date of 2 September, 2019, notwithstanding that the complainant did not intend to bring her son into the creche until 3 September,

The Equal Status Act, 2000 outlines a number of provisions in relation to this case.  Section 4(6) of the Act outlines the following:

In this section— “provider of a service” means—

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

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

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

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

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

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

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

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

Section 7 of the Act refers to educational establishments and states that:

7.—(1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

(2) An educational establishment shall not discriminate in relation to—

(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

(b) the access of a student to any course, facility or benefit provided by the establishment,

(c) any other term or condition of participation in the establishment by a student, or

(d) the expulsion of a student from the establishment or any other sanction against the student.

(3) An educational establishment does not discriminate under subsection (2) by reason only that—

(a) where the establishment is not a third-level institution and admits students of one gender only, it refuses to admit as a student a person who is not of that gender,

(b) where the establishment is an institution established for the purpose of providing training to ministers of religion and admits students of only one gender or religious belief, it refuses to admit as a student a person who is not of that gender or religious belief,

(c) where the establishment is a school (other than a recognised primary school) providing primary or post-primary education to students and the objective of the school is to provide education in an environment which promotes certain religious values, it admits persons of a particular religious denomination in preference to others,

(ca) where the establishment is a school providing primary or post-primary education to students and the objective of the school is to provide education in an environment which promotes certain religious values, it refuses to admit as a student a person who is not of a particular religious denomination and it is proved that the refusal is essential to maintain the ethos of the school,

(cb) where the establishment is a recognised primary school and it admits as a student a person in accordance with section 7A (inserted by section 11 (b) of the Education (Admission to Schools) Act 2018).

(d) without prejudice to section 3 of the Refugee Act, 1996, where the establishment is an institution providing adult, continuing or further education or a university or other third-level institution—

(i) it provides different treatment in relation to—

(I) the fees for admission or attendance by persons who are citizens of Ireland, nationals of another Member State, nationals of the Swiss Confederation or nationals of a member state of the European Economic Area and persons who are not, or

(II) the allocation of places at the establishment to those nationals and other nationals,

or

(ii) it offers assistance to particular categories of persons—

(I) by way of sponsorships, scholarships, bursaries or other awards, being assistance which is justifiable, having regard to traditional and historical considerations, or

(II) in relation to the allocation of places at the establishment, where the allocation is made pursuant to an agreement concerning the exchange of students made between the establishment and an educational institution or authority in a jurisdiction other than the State,

or

(e) where the establishment is a university or other third-level institution, it provides different treatment in the allocation of places at the establishment to mature students (within the meaning of the Local Authorities (Higher Education Grants) Acts, 1968 to 1992).

(4) Subsection (2) does not apply—

(a) in respect of differences in the treatment of students on the gender, age or disability ground in relation to the provision or organisation of sporting facilities or sporting events, to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events, or

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

The respondent submitted that it did not have the staffing to provide the services that the complainant’s son needed those as outlined in the medical report provided by the complainant on 29 August.  In addition, the letter from his previous creche indicated that the complainant’s son had previously caused harm to other students with behaviours including “shouting, kicking throwing and sometimes biting on the other children”.  The respondent submitted that it needed time to consider the reports submitted at the last minute.  Section 4(4) of the Act states that

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

Having regard to the foregoing and in circumstances where the respondent had sought the information in good time and having regard to the contents of both the medical report and the report from the previous creche, I find that the denial of service to the complainants son while the respondent sought further information and looked at the possibility of providing additional staff member amounts to treating a person differently.  However, given the content of the medical report and the report from the previous creche I find that such treatment was reasonably necessary to prevent harm to the complainant’s son and to others.

Having regard to all the written and oral evidence presented in relation to this case and to the provisions of Section 4(4) of the Equal Status Act, 2000, my decision is that the different treatment afforded to the complainant’s son in the circumstances outlined does not amount to discrimination.  Accordingly, my decision is that the respondent did not engage in prohibited conduct.

Equal Status Act – educational establishment – different treatment – not prohibited conduct