Complainant

Respondent

Parties

Micheál  Kelliher

Raidió Teilfís Éireann

Representatives

Self-Represented

Mr. Des Ryan BL, RTE Legal Deparment

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033845-001

16/01/2020

On the 16th January 2020, the Complainant referred a complaint under the Equal Status Acts with the Commission. Herein, he alleged that the Respondent, the national broadcaster, discriminated against him, a member of the deaf community, by failing to broadcast Irish Sign Language (hereafter referred to as “ISL”) during the all-Ireland football final.  The Complainant further submitted that this constituted an example of the active discrimination against the deaf community over the previous year.   

By response, the Respondent denied the complaint. In particular, they submitted that they had made every reasonable effort to accommodate the Complainant’s disability with regard the provision of their programming, Without prejudice to the same, the Respondent raised two preliminary issues regarding my jurisdiction to hear the Complainant as referred. Firstly, they alleged that the complaint was not referred within the statutory time-frame and as a result was statute barred. Secondly, the Respondent submitted that as they were acting within the statutory framework applicable to them as the national broadcaster, the Complainant cannot sustain the present complaint under the Equal Status Acts.

A hearing in relation to this matter was convened for, and finalised on, 12th October 2021.This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both preliminary points raised by the Respondent will be considered prior to the substantive matter.

The complaint form outlines that the first date of discrimination was 19th August 2018, with the final date of discrimination being 31st August 2019. In circumstances whereby the ES1 form, setting out the nature of the complaint to the Respondent was received on, 21st October 2019, most of the Complainant’s complaint is out of time for the purposes of the present Act.

By response, the Complainant submitted that he had both notified the Respondent, and submitted the present complainant within the time-frame prescribed by the present Act.

Section 21(2) of the Act provides that,

“Before seeking redress under this section the complainant

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

(i) the nature of the allegation,

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

Section 21(11) of the Act provides as follows,

“For the purposes of this section prohibited conduct occurs-

(a) if the act constituting it extends over a period, at the end of period

(b) if it arises by virtue of a provision which operates over a period, throughout the period.”

In the matter of Dunnes Stores v Breda Mulholland EDA 179 the Labour Court stated as follows,

“It is settled law that for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of the complaint.”

While it is common case that the last occurrence of alleged discrimination occurred in within two months of the notification, and consequently satisfies the conditions set out above, it is the position of the Respondent that earlier allegations of discrimination were not so referred and are consequently out of time.

The compliant advanced by the Complainant is that the Respondent’s failure to broadcast Irish Sign Language constituted, of itself, an instance of discrimination. At the hearing of the matter, the Respondent’s alleged failures in this regard constituted the subject matter of the submissions. Having regard to the foregoing, I find that the Complainant satisfied the criteria set out in Section 21(2) of the Act.

The Respondent submitted that they were acting within the statutory framework applicable to them as the national broadcaster, and as such the present complaint is not actionable in this forum.

In particular, the Respondent referred to Section 14(1)(a) of the Act which prohibits, “the taking of any action that is required by or under – (i) any enactment or order of the Court”. It was submitted that the above-mentioned provision provides a complete defence to any allegation that the Respondent’s practice is discriminatory, as the practice must be viewed within the statutory framework within which the Respondent operates.

The Respondent referred to Section 43(1)(c) of the Broadcasting Act, which provides that the that the Broadcasting Authority of Ireland (the “BAI”) shall prepare rules with respect to the specific steps required to promote the understanding and enjoyment of programming by persons who are deaf or have a hearing impairment. On foot of the provisions of the 2009 Act, the BAI access rules were published in 2012 and revised in 2016 and again in 2019. These rules provide applicable targets for each broadcast service, based on a five-year timeframe. The BAI rules set specific subtitling and ISL targets each year over a five-year period. During the year in question (2019) the Respondent’s targets in this regard was 95% subtitling during peak time broadcasting and 3% ISL interpretation. It was the submission of the Respondent that they had exceeded these targets in the year in question. Notwithstanding the same, it was submitted that while these were the prescriptive requirements set out in legislation, the Respondent sought to ensure optimum broadcasting standards. In this regard, the Respondent identified major social political and entertainment programming for which an ISL interpreter was provided.

In summary, the Respondent submitted that their actions regarding the provision of an ISL interpreter falls within the purview of a legislative enactment. As a consequence of the same, and the application of the Section 14(1)(a) it was submitted that the Complainant cannot maintain the present complaint in this forum.

In response to this point, the Complainant stated that the 3% target for the provision of an ISL interpreter is wholly inadequate. He submitted that as a result of the same, the deaf community (including himself) pay a full licence fee but only have access to a minority of programming. Regarding the particular program referred to, the All Ireland football final. The Complainant submitted that an ISL interpreter was present for the national anthems but was only displayed fleetingly on the screen. He submitted that the interpreter should have been displayed on-screen for the duration of the national anthem.

Section 14(1)(a) of the Act provides that,

“Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i)                  any enactment or order of a court,”

I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), he stated:

“This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under “any enactment or order of a court”. This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning.”

Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.

It is the position of the Respondent that the provisions of ISL interpretation a matter which is prescribed by the rules created subject to Section 43(1)(c) of the Broadcasting Act and consequently have statutory underpinning. Having regard to the same, they submit that the exemption in Section 14(1)(a) applies, and as such the present complaint cannot be maintained in this forum.

The application of Section 14(1)(a) was considered by the High Court in the matter of G -v- Department of Social Protection [2015] IEHC 419. Here, O’Malley J. stated that,

“In the proceedings as constituted before this court, the only legal standard by which she can make that claim is the standard set by the Equal Status Act. Since both are Acts of the Oireachtas, embodying policy choices made by the legislature, it is not open to a court to make a finding of unlawfulness in one on the basis of the policy of the other. There has been no assessment of the constitutionality of the choices made in the social welfare code, which would be the only legitimate basis for such a finding.”

O’Malley J. went on to state that complaints regarding an alleged deficiency in separate legislation,

“…raises the problem of whether the Equal Status Act can be relied upon in this fashion, to find that there is discrimination contrary to that Act embodied in another Act. In my view it cannot, whether by this court, or by the Equality Tribunal acting as the body primarily charged with dealing with complaints under the Act.”

In this regard, I note that the Complainant’s case is that the Respondent is failing in their responsibilities to provide interpretation of their programming for the deaf community. In particular, the Complainant has highlighted the Respondent’s failure to provide ISL interpretation during the All-Ireland football final. By initial response, the Respondent has submitted that this particular complaint is not actionable in this forum by operation of Section 14(1)(a). In this regard, I note that this section exempts actions that are “required” by statue. In this particular matter, the Respondent is required to provide ISL interpretation for a minimum of 3% of its broadcasts. While the Complainant has taken issue with this target, and clearly the Respondent is not liable for the same, his allegation relates to the access to the Respondent’s programming as a whole. Nothing in the statutory framework required the Respondent to provide 3% programming with ISL interpretation and no more. In this regard, it is accepted that the target is a minimum, as opposed to a maximum, standard. In light of the same, it appears that the issue at hand is analogous to the second example outlined by McIntyre, in that the alleged discrimination is “permissive but not mandatory”. In this regard, the present case may be distinguished from G -v- Department of Social Protection. In that matter the relevant department was obligated to follow a prescribed course of action on foot a particular set of circumstances. This factual matrix is not analogous with the present situation, no statutory scheme existed that required to the Respondent to fail to provide ISL interpretation during the programme identified by the Complainant.

Having regard to the foregoing, I find that the exemption set out in Section 14(1)(a) does not apply and consequently I accept jurisdiction to adjudicate the substantive complaint. 

The complaint submitted that the Respondent actively discriminated against him, and by extension the deaf community as a whole, by neglecting their responsibility to make national broadcasts available for everyone. In particular, the Complainant referred to the All-Ireland football final. He stated that this was an event of significant national importance, and that the Respondent’s failure to provide ISL for the duration of the same was indicative of their ongoing discrimination against the deaf community.

Without prejudice to their submissions regarding jurisdiction, the Respondent denied the substantive complaint advanced by the Complainant.

They submitted that their targets regarding the provision of ISL interpretation was set by an external third party, and that they had exceed this target within the relevant period for the purposes of the complaint. Notwithstanding the same, the Respondent submitted that they endeavoured to provide ISL interpretation for their most significant cultural, political and social programming. The Respondent stated that they had ongoing discussion with relevant stakeholders regarding the accessibility of the programming for disabled persons. In this regard, the Respondent submitted that it strived to exceed the prescribed standards and provide an optimum level of access for all viewers.

Regarding the specific event reference by the Complainant, the Respondent accepted that this was a significant event, and that ISL was not provided. Notwithstanding the same, the Respondent submitted that the provision of ISL during live sporting broadcasts presents a significant set of challenges for any broadcaster. In particular, they submitted that sporting events are by their nature fast-paced and unpredictable. The Respondent also pointed to difficulties regarding the provision of a box or “bubble” to facilitate the provision of ISL interpretation during unpredictable live events. Notwithstanding the same, the Respondent submitted that they are examining emerging technological solutions regarding the same, and they submitted that they endeavoured to be leaders in relation to the same. The Respondent also outlined that they provide subtitling for almost all of their programming, including live sporting events. Finally, the Respondent submitted that they constantly seek feedback and input from persons regarding provision of their services and in this regard they extended an invitation to the Complainant to engage with the same.

In summary, the Respondent submitted that they had not discriminated against the Complainant. In particular, they referred to Section 4(1) of the Act and submitted that they had done all that was possible to accommodate the needs of the Complainant.

Section 2 of the Act defines “service” as follows:

“a service or facility of any nature which is available to the public generally or  a section of the public, and without prejudice to the generality of the foregoing, includes…

(ii)                entertainment, recreation or refreshment”

Section 3(1) provides that discrimination occurs,

“..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)…in this Act referred to as the ‘discriminatory grounds’.

Section 3(2)(g) lists disability as one such ground.

Section 4 of the Equal Status Act sets out the obligations on providers of a service to reasonably accommodate persons with a disability. In this regard, Sections 4(1) and (2) of the Act provide as follows:

“(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 facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.”

In the case of Kim Cahill V Department of Education and Science, 2017 IESC 29, McMenamin J stated that

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J went on to state that,

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

In the present case, the Complainant has alleged that the Respondent’s failure to provide ISL interpretation during a sporting occasion, constituted a failure on the part of the Respondent to do all that was reasonable to accommodate his needs as a person with a disability. In denying this allegation, the Respondent has stated that they have done all that is reasonable to accommodate the Complainant’s needs in the provision of ISL generally, but that they were unable to provide such services during the specific event in reference.

As previously noted, the minimum standard for the provision of access services for disabled persons is dictated for the Respondent. The Respondent’s submission, which was not contested, was that they surpassed this target in the relevant period of the purposes of this complaint. While the Complainant has taken issue with this target, it has not been submitted by him that the Respondent is under an obligation to provide ISL interpretation for all televised programming. The natural consequence of the same is that some, if not most, of the Respondent’s programming will not contain ISL interpretation. In his submission, the Complainant has identified a particular event that presents significant difficulties for the Respondent regarding the provision of such interpretation. Notwithstanding the same, I note that the Respondent is proactively engaging with representative bodies regarding the facilitation of such interpretation. Furthermore, I note that the Respondent is examining technological solutions to allow access for the Complainant.

In Deans -v- Dublin City Council, unreported April 15, 2008l, Hunt J. stated that,

“… reasonableness must be judged according to the context of the individual case…The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities...All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it”.

In the present case, I find that the Respondent has done all that is reasonable to facilitate the Complainant’s access to service it provides. Unfortunately, even with such endeavours, there will remain a significant portion of the Respondent’s programming that will not contain ISL interpretation. In seeking to facilitate access, it would be unreasonable to expect the Respondent to achieve such perfection, as set out in Deans above. Rather, they have exceeded the standards imposed upon them and have sought methods to provide additional access for disabled persons for their programming.

Having regard to the foregoing, I find that the Respondent has done all that is reasonable to accommodate the Complainant’s particular needs as a disabled person. Consequently, I find that this complaint is not well-founded, and the application fails.

I find that the Respondent did not engage in prohibited conduct within the meaning of the Act. As a consequence of the same, I find that the complaint is not well-founded and the Complainant’s application fails.

Disability, Reasonable Accommodation, Media, Access