Complainant

Respondent

Anonymised Parties

A gym user

A gym

Representatives

Rory O'Halloran Thomas J O'Halloran Solicitors

 Self

Act

Complaint Reference No.

Date of Receipt

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

CA-00035901-001

28/04/2020

The Complainant’s mother referred the within complaint on behalf of the Complainant to the Director General of the WRC on 28th April 2020. It is alleged that the Complainant was discriminated against on the grounds of his disability on 1st November 2019. It is also alleged that the Respondent treated the Complainant unlawfully by discriminating against him in failing to give him reasonable accommodation for a disability.

The Complainant’s solicitor submits as follows.

It is alleged that the Complainant was discriminated against on the grounds of disability by the Respondent on 1st November 2019.

The Complainant has Down Syndrome. He attended classes at the Respondent’s premises on a number of occasions prior to 1st November 2019 and he had no difficulty attending any of the classes with his sister present, and there were no complaints from the trainer about him or his ability to do the exercises.

A screening form was also completed by the Complainant’s sister. The Complainant’s medical history was completed by his sister.

It is submitted that when attending an evening class on 1st November 2019, the Complainant was told by the Respondent that he was not allowed to go to this class as it was unfair on the trainer. It was explained to the Respondent that the Complainant would be accompanied by his sister, but he was still not allowed to attend.

A complaint was sent to the Respondent and a reply was received which specifically states that they have refused his attendance on the basis that the Complainant has a disability.

The Complainant had no difficulty attending earlier classes, and there was no complaint from the trainer that he required any additional assistance.

The Complainant’s representative alleges discrimination against the Complainant by the Respondent contrary to the provisions of the Equal Status Act. In that regard,  the Complainant’s representative relies on the provisions of Section 4(1) to (6), and Section 5(1) of the Act.

The Complainant’s representative submits that the Complainant was discriminated against on the basis of his disability as he was treated differently to someone who didn’t suffer a disability. This is evidenced by email of 27th November 2019 from the Respondent to the Complainant’s solicitor (exhibited at the hearing).

Evidence of the Complainant’s sister, Ms A

Ms A, in her direct evidence said that during the midterm break she decided to do a few classes and asked the Complainant (her brother) to join her. He attended another gym but did individual training and not group classes. She decided to bring him for moral support and decided to do three days Monday, Wednesday and Friday. She found the Respondent’s gym on social media, it had good reviews.

She said that the Monday class was challenging but enjoyable. Other people found it challenging as well. She partnered with her brother, and they only needed help with a decision as to what weights to pick (they both picked the same weight). Ms A said that the trainer looked after them well. She said that after the Wednesday class everyone commented how challenging it was. One male said that he was going to get sick. After the class, the trainer came over to them and chatted. Ms A mentioned that the Complainant’s expressive language is not good and she was chatting to the trainer about the other gym.

Ms A said that the Respondent was in the gym on Monday and Wednesday, but she didn’t talk to him. She said that if he wanted to talk to her, she’d be happy to do so. She said that she wasn’t asked to fill in any forms and would be happy to do any screening necessary.

Ms A said that they enjoyed the early classes but on Friday 1st November 2019 the Complainant worked in his part-time job so they could catch only the evening class. She said that they arrived about 5 minutes before the class and met the Respondent at the reception. He asked her to fill in the forms. She took one and gave one to the Complainant. None of the questions were applicable to her or to the Complainant so she ticked all the answers. She completed the Complainant’s form as she was aware of his conditions, he signed the form. She gave both forms to the Respondent. Ms A said that the Complainant is very capable physically. The Respondent took the forms and said to her that there will be 20 people in the class and that it would not be fair on the trainer to let them in. She said that they did classes before and partnered up and did not need any help. The Respondent then let them do the class but said that in the future they will not be able to attend.

Ms A said that she thought that the issue didn’t seem to have anything to do with her, it was to do with the Complainant. She said that that she thought that what the Respondent meant was that the trainer would struggle because of the Complainant.

Ms A said that she went home and was upset. She wrote her report of what had happened and sent it to the  Respondent on 7th November 2019. The Respondent replied on 8th November 2019.

She noted that she would have loved to go back to the gym if the Respondent showed that he was happy to include the Complainant, but this did not happen.

Ms A denied that she replied “F**k this” to the Respondent, she said that she does not swear.

She confirmed that they went to earlier classes on Monday and Wednesday and were not asked to fill out the forms. They were asked to do so on Friday when they attempted to attend the evening class. 

Ms A said that she was in no rush on Monday or Wednesday. She said that she was not given any form before Friday 1st November 2019. She said she was asked to fill out the forms on Friday 1st November 2019. She said she did not know that the Friday class was an advanced one, no one mentioned ability level to her. She said on Friday she did not feel welcome. She said that the Respondent said that there could be 20 people in the class, and it would be unfair on the trainer but eventually he allowed them to attend but she was not interested.

Ms A noted that the Complainant was going to another gym a few times a week, it was individual training, not a class.

Evidence of the Complainant’s mother

The Complainant’s mother outlined the Complainant’s achievements. She said that he participates in numerous activities. He is a member of a Special Olympics Club and took part in Special Olympics in Limerick in 2014. He plays basketball, is a member of a harriers club, attends a gym. She  said that he has never been stopped because of his disability and appearance. She said that it is heart-breaking that he was stopped by the Respondent.

The Respondent submits as follows.

On Monday 28th October 2019, the Complainant and his sister first entered the Respondent’s facility to enquire about partaking in one of the daytime classes. The Respondent briefly took her enquiry and asked her to hang on so he could talk to the trainer who was inside the gym, who then popped out to reception to have a quick chat with her. The trainer told the Complainant’s sister that the Respondent would take her through the screening process and explain the workings of the gym to her.

The Respondent gave the Complainant’s sister two consent forms and asked her to fill them out and then they could chat with the intention of striking up a conversation with the Complainant whom the Respondent hadn't had an opportunity to speak with as the Complainant’s sister was the only person that had spoken to up to this point.  The Respondent submits that Ms A handed one of the consent forms to the Complainant. The Respondent submits that he was impressed by this notion but after a quick glance at the consent form, which is a very basic information screening form, she said out loud "this is easy" and took the consent form back out of the Complainant's hand and took over the conversation filling the entire time, which could have been spent screening both clients, describing the Complainant’s accomplishments.

The Complainant and his sister entered the facility roughly 15 minutes before a class was about to start. The Respondent submits that between the initial talking with him, then a brief chat with the trainer this did not allow much time to go through everything with her in the first place, but the Respondent never got an opportunity to get a word in to explain the workings of the gym, never mind have the screening process take place, or have the opportunity to speak to the Complainant himself. This cannot take place until the Respondent gets the screening forms filled in so he can review them and then based on the ticked boxes can commence with whatever might be required going further. As class was starting, the Respondent allowed them in hoping to follow up afterwards.

The Respondent submits that he awaited until the class was finished and was expecting to catch the Complainant and his sister upon exit, but the Complainant’s sister spent her time chatting to the trainer after class and rushed out the reception where the Respondent barely got the question in "Well, how did ye get on?”.  The Respondent submits that he got a hasty "good ya ,see ya" kind of response. The Respondent submits that he was left a bit baffled. He did not know if he would ever see them again, so he decided to wait and see if they come back. If they did, he would try to continue the screening process.

The Respondent submits that the trainer had assured him that this class was fine but going further with these two clients that he would need to assess the Complainant at least 4 to 5 times more before discussing further options for them should they attempt to come to a class that may be deemed unsuitable.

The Respondent submits that his next encounter with the Complainant and his sister was on 1st November 2019. The Respondent submits that 5 minutes before the last, and usually busiest evening class was about to start, one class was finishing up and 8 members were ready to enter the gym, two people entered the gym. The Respondent submits that he asked if he could help them and received the response "we're here for the class". He was assured that the two people were in the gym before, even though he did not recognise the female. He thought he recognised the Complainant. The Respondent submits that he glanced at the names, so he could check the screening forms and told the Complainant’s sister that there is more information needed to complete the forms. As there were only 8 people in the class, the Respondent knew the trainer could simplify or provide assistance if needed. The Respondent submits that he said that the Complainant and his sister are lucky that it was quiet on the night in question, and the trainer could take them, but busier classes might be more challenging. As one class leaves the gym , the other enters. The Complainant’s sister was at the counter wanting answers as to why they would not be allowed in at a busier class. She proceeded to tell the Respondent that the Complainant did not need much help and she would assist him. The Respondent explained that some classes might be more challenging. The Respondent told her they did not have time to discuss this right now. The Respondent said that he looked at his watch and said that the Complainant and his sister have 40 seconds to enter the class as the warmup is an integral part of the class. The Respondent submits that the Complainant’s sister replied: "Why" and "choose your words wisely". The Respondent submits that he backed away and said, "I'll be sitting here if you want to talk about it after". He submits that the Complainant’s sister paused and said "F**k this, come on [Complainant]" and stormed out.

The Respondent submits that it was the last time he saw them. The Respondent submits that he has a brother with Down Syndrome and only wanted to put the Complainant’s safety first by conducting a screening.

The Respondent provided the hearing with a complete guide on training people with Down Syndrome issued by the National Federation of Professional Trainers.

At the adjudicating hearing, the Respondent emphasised that the facility is a personal training and martial arts facility rather than a typical gym. At the material time, it offered a variety of classes (approx. 40). The Respondent said that he runs the toughest classes in town. He said that all participants need to show up 15 min before a class in order to be screened. He said that attention is paid to potential drug or alcohol use, tiredness, etc. but also general skills such as is the person able to differentiate between left/right, clockwise/anticlockwise which is of importance in fast paced, intense, group class setup.  A person cannot present themselves 5 minutes before a class and expect to be allowed to attend. There is a requirement for screening as for example a class where participants had completed 2-3 courses/sets of classes already might not be suitable for a complete beginner, person with no foundation or a person with intellectual disability. The Respondent submitted that it is incorrect for anyone to assume that once they attend one class that they would be permitted to attend all classes. He noted that no one would be allowed to attend the evening intense classes if the classes were not suitable for the person. He said that “buddy training” does not work in the circumstances, a person needs to know what they are doing.

The Respondent contended that he was being more than accommodating. He wanted to assess the Complainant’s ability to decide what classes are suitable, but he was not given the opportunity.

The Respondent said that as he comes across a disability, he researches it. He said that at times medical evidence is asked for, he might ask to speak with an SNA, he tries to establish what is holding the person back, etc. He said that it is not sufficient for the Complainant’s sister to tell him how good the Complainant is. He noted that at the material time he had two other male facility users with Down Syndrome who attended the gym and kickboxing classes and started from the beginner’s level.

The Respondent submitted that the facility closed down in March 2020 due to Covid-19.

In cross-examination, the Respondent confirmed that all forms are given on the day the person signs up, it is the same for everyone. He said that when the Complainant and his sister came in on Friday, he was not sure if they had been in the facility before. He checked the file and noted that there was no screening done, albeit the consent forms were there.  He said that Ms A never gave him an opportunity to speak with her, she left the facility. He contended that Ms A and the Complainant would have missed the class if she were filling out the forms on Friday, as they turned up 5 minutes before the class. He also said that it would never happen that someone would enter a class without signing a consent form.

The Respondent said that he met Ms A on Monday (28th October 2019) and spoke with her, he gave her the forms and asked for them to be filled out. He said that he got the forms back, signed and dated. These forms were on their file, and he did not ask for them to be filled out again on Friday (1st November 2019). He said that on Friday evening there were 7-8 people attending the class and he told Ms A and the Complainant that he does not have enough information in terms of screening but they are lucky that there were not many people attending the class so they could join. He added that if it were busier, it would not be safe. He said that Ms A decided that it was too much hassle to go through the screening, but he was thinking about the Complainant’s safety.

The Respondent said that the Complainant had no foundations and he needed to be screened. He said that Ms A would also not be permitted to attend a class if she was not able for it. He noted that any person needs to be screened. He said that Ms A, as a teacher is aware of the assistance provided at schools to persons with disabilities. He said that in physical education it is also a matter of safety. He said that he cannot have someone swinging kettle bells if they don’t know how to do it safely. A trainer spends more time with the weaker participants.

The Respondent noted that while some classes are “toned back” and in smaller groups, the evening classes are “classes on steroids”. He noted that the Complainant and Ms A found even the day classes challenging.

In his concluding remarks, the Respondent said that his classes were more advanced than a standard gym and everyone is screened, the Complainant was not an exception. The Respondent added that he has a brother with Down Syndrome. He said that he shared a room with him for the first 18 years of his life. He also organises pony camps every year for teenagers including persons with disabilities such as Down Syndrome. He said that he is aware that often some level of assistance is required. He acknowledged that regular exercise is important, but it can cause serious damage if done in an unsafe manner.

The issue for decision is, whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of sections 3(1) and 3(2)(g) of the Equal Status Acts, 2000 and whether the Respondent failed to provide the Complainant with reasonable accommodation for that disability pursuant to Section 4 of the Acts.

In reaching my decision I have taken into account all of the submissions and evidence, oral and written, made to me in the course of my investigation.

There was no dispute that the Complainant is a person with a disability for the purposes of the Act. There was also no dispute that at the relevant time the Respondent was providing a service within the meaning of the Act.

Section 3(1) provides, inter alia, that 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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is, “(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(1) states: “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.

(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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(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.”

“5(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

The requirements placed on a Complainant in this regard were set out by the Labour Court in the case of Mitchell v Southern Health Board [2001] ELR201, where the Court stated as follows:

“A claimant must prove, on the balance of probabilities, the primary facts on which they rely seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

In order to determine whether the Complainant has established a prima facie case of discrimination, a three-stage test can be applied:

1.       The Complainant must establish that he is covered by the relevant discriminatory ground.

2.       The Complainant must establish that the specific treatment alleged has on balance occurred.

3.       It must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

There was a clear conflict in the evidence between both parties regarding the events that occurred on Friday 1st November 2019. Therefore, my decision is arrived at on the balance of probabilities.

There was no dispute that the Complainant is a person with a disabilitythus satisfying the first of the criteria outlined above. There was no dispute that the Complainant experienced some difficulties with accessing a fitness class on Friday 1st November 2019. It was argued on behalf of the Complainant that the treatment was less favourable than the treatment which would be afforded to a person without a disability in similar circumstances. It was also argued that the Respondent failed to provide the Complainant with reasonable accommodation for that disability. There was no comparator provided for the purposes of this claim.

I am satisfied that the Complainant was afforded service without any reservations or difficulty in the Respondent’s facility on Monday 28th October 2019 and Wednesday 30th October 2019. There was no evidence to suggest that he was afforded anything other than the same level of professional care and attention as the other service users that attended the facility at the time. By the Complainant’s sister’s own admission, they enjoyed the classes and the trainer “treated them well”. 

The alleged discriminatory treatment relates to the events of Friday 1st November 2019.

There was no dispute that on the evening in question, the Complainant and his sister arrived very shortly, approximately 5 minutes, before the class was due to commence. There was no dispute that they were stopped by the Respondent. While Ms A argued that they were asked to and they did fill out consent forms at the time, the Respondent argued that these were completed previously and, on the evening in question, there simply would not have been enough time for them to do so. I note that, as clarified by the Respondent, due to the pandemic the facility has been closed for approximately 2 years and the records such as consent forms are no longer held by the Respondent. While clearly there was a disagreement between the parties as to the day on which the forms were completed, it has no major bearing on this decision.

I have carefully reviewed the correspondence from the Respondent to the Complainant’s sister. In the first undated correspondence which was issued in reply to Ms A’s communication post 1st November 2019 the Respondent states that the Complainant is “welcome to train in the quieter classes and unless he brings a carer that has a qualification as a personal trainer to the busier classes that these busier classes will not be suitable as the trainer wont be able to oversee his form properly or safely as the instruction thereof may not be understood as quick as the average person and with the numerous various exercises that we perform here at fight circuit (which change daily) deem the larger group classes not suitable for [the Complainant] at this time with only one personal trained assigned per group class at present.”

In the Respondent’s email of 27th November 2019, in response to the ES1 form, the Respondent states as follows:

“Your client wasn’t refused entry on the evening in question. Your client had trained twice previous in a much lighter and easier class set up.  As you client has a disability and has zero information disclosed on his screening form with details of his disability, a disability that can come with numerous underlying physical and mental conditions that was filled out by one persons handwriting and signed by your client [name] it was and is my call to refuse entry in the busier classes till we make a further assessment based upon what we see in the quieter classes to ensure the safety of your client [name] and the others training at our facility”.

I am satisfied that no evidence was offered to suggest that the Respondent refused the Complainant access to the service provided. The Complainant attended the daytime classes on two occasions. While the Complainant and his sister decided not to attend the evening class on the 1st November 2019, there was no dispute that the Respondent permitted them to do so, albeit it was not disputed that the Respondent required an assessment to take place going forward.

At the adjudication hearing, the Respondent agreed that he informed the Complainant and his sister that due to the level of intensity of the evening classes, an assessment or “screening” needed to be carried out. In that regard, the Complainant’s sister gave evidence that they were both stopped by the Respondent. While she said that she felt the issue related to the Complainant only, the Respondent argued otherwise. I note the Respondent’s evidence that all participants must arrive at the facility at least 15 minutes prior to the commencement of a class. I also note the Respondent’s argument that all patrons must be assessed in terms of their physical and mental ability to participate in the relevant classes and asking the Complainant to do so was not unusual. In fact, the Respondent made it clear that should Ms A’s fitness level be deemed unsatisfactory to participate in a class, she would not be permitted to join. The Respondent appeared to take his obligations in respect of health and safety of the patrons and the duty of care towards his staff very seriously. I would presume that expert supervision would be paramount in determining whether a patron has the skills and physical ability to use the equipment and participate in a class, particularly given a health and safety threat to someone that is unaccustomed or unskilled in the operation of such equipment or high intensity training in general. Accordingly, I am satisfied that any decision in that respect is made in relation to the facility user’s capabilities. It is, therefore, understandable that the Respondent would wish to obtain some knowledge as to the patrons’ health, experience, and fitness level before permitting them into a high intensity class.

Moreover, in view of the complaint referred to the WRC on behalf the Complainant in relation to the alleged failure of the Respondent to provide the Complainant with reasonable accommodation for his disability, which is considered below, it appears that the Complainant’s representative had acknowledged that the Complainant did require accommodation and, therefore, some sort of engagement should have taken place in terms of the Complainant’s abilities and accommodation required.

It is a clear that the Respondent insisted on an assessment to take place prior to the Complainant progressing to the higher intensity classes. In that regard, I note the Respondent’s evidence that it was practice in the Respondent’s facility that as the patrons wish to partake in the higher intensity classes, they must undergo an assessment to ascertain whether or not these classes are suitable for them. It is irrelevant whether the person has or does not have a disability. The Respondent made attempts to arrange such an assessment with a view to establishing whether the evening classes were suitable for the Complainant. However, neither the Complainant nor his sister were open to such an assessment. I note that at the material time, the Respondent had two young male customers with Down Syndrome participating in kickboxing classes and gym activities. He has a personal experience of living with a person with Down Syndrome. The Respondent is also actively engaged in providing camps for young people, including persons with disabilities.

Having carefully considered the above, I find that no evidence was presented to establish that the Complainant was subjected to less favourable treatment that any other person without a disability or with a different disability is, has been or would bein similar circumstances on the grounds of his disability.

I will now examine the treatment of the Complainant in the context of Section 4 of the Acts which deals with the provision of special facilities for a person with as disability. The question to be addressed is whether the Respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”. The Act requires the Complainant to show, in the circumstances of this case, that the Respondent did not do everything he reasonably could to accommodate the needs of the Complainant, and that he did not provide him with special facilities to meet those needs.

It was alleged on behalf of the Complainant that the Respondent failed to provide him with reasonable accommodation. In considering whether the Respondent has discharged his obligations under Section 4 of the Acts in the present case, I must examine whether he did all that was reasonable, in the circumstances, to provide special treatment or facilities in order to enable the Complainant to avail of the service.

While the Respondent might not be qualified to fully assess the Complainant’s health, I accept that he could have had reasonable belief that Down Syndrome might cause both mental and physical challenges and, because of their disability, persons with Down Syndrome might require special provision to be made for them if they are to be able to fully participate in society. The Respondent appears to be aware of the challenges that persons with Down Syndrome might face. He has personal experience of living with a person with Down Syndrome. He also organises pony camps for young persons including persons with Down Syndrome.

In order to provide reasonable accommodation to meet the needs of a person with a disability if it would be impossible or unduly difficult for that person to avail of the service without the special treatment, facilities or adjustments, the Respondent needed to be given an opportunity to discuss with the Complainant the accommodation required. I am satisfied that the Respondent actively tried to engage in a process of consultation with the Complainant. It is clear that the Respondent attempted to address the matter with the Complainant and his sister but there was no cooperation from the Complainant or his sister. It is evident that the requirement for an assessment of ability and needs would have benefited the Complainant and could have assisted him in accessing services of the Respondent. Based on the evidence available to me, I am satisfied that it was not possible for the Respondent to provide any accommodation to the Complainant purely for the reason that there was no engagement on part of the Complainant to determine the accommodations required.

Having considered the evidence before me, I find that the Respondent did not fail in its obligation under Section 4 of the Act to do all that was reasonable to accommodate the needs of the Complainant as a person with a disability, in the circumstances of the present case.

On the basis of the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Section 3(1), 3(2)(g) and 4(1) of the Equal Status Act. I declare this complaint to be not well founded.

Equal Status Acts- disability- reasonable accommodation