Complainant

Respondent

Parties

Alison  Walsh

Ashbourne Visitor Centre Limited T/A Emerald Park

Representatives

  Self

MP Guinness BL instructed by Caoimhe Connolly,  Moran & Ryan Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00048895-001

01/03/2022

The Complainant contends that she was discriminated against on the grounds of her disability at Emerald Park by the Respondent’s refusal to provide her with reasonable accommodation in the form of a ride assistance pass.

The Complainant was accompanied by her sister who was also sworn in.  The Complainant’s sister presented oral evidence to the hearing as she had accompanied the Complainant on her visit to Emerald Park which gave rise to this complaint.

The Complainant was born with spina bifida. More recently, she was diagnosed with neurosarcoidosis which caused severe nerve damage. As a result, her mobility is severely impaired. The Complainant is unable to stand or walk unaided and is fully reliant on mobility aids including her scooter, wheelchair, walking frame and/or crutches, depending on the situation. She is registered as a disabled driver, she drives an adapted car, she qualifies for home support from the HSE and supports from the Department of Social Protection.  In her day-to-day life, the Complainant uses a mobility scooter as her primary mobility aid.

On 4 September 2021, the Complainant visited Emerald Park with her husband, her two children, then aged 6 and 3, her sister and her family and their nephew.  The Complainant and her family parked in a disabled driver space and displayed her badge. She was using her mobility scooter on that day and she availed of the reduced entry price for guests with additional needs.

The Complainant and her sister went to the Junior Zone with the younger children. The park was beginning to get busy and there were queues forming for the rides in the Junior Zone. The Complainant asked a ride attendant if she had to queue and was advised to attend the Customer Service area where she could seek a Ride Assistance Pass.  At the Customer Service area she was told she needed a letter from a doctor stating her exact diagnosis in order to avail of the Ride Assistance Pass. The Complainant explained that she did not have this to hand but did have her “blue badge”, driver’s licence designating her as disabled and her Public Services Card. She also explained that she is unable to walk or stand unaided, hence her mobility scooter. The Complainant was told that this evidence was not sufficient and a letter from a doctor was required stating her exact diagnosis. The Complainant asked to speak to a manager and was told there was none available. The Complainant was advised that the policy in relation to the issuing of Ride Assistance Passes was on the Emerald Park website.

The Complainant returned to her sister who was very upset at how the Complainant had been treated. They tried to find something saved on the Complainant’s phone from one of her consultants but could not find anything. The Complainant was really surprised and disappointed at how she had been treated and the impact that this would have on her for the day. There appeared to be no alternative but to queue if she wanted to go on anything with her children.

For most of the day, the Complainant could not queue for the rides with her children as the wait would have been too long. As a result of her disability she suffers with incontinence and severe leg spasms. Also, staying still in the mobility scooter for long periods of time causes shoulder and neck pain. Having to queue for any length of time severely impacts her ability to enjoy amenities. 

The Complainant submits that, for a disabled parent, long queueing times also introduces a higher than acceptable level of risk when accompanied by young children. The Complainant’s son was 3 in September 2021 and prone to run away from her. The Complainant cannot respond as quickly as an able-bodied person and in a large, open space like Emerald Park, she could not have taken the risk of queuing for attractions with her son without another adult.  The Complainant accepts that this is not Emerald Park’s responsibility but a Ride Assistance Pass would have mitigated the risk of him getting lost or hurt and she would have been confident to mind him by herself. As was the case, she could not do this and he could only queue for attractions with another adult member of the group, not his mother. 

The Complainant and her extended family decided to stay at Emerald Park so as not to disappoint the children. For most of the day, the Complainant’s sister, husband and brother-in-law queued with her children for attractions while she waited to the side or at a rest area/coffee shop. On one occasion, she did join a queue with her daughter but had to leave due to a medical reason. It was quite difficult to navigate exiting the narrow, busy queue in her scooter and it was upsetting that she had to again ask her sister to bring her daughter on to the ride instead of her. The Complainant submits that she did not get the same experience throughout the day as her sister did with her children as they enjoyed the park and attractions together whereas she was excluded and sat to the side waiting and watching.  

At the end of the day, when the park emptied out a bit, the Complainant did go on some of the smaller rides in the Junior Zone with her children. The Complainant submits that, outside of the Junior Zone, she would not, even with a Ride Assistance Pass, have sought to go on many attractions as the more boisterous ones would not be safe for her. The Complainant is fully aware of the limitations her disability imposes on her and she sought the Ride Assistance Pass for the attractions she would be able to enjoy with her young family. She would have used it primarily in the Junior Zone, for the train and for the milder attractions outside the Junior Zone that her daughter wanted her to go on with her. 

The Complainant emailed Emerald Park to complain about how she had been treated but she did not receive a satisfactory response. She was told that the policy was on the website and that Ride Assistance Passes are not given to everyone with a disability. She was also advised that they had to be very strict with the policy as people had taken advantage of it in the past. 

The Complainant found the tone of the emails to be defensive and unhelpful. In the initial response she received, the Respondent incorrectly referred to her grandson as the disabled party.  The Complainant submits that she asked for her complaint to be escalated and tried to outline her position but she did not receive a satisfactory response. The Complainant further submits that she tried to find contact details for the general manager online. She asked for the email address for who she thought was the manager to be told that she was wrong but no contact was provided. The reason given for this was GDPR.  The Complainant submits that her sister also complained and experienced the same disappointing and defensive response.

The Complainant submits that she was told repeatedly that the policy was outlined on the Emerald Park website.  The Complainant submits that the policy available on the website in September 2021 referred only to cognitive disabilities and made no reference to physical disabilities. Following her complaint, the policy was updated to refer to physical disabilities. 

The Complainant submits that government issued evidence of a disability, as well as physical presentation, should be enough and that, at the very least, staff should be empowered to use their discretion.  While the Complainant accepts that she did not educate herself as to the Respondent’s policy, she feels that the policy is discriminatory. 

The Complainant submits that Emerald Park’s response to her ES1 form contained the following:  - “While Ms. Walsh entered the park and was able to use various rides, as it was a busy time and Ms. Walsh and her family did not wish to queue along with the general public, a ride assistance pass was sought. Unfortunately, it was not possible for this to issue as the necessary supporting documentation specified in the pre-existing policy published on our website was not provided”.

The Complainant strongly refutes this assertion by the Respondent. Firstly, she did not experience any of the attractions prior to seeking the assistance she needed. The Complainant submits that she never decided that she did not want to queue with the general public.  The Complainant submits that she is unable to queue due to a severe physical disability and the multitude of medical complications that she has as the result of being born with spina bifida and also acquiring neurosarcoidosis.  The Complainant asserts that she was very upset by the tone of the response.

Legal Basis

The Complainant submits that Emerald Park discriminated against her on the basis of her disability by failing to provide her with a reasonable accommodation in the form of a Ride Assistance Pass. 

The Complainant submits that she is a disabled person and has been for her entire life. The Complainant submits that she physically presents as disabled by virtue of her reliance on mobility aids as she is unable to walk or stand unaided.  Furthermore, on the day of her visit to Emerald Park, she also had 3 forms of government issued evidence to hand including: 

·       EU Parking Permit “Blue Badge”, issued by the Department of Transport 

·       Driving licence indicating that medical report is necessary for renewal 

·       Public Services Card identifying her as disabled, issued by the Department of Social Protection which includes the code “FT+C” meaning Free Travel + Companion

The Complainant submits that in order to acquire any of the above, medical assessments and records are required. 

The Complainant submits that the provision of a Ride Assistance Pass is a reasonable accommodation for a theme park to provide. The Complainant submits that she would have used the pass on several attractions and she does not think that by using it she would have impacted on able-bodied guests enjoyment of the park. It would have helped her to enjoy the park’s facilities with her children, which is what she thought she would do that day. It would have relieved physical, mental and emotional stress associated would being treated differently and being excluded. Even if she chose not to use it at all, having it would have given her the comfort that she had the opportunity to do so.

The Complainant submits that the provision of reasonable accommodation in the form of a Ride Assistance Pass would not have resulted in a significant cost to Emerald Park.

The Complainant submits that the refusal to provide her with a Ride Assistance Pass had a severe impact on her ability to avail herself of the services provided by Emerald Park. Furthermore, she was unable to participate fully in her family day out and experience the facility with her children. Her children, in turn, did not have the same experience as her niece and nephew who were able to enjoy the park with their mother.  The Complainant submits that she was excluded, due to the refusal to provide her with reasonable accommodation.

The Complainant submits that on day of her visit, and in the course of her follow-up communication, Emerald Park took a very rigid approach to their policy.  The Complainant submits that, at the time of her visit, the policy, which she was continuously referred to, only provided for cognitive disabilities. It did not refer at all to physical disabilities. In this regard, it only provided for one cohort of disabled guests thereby treating people with different disabilities differently. 

The Complainant submits that Emerald Park’s policy was discriminatory in that, a person with a cognitive disability can present a card from a relevant body/charity and be provided with a Ride Assistance Pass but a person with a physical disability has to provide a letter from a doctor stating their diagnosis and inability to queue.  The Complainant does not understand why her EU parking permit (blue badge), along with her physical presentation as a disabled person, do not pass Emerald Park’s test for disability.

Direct evidence of the Complainant

The Complainant said that visitors to the park who have a cognitive disability only needed to present a card from an advocacy body such as AsIAm to get a Ride Assistance Pass.  The Complainant said that she understood the Respondent’s point about the limiting the number of people availing of the Ride Assistance Pass but she did not think that all disabled people had been treated in the same way and that it gives special treatment to people with cognitive disabilities which it does not give to people with physical disabilities.

The Complainant said that she presents as a disabled person.  On the day she visited Emerald Park, there were no manager available and she was unable to escalate her complaint.

The Respondent operates a theme park and zoo that offers over 100 attractions.  The Respondent regrets the upset caused to the Complainant.  However, it denies that she was discriminated against.

The Law

Section 3(l)(a) of the Equal Status Acts provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified.... A person is treated less favourably than another person is, has been or would be treated' or Section 3(l)(C) provides "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." The Respondent submits that the Complainant has failed to demonstrate either direct or indirect discrimination.

Section 38A (1) provides that the burden of proof is: "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." It requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore the Complainant must first establish a prima facie case of discriminatory treatment and 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.

In order to establish a prima facie case, the Complainant must satisfy the three stage test:

         I.            That the complainant comes within a protected category pursuant to the Act.

       II.            That there was specific treatment of the Complainant by the Respondent.

     III.            The treatment of the Complainant was less favourable than the treatment that was or would have been afforded to another person in similar circumstances.

The Respondent denies that the treatment complained of was specific treatment and less favourable treatment than the treatment that was or would have been afforded to another person in similar circumstances. In these circumstances, it is submitted that the Complainant has not discharged the burden of proof in this matter, even if the Complainant established the facts as alleged.

The Respondent operates an Additional Needs Policy which is updated from time to time in accordance with guidance and feedback from guests. The Respondent received positive constructive feedback recently from the mother of a child with a disability and have asked her to come in to discuss their experience with staff as part of ongoing staff training so that staff become more aware of the challenges facing people with disabilities.

It is accepted that the policy that is operating currently is an updated policy of the version operating at the time the Complainant attended the park. The Complainant alleges that she was discriminated against because of the refusal to provide her with a Ride Assistance Pass. The Respondent offers reasonable accommodation to guests with a disability which takes the form of an Additional Needs Ticket and a Ride Assistance Pass. The policy advises on the website that a Ride Assistance Pass will not automatically be issued in conjunction with an Additional Needs Ticket and will only be issued to guests with documentation specifying an inability to queue. Not all guests with a disability have an inability to queue. All guests with a disability are required to show documentation to support an inability to queue in order to be issued with the Ride Assistance Pass and are therefore all are treated the same. The Complainant is incorrect in stating that people with a cognitive disability need only "present a card from a relevant body/charity" in order to be provided with the pass.

The policy at the relevant time confirms that the Ride Assistance Pass was reserved for “guests with cognitive disabilities, who do not understand the concept of queuing; have difficulties with everyday social interaction; have a limited capacity to follow instruction or to understand others' emotional feelings or expressions and may become agitated or distressed having to wait for extended periods of time”.

The policy goes on to state “Please be advised that a Ride Assistance Pass will not automatically be issued in conjunction with the additional needs rate and will only be issued to guests with documentation stating inability to queue”. When the Complainant asked for a Ride Assistance Pass, she was asked for documentation to support her inability to queue. and if she had provided that documentation she would have been issued with a Ride Assistance Pass. While the policy at the relevant time referred to cognitive disabilities, documentation supporting an inability to queue would have been accepted. The fact that the Complainant requires a mobility scooter does not of itself demonstrate an inability to queue. That is the whole point of the policy. Not everyone with a disability whether cognitive or physical has an inability to queue. Similarly not everyone who uses a mobility scooter has an inability to queue.

It is accepted that the policy has been updated as it is continually reviewed and updated following guidance and feedback from guests. The policy still requires documentation to support the issuing of a Ride Assistance Pass. This is because of guests seeking to take advantage of the benefits of the Pass without having a medical requirement for it. The Respondent has considered the feedback from the Complainant and in particular her reference to the blue badge which is an EU parking permit issued by the Department of Transport. The Respondent intends to update its policy to allow a blue badge be accepted as documentation to support the issuing of a Ride Assistance Pass at the discretion of a Manager.

The Complainant states that she believes that disabled people should be treated equally with regards to the policy and criticises the policy requiring additional information to get a Ride Assistance Pass.  The Respondent submits that disability covers a wide range of issues that are not physical in nature. It is submitted that the Respondent is treating all people with additional needs equally while accepting that not all people with disabilities require reasonable accommodation to shorten their time in a queue. The Respondent has to balance the needs of able bodied people and ensure that only those people with disabilities who require this reasonable accommodation are issued with a Ride Assistance Pass. It is the Respondent's experience that many people without additional needs seek a Ride Assistance Pass who did not need it but want to take advantage of the benefits attached to it.

Direct evidence of Charles Coyle, Managing Director, Emerald Park

Mr Coyle said that Emerald Park had 730,000 visitors in 2022 of whom 8-10% had a disability.  The park has had previous experience where those in the Queue Assistance Pass queue have had to queue for between 15 and 20 minutes and this is why people need additional documentation to prove their inability to queue.  The Respondent does not have any medically trained staff who can make decisions in relation to the needs of visitors with a disability.

Mr Coyle said that the Respondent company wanted all visitors to be treated equally and to enjoy their visit.  He spoke about how he had recently worked with the parent of a child who used a wheelchair to improve the Respondent’s services.

Mr Coyle said that the Respondent’s access policy is constantly evolving and that it would be updated so that a manager can use their discretion to allocate a Queue Assistance Pass in the case of a visitor who presents a blue badge.

Conclusion

It is submitted that the Complainant was not treated any differently than any other person with additional needs and was not discriminated against.

The issue for determination in this complaint is whether the Respondent discriminated against the Complainant on the disability ground contrary to Sections 3 and 4 and 5 of the Equal Status Act 2000 (as amended) (the Act), in relation to the provision of a service. 

Section 3(1) 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,”

…………

 (2) As between any two persons, the discriminatory grounds (and the descriptions 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”),”

Discrimination on ground of disability.

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.

(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.”

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Act. 

From the evidence adduced, it is clear to me that it is not in dispute between the parties that the Complainant is a person with a disability within the meaning of Section 4(1) of the Acts.  The Complainant confirmed that she presents as disabled and that she uses a mobility scooter to get around.  This was not disputed by the Respondent.

Section 38A of the Act sets out the burden of proof in equal status complaints:

“(1) 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.”

According to the Irish Human Rights and Equality Commission (IHREC) in its guide to the Equal Status Acts 2000-2018, “discrimination on the ground of disability includes a refusal or failure by a service provider to do all that is reasonable to accommodate the needs of a disabled person by providing special treatment or facilities, if without such facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.

When she visited Emerald Park, the Complainant explained to the staff that she was unable to queue and that she required a Ride Assistance Pass to enable her to experience the park in the same way as her other family members.  Instead of offering her the accommodation she requested, the Respondent insisted that the Complainant present a letter from a medical professional attesting to her inability to queue.  Because the Complainant was unable to meet this requirement, the Respondent denied her the opportunity to enjoy Emerald Park on an equal footing with all other visitors. 

I find that the Complainant has established a prima facie case of discrimination contrary to section 4(1) of that and that the burden of proving that discrimination did not occur in relation to the Complainant now passes to the Respondent.

The Respondent defended its treatment of the Complainant on the basis that not all visitors who have a disability are unable to queue.  In order to ensure that the Ride Assistance Pass is not abused, visitors who request this accommodation are required to produce supporting documentation from a medical professional.  The Respondent confirmed that, at the time the Complainant visited Emerald Park, a visitor who sought a Ride Assistance Pass but was not in possession of the required documentation, was not provided with an appeals procedure or an escalation mechanism.

In my view, the approach adopted by the Respondent, when faced with a request for accommodation in the form of a Ride Assistance Pass, was unreasonable, inflexible and contrary to the spirit of the Act which was characterised by O’Malley J in G v. The Department for Social Protection [2015] IEHC 419, at para. 161, as a ‘remedial social statute’ requiring liberal interpretation: 

 …the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.

Based on the totality of the evidence adduced at the hearing, I find that the Respondent discriminated against the Complainant on the disability ground by not providing her with reasonable accommodation.

I find, pursuant to section 25(4) of the Acts, that the Complainant was discriminated against on the disability ground pursuant to section 5(1) and in terms of section 4(1) of that Act.

Under section 27(1) of that Act, I order the Respondent to pay the Complainant compensation of €3,000.

Disability discrimination – failure to provide reasonable accommodation