Complainant

Respondent

Anonymised Parties

Child C, suing through her next friend, her Mother

Equestrian Centre

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00044792-001

25/06/2021

The Complainant is a minor, represented throughout the proceedings by her mother. On 3rd June 2021, the Complainant’s mother issued form ES1 to the Respondent. Herein, she alleged that the Respondent had discriminated against her daughter by refusing to allow her to attend a summer camp due to her disability. By response dated 17th June 2021, the Respondent denied this allegation, stating that attendance was refused on health and safety grounds. Evidently unhappy with this response, the Complainant referred the present complaint to the Commission on 25th June 2021.

A hearing in relation to this matter was convened for, and finalised on 25th July 2022. 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.

Having examined the relevant correspondence, it is apparent that the notification requirements of the Act had been met by the Complainant. No other issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. In circumstances whereby the matter involves a complaint by a minor, I have exercised my discretion to anonymise the names of the parties in the published decision.

The Complainant’s mother gave evidence under affirmation in support of the complaint. The Respondent, and a manager within the organization, likewise gave evidence under affirmation in defense of the allegations.

In May 2021, the Complainant’s mother viewed an advertisement for a summer camp in the Respondent’s equestrian centre. On foot of the same, the Complainant’s mother made enquiries regarding her daughter’s potential enrolment in the camp. On May 22nd the Complainant spoke with the Respondent outlining her daughter’s level of experience in relation to such activities. The Respondent requested that the Complainant send the final details by text, which were sent by Complainant’s mother the following day. In this message, the Complainant’s mother stated that she would stay on the premises during the activities as her daughter is on the autism spectrum. That same day, the Respondent replied stating that she did not possess insurance for such an arrangement and, consequently, the Complainant would not be able to attend the camp. The Complainant’s mother replied stating that she was unaware of a requirement to hold such insurance and that her daughter should be allowed to attend the camp. No further communication was received from the Respondent at this time.

By submission, the Complainant’s mother stated that the Respondent had discriminated against her daughter by refusing to allow her to attend the summer camp. She submitted that this refusal arose solely on foot of her daughter’s disability as no issues arose as to her attendance prior to the disclosure of the same. The Complainant’s mother stated that she suggested an accommodation in her staying with her daughter and assisting in the activities, an accommodation she submitted that worked well with other providers. She stated that the advertisement stated that the camp was open to “all standards, beginners upwards”. Notwithstanding the same her daughter, who had previous experience in this regard, was refused entry solely on the basis of her disability. 

By response, the Respondent denied the Complainant’s allegations and stated that they did not discriminate against her at any stage.

A manager for the Respondent outlined that the organisation had a long history of assisting those with special needs, including clients referred by the Autism society. Unfortunately, during one of these sessions, a special needs assistant suffered an injury whilst leading an horse. This had the further unfortunate consequence of the Respondent defending litigation brought by this person. On foot of the same, the Respondent’s insurance was renewed with strict caveats regarding those that may act as leaders in this regard. The Respondent stated that she was happy to take the Complainant but unfortunately, could not allow the Complainant’s mother to act as a leader as she was not insured for such activities.

In addition to the foregoing, the manager of the Respondent organisation stated that at the relevant time, the centre was abiding by the restrictions arising as a result of the Covid-19 pandemic. As a consequence of the same, the Complainant’s mother would not be in a position to attend in any event. The manager also stated that the governing body of their industry stated that leaders were not permitted for new or inexperienced riders.

Finally, the Respondent herself gave evidence regarding her efforts to assist those with special needs in the past.

In the present case, the Complainant has alleged that the Respondent did not make sufficient accommodation so as to allow her daughter to attend a summer camp on her premises. By response, the Respondent stated that the Complainant was not permitted on foot of difficulties caused by their insurance cover and the contemporary Covid-19 restrictions.

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 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 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 matter 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, it is apparent that the Respondent was happy to allow the Complainant have access to the facilitates she provides until such a time as she disclosed that she would require certain assistance in respect of a condition that is recognised as a disability within the terms of the Act. Having heard the evidence of the Respondent in this regard, I appreciate that they may have had reason for adopting this position, however it is further apparent that this position falls short of their obligations under the Section 4(1) of the Act. The Respondent’s refusal arises from their interpretation of the Complainant’s mother’s request in this regard. At the relevant time, she stated that she would “stay on the premises” in order to assist her daughter. The Respondent’s refusal in this regard came prior to any form of inquiry regarding the accommodations that could be arranged for the Complainant or any other steps the Respondent could take to allow her to attend the summer camp. Having heard the evidence of the Respondent, in particular the evidence regarding their engagements with those with special needs, it is apparent that the issue that arose here is one of communication or, more accurately, a failure of communication. The Respondent’s failure to make further enquires prior to blankly refusing service to the Complainant falls short of the level of engagement expected between a service provider and a service recipient in this regard.

Having regard to the totality of the foregoing points, I find that the Respondent is in breach of the requirements of Section 4(1) of the Act, and consequently, the Complainant’s application is well-founded.

I find that the Respondent is in breach of the requirements of Section 4(1) of the Act, and consequently, the Complainant’s was discriminated against by the Respondent. Having regard to the same, I find that the Respondent engaged in prohibited conduct within the meaning of the Act.

Regarding redress, Section 27(1) provides that,

"…the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

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

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

Regarding the compensatory element of the complaint, I award the Complainant the sum of €1,000 for the effects of the prohibited conduct concerned.

Reasonable Accommodation, Disability, Communication