Complainant

Respondent

Anonymised Parties

A Complainant

A Government Authority

Representatives

Represented by Katherine McVeigh,BL instructed by Eversheds Sutherland

Act

Complaint Reference No.

Date of Receipt

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

CA-00043258-001

25/03/2021

The complainant states that she is a technical expert working in a voluntary capacity in a national group for the respondent who is a named Authority (hereafter “the Authority”). The complainant states that this group is a mirror group of the “European Standards group” (hereafter named “CE”) of which the complainant is a member representing the Irish group. The complainant states that after joining the national group, she was then solicited to participate in CE Working Groups by Ms C of the respondent and the complainant states that she chose the Working Groups appropriate to her expertise. The complainant states that she had a telephone call with Ms. C on 15 April 2019 and a conversation ensued regarding what Ms C expected of the complainant. In addition, the complainant  confirmed that she would endeavour to attend the inaugural meeting the following day. The complainant states that she requested from Ms C access to accessible parking as she is a person with a disability. The complainant states that Ms C agreed that this would be facilitated.  The complainant states that at the inaugural meeting, she met with Ms C and Ms O of the respondent and they both enquired as to her disability and requirements. The complainant states that she explained to them the issues she encounters with her hands, which can be transient or can persist and can be affected by issues such as tiredness, stress, cold weather. The complainant states that subsequently she sent an email to Ms. C which outlined her need for a brace on one hand.

The complainant states that in January 2020, Ms C contacted her with a view to nominating her as Chair of the national group and she agreed on the basis that the position would rotate between her and Mr S on an annual basis to share the work.  The complainant states that there were various  issues with the sub group in relation to poor administration and organisation. The complainant states that on the morning of 9 February 2020, this sub group had a meeting scheduled from 11 am – 1.00 pm. The complainant states that there are four members in the sub group (3 Irish members, 1 Dutch member) and a convenor. Additionally the complainant states that the group was joined unexpectedly by two staff members of the respondent (“the Authority”) one of which was Ms. O. The complainant states that it was unclear as to what was Ms. O’s role was, as it was unusual for non sub group members to join but it appeared that Ms. O was taking the minutes of the meeting. The complainant states that Ms. O appeared at the meeting without any discussion with sub group members. The complainant states that this contravenes Clause 7 of CE working group internal regulations. The complainant states that Ms. O attended as a representative of the respondent which the complainant submits identifies the respondent’s responsibility within the CE working group. The complainant states that Ms. O was neither a sub group member nor a technical expert.

The complainant states that the hand tool in zoom had not been used previously within this sub group and that it is not usually used in sub groups given the small number of participants. The complainant states that the convenor did not indicate any change in proceedings on that occasion. The complainant states that when she attempted to indicate that she would like to speak by saying ”if I may come in”, Ms O proceeded to berate her and harshly reprimanded her for not using the hand function to indicate her intention.  

The complainant states that she is a person with a disability. The complainant states that she has multiple sclerosis. She further states that she has Raynauds which effects the use of her hands. She states that the co-ordination, dexterity and speed required to use the hand function and to mute/unmute or video/unvideo is challenging for her. The complainant states that when the meeting began the convenor of the meeting did not indicate that there was any alteration to protocol, in that, he did not request the use of the hand function. The complainant states that she waited for a person to make a point, watched to see if another person would speak then prefaced speaking with something like “if I may come in”. The complainant states that on attempting to come into the conversation in this manner, she was harshly singled out for admonishment by Ms O of the respondent for the non use of the hand function in Zoom. The complainant states that Ms. O has been in previous Zoom meetings with her regarding CE group and witnessed her using this technique to facilitate speaking. The complainant states that Ms. O did not admonish, comment or correct any other person for not using the hand function and not all speakers used this function. In this regard, the complainant states that she was discriminated against by the respondent on grounds of her disability.

The complainant states that she was never requested to advise of her difficulties using the various function keys on each occasion of a meeting as it would be laborious and onerous. The complainant maintains that it is unrealistic for a person with a disability to remind each service provider they meet on every occasion at a meeting. In addition the complainant states that many CE members had an issue with the use of the hand function.

The complainant makes the point that Ms O has been presented as a champion for diversity, inclusion and equity with the respondent organisation and this creates an increased and higher expectation of raised awareness around persons with disabilities on behalf of Ms. O. The complainant contends that Ms O has met her in person and states that one cannot unsee the disability.

The complainant states that she provides a service to the respondent in the form of accredited, competent, qualified technical expertise. However, she states that the respondent provides the complainant and other members of the national group with the service of facilitating CE membership, registration on the global directory, joining on Livelink (computer system) and extending a duty of care towards her when she is acting in a capacity as a National group member within CE.

Ms W (Dutch member) of CE who has a visual impairment gave evidence to state that she was present at the online meeting of 9 February and witnessed the rude and unwarranted behaviour of Ms. O towards the complainant. Ms W stated that Ms. O was very unprofessional at the meeting and behaved very badly towards the complainant. She further stated that she was afraid to speak up at the meeting for fear of reprisal from Ms O and as a result was silent throughout the meeting.      

Mr S stated that he is also a member of the CE group. He stated that he was present on the online meeting of 9 February and it was a surprise to participants including him that Ms. O was attending and was going to take the minutes of the meeting. Mr S stated that the complainant was not using the hand function but said “can I speak now”. Mr S stated that there was some cross talking from various members. Mr. S stated that Ms. O was quite intimidating and gave the complainant a lecture on the use of the hand functions.  Mr S stated that another member Ms W (Dutch member) who has a disability was also at the meeting but did not speak at the meeting.  Upon questioning from Counsel for the respondent, Mr S stated that in his view the respondent does not provide a service to experts at CE meetings.

The respondent submitted that it is an organisation that assists in creating the infrastructure for products and services to be recognised and relied upon internationally. The respondent states that it sets standards and issues certification in the quality and safety of goods and services. The respondent asserts that at the material time of the alleged incident, the complainant was a committee member of one of its national committees and the regional committee (CE). The respondent submits that this is an unpaid role in both cases, in which the complainant acts in a volunteer role providing services and her expertise to the respondent. It states that as such the complainant was not a service user of the respondent, rather she provides this important service to the respondent.

Preliminary Issue

The respondent submits that it was not a “service provider” within the meaning of the Equal Status Act 2000 nor was the complainant a service user of the respondent. The respondent made an application for the within case to be dismissed on the basis that it is misconceived. The respondent states that it is clear that the respondent must be providing a service to the complainant at the material time (Walsh v Allied Irish Bank AIB ADJ 35633, Doherty v Allied Irish Bank AIB ADJ 35634). The respondent submits that the complainant has not demonstrated how she comes within the protections of the Equal Status Act and therefore she does not have the requisite locus standi.

The respondent states that it was not providing a “service or facility of any nature” to any expert  providing their expertise at the meeting dated 9 February 2021 held by a separate entity entitled CE. The respondent states that the evidence from all of the witnesses at the hearing, both the complainants and the respondents was that

·       The said meeting was not an Authority meeting, but in fact a CE meeting

·       The said meeting was not organised or hosted the respondent Authority

·       The Authority had no control over the running of the CE meeting

·       The Authority did not receive updates on the particular CE meetings nor was it informed of the committee’s progress

·       The Authority did not issue an invite to any of the attendees

·       The Authority did not chair the meeting and

·       The complainant did not attend the CE meeting to provide her viewpoint to the Authority but in fact to CE.

The respondent submits that the said experts, including the complainant were providing a service to CE at the material time. The respondent states that the complainant’s own witness Mr. S confirmed in evidence that the respondent does not provide a service to experts at CE meetings. The respondent states that the complainant in her evidence concedes that she provides a service to the respondent, which is not in dispute. The respondent maintains that the complainant was not providing a service to the respondent at the said CE meeting. At the CE meeting, she was providing a service to CE, wherein she offered her independent viewpoint and expertise.

The respondent states that the height of the complainant’s case on this preliminary issue is that she alleges the respondent had some sort of “duty of care” towards her as a committee member of the Authority and in particular that the respondent acts as a “facilitator” of the complainant’s attendance at the CE meetings. The respondent strenuously objects that it owes any duty of care towards the complainant.

The respondent asserts that the Equal Status Act is clear, in that, it does not provide that a respondent who allegedly owes a “duty of care” will then be deemed a “service provider” under the Act. The respondent states that they are two separate and distinct terms of law, one being a civil onus in tort law and the other being a specific statutory onus laid out by the legislature in the Equal Status Act 2000.  

The respondent states that the complainant has not discharged the burden that is on her to demonstrate that she informed the respondent of a disability. The respondent submits that the height of the complainant’s direct evidence in this regard was that she had a disability “obvious” to any bystander. The respondent further states that it is well settled law that a complainant seeking protections under the Equal Status Act must demonstrate that s/he requested reasonable accommodation from a respondent in the first instance.

The respondent states that at no time was the complainant in a position to state under oath or produce any documentary evidence of a time in which she requested reasonable accommodation of the respondent relating to the use of the “hand function” on Zoom. The respondent states that as confirmed by evidence of the complainant Mr. Mc and Ms O, the complainant at no point requested or informed the respondent that she required accommodation relating to the “hand function” on Zoom.

The respondent states that the only reference to this crucial point is the complainant stating in her closing written submission, at an undated meeting, she “explained the issues I encounter with my hands” to an employee of the respondent namely Ms. O. The respondent states that it is clear from the law that this is insufficient to put a respondent on notice of a particular accommodation that she required from the respondent as regards Zoom. It was submitted that a respondent cannot be held liable under the Act for a failure to reasonably accommodate a complainant with a disability when in fact the said complainant at no point requested the accommodation.

The respondent stated that evidence was provided by it at the hearing that due to the nature of the work that the respondent carries out and frequent interactions with persons with disabilities, it provides reasonable accommodation to persons on a regular basis. The respondent submits that Ms. O gave undisputed evidence at the hearing that she frequently, in her role receives and processes requests to put in place reasonable accommodations but she did not receive any such request from the complainant. The respondent states that if Ms. O had been notified of the complainant requiring reasonable accommodation relating to using Zoom, there would be no doubt but that the complainant would have been accommodated. The respondent states that evidence was given at the hearing that Ms. O is a highly skilled employee regarding her experience with working with people with disabilities and accommodating them in relation to their disability. The respondent further states that the evidence of Ms. O at the hearing was that the complainant did in fact use the hand function on two occasions in a Zoom meeting with Ms. O on 22 March 2021, six weeks following the said meeting of 9 February 2021.

In conclusion, the respondent states that it is not in dispute that Ms. O attended the said CE meeting as a participant and that during the meeting she requested the complainant to use the hand function on Zoom. The respondent states that this was normal etiquette on online meetings. The respondent states that as confirmed by Mr S (witness called by the complainant) at the time that Ms O requested this of the complainant, there was “cross talking” between participants. The respondent states that the use of the hand function on Zoom in the era of online meetings during the Covid pandemic assists in the effective running of such meetings and ensures that all participants on online meetings have an opportunity to be heard. The respondent states that the complainant claims that Ms O berated her on the said meeting, spoke harshly to her and reprimanded her. The respondent states that this was disputed in evidence by Ms. O and by an independent witness Ms D who was charged with Chairing the said meeting. The respondent submits that Ms D gave evidence to state that she has never witnessed Ms O speaking to any person in such a manner.     

The respondent states that the complainant has not identified a comparator to whom she can compare herself to demonstrate that she was treated less favourably or differently than another person without a disability or with a different disability.

The respondent states that in all of the circumstances, the complaint must be dismissed. 

Preliminary Issue

The respondent raised the issue that it was not a “service provider” nor is the complainant a service user of the respondent within the meaning of the Act. The respondent requests that the complaint be dismissed on the grounds that it is misconceived.

Under the Equal Status Act 2000 as amended a service at section 2 is defined as:

“service” means 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—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies

The purpose of the Act is to prohibit discrimination in the disposing of goods or the provision of services. The definition of service in the legislation is as follows: “service”means a service or facility of any nature which is available to the public generally or a section of the public. I am satisfied that the nexus between the complainant and the respondent does not constitute a service or facility generally available to the public or section of the public. 

Having carefully examined all of the evidence heard in the within claim, I find that the matter before me does not constitute a service as prescribed under the Equal Status Acts.  In the circumstances, I find that the complainant does not have locus standi to bring a claim under the Acts. Accordingly, I find I have no jurisdiction to hear the within complaint.     

I find I have no jurisdiction in the within claim as the complainant does not have locus standi to bring a claim under the Equal Status Acts.

Equal Status Acts, no jurisdiction