Complainant

Respondent

Anonymised Parties

A Member of the Public

A Transport Company

Representatives

Self-represented

A Member of Management

Act

Complaint Reference No.

Date of Receipt

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

CA-00055380-001

03/03/2023

The complainant had surgery for prostate cancer and two weeks after his surgery, on December 24th 2022 at around 5.30pm, he and his wife travelled by car from their home in Dublin to visit their family in Maynooth.  The complainant needed to go to the toilet and he decided to use the toilet in a train station on the way.  Because of his post-operative condition, he said that he needed to use the accessible toilet, so that he could wash himself in a dignified manner.  The accessible toilets at the train station are locked to prevent them from being damaged by anti-social behaviour and cleaning attendants hold the key and open the toilets when requested.  There was no sign on the door of the toilet to indicate this and the complainant claims that his efforts to have the toilets opened were met with hostility and aggression and that he was with not treated with respect when he asked for assistance.  When they investigated his complaint, the respondent found that the complainant had been abusive to staff in the station.  

When he got back to his car, the complainant phoned the train station and logged a complaint about how he was treated.  Arising from his complaint, on January 24th 2023, he and his wife had a meeting with the head of customer care and accessibility (HCCA) and the district manager who told him that a formal investigation would be carried out.  In a report dated February 14th, the HCCA concluded that the complainant’s experience identified areas for them to improve the experience for customers trying to access the disability toilet, including staff training, how to access the toilet when an attendant is not on duty and the provision of a call bell at the entrance to the toilet.  The HCCA apologised to the complainant for the upset caused to him because he couldn’t use the accessible toilet and he offered him complimentary travel anywhere on the rail network. 

In an email to the HCCA on February 17th, the complainant acknowledged “the very significant steps taken to ensure what happened on the 24th is now less likely to happen again,” but he said that the investigation did not adequately address what actually happened.  He attached an ES1 form with a list of questions in which he sought a more detailed response.  On February 24th, the HCCA replied with answers to the questions on the ES1 form and said that they would be willing to engage in mediation at the WRC.  The complainant replied and said that he would move to adjudication.  He complains that the outcome of the investigation failed to meaningfully address the impact on him of the locked accessible toilets.  For this reason, on March 3rd 2023, he submitted this complaint to the WRC.

In July 2022, the toilet facilities in the train station were refurbished and the signage for the accessible toilets was removed to facilitate the works.  The call bell and the signage had not been reinstated when the complainant visited the station in December.   While they accept that the complainant was distressed when he was unable to access the toilet, the respondent’s position is that he was not treated less favourably than any other member of the public and that he was not discriminated against.

At the hearing, the complainant described the effect on him of having surgery for prostate cancer.  He said that following the surgery, he was left with continence problems and that it was necessary for him to use an accessible toilet so that he could change his clothes and clean himself after urinating.  In his submission, he provided a copy of a letter from his consultant urologist to his general practitioner which confirmed that the complainant had robotic prostate surgery, that medication was prescribed and that the prognosis was excellent.

Before they set out on their journey on December 24th 2022, the complainant said he checked the respondent’s website and he knew that there was an accessible toilet in the train station.  They parked across the road from the station and the complainant went in and followed the signs to the accessible toilet, only to find it locked.  Thinking it was occupied, he waited and then knocked on the door.  When no one emerged, he asked a security guard for assistance, but he said that the man walked away.  While he was looking for assistance, the complainant said that he soiled himself.  He looked for assistance and was directed to the general toilets by a member of the public.  After he went to the toilet, he said that he went again to the accessible toilet, finding it still locked.  He asked for assistance from a man in a kiosk, but he said that the man was offensive to him, accused him of being aggressive and told him to calm down.  He explained to a ticket checker that he had soiled himself and that he needed to use the accessible toilet.  He said that the ticket checker apologised to him.  At this stage, he said he was distressed and in fear of the man in the kiosk, so he left the train station. 

Returning to his car, the complainant phoned the train station and made a complaint to a member of staff.  On his return journey, he called to the station shortly after 9.00pm, to see if he could meet with this employee, but he was informed that she had gone home.  When he explained his concern to another member of staff, he said that this person appeared to be aware of the situation, but he seemed to think that the complainant was the aggressor.  At 10.43 that evening, he submitted a complaint using the company’s website.

In his evidence, the complainant said that he worked as a senior manager in the disability sector for many years and that he developed services for people with disabilities, and he understands the responsibilities of service providers.  He referred to Part M of the Building Regulations which is published under article 7 of the Building Regulations 1997.  The objective of Part M Regulations is to provide for the health and safety of people in buildings, the conservation of energy and access for people with disabilities.   Section 1.4 of the Guidance Note to the Regulations states that their objective is “to provide independently accessible sanitary facilities that meet the needs of people with a wide range of abilities.”

In their response to him, the complainant said that the respondent confirmed that there was no signage to indicate how to have the accessible toilet unlocked and no attendant visible in the vicinity of the toilet.  He said that the station website makes no mention of the accessible toilet being locked and he claimed that the arrangements to use the toilet are ad-hoc and informal.  He thinks that the company had no intention of re-installing the signage and call bell until he made a complaint. 

Concluding his submission, the complainant said that while the respondent accepts that what occurred on December 24th 2022 was distressing, they concluded that it was by and large of his own making.  He argues that they did not provide him with reasonable accommodation but put in place unnecessary barriers which made it impossible for him to access the toilets in a timely and dignified manner.  He said that it was always his preference to have this matter addressed cordially and directly with the respondent; however, he submits that the investigation report of February 14th did not address how their failure to provide signage or a call bell caused what he described as a “horrendous experience” for him.  He complains about a lack of co-operation providing information to him about how his complaint was investigated and the refusal of management to meet him after they issued their report.  He said that a reference in a document he procured through a GDPR request that the February 14th report “captures the essence without admitting liability” also led him to refer his complaint to the WRC.

Referring to section 4(1) of the Equal Status Act, the complainant asserts that what occurred was a direct result of,

“…a refusal or a failure of a 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.”

Before he finished giving evidence, I asked the complainant why he walked past the general men’s toilet when he so urgently needed to urinate.  He replied that he is entitled to use the accessible toilet and that he wanted to wash himself in private.   

I asked the complainant what he expected of my enquiry beyond what had already been conceded by the respondent.  He said that he is seeking a finding of discrimination and a monetary award at the “very high end of the scale” which would be a measure of what happened to him.  He said that he intends to use any compensation to support others with disabilities.

In her submission, the manager representing the respondent said that it has been the custom and practice in the train station for more than 20 years to keep the accessible toilets locked so that they can be maintained in good condition for anyone who needs them.  In December 2022, the call bell and signage had not been reinstated after the renovations and this has now been rectified.  In July 2022, all the toilets in the station were refurbished to a high standard and the men’s and women’s toilets now have two ambulant cubicles appropriate for people who need additional space.  When he entered the station to use the accessible toilet, the complainant had to pass the men’s toilet, which he used when he was directed there by a member of the public. 

The respondent’s submission notes that customer-facing employees are trained in the protocols for the operation of these toilets and there is an information point at the station where customers can seek help with the station’s facilities.

In their report issued on February 14th 2022, the investigators made recommendations for improved signage in the station which has been put in place.  The complainant’s allegation that he was threatened by a member of staff could not be substantiated but the company’s representatives said that they would attend training for the contractors to ensure that there were properly trained to assist customers in conflict situations. 

Legal Comparisons

The respondent’s manager provided some legal precedents to support their position that the complainant was not discriminated against:

Considering the requirement of the complainant to establish a prima facie case of discrimination, the respondent referred to Cork City Council v McCarthy[1] where the Labour Court held that,

“It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from the proved facts.  It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The respondent argued that the complainant’s failure to get access to the disabled toilet is not sufficient to raise a presumption of discrimination, nor is it within the range of inferences which can reasonably be drawn.  He was in the train station at a very quiet time on Christmas eve when the toilet attendant was cleaning the ladies’ toilets, as a consequence of which any customer who wanted to use the accessible toilets would have experienced the same delay.  Also, three of the respondent’s employees reported that the complainant was abusive towards them and that his attitude hampered their efforts to assist him.

The test for discrimination is set out in Smith v the Office of the Ombudsman[2] where the High Court held that, regarding section 5 of the Equal Status Act and the disposal of goods and services, “the correct comparison is not as between the Complainant and the person providing the service, but rather as between the Complainant and another service recipient.”  The practice of locking the accessible toilets impacts on all customers and is not based on the customer having a disability.

The respondent also argued that a negative customer experience does not amount to discrimination.  In support of this argument, they referred to David O’Keeffe v CIE[3] where the adjudicator determined that the failure to provide good customer care was not attributable to the complainant’s sexual orientation and / or disability.

The respondent submitted that, on the evening in question, the complainant was not a customer of the respondent and in this regard, they referred to the decision of the adjudicator in A Beneficiary v A Solicitor’s Firm[4].  The complainant was not a client of the legal firm and the adjudicator decided that the complaint was misconceived.

The respondent’s position is that their decision to lock the accessible toilets was objectively justified, and, in this regard, they referred to the decision of the Court of Justice of European Union in Bilka-Kaufhaus GMBH v Weber von Hartz[5] where the Court set out a three-stage test for objective justification:

1.       There must be a legitimate aim and objective reasons for treating one group differently to another and the legitimate aim must be unrelated to the protected ground.

2.       The measure must be appropriate and be in response to a real need.

3.      If there is another, less intrusive measure that can be taken to achieve the aim, it should be used.

Conclusion

The respondent accepts that the complainant was unable to gain entry to the accessible toilets on December 24th 2022, but it does not accept that he was discriminated against on the basis of his disability.  Any member of the public seeking to use the accessible toilet on that evening would have encountered the same problem. 

Consideration of the Facts

The facts of this case have been clearly set out and are not in dispute.  To summarise:

1.              On December 24th 2022, the complainant was suffering from temporary incontinence because of prostate surgery.

2.              When he sought to use the accessible toilet in the train station, the door of the toilet was locked.

3.              There was no sign on the door to inform people how to gain access to the toilet and there was no bell on the door.

4.              The cleaning attendant was otherwise engaged cleaning the ladies’ toilet.

5.              To get to the accessible toilet, the complainant had to pass the general toilets, which have been refurbished and which are suitable for ambulant disabled people.

6.              In response to his complaint, the respondent apologised and undertook to address the problem of access to the disabled toilet.  Signage and a call bell were installed and management carried out a review of the disability training provided to employees and contractors.

The Legal Framework

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

The toilets at the train station are not public toilets, and the complainant was not a customer when he couldn’t access the disabled toilets.  In response to this argument, the complainant asserted that, like the cafés and shops in the station, the toilets are available to the public.  In January 2023, when they investigated his complaint, the respondent did not argue that the complainant was barred from making a complaint because he wasn’t a customer, and they treated him as if he was a customer and managed his complaint in accordance with their customer charter.  I see no merit now in a finding that he has no standing to make a complaint under the Equal Status Act and I have decided to proceed with my enquiry.

On December 24th 2022, the complainant was two weeks into his recovery from an operation to treat prostate cancer.  He said that he was suffering from incontinence which, he claims, necessitated the use of an accessible toilet.  The responsibility of a service provider to a person with a disability is addressed at section 4(1) of the Act:

(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.

Sub-sections (2) to (5) of section 4 are not relevant to this complaint.  The definition of a “provider of a service” is set out at sub-section (6)(b): 

(6) In this section -

“provider of a service” means -

(b) the person responsible for providing a service in respect of which section 5(1) applies…  

“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.

Section 5(1) of the Act provides that:

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

The complainant argues that, by keeping the door of the accessible toilet locked, and by not providing a notice to tell people how to access the toilet, the respondent discriminated against him.  He argues that he was treated with disrespect by the respondent’s staff, but this is not material to the substance of his complaint, which is about the locked toilet door.

The Burden of Proof

Section 38A of the Equality Act 2004 sets out the burden of proof in discrimination complaints:

“(1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been discriminated against by the respondent because of his disability. 

“Disability” is defined in section 2 of the Act as:

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)  the presence in the body of organisms causing, or likely to cause chronic illness or disease,

(c)  the malfunction, malformation or disfigurement of a part of a person’s body,

(d)  a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)  a condition, illness or disease which affects a person’s thought processes, perceptions of reality, emotions or judgements or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

Giving an ordinary meaning to the definition at sub-section (c) above, as it is a malfunction of the bladder or the urinary process, incontinence could be a disability.  In this regard, I am guided by the decision of the Labour Court in A Government Department v A Worker[6], where the definition of disability was addressed:

“The Court must take the definition of disability as it finds it.  Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327).  Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

While that decision dealt with a psychiatric illness, the requirement to balance a liberal approach with common sense applies equally to the instant case.  It occurs to me that the complainant’s condition and his need to use a toilet regularly and with privacy could be compared to the needs of women and girls during their period, and common sense tells us that this monthly occurrence is not a disability.

The complainant produced a letter from his consultant confirming to his GP that a prostate operation was carried out in December 2022.  In his letter, the consultant stated, “Immediate post-operative surgery was complicated by oedema and tenderness of the left gluteal area.  Imaging was reassuring.  He was managed with anti-inflammatories.”  The consultant went on to state that the complainant’s prognosis was excellent.  There is no mention in the letter that an after-effect of the operation was incontinence and the complainant did not provide a letter from his GP as evidence that he was suffering from incontinence.  On the basic facts therefore, the complainant has not demonstrated that he had a disability.

Findings

It is regrettable that the door to the accessible toilet was locked on December 22nd 2022 and I disagree with the respondent’s position that the fact of it being locked affected all members of the public equally.  People who are not disabled have no need to use the accessible toilet and the difficulty gaining access was only a difficulty for disabled people.  I understand and accept that the respondent has a good reason for locking the toilet and I also accept that procedures are now in place to unlock the door without inconvenience to users.

In their investigation of his complaint, I find that the respondent treated the complainant seriously and with respect and they used his experience to improve their service, an outcome he acknowledged as “very significant.”  It is disappointing that he felt the need to pursue a complaint at the WRC, when the respondent offered him an apology and the problem he complained about was resolved.

It is my view that the distress that the complainant said he experienced could have been avoided if he had approached the information desk in the station concourse to ask for assistance, or if he had used the general toilets, which, based on the photographic evidence provided by the respondent at the hearing, were, in my view, adequate for his needs. 

Conclusion

I am not satisfied that temporary incontinence meets the definition of a disability as intended by section 2 of the Equal Status Act.  I also find that the complainant has not provided evidence to show that he was suffering from a disability when he sought to use the accessible toilet in the train station on December 22nd 2022.  He has not therefore discharged the burden of proof that demonstrates that, on the primary facts, he was discriminated against.

I have decided that this complaint is not well founded.

Discrimination, disability, equal status