ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046894

Complaint:

Date of Adjudication Hearing:  06/12/2023 & 12/04/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint of discrimination on the ground of disability was referred under Section 21 of the Equal Status Acts 2000-2018 (hereinafter ‘ESA’) to the Workplace Relations Commission (hereinafter ‘WRC’) on 3rd July 2023.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  Comprehensive written submissions and supporting documentation was received on behalf of both Parties.  The matter was heard remotely on 6th December 2023 and 12th April 2024.  As the Complainant is a minor, her complaint was made through her mother and her Parents gave evidence on her behalf.  They were represented by Ms Céile Varley BL instructed by KOD Lyons Solicitors.  The Respondent was represented by Mr Hugh O’Donnell BL instructed by John J. Quinn & Co. Solicitors.  A Former Creche Manager, Regional Manager and a Director attended on behalf of the Respondent.  The hearings were held in public and all of the evidence was taken on oath/affirmation. 

On 6th December 2023, a number of preliminary objections to the jurisdiction of the WRC were raised on behalf of the Respondent including whether the notification to the Respondent and referral of this complaint to the WRC were within the requisite statutory time-limits.  Having heard the Parties’ legal submissions in this respect, I adjourned the matter for consideration of the preliminary issues.  I deemed it necessary to hear the totality of the evidence in order to determine the preliminary issues.  I ruled that if finding in favour of the Respondent on the preliminary issues, that would determine the complaint and if finding in favour of the Complainant on the preliminary issues, I would then consider the substantive complaint.  Accordingly, all of the evidence was heard under oath/affirmation at a remote hearing on 12th April 2024.  Whilst an in-person hearing would have been preferrable, the Parties were accommodated with a remote hearing to avoid travelling given their particular circumstances.  There was consent to amendment of the Respondent’s name to its correct legal title.  Following the hearing, the Parties were afforded a period of time for reflection on this complaint.  In the absence of any resolution, it is necessary to issue this decision.

As the Complainant is a minor, I have exercised my discretion to anonymise this decision and accordingly, direct that any information that might identify the Parties including their names and addresses not be published in accordance with Section 30(1) of the ESA.  For the purposes of this decision, the Complainant is referred to as ‘A’ and her Parents are referred to as ‘Ms B’ and ‘Mr B’.  The Former Manager of the Creche is referred to as ‘Ms C’ and the Regional Manager as ‘Ms D’. 

Background:

The Complainant is a minor with Autism Spectrum Disorder (ASD) and was aged 3-4 at the material time of this complaint.  On her behalf, it was contended that by not providing her with a place on its ECCE (Early Childhood Care and Education) Programme at one of its creches for the 2022-23 year, the Respondent had subjected her to ongoing discrimination on the ground of disability and had further failed to provide her with reasonable accommodation.  Compensation, an apology and a direction that policies be put in place to prevent reoccurrence were sought by way of remedy.  The Respondent refutes these allegations and contends that owing to a national staffing crisis, it was unable to afford any new entrants to the Creche a place on its ECCE Programme during 2022-23.

Summary of Complainant’s Case:

Direct Evidence of Ms B

The Complainant’s mother, Ms B gave evidence outlining the history giving rise to this complaint.  Her daughter A was almost 5 years of age at the date of the hearing.  Ms B had suspected that A had Autism as a baby and she was formally diagnosed with Level 2 Autism via a private professional assessment in May 2023.  It also found her to be a lovely, fun-loving child and she is doing very well.  Whilst she occasionally struggles with over-stimulation she has no major behavioural issues. 

Ms B and her husband, Mr B were anxious to find a suitable place at a creche that met A’s needs.  She first contacted Ms C, the Former Manager of one of the Respondent’s creches (referred to as ‘the Creche’) on 23rd February 2022 by way of Messenger via its Facebook page.  She had messaged: “Hi, I have a daughter A who will be 3 in May.  Would you be accepting any new students this year?  Any information would be appreciated.  Kind regards, Ms B.”  She also left a voice message by phone and Ms C had called her back the following day.  Ms B had enquired about whether the Creche had a place for A in the forthcoming ECCE year.  Ms C said they had places available and would be happy to put A’s name down.  She confirmed that just her name and date of birth were required at this stage and there was plenty of time to obtain further information.  She said that she would be back in touch after Easter to confirm whether Ms B still wanted the place and to go through the details.  There was no mention of A’s disability during this conversation.  Ms B had understood that there would be a place for A in the Creche.  She had wanted A to go to this particular Creche as it was in close proximity to her work and her mother who minded A.  Ms C had sent a follow-up message to Ms B: “Hi Ms B how are just want to clarify was it you that I spoke to on the phone earlier today.  Regards, Ms C”  Ms B responded: “Hi Ms C, yes it’s me.  Thanks so much again for everything.  Kind regards Ms B.”  Ms C responded: “No problem will be in touch again to confirm spot after Easter.”  

A few weeks after Easter, Ms B received a call from a lady from another branch of the Respondent confirming A’s booking.  She would not have known the name of the other branch other than the caller had mentioned it.  The caller also referred to A’s name and date of birth and asked whether Ms B still wanted the place for A in the Creche subject to this complaint.  Ms B had confirmed that she did and that was “fantastic”.  The caller had confirmed the place and asked for A’s PPS number.  She said that Ms B would be added to a WhatsApp group for the purposes of introducing her to the staff who would be teaching A and sharing her activities.  Ms B replied that was “lovely” and asked for a start date so that she could prepare A.  The caller replied that it would be August or September and Ms C would be in contact to confirm an exact date.  At the end of the call, Ms B asked whether she could “be comfortable” that A had a place in the Creche towhich the caller replied: “Absolutely.”  Arising from this call, she and Mr B had been confident that A’s place at the Creche was confirmed.

In May 2022, Ms B called the Creche and asked to speak to Ms C about A’s particular needs.  She was informed that Ms C was unavailable.  She spoke to another lady who confirmed that A’s place was definitely confirmed and she would ask Ms C to call her back.  As she did not receive any call back from Ms C, she tried to call her again on a number of occasions and had similar exchanges with other staff.  When Ms C finally called Ms B back in late July 2022, she was at work and unable to take the call.  She asked Mr B to call Ms C back and they had a conversation as outlined in his evidence below. 

Confident of the place, Ms B and Mr B had prepared A for her start in the Creche months in advance as it was a big event for her.  However, they did not receive any further confirmation of a start date.  On 4th September 2022, they saw a picture of the children in A’s intended ECCE class celebrating their first day of term on the Creche Facebook page.  Ms B immediately contacted the Creche.  Her calls went unanswered and she left numerous messages which were never returned.  Eventually, she left a voice-message saying that she and Mr B would call into the Creche.  They went to the Creche on 6th September 2022 and were permitted entry and directed towards Ms C.  They asked to speak to Ms C about why A had not started on the first day of term.  Ms C just looked at them and said that she thought she had called one of them.  They replied that they had not received any call from her and wanted an explanation.  Ms C said she could not discuss the matter right then and would meet them the next day before hastily leaving on a bus.  The following day Ms C cancelled their intended meeting by phone.  They never received an explanation.  Ms B was of the view that the Creche had not afforded a place to A as she has Autism entailing extra resources to meet her additional needs. 

Ms B recounted that the ECCE new term starting without A had been heart-breaking for A and had a significant impact on the family.  She had been really looking forward to starting at the Creche and would put her backpack on to go to ‘magic school’.  Ms B and Mr B would have to tell her that there was nowhere for her to go.  She would also become distressed whenever they passed the Creche and they had to find other routes.  Ms B also felt that A had lost trust in them as her parents.

Ms B confirmed that following this incident, they had obtained a place in another creche for A.  She had started in January 2023 but it did not suit her needs and they took her out after a few months.  Consequently, they had to change around their work arrangements to take it in turns to care for A at home.  They had been unable to find a suitable alternative creche place for A and had put her name down for primary schools with an ASD unit.  Ms B confirmed that having heard nothing further from the Creche, they went to Solicitors for advice leading to the exchange of correspondence set out below and referral of this complaint to the WRC.  They had first become aware that the Respondent had retained A on a ‘waiting-list’ during the exchange of this correspondence.  Over time they had lost hope of a place in the Creche for A.  By way of remedy, they sought compensation for removal of the place for A, an apology and a direction that policies be put in place to prevent reoccurrence. 

Cross-examination of Ms B

Ms B confirmed that she had first contacted Solicitors in early September 2022 and had the benefit of legal advice from October 2022.  The complaint form submitted on 3rd July 2023 was put to her.  In response to the question: “What is the date of the first incident of discrimination?”, the reply given was “Feb 2022 to Sep 2022”.  In response to the question: “What is the most recent date of discrimination?”, the reply given was “Sep 2022”.  Ms B said she had completed the complaint form.  The discrimination in September 2022 arose from the date that A was due to start in the Creche and thereafter, continued as she was still not afforded a place in the Creche.  When asked why she had referred to the most recent date of discrimination as “Sep 2022”, she replied that she was not a lawyer and was unaware that one could formulate a date range to indicate ongoing discrimination. 

It was put to Ms B that a place in the Creche for A was never confirmed during her call with Ms C on 24th February 2022 and in fact Ms C had completed a booking enquiry form and had put A on a waiting list.  Ms B replied that this had never been indicated to her during the call and Ms C had confirmed that they had a place for A.  It was put to Ms B that the clear implication of Ms C’s follow-up message on the same date being: “No problem will be in touch again to confirm spot after Easter.” was that no place had been confirmed for A at that stage.  Ms B maintained that a place had been confirmed during their phone call.  In relation to the alleged phone call from another branch of the Respondent, it was put to Ms B that there had been no such call and it could never have happened as the booking enquiry form was in a locked filing cabinet in the Creche office.  Ms B rejected that contention reiterating that she had only learned of the name of the branch via the call.  It was further put to her that a place on the ECCE Programme can only be confirmed in the August of any given year and therefore a place could not have been confirmed before then.  Ms B pointed out that this was inconsistent with Ms C’s message that a spot for A would be confirmed after Easter. 

Ms B rejected the Respondent’s position that A did not get a place in the Creche owing to a staffing crisis contending that this had not been mentioned until A’s Autism had been disclosed to Ms C.  It was put to Ms B that the Respondent has up to 16 children on its ECCE Programme with additional needs across its five services including 4 attending the Creche subject to this complaint.  It was also put to Ms B that there were 4 other children without any known additional needs on the Creche waiting list who did not get a place on the 2022-23 ECCE Programme owing to the staffing crisis.  (Ms B was not in a position to put this in issue and there was no evidence suggesting a contrary position.)

Direct Evidence of Mr B

Mr B confirmed that his recollection of events giving rise to this complaint accorded with that of Ms B.  He recounted his only telephone conversation with Ms C on 26th July 2022 following her missed call to Ms B.  He had introduced himself as A’s father and was calling back in relation to A’s start in the Creche in the new term.  He said he and Ms B would like to visit the Creche with A after work, to which Ms C had replied “no problem”.  He then enquired as to whether Ms C required any additional information regarding A as she was pre-verbal and awaiting assessment for ASD.  This is when the tone of the conversation had changed and Ms C replied that she did not know that A was autistic.  Ms C asked whether A was toilet-trained and he replied that she was in the process of toilet-training.  Ms C then asked whether she had tantrums.  Mr B replied that she did not have tantrums but it was important that she visits the Creche as if she is not prepared in advance she can have meltdowns.  Ms C then replied that they were having staffing issues and they should look at other pre-schools in case A could not start in September.  This was the first mention of any issue with her place.  They would not have gone through the process of preparing A for the Creche had there been any doubt.  Ms C ended the conversation by saying that she would be in contact the following week to arrange a visit to the Creche.  However, they heard nothing back until learning that the new term had started without A on the Creche Facebook page.  This had taken a big emotional toll on the family.  Mr B denied telling Ms C not to contact them again as was asserted.  Following their last interaction at the Creche in September 2022, they had been awaiting Ms C’s follow-up phone call which never came. 

Cross-examination of Mr B

The Respondent’s position was put to Mr B.  He rejected the contention that during his telephone conversation with Ms C, it was in fact after Ms C had explained the staffing crisis that he had first mentioned A’s Autism.  He also denied saying that they would hold off on sending A to the Creche until the staffing crisis had resolved and maintained that Ms C was to call them back to arrange a visit.  Had there been any doubt as to A’s place, they would not have committed to the Creche without confirming a place elsewhere and would not have prepared her for her attendance there.  He accepted that aside from the message, they had not received written confirmation of a place.

Exchange of Correspondence, ES1 Notification & ES2 Response and Complaint Form

Thereafter ensued an exchange of correspondence between Solicitors for the Complainant’s Parents and Ms C.  A letter dated 14th October 2022 to the Respondent set out the Parents’ account of their interactions with the Creche between 24th February 2022 (when it was contended that A had been accepted for a place on the Creche ECCE Programme) and 6th September 2022 (when the Parents attended at the Creche to seek an explanation as to why term had started without A), concluding: “In circumstances where an application for the AIMs program would have enhanced the level of support to the Respondent and where our clients were availing of a publicly funded scheme though the ECCE program we say that the effective withdrawal of A’s place constitutes an unlawful action on your part and is a clear breach of the Equal Status Act on the grounds of disability.  The purpose of this correspondence is to call upon you to appropriately compensate our clients for the manner in which A’s enrolment has been addressed and a clear and unequivocal apology to be forthcoming no later than 14 days from the date of this letter.  In the absence of same we shall have no option but to institute legal proceedings in respect of this issue and noting the clear breach of A’s personal and statutory rights.  We trust that legal proceedings can be avoided and look forward to your proposals in that regard.  Please note that should legal proceedings be necessitated either by a failure to engage or to offer adequate redress we shall utilise this correspondence as a basis for seeking our client’s legal costs of any such proceedings.  We trust that costly court proceedings can be avoided and look forward to hearing from you no later than 14 days from the date of this letter.” 

Ms C replied by email on 20th October 2022: “Unfortunately, the details as set out in your letter are not an accurate reflection of the sequence of events that occurred surrounding this child.  The Respondent is a multi service operation which prides itself in being all inclusive and many parents will testify to that effect.  As a child centred service it is our obligation and responsibility to ensure that adequate supports and staffing levels are in place at all times and in particular before we take a child into our service with additional needs.  This child remains on our waiting list whilst we try and recruit the SNA resource which is necessary to meet the requirements of this child.  Unfortunately, there is a crisis in the childcare sector at the moment with significant shortages of suitably qualified staff to meet the demands of this sector.  Once a suitably qualified resource becomes available we have no hesitation whatsoever in taking this child into our service.  All of the above was explained to Mr B.”

By letter dated 9th December 2022, Solicitors for the Complainant’s Parents replied to the Respondent as follows: “The letter fails to address the concerns surrounding the process of A’s enrolment.  The letter does not address correspondence that parents would expect to receive from a play school for a child that has been enrolled.  Our clients failed to receive any letters emails or updates in respect of enabling the child to take up the place.  The Creche appear to have no information about the requirements that A may need.  Our clients requested to view the playschool so that they could meet A in person and professionally assess any additional supports that would be needed.  The Creche failed to accommodate this, despite our clients’ numerous requests and have failed to address this in your response.  No attempt was made on the Creche’s behalf to record any needs A may have or to communicate with our clients around any issues that would demonstrate a serious commitment to provide this child with a place.  A has been enrolled in the play school since February 2022.  This was more than sufficient time to deal with any apparent staffing issues or seeking additional supports from state agencies.  The last conversation our clients had with you on the 6th September was a request on their behalf to provide them with a suitable time and date to discuss A’s placement.  To date this never materialized.  It therefore appears the Creche have done nothing to seek to progress an educational service for this child.  There have been no meetings nor any correspondence to indicate she had a place or was on any waiting list.  No evidence has been provided about efforts to recruit or seek additional supports.  It is therefore in these circumstances and in the absence of an appropriate response no later than 7 days from the date of this letter that our clients will be forced to take further legal action without notice.  In that context we shall rely upon this correspondence as the basis to seek relief and to seek costs in respect of this matter.”

In a letter dated 11th December 2022, Ms C on behalf of the Respondent replied: “As explained to you in my previous letter, there is an ongoing crisis within the childcare sector in terms of staff retention / recruitment and unfortunately from my perspective, this circumstance has not improved since my last correspondence.  Every effort has been made on my behalf to recruit additional support staff to include a highly trained Ukrainian lady however at the last minute and prior to work commencement with the Creche the lady relocated to Monaghan.  As previously outlined, this child remains on our Waiting List and once the staffing situation becomes resolved at our service and the necessary supports are available please rest assured that we will be in contact with your client.”

An ES1 form (standard non-statutory form used to give notification of a potential complaint under the ESA and seek information in relation to alleged discrimination) dated 24th April 2023 was furnished to the Respondent.  Under “Part 3.  Details of my complaint are as follows:”, the date of the alleged discrimination was indicated “From February 2022 to September 2022”.  A narrative of the Parents’ account of their interactions with the Creche giving rise to the discrimination alleged herein was set out between 24th February 2022 (when it was contended that A had been accepted for a place on the Creche ECCE Programme) and 6th September 2022 (when the Parents attended at the Creche to seek an explanation as to why term had started without A) ending with the paragraph: “We left unsatisfied, upset and confused.  Both parents took the next day off work to attend the meeting with Ms C in the morning.  But as they were en route to the meeting Ms C left a voicemail and cancelled at the last minute, again apparently due to staffing issues.  She was called back and asked to rearrange and to this day we have never heard back or been contacted.  A remains out of preschool and still with no explanation as to why from the Creche.”  Under “Part 4.  I think that this involved me being treated less favourably than others:”, it was stated: “We believe that A has been discriminated against because of her potential ASD diagnosis.  This, in turn, has made us feel A had been discriminated against under the Disability Discrimination Act.  The failure of the Creche to allow A her ‘guaranteed’ ECCE place in September caused A to miss vital months of education and her opportunity for important social interaction.  This, in turn, caused more distress for A as not only did she not get the opportunity to start in school but it also meant that we could not get A enrolled elsewhere because none of the local preschools had any spaces left to enrol children until 2023 as all of the places had been taken.  She has suffered greatly because of this.”  Under “Part 6.  Request for other information:”, thirteen pieces of further information were sought including: “9)  It was claimed that the Creche has A on a ‘waiting list’.  If this is so, why were the parents never informed of this?  Who gave such permission to put A on a waiting list?  Why has there been no update to the parents about A’s status on such waiting list?” and “13)  Please explain in detail why it is that A’s ECCE place with the Creche went from guaranteed and confirmed on numerous occasions to the school terms starting without her with no communication or letter of withdrawal to her parents?” 

The Respondent set out a detailed response in an ES2 form commencing with: “There is a requirement to issue an ES1 form within 2 months of the occurrence of the alleged discrimination.  Strictly without prejudice to the fact that it is the Respondent’s firm position that no discrimination whatsoever has taken place, and strictly without prejudice to the fact that any complaint which may follow the exchange of the ES1 and ES2 forms between the parties is out of time given the late provision of the ES1 form,…”  In response to the ninth query above, the ES2 form stated: “It is standard practice that if a parent rings to book a place for their child then our booking enquiry form is completed and information stored on file until we get the child’s registration form with full details.  In the initial enquiry back in February 2022 it was confirmed that A was added to this booking list.  Mr B did state in July that they would hold off on starting A until we got sorted with staff so she remains on our list – Mr B did not at any point ask for A to be removed from our waiting list.”  In response to the thirteenth query above, the ES2 form stated: “A’s parents did not receive any letter of confirmation likewise no letter of withdrawal was issued either.  It was our understanding that A’s parents still wanted to send A to the Creche once we were successful in recruiting a new staff member which would then allow us to increase our ECCE numbers back up to 1:11 with the extra staff as AIM support.  The ECCE term commenced for the children who had already been attending the Creche.  As previously discussed A’s place was never guaranteed - the booking was confirmed but the unforeseen circumstance of 3 staff members leaving our service in July left us having to change our plans for September which unfortunately impacted a number of children - not just A.”

This complaint was referred to the WRC on 3rd July 2023 under cover of letter from the Parents’ Solicitors.  In response to the question on the complaint form: “What is the date of the first incident of discrimination?”, the reply given was “Feb 2022 to Sep 2022”.  In answer to the question: “What is the most recent date of discrimination?”, the reply given was “Sep 2022”.  Under the heading: “Details of your complaint”, the narrative set out mirrored that contained in the ES1 form.

Submissions on Preliminary Issues of whether Notification and Complaint within Time

On behalf of the Complainant, it was submitted that the notification to the Respondent and referral of this complaint to the WRC were within the requisite statutory time-limits.  In this respect, it was contended that there was ongoing and continuing discrimination arising from the Respondent’s failure to afford the Complainant a place on the Creche ECCE Programme and/or put in place the necessary resources to enable same contrary to the ESA.  The Respondent had confirmed in correspondence set out above that the Complainant had remained on a waiting list for a place during the 2022-23 ECCE year.  Communication from the Creche had been poor in terms of keeping her Parents informed as to whether and when a place would become available.  It was further submitted that whilst not explicit, the wording used in the ES1 form and complaint form implied ongoing discrimination linked to disability and in particular the sentence: “A remains out of preschool and still with no explanation as to why from the Creche.”  It was pointed out that the Complainant had been unable to access suitable childcare to date and continues to suffer adverse consequences.  It was conceded that as time passed without confirmation of a place, her Parents were no longer open to accepting a place with the Respondent owing to the breakdown in relations. 

Without prejudice, it was further submitted that the requirement to notify the Respondent of the nature of the alleged discrimination and the Complainant’s intention, if not satisfied with the response, to seek recourse under the ESA pursuant to Section 21(2) within two months was met by the Solicitors’ letter of 14th October 2022.  In particular, that letter set out the Parents’ complaint on behalf of the Complainant against the Respondent in detail as constituting “a clear breach of the Equal Status Act on the grounds of disability”.  It further confirmed that the Complainant intended to seek redress in the event that an adequate response was not provided.  Although not a statutory requirement, a formal ES1 form had been submitted for the sake of completeness on 24th April 2023. 

As the discrimination was ongoing, the referral of this complaint to the WRC on 3rd July 2023 was within the requisite six-month period from the date of the most recent occurrence of the prohibited conduct and therefore within time pursuant to Section 21(6)(a) of the ESA.  Alternatively, there was reasonable cause for extending time for referral of this complaint for up to 12 months pursuant to Section 21(6)(b) based upon the ongoing communications between the Parties.  As the Respondent had been fully aware of the substance of this complaint since October 2022, no prejudice arises.

Submissions on Substantive Complaint

Detailed written submissions set out the factual background and legal position from the Complainant’s perspective.  This complaint had been referred under Sections 3, 4, 5 and 7 of the ESA.  The Complainant has a disability within the meaning of Section 2 of the ESA and the Respondent is an educational establishment within the meaning of Section 7.  It was submitted that the Complainant had been treated less favourably than a child without a disability or a child with a different disability contrary to Section 3(1)(a) and 3(2)(g) of the ESA and further that the Respondent failed to provide her with reasonable accommodation within the meaning of Section 4 of the ESA.

Reliance was placed upon A Student -v- A Secondary School DEC-S2018-018 where the Adjudication Officer confirmed that Section 7 of the ESA placed an “extensive obligation” on educational establishments not to discriminate against students.  In this respect, it was submitted that children such as the Complainant have a right to inclusive education in an integrated environment as provided for by Section 2 of the Education for Persons with Special Educational Needs Act 2004.  Where educational services are not accessible to children with disabilities, educational establishments have a duty to provide reasonable accommodation.  That duty is not limited to the service-user’s educational needs but also entails doing “all that is reasonable to accommodate the needs of a person with a disability” as per the aforesaid decision (which related to mainstream education).  In A Parent -v- Board of Management of a Primary School DEC-S2012-026, the Equality Tribunal confirmed that the refusal to admit a disabled student to a primary school on the basis that he would need special facilities which the school was unwilling to consider constituted discrimination.  This is analogous to the present case wherein the Respondent has failed to do all that “is reasonable to provide special treatment or facilities”.  In particular, it was contended that the Respondent had failed to engage with the Complainant’s Parents about the nature of her needs, and had further failed to carry out an assessment of any additional supports that may be required to accommodate her.  No balancing exercise between her needs and the needs of the wider school had been undertaken as per Clare (A Minor) -v- Minister for Education and Others (2004) IEHC 350.  The Complainant had therefore satisfied the criteria for establishing a prima facie case of discrimination contrary to Section 38A of the ESA as set out in Hallinan -v- Moy Valley Resources DEC-S2008-25. 

Counsel further observed that for the first time at the hearing, it had been confirmed that the Respondent has since put in place a system of emailing parents to confirm the status of a potential place.  This was a welcome and commendable development and if such a policy had been in place at the time, then perhaps some of the heartache suffered and this complaint could have been avoided.

Summary of Respondent’s Case:

Direct Evidence of Ms D, Regional Manager

Ms D confirmed that she is the Respondent’s Regional Manager with oversight for its five creche services each with their own Manager.  The Creche subject to this complaint also included a pre-school for children under the ECCE (Early Childhood Care and Education) Programme operated by the Department of Children, Equality, Disability, Integration and Youth (DCEDIY).  This is a universal programme providing children between the age of two years and eight months and five and a half years old with free access to pre-school for fifteen hours per week for up to two years.  Ms D’s role entailed the provision of support and advice to the staff to ensure delivery of a quality service at all times.  As per certification submitted, she has a Level 6 Childcare qualification along with extensive training on children with additional needs including the LINC Leadership for Inclusion Programme provided via the Access and Inclusion Model (AIM).  This operates under the auspices of the DCEDIY to ensure that children with additional needs can access and fully participate in the ECCE Programme without the necessity for a formal diagnosis.  This qualified her as an Inclusion Coordinator to provide leadership in relation to issues of diversity, equality and inclusion and the provision of fully inclusive services and sourcing the necessary supports.  AIM enables access to various supports including a Better Start initiative and also provides increased ECCE capitation to pre-schools per child identified as having additional needs subject to meeting certain conditions including having a trained LINC Inclusion Coordinator.  The pre-school can use this funding to either reduce the staff to child ratio or employ additional staff.  Rather than providing individual support for the child with additional needs e.g. such as an SNA, it enables the pre-school to manage its resources to meet the additional needs of that child.  Under the current rules, an application for AIM funding can only be made once a child is enrolled within a pre-school for ECCE as the child’s registration number is required.  Owing to its sensitive nature, only at that stage would information pertaining to a child’s additional needs be sought.  This is inputted into an online portal for a Better Start who send an expert to assess the child’s needs before making a recommendation for additional AIM funding. 

Ms D also explained that the staff to child ratio is determined by floor-space in an ECCE classroom being 1.8 metres square per child.  The Creche subject to this complaint has a comparatively small floor space.  She confirmed that currently, 16 of the circa 400 children attending at the Respondent’s services are qualified for AIM supports including 4 within the Creche subject to this complaint with more within the application process.  In February 2022 when Ms B had spoken to Ms C about a place for the Complainant in the Creche in question, it was envisaged that there would have been sufficient space within its three ECCE classrooms.  However, the Respondent had experienced a staffing crisis owing to three staff leaving in July 2022 and unsuccessful efforts to recruit replacements despite trying every avenue.  There was a widely publicised national crisis in the availability of qualified childcare staff following the Covid-19 Pandemic.  All staff working directly with children require a minimum FETAC Level 5 childcare qualification under current Regulations.  Childcare trainees had been unable to undertake their work placements in childcare settings required for qualification owing to restrictions resulting in a reduction in qualified staff.  This had also impacted on the Creche’s funding (dependent upon the number of qualified staff) and the staff to child ratio had to be cut from 1:11 to 1:8.  Ms C had also been required to work in the classroom which impacted on her ability to communicate with parents.  Consequently, no new entrants to the Creche could be accepted onto its 2022-23 ECCE Programme which were only offered to children already attending the Creche.  There were 4 other children without any known additional needs on their waiting list who did not get a place within the 2022-23 ECCE year owing to the staffing crisis.  These included children that were placed on the Creche waiting list prior to the Complainant.  It would not have been possible to have enrolled the Complainant in order to assess her particular needs until there was sufficient staff in place to accept new entrants for the 2022-23 ECCE year. 

Ms D confirmed that the Respondent also has extensive policies and procedures which were submitted.  These include an Admissions Policy which states that it is the policy of the Creche “…to offer equal access to all children from the community including children with different requirements and needs.”  Ms D outlined the booking process when a request is made for a place as set out in its Policy.  A booking enquiry form is completed by the staff member taking the enquiry with basic details and stored in a locked filing cabinet in the office of the creche concerned in accordance with Regulations.  As the other branches would not have had access to same and Ms D would be the only person to make calls outside of a creche, the call as described by Ms B could not have happened.

At the end of the ECCE year in June, an assessment is undertaken as to how many spaces are required for the coming year commencing in September.  A review of AIM support for children in its toddler room moving to the ECCE Programme is also undertaken as this determines the staff to child ratio.  It is only after that process has been undertaken that new enrolments can be confirmed in August.  Depending on whether there are any spaces available, those in respect of whom booking enquiry forms are completed are considered on a first come first served basis and places offered accordingly.  Children already attending the Creche or children of staff on maternity leave returning to work get first preference before new bookings.  The Respondent also has an Equal Opportunities Policy providing that the Respondent does not discriminate on the grounds of disability within the constraints of each creche and complies with legislation in its admissions procedures.  Ms D also outlined the provision of ongoing external and in-house training on equal opportunities to the staff.  She confirmed that prior to AIM, the Respondent already had established a strong policy and history of catering for children with disabilities within its services.  This had been driven by her own experience of having family members with disabilities and additional needs requiring AIM supports. 

Finally, Ms D stated unequivocally that there had been no discrimination against the Complainant and she did not get a place in the Creche as there was no space owing to the staffing crisis.  As the staff had not been aware of her level of need, they would not have had any reason to discriminate.

Cross-examination of Ms D, Regional Manager

Under cross-examination, Ms D confirmed that the staffing crisis had been so chronic at the time that on occasion when staff called in sick or went on leave, she also had to work directly in the classrooms with the children alongside Ms C.  They were working under extreme pressure and had exhausted all sources of assistance such that they occasionally had to ask parents to keep children home.  Ms D confirmed that it was not until the following year that the Respondent managed to recruit new staff.  Ms D also confirmed that she had never contacted Ms B and had maintained that it would have been impossible that a member of staff without access to the Complainant’s details could have called Ms B as asserted.  Whilst accepting that Ms B may have spoken to staff on the floor of the Creche, they could not have confirmed a place as it is not their role to deal with new enrolments which are dealt with by the Manager or Assistant Manager.  Ms D accepted that Ms B may have assumed there would be a place for the Complainant at the Creche in light of her initial positive interaction with Ms C.  However, she maintained that it was not possible that the Parents could have reasonably been left with the impression that a place for A had been confirmed.  When a place is confirmed, usually a few weeks prior to the start-date, the parents are invited to view the premises and provided with an enrolment form to complete.  As no places had become available, this process had not occurred in the instant case.  Ms D confirmed that the enrolment process would be explained to parents upon making the initial inquiry.  In this respect, Ms C had advised Mr B to look for places in other areas owing to their staffing crisis during their phone call in July 2022. 

Ms D accepted that the Respondent had not communicated in writing by email or otherwise to the Parents to advise on the status of a place for the Complainant in the Creche before their Solicitors became involved.  She confirmed that since the instant situation had arisen, the Respondent had amended its procedures and parents are now updated at each stage of the process as to the status of a prospective place by email.  She confirmed that the Complainant had remained on the waiting list until the Parents had asked for her to be removed but was unaware of that date.  She was asked what was meant by the following excerpt from Ms C’s email of 20th October 2022 to the Parents’ Solicitors: “This child remains on our waiting list whilst we try and recruit the SNA resource which is necessary to meet the requirements of this child.  Unfortunately, there is a crisis in the childcare sector at the moment with significant shortages of suitably qualified staff to meet the demands of this sector.”  It was put to Ms D that this referred to the Complainant’s disability.  Ms D clarified that this was a reference to the requirement for the Respondent to have suitably qualified staff (including in special needs) in place to meet the needs of all of its children before any places could be offered to anyone.  She explained that there is often confusion between SNA and childcare training requirements and it was not intended to refer to an intention to recruit an SNA (Special Needs Assistant) for the Complainant.  As the Creche did not have any knowledge of her specific needs and she was not formally diagnosed until May 2023, this could not have referred to the recruitment of an SNA for the Complainant.  Regardless of her diagnosis, the position had remained that the Respondent had no places available for any new enrolments on its 2022-23 ECCE Programme.

Direct Evidence of Ms C, Former Creche Manager

Ms C confirmed that she was the Manager of the Creche in question at the material time and has a Bachelor’s Degree in Early Childhood Care and Education and LINC Leadership for Inclusion training.  Ms C recalled her telephone call with Ms B on 24th February 2022.  She would have asked her various questions whilst completing the booking enquiry form.  She would have sought confirmation as to whether a place was being sought on the ECCE Programme and if so, confirmed the age of the child (to ensure eligibility).  She told Ms B that she would be back in contact to confirm a place at a later stage as per her follow-up message sent via Facebook Messenger.  She explained that the booking enquiry form only includes the child’s basic details and when a place is confirmed, an enrolment form is completed.  At the time, it had been her intention to have a ratio of 2:11 staff to children in the ECCE room (which the Complainant would have attended) until the staffing crisis in July 2022, when three of her staff left the Creche.  This changed everything and the ratio had to be cut to 1:8.

Ms C did not have any further communications with the Complainant’s Parents until 26th July 2022 when she had tried to call Ms B and Mr B had called her back.  He had mentioned that the Complainant was pre-verbal and Ms C had explained AIM to him.  She said they already had a child under AIM in the ECCE class in question.  She had to reduce the staff to child ratio owing to a staffing crisis but was hoping to recruit a member of staff to increase the ratio.  She had advised Mr B to look elsewhere.  Mr B asked whether they should hold off on sending the Complainant to the Creche until then and she had replied “yes”.  She clarified that she had discussed the staffing crisis before Mr B had mentioned that the Complainant was pre-verbal.  There had been 4 other children on the waiting list without any known additional needs who also lost out on a place owing to the staff crisis.

Ms C confirmed that her next contact with the Complainant’s Parents was on 6th September 2022 when they arrived unannounced at the Creche whilst she was leaving for a school-run.  They introduced themselves and Ms B asked why her daughter A was not in the Creche.  Ms C had apologised saying that she was sure she had rung them.  She explained the staffing crisis and said that she was trying to get staff and when arranged, she would be in contact to confirm a place for A.  She arranged a meeting with the Parents for the next morning.  Unfortunately, two of her staff rang in sick and she could not find replacements.  She left a voicemail for the Parents explaining the situation.  Mr B had rung her back whilst she was supervising the wobbler room.  She had offered to ring him back during her lunchtime when she could ensure quiet and confidentiality.  Mr B had replied “I’d prefer if you didn’t.”  As per his request, she had not tried to contact the Parents again.

Regarding the Parents’ contention that another branch had contacted them, Ms C stated that there was no possibility of this happening as they are a separate service without access to the information held by her Creche and A’s booking enquiry form was locked away in a filing cabinet in the office.  Finally, she confirmed that no new children were offered a place on the ECCE Programme that year including the other 4 children on the waiting list owing to the staffing crisis.  Any new places were filled with children already attending the Creche who were moving up from other classes.  As that is the reason why the Complainant did not get a place, there had been no discrimination against her.

Cross-examination of Ms C, Former Creche Manager

Ms C agreed that her initial conversation with Ms B in February 2022 had been positive and at that stage she would have been optimistic about having a place for the Complainant.  However, she had also informed Ms B that she would contact her at a later stage to confirm a place as per her follow-up message.  She accepted that there was no process in place at the time for emailing parents on the status of a prospective place.  She was only aware of one prior attempt by the Parents to contact her in early July when she had been on annual leave.  It was put to Ms C that Mr B’s recollection of their telephone conversation on 26th July 2022 differed and it was only when he had mentioned the Complainant’s issues that she first informed him of the staffing crisis.  Ms C denied that this was the case and had in fact explained AIM to Mr B in response.  She had been ringing all the parents of children on the waiting list to explain that a place was unavailable around that time.  It was put to her that in fact she had not phoned Ms B of her own volition and had been returning her call.  It was also put to her that it was very late in the year for parents to make alternative arrangements.  Ms C confirmed that the 1:8 ratio in the ECCE had remained in place for the whole year and none of the other children on the waiting-list were offered a place.  She also confirmed that as the Creche catered for children with a range of needs, the prospect of tantrums would not pose an issue.

Submissions on Preliminary Issues of whether Notification and Complaint within Time

On behalf of the Respondent, it was submitted that the notification to the Respondent and referral to the WRC were not within the requisite statutory time-limits.  In this respect, it was contended that the clock had begun to run from the beginning of September 2022 based upon the Complainant’s complaint form.  This required the notification to be made by the beginning of November 2022 and the referral of this complaint to the WRC by the beginning of March 2023.  In response to the question on the complaint form, “What is the date of the first incident of discrimination?”, the reply given was “Feb 2022 to Sep 2022”.  In response to the question “What is the most recent date of discrimination?”, the reply given was “Sept 2022”.  There were no references to “ongoing discrimination”, any further requests for a place in the Creche on behalf of the Complainant following the Solicitors’ letter of 14th October 2022 or further complaint form.  Given that the Parents had the benefit of legal advice from at least September 2022, there was no reasonable cause for granting an extension of time.  It was refuted that there was a lack of communication.  In fact, Mr B had asked not to be contacted again and the Parents had taken issue with the Respondent retaining the Complainant’s name on the waiting list as per the ES1 form. 

It was further submitted that the letter sent by the Complainant’s Solicitors to the Respondent on 14th October 2022 did not constitute a notification within the meaning of Section 21(2) of the ESA.  It had stated: “we shall utilise this correspondence as a basis for seeking our client’s legal costs of any such proceedings”.  The reference to costs indicated an intention to pursue Court proceedings as opposed to referral of a complaint to the WRC.  The only explanation for furnishing the ES1 form dated 24th April 2023 was that the letter of 14th October 2022 was not considered sufficient.  The Respondent had raised the issue of delay and the time-barred nature of the ES1 form in its ES2 form.

Reliance was placed upon A Minor -v- A Creche / Pre-school Facility ADJ-00016405 where the alleged act of discrimination arose in early March 2017 and the complaint was referred to the WRC in August 2018.  The Complainant’s submission that correspondence relating to the event which continued until March 2018 constituted “continuing discrimination” was rejected and the complaint was found to be statute-barred.  Further reliance was placed upon caselaw setting out what constitutes reasonable cause for the purposes of extending time.  There is a requirement to show that there are reasons which both explain and afford an excuse for the delay as confirmed in A Bank -v- A Worker EDA 104 and Department of Finance -v- IMPACT (2005) ELR 6.  As noted by Bruton et al in Employment Equality Law, (2nd Ed, 2022) at para 16-107: “One of the other factors relevant to whether an extension of time should be granted is whether the claimant was in receipt of legal advice prior to the six-month time period expiring… the existence of legal advice may contribute to a finding that no reasonable cause existed.”  In Elephant Haulage Ltd -v- Juska EET082, the Labour Court refused an extension of time where the complainant had expert legal advice at all times.  Likewise, it was submitted that there was no reasonable cause for extending time in the instant case.

Submissions on Substantive Complaint

Substantive submissions were made on behalf of the Respondent without prejudice to its preliminary objections as set out above.  The factual background to the instant case and the interactions with the staff of the Creche and the Complainant’s Parents was set out as per evidence given above.  It was not in issue that the Respondent is a multi-service operation with five creches providing childcare for over 400 children and has an extensive waiting list.  The Respondent’s staff structure includes a Regional Manager and Managers/Assistant Managers for each of its five services.  It has multiple staff with qualifications in LINC, a training programme designed to support children with additional needs in the Early Years sector as outlined above.  Its Policies and Procedures as furnished take account of children with additional care needs.  It prides itself on being all inclusive and does not discriminate against children with additional needs.  It has a duty to ensure that adequate supports and staffing levels are in place in compliance with its statutory obligations including various Regulations made under the Child Care Act 1991 before taking children including those with additional needs into its care.  In addition to providing care for children aged up to 12 years of age, it operates the ECCE Programme as set out above.  In line with Regulations, the staff to child ratio is 1:11, when caring for a child with additional needs it is 2:11 and where an AIM support staff member is not available it is 1:8.  The Respondent currently has 16 children with additional needs enrolled across its services all of whom are within the ECCE Programme and supported under the AIM Model.  There is an economic incentive to accept children with additional needs as the Respondent receives additional funding under the various Government schemes outlined above.

When a parent calls to make an enquiry, the creche manager takes and records the booking on their booking enquiry form which has been in place for ten years.  The booking form notes the parents’ name/s, age, date of birth, number of days required and when they are seeking to commence childcare.  This does not constitute confirmation of a place.  A place on the ECCE Programme can only be confirmed in the August of any given year when the Respondent submits an application to the Department of Children, Equality, Disability, Integration and Youth (DCEDIY) via its portal.  When the Respondent is ready to take on the new enrolment subject to sufficient staffing being in place, a visit is arranged for the parents and child to view the room.  At this point the parents will be given a registration pack and a start date is confirmed.  On the child’s first day, the parents must bring all the paperwork with them and this is securely stored in a locked filing cabinet in the creche office.  The booking form is the only form that the Respondent had on file for the Complainant herein.  It was stored in a locked filing cabinet in the Creche office and under GDPR, not shared with anyone. 

The Creche subject to this complaint has three ECCE classrooms, with a floor area to accommodate 16 children within two of the classrooms and 11 children in the third classroom.  It had been intended to fill these rooms at capacity for the 2022-23 ECCE year.  In respect of admissions, children already enrolled at the Creche have priority over new admissions.  In September 2022, there were 3 children with AIM requirements.  Two of these children had availed of the first ECCE year in 2021 and graduated to their second ECCE year in 2022.  The other AIM child moved from the toddler room up to the ECCE classroom.  Owing to three members of staff leaving the Creche in July 2022 who could not be replaced, the spaces had to be reduced resulting in no new enrolments for 2022-23.

In relation to this complaint, it is submitted that the Complainant did not get a place on the ECCE Programme with the Creche solely down to the national staffing crisis within the pre-school sector.  Consequently, no new enrolments were taken by the Creche on its ECCE Programme for 2022-23.  Unfortunately, there are lots of children in a similar predicament who have been missing out on their ECCE entitlements due to the staffing crisis within the childcare sector including the 4 other children without AIM requirements who could not be accommodated with a place in the Creche.  The Respondent refutes the contention that the Complainant had been guaranteed an ECCE place.  Upon taking the booking in February 2022, the Creche could not have foreseen losing three staff so close to the commencement of the new ECCE term at such short notice.  The Respondent had done all that was reasonable to accommodate the needs of the Complainant and make the provision of facilities available for her attendance by advertising for staff across multiple social media platforms.  Accordingly, there was no discrimination against the Complainant pursuant to the ESA. 

Findings and Conclusions:

Preliminary Issues of whether Notification and Complaint within Time

The Respondent raised preliminary issues going to the WRC’s jurisdiction to adjudicate on this complaint.  It was contended that the notification and referral of this complaint were not made within the requisite 2 month and 6 month statutory time limits as required under Section 21(2) and Section 21(6)(a) of the ESA respectively.  On behalf of the Complainant, it was contended that the notification dated 24th April 2023 and referral of this complaint on 3rd July 2023 were within time as the alleged discrimination was continuous and ongoing.  Alternatively, it was contented that the Solicitors’ letter of 14th October 2024 as set out above met the requisite requirements for a notification and there was reasonable cause for extending time for referral of this complaint.

In this respect, Section 21(2), 2A & (3) of the ESA provides for the notification requirements for an intended complaint under the ESA, the enlargement of time from 2 months to 4 months if reasonable cause is shown and the dispensation of notification in exceptional cases as follows:

“21(2) Before seeking redress under this section the complainant-

(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of- (i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act, and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions. 

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent. 

(3)(a) On application by a complainant the Director or, as the case may be, the Circuit Court may- (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly. 

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including- (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and (ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”

In relation to the time limit for the referral of a complaint, Section 21(6)(a) provides as follows:

“21(6)(a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Courtmay, for reasonable cause, direct that in relation to the Complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

Considerable time including a preliminary hearing was expended on airing these issues.  Having heard the totality of the evidence, it was clearly the Respondent’s position as set out in its correspondence, that if and when the requisite resources became available, the Complainant would be afforded a place on the ECCE Programme in the Creche.  It was further established that the first ECCE year within which the Complainant would have been enrolled ran from September 2022 until June 2023.  A place was not offered to the Complainant during this period.  Thus, the discrimination apprehended by her Parents was continuous and ongoing.  It follows that the ES1 form submitted on 24th April 2023 and referral of this complaint to the WRC on 3rd July 2023 fell well within the requisite statutory time limits.  The fact that discrimination may have crystallised for the Parents from early September 2022 as indicative in their Solicitors’ letter of 14th October 2022 seeking damages does not alter the position.  At the time of writing, the Parents’ Solicitors were unaware of the Respondent’s position confirmed in its emails of 20th October 2022 and 11th December 2022 that the Complainant was being retained on a ‘waiting list’ for a place once the requisite resources were in place.  Had there been a cut-off date on new enrolments or had a place become available and been declined by the Parents, I might well have taken a different view.  The Respondent cannot have it both ways and argue on the one hand that the last date of discrimination arose in early September 2022 whilst on the other hand, leaving open the possibility that the Complainant could have been offered a place at any time during the 2022-23 ECCE year or thereafter.  Whilst the dates and narrative could have been set out more precisely in the Complainant’s ES1 and complaint forms, they also referenced “A remains out of preschool and still with no explanation as to why from the Creche”.  I am therefore satisfied that the Respondent could not have been under any illusion that an ongoing situation of alleged discrimination had persisted.  In this respect, the facts in A Minor -v- A Creche / Pre-school Facility ADJ-00016405 where the alleged discriminatory event was reagitated in correspondence and other caselaw relied upon on behalf of the Respondent are distinguishable.

Substantive Complaint

The Complainant is a minor with Autism Spectrum Disorder (ASD) and was aged 3-4 at the material time of this complaint.  On her behalf, it was contended that by not providing her with an ECCE (Early Childhood Care and Education) place at one of its five creches during the 2022-23 year, the Respondent had subjected her to ongoing discrimination on the ground of disability and had further failed to provide her with reasonable accommodation.  Whilst the Complainant had not been formally diagnosed when her Parents sought to have her enrolled with the Respondent, there is no issue that she has a disability within the meaning of Section 2 of the ESA.  The Respondent refutes these allegations and contends that owing to a national staffing crisis, it was unable to afford any new entrants to the Creche a place on its ECCE Programme during 2022-23.  It is necessary to firstly set out the relevant statutory provisions and case law as they apply to the factual matters in issue.

Section 3(1) of the ESA gives meaning to ‘discrimination' in general across a broad range of grounds and provides that discrimination shall be taken to occur “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)...”  Section 3(2)(g) defines the discriminatory ground of ‘disability’ as arising in circumstances when as between any two persons “…one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”. 

As noted in Cahill -v- Minister for Education (2018) 2 IR 417, Section 4 of the ESA separately elaborates on the meaning of 'discrimination' within the specific context of disability and the requirement for service-providers to provide reasonable accommodation and provides:

“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) This section is without prejudice to the provisions of Sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.” 

Also clarified in Cahill, discrimination under Sections 3(1) and/or 4(1) also constitutes a breach of Section 5(1) of the ESA which prohibits discrimination in relation to the disposal of goods and services: “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 remainder of Section 5 provides for the various limitations to this provision, none of which apply to this complaint.

Section 7 of the Acts specifically prohibits direct and indirect discrimination on any of the defined grounds by an educational establishment which includes a preschool service as follows:

“7(1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

(2) An educational establishment shall not discriminate in relation to-

(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

(b) the access of a student to any course, facility or benefit provided by the establishment,

(c) any other term or condition of participation in the establishment by a student, or

(d) the expulsion of a student from the establishment or any other sanction against the student.”

The remainder of Section 7 provides for various limitations to this provision, none of which apply.  Whilst there is no absolute legal entitlement to pre-school education in Ireland, preschool services such as those operated by the Respondent are bound by the aforesaid provisions under the ESA.

The enforcement provisions are contained in Part III of the ESA.  Section 21 provides for the referral of complaints to the WRC including the notification requirements and time limits as set out above.  Section 25 provides for the investigation of complaints and Section 27 provides for the redress which may be ordered comprising of an award of compensation of up to €15,000 and/or a course of action.

Section 38A of the Acts sets out the burden of proof which applies to complaints of discrimination: “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.”  As well established in case law this requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred.  It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut that inference.  

I am required to investigate whether the Complainant has established a prima facie case of discrimination on the ground of disability and/or a failure to provide her with reasonable accommodation contrary to Sections 3, 4, 5 and 7 of the ESA as against the Respondent requiring rebuttal.  This requires application of the aforesaid law to the factual matrix.  In this respect, I note and where disputed, find on the balance of probabilities the factual position to be as follows:

(1)  It is not in issue that the Complainant has a disability within the meaning of Section 2 of the ESA.

(2)  The Respondent is an educational establishment within the meaning of Section 7 of the ESA.

(3)  Whether intentionally or not on the part of the Respondent, between February 2022 and July 2022, I find that the Complainant’s Parents were led to believe that a place would be available for the Complainant on its 2022-23 ECCE Programme in the Creche subject to this complaint.  I arrive at this view based upon the undisputed evidence of Ms B that she had an initial positive conversation with Ms C, the Former Manager of the Creche on 24th February 2022.  Ms C had informed her that they had places available, and she would be happy to put the Complainant’s name down.  This was endorsed with her follow-up message by Facebook Messenger: “No problem will be in touch again to confirm spot after Easter.”  Whilst the Parties are at odds regarding their communications thereafter, on Ms C’s account, the Parents were not informed of any issue with the availability of a place for the Complainant until her conversation with Mr B on 26th July 2022.  It is also notable that at no point before the commencement of the ECCE year did the Respondent ever write to the Parents to advise them that a place would not be available for the Complainant.  Apart from the Facebook page primarily used to communicate daily activities within the Creche, there was no website for the Respondent setting out the enrolment process and schemes/supports available.  Whilst it was also clear from Ms C’s message that the place still had to be confirmed, given their state of knowledge, any parents in Ms B and Mr B’s position would have been reasonably led to believe that there was a place available for their child and that confirmation was a mere formality.  Even on Ms C’s evidence, at the time of her initial conversation with Ms B, she believed that there would be a place available for the Complainant.  However, due to unforeseen circumstances whereby three staff left at short notice in July 2022 and could not be replaced for some time, no new enrolments were afforded ECCE places.  This is not to conclude that a place for the Complainant was in fact confirmed or ‘guaranteed’ in circumstances where the booking process is clearly distinct from the enrolment process.  Essentially the booking enquiry form records an expression of interest and the place is confirmed at a later stage when the Creche is in a position to confirm availability. 

(4)  There were slight variances in the facts provided from the Complainant’s perspective as between the correspondence, ES1 form, complaint form, evidence and submissions.  I consider that these arise from lapse of time and recall and are not pertinent to factual findings necessary to reach a decision.  The other main conflicts arising from the evidence are firstly, whether the Respondent (via conversations purportedly with a member from another branch and other staff) confirmed that there was a place available for the Complainant and secondly, whether Mr B had indicated the Complainant’s disability before or after Ms C had indicated a staffing crisis during their telephone conversation on 26th July 2022.  In relation to the first issue, I find the Parents’ evidence to be credible in terms of having further conversations with the Respondent’s staff that reinforced their belief that a place for the Complainant would be available.  Their calls may well have been answered by busy but well-intentioned staff on the floor who did not have the requisite authority to confirm a place.  The fact remains that on the Respondent’s account, there had been no definitive follow-up communication by any means from Ms C until her telephone conversation with Mr B on 26th July 2022.  On the second issue, I am unable to find the evidence of either side sufficiently reliable to resolve the dispute as to whether Mr B mentioned the Complainant’s disability before he was informed of the staffing crisis.  However, this is not pertinent to a decision based upon the following:

(5)  The booking process for enrolling children with the Respondent’s creches (first outlined in submissions) was not put in issue on behalf of the Complainant.  It was not disputed that a booking enquiry form is completed by the staff member taking the enquiry with basic details and stored.  At the end of the ECCE year in June, an assessment is undertaken of how many spaces are required for the coming year commencing in September.  It is only after that process has been undertaken that new enrolments can be confirmed in August.  Depending upon whether there are any spaces available, those in respect of whom booking enquiry forms have been taken are considered on a first come first served basis and places offered accordingly.  Children already attending the creche or children of staff on maternity leave returning to work get first preference before new bookings.

(6)  It was not disputed that only after a child with additional needs is registered on the ECCE Programme with the Creche that an application is made under the various schemes for further resources, requiring an assessment of the child before a recommendation is made for funding.

(7)  The fact that there was a national staffing crisis in the sector at the material time and three staff had left the Creche at short notice in July 2022 and could not be replaced for some time was not in issue.  Nor was it disputed that consequently, the spaces available in the ECCE classroom that the Complainant would have attended had to be reduced and no new entrants were enrolled at the Creche for the 2022-23 ECCE year including 4 other children without any identified additional needs.

(8)  It was not in issue that the Respondent had comprehensive policies and staff training in place aimed at ensuring the inclusion of children with additional needs within its services or that it had up to 16 children with additional needs enrolled across its five creches attending the ECCE programme.

In circumstances where there were no new enrolments to the ECCE Programme for the 2022-23 year from children not already attending the Creche and 4 other children without any identified additional needs were not afforded a place, there is no evidence that the Complainant had been treated less favourably than a child without a disability or with a different disability in a comparable situation.  Accordingly, I must conclude that the Complainant has not made out a prima facie case of discrimination on the ground of disability.  As the assessment of additional needs of children on the ECCE Programme is not undertaken until after enrolment in accordance with the operation of AIM, it follows that there was no failure to provide the Complainant with reasonable accommodation.

Having so found, it is important to acknowledge the upset and inconvenience caused to the Complainant and her family arising from the manner in which the Respondent handled matters.  The Parents were living rurally and trying to manage their childcare and work commitments whilst coming to terms with the fact that their child may have Autism which was subsequently confirmed.  The prospect of a place in a creche close to Ms B’s workplace was critical to managing their domestic situation.  Even before its staffing crisis in July 2022, communications were extremely casual via phone and Facebook Messenger with no system of written follow-up to advise parents on the status of a prospective place.  Had the Parents been fully alert to the prospect that there may not be a place available for A, it is possible that a suitable alternative could have been made in good time. 

For a company as large as the Respondent, it is also notable that there was no website or other communique such as an information leaflet for parents explaining the enrolment process and various supports available to children with additional needs under the various Government schemes outlining the operation of same.  This information including detailed policies and procedures for the Respondent first came to light through the exchange of submissions.  The lacuna in information gave rise to confusion as to what the enrolment process entailed and what supports were available as well as leading the Parents to apprehend discrimination.  Had there been clear information and communication, it is quite possible that much upset and inconvenience and this complaint could have been avoided.  It is a welcome development that since the referral of this complaint, a system of email communication has been put in place to advise parents on the status of prospective places.

Decision:

Section 25 of the Equal Status Acts 2000-2018 requires that I make a decision in relation to this complaint.  I have concluded my investigation and based on the aforementioned reasoning, I find pursuant to Section 25(4) of the Equal Status Acts, that the Complainant and/or her Parents on her behalf have not established a prima facie case discrimination on the ground of disability and/or of a failure to provide her with reasonable accommodation requiring rebuttal by the Respondent.

Dated:   11-12-24

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 3, 4, 5, 7 & 38A of the Equal Status Acts 2000-2018 – no prima facie case of discrimination on the ground of disability or failure to provide reasonable accommodation