Complainant

Respondent

Anonymised Parties

A student

A Language Course Provider

Representatives

Jack Nicholas BL instructed by Thomas Dowling, Hogan Dowling McNamara Solicitors LLP

David Sheehan, FCCA

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063733-001

27/05/2024

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

CA-00063733-002

27/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063733-003

27/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063733-004

27/05/2024

The Complainant is a student with a named university. As part of her studies, she elected for a co-operative placement with the Respondent. Her placement was terminated prior to its scheduled date.

On 27 May 2024, the Complaint referred her claims to the Director General of the WRC pursuant to the Employment Equality Acts, 1998 (as amended) and the Equal Status Act, 2000 (as amended).

The Respondent rejects the claims.

The Complainant referred her claims under both the Employment Equality Acts, 1998 (as amended) and the Equal Status Act, 2000 (as amended).

The Respondent contends that the Complainant was not an employee of the Respondent and, therefore, cannot pursue her claims under the Employment Equality Acts.

The Complainant submits that she was an employee of the Respondent.

As part of her studies, the Complainant elected for a co-operative placement. The Respondent hosts Spanish children at a camp to learn English. The Complainant was furnished with a contract of employment.

The Complainant commenced her employment as a classroom monitor for the Respondent on 21 February 2024. She was paid €400 per month. The Complainant was required to take charge of a group of children from Monday to Friday and to assist them with their various activities throughout the day. The Complainant worked from 9.30am until 6pm and also from 9.30am to 11.30pm if she was assigned disco duty on that day.

At the adjudication hearing, Mr Nicholas BL, on behalf of the Complainant submitted that the Respondent decided the start and finish times of the Complainant’s workday. She had no autonomy regarding how many kids she had in her group and what was the schedule of the activities. She worked exclusively for the Respondent and had no autonomy regarding her earnings.

It was submitted that the Complainant successfully applied for a position, and it was terminated in a manner an employment would be terminated. The Complainant was provided with accommodation by the Respondent.

It was submitted that the Complainant’s contract supports the proposition that it was a contract of employment. It states that:

‘Other Internships/work Obligations and Employments

It is a condition of this internship that you may not, without the written consent of the Company engage in any other internship or business or employment, which the Company believes may affect the performance of your duties or conflicts with the interest of the Company.

In addition, the Company requires that, outside your hours of training for the Company and during this internship,  you may not engage, whether directly or indirectly, in any business, activity or internship or employment which is similar to or in any way connected with or competitive with the Company or in any other business, activity or internship, which would, in the opinion of the Company, be detrimental or in conflict to the interests the Company, unless you receive your Line Manager’s written agreement.’

It was submitted that the contract dealt in detail with exclusivity, absenteeism, clock in/out and monitoring of working times.

The Complainant, in her evidence, said that they would have breakfast at 8.45am. There would be a meeting about the day ahead at 9am. From Monday to Friday, she would have worked from 9.30am to 6pm with a one-hour lunch break. Once a week she would have done evening monitoring, a disco. She did not work at the weekends. However, sometimes the kids would have arrived on Sunday so she could be asked to work on Sundays.

The Complainant said that the students were working, they had to be there. If she got sick, it would have to be reported. She had no role in organising the events. At a meeting on Fridays, the manager would give them a schedule for next week.

The Complainant said that she did not need to bring any equipment, she had no way to increase her income.

The Complainant confirmed that she was not paid a wage/salary but was given €400 per month in expenses.

The Respondent submits that the Complainant was an intern and not an employee, as outlined in her contract with the Respondent. This contract, which she signed, indicated that her internship was under the supervision of the University and that she was eligible for the Erasmus grant. All financial and contractual obligations were met, including full payment up to her departure and maintaining her Erasmus grant funding. The contract stipulates that interns must perform their duties safely for themselves and others, and the Respondent has always operated under this principle. The contract also includes a probationary period during which only one week's notice is required, and this condition was honoured.

On 25 September the Respondent furnished a supplemental submission where it highlighted that the Complainant was completing an internship as part of an Erasmus Program as a student at the named university. By definition an Erasmus Program is 'a European Funding program established in 1987 offering university students a possibility of studying or doing an internship abroad in another country for a period of at least 2 months and maximum of 12 months per cycle of studies.’

The Respondent referred to www.eurireland.ie which highlights exactly what the program's objectives are (short term employment is not part of its definition).

The Respondent has previously requested a review by the Revenue Commissioners (having amended its revenue status as processed by their previous accountant), which recognised that these students were not liable to PAYE, USC or PRSI taxes and the Respondent was not liable for employer PRSI on payments made to the students on the basis that they were expenses based on the internship agreement between the parties and in conjunction with university agreements. Therefore, applying employment rights and laws to this program and scenario is not correct.

At the hearing, Mr Sheehan, on behalf of the Respondent, submitted that the Respondent did not pay the Complainant. There was an EU grant available to her under the Erasmus programme.

The Respondent submits that it pays the students €400 per month in expenses. Initially, the Respondent provided the students with meals 7 days a week. However, as a lot of the students travelled over the weekends, there was a significant amount of food waste over the weekends. The Respondent decided to pay expenses for each weekend instead of feeding the students. The payments are not taxable and were consulted with the revenue authorities.

The first matter for me to consider is if the relationship between the Complainant and the Respondent comes within the scope of the Employment Equality Act, 1998 as amended. The Complainant asserted that she was an employee of the Respondent. The Respondent rejected this proposition and contended that the Complainant was an intern on a co-operative placement and not an employee.

Section 2 of the Acts provides the following definitions:

“employee”, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“contract of employment” means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or (b) any other contract whereby— (i) an individual agrees with another person personally to execute any work or service for that person, or (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;

The scope of the Acts is not limited to a person employed pursuant to a contract of employment, and it encompasses self-employed persons.

In this case, it was argued that the Complainant was engaged under a contract of service i.e. she was an employee of the Respondent.

The test to determine employment status has recently been determined by the Supreme Court in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24. It is reflected in the updated Code of Practice on Determining Employment Status.

The Court detailed a methodology to apply when analysing the factual matrix of a particular claim to determine if the contract was one of or for service. Murray J concluded that the question of whether a contract is one of service or for services should be resolved by reference to the following five-step framework:

1.       Does the contract involve the exchange of wage or other remuneration for work?

2.       If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

3.       If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

4.       If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.

5.       Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

The first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service.

Exchange of wage or other remuneration for work

The first question I must consider is whether the parties have entered into a contract at all (whether expressed or implied). For a contract of employment to exist, there has to be an offer of work, acceptance of that offer, and resulting payment or “consideration”.

If there was payment by the Respondent to the Complainant for a service directly or indirectly for the provision of the Complainant’s labour, whether agreed in writing or not, and whether the work is carried out on a once off basis or on a continuous basis or anything in between, there is a contract which is capable of being an employment contract.

I note that the document furnished to the Complainant by the Respondent included the following headings:

University Co-operative Education Intern Training and Learning Experience

This is not a Contract of Employment

On page 5, the document states under the heading Expenses and Benefits

As an Intern pursuing a course of education, the Company expects you to apply and claim monies to assist with the cost of living while in the Internship and training Programme through your Educational Institution.

The Company will assist with the expense outlay of the Intern during this stime. The Company will provide as part of the internship 7-day’s accommodation and 5 days-meals at no cost to the intern. These are regarded part of your internship living expenses.

An additional payment of €400 per calendar month will be paid as agreed in advance with the Company. This assists the Intern in covering expenses incurred by travel and subsistence while on internship programme. These costs may include flights, travel between facilities of the Company when required, and Sunday and Public Holiday out of hours ‘meet and greet’ required while on this Internship, along with costs in keeping yourself outside of normal working hours. Payment is made monthly in arrears.

It is expected that the intern shall apply for and draw down the available [named university]/EU and other grants available to the Intern/student. In respect of the first two weeks allowances, €50 per week (total of €100) will be withheld by the Company as an accommodation deposit against any potential damage. In the event of no damage, the deposit shall be paid to you on the last day of the occupancy of the accommodation.

The parties were in agreement that the Complainant did not receive a salary or wages other than the above outlined €400 in expenses. The Respondent submitted that it consulted with the Office of the Revenue Commissioners who confirmed the payment to be a non-taxable expense.

The framework set out in the Karshan judgment is clear that that the question of whether a worker is an employee can be resolved by firstly having regard to the three ‘filter’ questions. If any one of these questions is answered negatively, no contract of employment can exist.

Taking all of the above into consideration, I find that the first question must be answered negatively in the circumstances. There was no exchange of wage or other remuneration for work.

Consequently, the Complainant does not come within the definition of an employee under the Act.

There was no proposition put forward that the Complainant’s relationship with the Respondent was of any other category encompassed by the Act other than that of a contract of service. On that basis, I find that the Complainant has no locus standi to bring a claim against the Respondent pursuant to the Employment Equality Act. 

The Complainant alleged that she was discriminated against by the Respondent by reason of her disability and that the Respondent failed to provide her with reasonable accommodation for her disability.

The Respondent rejects the claim.

The preliminary matter of the Complainant’s employment status with the Respondent is addressed above. I have found that the Complainant was not an employee of the Respondent, as asserted.

In light of my finding on the preliminary matter of the status of the Complainant’s employment, I declare this complaint to be not well founded.

The Complainant alleges that she was directly discriminated against by the Respondent by reason of her disability, namely, epilepsy. Further, the Complainants submits the Respondent failed to provide her with reasonable accommodation for her disability.

Factual Background

The Complainant submits that on attending the named university, she disclosed that she suffered from epilepsy since the age of 13. The Complainant takes medication but may suffer from an epileptic fit.

As part of her studies, the Complainant elected for a co-operative placement. When the Complainant met with the University co-operative placement organisers, she confirmed that they could disclose her epilepsy to her prospective placement provider. It transpired that the University did not disclose the Complainant's epilepsy to the Respondent and the Respondent did not raise the Complainant's epilepsy with the University until some months before she was due to travel to Spain for her placement. The University contacted the Complainant who enquired about what she could do to enable her to go. The Complainant was asked to get a letter from her doctor confirming that she would be able to attend the co-op placement from a medical point of view. The Complainant obtained this letter from her neurologist and furnished it to the University. It is the Complainant's understanding it was furnished to the Respondent by the University. No further issue was raised regarding her placement and the Complainant took up her placement with the Respondent.

The Respondent hosts Spanish children at a camp to learn English. The Complainant was furnished with a contract in the normal course.

The Complainant commenced her placement as a classroom monitor for the Respondent on 21 February 2024. The Complaint was paid €400 net monthly. The Complainant was required to take charge of a group of children from Monday to Friday and to assist them with their various activities throughout the day. The Complainant began work at 9.30am until 6pm and also from 9.30pm to 11.30pm if she was assigned disco duty on that day. The Complainant was employed by the Respondent for one week in February, all of March and approximately two weeks in April.

On Saturday, 6 April 2024, the Complainant had an epileptic fit in her bathroom. When she went down to her housemates about a half an hour later, she had a black eye and a small cut, so she was taken to hospital and then discharged. She returned that day. The Complainant was not working Monday, 8 April 2024 as the children were not present. The Complainant worked as normal on Tuesday and Wednesday, 9 and 10 April 2024.

On Thursday 11 April 2024 the Complainant was called to a meeting with Mr M, the owner of the Respondent company and with her manager, Mr S. The meeting was also attended by Ms E, a student. Unfortunately, Ms E had a heart condition and had collapsed in front of the children earlier in the week. The meeting was recorded. The Complainant was advised of the recording but not given a choice in respect of same. Further, the Complainant was not advised that she could be accompanied io the meeting by another student. The recording has been furnished and a transcript prepared by the solicitors.

Mr M for the Respondent confirmed that the Complainant's epilepsy was discussed with the University before she came over. Mr M stated that he thought it was not a good idea for her to come. He said that he received a phone call from her doctor and that he understood she had not had a seizure in over a year. He said that he knew it would be a problem. He said that she had a seizure, and it was clear that she could have another one. He stated that his brother is a "natural doctor" who informed him that if you have one seizure, the chances of having another seizure go up to 60% or 70%. He stated that he spoke with a person he referred to by her first name (Ms O) from the University. They both agreed that the Complainant should go home.

He asked rhetorically what if the Complainant happened to have a seizure in front of 10 kids. He stated that he is a paramedic. He stated that he had done more than he wanted to do. The Complainant stated that she had spoken to her doctor about it and Mr M interrupted and dismissively said that "he's the one who signed for you to come".

The Complainant asserts that the reason the Respondent sent her home was that it did not want to be liable if the Complainant was injured as a result of a seizure. Its concern was for the Respondent rather than the Complainant. Mr M suggested to seek a letter from the Complainant's doctor assuming 100% of responsibility if anything happened to the Complainant. The Respondent inferred he would not "buy" the Complainant's doctor's opinion anymore (should such an opportunity have been provided). The Complainant was advised to be grateful for her experience to date. The Complainant maintains the primary motivation of the Respondent is further evidenced by the email dated 12 April 2024 from the Respondent to the University.

The Complainant tried to state that she may not have a seizure for a year, but Mr M concluded that he would pay the Complainant until Friday, that she did not have to work anymore and she would have to organise for herself to go home. He said that "you shouldn't have got here because you shouldn't have come".

The Complainant was advised that because she had had a seizure, that the Respondent considered she was now at risk of having more. He said that this could not be tolerated and could not happen in front of or be witnessed by the children. Accordingly, the Complainant's internship was being terminated. The Complainant asked if there was anything she could and was told no. The Complainant understands a similar conversation was held with Ms E. The Complainant was told she had to go home and was given until Sunday or Monday to make arrangements to leave.

In terms of safety, the Complainant is of the view that she did not have to partake in the activities as a Monitor. She did not have to get into the water. She could assist the children and direct them from the side. Monitors do not take part in rock climbing, horse riding or ziplining. The Complainant missed the rest of April, all of May and 3 weeks in June.

It is further submitted that the Complainant was treated differently to Ms E, who suffered from fainting rather than epilepsy. She was allowed to continue her internship.

The Complainant was sent home by the Respondent on 11 April 2024 because she had suffered an epileptic attack on 6 April 2024. She was discriminated against due to her disability. She was not given any opportunity to stay.

A Form ES.1 dated 22 April 2024 was served on the Respondent. A Workplace Relations Commission Complaint Form was submitted on 12 June 2024.

Legal Submissions

The Respondent does not dispute that the Complainant has epilepsy. Further, the Respondent's submissions do not dispute that epilepsy constitutes a disability. Finally, in A Computer Component Company v A Worker EED013, the Labour Court held that epilepsy constitutes a disability and an award of compensation was made for discrimination.

In Kiernan v J &E Davy trading as Davy Stockbrokers ADJ-00030172, epilepsy was determined to be a disability and the complainant was awarded compensation for direct discrimination.

Further, it is submitted that prior to the incident the subject matter of the adjudication, the Respondent was aware of the disability per Counihan v Swan O'Sullivan Accountants EDA1810, A Complainant v A Supermarket DEC-S2010-013, GarciaRodriguez v Bus Eireann DEC-S2008-077, and in Carroll v Middleton Cabs DEC-S2010-010.

Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.

Both Adjudication Officers and Equality Officers in complaints made under the Equal Status Act have drawn on the Labour Court decision in Mitchell v Southern Health Board [2001] ELR 201 to explain what constitutes presumed prohibited conduct, also referred to as a prima facie case.

To establish a prima facie case, the Complainant relies upon her oral evidence and the recording of the meeting with the Respondent as evidence of the primary facts. In addition, the Respondent's submissions do not dispute that the Complainant was dismissed from her internship because of her disability, albeit the Respondent contends it was motivated in dismissing the Complainant by concerns for the Complainant’s safety because of her disability.

In the circumstances, it is submitted that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In deciding whether the Respondent failed to provide reasonable accommodation for the Complainant, in the Supreme Court Judgement of Kim Cahill v Minister for Education and Science 2017 IESC 29, it was stated that the Equal Status Act should be treated as being "remedial social legislation" aimed at levelling the playing field and allowing the Court to "adopt a broad generous purposive approach, in order to identify and give effect to the plain intention Oireachtas". It was further stated that the limits of reasonable accommodation:

"requires a respondent to do "all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficultfor the person to avail himself or herself of the service.”

McMenamin J went on to state that,

"The purely legal question, however is, how should the term "all that is reasonable”be interpreted? In general, the term 'reasonable ' here has two aspects. First, it must contain a 'substantial’ or proportional, component sometimes, as in s. 4(2), involving consideration of the cost element... but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider and the recipient. These are objective tests.”

It is submitted that the Respondent failed to take any steps whatsoever to assess reasonable accommodations for the Complainant including a doctor's report, a safety assessment or any means of facilitating the Complainant.

Application to the facts and conclusion

The Respondent terminated the Complainant's internship because she suffered from epilepsy. This, prima facie, constituted an act of discrimination on disability grounds.

The Respondent's submissions are that the Complainant was dismissed because of her disability and for her own safety. It suggests that the working environment posed a danger to a person with epilepsy. There is no suggestion that she was not fully competent or fully capable of performing the duties of her internship.

The Respondent does not provide any evidence of an investigation or otherwise as to reasonable accommodations which could have been provided to the Complainant. The Respondent did not consider undertaking any form of safety assessment which could have identified the extent, if any, to which the working environment presented a danger to the Complainant, and how any such danger could be ameliorated. Further, the Respondent did not discuss its concerns with the Complainant other than as a basis for the cessation of her internship/her dismissal. It is submitted that even if the Respondent could reasonably and objectively have come to the conclusion that the Complainant was not fully competent or capable of performing her duties, the Respondent did not consider providing the Complainant with reasonable special facilities which would accommodate her needs and so overcome any difficulty which she or the Respondent might otherwise experience.

At the adjudication hearing, Mr Nicholas BL, on behalf of the Complainant submitted that the Respondent accepted that Ms E’s situation was different, and the Complainant was treated differently because of the Complainant’s disability and the nature of it. This is an aggravating factor.

Mr Nicholas suggested that Mr M’s primary concern was for him and the company, not for the Complainant. He was seeking indemnity from the Complainant’s doctor. It was not about providing reasonable accommodation but to cover himself so he would not be liable. Hence the question “what if it happened in front of the kids?” There was no concern for the Complainant’s wellbeing.

Mr Nicholas referred to a heavily redacted email of 12 April 2024 entitled “[The Complainant’s first name] CASE” from the Respondent to the University where Mr M stated:

[Redacted]

If [the University] wants us to keep [the Complainant] to avoid problems we will do without a problem but we demand a document signed by the doctor and parents saying that she is perfectly suitable to stay and that we as a company or exempt of any responsibility to do with [the Complainant’s] Epilepsy and over whatever happens to her due to her condition.

[Redacted]

Today I had a meeting with the pupil and her mother and everything was spoke through in a very nice, polite, educated and positive manner. We decided that [Ms E] can stay and if the fainting carries on that she will have to go back. All agreed with her and the mother.

Once again I want it to be very clear that we are PROTECTING these pupils. We are very concern of their wellbeing and that is why they all come back home safe and sound year after year for over 30 years. There is job to be done but most important I want to sleep in peace knowing that they are all safe 24 hours, not that they can lose conscience and fall down and swallow their tongue in front of 10 Spanish kids, or break their neck or drown in the sea or pool. This mustn’t be hard to understand but it looks like it is being this was this time.

Mr Nicholas said that it is unclear why the email was so heavily redacted. He said that there was nothing in the email exchange that would suggest that the University wanted the Complainant to be sent home. He asserted that it is a clear case of the Respondent imagining its fears and discriminating as a result.  The Respondent’s own submission confirms that the Complainant had a seizure, and the Respondent sent her home as a result.  The decision was made because of her disability.

Mr Nicholas submitted that it was easy to arrange for the Complainant to stay out of the pool/sea as the Monitors did not partake in the activities.

Mr Nicholas submitted that it is incorrect to say that the fact that the Complainant was sent home did not make any difference to her in academic context. She had to make up her lost credits elsewhere.

While Mr Nicholas in his written submission asserted victimisation, he confirmed that this was not being pursued.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said that she was in her second year of a bachelor’s degree. In the second semester, students are required to do a co-op placement. The Complainant’s friend recommended co-op with the Respondent. She said that there were some 50 students in total who started in February 2024. She said that the first two weeks were assigned for training, so they would become familiar with games and activities which included horse riding, rock climbing, water sports, adventure centre, and indoor games.

There was one monitor for 10 children, and 2-3 monitors could arrange activities together.

The Complainant said that she did some activities but not water activities as she does not like going in the water. While other monitors went into the water, she stayed on land helping to get kids in their wetsuits, helmets, take kayaks away, coordinating. She went kayaking once but did not like it. The Complainant said that each activity is done once. In four weeks, she went kayaking once, she never went horse riding. She said that the monitors were there but there were also the owners of the stables who were coaching the kids.  The Complainant said that she never had to go on the zipline or rock climbing. The monitors’ role was to ensure that the kids had helmets on etc. and not actually take a part in the activity. The monitors were at the bottom of the zipline, so if a child fell into the net, they would be there for them. Similarly, when swimming in the sea, there were other people/employees who could be lifeguards there, she did not have to go into the water.

The Complainant said that around October 2023 she got an email from the Disability Officer in the University regarding some concerns about her going over because of her disability. It was coming from the Respondent. The Complainant was asked if she would like to disclose her disability to the Respondent and she agreed. The Complainant spoke on the phone with the Disability Officer. She asked if a doctor’s letter would help, and the Disability Officer said that it would. The Complainant obtained same.

With regard to the incident on 6 April 2024, the Complainant said that she lived in a bungalow with three people. She woke up during the night and went to the toilet, she had a seizure after which she was brought to hospital. The Complainant’s parents were to come to Spain the following weekend but she called her father after the seizure and he arrived earlier than it had been planned.

The Complainant said that she worked as normal on Tuesday and Wednesday. She had a massive black eye, but nothing was said to her, she was working away.

On Wednesday 11 April 2024, she was called to a meeting, there were four attendees, the Complainant, Ms E, Mr M and the Complainant’s manager. Mr M told them that he would be recording the meeting. He then said that she would be going home, that he read statistics and that reoccurrence rate would be 60%-70%. He said that his brother told him that. He said that the Complainant was going home. There was no attempt to find any suitable arrangement. The Complainant felt bullied. Mr M said that there was nothing she could do, so she got up and left. She was told she needed to leave by Sunday.

The Complainant said that her manager sent her a text message saying that if she wanted to talk to Mr M again maybe she could. The Complainant’s father initially said that he would but then he changed his mind. The Complainant said that her father arrived first, then the family joined and she stayed in Spain with them.

The Complainant said that she did not receive the full payment, and she had to submit an essay to make up for the unfinished co-op. She said she opted out of co-op after the experience, she was quite upset. She said that it was very difficult for her.

In cross-examination, it was put to the Complainant that, as far as the Respondent was aware, she received the full Erasmus grant. The Complainant said that she did not receive the second instalment.

It was put to the Complainant that her job was to manage kids, she was asked to stay with the kids all day. The Complainant confirmed that she was on a paddle board on one occasion, she then stayed on the beach.

The Complainant said that the way Mr M spoke to her was horrible; that having to sit there and listen to what he was saying was the most horrible experience. She said that Ms E got an option to get signed off by a doctor. The Complainant was spoken to first. After a while, she said that she did not have to listen to it, and she walked out.

The Complainant said that after the meeting she rang her father, who in turn rang the University. The University had no knowledge that a decision was made to send her home.

In redress, the Complainant said that that some kids were on the paddle boards but some would have stayed on the beach. She was on the beach watching them.

The Complainant said that Ms E was there when the Complainant’s issues were discussed but Ms E’s health problems were not discussed in front of the Complainant. The Complainant said that Ms E knew when she is going to faint, the Complainant did not get a warning.

Summary of direct evidence and cross-examination of the Complainant’s father

The witness said that he got a text message from the Complainant saying that she was in a meeting and she was being sent home. He rang her, she walked out of the meeting and told him that she was to leave by Sunday.

The witness said that he rang the Placement Officer in the University and told her that the Complainant was being sent home. She was stunned, she did not know why.

The witness said that the Head of the Department rang him, she did not know about the situation. He said that he spoke with her again recently after he got the recording of the meeting of 11 April 2024. He sent her a list with questions he had. She rang him back and went through the questions. One of them was who in the University made the decision to send the Complainant home. She said that at the time the University was not aware of the issue and that the Complainant was being sent home.

In its submission furnished on 5 September 2024, the Respondent submitted that it has been operating successfully for over 30 years, providing English language immersion programs for children aged 10 to 16. The Respondent’s commitment to safety, wellbeing, and the quality of experience for both its clients and interns has been at the core of its operations. The Respondent had hosted over 1,500 to 2,000 interns from various universities, including the University the Complainant attends, without any previous issues related to WRC, courts, or exceptional internal reviews.

Health and Safety Concerns

On Saturday 6 April 2024, the Complainant experienced an epileptic seizure while in shared accommodation. This incident was immediately reported by her roommate, and the Respondent’s manager maintained contact with her throughout her hospital visit to ensure her wellbeing. Following this, continuous communication was upheld with both the Complainant and her roommate, as well as discussions with the University, to decide on the best course of action to ensure safety and support.

Given the nature of the activities, which include water sports and climbing, the Respondent’s primary concern was the Complainant's safety and the safety of the children in her care. Activities such as kayaking, paddle boarding, horse riding and climbing are inherently risky for someone with a history of seizures, as confirmed by guidance from the World Health Organization (exhibited). Therefore, any perceived difference in treatment was motivated by the necessity to prevent potential harm and not by discriminatory intent.

Reasonable Accommodation and Communication

The Respondent aims to accommodate interns with medical conditions reasonably. During the meeting on 11 April 2024, the Respondent discussed both the Complainant's and another student's medical situations and communicated the need to adjust their activities to ensure their safety. The Respondent did not terminate her internship; instead, the Respondent sought to find a suitable arrangement in consultation with the University.

The Respondent’s management offered ongoing dialogue with the Complainant and her family which could have had an outcome of her staying in Spain. However, they declined further meetings after the initial discussion, deciding instead to treat the matter as a legal issue. In contrast, the other intern from that meeting with a different but similar medical issue successfully engaged in further discussions, resulting in a mutually agreeable solution that allowed her to continue her internship, but she also eventually had to return to the University due to on-going medical issue.

No Financial or Educational Loss

The Complainant suffered no financial loss or educational disadvantage as a result of the Respondent’s actions. Her Erasmus grant was paid in full, and she received all payments as per her contract. Her early return to the university did not impact her academic standing or future career opportunities, based on the communication the Respondent received from the University.

Conclusion

The Respondent has always prioritised the safety and wellbeing of its interns, clients, and staff. The Respondent’s actions in this case were consistent with its duty of care and health and safety obligations. The Respondent believes it provided reasonable accommodation, acted in good faith, and treated the Complainant fairly, without discrimination.

The Respondent submits that the Complainant was an intern under the University’s cooperative education program, which is administered and supervised by the University. Her primary relationship was with the University, not with the Respondent. The Respondent acted in a hosting capacity as part of the University’s structured program. All actions and communications related to the Complainant’s internship were conducted in coordination with the University, and decisions regarding her status and accommodations were made in consultation with the University. Given these circumstances, the Respondent believes that any issues arising from her internship should primarily involve the University, as they maintain ultimate responsibility for their students.

On 25 September 2024, the Respondent furnished a supplemental submission as follows.

Commitment to Safety and Reasonable Accommodation

The Respondent reaffirms its unwavering commitment to the safety and wellbeing of its interns, clients, and staff, which remains paramount in all its operations. This is particularly critical given the high-risk nature of its programs, which include physically demanding activities such as water sports, climbing, and other potentially hazardous exercises.

The health and safety guidelines adhered to by the Respondent are implemented to mitigate risks not only for the interns but also for the children under their supervision. The decision for the Complainant to return to the University to complete her internship was made strictly on health and safety grounds, following her epileptic seizure on 6 April 2024, while residing in shared accommodation. The Respondent’s primary concern was her safety, particularly in view of the inherent risks posed by the nature of the activities within the program.

The Respondent submits that it is well-established in medical literature, including guidance from the World Health Organization (WHO), that epilepsy presents additional risks in environments involving water sports due to the heightened risk of drowning during a seizure. The decision for the Complainant to return to the University was based on these legitimate safety concerns, and the Respondent asserts that no discriminatory intent informed this decision.

Medical Evidence and Risk Assessment

The seizure experienced by the Complainant, although occurring off-duty, provided clear evidence that her condition could equally recur in dangerous circumstances. As outlined by the WHO's "Epilepsy in the Workplace" guidelines, individuals with epilepsy are at a heightened risk of harm in environments where immediate assistance may not be available, or where a seizure could result in significant injury or fatality—such as in water or at heights.

Given that the primary activities of the Respondent’s program involve kayaking, paddle boarding, climbing, and horse riding, the unpredictable nature of the Complainant’s epilepsy warranted a re-evaluation of the safety risks. Despite the neurologist's prior clearance, the seizure on 6 April 2024 demonstrated that her condition remained a potential threat in the specific work environment. Consequently, after consulting with the University, it was determined that the risks posed by her condition could not be sufficiently mitigated.

The Labour Court, in A Worker v A Computer Component Company EED013, recognized epilepsy as a disability while acknowledging that employers must assess the risks presented by an individual's condition in the specific context of their work environment. The context in this case—activities with inherent risks such as water sports—justifies the Respondent’s decision on health and safety grounds.

Reasonable Accommodation Considerations

The Respondent made every reasonable effort to accommodate the Complainant’s condition. During an initial meeting on 11 April 2024, the Respondent explored potential adjustments to her duties. However, due to the high-risk nature of the activities, most of which require direct supervision in hazardous environments (e.g. water and heights), it was determined that no feasible accommodations could be made without compromising the safety of the Complainant, the children, and the staff.

Section 16(3) of the Employment Equality Act 1998 stipulates that employers must provide reasonable accommodations unless doing so would impose a "disproportionate burden. " In Garcia Rodriguez v Bus Eireann DEC-S2008-077, the Equality Officer emphasised that reasonable accommodations must be practical in the context of the work environment and its associated risks. In this case, the high-risk nature of the activities precluded any accommodations that would allow the Complainant to safely fulfil her role.

The Complainant was paid in full for her time, and her academic standing remained unaffected. This demonstrates the Respondent's good faith in addressing her situation without imposing any financial or educational disadvantage.

Comparison with Other Interns

The Complainant’s submission raises a comparison with another intern, Ms E, who has a heart condition and was permitted to continue working. The Respondent submit that the two medical conditions and the associated risks are not comparable. Ms E's condition, while serious, did not present an immediate risk during the activities she was assigned to supervise. Furthermore, Ms E's condition was managed and monitored differently, and adjustments to her duties were negotiated after dialogue from her mother, doctor and the University, on the request of her mother who met with management. This was possible without compromising her safety or the safety of the children under her care.

In contrast, the Complainant’s epilepsy presented a direct and serious risk, particularly after her seizure on 6 April 2024. This was explained to her in the meeting on 11 April 2024 which the Complainant left prior to it completing to take a call from her father. The Complainant did not return to this meeting or engage in any further dialogue with management after this initial meeting.

The Labour Court in Counihan v Swan O'Sullivan Accountants EDA 1810 established that accommodations must be evaluated on a case-by-case basis, taking into account the specific context and safety implications of the work environment.

Consultation and Dialogue with the University

The Respondent engaged in ongoing consultations with the University before and after the incident to explore potential accommodations and ensure the Complainant’s safety. The decision for her to return to the University to complete her program was made in collaboration with the University, based on the safety risks posed by her medical condition in the context of the program's activities.

This decision was not made lightly, nor was it made in isolation. The Respondent remained open to discussions with both the Complainant and the University prior to making any final decisions, further demonstrating its commitment to handling the situation fairly and with due regard to the Complainant’s safety. However, the Complainant and her family (who were also invited to meet with management) declined to engage in any way with the Respondent.

At the adjudication hearing, Mr Sheehan, on behalf of the Respondent, asserted that the Complainant was sent home because of health and safety concerns and not because of her disability. Mr Sheehan said that Mr M was qualified to make a decision that the Complainant posed a health and safety risk. There was no way to protect her if she had a seizure.

When the Complainant was accepted, the Respondent did not know about her disability, it came up later. It was submitted that had the Respondent known of the Complainant’s disability earlier, the Complainant would not have been approved to participate in the co-op.

Mr Sheehan said that Mr M treats his students like his own family. It would be fine if the Complainant had no seizure but if she did, the Respondent would have an issue.

Mr Sheehan said that it was suggested to both students to go home but Ms E could be accommodated after speaking with the University and with her doctor. The Complainant did not engage.

The Complainant could not do what she signed up for. If the University said that she should stay, sit in a chair, the Respondent would have done that. There was no benefit for the Respondent to send her home and the decision came from the University.

The Respondent submits that Mr M has 40 years of experience. He knows that students go out and party. He knows that lack of sleep could be an issue and a trigger. He thought that it might be an issue in this case.

Summary of direct evidence and cross-examination of Mr M, owner of the Respondent company

Mr M said that he is a qualified teacher, lifeguard and paramedic.

Mr M said that a monitor is in charge of an activity. He said that there are times when interns are expected to go into the water. He said that there was a situation when a girl with cardiac issue fell head down into the water. If anything happens, he needs to contact the University. The minute the Complainant’s incident happened, he emailed the University (on Monday morning).

Mr M said that he had no problem with the Complainant, but he knew that the students go out, they do not sleep enough. He knew it would be an issue, but the University asked him to give her a chance.

He said that he could not make a decision on the spot, he talked to the University, the University said that he must send her home. Then he had a meeting with the Complainant. The Complainant was treated differently to Ms E because Ms E would get a warning before she fainted.

Mr M said that he never bullied anyone. He said that if the Complainant’s doctor or the University signed a paper that she could stay, he would let her. He said that he would have loved to speak with the Complainant’s father. He spoke with Ms E’s mother, and they reached some sort of agreement.

Mr M said that he had to go through a review with the University. They arranged a meeting to decide whether the University could continue its cooperation with him. They decided that they did. The Respondent is the only company that takes so many students.

Mr M said that he did not know who the Head of Humanities referred to by the Complainant’s father was.

Mr M asked the hearing to imagine what would be if the Complainant had another seizure in front of the children.

In cross-examination Mr M confirmed that if a student with epilepsy applied now for co-op, they would not be accepted for safety reasons not because of epilepsy.

It was put to Mr M that if he is unwilling to take someone on because of epilepsy, that is discrimination. Mr M disagreed. He confirmed that he found out about the Complainant’s epilepsy after she was accepted, and he was reluctant to take the Complainant on because of her illness.

Mr M confirmed that he never spoke with the Complainant’s doctor.

Mr M said that he did not know how the Complainant did during the two weeks of training. He spoke to people afterward and was told that she was OK. He was not sure whether the Complainant got in the water or not.  He confirmed that when children are in the water, some might stay in the beach and some monitors stay with them, their job is then on the land.

Mr M said that he checks that all monitors can swim. He said that sometimes they lie even if they don’t swim but they would not lose their job if they couldn’t swim. He said that the Complainant would not be safe on the land either.

Mr M said that the Complainant could be a danger to others if she had a seizure and kids could see it. It was put to Mr M that the Complainant could have been accommodated, she could have stayed out of water. Mr M said that she could not stay in the program, that it was a health and safety issue. If he had guarantees from a doctor that she would not have another seizure, then maybe.

With regards to horse riding, it was put to Mr M that the Complainant never was on the horse, there was no requirement to do so. Mr M agreed but said that she would be “around horses” and horses are not safe in general.

With regards to the rock climbing, it was put to Mr M that the monitors were at the bottom by the net, her safety would not be at risk there. Mr M disagreed, he said that it was not because of her condition but because a health and safety reason. He said the “we all know what could happen to her”. Mr M said that the Complainant had a seizure on Saturday morning, probably after going out on Friday evening.

Mr M agreed that it was incorrect for him to say that he gave the Complainant a day off on Monday because of the incident. It was her scheduled day off, she knew on Friday that her day off was Monday and then she worked on Tuesday and Wednesday as normal. 

Mr M said that he records all his meetings with students. He said that he was instructed to do so by the University as there have been accusation previously. He said that he did not offer the Complainant to have a witness as she was there with Ms E, they were witnesses for each other. He agreed that Ms E was not a witness of the Complainant’s choosing.

Mr M confirmed that he did not want responsibility for an epileptic seizure and potential injury. He agreed that he requested indemnity, someone who would take 100% responsibility if anything happened to the Complainant.

Mr M confirmed that he told the Complainant to go home. When asked if he made any attempt to adjust her activities, he said that he could not guarantee her safety. It was put to Mr M that the Respondent’s submission said that “we discussed how to adjust activities” but it did not happen. Mr M replied that the whole situation was unsafe. Mr M said that his decision was to send the Complainant home and the University agreed. He did not dispute that he had no record of the University agreeing with this decision.

In redress, Mr M said that the doctor who issued the letter for the Complainant knew her. However, he knew the environment she would be in. He said that when the University told him about the Complainant’s epilepsy and when he got the doctor’s letter, he told the University that students go out and party. He said that that was exactly what happened.

Questions from the Adjudication Officer

Mr M confirmed that the Complainant was off on Monday after the incident as part of her normal roster. She worked as normal on Tuesday and Wednesday.

Mr M confirmed that it is not compulsory for the monitors to be able to swim.

Mr M confirmed that he did not ask the Complainant what could be done to accommodate her. He requested a letter from her doctor stating that they would take full responsibility if something happened to the Complainant. Mr M confirmed that he is not a medical doctor. He confirmed that he did not consult the Complainant or a doctor with regards to the Complainant’s disability.

The Complainant asserts discrimination in the provision of services, the ceasing of the provision of a co-operative placement and failure to provide reasonable accommodation for the Complainant’s disability in contravention of the Equal Status Act, on the ground of her disability. It is not disputed that the Complainant was fully compliant with section 21 of the Act with regard to proper notification of the Respondent. It was also not in dispute that the Complainant suffers from a disability, namely epilepsy.

The Equal Status Act, in its relevant part in relation to discrimination provides at section 3

3.—

(1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Discrimination on ground of disability.

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

Section 5 (1) of the Act prohibits discrimination in the following terms: -

“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 burden of proof is described at Section 38A of the Act where it states:

“Where in any proceeding’s 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…”

The test for what constitutes a presumption of discrimination has been set out in several decisions of the Labour Court, in particular, in Southern Health Board v Teresa Mitchell [2001] E.L.R. 201 and Valpeters v Melbury Developments Limited [2010] 21 E.L.R. 64. In the latter case at p.68, the Labour Court stated that:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

Interpretation of the Act

In the Supreme Court in Kim Cahill v Minister for Education and Science 2017 IESC 29, McMenamin J stated at paragraph 45: -

“The Act of 2000 is not always easy to construe. However, its long title conveys clearly that the statute was intended to be a statute “to promote equality”, to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and “remedying”, certain acts of discrimination, and other lawful activities. To my mind, this recital can only lead to the conclusion that the provisions in question must, under the constitutional provision referred to, be treated as being elements of remedial social legislation. Being remedial in nature therefore, the Court is permitted to adopt a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas… the Act of 2005 sets out that a purposive interpretation is open to a court in circumstances where a literal interpretation would, inter alia, “fail to reflect the plain intention of the Oireachtas” (see s.5(1)(b) of the Interpretation Act, 2005). In my view, the remedial intent is discernible from the Act itself; any other approach to these sections would not reflect the intention of the legislature.”

In respect of the duty to provide reasonable accommodation under section 4 of the Act, McMenamin J stated at para 58: -

“The duty addressed under s.4 differs from that under s.3, in that s.4 deals with obligations to adjust rules or standards, or policies, to meet the specific needs of people who are covered by a protected ground: in this case, disability.” 

At paras 62-63, he stated:

“In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service… The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element, (which does not arise in this case), but second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient.”

In the Court of Appeal in the case of Smith v The Office of the Ombudsman & Others [2022] IECA 99, the Court confirmed that the Act and the regime provided thereunder were: -

“processes put in place by the Oireachtas to root out discriminatory practices and to provide redress to those affected by such practices where they are truly warranted.”

First, I must consider whether the Complainant has succeeded in establishing a prima facie case of discrimination. In order to do so, the Complainant must satisfy three criteria in relation to her complaints. She must (1) establish that she is covered by a discriminatory ground (in this case that she has a disability); (2) it must be established that the specific treatment alleged by the Complainant actually occurred and (3) there must be evidence that the treatment received by the Complainant was less favourable than the treatment someone who did not have a disability (or had a different disability) would have received in similar circumstances.

The material facts of this case were not in dispute. It was not disputed that the Complainant has a disability within the ambit of the Equal Status Act. It was not disputed that the Respondent was providing a co-operative experience for the students at the named University. The Respondent provided the students with board and lodgings. There was also no dispute that the Complainant commenced her co-operative placement with the Respondent on 21 February 2024 and that, following an epileptic seizure on 6 April 2024, the Respondent decided to terminate her placement on 11 April 2024.

The Complainant adduced evidence, which was uncontested by the Respondent, that she has epilepsy. I am satisfied that this condition constitutes a disability within the meaning of section 2 of the Equal Status Acts. Therefore, the Complainant has satisfied the first part of the test identified above.

In relation to the second part of the test, I find that the Complainant’s co-operative placement was terminated as a result of her having an epileptic seizure.

The final issue that I must consider in order to decide if the Complainant has established a prima facie case of discrimination is whether the specific treatment received by her on the material date in question amounted to less favourable treatment on the grounds of her disability. Therefore, it is necessary for the Complainant to establish that there was a direct connection between the specific treatment to which she was subjected and the fact of her disability. There was no dispute that the Complainant’s placement was terminated as a direct result of her having suffered from an epileptic seizure. Having regard to the totality of the evidence adduced, I find that the treatment of the Complainant was directly connected to her disability.

In the circumstances, I find that the Complainant has established a prima facie case of discrimination on the grounds of disability contrary to the Equal Status Acts.

The Respondent asserted that the termination of the Complainant’s placement was due to health and safety concerns and not due to her disability. I cannot accept this explanation. It is clear that the Respondent’s decision to terminate the Complainant’s placement was directly linked to the Complainant’s disability and the seizure she suffered. The Respondent conceded that it did not conduct any inquiry or consultation with regards to her disability. The Respondent did not conduct a risk assessment or any health and safety inquiry. Other than statements such as what if the Complainant fell in front of the kids, the Respondent did not provide any credible evidence to support its assertion that the decision to terminate the Complainant’s placement was due to any other reason that her disability.

Having regard to the foregoing and based on the totality of the evidence adduced in the present case, I do not accept the veracity of the reasons propounded by the Respondent for the termination of the Complainant’s placement.

Accordingly, I find that the Complainant has established a primafacie case of discrimination on the disability ground in terms of the decision to terminate her placement and that the Respondent has failed to rebut the inference of discrimination so raised.

I, therefore, find that she was treated less favourable than a person without a disability or with a different disability would be. The Respondent discriminated against the Complainant on the disability ground contrary to sections 3 and 5 of the Act in relation to the provision of a service.

Reasonable accommodation

Reasonable accommodation means the measures that need to be taken to enable a person with a disability to use a service. The Act requires those selling goods or providing services to “do all that is reasonable”, to provide reasonable accommodation or special treatment or facilities where without these it would be impossible or unduly difficult for a person with a disability to avail of the goods and services, unless this would give rise to more than a nominal cost.

In deciding whether the Respondent failed to provide reasonable accommodation for the Complainant, I note that in the Supreme Court Judgement of Kim Cahill v Minister for Education and Science 2017 IESC 29, it was stated that the Equal Status Act should be treated as being “remedial social legislation” aimed at levelling the playing field and allowing the Court to “adopt a broad generous purposive approach, in order to identify and give effect to the plain intention of the Oireachtas”.

It was further stated that the limits of reasonable accommodation:

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

 McMenamin J went on to state that,

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

It was not disputed that the Respondent had knowledge of the Complainant’s disability. In Maguire v Bob’s New and Deli DEC-S2004-025 it was held that: “a service provider cannot be deemed to be providing “reasonable accommodation” unless they have taken proper account of the needs and views expressed by the person with the disability, who obviously had [firsthand] knowledge of their condition. “

On the basis what was put before me, I cannot find that the Respondent engaged with the Complainant in a meaningful way, if at all. The Respondent, having been made aware of the Complainant’s disability, made no effort to inquire as to what would her needs or requirements be. While the Complainant managed to remain in her placement for some 6 weeks navigating the activities she was not comfortable to participate in, no effort was made by the Respondent to attempt to adjust her duties with a view to assisting her with the completion of her placement. Furthermore, when the Respondent became aware that the Complainant had an epileptic seizure, it totally failed to consult or engage with the Complainant when it was contemplating the decision to terminate her placement. Accordingly, I find that the Respondent failed in its obligation under section 4 of the Acts to do all that was reasonable to accommodate the needs of the Complainant as a person with a disability in the circumstances of the present case.

The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is in line with the maximum award available in District Court contract cases per Section 27(2). In assessing compensation, I have given consideration to the effect that the discriminatory treatment has had on the Complainant.

Having regard to all the circumstances and pursuant to Section 27(1)(a), I deem it appropriate to order the Respondent to pay €10,000 to the Complainant for the effects of the discrimination. 

The Complainant alleges that she was dismissed for a discriminatory reason or for opposing discrimination.

The Respondent rejects the claim.

The preliminary matter of the Complainant’s employment status with the Respondent is addressed above. I have found that the Complainant was not an employee of the Respondent, as asserted.

In light of my finding on the preliminary matter of the status of the Complainant’s employment, I declare this complaint to be not well founded.

The Complainant alleges that she was dismissed for a discriminatory reason or for opposing discrimination. The Complainant confirmed that this claim is a duplicate of CA-00063733-003 above.

The Respondent rejects the claim.

The preliminary matter of the Complainant’s employment status with the Respondent is addressed above. I have found that the Complainant was not an employee of the Respondent, as asserted.

In light of my finding on the preliminary matter of the status of the Complainant’s employment, I declare this complaint to be not well founded.

Disability discrimination – failure to provide reasonable accommodation