Complainant

Respondent

Complainant

Respondent

Anonymised Parties

A Child through his next friend, his Mother

Childcare Facility

Representatives

Self-Represented

Mr. John G. Murphy, John A. Sinnott & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00054476-001

12/01/2023

On 9th December 2022, the Complainant, via his mother, issued form ES1 to the Respondent. This form alleged that the Respondent discriminated against him by refusing to provide him with childcare service once he received an ASD diagnosis. By response dated 9th January 2023, the Respondent denied the allegations stating that they did not refuse to provide a service to him, but that they complied with an expert report, which expressly recommended that the Complainant be placed in a specialised leaning environment. Thereafter, on 12th January 2023, the Complainant’s mother referred the present complaint to the Commission. Herein, she alleged that the Respondent had discriminated against her son on the grounds of disability. In particular, the Complainant’s mother submitted that the Respondent failed to provide a reasonable accommodation that might allow him to continue to avail of their services.

A hearing in relation to this matter was convened for, and finalised on, 3rd July 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Both parties issued extensive submissions in advance of the hearing, with these submissions being expanded upon by oral argument. The Complainant’s mother gave evidence in support of the complaint, while the Operations Manager gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, it was agreed that the notification requirements imposed by the Act had been complied with. The title of the Complainant was also amended to reflect the minor through his next friend, his mother. No further issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. In circumstances whereby the Complainant is a minor, I have exercised my authority to anonymise the decision in its published form.

In evidence, the Complainant’s mother stated that her young child attended the Respondent’s childcare facility. She stated that her child enjoyed his attendance there and she was extremely satisfied with his standard of care whilst he was enrolled.

During the period of the Complainant’s enrolment, he was awaiting a report from a clinical educational psychologist. This report issued in April 2022 and recommended that the Complainant be placed in an a specialised class setting. The Complainant’s mother forwarded this report to the Respondent shortly thereafter. On 3rd May 2022, the Complainant’s mother met with the Operations Manager, the Inclusion Leader and the Room Leader to discuss the matter. During this meeting, the Complainant’s mother was informed that her son would finish up with the Respondent in June, when the premises closed for two weeks in the summer. The Respondent stated that the summer months thereafter are the period whereby children transition to ECCE class. The Complainant’s mother advised that the Complainant did not have a place secured in a special education unit, and that the position, as it existed at that time, was that he would commence the ECCE year with the Respondent. The members of management of the Respondent refused to listen to this, and simply repeated that the Complainant’s enrolment would finalise in the coming June.

On 4th May, the Complainant issued a follow-up email re-stating that the Complainant had not secured a place for the forthcoming September and requested, again, that the Complainant be permitted to remain with the Respondent. This request was again denied by the Respondent. As the Complainant’s mother was concerned that she would have no childcare arrangement in the coming weeks, she sought to address this matter in person on 3rd June. On this occasion management of the Respondent advised that there was no point in having a meeting as the matter had already been decided.

By submission, the Complainant’s mother stated that the sole reason for the Respondent refusal of service to her child was the fact that he was diagnosed as neurodivergent. She stated that the Respondent appeared perfectly happy to provide services until such a time as they became aware of this diagnosis, at which point they dismissed him from their service and refused to discuss the matter with the Complainant.

From the outset, the Respondent denied that they discriminated against the Complainant in any manner.

On the Complainant’s enrolment in the service, the Complainant’s mother stated that she suspected that her son was neurodivergent and was awaiting an assessment in that regard. At this time, the Respondent advised that the Complainant was welcome to the service and commenced his enrolment on 4th October 2021.

In April 2022, the Complainant’s mother forwarded correspondence confirming a diagnosis of autism spectrum disorder. This report stated that the Complainant should be enrolled in a special education unit that might “best suit his current needs”. Following receipt of the same, a meeting was called with the Complainant’s mother to discuss the assessment. During this meeting, the Complainant’s mother advised that she had secured a position for him in an specialised preschool from September 2022. At this meeting, it was explained that the Complainant’s cohort of students would be transitioning to the ECCE room. In this regard, they stated that, in their view, the Complainant required a very structered routine and a familiar environment. In this respect, they stated that it was in the Complainant’s best interests to finish up with the service just prior to the break. In this regard, the inclusion officer of the Respondent stated that this new room contained resources that are made of small parts and could constitute a choking hazard for the Complainant.

By submission, the Respondent denied refusing the Complainant service based on his diagnosis. In this regard they submitted that they were happy to take on the Complainant when made aware of the suspected issues and provided him with care for the duration of his enrolment. They further submitted that their recommendation thereafter was made in the best interests of the Complainant and on foot of the report issued to them by his mother.  

The present matter involves an allegation that the Respondent refused to provide a Complainant with a service based on his disability. In this regard, the Complainant, through his mother, alleged that once the Respondent became aware of the Complainant’s diagnosis, they gave notice of the discontinuance of their service in the days following receipt of the same. In denying this allegation, the Respondent stated that they made the decision to discontinue the service based on the findings in the report, and the best interests of the child.

Section 3(1) provides that discrimination occurs,

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

Section 3(2)(g) lists “disability” as one such ground.

Section 2 of the Act defines “service” as follows:

“a service or facility of any nature which is available to the public generally or a section of the public…”

Section 4 of the Equal Status Act sets out the obligations on providers of a service to reasonably accommodate persons with a disability. In this regard, Sections 4(1) and (2) of the Act provide as follows:

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

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

In the matter of Kim Cahill v Department of Education and Science, 2017 IESC 29, McMenamin J stated that,

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

McMenamin J went on to state that,

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

Regarding the instant case, a number of core issues are not in dispute. It is not disputed that the Respondent provided a service to the Complainant, nor is it disputed that the Complainant was diagnosed with a condition that, under the wide definition of the present Act, constitutes a “disability”. What is at issue, is the allegation that the Respondent discontinued their service without doing all that is reasonable to accommodate his needs as a person with a disability.

In this regard, it is noted that the Respondent was on notice of the Complainant’s additional needs from the outset of their engagement. On the initial enrolment form, the Complainant’s mother stated that she suspected that he might have issues regarding neurodiversity, with the attendant additional needs the same requires. Thereafter, it is common case the Respondent met those needs, with the Complainant’s mother giving evidence as to how happy her child was at the service and how satisfied she was with the standard of care he was receiving.

Unfortunately, matters became more complicated with the receipt of the report from the clinical educational psychologist. This report concluded that the Complainant’s needs were such that his best interests would be served by enrolment in a special education unit. In the days following the receipt of this report, the Respondent informed the Complainant’s mother that they agreed with the findings of this report and stated that it would in the Complainant’s best interests to finish his enrolment with the Respondent approximately one month later.

While much of the relevant factual matrix is agreed between the parties, a dispute arises as to whether the Complainant’s mother stated that she had secured a position with an alternative provider for the coming September at this meeting. While I note the direct conflict in relation to the same, it is apparent that the Complainant’s mother sent an email the day following the meeting stating that the Complainant had not, at that time, secured such a place. Nonetheless, as matters transpired, it is apparent that the Complainant did secure such a position in due course.

The evidence of the Respondent was that they agreed with the report issued by the Respondent in that the Complainant’s best interests would be best served by enrolment in a special education unit. While such a position is obviously reasonable, the present dispute arises out of their decision to give notice of their discontinuance of their services following the receipt of the report. In this regard, the evidence of the Complainant’s mother was that whilst she was obviously anxious to secure such a position for the Complainant, such services are in short supply and that the Complainant would continue to require childcare until such a time as a position was secured. The position adopted by the Respondent essentially served to remove him from their care when alternative care had been recommended but not secured. Regarding the Respondent’s rationale for doing so, they suggested that the Complainant found transitions difficult and that his age cohort were to transition to a new room following the summer break. While this may the case, it is apparent that by removing the Complainant from their service, the Complainant would be obliged to undergo a perhaps more significant transition, including his potential removal from childcare altogether. The Respondent has also stated that certain resources in the new room would be unsuitable for the Complainant. In particular, they referred to items that might present a choke hazard in this regard. Again, while this may be the case, it is difficult to reconcile this position with the requirement, set out in Section 4, to do “all that is reasonable” to accommodate the Complainant. In this respect, the potential removal or replacement of certain items in that might cause a choke hazard cannot be said to constitute a particularly onerous accommodation.

In addition to the foregoing, the Complainant’s mother submitted that the decision to remove the Complainant from the service was simply put to her during the meeting of 3rd May. In this regard it is noted that the decision to remove the Complainant appears to have been made prior to this meeting, with the decision being presented to the Complainant’s mother as fait accompli at this time. While the Respondent’s position regarding their lack of expertise in meeting the Complainant’s education needs in the forthcoming ECCE year may well be correct, the fact remains is that this decision was simply communicated to the Complainant’s mother without her input or any substantive engagement. Such a position falls well short of the requirement for engagement between the process provider, and the recipient of a service, as outlined above.

Having regard to the foregoing, I find that he Respondent engaged in prohibited conduct by failing to do all that was reasonable to accommodate the Complainant disability. Having regard to the foregoing, the Complainant’s application succeeds and the complaint is well-founded.

I find that the Respondent has discriminated against the Complainant by failing to do all that was reasonable to accommodate her needs as a person with a disability in accordance with Section 4(1) of the Act.

In circumstances whereby Section 2(1) defines “prohibited conduct” as, “discrimination against…a person in contravention of this Act”. I find that the Respondent has engaged in prohibited conduct within the meaning of the Act.

In this regard, Section 27(1) of the Act (as amended) provides that,

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

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

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

Regarding redress in this instance, given that the parties no longer have a relationship, I find that compensation is the most appropriate form of remedy. In consideration of the totality of evidence present, the Respondent should pay the Complainant the sum of €2,000 in compensation for the breach of the Act.

Reasonable Accommodation, Disability, Education