ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036762
Parties:
| Complainant | Respondent |
Parties | Roxanne Straatheijer | Dr. John Lambert |
Representatives | Susan Doyle SMD Solicitors | M. Fiachra Breathnach BL, M. Elaine O’Sullivan Solr., Matheson Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00048002-001 | 06/01/2022 |
Date of Adjudication Hearing: 08/12/2022 and 21/07/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.
A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form. These matters are not contentious herein.
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination and I have been in a position to hear (where appropriate) interested parties and to consider any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).
Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is being (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified).
It is also noted that discrimination can occur where an apparently neutral provision would put such a person at a particular disadvantage compared with other persons unless the provision can be objectively justified by a legitimate aim. This is Indirect Discrimination and is covered in Section 3(1) (c).
Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration.
In relation to the applicable burden of proof, Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.
Under Section 27(1) of the Act redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO Can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to take a specific course of action to upskill and train up staff. The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is line with the maximum award available in District Court contract cases per Section 27(2). In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.
Section 4(1) deals with the requirement to provide “reasonable accommodation” in the context of disability as follows:
“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.”
Section 4(2) states “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” i.e. the refusal might be reasonable if it gives rise to a cost
Background:
This matter was listed on two separate occasions before the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was always to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 6th of January 2022. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding that date. |
Summary of Complainant’s Case:
Owing to a miscommunication between the Complainant and her Solicitor, the Complainant did not attend the first hearing and nor did anyone else attend on her behalf. In the circumstances, the Complainant was allocated a second hearing date to have her complaint heard. The Complainant did not attend the second hearing date. The Complainant’s Solicitor did however attend the second hearing date. I am satisfied that the Complainant’s partner Mr de also attended to assist in representing the Complainant’s interests. The Complainant’s complaint was set out in the Workplace Relations Complaint Form dated the 6th of January 2022. I have discerned from the complaint form that the Complainant seeks to establish that the Respondent has discriminated against her on the grounds of her disability when he opted not to treat the Complainant online. The complaint herein read as follows: Roxanna Straatheijer (RS) suffers from Lymes disease since 1996. She received treatment in the Netherlands previously. After moving to Ireland, RS sought a local doctor to treat her disease. Her Dutch doctor can still treat her but cannot prescribe intravenous medication or the scans and diagnostics that she sometimes requires. RS’s condition makes it difficult to travel to the Netherlands and COVID-19 has impacted her ability to travel further for obvious reasons. As a result, RS sought an appointment with Dr. John Lambert (JL) who is the only expert in Lymes disease in Ireland in June 2021. Following initial contact by RS’s husband, Maarten de Witt (MW), Dr. Lambert’s office sought up to date blood work and a medical history from RS. This was provided to JL at significant cost to RS on the 29th of June 2021. MW generally contacts medical professionals on behalf of his wife. He explained to JL’s secretary that RS suffers from a number of medical issues and that she may need reasonable accommodations as a result. RS suffers from PTSD and contact with a doctor triggers a traumatic response. She previously experienced trauma in a medical setting and now experiences re-traumatisation as a result of these past events. The longer the contact the more her trauma will be triggered. Any such contact triggers flashbacks and nightmares which continue for several weeks (this constitutes a further disability as covered by the Equal Status Acts 2015). MW explained same to JL’s secretary and to prove this, he played a recording of our client experiencing such flashbacks to this secretary to try and explain the severity of the situation and to help JL understand that RS would require zoom calls and shorter meetings as a result of this disability. MW also explained to JL’s secretary that the damage to his wife's brain includes (but is not limited to) damage to the language centre of the brain. RS has difficulties processing what people say and also with producing language. During a medical consultation she would have great difficulty understanding questions and providing coherent answers. As the consultation would be likely to trigger her PTSD, this would worsen. RS requires time and patience in order to be able to understand what is being communicated to her. For example, she can write answers in an email once she is given the opportunity to read and understand questions being put to her. This issue has been ongoing for 20 years and our client therefore understands that she cannot communicate effectively in a medical setting i.e. in a medical facility, doctors office or hospital. RS believes that JL failed to assess and weigh up the above-mentioned issues and to establish if an alternative method of consultation or treatment might be available in order to treat our client for Lyme disease. Our client’s health insurance covers online medical consultations by zoom or telephone. Several medical professionals in Ireland offer remote consultations to patients, including patients who do not suffer under a disability and both RS and MW, failed to understand why JL could not offer some accommodation to RS given her condition. It was explained to JL’s secretary that RS could attend JL’s clinic to have blood drawn and to periodically monitor the treatment however she is not in a position to attend for appointments longer than a few minutes. Reasonable accommodations should have been offered to enable RS to consult with JL online (both through video chat and email) and which would mean that she would attend at JL’s clinic for short periods for blood work and other consultations where it is absolutely necessary for her to see JL face to face. MW provided JL’s office with a full medical history for RS which set out her history with Lyme disease and her brain damage. He also set out her history of PTSD, and psychiatric illness. This history does not appear to have been taken into account by JL’s office in assessing whether to offer our client reasonable accommodation. RS instructs that she became seriously ill in the year 2000 but her GP did not take this seriously and she did not receive proper medical treatment for sixteen years after the Lyme infection occurred, thus leading to brain damage. RS is very ill and in urgent need of medical care. She was advised to contact your office as you have been described as the foremost specialist in Lyme disease in Ireland. JL’s failure to provide reasonable accommodations to RS has had a detrimental effect upon her by worsening her PTSD and is likely to have further detrimental effects in the future. There has been an increase in flashbacks and nightmares, a feeling of extreme helplessness, and a distrust in people in general. JL’s failure to provide treatment has also had a detrimental effect on RS’s health as she has not received adequate treatment for her disease from a specialist in Ireland. RS’s husband, MW provided JL with an extensive report by a clinical psychologist confirming that RS cannot be in a medical setting for a prolonged period of time and therefore, JL and his servants or agents were aware of her medical history. As a result of JL’s refusal to treat RS or to offer reasonable accommodations or even explore the possibility of same, RS has experienced: 1. Re-traumatisation as a result of further mistreatment by the medical profession 2. Increased flashbacks and nightmares 3. Inadequate medical treatment and care for Lymes disease The Complainant alleges that she was unlawfully discriminated against in the accessing of medical treatment from the Respondent. The Complainant further asserts a reasonable accommodation should have been made. Owing to a miscommunication between the Complainant and her Solicitor, the Complainant did not attend the first hearing and nor did anyone else attend on her behalf. In the circumstances, the Complainant was allocated a second hearing date to have her complaint heard. The Complainant did not attend the second hearing date. The Complainant’s Solicitor did however attend the second hearing date. I am satisfied that the Complainant’s partner Mr de also attended to assist it representing the Complainant’s interests.
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Summary of Respondent’s Case:
The Respondent did attend the first hearing date together with his legal team. I note that the Respondent was disappointed not to meet this allegation head on at that time and was frustrated by the delay between hearing dates. The Respondent was fully represented on both hearing dates and had provided the WRC with a comprehensive Submission towards the end of November 2022 and in advance of the first hearing date hearing date. The Respondent attended personally together with a witness PD – his practice secretary. The Respondent strenuously rejects that there has been any discrimination. The Respondent has always asserted that after: …..further consideration of the Complainant’s request the Respondent was of the view that he could not make an accurate and safe medical diagnosis within the conditions being set by Mr de and as such could not diagnosis and treat the Complainant. and: The duty to accommodate is subject to the test of reasonableness. It is not reasonable to require the Respondent to provide clinical care to the Complainant without having performed the appropriate examinations, assessment, and investigations into the Complainant’s presenting complaints. To provide medical treatment in such circumstances would not be reasonable and ultimately would be placing the Complainant at risk
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Findings and Conclusions:
It is regrettable that the Complainant was not able to attend to prosecute her complaint against the Respondent. I could not afford the Complainant’s partner an opportunity to make the Complainant’s case for her. Once the Respondent’s legal representative indicated that he was strenuously objecting to such a presentation of the Complainant’s evidence, then there was simply no way forward. The Complaint herein must fall for the lack of prosecution. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000. CA-00048002-001 – The Complainant has not attended to give sworn evidence on her own behalf. The Complainant has not established any discrimination in her dealings with the Respondent and the complaint fails.
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Dated: 21st of August 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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