Complainant

Respondent

Parties

Khayyaam  Noordally

Islamic Cultural Centre Ireland

Representatives

  Self-Represented

Ahmed Hissain Ahmed

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056617-001

12/05/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation while the witness for the respondent gave his evidence under oath.  Both parties were offered the opportunity to cross examine the other party.

The respondent objected to the presence of a member of the press attending the hearing, submitting that this was a private matter.  The Adjudicator noted that the Supreme Court has held that hearings of the WRC should be held in public, save where exceptional circumstances warranted a private hearing.  The Adjudicator noted that he did not consider that the circumstances of this complaint were exceptional such as to warrant a private hearing.  The matter proceeded by way of public hearing.

The complainant submitted that his son is a wheelchair user and accordingly the complainant is the holder of a reduced mobility/wheelchair badge for his car.

The complainant submitted that he attempted to access the mosque to celebrate the festival of Eid (21 April 2023) but was refused entry for his vehicle. He submitted that there were wheelchair parking spaces occupied by non-wheelchair users and that there was a wheelchair parking space vacant which he was not allowed to access.

The complainant raised some complaints regarding the qualifications of the security staff and the involvement of the Gardai.

The complainant submitted that he felt humiliated by his treatment and that it amounted to discrimination on the disability ground.

Complainant testimony:

The complainant stated that on the day in question the entry gate to the mosque was half closed and he explained to the security guard that he wished access the wheelchair spaces inside. He was refused access for his car as he was told the grounds were full. He noted that the security guard told a colleague of his to ignore him.

The complainant stated that two of the dedicated disabled parking spaces were full of vehicles that did not have the appropriate permit. He also noted that there was another space which was available near to the playground. The complainant stated that he walked around looking at the cars that were parked there and when he got back, he was met by a second security man and when he asked ‘why did he allow non permit holders to park there’ he was told that was for ERT and that it was none of his business.

The complainant stated that the gardai were called to remove him from the premises and he was humiliated found the whole incident stressful. He noted that one member of the secretariat said to him that he had let his family down. The complainant noted that his son is disabled and that there should be a parking space available for him.

The respondent submitted that it did not discriminate against the complainant at the festival of Eid.  The carpark was already full when the complainant turned up and no-one was allowed vehicular access once the car park was full.

Witness testimony:

The witness for the respondent, who was its CEO, stated that he was saddened to hear what the complainant was saying but noted that usually for the festival of Eid they were about 2500 people present but this year's celebrations brought 5000 people in attendance. He stated that they did their best. He noted that they only had capacity for 10% of the vehicles at the mosque and that they provided these places on first come first serve basis. It was noted that once the gate is closed it is closed for all comers.

The witness noted that the wheelchair accessible spaces may have been blocked, he cannot say otherwise. However, he noted that once a space is occupied it is impossible to remove the vehicle given the level of crowds in place. The witness noted that the places are not normally used by anyone other than wheelchair users and that they have six or seven disabled parking spaces that are occupied on this basis.  The witness stated that on big celebration days such as this, the mosque has arranged with a nearby church and a rugby ground to use there parking facilities.

The witness stated that the complainant parked his car in front of the gate and refused to move it when asked to do so and also noted that he wants to come in simply because he has a disabled child. The witness noted that the guards were already in situ and were not called specifically to deal with the complainant.

The witness stated that nobody was rude to the complainant and then he started taking pictures of everybody. The witness noted that, in relation to permitting access to this vehicle, you cannot ask for the impossible and noted that no one got vehicular access to the grounds after the gates were closed for any reason.

The complainant’s son is a wheelchair user.  The complainant submitted that he was refused entry to the carpark attached to the mosque during the celebrations that took place at Eid.  The complaint submitted that this amounts to discrimination under the Act on the Disability ground.

The witness for the respondent noted that the festival of Eid is one of the busiest times of the year for the Islamic Cultural Centre.  He noted that the parking facilities can only cope with about 10% of the attendees at that time.  He further noted that the Centre arranges for have additional parking in a nearby church and rugby club.

The case before me deals with access to parking spaces rather than absolute access to the Cultural Centre itself.  The respondent, knowing that the parking would be particularly busy arranged for additional parking spaces close by for patrons who wished to celebrate Eid.  These facilities were available to the complainant and his son.  The witness for the respondent pointed out that the car park was closed to all, not simply closed to the complainant, as it was full.  The respondent made alternative arrangements for parking for all.  According to the respondent, once the carpark was full, it was not an easy thing to open the gate, and it was noted that Gardai were already present to assist with traffic management.

The complainant did not say that persons without a disability were permitted entry to the carpark either at the same time or after he tried to access the carpark.  He noted that the carpark was already closed when he arrived and that patrons were being directed to the overflow parking arranged by the respondent.

Section 3 of the Equal Status Act states as follow

Discrimination (general).

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,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Section 4 (1) of the Act deals with the provisions of reasonable accommodation to enable a person with a disability to avail of the service provided.

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.

Having considered the facts of this case that arise from the evidence presented, it is clear that the complainant was refused entry to the carpark because it was already closed.  Therefore, the decision to refuse access to the carpark was not made on the basis of the complainant (or his son’s) disability.

It was open to the complainant to use the reasonable alternative parking provided which would not have been impossible nor unduly difficult as they are in close proximity to the Cultural Centre.  It was also open to the complainant to arrive earlier to avail of the parking in situ.  The festival of Eid is always well attended and is usually accompanied by special traffic arrangements, facilitated by the Gardai.  The complainant as a regular attendee would have been well aware of the necessity for arriving early during the festival celebrations.

Section 38A of the Act deals with the burden of proof and states that “(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

Having regard to the evidence presented to me, I find that the complainant has not established that he was denied a service based on disability, rather the denial was based on the fact that the carpark was closed.   Alternative facilities were made available.  Accordingly, I find that the respondent did not engage in prohibited conduct.

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the respondent did not engage in prohibited conduct.

Equal Status Act – disability ground – no prohibited conduct