Complainant

Respondent

Parties

Robert  Flynn

West Wood Club Company Limited By Guarantee

Complainant

Respondent

Representatives

Andrew Murnaghan KM Solicitors LLP

Peter Duff Peter Duff & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059659-001

27/10/2023

The Complainant is a member of the public.  The Respondent is a Gym/Health and Fitness Club.

The complainant lodged a complaint under the Equal Status Act which was received by the WRC on 27 October 2023. The Complaint Form stated that the Complainant had notified the Respondent by ES1 Form on 11 July 2023 but had not received a reply by way of an ES2 Form. The Complainant submits that he was discriminated because of his disability, the most recent date of discrimination is stated as 15 May 2023.

In his Complaint Form the Complainant alleges that he was discriminated against due to a failure to provide him with reasonable accommodation; he was discriminated against in the provision of goods or services; that he was discriminated against in that he was victimised.

The Respondent denies that Complainant was subjected to discrimination on the grounds of disability by the Respondent at any time. The Respondent denies that there was a failure to make reasonable accommodation for the Complainant in the provision of showering facilities or otherwise as alleged.

The Complainant provided a written submission.

By way of background the Complainant submits that he joined the Respondent’s gym in or around March 2023. The Complainant is a person with a disability, having had one leg amputated below the knee.

The Complainant submits that prior to taking out membership he checked with the staff as to whether they could provide a shower which he could use, given his disability. The Complainant was informed that such a facility would be available to him.

Upon using the shower at the gym, the Complainant discovered that the facilities provided were seriously inadequate and impossible for him to use. He suggested to staff how the shower could be adapted to accommodate his needs. The Complainant submits that he was met with a dismissive response from management when raised this issue with management. He was embarrassed and distressed at this dismissive attitude.

The Complainant submits that he sought a meeting with the manager of the gym, however she failed to attend at the appointed time and when she did, she did not meet with the Complainant.

The Complainant submits that his membership of the gym was unilaterally cancelled by the Respondent in response to him raising concerns regarding access for people with a disability. The Complainant’s membership was terminated by way of a letter dated 15 May 2023, which gave no explanation as to why his membership was being terminated. The complainant submits that he was shocked to r4eceive this correspondence.

The Complainant wrote to the Respondent by way of a letter dated 20 May 2023, seeking an explanation for his expulsion from the gym and the details of the terms and conditions of membership pursuant to his expulsion. In response he received a letter with the said terms and conditions, however, the Respondent did not provide an explanation as to how the Complainant was alleged to have breached same.

The Complainant issued an ES1 Form to the Respondent on 10 July 2023, setting out his complaint. No response was received to the ES1 Form.

The Complainant submits that he suffered significant distress and embarrassment arising from the actions of the Respondent.

Mr Flynn, the Complainant, gave evidence on Oath at the hearing held on 22 October 2024.

Mr Flynn stated that he had the lower part of his left leg amputated some five years ago. His disability affects everything he does.  He joined the Respondent’s gym in March 2023, to exercise and to be able shower properly.  When he first went to the gym, he was shown around the facilities including the shower area, although he did not see into the disabled shower properly as someone was using it at the time. He told the staff member who showed him around that he was missing a leg. He paid his membership in full that day.

The Complainant explained that not long after he had joined the gym, he used the disabled shower. On using the shower, he discovered it was not suitable for his needs, and he could not wash himself properly.  He believed he needed a hose attached to the shower in order that he could wash himself properly.  The Complainant mentioned his difficulty to a member of staff (Ms Nicole Mooney). The Complainant stated that he was never rude, never vulgar, never aggressive in his dealings with Ms Mooney.  Ms Mooney told him that she was not the person he needed to talk to about the shower problem.

The following day he spoke with the manager (Ms Daphne Kearney), he was either rude, vulgar, or unpleasant when he spoke with her.  He said she told him that other disabled members use the facility, and they had not raised any issues. The Complainant told her he needed a hose to wash his “bits and pieces”. He got no response from the manager on this suggestion.

The Complainant stated that he had tried to meet the manager, but she dealt with him in an offhand way.

The Complainant said he was disgusted when he received a letter dated 15 May 2023 terminating his membership. Up to that time no staff member of the gym had said he had been rude or vulgar or aggressive in his dealings with them. He was given no reason why his membership was being ended.

The Complainant stated that all he wanted was that a hose attached to the shower, nothing more.

In response to questions put to him in cross examination, the Complainant denied he had intended to be embarrassing to female staff.  He denied he had used the term “ass” when talking to staff; “I said bits and pieces.”  He denied he had laughed while he pointed to his backside when talking to a female member of staff. He denied he had been vulgar and had been “passive aggressive”, in his dealings with female staff members. He denied he had spoken to anyone in the gym in a derogatory manner.

When it was put to the Complainant that the reason his membership was terminated was because he had been rude, the Complainant stated this was wrong, that he was not rude at all.

In closing, the Complainant’s Representative put forward that in this case it is agreed by the parties that the Complainant has a disability and that his membership of the gym was terminated. That in cases under the 2000 Act, the Complainant must first raise a prima facie case and then it is up to the Respondent to prove to the contrary.  In this case, no contemporaneous report was sought on how the shower might be adapted; the estimate provided was for a complex piece of work, yet the builder stated that it could have been done another way. The local handyman was not even sent for to check the shower. No reasonable accommodation was provided by the service provider. The discrimination is the failure of the Respondent to provide reasonable accommodation by provision of a proper shower; the victimisation [termination of membership] was because of raising an issue. There was no mention of rudeness until the matter reached the WRC. It is noted that the Complainant’s ES 1 Form was not replied to by the Respondent.  In conclusion, the Complainant believes there were two separate acts: one of discrimination and one of victimisation.

The Respondent provided a written submission.

The Respondent accepts that the Complainant was a customer at their Sandymount gym and that he has a disability.

The Respondent denies that the Complainant was subjected to discrimination on the grounds of his disability by them at any time.  Any allegation of harassment made by the Complainant against the Respondent is also denied.

The Respondent denies that they failed to make reasonable accommodation for the Complainant in the provision of suitable showering facilities or otherwise.

The Respondent submits that the Complainant did not ask specifically about showers before joining the Club. He was given a tour of the Sandymount facilities and was shown the showers, including the disabled showers, before he joined as a member. He made no comment to indicate that the showers were unsuited to his needs. No promise was made to the Complainant at that time or subsequently that a hose attachment would be fitted to the disabled shower.

The Respondent does not accept that the showers were “seriously inadequate and impossible for the [Complainant] to use.” The Respondent has members with similar disability to the Complainant’s and no complaints have been made by any of them as to the unsuitability of the showers to their needs.

The Respondent denies that staff were dismissive of the Complainant’s concerns. The Respondent submits that the Complainant’s complaints to staff were voiced and worded in such a manner as to cause embarrassment to staff.

The Respondent agrees that the Complainant’s membership was unilaterally terminated because of the persistently rude and inappropriate way he spoke to the staff in the gym.

The Respondent accepts, as per policy, that the Complainant was not given a reason as to why his membership was terminated.

The Respondent’s deny that the Complainant was victimised in any way.  The Respondent submits that the Complainant’s membership was terminated solely because of his behaviour towards staff.  Any person without a disability who behaved as the Complainant did towards the Respondent’s employees would also have had his or her membership terminated.

A Mr Zach Rajcevic gave evidence on oath at the hearing.

Mr Rajcevic stated that he had first met the Complainant when he, the Complainant, came to the gym and asked to be shown around. The Complainant wanted a gym where he could get a shower. Mr Rajcevic said he brought the Complainant to the locker room and showed him the shower designated for people with disabilities. The shower was not in use at the time. He showed the Complainant how the shower worked; the Complainant was ok with the shower. They continued looking at the rest of the facilities. The witness stated that the Complainant had shown him his leg, so he was aware of his disability. They then went back to the office where the Complainant paid €100, saying he would pay the remainder later.

Mr Rajcevic stated that a few days later the Complainant came to him and said that he, Mr Rajcecvic had promised him that he would get a hose put in the disabled shower, he had not promised to do this and told the Complainant that if he was not happy, he could get a full refund. The Complainant was not rude or aggressive towards Mr Rajcevic during this interaction.

In response to questions put to him in cross examination, Mr Rajcevic was adamant that he had shown the disabled shower to the Complainant [on the day he showed him around the gym]. Mr Rajcevic stated that the Complainant had been polite when they spoke, that he had not been rude to him. Regarding a statement he was asked to compile about what had happened between him and the Complainant, Mr Rajcevic stated that he had submitted his statement on 2 August 2023, after the Complainant’s membership had been terminated.

Ms Daphne Kearney, General Manager of the gym, gave evidence on oath at the hearing. Ms Kearney stated that she had worked in the Sandymount gym for some 17 years.

Ms Kearney stated that the only conversation she had with the Complainant took place on his first day using the gym, when he came to her and said that he needed a hose in the shower to “wash his arse”, while he made a “whippy motion.” He said he needed a hoist, or he would have to “arse” himself into the pool.  Ms Kearney stated the Complainant referred to the Disability Act during this conversation.

Ms Kearney stated that she told the Complainant to leave it with her; she had intended to speak with Ms Karen Polly (Managing Director) about the matter.  Ms Polly said it was not possible for her to go out and get a hose. Ms Kearney said she was thinking of ending his membership because of his vulgarity.  She said he was not aggressive, he was passive aggressive, that he tried to make her uncomfortable about his disability. Ms Kearney stated that she spoke with other members of the gym team about the Complainant’s behaviour.  She stated that the reason the Complainant’s membership was terminated was due to his manner and tone and particularly because of the way he spoke to the staff.

In response to questions put to her in cross examination, Ms Kearney stated that in her only conversation with the Complainant she had said to him to, “leave it with me”, and she then went and spoke to Ms Polly about the Complainant’s request.  When asked if Ms Polly is a plumber, Ms Kearney replied that she was not. When asked whether she (Ms Polly) was in any better position to comment on plumbing matters than Ms Kearney herself, Ms Kearney replied that she, Ms Polly, knows the place well, having worked there before.  Ms Kearney stated that Ms Polly had told her that it was just not possible [to adapt the shower as the Complainant wanted].

In response to questions put to her, Ms Kearney stated that Ms Polly had not visited the site.  Ms Kearney had not sent a maintenance man to check the shower. Ms Kearney stated it was she who instructed Mr Rajcevic to tell the Complainant that the shower could not be adapted. Ms Kearney stated that it is policy not to give reasons to people whose membership is being terminated as they can get aggressive. She agreed the statements from staff were only looked for after the Complainant’s membership had been terminated.

Ms Kearney stated that the Complainant’s membership was terminated because of his manner and tone, and the vulgar way in which he gestured. She had endured it as a once off, but when she heard from others on the team it was too much.

Ms Kearney could not explain why the Complainant did not receive a reply to the ES1 Form he sent to the Respondent.

Mr David Leach gave evidence on oath at the hearing.  Mr Leach gave evidence on an estimate of costs he had completed for upgrading the shower area in the gym including the installation of a new disabled shower.  The estimate, including VAT, came to €43,740.50. Mr Leach stated that he had suggested that an attachment could have been attached but that would necessitate the removal of the whole unit to put on a hose. In cross examination, Mr Leach agreed that he had been asked to estimate for making the shower compliant with legislation not for just attaching a hose. The witness estimated the cost of changing the unit and putting in one with a hose would be half the cost of the estimate referred to above. 

Ms Nicole Mooney gave evidence on oath at the hearing. Ms Mooney explained that she was a receptionist at the gym. She stated that the Complainant had asked her about the shower facility and a hoist, that he had said that he needed something to clean his body parts and had used the phrase his “bits and pieces.” Ms Mooney stated that he had shouted at one stage but that he was trying to be nice. Another time he had made her feel uncomfortable.  In retrospect Ms Mooney believed the Complainant had been passive aggressive towards her.

Ms Valerie Stavila gave evidence on oath at the hearing. Ms Stavila stated that she had worked as a receptionist in the gym for three years.

Regarding her interactions with the Complainant, Ms Stavila stated that at the outset things had been fine and the Complainant seemed happy with the facilities. However, after a while he began to demand another type of shower.   She stated that he became vulgar, pointing to his body parts and asking how he was supposed to wash his arse.  This happened twice or three times. Ms Stavila said these episodes made her feel uncomfortable.  Ms Stavila raised the matter with the General Manager, Ms Kearney.

Ms Stavila confirmed that she had no role in the decision to end the Complainant’s membership. She confirmed she was asked for a statement about the matter at a later stage, not straight away.

Ms Stavila stated that the Complainant was passive aggressive in his dealings with her and made her feel uncomfortable, particularly when it was a man saying it to a woman, it was not nice.

Mr Kieron Flood, an architect, gave evidence at the hearing.  Mr Flood stated that he had investigated the installation of new shower facilities in the gym and he agreed with the estimate provided by Mr Leach. He also stated that other considerations would have to come into play if works were being undertaken.  He stated that he would not be happy with the installation of a simple hose as a solution to the problems that the Complainant stated he was suffering.

In closing, the Respondent’s Representative stated that the reason the Complainant’s membership was terminated was simply because of his behaviour towards the female staff of the gym. The Respondent has a policy of zero tolerance of poor behaviour towards staff and this policy is strictly adhered to by the Respondent.

Regarding Reasonable Accommodation the Respondent submits that the use of the word, “nominal” in S.4.2 of the Act allows for a low bar for a Respondent. As long as the expense is nominal.  If reasonable accommodation could have been provided as simply as portrayed by the Complainant, it would have been done. However, the costs as estimated would have been more than nominal; to do what the Complainant was asking to do was more than nominal. The only party who can be clear on the motivation to terminate the Complainant’s membership are those who made that decision; it was done to protect the female staff so therefore there was no discrimination.

Equal Status Act – Service

The Equal Status Act defines ‘service’ as ‘a service or facility of any nature which is available to the public generally or a section of the public’ and includes ‘a professional or trade service’. Having considered the evidence and from personal knowledge, I find that the service provided by the Respondent is a service within the ambit of the Equal Status Act.

I accept the Complainant is a person with a disability.  This was accepted by the Respondent.

In brief, the Complainant firstly alleges that the Respondent failed to adapt the shower facilities in the gym so he could wash himself properly, and that this is a failure to provide “reasonable accommodation”, amounting to discrimination.  Secondly, the Complainant alleges that the Respondent’s decision to terminate his gym membership was taken because he raised the issue of the shower facilities and this amounts to victimisation. 

Alleged Discrimination

In this case I am obliged to establish firstly if the Respondent discriminated against the Complainant on grounds of his disability contrary to Sections 3(2)(g) the Equal Status Act, 2000, as amended, in that the Complainant was not provided with suitable shower facilities and that the Respondent failed in their duty to provide reasonable accommodation.

In any such claim the first legal issue is the requirement for the Complainant to establish a prima facie case, in other words to establish a good factual basis on which to proceed. The Complainant is required to establish facts that may give rise to an inference of discrimination (the ‘prima facie’ case) and the burden of proof then shifts to the Respondent to disprove the inference of discrimination.

I must now decide on whether the Complainant has succeeded establishing a prima facie case of discrimination.

Section 3.Refers:

(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.

(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”),

Section 38 A (1) Refers:

Burden of proof.

38A.—(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

 (3) Where, in any proceedings arising from a reference of a matter by the Authority to the [ Director of the Workplace Relations Commission] under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

Section 4 of the Equal Status Act provides:

‘(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.

I find the Complainant has established a prima facie case of discrimination and that case has not been rebutted by the Respondent.

From the evidence adduced at the hearing it is clear the Respondent was made aware that the shower facilities in the gym were not adequate for the Complainant to wash himself properly. He brought this to the attention of a number of staff members who passed the matter up the line. However, despite being aware of this the Respondent did not carry out even a cursory investigation into whether the shower could be adapted to meet the Complainant’s needs. No effort was put into assessing whether a reasonable accommodation could be made to meet the Complainant’s needs. No evaluation was carried out of the Complainant’s needs and the Respondent’s capacity to adapt the shower.  A mere phone call between the General Manager and a Company Director, neither of whom are plumbers, was enough to decide the matter.  Arguments about the costs of any adaptation and whether these would be nominal or not, is purely academic as the Complainant’s membership had already been terminated before any real assessment was undertaken. In situations such as in this case it behoves a service provider to carry out a genuine assessment to see if some accommodation can be made that is not prohibitive from a cost perspective; this did not happen and so I find the Complainant was discriminated against.

 Victimisation

The Complainant alleges that his membership was terminated because he complained about the shower facilities. The Respondent maintains that the reason the Complainant’s membership was terminated was because he was rude to staff, in particular to female staff. 

I must now decide on whether the Complainant was victimised against by the Respondent when they made the decision to terminate his membership of the gym.

Section 3 subsection 1 defines discrimination for the purpose of the Equal Status Act, 2000. The subsection sets out the ground on which discrimination is prohibited and this includes in (j)(v) victimisation. This ground is intended to prevent retaliation against a person who has invoked or assisted in invoking rights under this Act.

From the evidence adduced I find the Complainant was victimised against. Although some of the staff complained of feeling “uncomfortable” when speaking with the Complainant, it did not seem he was rude or abusive in these interactions. He may at times have used less than delicate phraseology, but no formal complaints were made by staff about his behaviour. No investigation was undertaken into his behaviour until well after his membership had been terminated.  I believe that but for him raising the shower issue and the difficulties he was experiencing, his membership would not have been terminated as it was at the time.   He was retaliated against for invoking his rights under the Act.

The fact that the Complainant was not given any explanation for his membership being terminated and that he received no response to his ES 1 Form, add credence to the contention that he was the subject of victimisation because he sought a reasonable accommodation for his needs as a person with a disability.

I decide that the Complainant was discriminated against on grounds of disability, and the Respondent shall pay to the complainant redress of €5,000 for this. I also find he suffered victimisation at the hands of the Respondent, and I award him an additional €3,000 for this. I order a course of action that the Respondent re-evaluate the shower facilities in the gym and do whatever is required to ensure compliance with the Equal Status Act.

Discrimination, disability, reasonable accommodation, victimisation.