The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Equal Status Acts 2000 to 2008
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-118
Board of Laois Independent Living
Association Company Living Ltd.
File No. ES/2005/0205
Date of Issue 18 December 2008
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1) – the gender ground, section 3(2)(a) - the religion ground, section 3(2)(e) – the disability ground, section 3(2)(g) – discrimination on the disability ground, section 4 – Provision of goods and services, section 5(1)
1.1. Mr. George Percy referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004 on 28 June 2005. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts. The investigation under section 25 of the Acts commenced on 16 July 2008. An oral hearing, as part of the investigation, was held in Portlaoise on 16 October 2008.
2.1. The dispute concerns a complaint by Mr Percy (“the complainant”), that he was discriminated against on the grounds of religion, gender and disability by the Board of Laois Independent Living Association Company Living Ltd. (“the respondent”) when it withdrew a personal assistance service from him on 27 December 2004. The complainant has further listed a number of subsequent incidents that are linked with this withdrawal of a service. The respondent was notified on 20 May 2005.
3. Case for the complainant
3.1. The complainant stated that he received a letter from the respondent’s Programme Manager informing him that his personal assistant service had been suspended until an alleged incident which took place on 20th December 2004 had been investigated. The letter also advised the complainant not to contact any personal assistant (PA) associated with the service.
3.2. The complainant had been in receipt of 50 hours of personal assistant hours from the respondent. Ten of these hours were afforded to him as he was the Treasurer of the respondent company. The complainant accepted that he would lose the additional 10 hours when he resigned from this post. However, the sudden removal of his entire PA hours meant that he was unable to go to work or to get around.
3.3. While the complainant was able to sort the matter out a few months later by moving to another service provider, he maintains that the respondent continued to deny him the right to defend himself. He was also without a service for several weeks, causing him and his family a lot of inconvenience and stress. The complainant maintains that the treatment he received was because of his gender as all the staff of the respondent company were female.
3.4. He further contends that the treatment he received was less favourable because he was the only Church of Ireland member receiving a service. He further stated that his sister who at the time of the alleged incident was working as one of his part-time PAs was also let go from her post while his other part –time PA, who is Catholic, was found work elsewhere.
3.5. The complainant also maintains that the treatment he received was less favourable on the disability ground as he was not offered any reasonable accommodation. He maintains that he lost an invaluable service with no notice and without any consultation. He also states that he was given no details of the alleged complaint against him nor an opportunity to defend himself despite the fact that he had asked for such an opportunity on a number of occasions.
4. Case for the respondent
4.1. The respondent company were represented at the hearing by Mr. Frank Kennedy. The Board of Laois Independent Living Association Company Living Ltd was disbanded in 2005 and the service is now operated by Offaly Independent Living Association.
4.2. The respondent’s representative was not in a position to add or dispute any of the issues rising from the complainant’s claim. He stated that he was only in attendance as I had requested him to attend.
5. Conclusions of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. I am not satisfied, on the balance of probabilities, that the complainant has established a prima facie case on the gender ground. I was not presented with any evidence to support this argument. The fact that the staff were women and the complainant a man is not enough to establish a prima facie case of discrimination
5.3. I am also not satisfied, on the balance of probabilities, that the complainant has established a prima facie case on the religion ground. Again, I was presented with no evidence to support this argument.
5.4. The complainant also maintains that the respondent discriminated against him on the ground of disability by failing to provide reasonable accommodation to him. By completely withdrawing the complainant’s personal assistant service from him, the complainant was left in a situation where he was without a service that enables him to go about his everyday life.
5.5. I accept that in a situation like this, where an allegation of bullying/harassment has been made against the complainant, the service provider has an obligation to investigate the matter in a manner that is fair to both parties and to protect its employee during this process. This is a legal requirement and any employer would be absolutely correct in doing so. However, in a situation like this, I am also mindful that the respondent provides a service that is crucial to its users and is therefore more familiar with the special needs that its service users have than more casual providers of goods and services would be.
5.6. However, I find it very hard to comprehend why such a service provider, with its expertise in disability related matters, would withdraw such a service in its entirety. It is not clear why the respondent would feel compelled to remove all three personal assistants from the complainant as the alleged incident involved one named personal assistant. I also note that the complainant was warned not to contact any of the personal assistants associated with the service. I also note that one of these assistants is a close family member of the complainant. While it is clear that any employer has a responsibility to investigate when an employee makes a complaint of harassment or bullying, it is also clear that they have a responsibility to do so in accordance with natural justice. The complainant had a right to be informed of the complaint and he should have been afforded a chance to respond to them. This should have been arranged in a timely manner. In circumstances such as these, I find that it would have been reasonable for the respondent to investigate the matter appropriately and to at least explore if it could have provided temporary cover for the complainant. From what I have been presented, it is clear that the respondent did not do all that was reasonable to accommodate the complainant with special treatment or facilities.
5.7. As the person representing the respondent was not in a position to elaborate on the reasons on what happened around the alleged incident, I have not been offered any defences available to the respondent under section 4(2).
6.1. In accordance with section 25(4) I conclude the investigation by issuing the following decision. The complainant has failed to establish a prima facie case of discrimination on the grounds of gender and religion. He has, however, established that the complainant did fail to provide him with reasonable accommodation.
6.2. In accordance with section 27(1)(a) I order the respondent to pay the complainant €3000 euro in redress for the effects of this prohibited conduct.