Mr Patrick Gogarty
Mr Jimmy Gilna
Equal Status Acts 2000 to 2004 - Discrimination, Section 3(1), 3(2) - Disability ground – Incorrect respondent - Section 38A -wheelchair user -service provider- Section 5(1) – access to premises - bookmakers
1. Delegation under the relevant legislation
1.1. On 17th January, 2006, the complainant, Mr. Patrick Gogarty, referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 to 2004 and under the Equal Status Acts, 2000 to 2004, the Director, delegated the case to me, Gary O’Doherty, 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, 2000-2004. This delegation took place on 23 November, 2007, on which day I commenced my investigation.
1.2. As required by Section 25(1), and as part of my investigation, I proceeded to hearing, which was held in Bettystown, Co. Meath on Wednesday, 2nd July, 2008. There was no appearance by the respondent at that hearing.
2.1. The dispute concerns a complaint by Mr Gogarty, who suffers from Cerebral Palsy and is a wheelchair user, that he was discriminated against by Mr Gilna on the Disability ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Act, 2000, and contrary to Section 5(1) of that Act, particularly in that he was not provided with reasonable accommodation in attempting to avail of the goods and services on offer by the respondent.
3. Matters for consideration
3.1. The complainant alleges that the respondent discriminated against him by not providing a suitable ramp to allow him gain access to the bookmakers shop which carries out its business at the premises in question. The complainant states that there is a ramp in place at the premises but that it is not suitable for his use. However, while the complainant stated that the respondent was the owner of the property and accepted that he was not responsible for the activity of the bookmakers shop, he argued that, prior to the premises being occupied by the bookmaker in question, the respondent had assured him that he would provide a suitable ramp for his use. It is clear that there is a question as to whether Mr. Gilna is the correct respondent in this case. I must first address this issue before I proceed any further.
3.2. Section 5(1) of the Equal Status Acts states that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”
3.3. In addition, Section 4(6) of the Acts states, inter alia,
“‘provider of a service’ means-
(b) the person responsible for providing a service in respect of which section 5(1) applies.....”
3.4. The respondent owns the building in which the persons responsible for providing the service in question carry out their business. However, he has no control over the activities of the bookmakers in question, nor does he have any responsibility for providing this service. (So whether the respondent promised to provide the ramp in question or not, such promise can have no bearing on the complaint as the respondent is under no obligation, under the Equal Status Acts, to carry it out). Neither does the respondent have any control over the complainant’s access to the premises in question – the complainant admitted that the respondent had told him that the area in front of the premises was not under his control, and the complainant does not otherwise have to pass through the premises of the respondent in order to gain access to the bookmakers shop.
3.5. It is clear from Section 5(1) that the onus for ensuring compliance with the provisions of the Acts is on the service provider in this case. It is also clear that the respondent is not the person that is “responsible for providing a service” to the complainant in relation to this complaint and I can see no other provision in the Acts that places responsibility on the respondent to ensure that the service provider he leased the premises to complies with the requirements of the Acts. He is therefore not the relevant service provider within the meaning of the Acts.
3.6. Further to Section 38A of the Equal Status Acts, 2000 to 2004, I am satisfied that the complainant cannot establish facts “from which it may be presumed that prohibited conduct has occurred in relation to him or her” in relation to the named respondent as he is not responsible for any prohibited conduct that might have occurred in the context of this complaint. In the circumstances, I cannot proceed any further with my investigation.
4.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision.
4.2. I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to the named respondent. Accordingly, I conclude the investigation and find against the complainant.
18 September 2008