Equal Status Acts, 2000-2008
Decision No. DEC-S2010-032
Equal Status Acts - Section 3(2)(g), Disability ground - Section 6 - Section 3, "comparable situation" - Termination of relationship - offensive language
1. Delegation under the relevant legislation
1.1. On 26th July, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 12th December, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 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, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Tuesday, 20th April, 2010. Both parties were in attendance at the hearing.
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability, Gender and Marital Status grounds contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Sections 3(2)(a), (b) and (g) and Section 4(1) of the Equal Status Acts (hereinafter referred to as "the Acts") and contrary to Section 6 of the Acts in that the respondent treated her less favourably in its treatment of her with regard to providing her with services related to the provision of housing, and by terminating the provision of those services to her.
3. Summary of the Complainant's Case
3.1. The complainant stated that she was disabled as, inter alia, she has been diagnosed with ME and depression, scoliosis, hypertension, hypothyroidism and osteoporosis and requires surgery on 3 discs in her back.
3.2. Having been put in contact with the respondent through a third party, the complainant stated that Mr A and Ms B, of the respondent's staff, arrived at her house on a "surprise visit" on 18th June 2007, and she asked to meet only with Mr A. In the course of that meeting, she stated that she made critical comments on the HSE and her local authority, but took issue with a letter she then received from Mr A in relation to that conversation in which he was critical of her comments. She said that, in a confidential discussion with a representative of the respondent organisation, if she had a criticism of her treatment by the respondent or other organisations she had a right to say what she wished in that regard.
3.3. She stated that she did not consider that Crosscare had a duty to provide reasonable accommodation within the meaning of the Acts, but did have such a moral duty.
3.4. The complainant stated that the respondent had refused to provide her with the assistance she required from it, in particular that Ms A had promised to fax her daily lists of available accommodation from a certain accommodation website. She stated that the respondent had also failed to provide her with housing.
3.5. The complainant stated that the treatment of her that led to the failures on the part of the respondent that have been outlined arose because of her disability. She added that her gender and marital status also made her vulnerable in that regard. She stated that bullies attack vulnerable people such as herself and that she ticked a lot of boxes for drawing abuse. She stated that she was prepared to concede that it might be because of personal inadequacies that she had been treated by the respondent in the way she had, but thought it was mostly because of discrimination that went on over two years and was relentlessly bad. She stated that the respondent was more concerned with hurt feelings than her life. She added that the Catholic Church, to which the respondent is attached, has a poor reputation for handling claims and dealing with victims. She said that what she heard from the respondent at the hearing was "humbug" and that Mr A "must be bitterly ashamed" of what he said and did.
4. Summary of the Respondent's submission
4.1. The respondent is the social care agency of the Roman Catholic diocese of Dublin. It stated that it had 35 residents in its accommodation and its objective was to provide care for people. Its only staff was its residential staff, apart from one outreach worker in a neighbouring local authority area.
4.2. The respondent stated that it received a request through a third party to help the complainant in finding accommodation. It stated that Mr A was sent to meet with the complainant and, in that regard, he had rung her before he visited her. Mr A was not present at the hearing. However, the respondent said that he apologised to the complainant for bringing Ms B along with him to their meeting when he had not notified her that he would be doing so.
4.3. The respondent stated that the service it provides is a homeless service in relation to the residents of the local authority in question. It would therefore not have been appropriate for it to place the complainant in its accommodation as she was not homeless. However, it said that it had attempted to assist the complainant in finding accommodation by resourcing rented accommodation and suggesting she liaise with the local authority in that regard. It said that this service was over and above the service it would normally provide.
4.4. The respondent stated that the complainant sought to require its staff to investigate on a daily basis whether there was suitable accommodation available to her. It stated that it never made a promise to provide the complainant with accommodation and added that it did not have an opportunity to carry out some of the actions it had agreed to do for her as the relationship had broken down before it could carry out those actions. It denied that Ms B promised to fax accommodation lists to the complainant and stated she could not have done so as there was no fax at the place in which Ms B worked. It did not have the resources available to do this in any event. It stated that both Mr A and Ms B, in particular, went over what was defined within their brief to assist the complainant. With the limited resources available to it, it felt it had done the best it could for the complainant.
4.5. The respondent also stated that the complainant was difficult and disrespectful in her dealings with it. Furthermore, it said she used offensive language to the people who were just trying to help her and provided documentary evidence to corroborate this. However, it said that the help it offered was not acceptable to her and no matter what you did for her you were going to get into difficulty with her.
4.6. The respondent refuted that the complainant was not provided with reasonable accommodation. It stated, in the first instance, that it did not have any obligation to provide same as it never got to that point in its relationship with the complainant.
4.7. In short, the respondent stated that it believed the accusation of discrimination on the grounds of gender, disability and marital status is unfounded. It stated that the appropriate place for the complainant to obtain housing is the local council and that the respondent did not have resources to provide such housing. It stated that there was no discrimination involved and was sorry the complainant felt the way she did.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The complainant has made a complaint on the marital status, gender and disability grounds, and I must consider whether the respondent has discriminated against her on any or all of those grounds. As she has made a complaint on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.3. At the outset, it should be noted that the complainant sought to adduce certain evidence relating to a separate matter concerning a third party who is not the subject of this complaint. She stated that the respondent was responsible for certain prohibited conduct that she alleged occurred in relation to those matters. I am satisfied that that the respondent has no responsibility in that regard, that these matters are of no relevance to the present complaint and that I have no jurisdiction to consider them. Therefore, I have not included these matters in this decision as it would be inappropriate for me to do so, particularly given the extent to which they relate to the third party concerned.
5.4. There are a number of aspects to the complainant's case. In simple terms, these can be broken down into two categories: 1) the treatment she received in relation to the services provided to her by the respondent and 2) the decision of the respondent to dispense with the provision of services to the complainant. I will consider these matters separately.
5.5. The service at issue here relates to the provision of housing or assistance and is a matter that falls under Section 6 of the Acts. In that regard, the respondent's remit is to provide shelter and assistance to homeless persons such that a homeless person would have been able to avail of the full range of services offered by the respondent. The complainant is not a homeless person, and was not at the time in question. Therefore, in all the circumstances of the present complaint, she is not in a comparable situation to homeless persons in the context of the Acts. In other words, as the complainant was not a homeless person, the respondent cannot be expected to have treated her in the same manner as if she was as that would be contrary to its purpose. In accordance with Section 3, any consideration of discrimination must be based on someone in a comparable situation and so I must consider whether the complainant was treated less favourably than someone who was not a homeless person.
5.6. It is clear that the respondent went beyond its usual remit in order to facilitate the complainant and that it would not normally do so. So, in fact, the complainant received more favourable treatment than a person in a comparable situation to her. The complainant has therefore failed to establish a prima facie case in that regard on any of the grounds alleged.
5.7. In relation to reasonable accommodation, the complainant stated at the hearing that the obligation is a moral one. However, the Acts are quite clear in their definition and moral definitions do not come into it. The complainant presented no evidence as to what reasonable accommodation she required, nor did she inform the respondent of this. The complainant has therefore failed to establish a prima facie case in that regard also.
Termination of relationship
5.8. The respondent stated that the complainant used offensive language in her communications with it, while she considered the respondent to be overly sensitive in this regard. I have examined in detail the voluminous correspondence between the parties in relation to this matter and I am satisfied that the comments concerned go well beyond any objective standard of criticism; they were quite clearly, by any such standard, insulting, threatening and abusive. Such comments, whether personal or professional, are not comments which any reasonable employer could expect their staff to have to put up with from their customers in the course of their employment.
5.9. It is quite clear that the respondent terminated its relationship with the complainant because of these comments and that it would not have treated the complainant any differently in that regard if she had been married, male, a person without a disability or a person with a different disability. In all the circumstances of the present case, then, the respondent was perfectly within its rights within the meaning of the Acts to terminate its relationship with the complainant and she has failed to establish a prima facie case of discrimination.
5.10. As the complainant has failed to establish a prima facie case of discrimination on any of the grounds alleged, I do not need to consider the matter any further.
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of Sections 3(1)(a), 3(2)(a) and Section 6(1) of the Equal Status Acts.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination on the marital status ground in terms of Sections 3(1)(a), 3(2)(b) and Section 6(1) of the Equal Status Acts.
6.4. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a), 3(2)(g), Section 4(1) and Section 6(1) of the Equal Status Acts.
6.5. Accordingly, the complainant's case fails.
30 June 2010