EQUAL STATUS ACTS
DECISION NO. DEC-S2017-002
Wicklow Recreational Services Ltd. t/a Shoreline Leisure
(Represented by Lawplus Solicitors)
File reference: et-155670-es-15
Date of issue: 17 January, 2017
1. Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 29 April, 2015. On the 15 June, 2016, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 18 October, 2016.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.
2.1 The dispute concerns a claim by the complainant that she was discriminated against by the respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) contrary to Section 5 of the Equal Status Acts in relation to access to a service which is generally available to the public. The complainant also makes a claim that she was subjected to victimisation by the respondent under the Acts.
3. Summary of the Complainant's Case
3.1 The complainant was born without arms. She considers herself to be significantly disabled. She states that despite this she likes to swim as it is good for her and she wants to use her local public swimming pool without having to pay for her personal assistant to dress her. In August 2013, before the complainant signed up for membership, she requested two hooks to be installed for her use. A staff member S met with the complainant and they walked through what might work for the complainant. The complainant asked for a hook to be placed on the wall in the Disabled Persons Room (DPCR) and a second hook to be fixed to a wall in the women’s toilet cubicle next door. The complainant states that the installation of these hooks was finally achieved in January 2015, three months after her 15 month membership ran out and 17 months after she first requested them. The complainant states that over that 15 month period of paid membership, she failed to have these two simple access needs met. The complainant states that she was left to deduce that perhaps one of her hooks was stolen in August 2014 and she states that she was appalled that it took three months for it to be replaced and she states that a perfectly good hook in the DPCR room was removed and exchanged by, she assumes a caretaker, for one that did not work at all, an upright coat hook.
3.2 The complainant states that she carries with her a portable hook that can stick to a wall tile but unfortunately the wall tiles at the respondent facility are too small to accommodate her portable suction-based hook and when she got a smaller one that did fit it was too small to be effective and it came off the wall and got knotted in her half on togs leaving her stranded and half naked in a family changing room. The complainant submits that after over a year of entreating without a satisfactory result, she made a direct request for an acknowledgement of the impact of this lack of accommodation preventing her from using the facility independently in the form of an extension of her membership. The complainant states that after three weeks an offer was made to extend her membership for two months. She states that this was unacceptable to her. The complainant states that she felt it was nowhere near any appreciation of the fact that three out of four times she tried to use the facilities, she was met with obstruction that caused her to be delayed using the single changing facility that was open to her to use. The complainant states that she was not happy with this response because, as part of this offer, she was given a written assurance that the matter had been dealt with when in fact it had not. The complainant submits that when she pointed this out, the manager sent her an e-mail that grossly misrepresented the situation blaming her for “confusing him”. The complainant submits that this reaction amounts to an attempt at victimisation under the Acts. The complainant states that the respondent did not accommodate her access need which would have incurred no cost (only time in fixing two hooks to two different walls).
3.3 The complainant states that in relation to the Carer’s policy operated by the respondent; she is not in a position to be able to use her very limited time with her paid personal assistant to go swimming. She submits that her needs are too high in other areas to allow this to happen and that her assistant is very restricted in terms of availability. She states that ideally she would like to swim three times a week and this would take a lot more time that she currently has with her personal assistant. The complainant states that she does have a spouse, some friends and neighbours who have offered to assist her. She states that her spouse is willing to help her but works unsociable hours and therefore, they often do not swim at the same time. She states her friends and neighbours are not members but if they were to come at a time that suits her but not them, she would offer to pay their entry fee. The complainant submits that a simple solution would be if the respondent recognised that she is entitled to have assistance and supply her with a “personal assistance permit”. The complainant contends that she would require such a permit to be allocated to her and not her personal assistant (the person the respondent describes as her “carer”). She maintains that if she needs help to access the facilities and that a person accompanying her is entitled to enter free for this reason. In conclusion, the complainant states that her request for reasonable accommodation of her access needs was not met during her membership with the respondent. She submits that she has not been able to access the pool’s changing facility as freely as non- disabled users and has been discriminated on grounds of disability under the Equal Status Acts.
4. Summary of the Respondent's Case
4.1 The respondent submits that it was created in 2007 by Wicklow County Council to operate and manage a number of leisure facilities owned by Wicklow County Council. The respondent states that it is a registered business with a not for profit ethos. It is autonomous and operates with a Board of Management and a CEO appointed to oversee the overall operation of the facilities. The respondent submitted that any operating surplus created by the company is re-invested back into the development/maintenance of the facilities. The respondent maintains that it has had a great deal of experience developing an understanding of the various and diverse needs of its patrons over the last few years. The respondent maintains it has circa 500,000 persons who use their facility within the year and 15,000 - 20,000 of those persons are disabled users. It submits that it caters for the special needs of the following groups on a daily basis, St. Catherine’s School, Lakers Special Olympics Club, Blue Dolphins Special Olympics Club, Sun Beam House Services and many individuals with both physical and intellectual disabilities. The respondent states that these needs change and develop as time passes and the organisation has always catered for these needs to the best of its ability. The respondent submits that it has strong access to disabled users and they use its facility particularly because of the swimming pool. It states that it has 8 disabled users parking bays and has many other facilities in place to assist members with various disabilities.
4.2 The respondent submits that, in August 2013, the complainant joined its facility on a Summer membership at which time a member of staff (who no longer works for the organisation) agreed to install a hook to assist the complainant while changing. It later transpired that on a further visit by the complainant in September 2013 that the hook had been placed at a level that was not suitable for use specific to the complainant. The respondent states that with the best of intentions, it did react quickly to the complainant’s initial request. The respondent submits that in April 2014, the complainant wrote to the manager, Mr. W in which the letter initially compliments the staff stating “… you have a fantastic facility and a staff worthy of being really proud of, and a disability policy that is engaging, worthwhile and practical..”. The letter does highlight some concerns regarding access to the disability changing area from the complainant’s point of view but in the first paragraph on page 3 it states that a hook is in place for the complainant’s use. The respondent submits that the real issue here is the demand on its changing facilities within the centre and that unfortunately it is a victim of its own success to some extent and consequently there can be conflicting demands placed on the use of the disabled changing facilities. The respondent contends that subsequent to the complainant’s letter in April 2014, Mr. W wrote back on 15 April offering to place an additional hook in the changing area opposite the disabled changing room to act as an additional changing area for her should the disabled changing area be busy.
4.3 The respondent states that in the complainant’s letter of 26 September 2014 she starts in the letter by saying“..thank you for putting the drawer knob on the wall of the disabled persons changing room, it is very successful”, however she goes on to say that her main problem remains that often times this room is already occupied. The respondent submits that, in relation to the complainant referring to the removal of an additional hook which had been placed in the toilet of the women’s changing area, this hook was not removed but was in fact broken off (something which happens to hooks in other locations in the centre periodically) and this hook was subsequently replaced. The respondent maintains that in September 2014, a hook was further placed in a shower cubicle in the women’s changing rooms which was done to ensure an additional location was available if both the disabled changing room and the women’s toilet were both occupied. The respondent also points to the fact that the complainant in her letter dated 26 September 2014 thanked the staff for the lowered hair dryers in the changing facility, in that, she said “it was a nice touch”. The respondent states that the manager Mr. W went on three weeks annual leave in October and this resulted in the delay in his reply (issued on 22 October 2014) to the complainant’s letter of 26 September. In this letter, Mr. W stated that they have installed the new hooks in three different areas of the centre and also offered an extension of the complainant’s current membership for an extra two months. The respondent submits that in October 2014 there were crossed wires/misunderstandings regarding the location of additional hooks. The respondent states that in January 2015, Mr. W met with the complainant to discuss returning to use the centre and the complainant showed him the preferred location of all the hooks in the centre. Following that meeting, the respondent wrote to the complainant stating that it had (i)installed a hook in the cubicle in the ladies toilet beside the disabled toilet (ii) placed a hook in the toilet area of the Girls School Changing Room (iii) ensured that shower chairs will be stored in the storage room beside the pool. It also stated that there is already a hook in the disabled toilet and a hook in the ladies toilet in the ladies changing room.
4.4 The respondent strongly refutes the claim by the complainant that the organisation acted inappropriately and inadequately over a 17 month period. The respondent submits that it acts at all times with the best interests of its patrons in mind. It states that while in no way it is trying to apportion blame to anyone, there was however a great deal of crossed wires and some honest misunderstandings regarding the location of hooks and the type of hook which was necessary to use; this in no way should be viewed as being either inadequate or inappropriate. The respondent submits that it has a great and proud history of working with individuals and groups with disabilities and continues to do so, on a daily basis. The respondent submits that it has engaged with the complainant at all times in relation to access issues and staff on the frontline went out of their way in trying to assist her. In conclusion, it strongly refutes the allegation that the complainant was subjected to discrimination on the grounds of her disability contrary to the Acts.
5. Conclusions of the Equality Officer
5.1The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 Inthe present case, the complainant was born without arms secondary to Thalidomide and I am, therefore, satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. The complainant has claimed that she was discriminated against by the respondent on the grounds of her disability, in that, she has not been able to access the pool’s changing facility as freely as non-disabled users. In this regard, I must decide in the present case whether or not the complainant was subjected to less favourable treatment on the grounds of her disability contrary to the Equal Status Acts in terms of access to the respondent’s service. In the case of disability in considering whether discrimination occurred, consideration must be also be afforded to the issue of the provision of reasonable accommodation to a disabled person within the meaning of Section 4 of the Equal Status Acts. The provisions contained within this section of the Acts require the respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". In the instant case, I must also decide whether or not the complainant was subjected to victimisation by the respondent.
5.3 Having carefully examined all the evidence in the instant case, I find that the respondent did try to accommodate the specific needs of the complainant. I am cognisant that the complainant very much wanted to be in a position to access the pool independently. I note that the respondent has in place a specific “Carer’s Policy” which was introduced in 2009 “to meet the unique requirements of patrons who would be otherwise unable to avail of the centres’ facilities/services without the assistance of a carer”. The policy states that “in the event of an individual(s) acting in their official role as carer, they are entitled to use the facilities/services free of charge. In order to administer the policy, any individual(s) acting as a carer must produce written confirmation/identification from their employer.” The complainant stated that this facility was not adequate to her as she is not in a position to be able to use her very limited time with her personal assistant to go swimming and that had the respondent in place a real equality of access policy, then she the paying disabled member would be recognised as the primary respondent in possession of the “written confirmation” and any person ought to be entitled to free access to assist her especially if they are not to enter the water. I am of the view that if the respondent started making exceptions to the Carer’s Policy of the nature requested by the complainant that it may result in an unravelling of the policy and an unequitable situation as regards other disabled users.
5.4 I find that in relation to the complainant’s letter of 4 April, 2014 there was no reference with regard to placement of hooks. In this letter, only references with requests to have shower chairs available in the women’s and men’s shower dressing area and signage to be put in place with regard to personal belongings not to be left behind were made by the complainant. I find that the respondent carried out these requests without delay.
5.5The complainant has also made a complaint of victimisation against the respondent. The respondent submits there is no basis for the claim of victimisation as this has a very specific meaning under the Acts. The criteria to be satisfied in order to establish a prima facie case of victimisation under the Equal Status Acts is as follows; (I) the complainant must show that she applied in good faith for redress under the Acts, indicated an intention to do so or otherwise satisfied section 3 (2)(j), (2) that she was subjected to specific acts of treatment by the respondent after she did so and (3) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at 1 above. In relation to her complaint regarding victimisation, the complainant submits that she received correspondence from the manager dated 30 October blaming her for “confusing him” and stating“I see you have changed your mind as to where you want the hook placed”. Having carefully examined the complainant’s claim of victimisation, I find no prima facie case to demonstrate that she was victimised in the context of the Acts.
5.6 Having regard to the evidence adduced, I am satisfied that there was confusion and a genuine misunderstanding in relation to the location of the additional hooks for the complainant’s use. However, I note that in early January 2015, the manager Mr. W met with the complainant and the complainant showed him the preferred location of all the hooks in the centre. Following that meeting, the respondent wrote to the complainant stating that it had (i) installed a hook in the cubicle in the ladies toilet beside the disabled toilet (ii) placed a hook in the toilet area of the Girls School Changing Room (iii) ensured that shower chairs will be stored in the storage room beside the pool. It also stated that there is a hook in the disabled toilet and a hook in the ladies toilet in the ladies changing room. However, the complainant stated that she was unhappy with this response and was very annoyed as she did not receive a tangible apology for the way she was treated together with a change in policies she had requested to ensure that similar treatment would not happen in the future.
5.7 There is a substantive divergence in the testimony given by both sides. However, on balance, having carefully considered all the evidence, I prefer the evidence of the respondent regarding the events that occurred and I consider that a genuine misunderstanding occurred regarding specific locations of the hooks in question and I take on board the bona fides of the staff of the respondent who gave testimony on the day of hearing in this regard. I also find that, in relation to the hook that went missing and in another case (hook got broken) by presumably a member/s of facility, management cannot be held accountable for this. However, I note when same was brought to their attention, the hooks were replaced. I find that the frontline staff did assist the complainant when requests were made but some of the changes she was proposing were proving a difficult balance for the respondent to achieve given their other obligations and the core functioning of the respondent facility. In this regard, I am cognisant of the substantial numbers using the facility including a large cohort of disabled users that avail of the facility and the particular requirements they may have. I note from the submissions and the correspondence on file that there was a significant level of engagement between the complainant and staff/management of the centre. I note that the complainant was unhappy about the apology she received from the manager in January 2015, that it was not “tangible enough” as she put it. However, having adduced the totality of the evidence in the instant case, I find that the respondent was reasonable and did try to accommodate the needs of the complainant with regard to implementing special measures to improve access for her to its facility. I therefore find that the complainant was not treated less favourably than another person, either without a disability or with a different disability would have been treated in a similar situation in relation to these incidents. I also find that the complainant was given reasonable accommodation in the context of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in the present case.
6.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that,
(i) the complainant was not discriminated against on the disability ground in terms of Sections 3 of the Equal Status Acts.
(ii) the complainant was not subjected to victimisation by the respondent under the Equal Status Acts.
Equality Officer/Adjudication Officer
17 January, 2017