Complainant

Respondent

Parties

The Ladies Gaelic Football Association

Complainant

Respondent

Anonymised Parties

A Minor (Case taken by her Father)

Representatives

Eoin O’Connor BL, Benoit Keane, both instructed by Niall Geaney, Geaney Solicitors LLP

Una Clifford BL instructed by John Carroll Crowley Millar

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057322-001

23/06/2023

The Complainant submits that she was discriminated against by the Respondent (LGFA)  in that the  Club attached to the LGFA discriminated against her under the ESA by not allowing her reasonable accommodation  for her disability, Cerebral Palsy, in banning her from playing competitively at Under 12 level, albeit she was 13 at the material time. Furthermore, the Complainant submits  that the Respondent discriminated against her on age grounds by prohibiting her to play at Under 12 level in competitive competitions.

The Respondent denies both claims.

The Respondent raised two preliminary issues:

(1)    That the Complainant  was out of time because the Respondent contends  that the alleged discrimination arose out of an issue that occurred in April 2022 when the Complainant was informed that she could not play in an U12 league match because she was overage. The Respondent submits that the  WRC complaint form was not submitted until 23  June  2023 and therefore the statutory time limit of six months had passed and even should an extension be granted, the time period exceeds the twelve-month period.

(2)    The Complainant is  under 18 and hence does not fit within the protected ground of the Act.

The Complainant submits: (1) the actual last act of discrimination was when  the refusal by the club affiliated to the Respondent (“the Club”), ultimately disallowed her  playing at U12 level in April 2023, when it communicated its decision to the  Complainant’s parents and (2) legal argument will show that as the Legislation comes from a European Directive, the Complainant, as a European citizen does not have to contend with an age bar when it comes to vindicating a right under the age grounds.

Undisputed Facts:

The Complainant  is a player with the Club, which is local to her.  Up until recently, and since the age of 7, she was permitted to play with a younger age group (i.e., 1-2 years behind her chronological age). The Complainant had been granted the accommodation to play at a younger age category in light of her disability. The Complainant is the size of an average 9-year-old and runs at a very reduced speed in comparison to her peers.

On 8 April 2022, the first day of the first U12 match of the season, the Complainant was informed by the Club  that she would not be allowed to play in the match as the opposing team may object to the Complainant taking part as she was 'over age'. However, after coaches at the club   spoke with the other team the objection was withdrawn and the Complainant was permitted to take part in the game. Following this, a letter was sent to the Complainant's club by the parents of the Complainant which outlined the effect this incident had on her and sought a response as a matter of urgency.

On 11 April 2022, the Complainant's parents were informed by a ‘WhatsApp’ message from the Club's Chairperson that the Complainant could not compete at U12 level until the Club heard back from the relevant County Board. The Complainant's parents were informed that this was to protect the Complainant and the Club.

The Complainant's parents then wrote to the  County Board to outline the effects on the   Complainant of  having been excluded from competitive games with her U12 team. A reply from the Board was received by the Club on  19 April 2022 which stated that the Complainant could no longer play competitive games with her team. The Club offered to permit the Complainant to continue training with the U12 team but restated that she would not be permitted to participate in competitive U12 games. The Complainant remained on the side line for all competitive games for the remainder of the 2022 season.

On  19 February 2023 a meeting was arranged to discuss the Complainant's options for the 2023 season. The Children's Officer of the Club, the Club chairperson and the  Complainant's parents were present at this meeting. The Club proposed that the Complainant  take up a supportive role with the U14 team for the 2023 season. This proposal was rejected by the Complainant’s parents as she was determined that she should be allowed play in competitive games like all other club members.

On the 25 April 2023 the Complainant's father emailed her club and enquired whether she could play with the U12s. The reply stated that the Complainant could not play with the U12's as she was over age and was again offered a supportive (non-playing) role with the U14 age group. This offer had already been rejected following the February meeting.  

PRELIMINARY Issues:

 (1) – Out of Time:

The Complainant asserts that the last date of discrimination was in April 2023 when final confirmation of the bar on the Complainant from competing in the Under 12 grade was communicated to the Complainant’s parents, therefore she was in time in line with the time limits and communication requirements under section 21 of the ESA.

(2)  ESA bar in Age Complainant

The Complainant submits that it is the  duty of national courts to disapply domestic laws conflicting with EU law and argues that it is established in Costa v ENEL [Case 6/64, ECLI:EU:C:1964:66] and further elucidated in AFS v Simmenthal SpA [Case 106/77, ECLI:EU:C:1978:49], where the Court of Justice emphasised the supremacy of EU law.

The Complainant contends that in the  case of Minister for Justice and Equality and the Commissioner of An Garda Síochána v Workplace Relations Commission (Boyle)[Case C-378/17, ECLI:EU:C:2018:979] affirmed the Workplace Relations Commission's authority to disapply national laws conflicting with EU law.

The Complainant argues that  that under EU law, discrimination based on age is prohibited by Article 21(1) of the Charter of Fundamental Rights of the European Union, as well as being established as a general principle in cases such as Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [Case C-34/09, ECLI:EU:C:2011:124] and Dansk Industri (DI) v Estate of Karsten Eigil Rasmussen [Case C-441/14, ECLI:EU:C:2016:278].

The Complainant argues that in applying EU law to access rules in sport, such as those of the Respondent , the cases of  TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV [Case C‑22/18, ECLI:EU:C:2019:497] sets out requirements for objective and non-discriminatory criteria for access to sports competitions.

The Complainant argues that the Respondent's blanket prohibition on moving down age categories in competitive events constitutes discrimination under EU law, especially in the Complainant's case, where both age and disability result in exclusion. Furthermore, the Complainant contends that this ban is disproportionate and violates EU legal principles, potentially leading to the complete exclusion of individuals from sports participation. This outcome conflicts with EU law, which acknowledges the social benefits of sports and the importance of integration into society.

SUBSTANTIVE ISSUES:

Summary of the Evidence of the Complainant’s Father:

The witness described how the Complainant’s balance and movement was constrained by Cerebral Palsy. She was described as ambulant but restricted, but this did not stop her taking part in para-athletic events, including the UK Track and Field Championships. She participated at  “Track 35”level  which is the most restricted class. He described how she played with the Club since she was seven but was devastated when she was initially  not allowed to play her first U12 competitive match of the 2022 season, although she was eventually allowed to  play after discussion between the opposite coaches. He gave detailed evidence of the interaction he had with the Club and County Board, including the Inclusion Officer with the Respondent, but to no avail. He said that the offer of a support role for the Under 14s  was never an option that the Complainant desired but rather she wanted to continue playing in a competitive role at under 12 level. He described her humiliation which was aggravated by the fact that her teammates were also in the main, her schoolmates. He exhibited the hard plastic boot that the Complainant wore on the pitch and disputed the Respondent’s position that she had to wear metal supports, which might be considered a health and safety hazard.  He outlined how he sent the Respondent copies from the Football Association in the UK (the FA) where age dispensation policies are adopted on social and disability  grounds, but that these were rejected by the Respondent as not being feasible.  

The witness accepted in cross-examination that the Complainant had not taken part in team sports outside of Gaelic Football and that she  fell over a number of times when playing in a  match. The witness also accepted that as competitiveness increased when the age levels went up, the capacity for the Complainant to compete would also diminish.

Summary of the Evidence of theComplainant’s Mother:

The witness re-iterated the interactions both she and  her husband  had with the Club and the Respondent. She gave her opinion that the Club would not encounter many children with a physical  disability  therefore  a medical assessment should  have been used instead by the Respondent.

Complainant’s Argument:

The Equal Status Act, 2000 aims to promote equality and prohibit discrimination in services. The Complainant cited the following Irish cases:

G v The Department for Social Protection [2015] IEHC 419: where O'Malley J stated the Act should be broadly and liberally interpreted to reduce discrimination based on improper considerations.

Cahill v The Minister for Education and Science [2018] 2 IR 417: where  Laffoy J clarified the concept of reasonable accommodation, emphasising the balance between the disabled person's needs and the service provider's position.

EU LAW:

The Complainant asserts that EU law complements Irish law on discrimination. Article 20(1) The Treaty of the Functioning of the European Union ()TFEU establishes EU citizenship, protecting citizens from discrimination.

The Complainant references the following cases:

Gerardo Ruiz Zambrano v Office National de l'Emploi (ONE) Case C-34/09: Where EU law prevents measures depriving EU citizens of their rights.

Fernand Ullens de Schooten v Etat Belge Case C-268/15: where EU law can be invoked in purely national cases.

TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV Case C-221/13: Where there is an emphasis on the  importance of amateur sports as part of EU citizenship and subject to EU Treaty rules.

The Complainant refers to  Article 165 TFEU as indicating the EU's commitment to promote European sports, ensuring fairness, and protecting athletes' integrity.

UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (CRPD)

The Complainant argues the CRPD aims to protect and promote the rights of persons with disabilities and refers to  Article 30 where it  emphasises the importance of   equal participation in sports and recreational activities for persons with disabilities.

Application of the Law to the Facts:

 The Complainant argues the  Respondent failed to reasonably accommodate the complainant's disability, resulting in discrimination based on both disability and age. The Complainant contends the ECJ's TopFit decision suggests that rules preventing EU citizens from participating in sports competitions should be subject to EU Treaty rules and CRPD provisions. The Complainant argues that the respondent's rules are not proportionate, failing to distinguish between categories of disabled children, thus violating both Irish and EU laws.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.  

Preliminary Point – Conflict Between EU Law and the Equal Status Act

The Respondent asserts the  issue of the  age bar in proceedings on  age grounds centres on Section 3(3) of the ESA, which states that treating minors differently based on age is not considered discrimination. The Respondent refers to the Complainant’s argument that these conflicts with EU law; the latter should take precedence under the doctrine of supremacy. The Respondent rejects this position and submits that the Complainant, being under 18, is precluded from taking a case under the ESA. 

The Respondent acknowledges the supremacy of EU law but argues that EU case law on age discrimination primarily pertains to economic activities in sports. The Respondent references  reference cases like TopFit eV , and opened by the Complainant,  where discrimination was linked to economic implications in professional sports. The Respondent argues  that the LGFA and local club games, being amateur and non-economic, do not fall within this scope.

The Respondent contends that their actions comply with the principles of the UN Convention on the Rights of Persons with Disabilities (CRPD). It argues that there is no precedent in EU law for age discrimination in amateur sports. If discrimination is found, the adjudicator must consider the LGFA's legitimate aims and the proportionality of their actions.

The LGFA and GAA aim to promote traditional sports and maintain an amateur status, with unpaid players and a strong volunteer ethos. The Respondent argues that age categorisation is crucial for player protection, skill development, and fair competition. The Respondent asserts that it has provided reasonable accommodation to the Complainant, offering her various roles despite age and disability constraints.

In conclusion on this preliminary point, the Respondents contends  that the Complainant has been reasonably accommodated and that the LGFA’s amateur status and community focus justify their age-based rules. It contends that EU law on economic activities in sports does not apply here and that the club’s practices support legitimate sporting governance without discrimination.

Summary of the Evidence of Ms A, Senior Executive Manager with the Respondent:

A senior executive  manager with the Respondent (Ms A) gave evidence under oath. The Respondent has 186,000 members where 55 to 66 %  of those are from underage grades. There are health and safety rules for playing which bans jewellery and other rules for ancillary wear like fitness devices, boots and sports glasses. They have age dispensation in certain practices for example where a underage player with Downes Syndrome is accommodated in a different age group. However, there is no official age dispensation policy for underage games. When referring to the FA policy of age dispensation, she referenced the fact that  the father of the Complainant had brought it to the attention of the Respondent but opined that it would not be feasible and, furthermore, none of the bodies running team sports for females had such policies in Ireland. The witness accepted that they have Ladies Gaelic football teams in the UK at underage level whereby children in adjoining pitches playing soccer may  be governed by age dispensation policies.

Summary of the Evidence of Ms B, Club Coach:

Ms B gave evidence under affirmation. The Witness spoke  of knowing the Complainant and “always looking out for her”. She was always worried that the Complainant would be knocked over, not maliciously, but because she was weak on her feet. She said the Complainant’s classmates also looked out for her. She described the U14 level as being a lot more physical and competitive than the U12 grade. She re-iterated that in competition they have to abide by strict age rules and are not allowed to play overage players.

Summary of the Evidence of Mr C, Chairman of the Club:

The witness gave evidence under affirmation. He said there was much consideration given to how the Complainant could be accommodated. He denied that the Club  ever told  the Complainant that she  could not play  and when she was not allowed play at a competitive level, it was never because of her disability but purely because she was overage. He said the committee considered the risk to the Complainant and her team-mates when they decided that she could not be able to play at U12 level. The witness accepted that in a WhatsApp message to the Complainant’s father, he mentioned a risk that would have to be assessed by the insurance company but agreed that no risk assessment was ever carried out nor was the insurance company approached.

Respondent Argument:

The Respondent opened  Cahill v Department of Education and Science [2017] IESC 29  where the Supreme Court ruled that in the area of disability discrimination the test is one of reasonableness and proportionality when it came to a decision of a student with a disability sitting the Leaving Certificate exam.  The court agreed that the correct test was used by the lower court and endorsed the statement by De Valera J when he said “it appears to me to be a question of balance and the contention advanced on the part of the appellant invites the Court to embrace an unreasonable definition of “reasonable accommodation” which tips the balance too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable administration of the Leaving Certificate exam”.

The Respondent opened  Nano Nagle v Daly [2019] IESC 63 where the test for  “reasonable accommodation” was described  in  detail by the Supreme Court. The Court confirmed that the test was one of “reasonableness and proportionality” when evaluating what reasonable accommodation measures had been considered. Justice Patricia Ryan outlined that “The duty of accommodation is not open ended”.

The Respondent opened the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which  was approved by the European Union by Council Decision 2010/48/EC and ratified across all member states. The Irish government signed the Convention in 2007 and in March 2018 it was ratified.

 APPLICATION OF THE LAW TO THE FACTS:

The Complainant’s submissions accepts that reasonable accommodations have been made. The Respondent does not contest this and submits that the  matter for consideration by the Adjudicator is whether those accommodations were proportionate. The Respondent submits that the Complainant has been afforded accommodations including:

a. Facilitated to play with age groups that were one or two grades below her due to her restricted mobility and size since she joined the Club.

b. Accommodated through the coaches ensuring she got adequate match time for competitive games including at U12.

c. Had individual attention from the coaches throughout her membership when drills were taking place that she was unable to partake in.

d. Through her parents, had regular consultations on the accommodations being afforded.

e. As the game advanced and became more competitive she has now been afforded the opportunity to continue to train with the U12, hence fully participating.

f. Offered a support role in the U14 team because that age  level is more physical and competitive, rather than a participative role.

The Respondent outlined how the  mission of the LGFA is to encourage and foster ladies’ football. It governs all ladies football and the rules and essential competitive spirit of the game to ensure it grows as a sport for young women. The Respondent contends that the  maintenance of necessary rules around age levels and eligibility are essential for that legitimate aim.

The Respondent exhibited the  Code of Ethics and Good Practice for Young Players of the LGFA which provides that  “all children should be valued and treated in an equitable and fair manner regardless of age, gender, religion, social and ethnic background or political persuasion. Children, irrespective of ability or disability, should be involved in sports activities in an integrated and inclusive way, whenever possible, thus allowing them to participate to their potential alongside other children. Team mentors should be aware of and seek to gain competence in addressing the needs of young people with disabilities or any other additional needs.”

The Respondent contends that Section 4.4 of the Act clearly provides that there is no discrimination where a person has a disability and is treated differently as they may cause harm to themselves or others. The  fact of the Complainant  having to wear braces, has been considered and the risk to both her and others has been identified.

The Respondent argues that when considered in this situation the matter of the test of balance outlined in the Cahill judgement would support the Club’s position that accommodations had been made that were proportionate and afford a level of balance to ensure the safety of both the Complainant and other members. Additionally, the Respondent submits,  it supports the wider need of ensuring that competitive games between members at the same age grade can continue to be played, whilst at the same time offering an inclusive role to those with disabilities.

The Respondent asserts that the  Complainant  has never been refused access to the Club nor to participate because of her disability. The Complainant  has declined to  train with the U12 team. She cannot compete for health and safety reasons in a manner akin to not allowing someone who has a broken leg. A person with  restricted movement is not allowed to play as they would represent a risk to themselves and other players.

The Respondent  submits that it has operated within the spirit and guide of the UN CRPD in all of its consultations and considerations on the matter of the Complainant  playing competitively with the Club.

The Respondent argues that the  provisions of the UN CRPD have been fully implemented through the Complainant’s continued and welcome her continued membership of  the Club.  In support of Article 7 she has been fully consulted with, through her parents, and her best interests have been the primary area of concern for the Club in considering the various options for her continued participation. The principles outlined in Article 30 are being fully fostered by the Club additionally, through their consultative and open approach to the Complainant and through their development of an additional role of support to ensure her involvement in a team at her age grade.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and reasoning section of this decision.   

Preliminary Issue (1) – Out of Time Objection:

The Respondent  argued that the alleged discrimination arose out of an issue that occurred in April 2022 when they Complainant was informed that she could not play in an U12 league match as she was overage. The Respondent submits that the  WRC complaint form was not submitted until 23  June  2023 and therefore the statutory time limit of six months had passed and even should an extension be granted the time period stretches over the twelve-month period.

The Complainant’s position was that the alleged discrimination was an ongoing act which came to conclusion in April 2023 when the final position of the Respondent was made clear to the Complainant’s parents.

I am satisfied that the alleged act of discrimination in this case was an ongoing one, where further consideration was being given by the Respondent to the circumstances surrounding the exclusion of the Complainant from playing competitively at under 12 level.  Evidence showed that the Complainant still retains current membership of the Club but is barred from competing at that  level. I therefore find that there is no breach of section 21 of the Act  and that the complaint is properly before me.

Preliminary Issue (2) -  Eligibility of the Complainant to Take a Case on Age Grounds:

Section 3(3) of the Equal Status Act, 2000 states:

Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that other person's age, shall not be regarded as discrimination on the age ground.

The Complainant argues that this provision allows discrimination on age grounds against persons who have not attained the age of 18 and argues that the section  is in conflict with EU law, therefore I have duty to disapply the Irish law so as to give effect to EU law. I am not convinced by the arguments put forward by the Complainant. Firstly, there are two EU Directives which under pin Ireland’s equal status legislation: 

1.Council Directive 2000/43/EC of 29 June 2000 implementing equal treatment between persons irrespective of racial or ethnic origin – also known as the “Race Directive”;  and

2.Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between women and men in the access to and supply of goods and services – also known as the “Gender Goods and Services Directive”.

There is no explicit EU Directive dealing with age discrimination though I accept that in the cases cited by the Complainant above, age discrimination is a general principle of EU law. However, if it was the  intention of EU legislators to prohibit any qualification on a lower age limit for EU citizens to take an age discrimination case, then I am sure there would be explicit legislation enacted to show such an intention – no such provisions exist.  Therefore, I decide for the purposes of this case that there is no convincing, persuasive assertion of conflict with EU law, and I  decide that I do not have jurisdiction to hear the age discrimination element of the case.     

Reasonable Accommodation:

Section 2 of the Equal Status Act 2000, as amended, (the Act) defines disability as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

The ‘Reasonable Accommodation’ provision in the Act, in its relevant part, at section 4 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) 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.

(3) 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.

The Burden of proof provision at section 38A provides

(1) Where in any proceedings 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.

The Complainant must therefore first establish a prima facie case of discrimination, in a twofold process that: (1) she has a disability and (2) she was subject to discriminatory treatment, namely in this case that she was  not afforded reasonable accommodation. If the Complainant establishes this prima facie case then  the burden shifts to the Respondent to show, on credible evidence and to the normal civil standard, that the discrimination was objectively justified in that it was for a legitimate reason and that any action taken by the Respondent was proportionate.

The Complainant has established that she has a disability and furthermore that, on the face of it, she was barred from playing at a competitive level at U12 grade because of her disability. I am conscious that in his evidence Mr C said that she was never stopped playing because of her disability but this is then  contradicted in his account when he testified to the contents of a WhatsApp message to the Complainant’s parents, where reliance is put on a purported consultation with the insurance company with regard to the health and safety risk. Furthermore, there is reference in the Respondent’s submission to the Complainant posing a risk because of wearing metal supports – this was satisfactorily refuted by the Complainant’s father who exhibited the plastic protective boot in which the Complainant played. I have no doubt that the Complainant’s disability was the key factor for the Respondent in making its decision, therefore I find that the Complainant has made out a prima facie case. The burden now shifts to the Respondent to show that the discrimination was objectively justified.

The witnesses for the Respondent gave honest and plausible evidence of their reasonable accommodation of the Complainant whereby when she was under 12, she was allowed to play both competitive and non-competitive games. I have no doubt in this case that the Respondent has an overall caring and inclusive mindset when it comes to organising Ladies Gaelic Football, and this is reflected in Code of Ethics and Good Practice for Young Players of the LGFA.  The sport  plays a pivotal role in Irish society. The Respondent  efficiently manages leagues and championships for all ages and the positive influence they have on the community is immeasurable. However, I believe the Respondent came up short in this instant case in the manner in which it withdrew the  reasonable accommodation that was already enjoyed by the Complainant, when  she was previously  allowed play with an age group one or two years behind her due to her restricted movement and smaller size.  

The Respondent opened  Nano Nagle v Daly [2019] IESC 63 where the matter of “reasonable accommodation” was outlined in detail by the Supreme Court. The Court confirmed that the test was one of “reasonableness and proportionality” when evaluating what reasonable accommodation measures had been considered. However,  albeit an employment equality issue, the Supreme Court re-iterated the principle that a respondent must demonstrate that they have fully considered the reasonable accommodation question. In this instant case the Club in its ultimate decision, communicated by the Club chairperson in a  WhatsApp message,  implied that an insurance and other risk assessment would be carried out. The evidence of the Chairperson was that  no such assessment was subsequently  carried out, despite the intimation to do so. Therefore, a decision was made to withdraw the reasonable accommodation based on misapprehensions only, without any medical or insurance advice, about the danger the Complainant could pose both to herself and other players on the pitch. This decision did not satisfy the test in Nano Nagle that full consideration was given to the request for reasonable accommodation.  One misconception, for example,  that seemed to have  made its way all through an internal appeals process, and ultimately to the Respondent’s submission, was that the Complainant would wear supportive metal leg braces, which was debunked at the hearing when the Complainant’s father exhibited what seemed like a considerably safer plastic boot.

The Respondent opened  Cahill v Department of Education and Science [2017] IESC 29  where the Supreme Court ruled that in the area of disability discrimination the test is one of reasonableness and proportionality. However, I also note in that case that the Court noted that while the Act was not always easy to construe, it should be treated as being “remedial social legislation” aimed at levelling the playing field and, as such, “the Court is permitted to adopt a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas.'"

McMenamin J. at para 66 of that judgement,  when referring to the obligation of a Respondent in affording reasonable accommodation, stated:

 “What is in question here is not a simple common law ‘duty of care’, ‘balancing’ exercise, as to what is “reasonable”, but rather one where the balance is significantly tilted in order, where necessary, to impose positive obligations to ensure that all practicable steps are taken. This is different from refraining or abstaining from doing something. The legislative object therein should be seen as to do everything that is reasonable and practicable, both procedurally, and in substance, ensures the treatment of a person with a disability is placed at the same level as a person without a disability. The obligation is not, therefore, simply to refrain from certain actions, but, where necessary, to engage in positive action. In colloquial terms, it can impose a duty to “go the extra mile”.

The evidence showed  that the Respondent had effectively implemented a discretionary, unofficial policy regarding age allowances for the Complainant  However, I am satisfied that the  Respondent unreasonably revoked this accommodation for the Complainant without informed consideration of her disability and small stature. The Respondent did not “go the extra mile” in this case. This is  a somewhat contradictory direction to that signposted in its own Code of Ethics, where inclusivity is portrayed as a core value. Though the parents of the Complainant were assured that assessments would take place before a decision was made, no such practicable steps occurred. I understand the argument  of the Respondent where balance and proportionality for  all players  has to be taken into account when strictly applying the under-age rule. However, the playing of games at  Under 12 level and below,  should never lead to negative psychological effects for children, especially those already challenged with a physical  disability.  Therefore, it would be remiss of me not to prioritise the broad and generous application of the law as envisaged by the Oireachtas.     

In conclusion, I am satisfied that the Complainant established a prima facie case that she was discriminated against by not being afforded reasonable accommodation for her disability, when she was banned from playing U12 competitive matches, which heretofore she enjoyed playing. The prima facie case was not satisfactorily rebutted by the Respondent, therefore, I find that the Respondent engaged in prohibited conduct by not affording  the Complainant reasonable accommodation for her disability.

Redress:

The Complainant’s parents spoke of the devastating effect the ban on playing competitive matches had on the Complainant. However, I find there were insignificant aggravating factors in the unfortunate set of circumstances that arose. The Respondent organisation is run by conscientious people from grassroots level to the top. It seems naivety was at play here rather than any malicious intent. Despite this, the Respondent cannot be completely absolved because there is a legal obligation to abide by the law on inclusivity, especially when it directly affects children. Having considered all the circumstances in this case, I direct the Respondent to make compensation of €5,000 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

Furthermore, I conclude that an official age dispensation policy for children with a disability should be adopted to assist the Respondent in avoiding such prohibited conduct in future. I direct the Respondent to introduce  an age dispensation policy for children with a disability in underage levels up to, and including, the Under-12 level. Such a policy should be fully compliant with the Equal Status Acts 2000-2015 and be incorporated into the Respondent’s Code of Ethics and Good Practice for Young Players of the LGFA within six months of this decision.

For the reasons outlined above, I find that the Respondent engaged in prohibited conduct  by not affording the Complainant  reasonable accommodation for her disability  and I direct The Respondent to pay the Complainant the compensatory sum of €5000 for the effects of the prohibited conduct.

I direct the Respondent to introduce an age dispensation policy for children with a disability in underage levels up to, and including, the Under-12 level. Such a policy should be fully compliant with the Equal Status Acts 2000-2015 and be incorporated into the Respondent’s Code of Ethics and Good Practice for Young Players of the LGFA within six months of this decision.

Equal Status Acts 2000-2015, Age, Disability, Reasonable Accommodation.