Complainant

Respondent

Anonymised Parties

A Member of the Public

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063966-001

04/06/2024

The Complainant is autistic and severely visually impaired and is the founder and co-ordinator of a Disabled Persons’ Organisation (DPRO).

The Complainant stated that he was discriminated against by the Respondent in the first instance when the Respondent arranged a meeting on 7 December 2023 in a format that was inaccessible to him.  He also asserted that the Respondent discriminated against him because they refused to engage with him via telephone.

The Complainant highlighted that the Respondent hosted hybrid meetings on 20 July and 5 September 2023 in relation to the National Disability Strategy (2025-30), with the first being for general “stakeholder” participation, and the second supposed to be exclusive to DPROs.

On 4 December 2023, the Respondent sent him and the DPRO that he founded a reminder to register for what turned out to be a face-to-face-only meeting on 7 December 2023. He stated that this format was inaccessible to him, due to both his visual impairment and his autism.  On the same day, he requested from the Respondent, as reasonable accommodation, that an online facility for attending the meeting be also provided. This email was not acknowledged and his request was subsequently refused in a meeting on 6 December 2023 with a “best for the most” rationale being cited. He stated that the failure to afford him reasonable accommodation meant that he could not report back from the general consultative meeting to his membership, either in terms of what was on the table at the meeting, or the various positions being taken by other organisations (DPRO or non-DPRO), and by interested individuals from the general public.

While he acknowledged that the Respondent held a subsequent online meeting on 17 January 2024, he stated that at least three individuals attended both events but he was restricted to attending only one. This meant that he would have had less influence than those attending multiple meetings.

Communications between the Complainant and the Respondent

The Complainant also stated that, because of his disability, he needs flexibility between written and verbal modes of communication to facilitate his processing. He stated that no other public body, or subsection within a public body, has ever had a problem with this except a particular section of the Respondent’s department. He stated that he is always respectful of the time staff have to afford to everything else, and never takes their time for granted, or overburdens them with calls, making sure he either arranges a next time of suitable calling, or waits for a week or more.

He stated that the refusal to communicate by phone is not occasional or less frequent, it is blanket. He stated that he needs to be able to communicate with the particular section of the Respondent, verbally, not just on their terms (such as at a certain time in a crowded space), but as part of his regular communication with that part of the Respondent body. He stated that his DPRO suffers greatly because of this refusal.

On 7 December 2023, the Respondent hosted the first of several stakeholder consultation events with individuals and representative organisations, for the purposes of developing the next National Disability Strategy. The purpose of the consultation event was to seek input from stakeholders on three primary considerations as follows: models for stakeholder engagement post publication of the Strategy, input on the vision, principles and values underpinning the strategy, and emerging themes or action areas to be developed under the strategy.

The Respondent determined that the most appropriate means of ensuring inclusivity and effectiveness in the consultation process was to host the consultation event on 7 December 2023, offline and in-person, and to host a duplicate or identical online event on 17 January 2024, to accommodate those unable to attend the in-person version of the event held on 7 December 2023.

The Respondent gave due consideration to running the event on 7 December 2023, as a hybrid event, allowing both online and in-person attendance, but a hybrid event was determined to be unfeasible and/or unworkable for the following reasons:

·        The consultation events were designed to be highly collaborative, with opportunities for stakeholders to participate in facilitated discussions and provide feedback directly to the Department on their views in relation to the emerging strategy. It was determined that the hybrid format did not lend itself well to ensuring an equality of participation as between those attending online and in-person and that genuine blended engagement was not feasible.

·        It was determined that those attending online would be at a disadvantage at a hybrid event, where it is more challenging to hear and to contribute to discussions happening at the venue and where technology and resources are not sufficiently supportive in managing these challenges.

·        At the first in-person consultation event, breakout groups were located around the room in small circles of approx. 8 attendees, each with a dedicated facilitator and note-taker. In order to host the meeting in a genuinely blended format, those attending online would have been contributing through laptop speakers – with laptops situated on chairs in the circles. This would have been entirely impractical where noise levels in the room was already an issue, with several attendees providing feedback that it was challenging to hear on the day. Organisers were aware of this challenge in advance, having tested the acoustics of the space and requested an additional room from the hotel to host breakouts. The degree of background noise in both spaces would have made it impossible for online attendees to hear the conversation, and extremely challenging for facilitators to manage inputs across both cohorts.

·        In addition, the running of several simultaneous breakout sessions at the in-person event would have created an extremely challenging amount of cross-talk – resulting in problematic levels of background noise being picked up over the Zoom connection and difficulties for online attendees being heard or communicating with in person attendees.

On 27 November 2023, the Respondent extended an invitation to the Complainant to attend the consultation event on 7 December 2023. On 4 December 2023, the Respondent attended a meeting with the Disability Stakeholder Group, of which the Complainant is a member and was present. The Complainant wrote to the Respondent following that meeting, at 12:10 on 4 December, requesting a trilateral meeting between the Respondent, the organisation he was involved with and another organisation.

The Respondent responded positively to this email at 17:11 on 4 December, proposing a meeting on 6 December 2023. The Complainant responded further at 17:26 on 4 December 2023 and raised the issue of the event on 7 December 2023 being inaccessible to him if not held in hybrid format. This issue was raised as a topic of conversation in the context of the meeting on 6 December 2023.

Also on 4 December 2023, the Respondent wrote to all stakeholders invited to attend on 7 December 2023, with a reminder to register. Upon receipt of this reminder, the Complainant again raised his request for a hybrid meeting format. This email came through at 17:58 on 4 December 2023 and did not receive a direct response, as its contents were already established by previous correspondence as on the agenda for the meeting on 6 December 2023

On 6 December 2023, the Department met with the Complainant, as a representative of his organisation and directly consulted with him. At this meeting, the Complainant was provided with an opportunity to directly raise issues pertaining to the strategy in a dedicated forum. At this meeting the challenges related to hybrid meetings were discussed and given due consideration by the Department. This meeting was held with the purpose of engaging with the Complainant’s organisation in circumstances where it was anticipated that the Complainant would be unable to attend the event on 7 December 2023.

The Complainant’s assertion in the ES1 form and in the written submissions, that the Department’s understanding of reasonable accommodation at the meeting on 6 December 2023, or the Department’s position on same that reasonable accommodation is “best for the most” is strenuously denied by the Department and is an incorrect summation of the Department’s position, as communicated to the Complainant.

On 17 January 2024, a second stakeholder consultation event was hosted by the Respondent online, and the Complainant attended the event. The events hosted on 7 December 2023 and 17 January 2024 were identical events in every material respect with identical processes in terms of facilitation and note-taking of stakeholder input into the Strategy Development Process. 

In addition to the above attendance at the event on 17 January 2024, the Complainant was able to provide input on this stage of the stakeholder consultation via his membership of the Stakeholder Group, which met online with Department officials for this express purpose on 4 December 2023, 10 January 2024 and 23 May 2024.

The feedback received from the event on 7 December 2023 did not influence policy with any finality or in any way disproportionately to later consultation events. The process followed by the Department in developing policy is a lengthy process in which a wide range of stakeholder perspectives are sought over a considerable period and fed on an equitable basis into the development of policy or strategy.  Moreover, the practice in stakeholder consultation is to run events sequentially and in duplicate form, with no material or final policy advancement determined until all views have been gathered and analysed.

Communications between the Complainant and the Respondent

On the matter of direct communication between the Complainant and the Respondent, an analysis was conducted of approximately 50 email threads exchanged between the Complainant and the Respondent over a 3-year period.

This analysis indicates that excluding requests for direct phone calls, approximately 16 emails contained requests for reasonable accommodations including the provision of accessible materials, arrangements for the Complainant to contribute during a hybrid event, and additional time for the submission of observations on policy development-related materials.

Excluding threads of a purely administrative nature (relating to the organisation of meetings, amending minutes, etc.), approximately 30 email threads remain. Of these, approximately 29 threads referenced substantially the same policy issue and view. In essence this is the Complainant’s assertion of his interpretation of the UNCRPD Article 4(3) and General Comment 7, the obligations this creates for the State in how it approaches consultation with stakeholders, and specifically Disabled Persons Organisations and, ultimately, how he believes a large number of State bodies are failing in response to these obligations.

The correspondence further includes an assertion that the Complainant is entitled to more access to the Respondent and information and engagement with senior officials on substantive issues relating to the policy making process, the deliberations of government and public bodies, the implementation of policy and discussion of substantive and complex issues.

The remaining emails contain requests for and complaints regarding, accessible versions of publications; requests for amendments to the minutes of meetings which he had attended and complaints about the quality of those minutes; correspondence in relation to the arrangements for meetings; and submissions on behalf of his organisation. Among the emails are a substantial number of instances in which the Department is cc’d on emails to an array of other State bodies and Departments.

Overall, the Department has engaged with and sought to maintain cordial and productive engagements with the Complainant by email and phone, where possible. It is asserted by the Complainant that as a co-ordinator of an organisation with which the Respondent engages, he has “good reason to be able to easily contact” the Respondent, and that the Respondent has failed to include phone/verbal communication as reasonable accommodation. This allegation was strongly rejected. The Department and the Respondent have endeavoured to engage and communicate both verbally and in writing and the Complainant has been provided with ample opportunity to input verbally and in writing to the development of the Strategy and on disability policy more broadly.

The substantive matters on which the Complainant wishes to engage (policy development and implementation) cannot feasibly be addressed in the manner desired by the Complainant, on the phone. The policy making process is a formalised process which a large number of individuals and organisations seek to be involved in and to influence and it is not feasible for the Department or the Respondent to provide on request or on demand access to the policy making process or senior official time to the Complainant or members of the public.

In the case of specific instances cited by the Complainant, efforts were made to respond to emails sent by the Complainant. The Complainant’s phone call on 19 January 2024, was answered and it was explained to the Complainant that the Department were endeavouring to respond to the emails sent. This is accepted by the Complainant in the ES1 form.

The Complainant cites emails on 17 and 19 January 2024 to which he claims the Department did not respond. The Complainant’s email of 17 January 2024 pertains to a request for a follow up meeting, following engagement on 6 December 2024 and the email on 19 January 2024 requests verbal communication by phone, reiterates previous comments in relation to the Complainant’s dissatisfaction with the event on 7 December 2024 and indicates an intention to enact legal proceedings unless a response that is satisfactory in his estimation is furnished.

The email of 19 January 2024 was acknowledged by the Respondent on 22 January 2024 and the Complainant was informed that the Respondent would revert to him.

On 29 January 2024, seven days after this email was acknowledged, the Complainant submitted the ES1 form. The Respondent’s furnished a reply to the ES1.

Preliminary Matter:

The Law:

Section 2 of the Act defines ‘service’ for the purpose of the Act as follows:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998 or a service or facility in relation to which that Act applies.”

Findings in respect of the Preliminary Matter:

The essence of the Complainant’s case in the first instance is that the Respondent discriminated against him when they failed to reasonably accommodate him by hosting an offline consultation event. I find however, in accordance with the definitions set out in the Act above, that the Respondent was not providing a ‘service’ for the purpose of section 4 of Act, when it hosted this in person consultation event on 7 December 2023 seeking input into a policy developmental process. Even if the Respondent was providing a ‘service’, which for the avoidance of doubt I have found it was not, I noted that the Complainant attended the identical stakeholder consultation event online on 17 January 2024.

In addition, he stated that he was discriminated against when the Respondent refused to take phone calls from him wherein he sought to speak directly with specific officials. I find however that the Complainant has not established that the Respondent was providing a ‘service’ in this context because this is not a ‘service’ or facility which is available to the public generally, or a section of the public, as set out in the Act.

As I have found that the Respondent was not providing a service, as set out in the Act, in the context of the events complained of, I find that I do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.