Complainant

Respondent

Anonymised Parties

{An Infant}

{A Creche}

Representatives

Mary Geary McMahon O'Brien Tynan, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065373-001

13/08/2024

The Complainant is an infant who attended the creche and is represented by her parents in this complaint.

The Complainant complains she has been discriminated on the grounds of her disability by a creche who also failed to provide her with reasonable accommodation.

She was attending childcare at the Respondent’s creche from 23rd August 2022 when she was eighteen months old. She was happy in the creche which was close to her home and within walking distance.

On 10th February 2024, the Complainant ate a cookie at home and was unwell. Her parents took her to a doctor who said her breathing was fine and she did not appear to be in danger. It was protocol to refer her to the Accident and Emergency Department as it may be an allergy. The Complainant attended A & E. She developed a rash but was otherwise in good form and was sent home a few hours later.

On 15th February 2024, the Complainant attended a Consultant food allergist who found she was allergic to peanuts, pistachio and cashew nuts. As a precaution in the event of accidental exposure, the Complainant must have a pair of Epipens with her at all times. Her parents were shown how to use the Epipen with a trainer Epipen.

The Complainant returned to the creche on 19th February 2024. Her father explained to the minder about use of the Epipens and met with one of the owners. He explained the situation. The owner said under no circumstances would any Epipens be allowed in the creche and the Complainant would have to leave the creche. The owner advises that the creche is too big, and they cannot guarantee that nuts will not be brought into the creche. She advised the Complainant should be moved to a smaller creche which would be better placed to look after her. The Complainant’s parents were shocked. The owner said they would give them one or two weeks to find an alternative. The Complainants parents discovered this is the only creche who will not take a child with Epipens. The Respondent did not respond to emails. The Complainants parents had difficulty finding an alternative creche in their area and lost wages as a result. The Respondent refused to take Epipens for the two week period, so her parents were forced to remove the Complainant immediately from the creche.

The Complainants parents claim she has suffered direct discrimination and the creche failed to provide reasonable accommodation which contrasts with other childcare providers. The creches policy states that Epipens may be allowed if certain conditions are met. The Complainants parents believe she has been treated less favourably than other children without a disability and other children with different disabilities. The treatment and removal of the Complainant from the creche has caused great anxiety and worry for her parents and has caused disadvantage the new childcare provider is much further away for the family.

The owners of the creche were not prepared to take responsibility for the Complainant being in the creche with a severe nut allergy requiring the administration of Epi-Pen medication due her age and previous history. The Respondents were not notified or consulted prior to Monday 19th of February 2024 that the Complainant was returning to the creche with a new medical condition.

The Respondents replied to the complaint by Form ES2 dated 22nd April 2024. The creche submitted a policy stating they have a discretion whether to accept Epipens and said they were not prepared to take on the risk because of previous history. They had a Sudden Infant Death in the creche some years ago. They deny discrimination and were concerned for the health of the Complainant.

The Respondent said the Complainant had multiple other sensitivities to strawberries, kiwis and eggs. She had pneumonia in June 2023 due to asthma and had breathing difficulties. The parents asked the creche to avoid giving these products which they did. One of the owners gave evidence, that as the Complainant was so young, she was worried one of the other children could give her a product with nuts. The creche has discretion what cases to accept where Epipens are involved. The risk with a nut allergy is much higher. The creche were not provided with any medical information relating to the Complainant’s allergy when the infant was returned to the creche. There should have been a meeting to inform them and discuss the issue. They felt they could not take on the responsibility to keep the Complainant safe from harm.

The owner said the creche deal with the issues on a case by case basis, and it is important the Complainant was only two years of age.

The Respondent was prepared to give the Complainant two weeks to find alternative childcare and would provide extra staff to watch her all the time for the two week period.

The Respondent denies any discrimination and relies on S4 of the Equal Status Act 2000 that the circumstances could cause the Complainant harm. The difference of treatment given was to keep the Complainant safe.

I have heard and considered the parties submissions and evidence in relation to the complaint.

As the Complainant is a minor, I am anonymising the identities of all parties to the complaint.

The Complainant was diagnosed with an allergy to peanuts, pistachio and cashew nuts on 15th February 2024 when she was two years of age. Her father informed the creche on the morning of 19th February 2024 of this condition when he was returning the child. He told one of the childminders about the requirement for Epipens to be held by them. One of the owners of the creche then met her father on 19th February 2024, and refused to accept Epipens for the Complainant stating her concern that the creche was too big and they did not believe they could keep her safe. They offered to mind the child for another two weeks while the parents were sourcing alternative childcare. The creches refusal to accept the Epipens ultimately resulted in her being removed from the creche on 19th February 2024.

The Complainant sent a Form ES1 to the creche dated 16th April 2024. A Form ES2 reply was received from the Respondent dated 22 April 2024. The complaint was received by the Workplace Relations Commission on 13th August 2024.

Section 5 of the Equal Status Act 2000 prohibits discrimination in providing services to the public generally or a section of the public, whether the service is provided for consideration or otherwise.

The Complainant claims she was discriminated against by the Respondent on grounds of her disability in terms of Section 3 (1), S 3 (2) (g) and S4 of the Equal Status Acts 2000 and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities.

Section 3 (1)(a) of the Equal Status Acts 2000 provides that discrimination shall be taken to occur where “A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified”. Section 3 (2) (g) provides that as between any two persons, that one is a person with a disability and the other either is not or is a person with a different disability. S4 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.

S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The Respondent is a “pre-school service” within the meaning of Part VII of the Childcare Act 1991 which is any pre-school, play group, day nursery, creche, day-care or other similar service which caters for pre-school children, including those grant-aided by health boards.

S7 of the Equal Status Act 20007 provides:

(1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

(2) An educational establishment shall not discriminate in relation to—

(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

(b) the access of a student to any course, facility or benefit provided by the establishment,

(c) any other term or condition of participation in the establishment by a student, or

(d) the expulsion of a student from the establishment or any other sanction against the student.

The Complainant has provided medical evidence of an allergy to certain nuts which may result in anaphylaxis which is a disability within the meaning of S2 of the Equal Status Act 2000, following DEC S2016-053. This requires that her care givers have two Epipens at all times in case of the Complainant’s exposure to certain nuts.

The Complainant’s parents were notified of her new medical condition on 15th February 2024. It is a significant medical change for such a young child. Information regarding the change to the Complainant’s medical condition and medical information should have been provided to the creche owners in advance of her return to the creche. This would have allowed the Respondents to consider the situation and contact their insurers.

One of the owners gave evidence of the trauma experienced by her and her co-workers some years earlier when a Sudden Infant Death occurred on their premises. I accept the owners concern for the Complainant is genuine, and their responsibility would be greater due to the young age of the Complainant.

When provided with information regarding the Childs disability on the morning of 19th February 2024, the Respondent refused to accept the Epipens and said their creche would not be suitable for the Complainant. The Respondent is a childcare provider for some years and had previously put in place arrangements to deal with the Complainant’s sensitivities. An opportunity for consultation and discussion of the issues should have been arranged to allow the parents to submit medical information, to clarify if training or other assistance and an indemnity could be provided to assuage concerns. The Respondents offered to give a two- week period of childcare to the parents to allow them to obtain alternative childcare, however the Complainants parents were not aware they would provide extra resources so the Complainant could be watched and did not take this up.

The Respondent have raised a defence in S 4 of the Act that the creche could not have kept the Complainant safe. I do not find this defence has been established on the evidence.

The Complainant’s parents were upset by what occurred, and had to take time off work as they had no childcare. The Complainant was moved from her creche and minders where she was happy. The new childcare provider is a further distance from their home.

I find a prima facie case of discrimination has been raised and the Respondent has failed to discharge the onus. The Respondent discriminated against the Complainant in terms of S3 2 (g) and S4 of the Equal Status Acts 2000 and failed to reasonably accommodate her disability. I award the Complainant €3,000 compensation for her upset and the effects of discrimination. I direct payment by the Respondent to the Complainant.

I find the Complainant suffered discrimination and failure to reasonably accommodate her disability. I award the Complainant €3,000 compensation.