Complainant

Respondent

Anonymised Parties

A Service User

A State funded Agency.

Representatives

Ann Marcos

Amy McNicholas Comyn Kelleher Tobin LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063180-001

30/04/2024

The Complainant alleges that he was discriminated against by the Respondent when they refused to allow his aunt, AS, to act on his behalf during two ‘child in care’ review meetings in January and February 2024. The Respondent refutes the allegation and states that they were not on notice of the Complainant’s disability. 

SD – took the affirmation and gave his evidence as follows:

The Complainant has ADHD and has learning and memory difficulties. He was diagnosed by Calms many years ago. In addition, he gets anxious and nervous and has difficulty sitting still for any length of time.  

The Complainant has four children, all of which are in the care of the Respondent. He regularly attends ‘child in care’ review meetings in relation to his children. Because of his disability his Aunt AS attends with him so that she can takes notes and provide an explanation to him afterwards. She also assists him during the meetings as she explains things to him during the meeting when he experiences difficulties comprehending. She also asks questions on his behalf.

He attended one such review on 25.01 2024. As normal he attended with his representative, AS so that she could assist him during that hearing. The meeting was in relation to one of his daughters.  In attendance was the social worker, the Complainant and his representative and his daughter’s mother, the foster career and the link worker.  The Chairperson told the Complainant’s representative that she could not participate in the meeting and that she could not take notes. It is important that she be there to take notes because he can’t remember all that happens due to his ADHD. He was told that she had to sit down and be quiet. The Complainant tried to talk during the meeting but he was also told to be quiet. These events were very distressing for the Complainant.

AS- took the affirmation and gave her evidence as follows:

In 2016 the Complainant went to the UK. The Complainant provided written authorisation for AS to act on his behalf. In 2020 the Complainant was not available for a meeting and Ms. AS stood in on his behalf. That authorisation is still valid today. There never was an issue with that until January 2024.

She attended at the meeting on the 25.01.2024. That was in relation to the Complainant’s daughter. At the start of the meeting, she was told by the chairman that she could not take notes, she could not participate in the meeting or speak on his behave that she was only there to support the Complainant. That was the role of a support person. She was given no prior notice of this.  She can’t recall if she informed anyone that the Complainant had a disability and because of that she needed to be there to assist him. The Respondent states, that at no point, were they made aware of the disability. AS states that the Respondent should have been aware of his disability because it would have been in his file.  The Complainant was very upset about it and asked her if there was anything she they could do about it. She sought advice and was told that he should bring a claim to the WRC. They decided to do that.

 AS does recall telling the Chairperson ME at other meetings that the Complainant had ADHD and required her assistance.  Also, JN, a psychologist, when she was assessing the Complainant’s son for ADHD and she took a complete medical history from the Complainant. She would also have known.

The Respondent admits that some of its servants or agents were aware that he had ADHD,  but were not aware that he needed AS to assist him to take notes, ask questions etc on is behave.

Following the meeting she would normally get a child in review plan, but she was informed that they would no longer be getting a copy of that plan. They argued about it and eventually it was agreed that they would get a copy of it.

On the 19th February they attended another meeting.  At the beginning of the meeting the Chairperson said nothing about taking notes or about her role in the proceedings. It wasn’t until AS tried to ask a question, she was told that she couldn’t ask questions and that she wasn’t allowed to speak or take notes. Then there was a conversation about the Complainant attending a football game with his son however at the same time there was a conversation about schoolwork. The Complainant made a comment to the social worker/team leader. She responded by saying that he shouldn’t talk to her in that way. Then out of nowhere they were asked to leave.  They left.

The Complainant feels that he is being discriminated against on the grounds of Disability.

NF – Affirmed and gave her evidence as follows:

She is the team leader of the ‘Child in Care’ team. She is also the team leader for 3 of 4 of the Complainant’s children. She is team leader to his two youngest children since September 2023 and his eldest son since August 2024.  She engages with the Complainant on an ongoing basis. It does get very difficult at times to communicate with him as he refuses to engage with her and insists that AS talks on his behave or that NF and her team talk to her. He does accept now that he needs to engage with the child in care team. Engagement had to be done over the phone because he won’t meet in person. The Complainant had never told NF that he has ADHD nor has he ever made the Courts aware during hearings that he needs accommodations due to his ADHD. He did once in a District Court appeal apply to have  AS attend as a McKenzie friend however ADHD was not part of that application. She was allowed to attend because he did not have a solicitor but as a support person and not as an advocate.  

It wasn’t until the claim was filed with the WRC that NF was made aware of his disability.

The Complainant stated that a letter was sent to the Judge requesting AS be able to attend to assist the Complainant. A copy of that letter was sent to the Respondent. The Complainant admits that ADHD was not mentioned in that letter.

AN – Affirmed and gave her evidence as follows:

She is the social worker within the Respondent. She has had no dealings with the Complainant or his Children. She however did meet him on the 25th January 2024 in relation to a child in care review. It had to be done within a timely fashion. They looked at his daughter’s general health, wellbeing and access. Both parents were in attendance. The meeting was in the access room.

AN offered him a chair at the table but he declined. He sat behind everyone in an armchair. It important to note that any parent is allowed to bring someone as an emotional support to a meeting.  At that meeting in January AN commenced the meeting by introducing herself. At no point, either before, during or after the meeting did anyone tell her that the Complainant had a disability. AS was with the Complainant, and she was taking a note. AN did enquire as to why she was taking notes.  She can’t remember what AS said in response to that. She did remind her that she was not a minute taker. There was a heated verbal exchange between SR and the Complainant. AN  did ask SR not to talk to the Complainant in that way. At no point did AS ask the Complainant if he was ok or if he needed accommodations. All calmed down. AS stated that she was specifically told not to speak. AN denied that. She does recall the child’s mother asking AS to stop talking at one point. The Complainant stated that SR was fully aware of his disability and asked had she not informed AN of that? She did not. The child in care reviews are about the children, not about the parents. His issues would not be on the child’s file. The other file they have with them at the meetings is the child’s file.

ME – Affirmed and gave her evidence as follows:    

She is a team leader and since February 2022 she has chaired the ‘child in care’ reviews.  The Complainant has three kids in care. She did the reviews for them. The date for the next meeting is put into the calendar on the day of the previous review. The forms are sent out to the parents, the school etc and they either submit them or bring them on the next day. In February 2024 the review was in relation to his eldest son. The review started and family disabilities were spoken about. She does recall the Complainant’s brother disabilities being spoken about. If she had been aware that the Complainant had a disability he would have been accommodated and that too would have formed part of the discussion.  During that particular meeting the Complainant was having a conversation with AS whilst the meeting was in progress. It was very disruptive. She did ask her to stop talking because she could not hear what was being said about the child. The entire purpose of the meeting was about the child so it was important to hear what was being said.  It became impossible to meet the objective of the meeting with the conversations continuing during the meeting. The meeting had to be adjourned. At no stage did anyone ask for a break or for any accommodations to be made or set out that the Complainant had a disability.  

The witness was asked if she as team leader was ever told about the child’s ADHD and the Complainant’s ADHD. ME recalls at that meeting the child’s disability and the Complainant brother’s disability being spoken about but at no point was the Complainant’s disability spoken about.

The Respondent accepts that some people within their entity might have been aware of the disabilities however nobody who was in attendance at the meeting in January and February 2024 were aware of the disability and the accommodations he needed. Once the ES1 Form was received, accommodations were put in place, and he is given all the accommodations he needs now.

The Complainant alleges that he was discriminated against by the Respondent when they refused to allow his aunt, AS, to act on his behalf during two ‘child in care’ review meetings in January and February 2024. The Respondent refutes the allegation and states that they were not on notice of the Complainant’s disability. 

The law in relation to discrimination is well established in this jurisdiction:

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment”.

The first requirement in this matter is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment was not applied to him. The central issue in this case is one of knowledge: specifically, whether the Respondent, its employees, or agents were aware of the Complainant’s disability at the relevant time.

Having considered the evidence, I am satisfied that they were not.

All of the Respondent’s witnesses testified that they were unaware of the Complainant’s disability or any need for accommodations. They consistently stated that, at no point during any of the ‘child in care’ review meetings, were they informed of a disability or asked to make accommodations. They further explained that it would not be unusual for an attendee to bring a support person to such meetings, and they viewed AS (the individual who accompanied the Complainant) simply as a support person.

The Complainant and AS both acknowledged that the Respondent’s witnesses had not been explicitly informed of the Complainant’s disability. However, they argued that the Respondent should have known, as this information would have been recorded in internal files. They also acknowledged that the letter presented to the Court, which was in the Respondent’s possession, did not disclose the disability.

It is evident from the testimony that the Complainant had a strained relationship with those involved in the review process. He refused to engage directly with them, insisted on handling matters via phone, and was generally disruptive and uncooperative during meetings. Whether this behaviour was a consequence of his disability is unclear, as no evidence was presented regarding the nature of the disability or its impact on his interactions.

It is important to note that the purpose of the ‘child in care’ review meetings is to focus on the child, not the parent.

I accept the Complainant’s assertion that his disability may have been documented somewhere within the Respondent’s records. However, I do not accept that this information was available to the specific department involved in this case. Accordingly, I find that the Respondent did not have actual knowledge of the Complainant’s disability at the material time.

Evidence was presented to show that, once the Respondent became aware of the Complainant’s disability, accommodations were subsequently made.

Having considered all the evidence, documentation, and submissions presented by both parties, I find that the complaint is not well-founded and must therefore fails.

The Complaint fails.

Disability, Knowledge, Accommodations, Discrimination.