Complainant

Respondent

Parties

Robert  Cantwell

 Hse

Representatives

 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-00067201-001

05/11/2024

The complainant submits that he was directly and indirectly discriminated against on the grounds of disability by their failure to provide reasonable accommodation.

Preliminary Issue:

The complainant did not object to changing the name of the respondent to HSE.

Substantive Issue:

The complainant submitted that he was discriminated against both directly and indirectly by the respondent on 27/08/2024 by their failure to provide reasonable accommodation.  He submitted an ES1 on 24/09/2024 and received a response on 22/10/2024 and the complaint was received by the WRC on 05/11/2024.  The complainant submits that his disabilities includes a traumatic brain injury, and Post Traumatic Stress Disorder (PTSD). He submitted that he was receiving physiotherapy treatment from a HSE physiotherapist and was subsequently referred for an orthotic assessment to a specialist provider and they would not provide this to him at home and he was never offered a home visit and he cannot attend their clinics owing to his disability.

The complainant gave evidence regarding his disability and the impact that this has on him and that he is hemiplegic, has been in receipt of medical attention since brain surgery at the age of 8 years following violence that he was subjected to as a 8 year old.  He is now 68 years old and gave evidence of the impact of trauma on him for many years including addictions and he had also received help along the way.  He had been referred for physio and he requested a home visit for orthotics and was told there would not be a home visit and he kept phoning the service provider and was never offered a home visit.  His evidence was that he did not receive a home visit and did not get offered a home visit and that orthotic would have been a huge benefit for him

Under cross examination he said he did not know that there was an expectation that persons would attend in person for orthotics.  He said he declined the invitation for a home visit that was then offered as the damage had been done mentally, emotionally and psychologically.  He said the service provider denied him a home visit and he could not engage with them after that as he was damaged and the only way to deal with it was through the WRC.  Visitors to his house upsets his dog and when this was suggested he said he was in his PTSD and had a storm of negativity and felt ambushed.  He said the only way he can deal with this is through the WRC.

Preliminary Issue:

The respondent submitted that the correct name of the respondent should be HSE and not Mayo Primary Care Centre and requested that this be changed.

Substantive Issue:

The respondent submitted it was difficult to understand at times the complainant’s written submissions but it appeared the complainant alleged in or around July 2024, the Complainant was receiving physiotherapy treatment at his home in Galway from a HSE physiotherapist and was referred for an orthotic assessment.  The complainant appears to claim that he was refused a home visit.

The Complainant submitted an ES1 form dated 24/09/2024 to the Respondent, outlining the nature of the alleged discrimination and the respondent replied using the ES2 form.  Mr. A, HSE Senior Physiotherapist, became aware that the Respondent was going to provide the complainant a home visit through its clinic but were unable to provide the Complainant with a specific appointment time, as the clinic frequently runs over its scheduled hours. The Complainant subsequently indicated that he no longer wished to avail of their services.

The Complainant then requested to be referred to another provider who could facilitate a home visit for the orthotic assessment. He informed the Respondent that, due to his long-term disability, he is unable to travel to an in-person appointment.  Mr A contacted a vendor to inquire whether a home visit could be facilitated and this was not possible.  Mr A then informed Ms. Megan Pawelczyk, HSE Senior Orthotist, and another provider who confirmed that it could accommodate the request for a home visit. However, the Complainant informed the Respondent that he no longer wished to avail of the service.

Ms. Pawelczyk attempted to contact the Complainant by telephone but was informed that the complainant did not wish to speak with her. Ms. Pawelczyk then wrote to the Complainant to propose a home visit to discuss any reasonable accommodations that might resolve the issue.  The Complainant declined to engage and requested that the Respondent reply to his concerns set out in the ES1 form using the ES2 form provided. The Respondent issued its ES2 form response to the Complainant and, again offered to meet to discuss the Complainant’s concerns and explore alternative ways to provide the service. On 07/11/2024  the Complainant contacted the Respondent by phone, acknowledging the offer of a home visit but stating that he was not comfortable with Ms. Pawelczyk and Mr. Seamus Beirne, General Manager, Primary Care, attending his home. He explained that he has a dog and that visitors would upset the dog. The Respondent reminded the Complainant that the home visit was offered in response to his earlier request that any meeting take place in his home. The Complainant stated that he could not recall making that request.  The Complainant indicated that he was willing to discuss the matter by telephone, specifying that calls should take place in the morning as he goes to bed at 2 p.m.  

On 26/11/2024 the Respondent contacted the Complainant by telephone. Ms. Megan Pawelczyk, Mr. Seamus Beirne, and Ms. Claire Fleming (notetaker) were present on the call. During the call, the Respondent attempted to discuss potential accommodations. However, the Complainant declined to engage further and indicated his intention to pursue the matter through legal channels.

It was submitted it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him and the complainant has not adduced any evidence that such discrimination has occurred. The Respondent specifically submits that it has not excluded the Complainant from the Orthotics service it provides.  The Respondent accepts that the Complainant has a disability within the meaning of the Acts. However, the Complainant has not to date provided any medical opinion which states that the effects of the Complainant’s disability prevent him from attending appointments at clinical locations, as he maintains.  The Respondent respectfully submits that it has not discriminated against the Complainant directly or indirectly, nor has the Respondent failed to reasonably accommodate the Complainant in terms of accessing the orthotic services provided by the Respondent.

Upon being made aware of the Complainant’s request for a home visit due to the Complainant stating he had an inability to travel to attend an in-person appointment, the Respondent, without questioning the Complainant’s position further, took proactive steps to explore alternative service arrangements. This included contacting multiple service providers to determine whether a home visit could be facilitated.  The Complainant declined to engage with the service providers and later refused to speak with the Respondent’s representatives and declined efforts to engage with the respondent.   The Respondent respectfully submits that it has taken all reasonable steps to accommodate the Complainant’s needs.

The Complainant’s refusal to engage with the service providers identified, despite their willingness to accommodate him, breaks the causal link between the alleged disability and any alleged exclusion from service.  The Respondent denies that the Complainant has been treated less favourably on the grounds of disability and in fact made considerable efforts to facilitate access to the service, including offering alternatives not typically available to other service users.

In the circumstances, the Respondent respectfully submits that no prohibited conduct has occurred within the meaning of the Equal Status Acts and that the complaint should be dismissed.

The Respondent submits that, in this case, all decisions regarding the provision of orthotic services were made on clinical and operational grounds, and there is no evidence of adverse treatment arising out of the Complainant’s disability. The respondent made efforts beyond what is typically offered to other service users, ultimately however, it was the Complainant’s own decision not to engage with the Respondent in respect of the options proposed. The complainant may have found the process frustrating, but the evidence does not support prohibited conduct occurred.  The Respondent remains willing and available to engage with the Complainant in relation to his needs, as he may require.

The evidence of Ms Pawelczyk was that she became aware in September 2024 that the complainant had rejected the reasonable accommodation which had included a visit from a clinic when they had concluded the clinic.  She looked to see if there was any other service provider who could attend at the home of the complainant albeit there was no medical letter requesting this for the complainant.  There are occasions where transportation would be provided and she tried to talk to the complainant about this and he had previously got a home visit.  The complainant declined her offer to contact him directly and she tried to arrange a home visit to discuss it with him and he rejected this invitation as his dog would be upset.  She said home visits are not standard.

Under cross examination  she said she had written to the complainant outlining that they would phone and out lining who would be present for the call.

Case law cited included Mitchel v. Southern Health Board [2001] 12 E.L.R. 201, Melbury Developments Ltd v Valpeters EDA 17/2009, A Complainant (on behalf of her daughter, J) v A Health Service Provider DEC-S2012-043, Derbhala Dwyer v Avista CLG, ADJ-00037899, Kim Cahill v Minister for Education and Science [2017] IESC 29, A Complainant v A Public Service Provider, DEC-S2016-072, Kim Cahill v Minister for Education and Science [2017] IESC 29 A Secondary School Student v. The Board of Management at a Secondary School, ADJ-0048758, ADJ-00049829 – A Child v A Primary School.

Preliminary Issue:

The respondent requested that the respondent’s name be amended to HSE and the complainant confirmed agreement.  The respondent’s name has, therefore, been amended to HSE from Mayo Primary Care Centre having taken into consideration that neither party is prejudiced by same.

Substantive Issue:

The complainant submits that he was directly and indirectly discriminated against on the grounds of disability by the failure to provide reasonable accommodation.  The respondent accepts that the complainant has a disability but submits that no discrimination occurred and that the complainant was reasonably accommodated.

Section 3 of the Equal Status Act 2000 defines discrimination as: -

3.— (1) For the purposes of this Act discrimination shall be taken to occur —7

(a) 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 in subsection (2) or, if appropriate, subsection (3B) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Indirect Discrimination is set out under Section 3(1)(c)

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Protected Grounds are set out under Section 3(1)g

“(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”

Special Treatment is defined in Section 4: -

“4.— (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) 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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.  In Hallinan v Moy Valley Resources DEC-S2008-25, and albeit a complaint under the Employment Equality Act, the principles apply; and it was held that in order to establish a prima facie case of discrimination, the following must be established:

1.      The complainant must establish that he or she is covered by the relevant protected ground;

2.      That the incident(s) complained of actually occurred;

3.      The treatment constitutes less favourable treatment within the meaning of the Act (than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

In the case of Olumide Smith v The Office of the Ombudsman [2020] IEHC 51, it was set out:

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient in itself to establish a claim of discrimination that the Complainant falls within one of the discriminatory grounds laid down under the Act. Other facts must be adduced from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

The complainant must first establish that there was “prohibited conduct”, in this case alleged discrimination by the Respondent ‘s failure to provide reasonable accommodation and required to establish by way of comparator, named or hypothetically, that the Respondent treated him “less favourably than another person is, has been or would be treated”.  In Kim Cahill v Minister for Education and Science 2017 IESC 29, it was noted that the Equal Status Act should be treated as being “remedial social legislation” and allowing the Court to “adopt a broad generous purposive approach, in order to identify and give effect to the plain intention of the Oireachtas”.

The limits of reasonable accommodation requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.

It was not in dispute that the complainant has disabilities including PTSD and a traumatic brain injury and that the respondent was on notice of this and is therefore, covered by the relevant protected ground.  The complainant was referred to orthotics department from physiotherapy department and requested home visit as he has difficulties with mobility.  I note from the correspondence that Mr A informed Ms Pawelcyzk Senior Orthotists on 11/09/2024 that a home visit was required for the complainant.  I further note that Ms Pawelcyzk emailed a service provider on 12/09/2024 requesting this and also made two attempts to contact the service provider by phone and received a response on 13/09/2024 and a visit was arranged for the following week but cancelled on 17/09/2024 when the complainant advised that he was no longer willing to avail of a home visit and he submitted his ES1 on 24/09/2024. 

The complainant was very articulate in his evidence in communicating that what he experienced during these interactions with the respondent was what he referred to as “storm of negativity” associated with his PTSD.  It was clear that a response to the complainant’s request for a home visit did not come as immediately as the complainant wanted, however, the correspondence clearly outlines that both Mr A and Ms Pawelcyzk did recognise very clearly the complainant’s need for a home visit and it would appear that they made exceptional efforts to facilitate the accommodations as speedily as they could and made efforts to engage with the complainant to determine what else they could do to assist.  Requests to accommodate him was initiated on 11/09/2024 and a visit arranged was cancelled by the complainant on 17/11/2024 who submitted an ES1 a week later. I find therefore, taking into all the circumstances of the complaint that the complainant has not satisfied the second test and an incident of failure to provide reasonable accommodation either directly or indirectly did not occur.

Having regard to the foregoing, I find that the Complainant has not discharged the initial burden of proof imposed on him by the Act in establishing a prima facie case of discrimination either directly or indirectly and every effort was made to provide him with reasonable accommodation.

For completeness, in such circumstances, I find that the Respondent has not engaged in prohibited conduct of direct discrimination in providing reasonable accommodation as defined by the Act and I dismiss the complaint.   

I also find that the Respondent has not engaged in prohibited conduct of indirect discrimination in providing reasonable accommodation as defined by the Act and I dismiss the complaint.  

 I find that the Respondent has not engaged in prohibited conduct of direct discrimination in providing reasonable accommodation as defined by the Act and I dismiss the complaint.  

I find that the Respondent has not engaged in prohibited conduct of indirect discrimination in providing reasonable accommodation as defined by the Act and I dismiss the complaint.  

Discrimination, disability, reasonable accommodation