Complainant

Respondent

Anonymised Parties

Child Nursery User

A Nursery

Representatives

  Guardian

 Proprietor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00069175-001

10/02/2025

9.    The Complainant is brought by a  guardian of K  as next friend,  alleges that K was treated less favourably than peers when the Respondent nursery declined to extend K’s hours from three to five per day, despite earlier assurances and despite other children receiving extended hours. The Complainant maintains that inconsistent explanations, communication issues, and comments made by staff demonstrate unequal treatment and a failure to reasonably accommodate K’s additional needs.

10.The Respondent denies any discriminatory treatment. It states that the refusal to extend K’s hours was due solely to staffing shortages and sector‑wide recruitment challenges, particularly in relation to AIM‑supported roles. The Respondent asserts that no AIM‑registered child received extended hours for the same reasons and that all decisions were made to ensure the safety and wellbeing of all children. It further notes concerns arising from interactions with the Complainant and states that any communications with family members or external agencies were appropriate and in line with safeguarding obligations.

1.       Commencement of Attendance K commenced attendance at the Respondent nursery on 8 May 2023 at the age of two years and seven months. K attends daily from 08:30 to 11:30, supported by an AIM staff member.

2.       Request for Extended Hours On 10 May 2024, K’s guardian requested that K’s hours be extended to 08:30–13:30. The nursery advised that staffing shortages prevented this at the time but stated that extended hours would be available from September 2024.

3.       Notification of Additional Places On 15 July 2024, a message sent through the nursery WhatsApp group indicated that 22 children could move to five‑hour days from September on a first‑come, first‑served basis. K’s guardian responded fifth out of eighteen respondents.

4.       Query Regarding Non‑Allocation On 3 September 2024, the nursery contacted the guardian querying why K had not been collected at 11:30 am. The guardian explained that K had been placed on the extended‑hours list in July. K was the only child on the list not granted extended hours, despite having a longer enrolment period than peers. The nursery advised that revised AIM provisions had not yet commenced and that no date was available for implementation.

5.       Request for Update On 16 September 2024, the guardian sought an update and was informed that no further information was available. On 25 September 2024, K’s social worker was informed that extended hours were not possible due to staffing shortages—this being the first occasion the guardian became aware of this explanation.

6.       AIM Confirmation Sought On 26 September 2024, the guardian contacted AIM directly and was informed that the updated system was operational and that the nursery could apply through the Hive for additional hours regardless of staffing issues. A written request was issued to the nursery on 27 September 2024. On 3 October 2024, the nursery replied that it hoped to recruit appropriate staff shortly and that K would then receive extended hours.

7.       Extended Hour Place Dependent on Recruitment On 10 October 2024, the nursery advised that two new staff members had been recruited, one having commenced and the other awaiting Garda vetting. The nursery stated that K could begin extended hours once the second recruit had started. Subsequent enquiries resulted in updates that vetting remained pending.

8.       Commencement of Staff Member On 3 December 2024, the guardian learned that the second staff member had begun work in early November and that several new children had joined the nursery. When the guardian queried K’s extended hours, the nursery advised that K would not be receiving them, stating that K would not “be able for” the five‑hour day and that an external observation would be required, possibly with referral to TUSLA. These comments were made in the presence of K, another parent, and members of the public.

9.       Further Assurances Throughout 2024 Throughout 2024, the guardian was repeatedly assured that K would move to extended hours in September. The guardian experienced communication issues, including lack of notification that K was excluded from the allocation, inconsistent explanations for the refusal, and the granting of extended hours to peers despite earlier assurances.

10.   Continued Engagement with the Nursery K has been enrolled longer than several children who later received extended‑hours places. The guardian regularly engaged with the nursery, shared information from K’s CDNT team, and sought professional advice. K’s link worker and public health nurse consider extended hours to be beneficial, particularly ahead of K’s entry to primary school in September 2025.

11.   Belief of Less Favourable Treatment The guardian believes K experienced less favourable treatment than peers and was denied equal access to early‑years educational supports.

12.   Respondent Acknowledgement The Respondent expressed regret that the guardian felt let down. They acknowledged that indicating in May 2024 that extended hours would be provided was unprofessional and inconsiderate, and stated that they had not anticipated the number of children with special educational needs nor the recruitment challenges associated with AIM support workers.

13.   Incident Involving JB (30 May 2025) On 30 May 2025, K was collected by the guardian’s brother, JB. Shortly afterwards, SH contacted JB seeking to discuss matters relating to K. JB explained that he was not K’s primary carer and that communication should be directed to the appropriate guardian. SH stated that the guardian was “unapproachable” and that “all the parents are complaining about K,” making a further comment that was interpreted as implying K could be “put out.” These remarks were made in the presence of K, other parents, and children.

14.   Interaction on 4 June 2025 On 4 June 2025, the guardian approached SH to confirm that all communication regarding K must be directed to them due to the voluntary care arrangement. SH called a colleague outside and stated loudly that the guardian “does not listen.”

15.   Comments Regarding K’s Well‑Being The guardian states that K receives daily communication supports and has never expressed anxiety or reluctance regarding attendance. The guardian denies being informed that K “consistently expressed anxiety.”

16.   Interaction With SH—Guardian’s Position The guardian denies being visibly upset or confrontational during a previous interaction with SH, denies accusing SH of dishonesty, and denies referencing legal representation. The guardian acknowledges becoming upset only when SH raised her voice and made gestures perceived as inappropriate.

17.   Contact With External Agencies The guardian understands that TUSLA was contacted following the Equal Status complaint but is unaware of the basis for contacting An Garda Síochána, Early Childhood Ireland, or the DCC.

18.   Concerns Regarding JB and AP The guardian notes that if JB or AP had concerns about K’s well‑being, these should have been communicated to K’s social worker under the voluntary care arrangement. The guardian states that references made by the Respondent to alleged “challenging behaviour” are damaging to their reputation.

19.   Information Shared with the Nursery The guardian confirms that the nursery was provided with K’s genetic assessment and was aware of CDNT involvement, including clinician observations. A later CDNT diagnostic assessment contained no recommendations for the nursery. The guardian states they have consistently advocated for K and apologises if updated diagnostic information was not communicated in a timely manner.

20.     Respondent’s Email of 26 February 2025 In an email dated 26 February 2025, the Respondent provided a detailed response to the discrimination complaint concerning K’s care and attendance hours. The Respondent stated that it welcomed the opportunity to set out the full context regarding its approach to inclusion, decisions made concerning K’s hours, and the staffing constraints influencing those decisions in consultation with AIM.

21.     Commitment to Inclusion and Additional Needs Support The Respondent submits that it consistently prioritises an inclusive environment and works actively with the Access and Inclusion Model (AIM) to support children with additional needs. The Respondent currently cares for twenty‑nine children, eleven of whom have identified additional needs, including children requiring one‑to‑one or intensive hands‑on support. The Respondent states that this demonstrates its strong commitment to inclusion.

22.     Request for Extended Hours and Staffing Constraints The complaint relates to a request for K’s attendance to increase from three to five hours per day. The Respondent states that while it understands the rationale for seeking extended hours, it has been unable to accommodate the request due to ongoing staffing shortages. The Respondent emphasises that no child registered under AIM has been granted a five‑hour day for the same reason and that decisions have been applied consistently and fairly across all children requiring additional support.

23.     Engagement with AIM and Recruitment Challenges From November 2024 onwards, the Respondent states that it engaged in multiple discussions with AIM regarding staffing shortages and their impact on service delivery. The Respondent made efforts to recruit additional personnel to facilitate increased hours for K, but these efforts were unsuccessful due to sector‑wide recruitment difficulties. According to the Respondent, AIM acknowledged these challenges and advised the service to implement ratio caps in the relevant room as an interim measure, describing this as common practice within the sector where recruitment barriers persist.

24.     No Discriminatory Intent The Respondent asserts that all decisions regarding K’s hours were based exclusively on practical staffing limitations and K’s individual needs. It maintains that:

·        all AIM‑registered children have been treated equitably within existing staffing capacity.

·        no child has been prioritised ahead of another for extended hours; and

·        the safety and wellbeing of all children remain the central considerations in resource allocation.

·        The Respondent denies that any discriminatory considerations influenced the decisions taken.

25.     Ongoing Commitment to Inclusion and Support The Respondent affirms its continuing commitment to supporting K and all children with additional needs. It states that it continues to work with AIM and other agencies to secure further staffing and resources and remains engaged in active recruitment efforts despite significant sector‑wide challenges. The Respondent remains open to further discussions and willing to provide documentation demonstrating its commitment to fairness, safety, and inclusive practice.

26.      Incident Involving JB (30 June) The Respondent states that on 30 June it was notified that JB, a family member listed as an approved guardian, would be collecting K. JB and their spouse had previously collected K without issue, and staff observed that K responds positively to them. The Respondent further states that staff members have historically experienced challenging interactions with the Complainant. During collection, staff briefly discussed K’s behaviour that day, including visible anxiety before the “Kick Start Movements” (KSM) programme and reports from some children of being hit or having toys knocked over by K. During this conversation, JB mentioned that K had received a formal diagnosis. The Respondent states that this information had not been communicated by the Complainant, and staff had expected that any such updates would ordinarily be provided by the parent so appropriate supports could be put in place.

Later that day, when the Complainant returned to drop K off, they appeared upset that staff had spoken with JB and alleged that staff had misrepresented parental feedback. The Respondent states that when staff attempted to clarify, the Complainant threatened to bring JB to the service to confront the matter and stated they would be reporting the incident to a solicitor.

Staff instructed the Complainant not to bring anyone to the car park for a confrontation. The Complainant then left, repeating their intention to escalate the matter legally.

27.     Contact with External Agencies Following this incident, the Respondent sought guidance from TUSLA, An Garda Síochána, Early Childhood Ireland, and Dublin City Council. The Respondent states it can provide multiple statements, character references, and TUSLA inspection reports if required

28.     Equal Status Acts 2000–201

The complaint is made under the Equal Status Acts 2000–2018, which prohibit discrimination in the provision of goods and services, accommodation, and educational access on nine protected grounds, including race, colour, nationality, and ethnic or national origin. Section 38A sets out a two‑stage burden‑of‑proof test. First, the complainant must present primary facts which, if unexplained, could reasonably give rise to an inference of discrimination. Assertions alone are not enough; the evidence must be credible and capable of supporting such an inference. Only if this initial threshold is met does the burden shift to the respondent, who must then show that the treatment complained of was entirely unrelated to the protected ground and based on legitimate, non‑discriminatory reasons.

29.     The Prima Facie Case

In this instance the Complainant made out a poor prima facie case, but in an overabundance of fair procedures I proceeded with the hearing, given that neither party was legally represented. It was the belief of the Complainant that there was a discrimination where they saw other children moving in and out of the service. It was also the belief of the Complainant that they had been promised and assured that there would be a place for K by the owner of the Nursery. Reliance was placed on a letter erroneously dates 04/09/2023 but actually sent  the 04/09/2024. This letter does not offer any guarantees and refers to the proprietor’s “hope” to obtain the staff to accommodate and clearly sets out the need for staffing to allow them to provide the service. It appears to me that any reliance on this letter is misplaced.

30.     Comparator

The Complainant was unable to provide me with a solid comparator for the purposes of the act beyond a general reference to what they believed as different treatment of other service users, but couldn’t  produce evidence of this, nor did they produce any witnesses.

31.     Respondent Explanations

I was satisfied with the explanations of the Respondent that the additional hours were not promised nor guaranteed  at any point and all suggestions where qualified by their expressed hopes.

I was satisfied that the with the explanations of the Respondent in terms of staffing that they had made and continue to make efforts to secure staff to manage the demands of level 7 service user in what is a very challenging recruitment environment. It was clear to me that the Complainant did not have a full knowledge of the service and the required ratios to form a complaint and based this on their feeling that K was not afforded reasonable accommodation.

It is also clear that under other legislation that if the Respondent  had taken on K for the additional hours they would have in breach of that legislation and in terms of ratios and other safety matters. The Equal Status Acts do not allow for the breach of other laws in its operation.

32.     Reasonable Versus Impossible

Under the Equal Status Act 2000, a service provider is required to do all that is reasonable to accommodate the needs of a person with a disability, by providing special treatment or facilities where, without them, it would be impossible or unduly difficult for the person to access the service. However, the Act provides that such accommodation is not required where it would be an impossible or intolerable  burden on the provider. In effect, the obligation is limited to measures that are practical and proportionate in the circumstances, and service providers are not required to source or fund resources that cannot reasonably be obtained or that would impose a disproportionate financial or operational burden.

33.     Conclusion

The Complainant has advanced this as a complaint of discrimination based on a failure to provide reasonable accommodation. However, I find that the Complainant has not adduced sufficient evidence to establish that such discrimination occurred in this case.  Further that it would have been, and it appears still is, the case that it would have been impossible for the Respondent to make further accommodations and to do so may well lack legality in terms of  childcare standards.

Based on the submissions and  evidence put to me,  I find that the Complainant has not established a prima facie case upon which discrimination can be inferred based on the disability ground for a failure to provide reasonable accommodation and the complaint is not well-founded.

In accordance with Section 41 of the Workplace Relations Act 2015  and Section 25(4) of the Equal Status Acts, I have concluded the investigation and  find that the Complainant has failed to establish a prima facie case of discrimination on the ground of disability under  the Equal Status Acts. 

Accordingly, this complaint fails and I find that the Respondent did not engage in prohibited conduct and the complaint is not well-founded.

Insufficient primary facts, no comparator identified, assertions unsupported by evidence, Inference of discrimination not sustainable, no causal link to protected ground, facts do not raise presumption of discrimination, section 38A, staffing shortages.