Complainant

Respondent

Anonymised Parties

A Complainant (minor)

A Childcare Centre

Representatives

Self-represented

MP Guinness BL, instructed by Gleeson McGrath Baldwin LP

Act

Complaint Reference No.

Date of Receipt

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

CA-00074728-001

23/08/2025

The complainant’s parent submitted a complaint on behalf of her daughter of discrimination on the grounds of civil status, family status, race, disability, and reasonable accommodation. A complaint of victimisation was also submitted.

The respondent denies the claims in full.

Summary of the Complainant Parent’s Evidence

The parent said that her daughter was full-time in the preschool and was doing well. There were no issues of concern brought to her attention over recent years. She claims that her daughter’s legal rights were infringed when restricted to part-time access to the preschool from September 2025. She made a complaint to the WRC, as the centre had decided over the summer to restrict her daughters access from September 2025 onwards.

The parent claims that this reduction in hours arose because of a safeguarding issue that she raised with the regulator after a safeguarding incident in early June 2025. Her daughter left the school unnoticed by staff and was found on the public road by a staff member returning from lunch. She said that prior to her reporting this issue that there had been no behavioural issues raised with her by staff. She said she herself instigated a concern to the centre on her daughter’s speech development earlier in May 2025.

She said the safeguarding incident was investigated by the regulator and the outcome was staff oversight. She said the centre informed her she could remove her daughter if trust issues remained.  She said the centre staff knew she had reported the incident. A meeting was held in the centre five days after the incident. She said her daughter was labelled a flight risk which she disagreed with due to no previous incidents. She said that centre staff viewed the incident as opening their eyes to her daughter’s needs and made the issue about her daughter’s behaviour.

The centre staff assessed the ratio of child/teacher support for the coming year as inadequate given her daughter’s needs. This entailed a reduction from full-time hours to 15hrs with the possibility of this then increasing to 30hrs with further support through the Access and Inclusion Model (AIM).

As a parent, she disagreed with this restriction of access when no previous incidents were highlighted to her. She said her daughter’s restricted access was discrimination in accordance with the Act. She said she was only given four-weeks’ notice of the reduction from full-time to 15hrs. She clarified that in September 2025, her daughter attended for 15hrs for three weeks and this then increased to 30hrs after the AIM assessment.

She emphasised that before the safeguarding incident there was no evidence that her daughter was a flight risk. She did not accept the reasons for support as outlined by the centre staff. She said the reason for restricted access arose from reporting the safeguarding incident. She said that the application form for support under AIM was not an issue until after the incident in June 2025. She said the form was not submitted until July 2025. She said that the onus was on the centre to provide reasonable supports prior to restricting access for her daughter. She said the staff at the centre were not qualified to assess her daughter’s needs and their assessment predated the AIM assessment.

She said the centre did not instigate the discussion to apply for AIM in May 2025. She instigated the discussion arising from her concern about her daughter’s speech development.  She said that the centre created retrospective justifications for restricting access. She said that AIM staff confirmed that the form was not submitted until 3 days after she submitted the ES1 Form on 25th July 2025 followed by the WRC Complaint Form submitted on 23rd August 2025. She said the centre did not respond to her questions on the ES1 Form.

She said her daughter was assessed on 22nd August 2025, and the report said her needs related to communication and social skills and she was not to a flight risk.

She outlined another incident on 3rd September 2025 concerning a poster which singled out her daughter. It was clarified that this issue arose after the complaint form was received by the WRC and therefore it could not be considered as part of the existing complaint.

She said she was seeking a favourable finding and re-instatement of full-time access for her daughter along with compensation.

Under cross-examination, it was put to her that her complaints arose from a safeguarding concern and there was no proof of a disability or mention of discrimination on race, civil status and family status in her testimony. The parent replied that the needs of her daughter were fully outlined in evidence.

She was asked about the May 2025 meeting which discussed the AIM Form and resulted in a detailed note on her daughter’s behaviour. The parent replied that this meeting was instigated by herself and she had previously been assured that her daughter was doing fine.

It was put to her that her daughter’s needs were identified as more than speech development in the May 2025 meeting notes. She replied that the minutes were inaccurate.

It was put to her if she knew of a requirement for the centre to notify the regulator after a safeguarding incident within 72hrs. She accepted this as being the practice.

She was taken through the detailed correspondence with the centre prior to and after the safeguarding incident. It was put to her that the AIM assessment was consistent with the centre’s view and an extra staff resource was put in place. She replied that the support was for communication and speech development and did not relate to behavioural needs.

Closing Submission Complainant

The parent claimed that the case was about retaliation after making a safeguarding complaint to the regulator. Her daughter’s development was fine, and no incidents were reported prior to June 2025. Her daughter was not a flight risk. The AIM Form was only submitted in July 2025 after the safeguarding incident. There was no reasonable accommodation assessment for her daughter prior to restricting access, and she was seeking equal treatment as per the Act.

Summary of General Manager’s Evidence

The manager outlined that the service takes children from one-year old to afterschool either part-time or full-time. They employ staff across several centres who are from a wide range of nationalities. The children are also of different nationalities and family units.

She described the AIM Programme which supports the inclusion of children with additional needs with no formal diagnosis required.  She said AIM provides for more teacher supports once they carry out an assessment. She said one of the many responsibilities of centre staff is to identify needs and apply jointly with parents to get an extra resource when required. She said the first conversation with the parent concerning AIM was in May 2025. She said the resource is applied for once timetables for the coming year are finalised in July. She clarified that four other children in the centre would similarly have restricted access due to their needs.

Under cross-examination by the parent, the manager replied that the needs identified for her daughter was a collaborative approach by centre staff.

Summary of Regional Manager’s Evidence

The regional manager said she had a level 6 qualification. She said she had numerous conversations with the parent on her child’s development and behaviour. Although the meeting in May 2025 was instigated by the parent, they jointly went through the AIM Form as a family needs to be familiar with the details. There was a requirement to have the child’s PPS number to finalise the application and this was awaited from the parent.

She confirmed that the regulator was contacted after the safeguarding incident and it was normal to have an inspection after safety concerns were reported. She said when the regulator carried out the investigation, they give feedback to the centre. This feedback was part of the collaboration with centre staff on the child’s needs. She said it is the function of staff to establish facts on children’s needs and to identify any behavioural issues within class.

She confirmed that the parent was not in agreement with the child’s needs as assessed. Due to the needs this restricted access. She said there was a lot of correspondence between the parent and centre around this time. She said the centre stood by the decision as it was based on the best interests of the child. She said that the AIM assessment validated the earlier views of centre staff. She clarified that from September 2025 the child attended for 15hrs which was increased to 30hrs after three weeks.

Under cross-examination by the parent, she confirmed the decision was a collaborative one on the child’s needs. She said that the regulator feedback was consistent with the centre’s view.  

She was asked about the regulator’s safeguarding investigation, and how her daughter was referenced as a flight risk with no previous reference to this. She was asked if supports were considered prior to the restricted access being put in place. She was asked about the poster incident in September 2025. The Adjudication Officer clarified that as this issue occurred after the WRC Complaint Form was received on 23rd August 2025, it was outside of the Adjudication Officers’ jurisdiction.

Adjournment Application

The parent addressed the Adjudication Officer and strongly contended that events after September 2025 should be included. It was clarified that this was not possible as the WRC Complaint Form was dated 23rd August 2025. The parent requested an adjournment pending the submission of a new complaint. Ms Guiness, on behalf of the respondent opposed the application. The Adjudication Officer decided not to grant the adjournment. The reasons given were that the hearing was almost concluded and all testimony had been given at this stage. It was considered to be a very late application particularly as the same issue arose earlier in the hearing and the parent continued with the hearing and all the respondent witnesses had now given evidence. It was clarified that the Adjudication Officer had no jurisdiction to make findings on incidents after the complaint form was received by the WRC. As the incidents referred to occurred in September 2025, the complainant (minor) was still in time to make further complaints and was not prejudiced by this decision to refuse an adjournment.

Summary of Closing Submission Respondent

Ms Guinness submitted that the substantive case made was alleged victimisation having made a safeguarding complaint and no testimony had been given to link the issues to a discriminatory ground. In circumstances where the centre was not on notice of a specific disability, they could not be held accountable to providing reasonable accommodation. It was submitted that by assessing the needs of the child the centre had acted within the law and the funding scheme in place.

The Law

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur:

(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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(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”),

20.— In this Part, unless the context otherwise requires—

‘complainant’ means—

(a) a person referred to in section 21(1), or

(b) where such a person is unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part, his or her parent, guardian or other person acting in place of a parent;

Section 38A (1) provides-

" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

Therefore, the complainant must first establish a prima facie case of discriminatory treatment. It is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

Finding on Disability

Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease, or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

The narrative in the WRC Complaint Form claims different treatment of the complainant (minor) to other neurodiverse children. The parent gave testimony of her concerns on speech development and referred to an assessment carried out under the AIM Programme. Testimony was also given by centre staff of the child’s needs. For the reasons outlined, I find the complainant (minor) has a disability for the purposes of the Act. As the complainant is acting on her daughter’s behalf as per section 20 of the Act, I will refer to the complainant heretofore as complainant (minor).

Prima Facie Case

The complainant (minor) gave testimony that there was a decision made to restrict attendance and this came into effect in September 2025. The complainant (minor) challenged the centre staff on whether they could properly assess her daughter’s needs. The testimony also revealed that prior to a decision to restrict access there was no reasonable accommodation considered or provided. The complainant (minor) then sent an ES1 Form and subsequently submitted a complaint to the WRC.  

On the above facts alone, a prima facie case of discrimination on disability has been made out by the complainant (minor). It is now for the respondent to prove facts which demonstrate or indicate to the contrary.

Respondent Case

The Regional Manager gave testimony of the discussion in May 2025 on the AIM Form. It was outlined that the safeguarding incident had already been reported outside of the complainant (minor) bringing it to the attention of the regulator.  The respondent’s testimony was that a collaborative decision was made by centre staff on the child’s needs. Arising from this decision access was reduced due to the extra teaching resource and improved ratio required. Testimony was given that four other children in the centre were treated in a similar manner. The centre did not respond to the ES1 Form although did communicate extensively by correspondence, as requested by the complainant (minor).

Finding on Discrimination due to Disability

Due to the needs of the complainant (minor) as per the views of the centre staff, the complainant’s (minor) access was restricted. This was due to resourcing and a requirement to increase the teacher/child ratio for the coming September 2025.

Section 4 (1) of the Act provides that a refusal or failure to provide reasonable accommodation can be discrimination if without these facilities it would be ‘impossible or unduly difficult for the person to avail herself of the service.’

Section 4 (2) then limits this special treatment if it ‘would give rise to a cost, other than a nominal cost, to the provider of the service in question.’

Access to services and protections under the Act can mean different things to members of the public as some services are regularly relied upon and others can be once off. In this case there was and still is an ongoing relationship as the child had accessed the service for several years and remains in the service. Normally, for regular users of a service, access issues are discussed and assessed. The ES1 Form can assist as a complainant is required to set out the issue, and the respondent is required to respond before a complaint reaches the WRC. In this case, the respondent did not respond to the ES1 Form, even though there was extensive written documentation between the parties. The failure to respond, as required under the Act was not helpful.

During the hearing, it was evident that each side was unaware of the ‘reasonable accommodation’ expected or required of the other. This may have arose due to a breakdown in trust and the complainant’s (minor) insistence that everything should be in writing. This approach only resulted in each side defending their position with no exploration of the pertinent issues.  Despite the safeguarding incident, it is regrettable that there was no discussion between the parties on exploring reasonable accommodation, particularly as the Act balances rights with costs and resourcing.

Although not referenced at the hearing, Section (7) of the Act includes a preschool service as an “educational establishment”. In terms of admission and access to an educational establishment, Section 7(4) (b) appears to set the parameters as follows-

‘to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.’

Section 7, along with Section 4 of the Act place limitations on reasonable accommodation which directly relate to these complaints. Given the nature of the pre-school service, the centre staff have a professional responsibility to observe and highlight children’s needs and supports. In making the decision they made, there was insufficient evidence presented to question their bona fides in doing their job to the best of their ability. From the testimony given, I found no incidents of discriminatory treatment as prescribed in the Act. Due to the restrictions in the Act in accessing education services, and for the reasons outlined, I find that the complainant (minor) has not been discriminated against on disability grounds.

As reasonable accommodation is not an automatic entitlement due to the constraints outlined in Section 4(2) and Section 7(4) of the Act, and as the respondent was not on notice of any specific reasonable accommodation requirements, I find that the complainant (minor) has not been discriminated against by the failure to provide reasonable accommodation by the centre.

Victimisation Complaint

Under Section 3(2) j of the Act, the complainant (minor) has ‘opposed by lawful means an act which is unlawful under this Act, and/or has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),’ It was outlined in testimony that due to sending an ES1 Form to the centre to initiate proceedings, that the complainant (minor) was subsequently victimised. The victimisation was the decision to restrict access. The complainant (minor) gave testimony that the incident which preceded the ES1 Form and WRC Complaints was the safeguarding incident in June 2025 when her daughter left the centre unsupervised. In essence, the complainant (minor) case is that this was the catalyst which resulted in centre staff deciding on the child’s needs which culminated in restricted access.

The respondent witnesses gave testimony that behavioural issues were already identified by centre staff prior to the safeguarding incident and that the AIM Form was discussed in May 2025. The Regional Manager gave testimony that the same safeguarding incident brought attention to the child’s needs after the regulator had carried out an investigation on site. The Regional Manager also gave testimony that the centre had already reported the safeguarding incident within 72hrs as required.

I am not satisfied that sufficient evidence has been presented to link the complaints made (Complaint to Regulator, ES1 Form, WRC Complaint Form) to the subsequent treatment of the complainant (minor) by restricting access. Testimony was given that the safeguarding incident and subsequent site investigation provided further feedback. The centre staff appear to have carried out their role in identifying a child’s need. This decision was endorsed when the subsequent AIM assessment took place.

For the reasons outlined, I did not find evidence of a link between the complaints made and any subsequent adverse treatment towards the complainant (minor).

I decide that the complainant (minor) was not victimised arising from having made earlier complaints.

Discrimination on Civil Status, Family Status, and Race Grounds

The complainant (minor) did not provide testimony of possible discrimination on the above grounds. As these complaints have not been made out and there is no prima facie case, I decide that these complaints are not well founded.

Complaint on Disability Discrimination

I decide that this complaint is not well founded.

Complaint on Reasonable Accommodation

I decide that this complaint is not well founded.

Complaint on Victimisation

I decide that this complaint is not well founded.

Complaint on Civil Status Discrimination

I decide that this complaint is not well founded.

Complaint on Family Status Discrimination

I decide that this complaint is not well founded.

Complaint on Race Discrimination

I decide that this complaint is not well founded.

Discrimination, Victimisation