Complainant

Respondent

Anonymised Parties

Child via Parent

Creche Manager

Representatives

Child’s Mother,  Ms A

Ms X, Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00072746-001

24/06/2025

The issue in contention was an Equal Status Complaint by a Child, J, via his Mother, that he was Directly Discriminated against on grounds of a Disability in relation to Accommodation by a Childcare/Creche Facility. He attended the Facility since the Spring of 2024.

He was discriminated against on the 18th March 2025 and again on the 27th of March 2025

The Complainant was self-represented via his Mother, Ms A . She submitted extensive written evidence and gave a very comprehensive Oral Testimony supported by her Husband.

Child J had been accepted into the Facility in the Spring of 2024. All appeared to have gone well. There had been some comments from Staff at collection times but nothing serious.

On the 18th of March 2025 the Complainants’ mother, Ms A, was informed that the Facility would no longer offer Child J a place from the 21st March 2025.

It was alleged that Child J needed a more specialist, one to one, service than the Facility could provide. This was completely Discriminatory as the Facility Manager was not a Qualified Child Psychologist. She could not make a proper professional assessment in Child J’s case. No proper procedures were followed. The Parents were given effectively four days to make alternative Childcare arrangements/accommodation. It was blatant Discrimination against Child J. There was nothing in his alleged behaviours that should have been outside the competence of a standard Creche.

Considerable discussions followed with the Manager Ms X but to no avail. An ES 1 was served on the 25th April 2025 In the ES1 Form the complaint of Victimisation was added.

The Brother of Child J, Child D, was also removed by Manager , Ms X, from the Creche on the 27th March 2025. This formed the basis of a parallel complaint ADJ-00060042

The Respondent Childcare Facility was represented by Manager Ms X. Extensive written material was submitted and supported by detailed Oral Testimony.

In essence, Ms X, submitted that Child J had never settled into the Creche. He had begun displaying very concerning patterns of behaviour, lack of proper interactions with other children and in general required a much higher level of support than was normal. The Creche had assigned a support staff member, to work virtually one to one, with Child J. He had needs that were beyond the capacity of any normal Creche to facilitate. This worker had moved on alleging stress “Burnout” from the additional constant care expected from Child J.

The Management of the Creche had then to review the entire situation. In the most experience view of the Manager, from many years of Creche management, they were not a Specialist Facility for Children with additional needs such as Child J. He had needs that were beyond the capacity of any normal Creche to facilitate. Regard had to be had to the other Children with their normal days activities and routines.

It was in his own best interest, that Child J, be moved to a Facility that could properly cater to his needs. On this basis the Manager had decided with great reluctance to ask that Child J be removed from the Creche. There was no Discrimination or other malign actions. It was a straightforward Child Welfare issue.

Extensive correspondence between the Parties was produced including a record of a rather heated visit from child J’s father to the Creche

3:1       The Law – Legal questions.

The issue that first arises in this case is the question of a Disability –

Section 2 (1) (d ) & (e) seem applicable.

2.—(1) In this Act, unless the context otherwise requires—

“disability” means—

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

“discriminate” means to discriminate within the meaning of section 3(1) or 4(1);

Discrimination is at Section 4(1)

Discrimination on ground of disability.

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.

(5) This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.

  (Underlined by the Adjudication Officer.)

For Discrimination under the Equal Status Act,2000 to be accepted the Person in question has to be “Disabled”. While there was no Medical evidence presented the Adjudication accepted the view from all the sworn evidence that Child J was certainly a child with needs above the norm.

As all cases rest on their own facts. It is necessary to review the evidence presented both sworn Oral Testimony and Written Submissions. This will be reviewed below.

3:2        Review of the Evidence.

The Oral Testimony of the Creche Manager, Ms X, was central. In her evidence, given under sworn oath/affirmation she outlined her extensive background experience in Child Care and Creche management. Her evidence was credible. It was her considered view that Child J, after a period of almost a Year of attendance, was not a suitable child for a normal Creche due to his observed additional needs. This was her Personal very experienced view, supported by her Operating Staff. She had suggested – “strongly advised” to the Parents (in her e mail/letter of the 11th March 2025) a reference to the HSE Early Interventions Team via the family GP with a view to seeking a more appropriate place in a “more suitable environment”.

It has to be noted that Ms X,  although very experienced, is not a qualified Psychiatric/Medical practitioner.

Ms A and Her Husband were obviously shocked by Ms X’s decision to remove Child J and strongly contested it. A degree of disagreement arose over whether or not Ms A had been kept properly informed by Creche Staff, on the daily collections of Child J from the Creche, of their concerns.

Ms X referred to the Creche making available a staff member for a number of months to assist Child J. This staff member was, now,  no longer available. She had resigned citing “Burnout” from looking after Child J.

Although not professionally Represented,  Ms X , effectively made a very credible Equal Status Act, 2000, Section 4 (4) Defence.

(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.

The Creche did not have the Resources to facilitate Child J in a manner that would be productive to him while at the same time catering to the proper needs of all the other children there.

In discussions it was clear that financial issues (cost of a one-to-one staff member) were an issue but also the physical set up of the Facility. It was not ever envisaged that a child with additional needs would be enrolled.

The Parents, especially Ms A , gave very heartfelt oral evidence. It was their view that Child J may have been somewhat challenging on occasions, (boys are boys and a bit of rough play is only natural.) but not so far as to require removal from the Facility.

The removal request, at less than weeks’ notice, was a complete shock to them and in subsequent discussions with Ms X, they felt that their views had been ignored.

3:3       Adjudication views and Conclusions.

On a pure Procedural basis, the very short notice (3 days) of Removal from the Creche is hard to justify. Ms X, although very experienced and a most credible witness, is not a Psychiatric Professional. Child J was quite obviously having difficulties and displaying some alarming symptoms (non-social integration, sensitivity to sounds, possibly hitting his head off the wall etc).

Ms X, via the dedicated staff member, had managed the situation well. Once this staff member was not available, the removal of Child J became an issue for careful consideration bearing in mind his additional demands on the remaining staff. Communication with the Parents appeared to have been somewhat limited to “Chats at the Door” with Staff members.

The Adjudication view would have to be that the Creche should have moved much sooner to have a detailed interaction with the Parents involved, This would have to be supported by Child J being assessed by a Professional Child Psychologist. Following this and supported by expert Medical evidence decisions on his future in the Creche could have been made, hopefully collectively with the Parents having a full input.

Taking guidance from Section 16 “Reasonable Accommodation” of the Employment Equality Act,1998 the Adjudication view has to be that the very abrupt ending of Child J’s time at the Crèche was Discriminatory on largely Technical grounds.

However, any question of Redress for Discrimination will have to be tempered by the fact that considerable efforts were made to accommodate Child J for a considerable period of time and the Equal Status Act,2000, Section 4 (4) defence referred to above.

There was no basis for a Victimisation complaint.

Equal Status Act,2000 ,Discrimination, Childcare Facility