Case Number: DEC-S2012-004- Full Case Report. Equality Tribunal

• Docket Number: DEC-S2012-004- Full Case Report
• Date: 13 January 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000-2008

Decision DEC-S2012-004

PARTIES

A Complainant
(represented by MJ O'Connor Solicitors)

and

A Choir

File Reference: ES/2009/0004
Date of Issue: 13th January, 2012

Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)

Delegation under the Equal Status Acts, 2000-2008

This complaint was referred to the Director of the Equality Tribunal on 21 January, 2009 under the Equal Status Acts, 2000 to 2008. On 28 February, 2011, in accordance with his powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to hearing on 22 November, 2011.

1. Dispute

1.1 The complainant claims that he was discriminated against by the respondent on the grounds of his disability in terms of sections 3(1), 3(2)(g) of the Equal Status Acts, 2000 to 2008 in terms of the respondent's refusal to allow him to become a full member of its choir.

2. Summary of the Complainant's Case

2.1 The complainant has Sotos Syndrome, which is a rare genetic disorder characterised by excessive physical growth during the first two or three years of life, and he is considered to have a mild intellectual disability and his main difficulty is with mathematical calculation. However, when it comes to musical lyrics and scores, it was submitted that the complainant's accomplishments are above average and that he had performed with a number of other choirs prior to joining the respondent's choir. The complainant had also been a pupil of a well known soprano and voice coach since 2006 and it was submitted that he is an accomplished singer and performer. The complainant submitted that he wished to join a choir in his locality and that his family had a strong attachment to the respondent's choir as his grandfather had previously been a member. The complainant attended at the premises of the respondent's choir in or around October, 2007 and requested to join the choir. On his first night, the complainant was introduced to the choir by his mother on the basis that she knew the premises where the choir practised and was familiar with many of the choir's members. The complainant submitted that he subsequently attended rehearsals for many months in the same manner as the other choir members, signing in each night, paying the €5 per night which was accepted and receiving music sheets and a folder for music.

2.2 The complainant attended for rehearsals on 9 October, 2008 which was for the local opera festival but was told by the choir's Chairman, Mr. A, not to sign in and to leave the premises. The complainant claims that he was told that he had missed rehearsals, had failed a voice test, that he was too immature for the choir and that he was disturbing other members of the choir. The complainant, in response to these issues, submitted that he had missed only one rehearsal during the period of time that he was with the choir and claimed that he was not informed that full attendance was a requirement to become a full member of the choir. The complainant's mother stated that she had concerns that he was not being notified of rehearsal dates by the choir and that he had not been specifically notified of the start up date in September, 2008 following the summer break. The complainant stated that he had never been asked to take a voice test and he denied that he was too immature for the choir as he was 21 years old at that time. He submitted that the choir was actively encouraging young members to join which was evidenced by their recruitment campaign at that juncture. The complainant also denied that he had disturbed other members of the choir and he submitted that no specific instances were provided by the respondent to support this allegation or that he had ever been reprimanded about his behaviour during his time with the choir.

2.3 The complainant stated that he was totally shocked and very upset by the manner in which he was informed that he would not be allowed to become a full member of the choir. The complainant's mother stated that she spoke to the Chairman of the choir, Mr. A, on 10 October, 2008 and that he promised to call to see her and the complainant at home to explain the matter. The complainant's mother contacted Mr. A again some time later to enquire when she might expect a call from him. However, Mr. A subsequently failed to call to the complainant's house and the meeting which he had promised never took place. The complainant's mother received a telephone call from Mr. A some time later to say that there had been a three hour meeting regarding the complainant's participation in the choir and it had been decided that the decision for him to leave the choir would stand on the basis that he was disruptive and was not suitable to an adult male choir. The complainant submitted that he received a letter from Mr. A (on behalf of the choir) on 11 November, 2008 to confirm the aforementioned decision.

2.4 The complainant disputes the respondent's contention that it was unaware of his disability when it took the decision to exclude him from the choir. The complainant submitted that representations were made to the choir's committee about his exclusion from the choir and that these representations were made specifically on the issue of his disability. It was submitted that if the committee was unaware of the complainant's disability at the time of making the decision to expel him they became aware of it subsequently when the choir member made representations on his behalf. The complainant submitted that the choir and the committee had an opportunity to reconsider the decision but failed to do so and moreover, they failed to consider what reasonable accommodation could be afforded to the complainant to allow his continued participation in the choir.

2.5 The complainant submitted that he was not afforded any opportunity to appeal or challenge the decision to exclude him from the choir and that it was in effect a unilateral decision by the committee to expel a member without due process or case. The complainant submitted that the reasons given by the respondent for his exclusion from the choir were spurious and there can be no other conclusion other than that he was singled out for different treatment because of his disability. It was submitted that anyone else with the complainant's vocal ability would have been warmly welcomed to the choir; however, despite being in the choir for a year, it was felt that the complainant was merely tolerated and it was hoped for and anticipated that he would just leave himself. It was submitted that the complainant was treated less favourably by being allowed to remain in the choir for a year under these conditions and eventually being asked to leave in a dreadful manner on the basis that he was perceived, because of his disability, to be less able than others in spite of his proven ability to sing. The respondent submitted that the manner in which the complainant was treated amounts to discrimination on the grounds of his disability contrary to the Equal Status Acts.

Evidence of Mr. D

2.6 Mr. D stated that he was a member of the respondent's choir from 1994 until 2008 and that he had served as a member of the choir's committee during this period. Mr. D stated that he was a member of the choir when the complainant joined in October, 2007 and in his opinion the complainant was a "fine singer". Mr. D confirmed that upon first appearance the complainant looked to have a disability. Mr. D stated he did not agree with the respondent's contention that the complainant had been disruptive or that he was unable to take direction from the Musical Director. Mr. D stated that, in his experience, the complainant had not engaged in any type of behaviour that would not have been the norm among the other members of the choir. He confirmed that no other choir member had previously been expelled for being unable to "follow direction" from the Musical Director.

2.7 Mr. D stated that he made representations on behalf of the complainant to both the choir and its committee when he became aware of the decision not to allow him become a full member of the choir. Mr. D stated that he expressed his horror to the other choir members regarding this decision. Mr. D stated that he explained the complainant's disability to the choir members and indicated to them that his ejection from the choir was a terrible mistake. Mr. D stated that he tried to convene an Extraordinary General Meeting (EGM) in relation to the matter and that he required...