The stigma and associated discrimination linked with HIV status is still prevalent in Ireland and those affected continue to face challenges in accessing services. This was evident in two linked cases involving a complainant who suffered discrimination contrary to the Equal Status Acts after he disclosed his HIV status. FLAC acted on behalf of the complainant and decisions in his favour were issued on 13th December 2021.
The decisions are significant as they come at a time when the Equality Acts undergo their first comprehensive review since their enactment over 20 years ago and are a timely reminder of the scope of protection afforded to people with disabilities.
The Facts
The complainant, a US national, travelled to Ireland in June 2019 to take up a position as a volunteer on an organic farm in rural Ireland as a trainee. The placement was facilitated by a registered educational charity (referred to in the decisions as an “Organic Farming Training Association”). He was asked to leave the farm when its managing partner found out that he was HIV positive. In his evidence, the man outlined the humiliation he had suffered following his disclosure of his HIV status. He was refused access to the internet to arrange his travel home and refused access to shower facilities. The Adjudicator heard how the complainant had disclosed his HIV status to the farm manager in response to a query from the latter about his limp on his second day of training. The complainant had assured the farm manager that he was fully fit and the limp was caused by the side effects of his medication.
The Decisions
In the decision, the WRC Adjudicator found that the farm had discriminated against the complainant on the ground of disability under the Equal Status Acts. The Adjudicator ordered that the farm pay €8,000 in compensation stating that the “aggravating factors” in the case required that redress be on the higher end of the scale. The Adjudicator noted that the conduct was “unacceptable and transgressed not only the law, but was also below the threshold of acceptable conduct that reasonable people expect when affording equal opportunity to those with a disability”.
Definition of Disability
Section 2 of the Equal Status Acts defines “disability” as:
- “(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
- (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
- (c) the malfunction, malformation or disfigurement of a part of a person’s body,
- (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
- (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”[1]
While the definition of disability in the Equality Acts is ostensibly medical in nature, focusing on a diagnosable description of incapacity, this case illustrates that the interpretation of disability under the Acts is in practice much more closely aligned to the requirements of the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’), that is, understanding disability as a social construct rather than a measure of incapacity. In the present case the Adjudicator did not require the Complainant to evidence his level of incapacity in order to establish his entitlement to the protection of the Acts. In fact the Adjudicator dealt with the point in relatively brief terms stating:
“It was not disputed that the complainant has a disability within the ambit of the Equal Status Act, in this case HIV status and the effects of the antiretroviral medication needed to treat such a condition.”
The Adjudicator dismissed the description of the Complainant’s work put forward by the Respondent as being more in the nature of a description of incompetence than incapability, and one that fit with the nature of the relationship being one that involved training. This underlines a significant strength of the Equality Acts, in ensuring that establishing a “significant” level of disability and incapacity is not required before the protection of the legislation is extended to the person asserting that they have been discriminated against on the disability ground. Indeed, in this case the Complainant asserted that he was fit and healthy and capable of the work involved, rather than being significantly incapacitated, but again the fact that the Complainant asserted his fitness for the work concerned did not undermine his ability to seek the protection of the legislation as the Respondent presumed that the Complainant was unfit for work based on the Complainants disclosure of his HIV status. Accordingly, it was the Respondent’s perception of the Complainant’s medical status that created the barrier hindering his “full and effective participation in society on an equal basis with others.”[2]
Protection for Volunteers
In the linked decision, the Adjudicator held that the charity that facilitated the placement had also discriminated against the complainant by not reasonably accommodating his disability contrary to section 4 of the Equal Status Acts. The charity had offered no meaningful support to the complainant when he was asked to leave the farm. Further, it did not carry out a proper investigation into what had happened at the farm. The Adjudicator noted that the email exchanges revealed “a certain antagonism” from the charity in its attempts to dissuade the complainant from pursuing his complaint. The Adjudicator ordered the charity to immediately carry out an independent audit of its inclusivity policies with particular reference to its obligations under the Equal Status Acts and to address any shortcomings arising therefrom. He ordered that it draw up an equality and diversity policy which would identify prohibited conduct on all the equal status grounds and ordered that such policy be distributed to its members and be displayed prominently on its website. FLAC understand that the charity has already begun this process. The decision highlights the significant function of WRC adjudicators in effecting compliance with the Equality Acts through the power to make such mandatory orders that go beyond just remedying the individual complaint.
Both complaints included claims under the Employment Equality Acts; these were not upheld because of the nature of the training involved not leading to any qualification and the unlikelihood that the Complainant was intending to pursue a career in organic farming after his volunteering ended. The Adjudicator referred to the leading decision of the High Court concerning volunteering and the Employment Equality Acts noting:
“In The Commissioner of An Garda Síochána v Singh Oberoi [2014] E.L.R. 17. Feeney J. emphasised that the requirement contained in subs. (2) [of section 12] hat, for the vocational training of a Garda Reserve to be covered by the section, such training must be exclusively concerned with training for the carrying on of an “occupational activity”. The Garda Reserve, in his opinion, was not such an activity.”
What is interesting about the present case is that although a volunteer may not be included within the protection of the Employment Equality Acts, they may nonetheless be able to rely on the protection of the Equal Status Acts which may, at least in certain circumstances, somewhat temper the exclusion clarified in the Oberoi judgment.
Conclusion
The WRC’s decisions join two other published decisions which considered the protection of individuals with HIV status from discrimination under the Equal Status Acts. Both of these cases involved the provision of health care. In Mr A v A Dental Practice DEC-S2014-006 the complainant was refused routine dental care. In Goulding v O’Doherty DEC-2009-073 the complaint was refused chiropody services.
The WRC’s decisions are welcome and highlight the importance of the equality legislation in addressing discrimination in Irish society. They confirm the acceptance of HIV status as a disability under the Equality Acts and highlight the importance of the broad and inclusive interpretation to the term ‘disability’ under the Equal Status Acts and the Employment Equality Acts.
The Complainant was originally referred to FLAC from HIV Ireland which had supported him from the outset. It is unlikely that he would have persevered with his complaints without such support, given their complexity and against a background where he was coming under pressure to withdraw the complaints by the charity. FLAC has long campaigned for the civil legal aid scheme to be expanded to include the provision of legal aid where legal advice and representation is required in quasi-judicial tribunals such as the WRC. This call was reiterated in FLAC’s recent submission to the ongoing review of the Equality Acts. It is hoped that this review and the forthcoming review of the Civil Legal Aid Scheme will provide the final impetus to address the lack of legal aid in the enforcement of anti-discrimination law in Ireland.
[1] The same definition is contained in section 2 of the Employment Equality Act (as amended).
[2] Taken from Article 1 of the UNCRPD which states: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.