A creche which decided it was “not prepared to take responsibility” for a two-year-old girl after she was diagnosed with a severe nut allergy has been ordered to pay her €3,000 in compensation for disability discrimination.
The Workplace Relations Commission (WRC) has directed the unidentified childcare facility to pay the sum on foot of a complaint under the Equal Status Act 2000, in an anonymised decision published on Wednesday.
The creche, which the girl had attended since she was 18 months old in August 2022, had been aware the girl had some other food sensitivities and had arrangements in place, the tribunal was told. Her parents said she was “happy” there.
They said their daughter took ill on February 10th, 2024, after eating a cookie at home.
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On February 15th, a consultant food allergist diagnosed the girl with an allergy to peanuts, pistachios and cashews, the parents said. This meant the child was required to carry two EpiPens, adrenaline auto-injector devices, as a “precaution”, it was submitted.
When the girl’s father returned to the creche on February 19th, he explained the situation with the EpiPens to a worker and met with one of the creche’s owners.
“The owner said under no circumstances would any EpiPens be allowed in the creche, and the [girl] would have to leave,” the parents told the WRC.
Although the owner had stated she would give the parents a week or two to move the girl, she refused to take charge of the EpiPens for this period, the parents said. They said they were forced to remove her immediately as a result.
Solicitor Mary Geary of McMahon O’Brien Tynan, for the creche, said there had been no prior notice from the family that the girl was coming back with a new medical condition.
One of the creche owners, who was not named in the decision, told a hearing in January this year that she was concerned that because the girl was so young “one of the other children could give her a product with nuts”.
The management denied discrimination and said they were only concerned for the girl’s health.
Adjudicator Davnet O’Driscoll wrote in her decision that she accepted the creche management’s concern was genuine.
Her view was that the girl’s parents should have briefed the management on the new diagnosis before bringing her back to the creche, to give it time to consider the situation.
However, she wrote that rather than refusing to accept the EpiPens on the day and telling the parents the creche was not “suitable” for the girl, there ought to have been “consultation and discussion”.
The medical information should have been considered, along with training requirements and any question of the parents indemnifying the creche, she wrote.
“The complainant was moved from her creche and minders where she was happy,” she wrote.
The creche’s argument that it “could not have kept the complainant safe” was not supported by the evidence before her.
Ms O’Driscoll concluded that the creche discriminated against the girl, failed to reasonably accommodate her disability and awarded her €3,000.
