Claire Maguire V Bob's News & Deli, Dublin
1. Dispute
This dispute concerns a complaint by Claire Maguire that she was discriminated against on the disability ground by Bob's News & Deli, Darndale, Dublin. The complainant maintains that she was discriminated against on the grounds of her disability in terms of Section 3(1), Section 3(2)(g) and Section 4 of the Equal Status Act 2000.
2. Summary of the Complainant's Case
Ms Maguire states that, following a car accident in the 1970s, she became seriously disabled and had to have a number of operations on her back. As a result, she says that she now has great difficulty walking and can only do so for short periods with the help of a cane. Prior to 26 July 2002, the staff of Bobs News & Deli used to facilitate her by getting her groceries for her while she waited outside the door in her motorised four-wheeled scooter. On 26 July 2002, the manager of the shop came outside to her, accused her of being able to walk and told her that in future she was to come into the shop herself if she wanted to purchase goods.
3. Summary of Respondent's Case
The respondents accept that Ms Maguire was told that in future she would have to come into the shop herself if she wanted goods. They say that she was told this, after the manager Ms Michelle McCullagh, had seen Ms Maguire walking around a large Chain Store with the help of a cane some days earlier. The manager explained that, up to that point, she had believed that Ms Maguire was unable to walk, which is why staff were permitted to assist her when she arrived at the door on her scooter. As it was now obvious that Ms Maguire could walk, Ms McCullagh decided that, for security reasons, staff should remain at their tills and not be leaving their positions to get groceries for Ms Maguire.
4 Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O'Byrne, 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 Act, 2000.
5.2 Principal Items of Evidence - Complainant
- Ms Maguire says that her ability to walk changes from day to day depending on the pain and discomfort she is experiencing. When she is able to get around, with the assistance of a cane, she can only do so very slowly and for very short periods.
- Ms Maguire's family purchased a motorised scooter for her to enable her to get around outdoors.
- When Ms Maguire first tried to get her scooter into Bobs new shop, which opened in
January 2002, she says that she had difficulty turning around in the store and had to ask staff to move displays to accommodate her. After that she decided not to go into the shop but to wait at the door and let the staff get her goods for her - Ms Maguire said that all the staff of Bobs were most helpful to her and always went out of their way to look after her. Because of the staff's co-operation, she said that she used to visit Bobs nearly every day in the 6 months leading up to 26 July 2002 and get the groceries she needed.
- She also said that the staff were always very friendly and used to put things in her bag for her. She explained that, because of her disability, she would have had trouble trying to carry the bag around the shop herself.
- On 26 July 2002, after she had got her groceries as usual, the manager, Ms Michelle
McCullagh, suddenly came out of the shop and called loudly after her. Ms McCullagh
said to her that she had seen her walking around a chain store a few days beforehand and that she "didn't think you could walk". Ms McCullagh then informed her that her staff would not be coming out to help her in future and that she could walk into the shop if she wanted anything in future. She said that Ms McCullagh started "roaring " at her and eventually told her that she was "barred". - When Ms Maguire got home, she got very upset as Ms McCullagh had "made an
exhibition" of her outside the shop. Her son then went down to the shop and spoke to Ms McCullagh's father and brother, who are also involved in the business, but got no joy from them. - Because of the incident, Ms Maguire did not return to Bobs for 18 months. She revisited the shop in January 2004 when a friend told her that the layout had been improved and that it would now be possible to negotiate around the floor in her scooter.
Principal Items of Evidence - Respondents
- Bobs News & Deli moved to new premises in Darndale in January 2002. The premises is wheelchair accessible and has a number of wheelchair users who have been regular visitors over the past two years.
- In the opinion of the respondents, Ms Maguire's scooter would not have created a
problem in the shop and they questioned her assertion that she could not negotiate around the floor when she tried initially. - The shop was recently redeveloped and it is now even better equipped to cater for
mobility-impaired customers. - Michelle McCullagh has been running the shop with her father and brother for many
years. - Ms McCullagh knows Ms Maguire well from her calling to the shop over the years but
she personally had not dealt with her directly at any stage - Ms McCullagh always assumed that Ms Maguire was permanently disabled as she had only ever seen her in her scooter. For this reason she was happy to allow staff to assist Ms Maguire whenever she called to the door of the shop.
- She was fully aware of the practice where Ms Maguire came to the door and called in her order to the girl on the till. The girl then arranged for the goods to be gotten from the shelves and brought out to Ms Maguire who then paid for them.
- A few days prior to 26 July 2002, Ms McCullagh came upon Ms Maguire in a large chain store and was "shocked" to see her walking around with the help of a cane. She said that she saw Ms Maguire "hobbling along with a stick" and going up and down a few aisles. She said that she watched her in disbelief as she had always thought that Ms Maguire was permanently confined to her scooter.
- When Ms McCullagh next returned to Bobs, she mentioned to staff that she had been
surprised to see Ms Maguire walking around. In response, some members of staff
indicated that they had already known this for some time, as they live in the area and
often see Ms Maguire in the locality. - When Ms McCullagh noticed Ms Maguire outside Bobs a few days later, she went out after her and told her that she had seen her walking around a store a few days earlier and that she had not known that Ms Maguire could get around with the help of a cane.
- She then told her that, as she was able to walk, she should not be asking staff to leave their tills to assist her and that, in future, she should bring her stick with her and come into the shop herself to get her goods. She said that the security man could look after the scooter if Ms Maguire was concerned about it.
- Ms McCullagh said that, at that point, Ms Maguire got annoyed and asked her if she was "questioning her disability". Ms McCullagh replied that she was not but that she now knew that she could walk. At no time did they discuss the details of Ms Maguire's disability.
- Ms McCullagh at no time told Ms Maguire that she was barred and expected that she
would be back to visit the shop again
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably
than another person is, has been or would be treated. Section 3(2)(g) of the Act specifies the disability ground as one of the grounds covered by the Act. Section 4 of the Equal Status Act 2000 states that "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.
6.2 In this particular instance, the complainant claims that she was discriminated against
on the grounds of her disability contrary to Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Act, 2000 in the manner in which Ms McCullagh dealt with her on 26 July 2002. In cases such as this, the burden of proof initially lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If a prima facie case is established, the burden of proof then shifts to the respondents.
7 Conclusions of the Equality Officer
7.1 At the outset, I must first consider whether the existence of a prima facie case has
been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the disability ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the
treatment someone, not covered by that ground, would have received in similar
circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the
difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.6 What constitutes "prima facie evidence' and how a "prima facie case" is established
has been documented and considered in previous cases such as Sweeney v Equinox
Nightclub DEC-S2002-031.
7.7 In the case before me, I consider that the following pieces of evidence to be the most
persuasive and compelling:
- There is no evidence whatsoever before me to suggest that Claire Maguire ever tried to mislead people into thinking that she could not walk
- It is clear that some staff of Bob's News & Deli were aware for a long time of Ms
Maguire's ability to walk a little, but were still happy to assist her when she called to the door of the shop each day - Ms Maguire was a regular customer of Bobs and seemed to get on very well with the
shop's staff - The incident on 26 July 2002 arose directly from Ms McCullagh's belated and
unexpected discovery that Ms Maguire was able to walk a little - Ms McCullagh's approach to Ms Maguire on 26 July 2002 appears to have been driven by a perception on Ms McCullagh's part that Ms Maguire may have been abusing the goodwill of staff in getting them to get her groceries for her
- It seems clear, from the testimony of both individuals, that no attempt was made by Ms McCullagh to discuss with Ms Maguire the nature of her illness, the difficulties that she encounters or what could be done to alleviate her difficulties.
7.8 As stated above, Section 4 of the Equal Status Act 2000 states that "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." Of importance here is the
fact that the Act states that it does not have to be impossible for someone to do something, merely "unduly difficult".
7.9 The question as to what constitutes "reasonable accommodation" has been addressed in many employment equality cases previously and much emphasis has been placed on the failure of employers to engage in an acceptable level of consultation on the specific needs of a person with a disability. Both the Equality Tribunal and the Labour Court have issued a considerable body of decisions requiring a high standard of consultation in such cases and I can see no reason why similar standards should not be applied in Equal Status cases, considering that the legal provisions are effectively the same. For example, in A Health and Fitness Club v a Worker, (EED037), the Labour Court said that: "before coming to that view [that the employee was not capable to do the job by reason of their disability], the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition, and that the employee is given fair notice [if extreme measures, such as dismissal for incapacity, are under consideration]. The employee must also be allowed an opportunity to influence the employer's decision. In practical terms, this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability, including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer, either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable , section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. ......... Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions." Similar principles on the need to consult the person with a disability about their needs and suggestions for "reasonable accommodation", before making a decision, can be found in A Computer Company v A Worker, Labour Court, EE01/3, 18 July 2001; and in Mr O v A Named Company, (Equality Tribunal DEC-E2003-052)
7.10 There is, of course, an obvious distinction to be made between the employment and
equal status context and that is that one would expect the standard of "reasonable
accommodation" in an employer/employee situation to be higher, since the relationship may be different and more long-term, than that between a service provider and a customer.
However, I consider that the standard must clearly be the same for something as basic as the need to consult with the person with a disability and I also consider that a service provider cannot be deemed to be providing "reasonable accommodation" unless they have taken proper account of the needs and views expressed by the person with the disability, who obviously has first hand knowledge of their condition.
7.11 In the case before me, Ms McCullagh decided herself, on discovering that Ms
Maguire was able to walk, that Ms Maguire was capable of doing her own shopping in Bobs Mini-Mart. This decision was taken without discussion with Ms Maguire as to whether it would be "unduly difficult" for her to use her cane to come into the shop and without consultation on how she was to choose and carry her own goods around the shop.
By not talking to Ms Maguire, I consider that Ms McCullagh did not sufficiently explore
what could be reasonably done to accommodate the needs of Ms Maguire, in accordance with Section 4 of the Equal Status Act 2000. Instead, it would appear that Ms McCullagh took a very "heavy-handed" approach with Ms Maguire and I consider that the treatment afforded Ms Maguire on 26 July 2002 constituted a failure on Ms McCullagh's part to comply with the requirements of the Equal Status Act 2000. Accordingly, I find that the complainant has established a prima facie case of discrimination and that the respondent has failed to rebut the allegation.
8 Decision
8.1 I find that the complainant was discriminated against, contrary to Section 3(1), Section 3(2)(g) and Section 4 of the Equal Status Act 2000, by Bobs News & Deli on 26 July 2002 on the grounds of her disability.
8.2 In considering the level of redress which would be appropriate, I have taken into account the fact that the evidence before me suggests that the staff of Bobs News & Deli have been most accommodating to Ms Maguire over the years and that there is no evidence whatsoever to suggest that the shop operates any form of discriminatory policy against people with disabilities. I, therefore, consider that what happened on 26 July 2002 was an isolated incident and arose from a "spur of the moment" decision by Ms McCullagh. However, as a result of the incident, Ms Maguire did not frequent the shop again for 18 months. As I have found that discrimination did occur, I order that the respondents pay Ms Maguire the sum of €500 for the humiliation, upset and distress suffered by her. As Ms Maguire is now visiting the shop again, I also order that Bobs News & Deli ensure that all staff are reminded of their obligations towards people with disabilities under the Equal Status Act 2000 and that Ms Maguire is provided with reasonable accommodation and assistance whenever she calls to the shop in the future.
Brian O' Byrne
Equality Officer
27 February 2004