1. Summary of the Complainant's Case
1.1 The complainant, who was 80 years of age, suffered from a disability which impaired her ability to walk without a walking aid at the time of this incident. She is currently a wheelchair user due to the deterioration of her condition. Together with her husband she went to the respondent premises in 12th January 2004. They were intending to purchase a bed. On arrival the premises was closed for lunch but shortly thereafter the respondent appeared and proceeded to open the shop. By this time another potential customer had arrived, a young woman accompanied by a child in a buggy. The complainant said that when she went into the shop she was looking at beds and was seeking the attention of the respondent for service. She said that the respondent had started to deal with the woman who had come into the shop behind her and at first ignored her. She said she believed that she should have been attended to first. She persisted in attempting to get the respondent's attention and then proceeded to progress through the shop to look at the furniture. She said that the respondent then called across to her saying "you can't go in there". She asked him "how am I to buy a bed?" He responded you cannot go in there because you will scratch the furniture. She said she was still quite near the front door of the shop and she believed he was implying her walking aid would cause damage. She said that the respondent continued to deal with the other customer who was not a disabled person and she overheard him saying "why is she here?" As she persisted in trying to get service she said that the respondent said to her "just go out". She said she and her husband who was with her left the shop feeling very upset. She said she had purchased furniture there some years previously and she understood that the person who sold it to her was the respondent's father.
1.2 She said that when they got home they discussed the incident with their son who had not been with them at the shop. Mrs Golden said that as she was still very upset two days later, particularly about why she might have been refused as she had never been refused in a shop previously. Her husband and son decided they should return to the shop and seek an apology. Mrs Golden said she waited in the car outside the shop while the others went in.
Evidence of Mr. Mark Golden (Complainant's son)
1.3 Mr Golden said that he first found out about the incident when his parents told him about it on his return home from work in Dublin City on the day it happened. He said he found his mother to be quite upset about the incident and he decided with his father that they should seek an apology from the shop owner. He said his father was particularly annoyed as he was someone who could have given his custom elsewhere but had gone to the particular shop because he was keen to support local business in Dun Laoghaire, his native town. He wanted to confront the shop owner immediately about the incident but his father (now deceased) thought that they should let things settle down
1.4 He said that two days after the incident, as his mother was still quite distressed about it, he went to the respondent shop with his father. On their way in they coincidentally met a cousin of his who accompanied them inside. He said his mother remained in the car. Their intention was to seek an apology and that would have been the end of the matter. However, when they approached the respondent and sought an explanation for what had occurred, Mr Golden said that the respondent said that he did not owe anyone an apology and that his store did not have the facilities to deal with his mother's disability. Mr Golden said he found the response to be flippant as he was prepared to drop the entire episode if he had got an apology. At that point they left the store and there has been no contact between the parties since then.
2. Summary of the Respondent's Case
2.1 The respondent Mr Robert Furlong is the owner of Just Beds. He has owned the shop since 1993. He said that his father had never worked there so he did not know how the complainant could have dealt with him previously. He recalled the incident complained of reasonably well and he recalled Mrs Golden waiting at the shop with a gentleman when he returned late from lunch on the date of the incident. He said that the recalled the lady with the buggy being there at the time also and he believed it was this lady who entered the shop first. He specifically remembered assisting Mrs Golden entering the shop as he was concerned that her walking aid might get caught in the matting which was near the shop entrance. He said that he then returned to the serve the other customer. After about 10 - 15 minutes Mr. Furlong called across to Mrs Golden to warn her to look out for unassembled furniture which could be in her way as she was moving around the shop. He said that having to wait to be served seemed to irritate Mrs Golden. She then left the shop. He said he did not ask her to leave. As far as he could recall, Mrs. Golden's husband said nothing.
2.2 He recalled that a day or two later three people came in together about the incident. He said he found that their approach to him was not very pleasant and he refused to deal with them.
2.3 Mr Furlong said that he did not have any specific facilities available on the premises for disabled people but that there was a ramp which disabled people could use to access the shop. This was also used for the movement of furniture. He said that the difficulties in access in the shop related to the nature of his stock which could be in an unassembled state in various places in the premises. He said that he did not have any particular concerns about disabled customers but he felt that Mrs Golden was not the steadiest person on a walking aid he had come across. He said that this was why he called across to Mrs Golden in order to warn her to look out for unassembled furniture such as bed frames and mattresses that might be in her way. He said he was the only person serving in the shop that day and generally this was the case. His recollection was that Mrs Golden had not asked him for assistance regarding any purchase she was going to make. He said that if she had asked he would have made an effort to move stuff out of the way in order for her to get by. He indicated that Mrs Golden would always be welcome as a customer of the shop.
3. Conclusions of the Equality Officer
3.1 The complainant in this case has grounded her complainant on the basis of her stated disability. At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that she is covered by the relevant discriminatory ground i.e. in this case that she has a disability. (2)It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not disabled nor had a different disability. If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if his defence is to succeed. In the case of disability further consideration may be made to the issue of the provision of reasonable accommodation to a disabled person, Section 4 of the Equal Status Act states as follows:
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...
3.2 The first test set out above is whether the complainant, Elizabeth Golden is covered by the disability ground, i.e. is she considered disabled according to the definition of disability set down by the Equal Status Act 2000-2004. In the act
"disability" means --
(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, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour 1;
Ms Golden suffers from arthritis which has affected both her knees and did so at the time of this incident. The condition has resulted in her requiring both knees to be replaced through surgery, one unsuccessfully. I am satisfied that the condition with which Mrs Golden lives is a disability within the meaning set out above and that therefore, Mrs. Golden is disabled within the terms of the Equal Status Act 2000-2004. This fact satisfies the first of the three criteria set out above.
3.3 The second criterion, that of whether the incident complained of actually occurred is my next consideration. In this case Mrs Golden has said that she was shouted at and refused service while shopping at Just Beds. The respondent denies that she was refused service and that while he may have raised his voice towards her it was only to draw her attention to the potential hazards that lay in her path around the shop and that he wanted to ensure that she heard him. Regarding the secondary incident, when Mrs Golden's relatives sought an explanation and apology, it is agreed between the parties that such an encounter did occur. On the basis that on the balance of probabilities an incident/s did occur I accept that the second criterion is satisfied.
3.4 The third criterion to be satisfied in order for the complainant to establish a prima facie case of discrimination is that of less favourable treatment, i.e. she must show that the treatment she received was less favourable than that which would have been given to another person in similar circumstances who either did not have a disability or had a different disability to Mrs Golden. By all accounts the layout of this particular premises, posed potential hazards for customers due to the type of stock and its position within the shop. I conclude, therefore, that while the treatment afforded to Mrs Golden, while not the best of customer service and consideration is likely to be the treatment that would have been afforded to any customer who was making their way through the shop independently on the day of this incident. It remains then to consider the second element of the test, that which arises under Section 4 of the Equal Status Act 2000-2004. Was Mrs Golden provided with reasonable accommodation in the terms set out by section 4 of the Equal Status Act?
3.5 The evidence presented in this case points to a situation where, if facilities to deal with disability existed in Just Beds, their existence was merely a consequence of these facilities being required for other business purposes within the shop. The example of this is the presence of a ramp, the primary aim of which was to facilitate the movement of stock in and out of the premises but which could also be used by disabled customers. In Mrs Golden's case a ramp was not the particular facility required. In the circumstances where it appears the layout of this shop premises was possibly, in the respondent's view, hazardous for an unattended customer such as Mrs Golden and where she says herself that she was seeking assistance, I consider that at the very minimum a little time should have been taken by the respondent to enquire from the complainant, Mrs Golden, who he was aware was disabled, if she required assistance. I consider that a gesture as simple as this would have satisfied the criterion of reasonable accommodation in the case without exceeding the nominal cost requirement. It would also appear from the evidence that the provision of an apology following the event may have remedied the situation to the complainant's satisfaction and brought matters to a conclusion, but this was not forthcoming.
3.6 I consider the shop layout was one, where if a hazard existed it was one that would have existed for all customers not only the disabled but that disabled customers required special facilities in the form of prompt assistance to avail of the services of Just beds. I conclude therefore, that sufficient reasonable accommodation was not made for Mrs Golden in accessing the service provided in Just Beds.
4. Decision and Redress
I find in favour of the complainant, Elizabeth Golden, in this case in terms of section 4(1) of the Equal Status act 2000-2004. In determining redress under section 27(a) of the Act, I consider that the sum of €350 (three hundred and fifty Euro) is appropriate and I therefore order the respondent Mr. Robert Furlong to pay the complainant this sum within 42 days of the date of this decision. I further order in accordance with Section 27(b) that the respondent put systems in place within his business to ensure that disabled customers receive prompt attention and service when they attend his premises.
10th August 2007
1 Equal Status Act 2000 @ Section 2.1