The Horse & Jockey Inn
(Represented by Ms. Marguerite Bolger B.L. acting
on instructions from Heslin, Ryan & Co., Solicitors)
1.1 This dispute concerns a complaint by Mr. Kenneth Kilduff that he was discriminated against by the Horse and Jockey Inn on the disability ground. The complainant alleges that the respondent discriminated against him, in terms of Sections 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act i.e. that the respondent failed to do all that was reasonable to accommodate the needs of the complainant by providing special facilities and as a result of which he was unable to avail of overnight accommodation at the respondent's hotel.
2. Summary of the Complainant's Case
2.1 The complainant, a wheelchair user, was due to attend a conference at the respondent's hotel on 17th April, 2004 and he made a provisional reservation for a wheelchair accessible room at the hotel on 8th April, 2004. The complainant contacted the respondent by telephone on 9th April, 2004 in order to confirm this reservation and to make enquiries regarding the specific type of bed that would be available to him in this room. The complainant sought clarification on this issue as he required the use of a hoist to assist him to get into and out of bed and it was only possible to use this hoist on a bed with legs. The respondent informed him that the hotel did not have any beds with legs and that all of the beds in the hotel rooms were divan beds (i.e. beds without legs). The complainant stated that it was not possible to use the hoist with a divan bed and that it was therefore necessary to cancel his reservation to stay at the respondent's hotel on the night before the Conference. As a consequence, the complainant was obliged to travel to the Conference on the morning of the event, with the result that he was late arriving and missed a large proportion of the morning session.
3. Summary of the Respondent's Case
3.1 The respondent submitted that it is a wheelchair friendly hotel and that this was one of the reasons why the hotel was chosen by the Centre for Independent Living to host the conference that the complainant was due to attend. This conference took place on 17th April, 2004 and was attended by a large number of wheelchair users. The respondent acknowledges that the complainant made a provisional reservation on 8th April, 2004 to stay at the hotel. However, it was only when the complainant telephoned the hotel on 9th April, 2004 to confirm the reservation that the respondent became aware of his requirement for a bed with legs in order to facilitate his need to use a hoist. The respondent informed the complainant in response to this enquiry that all of the beds in the hotel were divan beds and that it did not have any beds with legs in any of its rooms. The respondent does not dispute the complainant's need for a hoist and the requirement for a bed with legs to facilitate the use of the hoist. However, the respondent contends that this requirement is an exception rather than a common requirement for wheelchair users and this is evidenced by the fact that guidelines published by the National Disability Authority and the Failte Ireland Validated Access Scheme for Hotels do not require or recommend the provision of beds with legs in advising on wheelchair friendly facilities.
3.2 The respondent submitted that at no time prior to being notified by the complainant of his requirement for a bed with legs on 9th April, 2004 was it advised of the need to provide any beds with legs to facilitate wheelchair hoist users. The respondent accepts that the cost of providing a bed with legs might not have been excessive. However, it contends that given the length of time between when the complainant notified it of this requirement and when he was due to arrive (i.e. seven days), it was not possible in that time to purchase a bed with legs and have it delivered to the hotel in time for the complainant's proposed stay. The respondent submitted that it has, at some considerable cost, taken steps to provide reasonable accommodation for wheelchair users including wheelchair accessible lifts and doors and has ensured that all areas of the premises are accessible to wheelchair users. The respondent has purchased a bed with legs for its premises following this incident, at a cost of €420, and it submitted that the lead in time for the delivery of this new bed with legs was three weeks. The respondent submitted that it took all reasonable steps to ensure that the complainant could avail of its services and, accordingly, there is no basis for a finding that it discriminated against the complainant on the ground of his disability.
4. Conclusions of the Equality Officer
4.1 The complainant in the present case is a wheelchair user, and I am therefore satisfied that he is covered by the relevant discriminatory ground i.e. that he has a disability. In this case it is not disputed by the parties that the complainant sought to avail of accommodation at the respondent's hotel but was unable to do so because the type of bed available did not facilitate the use of a hoist. As a result the complainant was left with no option but to cancel the overnight reservation that he had made to stay at the hotel. In the circumstances, I am satisfied that the actions complained of actually occurred. In order for the complainant to establish a prima facie case of discrimination, he must show that the treatment he 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. The respondent submitted that it had approx. 30 bedrooms in its hotel in April, 2004 and that all of these bedrooms were furnished with divan beds (i.e. beds without legs). The complainant required a bed with legs in order to facilitate the use of a hoist, however the respondent did not have the required type of bed in any of its bedrooms at that particular time. I note that in April, 2004 the respondent had designated one of the bedrooms in its hotel for use by persons with disabilities and that this room had been specially modified for such use, albeit in the present case that this room was not suitable for the complainant's specific requirements. I am satisfied that the respondent only had one specific type of bed i.e. a divan bed in its bedrooms and that any person availing of overnight accommodation at the hotel would have been obliged to make use of this type of bed. In the circumstances, I conclude that the treatment afforded the complainant was not less favourable than the treatment that would have been afforded to any other guest that sought to avail of overnight accommodation at the respondent's hotel at the time of this incident.
4.2 In the case of disability in considering whether discrimination occurred, further consideration must 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...
The respondent has submitted that it is wheelchair friendly hotel and that the first time it became aware of the limitations presented by a divan bed to certain wheelchair users was when the complainant sought a bed with legs on 9th April, 2004. The respondent has further submitted that the requirement to provide beds with legs is an exceptional rather than a common requirement for wheelchair users. In this regard, the respondent has referred to guidelines published by the National Disability Authority and the Failte Ireland Validated Access Scheme and it contends that these guidelines do not recommend the provision of beds with legs in advising on wheelchair friendly facilities. As part of my deliberations on this issue, I have examined the aforementioned guidelines (which were applicable at the time of the alleged discrimination in April, 2004) and I am satisfied that neither of these bodies recommended that hotels provide beds with legs in order to facilitate certain wheelchair users i.e. those that require the use of a hoist. In the circumstances, I conclude that the respondent was not in breach of the best practice guidelines issued by two reputable organisations with regard to the provision of facilities for people with disabilities. I am therefore satisfied that the respondent could not have reasonably been expected to be aware of any requirement to provide beds with legs in order to facilitate certain wheelchair users prior to it being brought to its attention by the complainant on 9th April, 2004.
4.3 However, notwithstanding the foregoing, when the respondent became aware of the difficulties that divan beds presented to the complainant, it still had an obligation to comply with the provisions of Section 4 of the Equal Status Acts. I must therefore examine the treatment of the complainant in the context of Section 4 of the Act and the issue that I must decide in the present case is whether the respondent did all that was reasonable in the circumstances to accommodate the complainant's needs as a person with a disability. It is not disputed by the parties that the complainant contacted the respondent's hotel on 8th April, 2004 and made a provisional reservation for a wheelchair accessible room for the night of 16th April, 2004. It is also common case that the complainant first notified the respondent of his requirement for a bed with legs when he telephoned the hotel on 9th April, 2004 in order to confirm the reservation. The respondent contends that it was not possible within that timeframe (i.e. seven days) to arrange the purchase of a bed with legs and have it delivered to the hotel in time for the complainant's proposed stay. The respondent further submitted that the lead in time for the delivery of the new bed with legs that it purchased following this incident was three weeks. Section 4 of the Act also provides that where the provision of special treatment or facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. In the present case the respondent accepts that the cost of providing special facilities for the complainant i.e. a bed with legs would not have been excessive and it is not, therefore, relying upon a defence that the cost of providing a bed with legs would have amounted to more than a nominal cost.
4.4 I am satisfied that the respondent, having spoken with the complainant on the telephone on 9th April, 2004, was fully aware of the factual position regarding the nature of the complainant's disability and the special facilities that he required in order to avail of overnight accommodation at the hotel i.e. the requirement for a bed with legs. Having established these facts, the respondent informed the complainant that it did not have the required type of bed to facilitate his overnight stay at the hotel. Given the time constraints that pertained, I am satisfied that the respondent could not have reasonably been expected to give an undertaking to the complainant at that juncture that it would be able to acquire a bed with legs within the space of seven days in order to facilitate his stay at the hotel. I am satisfied that any such requirement on the respondent to procure the required type of bed necessary to facilitate the complainant within such a short space of time would have exceeded the standard of reasonable accommodation expected of a service provider in such circumstances. Accordingly, I find that the respondent has not failed in its obligation to do all that was necessary to provide the complainant with reasonable accommodation within the meaning of Section 4 of the Equal Status Act.
5.1 I find that a prima facie case of discrimination has not been established by the complainant on the disability ground in terms of Sections 3(1), 3(2)(g) and 4(1) of the Equal Status Act, 2000 and accordingly, I find in favour of the respondent.
6th December, 2007