The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008- 117
- V -
File No. ES/2006/0070
Date of Issue 10 December 2008
Equal Status Acts 2000-2004 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1) – Level access showers in hotels – Use of hoist – Best practice guidelines – Building Regulations
1. Delegation under the relevant legislation
1.1. On 3 July, 2006, the complainant, Ms Ann Harrington, referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 to 2004 and under the Equal Status Acts, 2000 to 2004, the Director delegated the case to me, Gary O’Doherty, 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 Acts, 2000-2004. This delegation took place on 29 July, 2008, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, 2000 to 2004, and as part of my investigation, I held an oral hearing of the complaint in Cavan on Wednesday, 15th October, 2008. Both parties were in attendance at the hearing.
2.1. The dispute concerns a complaint by Ms Harrington that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, particularly in that she was not provided with reasonable accommodation in attempting to avail of the services offered to her by the respondent. She alleges that she was not provided with reasonable accommodation at the respondents’ premises when she went to stay there in that she was not provided with suitable facilities in her bedroom and was unable to use the swimming facilities at the hotel.
3. Case for the Complainant
3.1. The Complainant suffers from Spinal Dysraphism and is a wheelchair user. She stayed at the respondent hotel from 10 to 12 April 2006, having travelled there for the annual outing of a social club of which she is a member. Ms N, who acts as the unofficial travel organiser of the group, made the hotel booking. The complainant stated that Ms N knew her requirements and requests and would have asked for a wheelchair friendly bedroom. The complainant further stated that Ms N was assured that there would be a suitable room available. However, she admitted that she could not say with certainty that Ms N asked for a room with a level access shower but insisted that she did not doubt that there would be a room with the necessary facilities in it, particularly given that the respondent’s hotel was new.
3.2. When she arrived at the hotel, the complainant said that she was checked into what she would consider to be an ordinary room with an ordinary bathroom. There was nothing in the room that enabled her to have a shower, which was of particular importance to her as the implementation by her of a strict hygiene routine is essential due to the nature of her disability. The complainant made her concerns known to the receptionists at the hotel, but was told that the room in question, and similar rooms, were the only wheelchair accessible rooms available.
3.3. The complainant said she was disturbed to find that there were no wheelchair accessible rooms in what was a brand new, four-star hotel. She stated that the owners of the hotel should have been well aware of their responsibilities in relation to disabled customers, referring in particular to the provisions of the Building Regulations. She considers that reasonable accommodation means that she should have, in her bedroom, a level access shower with grab rails and with a seat that is suitably fixed. There should also be a mobile shower head and taps within reach. She therefore did not consider that she was provided with reasonable accommodation in relation to the facilities at the hotel at the time in question. She said that, to her, the only kind of wheelchair friendly bedroom is one that has a level access shower.
3.4. The complainant also stated that she was unable to avail of the swimming facilities at the hotel. She explained that the usual method of getting into the swimming pool was by way of steps or a ladder. However, as she cannot walk or stand, this method of entry was not accessible to her. The complainant told a pool attendant at the pool that she required a hoist to enable her to enter the pool. The attendant in question responded that there was no hoist available.
3.5. The only other way she could get into the pool would be to be lifted in manually. However, the complainant argued that this was not acceptable. She said that a person without a disability could use the steps or the ladder but that, as she considered herself a normal person, just one with a disability, they should be obliged to provide a hoist to ensure that she would be treated as such. She considers that a hoist is a relatively inexpensive option and so she did not see any reason why a hoist could not have been installed. She therefore considers that the use of a hoist was the only appropriate form of reasonable accommodation.
3.6. She noted that staff at the hotel had not received formal Disability Awareness Training and said that if they had they would have been more aware of her needs. She also said that the respondents’ arguments that the architects were to blame for its failure to have a hotel room suitable for her needs were irrelevant. She said that the hotel was not compliant with building regulations and did not, therefore, comply with the law.
4. Case for the Respondent
4.1. The Respondent is the Cavan Crystal Hotel Ltd. and its address is Dublin Road, Cavan. It has been in operation since December 2002.
4.2. The respondent does not dispute the complainant’s outline of the facts or allegations with regard to the bathroom in question. It stated that, in designing the hotel, its architects had failed to comply with Part M of the Building Regulations with regard to the provision of wheelchair accessible facilities in that it had failed to incorporate in its plans for the building, the requirement to have level access showers in at least 50% of the rooms which were built for use by disabled customers. The respondent agreed with the complainant that it did not provide her with an appropriate bedroom as a result of this failure on the part of its agent, its architects.
4.3. The respondent submitted that, while it had not provided formal training in Disability Awareness or the provisions of the Equal Status Acts, it considered that its staff had been well trained internally in how to serve disabled customers. It also stated that the hotel was wheelchair accessible in all respects, other than as outlined in paragraph 4.2 above. As proof, it indicated that the hotel had been used by several different conferences for organisations supporting particular disabilities, and had not received any complaints from any of them. Indeed, it stated that there had been only one other similar query to the complainants, which arose from an individual customer subsequent to the complainants stay at the hotel and was resolved to that customer’s satisfaction.
4.4. The respondent also disputed the claim that someone would have told Ms N that the hotel had a room with a level access shower. It suggested that Ms N, in the course of her conversation with the representative of the hotel when she booked the room, had made an assumption that this was the case. (It believes that she may have understood a reference to wheelchair accessible rooms to automatically mean rooms with level access showers). The respondent argued that the complainant had made the same assumption. Equally, however, the respondent could not honestly say that it did not know the complainant was a wheelchair user and that she would require a wheelchair-adapted room for the duration of her stay at the hotel.
4.5. On the other hand, the respondent denied that it had failed to provide reasonable accommodation in relation to the facilities at its Leisure Centre. As far as it was concerned, the leisure centre and swimming pool were accessible to people with disabilities as there were staff available to assist disabled persons. It did agree that the complainant felt a hoist would be preferable. However, it stated that several members of the leisure centre were disabled and were happy to be lifted into the pool by pool attendants. The respondent had been advised that it was not a requirement to provide a hoist but had nonethelessinvestigated the cost of installing a hoist subsequent to the complainants stay at the hotel. While at the time it found the cost of such installation to be prohibitive, it stated that it would install such a hoist as soon as possible if the complainant could show that a hoist that would meet her requirements would cost less than a certain stated amount.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant’s case which I must consider. Firstly, whether the complainant has been discriminated against because of her disability, in this case as defined by Section 3(1)(a) and 3(2)(g) of the Acts and within the meaning of Section 5(1) of the Acts. Secondly, I must look, in accordance with Section 4(1), at whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”, and whether “ifwithout such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” If necessary, I must then consider Section 4(2) and whether the respondent has not failed to provide reasonable accommodation if to do so would “give rise to a cost, other than a nominal cost”.
5.3. There was no act of discrimination, within the meaning of Section 5(1) of the Acts, as it is not disputed that the complainant was provided with a service by the respondent viz. she was furnished with a room at the respondent’s hotel for the dates in question. The issue of reasonable accommodation, then, is the only one that remains to be decided upon. Thus, the complainant must show, that in all the circumstances of the present case, the respondent did not do everything it reasonably could do to accommodate her needs as a wheelchair user:
- with regard to the provision of bathroom facilities in her room and
- with regard to the use of the leisure facilities at the hotel during the time in question,
and that it did not provide her with special facilities to meet either or both of those needs. I will now deal with each of these two questions in turn.
Question of access to bathroom facilities in her room at the hotel
5.4. Having considered the evidence of both parties, I am satisfied that the respondent was aware that the complainant was a wheelchair user prior to her arrival at the hotel. However, I am also satisfied that the precise nature of the complainant’s requirements were not communicated effectively to the respondent at the time of the booking. I therefore accept the respondent’s argument that it did not tell Ms N that it had rooms with level access showers. At the same time, I am satisfied that the respondent did not have a room that was adequately equipped to accommodate the complainant’s needs, given the nature of her disability, and was unable to provide her with special facilities to meet those needs. Indeed, this is accepted by it.
5.5. The question remains, however, as to whether it was reasonable for the complainant to expect the respondent to have such a room available when it did not know in advance of the complainant’s needs, as if it is not, the respondent could not have been expected to anticipate those needs. However, on balance, I consider that it was so reasonable. The Technical Guidance Document of Part M of the Building Regulations provides that, in hotels and other guest accommodation, at least one in twenty bedrooms should be made suitable for use by wheelchair users. In at least half of these rooms, bathrooms should include level access showers. While I agree with my colleague’s determination that “it is not for this Tribunal to examine a service provider’s compliance with building regulations.”, I believe that this document is of persuasive value in relation to this complaint solely in its capacity as a best practice guideline in relation to the building of new hotels. Thus, just as the Equality Officer did in Kilduff –v- The Horse and Jockey Inn, I consider it useful to consider such best practice guidelines in order to establish whether it is reasonable to expect that the respondent should have provided rooms with level access showers such as the complainant’s when building its premises. In any event, I believe it to be accepted as good practice to have level access showers available in new hotels, where possible, and this was accepted by the respondent. I am satisfied, then, that, in all the circumstances of this complaint, it was reasonable to expect the respondent to have been aware of the need to provide level access showers for disabled customers and it was therefore reasonable for the complainant to expect that her needs in relation to the provision of bathroom facilities in the room in question should have been met. The respondent thereby failed to provide reasonable accommodation in relation to the provision of bathroom facilities in the context of this complaint.
5.6. It is the complainant’s submission that a hoist should be made available for her use at the respondent’s hotel. She accepted that the respondent provided access to the pool for disabled customers by way of pool attendants who assisted the relevant customer enter it. However, she submitted that this was not suitable, at least for her, as she considered it to be a breach of her dignity and was contrary to her belief that she is a normal person with a disability, rather than a disabled person. However, while I appreciate the veracity of this belief, and of her submission in this regard, the question at issue here is whether the respondent was in breach of the provisions of Section 4 of the Equal Status Acts, 2000 to 2004. In this context, I am satisfied that the respondent was not aware, prior to the arrival of the complainant at the hotel, that she wished to have a hoist available for her as I do not believe that Ms N made any specific request in this regard when making the booking. In any event, even if she had requested it, the complainant has not established to my satisfaction that the respondent was under any obligation, within the meaning of the Acts, to provide a hoist. In particular, I am satisfied that the availability of pool attendants to assist disabled customers in entering the pool is, in all the circumstances of this case, a form of reasonable accommodation that stands alone in meeting the requirements of Section 4 of the Acts.
5.7. In seeking redress, the complainant, inter alia, asked “that the hotel put everything right”. However, I note that the respondent has now built rooms with level access showers, and has undertaken to do so in relation to any further building works which it may carry out. I therefore see no reason to make any award other than the redress indicated at paragraph 6.4 below.
5.8. I must also acknowledge the respondent’s swiftness in taking action in relation to the matters raised, once it was aware of the difficulties involved. I also noted that the respondent was forthright in its admittance of a failure to accommodate the complainant in this case. I have taken these matters into account in my award in this case.
6.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision.
6.2. In relation to the leisure facilities available at the hotel at the time in question, I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has not established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her.
6.3. In so far as the respondent failed to provide suitable bathroom facilities to the complainant in the course her stay at the respondents premises from 10 to 12 April 2006, I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her. She has therefore established a prima facie case of discrimination on the part of the respondent, which the respondent has failed to rebut.
6.4. Accordingly, I conclude the investigation and, in accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, order as follows: that the respondent pay to the complainant the sum of €250 as redress for the effects of the discrimination.
10 December 2008