THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 047
(Represented by Sasha Gayer BL,
instructed by O’Rourke Reid Law Firm)
File Reference: ES/2006/0089
Date of Issue: 23 July 2009
Equal Status Acts 2000-2004 -Section 3(2)(g), disability ground – reasonable accommodation - visually impaired – customer service - nominal cost – no prima facie case
1. Delegation under the relevant legislation
1.1. On 7th August, 2006, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, 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. This delegation took place on 26th September, 2008, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Thursday, 30th April, 2009. Both parties were in attendance at the hearing.
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts, and contrary to Section 5(1) of the Equal Status Acts, in that the respondent failed to provide her with reasonable accommodation in relation to the provision of the Tesco Clubcard service.
3. Summary of Complainant’s case
3.1. The complainant is visually impaired such that she is without sight. She submits that she has not been provided with special treatment or facilities by the respondent that would enable her to read her own Clubcard statement and wishes that her current and all future Clubcard statements be sent to her in braille (Clubcard is a service provided by the respondent whereby, inter alia, points are given according to how much you spend that allow deductions to then be made from later purchases). A representative of the respondent, Mr A, had set up a system for her which satisfied her needs whereby she could spend points online using Tesco Home Shopping. However, that system broke down when Mr A left his post and the complainant said that she has a difficulty now with the whole process. She said she made contact with the respondent about the matter throughout 2006, and earlier. She said that Mr A informed her that the respondent would be producing larger print statements “once we are happy that the systems and processes are capable of delivering this effectively” and that this could lead to the provision of statements on tape and/or in braille. Aside from this, however, the complainant was not satisfied with the response she received from the respondent, and, indeed, did not receive any response at all to some of her communications with it.
3.2. The complainant said that the only method for obtaining information about her Clubcard currently available to her was through ringing the helpline. However, she said that this is not suitable and, in that regard, outlined the poor customer service she said she receives from this helpline, saying that the customer service representatives involved often refuse to give the information she needs. The complainant said that she only wanted to enter a discussion with the respondent about how to satisfy her needs, and if it had responded to her, she might not have made the complaint to the Tribunal.
3.3. The complainant said that there is a website for the UK and Ireland but Clubcard points are made available only on the UK website. In that context, she said that a website might be a suitable form of reasonable accommodation depending on how it was set up (i.e. as long as it is in screen reader compatible formatting). The respondent has previously suggested providing the information she needed by e-mail and she said that this would be an acceptable form of reasonable accommodation as long as it was presented in a format that was readable. She said that she would accept phone calls as a suitable form of reasonable accommodation, once someone rang and explained over the phone to her the details of the Clubcard statement, and that a particular dedicated contact person would be useful in that regard. She added that she had difficulties with accepting help from drivers due to the poor English language skills of some of those drivers.
3.4. She did not think the cost of translating the Clubcard statement into braille would be beyond the resources of the respondent, given its current positive financial position. In that regard, she added that the respondent provides certain facilities in the UK to disabled persons (e.g. it offers electrical scooters for people to go around the shop etc). She acknowledged that the respondent did have special facilities in her local store, whereby a dedicated member of staff would assist her with her shopping. However, she said that when she tried to use that service, the person assigned to her initially was good but was replaced by someone much less effective. The complainant said she used Tesco as opposed to other retailers as no other retailer both delivers in the city centre and has a suitable website.
4. Summary of Respondent’s case
4.1. The respondent said that it had acted on the complainant’s concerns by actively seeking solutions to them and had intended replying and engaging with her on the issues she raised with it. However, it said that it had not communicated this to her. As a point of clarification, it said that, in relation to the issue of print statements and braille, Mr A was talking about what was going on in the UK, where a feasibility study was carried out in relation to those issues. The respondent found that a letter in braille summarising the position in relation to the Clubcard would cost £150 (i.e. c.€180) to make. The reproduction of a statement in braille would cost £560 (i.e. €672) and would take 13 weeks on average to produce. It said that it could not justify this expenditure in the context in which there had been no demand for braille statements from anyone except for the complainant. In addition, it had concerns about privacy where it was sending out personal data to third parties (i.e. in this case, the party who would be translating the document in question). It said that Tesco UK looked at the possibility of providing statements on tape, but given the turnaround time it did not consider this to be feasible.
4.2. The respondent said that infrastructural problems in Ireland were the major stumbling block for making the ClubCard details available by website or e-mail. It therefore was unable to provide those services at present. It said it understood the complainant’s difficulties with regard to the helpline and that this was caused by it being operated by many different members of staff, and by the requirement of those staff members to comply with their Data Protections obligations. However, it proposed to provide a dedicated contact person for the complainant, whose name would be known to her, and who would ring her on a quarterly basis with the details she required. The respondent said that the drivers who delivered the goods can assist obtaining credit for clubcard points obtained online and even scan in clubcard points where necessary. It said that it has policies in place and training in place to deal with issues such as the customer service difficulties encountered by the complainant in relation to both the drivers and the helpline.
4.3. The respondent said that its service is always evolving, but that reasonable accommodation has been provided by way of the complainant being able to ring the helpline. It said it was expecting too much to say that clubcards should be translated into braille as, even without that translation, it was not impossible or unduly difficult for the complainant to avail of the service provided. It said that staff were available in stores to assist visually impaired customers and so it provided services to people with visual disabilities as much as those with other disabilities. It said that it is the only retailer with a specialist website to assist visually impaired customers and that no other retailer gives out a clubcard (or similar) statement in braille.
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. The complainant submits that, contrary to Section 4(1) of the Acts, the respondent has failed to do all that is reasonable to accommodate her needs, as a person with a disability, by providing special treatment or facilities and that, in the absence of such special treatment or facilities, it is impossible or unduly difficult for her to avail of the Tesco clubcard service. In considering this submission, I must also 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. The complainant argues, in the first instance, that she should have been provided with a braille version of her clubcard statement. She goes on to state that other forms of reasonable accommodation would have been acceptable to her, but that the only method of assisting her that has been provided by the respondent is the customer service facility available by telephone. She says that this is not acceptable due to the poor quality of the service it provides and, in particular, its regular failure to provide her with the information she needs.
5.4. It is clear that the respondent has facilities available to people with visual disabilities in the UK, particularly through its website, that would go a long way to meeting the outcomes desired by the complainant, but that cannot be provided in Ireland because of the infrastructural difficulties outlined by the respondent. The respondent cannot be held responsible for this. Additionally, the consequences of it, in the context of this complaint, is that the only options open to the respondent to meet the needs of the complainant are and were i) to translate the statement into braille, and ii) to communicate with the complainant via telephone.
5.5. The respondent has investigated the possibilities surrounding translating the complainant’s clubcard into braille. I am satisfied that the provision of the letter summarising the items would not give rise to a cost other than a nominal cost, given that, at the respondent’s own admission, the complainant is the only person who wishes to receive this service, and the cost itself (€180 per statement) is nominal relative to the resources available to the respondent.
5.6. However, the key in considering this matter is that the obligation on the respondent in relation to Section 4(1) is to do all that is reasonable to provide special treatment and/or facilities. The complainant is not entitled to perfection in this regard. I can understand the frustration and exasperation of the complainant in relation to the telephone system in place and it is clear that the complainant’s experience of this system, to date, has not been ideal. Nonetheless, I am satisfied, on balance, that she is still able to get access to the information she requires within a reasonable period of time. Furthermore, the occasions when she experienced delays in obtaining the information she required were down to genuine errors on the part of the representatives of the respondent in question, and they were neither frequent enough nor were of serious enough consequence to make it unduly difficult for her to avail of the service in question.
5.7. I am therefore satisfied that the respondent has fulfilled its obligation to provide special treatment or facilities to the complainant in availing of the Tesco Clubcard service, and the complainant has failed to establish a prima facie case in that regard.
5.8. It is unfortunate that the respondent did not reply to most of the complainant’s earlier correspondence. If it had done so, the complainant’s understandable frustration would have been lessened, and she may not have made the present complaint. Nevertheless, I am satisfied that the respondent has taken reasonable steps to alleviate the complainant’s situation. In particular, it has offered to provide a dedicated contact person for the complainant, whose name would be known to her, and who would ring her on a quarterly basis with the details she required to avail of the Clubcard service. I note that the complainant has stated her willingness to accept this offer and I would therefore recommend the relevant arrangements be put in place as quickly as possible, though I can make no order in this regard.
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. I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has failed to establish facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her. The complainant has therefore failed to establish a prima facie case of discrimination on the part of the respondent.
6.3. Accordingly, the complainant’s case fails.
23 July 2009