THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2011-021
China Gold Restaurant
(Represented by Barry, Turnbull & Co. Solicitors)
File Reference No(s): ES/2008/0150
Date of Issue: 14th June, 2011
Decision No. DEC-S2011-021
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1)(a) - Disability ground, section 3(2)(g) - Disposal of goods and provision of services, section 5(1) - visually impaired person - guide dog - restaurant.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 6th August 2008. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 on the 21st January 2010 on which date my investigation commenced. A hearing, in accordance with section 25 was scheduled for the 28th October 2010, this hearing was adjourned and a subsequent hearing was scheduled for 5th May 2011. Both parties were notified by Registered post.
2.1. This claim concerns a complaint by Ms. Ann McDaid, where she claims that she was discriminated against by the respondent on the Disability ground in terms of sections 3(1) and 3(2)(g) and contrary to section 5(1) of the Equal Status Acts 2000 to 2008 in not being provided with a service, which is generally available to the public contrary to section 5(1) of the Equal Status Acts in relation to the respondent's refusal to allow her to enter its restaurant accompanied by her guide dog.
3. Complainant's Case
3.1 Ms. McDaid is visually impaired and is a guide dog owner. She and her guide dog had travelled to Cork from Sligo on the 28th April 2008 to attend an appointment with her guide dog instructor on the 30th April 2008. She was staying with Ms. A, a friend, for the few days. On the evening of the 29th April 2008 Ms. McDaid invited Ms. A out for a meal as a sign of her gratitude for allowing her stay with her and at approximately 5:30pm they met up and decided to go for a meal at the respondent's restaurant in Patrick's Street in Cork City on the recommendation of Ms. A.
3.2 The restaurant was located on the 1st Floor over a shop and Ms. McDaid and her guide dog climbed the stairs, followed by Ms. A. As they got to the top of the stairs, the door of the restaurant opened and a female member of staff came out, closed the door behind her and Ms. McDaid claims that she said that "you're not allowed in here with a dog". Ms. McDaid claims that she replied that "She is a guide dog" to which she claims the staff member said "I know that". Ms. McDaid claims that her guide dog was wearing the distinguishing harness and attire for a guide dog. However, she claims that she was left in no doubt that she would not be allowed to enter the premises. Ms. McDaid claims that she had another appointment later that evening in Cork and without wasting any more time she left the respondent's premises where Ms. A took her to another restaurant close by where they were accommodated without any difficulty.
3.3 Ms. McDaid stated that her guide dog is an essential mobility aid for her and by refusing her guide dog's entry to the restaurant compromises her independence and is in breach of her rights to access services that are generally available to the public.
4. Respondent's Case
4.1 Neither the respondent nor its legal representatives were in attendance on the day of the hearing.
4.2 The respondent did forward a submission through its legal representative to the Equality Tribunal by letter of 3rd November 2008 where it "acknowledges that unfortunately, the incident did take place" and that "on the day in question a new female member of staff was not aware of the policy of allowing members of the public with guide dogs into the Restaurant". It goes on to state that "Our client has taken the necessary steps of ensuring that such an incident will not happen again in the future all employees have now been fully appraised and advised of the need to facilitate members of the public in similar circumstances".
5. Conclusions of the Equality Officer
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts 2000 to 2008 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
5.2 The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against her on that ground. As the complaint is on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, 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 "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent.
5.3 In the present case before me for consideration, the complainant is visually impaired and I am satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts.
5.4 It is accepted by both parties that the complainant visited the respondent's restaurant on the evening of the 29th April 2008 accompanied by her guide dog and I am satisfied that the complainant was refused access to the restaurant on the basis that her accompanying guide dog was not permitted on the premises with her. It is also not in dispute that the staff member was aware that the dog accompanying the complainant was a guide dog. The respondent also concedes in its written submissions to the Equality Tribunal that the staff member erred by refusing Ms. McDaid's access to its restaurant.
5.6. In relation to the above provision, I take note of a previous decision of the Equality Tribunal in the case of Mr. John Maughan -v- The Glimmer Man Ltd DEC-S2001-020, where the Equality Officer considered similar aspects as the case before me and reached the following conclusions;
[9.7]"In reaching my conclusions on this ground I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent's premises they would not have been served in line with the respondent's no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) "discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations". This principle is supported by the ruling in the US Supreme Court case of Jenness v Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O'Brien v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38).
...I consider that allowing a guide dog into a pub with a visually impaired person is special treatment without which it would be impossible or unduly difficult for the visually impaired person to avail of the service. The respondent did not raise the question of nominal cost and no evidence was presented to suggest that allowing a guide dog into a pub would involve expenditure for the respondent.
5.7 On the same basis, I am satisfied that it is clear that by treating the complainant in the manner which the respondent did, because of her guide dog, the respondent discriminated against her and the complainant has established a prima facie case in that respect.
5.8 I note that the only rebuttal offered by the respondent in its submission is that the staff member was "new". The complainant's evidence is that the staff member was adamant that she would not be allowed into the restaurant with her guide dog and that she did not check with anyone else to see if she was correct. I am satisfied that the staff member failed to adequately consider the circumstances that presented on that evening on the arrival of Ms. McDaid to the restaurant with her guide dog. It clear that it is the respondent's responsibility to ensure that all its staff are fully familiar with all its policies when dealing with the public generally, and in particular, are familiar with policies relating to members of the public with disabilities, such as Ms. McDaid, who may require special treatment without which it would be impossible or unduly difficult for them to avail of its services. I find it difficult to understand how a new member of staff failed to at least double check with someone more experienced before she made her decision to refuse Ms. McDaid access to the restaurant and that she did not consider that her decision was somewhat inappropriate and discriminatory in such circumstances.
5.9 Accordingly, I find that the complainant was directly refused access to the respondent's restaurant because of her requirement to be accompanied on the premises by her guide dog and I am satisfied that the respondent has failed to rebut the prima facie case of discrimination established by the complainant in this case.
6.1 Having investigated the above complaint and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2 I find that the complainant has, in terms of Sections 3(1)(a), 3(2)(b), Section 4(1) and Section 5(1) of the Acts, established a prima facie case of discrimination on the disability ground which the respondent has failed to rebut.
6.3 In accordance with Section 27(a) of the Equal Status Acts, I award the complainant the sum of €1,500 in compensation for the inconvenience caused and for the upset and humiliation experienced.
6.3 Furthermore, in accordance with Section 27(b) of the Acts, I order the respondent to produce a document outlining the restaurant's policy in relation to the treatment of people with disabilities within 4 months from the date of this decision. This document shall form part of immediate training for all staff working in the restaurant at present and should form part of all induction training for new staff joining in the future.
14th June, 2011