The Equality Tribunal
Equal Status Acts 2000 - 2008
(represented by Coughlan White, O'Toole Solicitors
A Hotel and Leisure Centre
File ref ES/2009/029
Date of Issue: 8 March 2011
Key words : Equal Status Acts 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) -- Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 - 2008
The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 9 March 2009 under the Equal Status Acts. On 26 November 2010 in accordance with his powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Elaine Cassidy 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.
As required by Section 25(1) and as part of my investigation, an oral hearing was held on 28 February 2011. The complainant and her representative were in attendance, but the respondent was not. The Tribunal was informed that the respondent is in receivership and that the receiver did not intend to contest the matter.
Summary of claim/dispute
The dispute concerns a claim by Ms A (hereafter "the complainant") that she was discriminated against by A Hotel and Leisure Centre (hereafter "the respondent") on the grounds of her disability in terms of Sections 3(2)(g) of the Equal Status Acts, 2000-2008 when she was refused a service at the leisure centre. She was refused service on the basis of her disability; she has Hepatitis C, as a result of receiving an infected blood product in the 1970's. The complainant has been granted anonymity in this decision, as is the normal practice of the Tribunal in cases of certain disabilities.
1.0 Summary of Complainant's Case
1.1 The complainant received a present of a gift voucher for the Beauty Spa located at the respondent hotel. She made an appointment for a facial and manicure and attended the spa on 7th November 2008 to avail of the treatments. She was welcomed at the reception area, given a gown and slippers and taken to the spa area. After she changed, she was asked to complete a questionnaire, in which she acknowledged that she had Hepatitis C. The beautician informed her that she would not be able to treat her as a result of her condition, but she might be allowed to use the other facilities. However after speaking to the manager, she told the complainant that she would not be allowed to use any of the facilities. The complainant tried to explain to her that the disease can only be transmitted through blood and bodily fluids, but the beautician insisted that according to their policy, she could not avail of their services. She asked the complainant if she would like to speak to the manager. The complainant said that she was too upset and that she wanted a refund and a letter explaining why she was being refused.
1.2 When the complainant got dressed and returned to the reception area to ask for her refund, the receptionist instead went to fetch the manager. The manager met with Ms A and explained that it was their policy not to allow people with contagious diseases to be treated. Ms A tried again to explain how Hepatitis C is transmitted and told the manager that she had never been refused service at a beauty salon before this occasion. She explained that she had previously had many similar treatments in other places, and never had any issue before. The manager insisted that they could not deviate from their policy; however he did not show the complainant this policy.
1.3 The complainant was not given a refund on this occasion; she had to write to the manager afterwards to seek the refund. The refund was provided, but the enclosing letter stated that they had refused her treatment in the interests of "the safety of all our clients". The complainant said that the implication is that she is a danger to their clients and this is very upsetting. The complainant stated that all the staff who she encountered on the day in question, including the beautician and the manager, were pleasant and apologetic. However this did not in any way alleviate the extreme distress she suffered, which she described as being made feel like a "leper".
1.4 The complainant pointed out that the brochure for the hotel spa does not make any mention of excluding people with her condition, although it does specifically note the treatments which may not be undertaken by pregnant women. She was not told of any exclusions which might apply to her, when she made the booking and she was also not told at reception that there were any exclusions in operation. As a result she was in the Spa and fully changed when she was refused service. She found this added to her distress and stated that customers should be made aware of any exclusions which might apply to them, long before this point. In the circumstances, she believed that there had been a discussion amongst the beauticians, the reception staff and the management about her condition and all of this considerably added to her distress on the day.
1.5 The complainant believes that she has been discriminated against by the respondent and is seeking a change in their policy with regard to treating people with Hepatitis C. The complainant's legal representative noted that the level of difficulty or cost to the respondent (to accommodate the disability) in this case is very low - they would simply have to contact a doctor to confirm how Hepatitis C is transmitted and take the precaution of wearing gloves in the extremely limited circumstances where it would be required.
2.0 Summary of Respondent's Case
2.1 The respondent's receiver did not attend the hearing, nor make any written
3.0 Conclusions of the Equality Officer
3.1 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- 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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.
3.1.1 The first issue to be determined is whether the condition of Hepatitis C, which is the subject of this complaint, is a disability within the meaning of the Acts. The Acts define disability as follows:
2. - (1) "disability" means - ......
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness
the malfunction, malformation or disfigurement of a part of a person's body.....
I note that the condition of Hepatitis C falls under the definition at (b) above and I am satisfied therefore that the complainant has a disability within the meaning of the Acts.
3.3 The complainant gave evidence that she was refused access to all the services at the respondent spa, specifically on account of having Hepatitis C. The complainant was a very credible witness, who made contemporaneous notes and provided copies of her written correspondence with the respondent. I accept in full her account of the events and I find therefore that she has established a prima facie case of discrimination on the grounds of disability. The respondent was not present at the hearing and did not make a written submission, therefore they did not rebut the prima facie case which was established.
3.4 I further note that, although the complainant found the respondent staff pleasant and courteous, she nonetheless felt that the discrimination against her was compounded by the following factors:
That the respondent employees would not listen to her when she tried to explain her condition to them.
That the brochures and booking process made no reference to the fact that her condition excluded her from their services
That she had to speak to the manager when she was already extremely upset, instead of being automatically given a refund.
That she had to write to the respondent afterwards to seek a refund.
4.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and this has not been rebutted by the respondent.
(i) Accordingly, I find in favour of the complainant and award her 2,000 in compensation for the distress suffered.
(ii) I further order that the respondent review their Admission policy and their Health and Safety Policy in light of their responsibilities under the Equal Status Acts 2000-2008.
Date: 8 March 2011