THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2011
Decision No. DEC-S2014-009
(represented by his father and grandmother)
An Amusement Arcade
(represented by Ciaran P. Barron, Barron O’Donnell Solicitors)
File Reference: ES/2012/0024
Date of Issue: 7th August 2014
Key words: Equal Status Acts, Disability, Discrimination, Reasonable accommodation, Asperger syndrome, Learning difficulty, Global developmental delay, Victimisation, Locus Standi
Delegation under the relevant legislation
1.1. This case concerns a complaint by Mr M (it is generally the policy of the Tribunal to anonymise in cases where disability is claimed) that he was discriminated against by an amusement arcade on the disability ground contrary to 5(1) of the Equal Status Acts 2000 – 2011 [hereinafter referred to as ‘the Acts’]. On 7th March 2012 the complainant referred a claim to the Director of the Equality Tribunal under the Acts. On 24th March 2014, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2008 and under these Acts, the Director delegated the case to me, Orlaith Mannion, 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 is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 28th March 2014.
2. Summary of the Complainant’s Case
2.1. When Mr M turned 18 in 2010 he became a club member of the amusement arcade. As well as having slot machines, there were also regular bingo sessions. Mr M’s parents and grandparents were also members. Mr M frequently used to attend the bingo sessions with his grandmother.
2.2. On 16th December 2011, he and his parents were in the amusement arcade when a staff member approached them and showed them damaged bingo boards with expletives written on them. His parents acknowledged that it was Mr M’s handwriting. The parents submit that they immediately apologised and offered to pay for any damage. They said that they would supervise Mr M more closely in future. They submit that this behaviour was directly linked to his disabilities – Asperger Syndrome as well as a global developmental delay. Mr M attended a special school for people with learning disabilities and/or on the autism spectrum.
2.3. The staff member in the arcade was sympathetic but said he would have to check with the manager Mr A. According to the Mr M’s parents, the staff member was instructed to say Mr M was barred from the premises. The complainant and his parents submit that the respondent has a legal obligation to accommodate his disability. They submit that the respondent’s response is disproportionate to the offence that occurred.
2.4. The complainant submits that his family was victimised by making the complaint as the respondent did not send out free vouchers to them after the complaint was made.
2.5. In a subsequent phone call to Mr M’s father Mr A is alleged to have said ‘I don’t care whether your son is black, white or disabled, if you damage my property you cannot return to my premises’.
3. Summary of the respondent’s case
3.1 The respondent wished the Tribunal to note that the complainant has admitted damage to the respondent’s property. Fifteen bingo boards were damaged – some of them irreparably – and the language written on them was offensive. Examples of what was written are ‘Fixed B*stards cheating’ and ‘F*ck you’. The respondent provided the boards for inspection at the hearing. The respondent submits that the damage was deliberate and conducted over a period of time. How it came to their attention is that a regular customer was offended by it, raised the issue with staff and walked out.
3.2 The respondent denies any awareness of the complainant’s disability and therefore did not have the mens rea to discriminate.
3.3 Prior to 16th December 2011 Mr A rang Mr M’s father on two occasions to say that his son was barred. On neither occasion did Mr M (senior) answer the phone.
3.4 The respondent refutes that the complainant’s parents offered to pay for the vandalised property. In fact the respondent insists that the opposite occurred. When Mr A rang Mr M (Senior) on 16th December he submits that the complainant’s father was verbally abusive to him.
3.5 The reason vouchers were not sent out is that Mr M (Senior) said neither he nor his family would ever darken the door of the premises again.
3.6 The respondent also asks the Tribunal to note that they did not refer the matter of criminal damage to their property to the Gardaí. No medical evidence had been supplied either showing that the complainant has a disability or linking his disability to this behaviour. The respondent states that it reserves the right to refuse admission to any patron to their premises. It also submits that this is the first case brought against it under the Equal Status Acts in over 30 years of business.
4. Conclusions of the Equality Officer
4.1 Section 38A of the Acts sets out the burden of proof:
Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.
4.2 In relation to discrimination, the issue for me to decide is whether the complainant was discriminated against regarding provision of a service on the disability ground.
4.3 In relation to this case, I find that neither side were telling the entire truth. I do not accept that the respondent had no awareness that Mr M had a disability. It is unusual for a 20 year old man to spend most of his leisure time accompanied by either his parents or his grandmother. It is also noteworthy that Mr A rang Mr M’s father rather than Mr M himself (despite having his phone number and knowing that he was an adult) when damage was done to the respondent’s property. The Tribunal does not expect providers of services to be doctors capable of specifically diagnosing the exact category of disability a service-user may have. However, I find that Mr A was being disingenuous when he denies any awareness of Mr M having special needs. For the record, I am satisfied that both Asperger syndrome and global developmental delay are disabilities within the meaning of Section 2 of the Acts:
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
4.4 Regarding the father’s evidence, I do not accept that he was immediately apologetic for the damage his son caused by his defamatory comments on the bingo boards. On this issue, I prefer the respondent’s evidence that Mr M (Senior) was defensive and aggressive. Had a more measured approach been taken, this case may be never have reached the stage of an Equality Tribunal investigation. I fully accept the evidence of Mr M’s father, mother and grandmother that this behaviour was out of character for Mr M and that he is a pleasant young man of whom they are very proud. However, the reasonable accommodation that they seek is that his behaviour be excused. Section 4 defines reasonable accommodation:
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.
4.5 In a case involving the provision of social housing, Hunt J gave a lucid interpretation of reasonable accommodation: ‘ The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities…All that is commanded to do by the equality legalisation to devise a reasonable solution to a problem, not to achieve perfection and not to give into every demand that is made of it’. I find that Mr M and his family’s request to ignore the damage to the respondent’s property because he has disabilities to be beyond reasonable accommodation.
4.6 It is noteworthy that Mr M was able to avail of the service until the bingo boards were damaged. I agree with the complainant and his family that Mr A’s response was harsh. However, because Mr A did not think Mr M’s family were taking the issue seriously and therefore would not supervise Mr M’s behaviour if they allowed him back, Mr A was reluctant to allow Mr M to return. He submits that it would require a member of staff to ensure bingo boards were undamaged each time Mr M attended. He submits that this special treatment is beyond nominal cost and I accept that this is the case and the respondent is entitled to avail of Section 4(2) defence.
4.7 Section 15 (1) of the Acts is a defence for providers of a service to protect their property from harm:
For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (the ‘‘customer’’) in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located. [my emphasis]
I am satisfied that Mr A is a reasonable person with significant experience in the leisure industry and that he genuinely believes Mr M is a substantial risk of damaging the respondent’s property again. However I am aware that the damage to property is not on the grave end of the scale and I find the respondent was exaggerating when they say they were considering raising the issue with the Gardaí. Nevertheless, damage was done to the bingo boards and statements which could negatively affect the reputation of the respondent were written on them.
4.8 To reiterate, I am satisfied that complainant has disabilities within the meaning of the Acts. However, what he and his family seek is beyond reasonable accommodation. Even if I were to find that is was reasonable, the respondent is entitled to the defences under Section 4 (2) and Section 15 (1) of the Acts.
4.9 Interesting arguments have been raised regarding victimisation which is defined in Section 3 (2) (j) of the Acts:
(j) that one—
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ‘‘victimisation ground’’).
4.10 Mr M’s father, mother and grandmother submit they have been victimised as they have given notice to the respondent that they intended to act as witnesses for the complainant in this case. They maintain that when they did so, they never received free bingo vouchers from the respondent again. However, there is an issue with locus standi [legal standing] as Mr M (Junior) was the only one to submit a complaint form so therefore he is the only complainant in this case. Mr M’s father, mother and grandmother would have to submit victimisation complaints on their own behalf to have Locus standi for me to investigate their claims and there may be time limit issues should they do so now. However, in the interests of clarity and in case there is an appeal on this issue, I accept the respondent’s explanation that vouchers were no longer sent to them as they refused to use the respondent’s services again.
5.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
(i) I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground contrary to Section 5 (1) of the Equal Status Acts.
(ii) I find that the complainant was not victimised within the meaning of Section 3(2) (j) of the Acts.
Accordingly, the complainant’s case fails.