ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039847
Parties:
Anonymised Parties:
| Complainant | Respondent |
Parties | A mother of an autistic child | Lidl Ireland GMBH |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00051166-001 | 14/06/2022 |
Date of Adjudication Hearing: 02/05/2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
The Complainant represented herself and the Respondent was represented by an in-house legal adviser.
The Complainant had standing to bring this case pursuant to section 20 (b) of the Equal Status Act 2000 (hereinafter referred to as the Act).
All required time limits in section 21(2) and 21(6) of the Act were complied with by the Complainant.
I heard a considerable amount of evidence during the hearing and CCTV footage was played as part of the hearing process. The CCTV footage was not provided to the Complainant by the Respondent prior to the hearing. I allowed the parties an opportunity to view the CCTV footage in private before I viewed it to ensure fair procedures.
Regrettably, I had to take issue with the Respondent's compliance with the WRC submissions policy. I reviewed the file and correspondence sent to both parties. The file contained an initial notification of claim letter to the Customer Services Manager at the Respondents head office dated 24 August 2022. The Respondent disputed receipt of same. I note that the Respondent was notified of the hearing date to the same address on the 21 March 2023 and the Respondent responded to the WRC on the 4 April 2023. The Respondent filed its written submissions on Saturday, 29 April 2023 at 10:20 AM for a hearing which was scheduled to commence on Tuesday, 2 May 2023 at 12 PM. I note Monday, 1 May 2023 was a public holiday. Because of same, the WRC was only in a position to forward the 10-page written submission to the Complainant on the morning of the hearing at 9:30 AM.
Considering an ES1 form was served on the Respondent over 12 months before the case was scheduled for hearing and an ES2 was issued by the Respondent on the 13 July 2022, I found the failure on the part of the Respondent to comply with the WRC written submission procedures to be totally inexcusable. Despite this unacceptable late service of written legal submissions, the Complainant did not wish to adjourn the hearing and instead requested the hearing to proceed.
Evidence was given on affirmation, and I allowed the right to test the oral evidence presented by cross examination.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings.
The complainant specifically requested that the decision not be anonymised. Pursuant to the Workplace Relations (Miscellaneous Provisions) Act 2021 all WRC hearings involving the administration of justice are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private. It has always been the practice of the Workplace Relations Commission not to name or identify minors when publishing a decision on its website, but I have named the Respondent.
Background:
This case relates to an incident which occurred on the 29 April 2022 at the Respondent's Nangor Road store.
The Complainant's son who is a minor, suffers from a disability. He uses a service dog provided to him by registered charity, My Canine Companion. The dog is a Labradoodle/ Retriever and wears a Hi-Viz green jacket with a handle. The Complainant’s son holds the handle when necessary, depending on his needs, but not all the time.
The Complainant and her son entered the store between 8 PM and 9 PM. |
Summary of Complainant’s Case:
The Complainant explained that on entering the store, she was approached by security guard and told that no dogs were allowed in the store. She did not wish to engage with the security guard in an acrimonious manner as any negative altercation could upset her son due to his disability. She advised the security guard that the dog was a service dog that had full access rights to the store and advised him to "learn his job". She was then approached by a Store Manager and security guard. The Store Manager asked her to leave the store with the dog and told her dogs were not allowed in the store. She again pointed out that this was a service dog that had full access rights he should not ask her to leave. She found his tone condescending and it upset her. She felt her son was getting agitated by the interaction. She noticed that other customers have were looking at her and listening to their conversation. The Complainant told the Store manager that her son had special needs and pointed to the jacket on the dog and read out what it said. She advised that she would not leave the store. She invited them to call the police and said it was a disgrace that both security and management did not know the rights of people with assistance dogs. She asked him if he would ask a blind person with a guide dog to leave the store. After some time, the Deputy Store Manager walked away from her without an apology, and she continued with her shopping. The Complainant went round the store slower than she normally would have. She reassured her son they had the right to be in the store and hugged him as required. She called her husband as a precaution in case her son had a serious meltdown. She observed security guard walking around close by her and looking at the dog while she was in the queue for the tills. She found the entire interaction very disgraceful and distressing. She explained that she is a dog handler for the past eight years. She said she had to “stand up for herself and her son”. She felt that if a person with the new assistance dog was confronted in the same manner, he or she would not want to create a fuss and stand up for themselves. The Complainant submitted that she and her son should have been allowed to shop in the store without being bothered. The Hi-Viz jacket worn by their dog should have been recognised as identifying it as an assistance dog and they should not be approached or interrogated in the manner they were. The Complainant explained that she had a similar experience in the same store in 2018. She complained to the Respondents Head Office at the time and received a letter of apology and an assurance that staff would be educated so it would not happen again. A €50 donation was made to the Canine Companion charity at the time. The Complainant submitted her ES1 form to the Respondent on the 3 May 2022. |
Summary of Respondent’s Case:
The Store Manager gave evidence for the Respondent. He said he approached the family from the back and didn’t see the signage on the dog. When shown the signage on the dog and he was satisfied that the dog was an assistance dog he stepped away from the family. He wasn’t told by the security guard that the dog was an assistance dog. The Respondent accepted that the Store Managers interactions with the Complainant was not of the highest standards that its business prides itself on. It pointed out that the security guard worked for a third party and claimed that the proceedings were incorrectly constituted, and the third-party external security company should have been named in the complaint form. It confirmed that it did not direct or instruct the external third-party security guard to approach the Complainant nor enquire about the assistance dog’s presence in the store. It submitted that it does not have full autonomy over the security guard or his interactions with customers on the shop floor. It submitted that the Store Manager was made aware of the attendance of the Complainant and the assistance dog by the security guard via his headset. It confirmed that is the Store Manager went over to the Complainant in an attempt to discreetly enquire about the presence of the assistance dog in store to try to resolve the situation. It submitted that this is in accordance with its internal Store Policy for Guide and Assistance dogs. The Respondent regretted that the Store Manager did not immediately fully implement access rights for assistance dogs within the store. It admitted that whilst the Store Manager was speaking with the Complainant, the situation became quite heated. It accepted that the Complainant was quite upset following the initial approach by the external third-party security guard enquiring as to the presence of the assistance dog in the store. It was accepted that the Complainant explained to the Store Manager that her son was autistic and required the service dog. It was accepted that the Complainant had to bring the dog jacket/harness to his attention. The Respondent noted that delays in recognising assistance dogs is contrary to all of its efforts to make shopping experiences for customers with autism easier and more enjoyable. It set out that it would endeavour for the recognition of assistance dogs to be quicker. It confirmed that since the incident, the Store Manager had completed a Dignity in the Workplace training. The Respondent disputed that the third-party external company security guard approached the Complainant while she was at the till. It pointed out that the Complainant completed her full shop after the initial interaction. It appreciated that had caused "some discomfort" for the Complainant which should have been avoided. The Respondent provided detailed submissions regarding its association with a charity providing mental health supports for young people in Ireland. It pointed out its pledge to raise €2.5 million for the charity by the end of 2024. It made submissions regarding the full extent of its efforts for its customers suffering from autism. This included sponsorship of the training of two puppies as assistance dogs for charities in Northern Ireland and the Republic of Ireland. It provides a sensory map on its website and shopping list for persons on the autistic spectrum for assistance in their shopping experience. It offers Autism Aware Quiet Evenings to offer a calmer shopping environment and the security of knowing that additional assistance is available if necessary, among other initiatives. It submitted that all of its employees now receive Dignity in the Workplace Training and further in-store training to ensure incidents such as this do not occur. It accepted that the behaviour of the Store manager was far from the standard expected by its employees or agents. However, in mitigation it noted that neither the Store Manager nor the third-party security guard removed the assistance dog from the store. It submitted that although the interactions were regrettable and poor errors of judgement, did not prevent the Complainant from completing her shopping on the 29 April 2022. It advanced that it was not unreasonable nor discriminatory for its staff to take reasonable steps to engage with customers to establish the bona fide is for the presence of an assistance animal in store. It reiterated that it was not discriminatory in its actions and its efforts to assist customers on the autism spectrum should be taken into account in reaching my decision. |
Findings and Conclusions:
While the Respondent did make submissions that the action of its Store Manager and agent was less than the standards it expected, its overall submission what that the Complainant was not subjected to discrimination. Section 38 A deals with the burden of proof in discrimination complaints. The provision puts an onus on the Complainant to provide evidence from which it may be presumed that prohibited conduct has occurred. The level of proof is on the balance of probabilities. The Complainant’s son has autism which is covered by the definition of disability in the Equal Status Act. While the disability may not have been immediately apparent to the Respondent, its servants or agents, I find on the facts that the assistance dog was wearing a Hi-Viz vest and signage and had a special harness that identified it was an assistance dog and was easily distinguishable from other dogs. I note that the dog supplier ‘My Canine Companion’ is accredited by Assistance Dog International (ADI). A dog supplied by My Canine Companion wears a specially designed jacket with the My Canine Companion logo on it. NSAI standard IS340, section 4, sub section F1 provides that assistance dogs have full access to public places including shops, restaurants, public transport. They are to be identified by their working dog jacket, bearing the organisation logo. By noting the dog and its signage, I am satisfied from the evidence that a disability would have been known to the Respondent at the time the Complainant and her son entered the Respondent’s premises. The next issue for decision is in what circumstances did the Complainant receive less favourable treatment than another person would have received on the 29 April 2022. What constitutes less favourable treatment will depend on the facts of the case, but it is clear that the Complainant must have experienced some form of detriment. It was agreed by both parties that the complainant accessed the Respondent’s premises on 29 April 2022. On two occasions she was asked to leave the Respondents premises because of the accompanying assistance dog. On both occasions, the Complainant declined to leave. In considering the case I have noted the Equality Officer Decision in the case of Mr John Maughan v the Glimmerman Limited DEC-S2001-020. In that case the Equality Officer stated that: “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”. From the evidence of the Complainant, I am satisfied that her son required the assistance dog to accompany him shopping. On a number of occasions on the 29 April 2022 the Complainant was requested to leave the Respondents premises due to the presence of the assistance dog. From the CCTV I note that the interaction with the Store Manager lasted a minute and a half. That is quite a long time for an interaction to check if a dog was an assistance dog. The Complainant described how the Store Manager asked her three times during that interaction to leave the store. This is less favourable treatment. The Complainant described the interactions as very upsetting for herself and it caused her son to become agitated. She said that he still remembers the incident and it had a negative effect on him. The fact that the Complainant stood her ground and refused to leave the Respondents premises does not lessen the treatment she received from the Respondents Store manager or security guard. I am satisfied that the Complainant has established a prima facie case of discrimination on the grounds of disability in terms of Section 3(1)(b) of the Equal Status Act. This was not rebutted by the Respondent. Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the Complainant. Section 27(1) provides that: “the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances: (a) an order for compensation for the effects of the discrimination; or (b) an order that a person or persons specified in the order take a course of action which is so specified.” Under the above Section the maximum amount of compensation I can award is €15,000.00. In considering the amount of compensation which I should award, I have taken into account - This was the second occasion that the Complainant experienced less favourable treatment at the same store. - The manner in which the Respondent dealt with the case in terms of replying to correspondence from the Complainant and request for CCTV footage on 3 May 2022 and submissions to the Workplace Relations Commission - While admirable that the Respondents Head Office was doing so much work in the area of disabilities, the fact remains that in 2022 two members of the team (direct worker and agent) were unfamiliar with Respondents own policies and best practice in dealing with an assistance dog. They both requested an assistance dog to be removed from the store on a number of occasions. The Complainant was forced in a challenging situation to educate the Respondents staff and agents as to the legal entitlement for the assistance dog to be in the shop. - Incidents like this cause trauma to those involved - The Complainant did remain in the store and completed their shopping
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Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
This complaint is well founded. I order the Respondent, to pay to the complainant the sum of €8,000 as compensation for the discrimination as well as the distress suffered by her son. |
Dated: 10th August 2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Assistance dog. Discrimination. Less favourable treatment. |