Complainant

Respondent

Parties

Elbha  O'Sullivan

Lidon Group, Junction 14

Representatives

Self

Elaine Hill, NFP HR Solutions

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067927-001

06/12/2024

The Complainant submitted a complaint to the Workplace Relations Commission (WRC) on 06/12/2024 alleging that she had been discriminated against by the Respondent on the ground of disability, and a failure to provide reasonable accommodation.  The Complainant submits that this occurred when she entered the Respondent’s premises/store on 21/09/2024 with her son’s Service Dog on a lead and went to the disabled toilet.  Someone knocked on the door, but she did not answer.   On leaving the toilet, she had an interaction with a staff member before proceeding to the food service area.  It is the Complainant’s position that she was followed to the toilet and then encountered rudeness and insensitivity which occurred because she had a Service Dog.  She was refused food service on three occasions and asked to leave the queue.

The Respondent denies that it discriminated against the Complainant and acknowledges that the staff member did not instantly recognise that the Complainant’s dog was in fact a Service Dog. The Complainant was not refused access or service and was not discriminated against.

It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual Complainant shall have already notified the Respondent in writing (usually in the form of an ES.1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response.  This notice in writing shall be brought within two months of the said prohibited conduct or within two months of the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES.2 Form.

It was accepted that no issues arose in relation to the notification requirements.

The Complainant gave evidence on affirmation.  In response to a preliminary point raised by the Respondent the Complainant confirmed that while she herself has a disability she was discriminated against because she is the registered handler of her son’s Service Dog.  Her son had a disability and by virtue of her association with her son she was discriminated against by the Respondent.

The Complainant gave evidence that she was taking her daughter to a medical appointment in Dublin and she was looking after the Service Dog on the day in question – 21/09/2024.  She stopped at the service station as she needed to use the toilet.  Her daughter also went into the service station.  The Complainant outlined that she went quickly to the disabled toilet and was accompanied by the Service Dog as he could not be left in the car.  When in the toilet she heard knocking on the door but did not answer.  On leaving she was spoken to by a woman who asked if the dog was a Guide Dog.  She replied that it was not and was told that the dog could not be in the store.  The Complainant stated that she clarified that this was a qualified registered Service Dog.  She then asked this lady if it was her who knocked on the toilet door while she was using the facilities and she confirmed that it was. The Complainant asked this lady if she would do that to anyone else.  The Complainant stated that she found it very odd that this happened.

She then proceeded to look for her daughter in the shop and while doing so she observed the woman who spoke to her now speaking with staff at the food service area and they were in turn looking at her.  While in the queue for food she asked a staff member if there was a store manager.  She was told that there was and she asked if she could speak with the manager.  She was asked to leave the queue but she declined as she wanted to order food.  The Complainant stated that she was then told that she would have to leave the queue because of the problem with the dog.  When she tried to order food she was told that the staff was not allowed to take her order.  The same occurred with another staff member.  She approached a third member of staff who said they would check and then came back and told her that she would be served.  She got her food and went to a table.  While there the woman she met earlier and another woman came to her table.  She explained to them her access rights under the Disability Act and not to be treated in the way she was.  The other woman who was the store manager said that they came to her to apologise.  She invited them to apologise but was then told there was nothing to apologise for.

She obtained contact details but was not asked for hers.  It is the Complainant’s submission that there was no genuine attempt to clarify the status of the dog despite the fact that he was wearing the designated and illustrated vest. 

The Complainant also submits that she asked a member of staff if they received any training in relation to Service Dogs and she was told that they did not.

Cross-examination – the Complainant:

The Complainant was cross examined by Ms Elaine Hill on behalf of the Respondent.

Under cross-examination the Complainant confirmed that the dog was allowed remain on the premises but this did not happen initially.  It was only after she clarified that the dog was a Service Dog and not a Guide Dog that she was allowed remain.

The Complainant confirmed that the dog was identifiable as a Service Dog as it was wearing the required vest which had Autism Service Dog clearly written on it.  The Complainant was asked if she was served food on the premises and she confirmed that she was not served immediately and she was eventually served “with difficulty”.  The Complainant also agreed the Respondent did contact her subsequently.

Closing statement – the Complainant:

In a closing statement the Complainant stated that when she entered the shop she walked to the toilet.  She does not accept that there was any good reason for knocking on the door of the disabled toilet.  The Complainant stated that it is unbelievable that the dog was not identifiable on the day as he always wears the luminous green harness with the name of the charity on it and his role.  The Complainant displayed the black harness worn by the dog and submits that this is almost invisible against his black hair.

The Complainant stated that she wished to take issue with some of the evidence given on behalf of the Respondent.  She was described on numerous occasions as being loud, aggressive and confrontational.  None of these allegations were included in the Respondent’s written submissions and the Complainant submits that this calls into question the credibility of some of the evidence adduced at the hearing.  The Complainant also submitted that this may assist in understanding the issues at play on behalf of the Respondent which is to try and make her out to be something that she is not.  These things further compound the upset and injury inflicted on her.

The Complainant submits that she is an honest person and her account of what happened is honest and she gave that evidence on affirmation.  The Complainant stated that when she went to the food service area she was asked to step aside and there was no reason for this if the duty manager had, as she stated in her evidence, already confirmed to the staff that the dog was a Service Dog.  The duty manager’s evidence was that when the dog was identified as a Service Dog this was accepted but when she went to the food service area after that she was discriminated against as she was not provided with any service.  She was refused on three occasions.  It is not normal that a customer has to ask three different staff members for service before that service is eventually provided.  It is the Complainant’s position that the description and acceptance of this is in itself discriminatory.

The Complainant submits that she should not have to go through that experience just because she had a Service Dog.  The Complainant stated that she did everything she was asked such as identify the dog as a Service Dog and that should have been the end of the matter.  In relation to her conversation with the duty manager the Complainant stated that she was entitled to assert her rights and also to raise the issue so that the people involved would better understand the lived experience of disabled people who use Service Dogs as disability aids. 

The Complainant stated that she is confident in her ability to clearly, calmly and correctly communicate her concerns on the day.  Despite this no one apologised, no one understood and no one asked for her contact details.  The Complainant stated that it was she who did the work of documenting what happened and sending it to the manager by email.  The Complainant stated that the letter she received and the phone call was an attempt to minimise the events that occurred on the day and to recalibrate them as a description of her experience.  This was reflected in the letter she received.  It is the Complainant’s position that she was contacting the Respondent to bring to their attention their dereliction of duty to people with disabilities.

The Complainant stated that the letter noted that this was the Respondent’s first experience with a Service Dog even though they had prior experience of Guide Dogs.  This is a further misunderstanding of the issues at play as, under the law, they are treated equivalently.  The evidence at the hearing on behalf of the Respondent noted that this was not the first encounter with a Service Dog and this is another inconsistency with the letter sent to her.  That letter also states that once the Respondent was made aware that it was a Service Dog they apologised and served her.  This is not correct.  The reality is that once she entered this store she should not have to pause. 

The Respondent offered a voucher for her son and mentioned that training was planned.  The Complainant submits that this completely misses the very point of her complaint and the seriousness of the issue and the focus of the Respondent at the hearing in trying to discredit her confirms their lack of awareness and understanding of the issue.

At the end of the hearing the Complainant confirmed that she was happy that she got an opportunity at the hearing to outline all her points. 

Ms Shirley Murphy, Duty Manager, gave evidence on affirmation on behalf of the Respondent.  She outlined that she has been employed by the Respondent for 10.5 years and in the Duty Manager role for 5 years.

Ms Murphy confirmed that on the date in question she was on duty.  Ms Murphy gave evidence that she did not see anything on the dog that would identify it as a Guide Dog or an assistance dog.  She asked the Complainant if it was a Guide Dog but the Complainant just walked away and was dismissive of her.  Ms Murphy stated that the Complainant then came back to her and told her that she had discriminated against her by referring to the dog as a Guide Dog.  The Complainant stated that she did not like her terminology and asked if she had received any training in relation to Service Dogs.  She also asked Ms Murphy if she had knocked on the toilet door and she confirmed that she had.  Ms Murphy stated that she also informed the Complainant that no one was brought in to provide training but the Respondent had policies set out in relation to Guide Dogs or Service Dogs.

Ms Murphy gave evidence that when a dog enters the premises they have a duty to identify it as either a Guide Dog or a Service Dog.  If they can see that it’s a guide or Service Dog they don’t get involved.  If they cannot identify such a dog they ask the person or the handler to confirm.  Once that is confirmed they do not interfere.  Ms Murphy stated that if a dog is not a guide or Service Dog then it cannot be on the premises due to the food safety regulations.   Once the dog is identified and if it is not labelled they inform staff to serve the customer. 

Ms Murphy stated that once the Complainant confirmed that she had a Service Dog she then asked the Complainant not to speak to her in the manner she did as she was just doing her job. 

Ms Murphy stated that she spoke to the supervisor at the food service area and told him that the Complainant’s dog was a Service Dog.  She was happy that the Complainant would then be looked after.

In response to a question from the Adjudication Officer Ms Murphy stated that the dog did have a harness but did not have any identifying harness to indicate that it was a Service Dog.  Some dogs have a bandana on their back to ask people not to touch the dog as it’s a dog in training or working. Ms Murphy was asked to explain why she knocked on the toilet door and stated that she observed the Complainant moving quickly to the toilet and she knocked to make sure she was all right.  Ms Murphy is one of the site’s trained first aid persons and she stated that she was concerned about the welfare of the Complainant.

Cross-examination – Ms Shirley Murphy:

Ms Murphy was cross examined by the Complainant.  It was put to her that she stated that the dog had a harness and she was asked to describe this harness.   She described this as a black harness.  It was put to Ms Murphy that on the day in question the dog was wearing a black and green coloured harness.  Ms Murphy stated that she did not see that or any green jacket on the dog.

Ms Murphy was asked what she meant when she was concerned about the Complainant’s welfare.  She stated that it was unusual to see someone moving very quickly to the toilet and this was what triggered her concern about the welfare of the Complainant.

Ms Murphy was asked about the conversation she stated that she had with the Complainant. She stated that she was asked if they were trained externally in relation to Service Dogs.  She was asked if she was satisfied at the end of the conversation that the dog was in fact a Service Dog.  Ms Murphy stated that her initial view was that the Complainant did not want to engage in any conversation with her and the Complainant also disregarded anything she was saying.   Ms Murphy stated that the Complainant was loud and aggressive and this was the reason she did not answer the questions.  Ms Murphy agreed that she was satisfied the Complainant confirmed that the dog was a Service Dog and that was the reason she then went to the food service area to confirm this to the supervisor.

It was put to Ms Murphy that in her written statement to the WRC she stated that the training received was that if you can visibly see that it is a Service Dog you don’t approach the person but if you can’t clearly identify the nature of the dog you approach the person and if they confirm that it is a guide or Service Dog then you confirm that there is no problem. She confirmed that was the culture in the store.

Ms Murphy was asked if she compiled a report of the incident and she confirmed that she did not.  She confirmed that she did inform her manager.

Closing statement – the Respondent:

In a closing statement on behalf of the Respondent Ms Hill noted that the premises in question is a very busy 24-hour service station with seven individual food service counters and a shop.  There is a lot of food preparation, production and delivery.

On the date in question the duty manager became aware of the presence of a big dog.  The Respondent has robust policies and procedures in place regarding the handling and management of dogs on the premises in order to ensure compliance with the strict food regulations.  It was submitted on behalf of the Respondent that staff are prepared in the event a Guide Dog or Service Dog arrives on the premises and where such a dog is not identifiable it is reasonable for a staff member to approach a customer to ascertain the status of the dog.

The duty manager did ask the Complainant about the status of the dog but she walked away and the Complainant was told that the dog could not be on the premises.  The Complainant then returned and said that it was a Service Dog.  At that point the duty manager was satisfied that it was a Service Dog and she alerted the food service areas to inform them that the dog was an approved Service Dog and the customer could then be served.  The interaction between the Complainant and the duty manager was described by her as rude and loud.

At the food service area there could be 20 staff working and not all may have been informed by the supervisor about the Service Dog.  When the Complainant asked to speak to a duty manager the supervisor did ask her to wait as she would have to contact the manager to assist.  The Complainant was not actually refused service, she was asked to step aside while clarification in relation to the status of the dog was obtained. It is the Respondent’s position that the status of the dog had to be clarified before food could be served.  The Complainant did not step aside and went to order food. The supervisor wanted the Complainant to wait until the manager arrived but the Complainant would not do so.  The server was told that the Complainant could be served and she received her food.  The food outlet manager did try to apologise but the Complainant stated that she wanted to speak with the duty manager.  When the duty manager went to apologise the Complainant asked what the apology was for she stated that she had nothing to apologise for and the Complainant asked the duty manager to leave.

The Complainant stated on the day that it was against legislation not to provide training in relation to service animals and also that she did not like the terminology used by the duty manager or being asked to leave the queue.

It was submitted on behalf of the Respondent that ultimately the Complainant was served.  There may be an inconvenience when she was asked to wait a few minutes until the duty manager arrived.  The Respondent refutes the Complainant’s complaint that she was discriminated against and she was afforded reasonable customer accommodation.  The dog was allowed remain on the premises and the Complainant was not refused service – she was asked to wait temporarily.  Once the clarification of the status of the dog was received she was served food, ate her food on the premises.  It is the Respondent’s submission that the dog was not initially identifiable as a Service Dog. 

In response to a question from the Adjudication Officer it was confirmed that CCTV was checked but it could not clarify  whether the dog had a coat, harness, or identifying markings.

The Respondent submits that since this incident all their management and staff have received training in relation to Guide Dogs and Service Dogs entering the premises and the Respondent’s induction programme also reflects this.  The Respondent has also erected signage.

The Respondent takes this complaint very seriously but refutes that it discriminated against the Complainant on this occasion.

It was confirmed on behalf of the Respondent that they were able to outline their response to the complaint and provide witness evidence.

In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. Prior to making such a referral there is a requirement that the Complainant shall have already notified the Respondent in writing (Form ES. 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This notice in writing shall be brought within two months of the alleged prohibited conduct or the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES. 2 Form.

It is not disputed that the Complainant complied with the formalities of submitting an ES. 1 form.  It is also not disputed that the Respondent is providing a service within the meaning of Section 5 of the Act.

I am satisfied that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts.  Accordingly, I find that I have jurisdiction to investigate the complaint of discrimination in this case.

The issue for decision by me is whether or not the Respondent discriminated against the Complainant on the disability ground as provided for in Section 3(2)(g) of the Equal Status Acts, 2000-2015 and also a failure to provide reasonable accommodation.  In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the remote hearing.

The Relevant Law

The Equal Status Act 2000-2015 (the “ESA”) as amended prohibits discrimination in the provision of goods and services, accommodation and education.  It covers the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller Community and housing assistance (only as regards the provision of accommodation). 

I reference the definition of discrimination provided in section 3 of the ESA as follows:

Discrimination (general).

3.—(1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination;

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

The Complainant has submitted a complaint on the disability ground, including an allegation of a failure to provide reasonable accommodation.  It is not in dispute that the Complainant and her son have a disability within the meaning of Section 2 of the ESA.  She is also the carer for a son who has a disability and is assisted by a registered Service Dog.  The Complainant is also the authorised Handler for her son’s Service Dog.  I am satisfied the Respondent is providing a service within the meaning of Section 5 of the Act.

Section 5 of the ESA provides clear direction against prohibited conduct as follows:

“5. – (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

The Burden of Proof

Section 38A of the ESA sets out the burden of proof as follows:

Burden of proof.

38A.—(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf

of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary”.

Section 38A of the Acts provides that where facts are established from which prohibited conduct may be presumed, the burden shifts to the Respondent to prove the contrary. Accordingly, the Complainant must first establish primary facts of sufficient significance from which discrimination may be inferred. Only where such a prima facie case is established does the burden shift to the Respondent.

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. 

The Court continued; “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment”.

This requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.   If the Complainant succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.  I accept that the Complainant gave her evidence in a genuine and sincere manner and that she has significant familiarity with disability-related access issues and the obligations of service providers.

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. As outlined above, it is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

In deciding whether the Complainant has established a prima facie case the focus is on the Complainant’s own evidence.  The evidence of the staff member is that she did not immediately recognise the Complainant’s dog as a Service Dog but when she received clarification she told staff members that the dog was a Service Dog.

The central issue for determination is whether this incident amounted to discrimination and a failure to provide reasonable accommodation for the Complainant.  It is accepted that the Complainant’s son has a disability and requires the assistance of a Service Dog.  It is also accepted that the Complainant was the authorised Handler for the dog on the day in question.

It is also recognised that mistakes may occur in practice.  In this instance, the employee did not at first recognise the Service Dog.  However, I accept that the manner in which the enquiries were conducted, including following the Complainant to the toilet area and knocking on the door, demonstrated a lack of sensitivity and could reasonably have caused distress to the Complainant.

Having considered the evidence as a whole, I am satisfied that a significant portion of the Complainant’s case is connected with her dissatisfaction with the manner in which she was asked to clarify the status of the Service Dog rather than specific acts of discriminatory treatment within the meaning of the Acts.  The evidence relied upon primarily described the personal impact of the interactions complained of but did not identify treatment connected to the disability ground capable of giving rise to an inference of discrimination.

The Complainant relies on a number of matters in support of her contention that she was treated less favourably, including the knocking on the toilet door, being asked to step aside from the queue while her request to speak to a manager was being dealt with, and the subsequent enquiries made by staff in the food service area regarding the status of the dog.  While aspects of the interaction may reasonably be regarded as insensitive or upsetting, the Acts do not prohibit mere discourtesy or poor customer service in the absence of less favourable treatment connected to a protected ground.

Having considered the evidence, I am satisfied that the matters complained of formed part of the Respondent’s duty and responsibility to clarify the status of an animal on its premises in order to ensure compliance with the food safety regulations.  I am satisfied that the same process would have been carried out regardless of the status of any dog that was not immediately identified as a Guide or Service Dog by the employee.

While no direct comparator evidence was identified, I am satisfied on the evidence that any customer entering the premises with a dog whose status was not immediately apparent to staff would have been subject to similar enquiries and clarification.

I have considered the totality of the evidence and am satisfied that the matters relied upon by the Complainant are equally explicable by non-discriminatory factors arising from the operation of the Respondent’s business consisting of a 24-hour service station with seven individual food service counters and also a shop.  For the sake of clarity, I am satisfied that food safety considerations do not automatically justify conduct that may be perceived as intrusive or lacking in sensitivity.

I have also considered the complaint insofar as it relates to reasonable accommodation. I am satisfied that the Respondent ultimately permitted the Service Dog to remain on the premises once clarification was obtained and that the evidence does not establish a refusal to provide reasonable accommodation within the meaning of the Acts.

I therefore find that the Complainant has not established primary facts of sufficient significance from which discrimination on the disability ground may reasonably be inferred. Accordingly, the burden of proof does not shift to the Respondent pursuant to section 38A of the Acts.

In accordance with Section 25(4) of the Equal Status Acts, I have concluded the investigation and I find that the Complainant has failed to establish a prima facie case of discrimination on the ground of disability in terms of sections 3(1), 3(2)(g) and 4(1) of the Equal Status Acts. 

Accordingly, this complaint fails and I find that the Respondent did not engage in prohibited conduct.

Discrimination on disability ground. Reasonable accommodation.  Service Dog.