Alison Barnes (represented by the Equality Authority) v John Adams Hair Stylists, Santry
1. Key words
1.1 Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Disability, section 3(2)(g) - Victimisation, section 3(2)(j) - Supply of goods and services, section 5(1) - Reasonable Accommodation, Section 4(1) - Nominal Cost, Section 4(2) - Prima Facie Case.
2. Dispute
2.1 This dispute concerns a complaint by Alison Barnes that she was discriminated against on the disability and victimisation grounds in terms of sections 3(1)(a) and 3(2)(g) and (j) of the Equal Status Act 2000, in being afforded less favourable treatment by the respondent, in the provision of a service which is generally available to the public, contrary to Section 5(1) of the Act. This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated this complaint to me, Dolores Kavanagh, 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 Act, 2000.
3 Summary of Complainant's Case
3.1 The complainant, a wheelchair user, states that she was denied access to hairdressing services on 21 April, 2001 when she attended at the respondent premises and sought service there. The complainant had previously availed of the services provided in the respondent salon at the direct invitation of the manager of the premises. She had been treated so well and had found the facilities provided suitable to the extent that she made an appointment to have her hair permed on 21 April 2001. The stylist with whom the appointment was made was aware of Ms. Barnes disability as she had attended to Ms. Barnes on the earlier occasion. When the complainant attended the salon on 21 April 2001 the preferred stylist was unavailable and another was appointed to attend the complainant. This stylist ignored the complainant and addressed herself exclusively to the complainant's sister. The stylist stated that if the complainant could not get out of her wheelchair and use one of the salons chairs she could not have the required treatment, a perm, as it would not be possible to rinse the perm lotion safely from her hair. Specifically, there was a danger that the perm lotion would run down the complainant's face and possibly enter her eyes. At the Hearing of the complaint the complainant produced a photo album containing a number of photos of herself, taken over a number of years, in each of which she had her hair permed. She had had the perms applied in another salon on a number of successive occasions and had no difficulty in bending her head back over the sink. The only facility required to ensure her safety on those occasions was that a second staff member assisted in holding her head steady when the rinsing was taking place. The complainant's sister provided evidence at Hearing which corroborated the complainant's account. The complainant was embarrassed and humiliated by the behaviour of the stylist attending her and the stylist's complete failure to even discuss the matter with the complainant
4 Summary of the Respondent's Case.
4.1 The manager of the respondent premises, the only person to attend at the Hearing of this complaint on the respondent's behalf, denies that discrimination took place and states that the complainant was simply unfortunate on the day in question in that the staff whowere present handled the matter very badly. The salon is wheelchair accessible and every effort is made to accommodate wheelchair users. In fact a number of wheelchair users who have different disabilities to the complainant have had their hair permed in the salon. This is due to the fact that the type of wheelchair which they use, which differs from the complainant's , can be pushed back further to the sinks in the salon thus making rinsing much easier. The manager was not present on the day in question and was relating what had been told to him by the manageress who was present on the day, who in turn had been told what had happened by the attending stylist. The manager apologised for any embarrassment caused to the complainant but stated that he still would not attempt to perm the complainant's hair for the reasons already stated.
5. Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant in relation to each of the grounds under which he has lodged his complaint. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (the disability and victimisation ground in this case)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances. If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5.2 Victimisation Ground The complainant has provided no evidence to establish how she comes within the terms of Section 3(2)(j) , subsections (i) to (v). The complainant has not established that she is covered by the victimisation ground and has not therefore established a prima facie case of victimisation.
5.3 Disability Ground
The complainant is a wheelchair user. This satisfies (a) at 5.1 above. The complainant has given evidence that she was refused service in the respondent premises on the date in question and this has been confirmed by the respondent. This satisfies (b) at 5.1 above. The manager of the respondent salon stated that service was refused as a result of the type of wheelchair used by the complainant, a difficulty that clearly non-wheelchair users simply would not encounter. This satisfies (c) at 5.1 above. I am satisfied that an inference of discrimination by the respondent arises on the disability ground.
6 Disability Ground - Specific Statutory Considerations
6.1 Section 4 of the Equal Status Act provides that
(1) 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. Section 4 of the Act requires all service providers to provide facilities for the disabled in order to allow that they can avail of the service provided without undue difficulty. However, Section 4 also allows that where the provision of such facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable.
6.2 In the matter at hand the complainant has indicated that her wheelchair had not posed any difficulties in the course of her earlier visit to the respondent salon and that the only special facility which she might require in order to safely avail of the required services in the respondent salon is that a second member of staff assists in holding her head steady during the rinsing process. This facility is precautionary as the complainant states that she can bend her head back over the sink without undue difficulty while in her wheelchair. 6.3 The respondent has provided no evidence to show that any effort was made to facilitate the complainant in order to accommodate her, or that the provision of any special facility required would entail anything other than the most minimal of costs. The complainant had previously attended at the respondent premises, albeit for a different treatment to her hair, and had had her hair rinsed without any additional facilities whatsoever being provided. On the earlier occasion the model and dimensions of her wheelchair had not hampered the rinsing of her hair in any way and she had not experienced any water or other material running down her face. While the respondent cites concerns about the possibility of the perm solution getting into the complainant's eyes as the key reason for refusing the service, no evidence whatsoever was presented to indicate how this might arise on this specific occasion when it did not arise in the course of the earlier visit when the complainant had had chemicals, albeit different chemicals but which are also potentially dangerous, applied to her hair without question. Furthermore, while the complainant affirmed that she was treated very well by the staff of the respondent premises in the course of her earlier visit there, on this specific occasion the stylist appointed to carry out the service to the complainant completely ignored the complainant and spoke exclusively to the complainant's sister. It was clear in the course of the Hearing that the complainant is clear and articulate in both her thinking and her speech and being ignored in such a manner was humiliating and infuriating to her.
6.4 In the circumstances, taking all of the evidence provided into consideration, I am satisfied, on the balance of probabilities, that the complainant was discriminated against on the disability ground, contrary to Section 3(1) and 3(2) (g) of the Equal Status Act 2000 in terms of Section 5 of that Act.
7 Decision
7.1 The complainant was discriminated against by the respondent on the disability ground in terms of Sections 3(1) (a) and 3(2)(g) and 5(1) of the Equal Status Act 2000. The complainant did not establish a prima facie case of discrimination on the victimisation ground in terms of Sections 3(1) (a) and 3(2) (j) and 5(1) of the Equal Status Act 2000.
8 Redress
8.1 I hereby order, in accordance with Section 27 of the Equal Status Act 2000, that the respondent (i) pay the sum of €1000 to the complainant for the effects of the discrimination and (ii) arranges for the immediate training of all staff of the respondent salon in matters of service provision in compliance with the terms of the Equal Status Act 2000.
__________________________
Dolores Kavanagh
Equality Officer
9 October, 2003