Mr. John Murphy, Dublin (Represented by Michael Venn, BL on instructions from Ferrys Solicitors) V Spawell Centre, Dublin (Represented by Mason Hayes & Curran, Solicitors)
Prima Facie case
Sections 3 and 5 of the Equal Status Act 2000
At the outset, I must first consider whether the existence of a prima facie case of discrimination pertaining to Sections 3 and 5 of the Equal Status Act, 2000, has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of the discriminatory ground (in this case the disability ground).
(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 another person received, or would have received, in similar circumstances, where that person does not have a disability or has a different disability.
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 andthe membership of the ground, instead the respondent has to prove that there is not. I am satisfied, and the respondent accepted, that the disability ground applied to Mr.Murphy which satisfies (a) above. Both parties agree that there was a refusal of service, which satisfies (b). In order to assess whether or not Mr. Murphy's treatment was less favourable, I must consider how others, without disabilities or with a different disability, were or would have been treated by the respondent and compare this with the treatment received by Mr. Murphy.
The respondent was clear that where a person appears intoxicated and lacking control or co-ordination, admission would be refused. If further assessment was required, the security man would enter into some conversation with the prospective customer. Only where they are entirely satisfied that there is no intoxication, or the level of intoxication is acceptable, will access be granted. This is in accordance with Section 15(2) of the Equal Status Act, 2000. It appears that where a person without disabilities was assessed as not being intoxicated they would be allowed in. The respondent stated that they saw a man approach on crutches who appeared to walk in a manner which lacked control and was unusual in comparison to the normal carriage of a person using crutches. It is difficult to construct a convincing able-bodied comparator who is unable to control their mobility other than where the inability is due to intoxication, in which case the able-bodied person would not have been allowed in either.
In this case, the security man was concerned that there was some lack of co-ordination that was sufficient to warrant a refusal. I am satisfied, on the basis of the evidence presented to me, that the respondent's security man perceived Mr. Murphy's carriage oapproach, correctly or incorrectly, as lacking control. While I am not required to establish that this decision was taken in good faith, I am satisfied that it was. When thecomplainant and his companions discussed the refusal with him, the security man was satisfied that while the complainant had been drinking he was not intoxicated to a level causing concern. His unsteadiness was, after the discussion, put down to the lack of familiarity with the crutches and the refusal was upheld. I find that the complainant has failed to establish a prima facie case of discrimination contrary to Sections 3 and 5 of the Equal Status Act, 2000.
Section 4 of the Equal Status Act 2000
Having looked at the difficulties surrounding a consideration of direct discrimination on
the disability ground, I will now consider whether or not there was a failure to provide
reasonable accommodation in accordance Section 4 of the Equal Status Act, 2000.
1) The elements involved in establishing a prima facie case of failure to provide reasonable accommodation appear to be as follows:
a) Was the complainant disabled in terms of the Equal Status Act, 2000? b) Did the respondent's actions on the night in question make it impossible (or unduly difficult) for the complainant to avail of the respondent's service? c) If so, did the respondent do all that was reasonable to accommodate the complainant's needs, as a person with a disability seeking provision of that service, by providing special treatment or facilities which would enable him to do so?
i) What was the difficulty about the Complainant accessing the service?
ii) What sort of special treatment or facilities could have facilitated him doing so?
iii) Could these treatment or facilities have been provided by the respondent? iv) In particular, would the cost to the respondent of providing them amount to "greater than nominal" cost?
In respect of a) it was accepted that the complainant had a disability at the time of the
incident. In respect of b) the respondent's admitted refusal did make it impossible for the
complainant to avail of the service being provided.
In respect of c) i) above the respondent submitted that it has a duty of care under the
Occupiers Liability Act, 1995 Section 3 and Safety, Health and Welfare at Work Act,
1989 Section 7. The Occupiers Liability Act states that the occupier of premises owes a
duty of care towards a visitor to the premises to take such care as is reasonable to ensure
that a visitor to the premises does not suffer injury or damage by reason of any danger
that exists on the premises.
I am satisfied that where the security man had decided that the complainant was lackingcontrol on his crutches, he had to consider the situation in the light of the Occupiers'Liability Act. This consideration, while grounded on the fact that the nightclub isa premises where various levels of intoxication exist in patrons at any time, would necessarily have to be undertaken from two perspectives. One, where there might be intermittent dangers existing by way of spillages which could be interpreted as causing particular difficulties for a person lacking control of crutches and a second, where the person with the crutches, or the crutches themselves, become a danger to others. I am satisfied that having arrived at the conclusion that Mr. Murphy was lacking some control of his crutches, it was reasonable to refuse admission on the basis of the Occupiers'Liability Act 1995. It may also be appropriate to consider Section 7 of the Safety, Health and Welfare at Work Act 1989. Section 14 of the Equal Status Act, 2000 provides a defense for a service provider who attempts to ensure compliance with these or any other legislative provisions. However, I am satisfied that where safety issues arise in accordance with the legislation mentioned above that are in respect of a disability, they must be considered in tandem with Section 4 of the Equal Status Act, 2000.
A witness for the complainant stated during the presentation of her evidence that she had been in the Spawell centre with a different friend who had been on crutches. They had gained entry without any difficulty. It would appear that the respondent generally accommodates people with disabilities and that even this different person, (who may ormay not have had a different disability but who presented with the same outward difficulties in that crutches were necessary for mobility), was accommodated. In comparing the reception received from the respondent by both of these people only, it appears that the apparent disability was not the reason for the refusal. The respondent has explained their reason for the refusal of admittance as the security man's perception of Mr. Murphy being one of a person lacking some control of the crutches he was using. While this incident was not in respect of admittance to the nightclub, it is indicative of therespondent's general approach to people with disabilities. In respect of c) ii), the respondent described the special functions organised on thepremises that are particularly aimed at those with disabilities. These functions, by being pre-arranged, allow the respondent to make whatever arrangements are necessary in order to provide an enjoyable atmosphere for those attending. The respondent also said that where patrons phone ahead in relation to gaining access to the regular nightclub this can be noted and they can generally be accommodated where the advance notice is sufficient. Often it is a manpower issue and it may be necessary to go so far as to dedicate an extra member of the security staff to oversee that person's group from a distance and ensure that all safety and other needs are met.
In respect of c) iii) there is substantial Employment Equality caselaw, both from this Office and the Labour Court which indicates that the respondent is under a duty to gothrough a process of considering what facilities may be provided for people with disabilities. In this case the respondent indicated that accessibility issues for people with disabilities were considered as early as when the building was being constructed, and were revisited. They had considered possible solutions which seem to afford reasonable access at a manageable cost to the service provider and which takes account of the various pieces of relevant legislation. The respondent pointed out that had Mr. Murphy phoned ahead and explained the circumstances it is likely that he would have been accommodated. The respondent stated categorically that decisions are made at the door based on the information available to the security man. In Mr. Murphy's case, the available information, without an explanation in advance, led the security man to the conclusion that Mr. Murphy had only begun to use the crutches recently and that this might be a danger in a crowded nightclub area. The security man had several years of experience in security and also worked in a Dublin hospital.
The suggested facility places a requirement on persons with disabilities, where they have a concern that there may be an issue surrounding their admission, to phone in advance. While people with disabilities should be able to enjoy an impromptu night out it must be questioned whether or not the entire burden of impromptu access should be placed with the service provider. In the circumstances of this case I am satisfied that it would not have been an unreasonable imposition for the complainant to phone ahead, had it occurred to him.
I am satisfied that the suggested facility could have been provided by the respondent and since no contradictory evidence was presented, I have no reason to doubt that they would actually do what they say they would do.
In respect of c) iv) above, I am satisfied that since the facility was available it is not necessary to consider whether or not the cost would have been greater than nominal cost.
Conclusions of the Equality Officer
I am satisfied that in this situation, the respondent was presented with a person that they considered to be inexperienced on their crutches. While I accept the complainant's assertion that he had experience in the use of his crutches, I find the respondent's evidence more compelling and I accept that a judgment was made that the complainant was unstable. I am satisfied that this raised difficulties in respect of the safety legislation. I am also satisfied that the respondent here has not failed to provide reasonable accommodation, taken in the context that it made reasonable efforts to check the facts before refusing entry, that there were particular statutory and other safety issues about admitting the complainant with impaired mobility in the context of their particular service, that it was happy to accommodate the complainant with advance notice and where possible to devote extra resources. I find that the complainant has failed to establish a prima facie case of discrimination, with respect to a failure to providereasonable accommodation, on the disability ground. It is therefore not necessary to consider whether Section 4(4) provides a defense for the respondent.
Decision DEC-S2004-036
I find that the Spawell Centre did not discriminate against Mr. Murphy on the grounds of
his disability when he was refused access to the centre on 22/2/2002.
Bernadette Treanor
Equality Officer
19th April 2004