Brendan Carey V McDonalds Restaurant (Represented by the Irish Business and Employers Confederation)
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 has delegated this complaint to me Mary O’Callaghan, 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.The hearing of the case took place on Tuesday 12th April 2005.
1. Dispute
1.1 This dispute concerns a complaint by Mr. Brendan Carey that he was discriminated against contrary to the Equal Status Act when he went to McDonalds Restaurant in O’Connell Street in Dublin on 9th March 2003. Mr. Carey alleges that the treatment he received was contrary to Section 3 (2) (g) of the Equal Status Act, 2000 i.e., the disability ground, and that in not being provided with a service which is generally available to the public he was subjected to treatment contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 The complainant said that he went to McDonalds Restaurant in Lower O’Connell Street, Dublin with his 3 children on the afternoon of Sunday 9th March 2003. One of the children who was aged 5 months was in a buggy and the others were aged 3 and 5 years. Mr Carey has scarring on his face as a result of injuries received in a car crash some years ago when he was propelled through the windscreen.
2.2 Mr Carey said that when he approached the door to gain access to the restaurant, the security man stopped them at the door and refused to let them in. He said that the security man spoke with broken English. Mr Carey said that after explaining to him that he had come to the restaurant to treat his children, the security man allowed him in and told him to stay downstairs. He said he was a regular customer of McDonalds and this was the first time he had any trouble being served there. Mr Carey said that they wanted to go upstairs in the restaurant but were being prevented from doing so. He asked for the manager and when the manager arrived he explained that he wanted to buy his children a meal. Mr. Carey said he found the manager’s attitude hostile and that the manager then told him he would not be served. No explanation was given for refusing him service. While this was going on Mr. Carey said others were being served and were being allowed up to the upper floor. As far as he was aware he was the only person being refused
2.3 Mr. Carey said he could not see any reason for the security man refusing him entry to the upper floor. There was no problem. No Gardai were called to the incident. All Mr. Carey could think of was that the security man noticed the scars on his face and decided to refuse him because of that. Mr. Carey said he had been back to the same branch of McDonalds with his children a few times since then and had been served.
3. Summary of the Respondent’s Case
3.1 The respondent (HR Manager) said that while they had no defined criteria regarding why people would be refused entry to their restaurants, their security staff operated vigilantly to protect company employees and customers, if they had any cause for concern about a person. They would impose a restriction in order to ensure no incidents occurred. There was no security presence in the upstairs area of the restaurant concerned.
3.2 The respondent said that their restaurant provided specially adapted toilets for their disabled customers and these were on the downstairs level of the restaurant. All staff are given some training in dealing with disabled customers on their orientation course and there are plans that further training will be provided this year. This is part of the policy and procedures of the company.
3.3 The respondent said the security staff work on a rotational basis in the different branches of the restaurant chain so that the same security man could work in a number of different branches of the restaurant. The security man that dealt with the complainant had reported that he recognised Mr. Carey from an incident in another branch of the restaurant previously. She said that the manager who was in the restaurant on the date of the incident reported, no longer worked for the company and neither he nor the security man who dealt with the complainant were present for the hearing. However, both had made written reports at the time of the incident to the human resources department and it was on these that she was relying.1 Her understanding from the reports was that Mr. Carey had approached the counter of the restaurant and asked to speak to the manager. When the manager came Mr. Carey spoke to him in derogatory terms and used strong language. It was at this stage that the manager made the decision not to serve Mr. Carey. The respondent said that there would have been no problem gaining entry in normal circumstances but in this case the security man recognised Mr. Carey and service was refused because of aggressive behaviour towards the manager.
3.4 She said that a person would not be refused entry to the restaurant because of a disability. She said that the restaurant chain had a policy of employing people with disabilities and there were up to 60 disabled people working for the company. They aimed to integrate disabled people and they were keen to maintain a positive image for the company. Mr. Carey was not refused service because of any disability he may have.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainant has succeeded in establishing a prima facie case of discrimination on the disability ground. In order to do so the complainant must satisfy three criteria in relation to his complaint. He must (1) establish he is covered by a discriminatory ground (in this case the disability ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3)there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not covered by the discriminatory ground would have received in similar circumstances.
Section 2 (1) of the Equal Status Act, 2000 defines a Disability as—
(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;
Section 4 of the Act sets out the requirements attaching to service providers in their dealings with disabled people.
(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.
4.2 Mr. Carey submitted that the scarring on his face constituted a disability under the Act and I accept that such scarring comes within the definition of disability set out in Section 2 (1) (c) of the Equal Status Act 2000. I therefore conclude that Mr Carey is covered by the disability ground in relation to his complaint under the Act. It is agreed between the parties that Mr Carey was refused service on his visit to McDonalds on Sunday 9th March 2003 and therefore it has been established that he did suffer the specific treatment alleged in his complaint. The third criterion which he must meet is whether the treatment he received was less favourable than the treatment that any person would have received in similar circumstances and who did not have a disability or had a different disability to Mr. Carey.
4.3 In relation to this third criterion I am conscious of the fact that none of those present for the respondent at the hearing were actually present at the incident complained of. The respondent has provided evidence drawn from reports made by those involved contemporaneously with the incident. The evidence from the complainant, Mr. Carey, is that he did nothing that should have resulted in him being refused service either in the particular branch of Mc Donald’s on the day in question or in any other branch of the restaurant at any time. I can only consider whether the evidence of the complainant or the respondent is more compelling with regard to the reason for the refusal. In the absence of direct evidence from the security man on duty I cannot say whether any incident involving the complainant prior to the incident under investigation did occur. I must consider whether there is sufficient evidence to conclude that the refusal arose due to the complainant’s disability i.e. the scarring on his face. Mr. Carey was accompanied by his children at the time of this incident. I am inclined the view that in a restaurant such as McDonalds something other than Mr. Carey’s disfigurement, which in my experience of the complainant is only apparent on close scrutiny must have prompted the refusal initially at the door of the restaurant and later by the manager at the counter. I note that Mr. Carey’s evidence is that he has been served in McDonalds many times prior to this incident and subsequent to it and that he continues to frequent the restaurant on occasions with his children without problems. I conclude, therefore, that on the balance of probabilities the treatment received by Mr. Carey was not less favourable treatment for the purposes of the Equal Status Act, 2000.
4.4 I have considered the obligations of a service provider under Section 4 of the Equal Status Act 2000 as set out above for completeness of my investigation. This section requires service providers to provide reasonable accommodation in the provision of special facilities for customers with disabilities so long as such facilities do not exceed a nominal cost to the provider. I have considered Mr Carey’s particular disability and have concluded that with regard to the service being provided by McDonald’s, that all necessary facilities for the enjoyment of a meal at the restaurant for someone with his disability were available at the restaurant. There is no indication that anything was said to Mr. Carey regarding his disfigurement and I am satisfied that the restaurant does provide reasonable accommodation for disabled customers. I conclude therefore that the third criterion required to establish a prima facie case of discrimination has not been met by Mr. Carey and therefore, in relation to this complaint the complainant has not established a prima facie case on the disability ground.
5. Decision
5.1 The complainant having failed to establish a prima facie case of discrimination on the disability ground cannot succeed in his complaint and I find for the respondent in this case (DEC-S2005-044). I would, however, like to express a note of concern in relation to the refusal of service as happened here when a customer is accompanied by young children and would recommend that the respondent company bear this in mind in developing procedures for dealing with such incidents in the future.
Mary O’Callaghan
Equality Officer
17th June 2005
1The incident reports were submitted to the Tribunal shortly after the complaint was received and as is Tribunal practice were copied to the complainant for comment.