Catherine Leacy
V
Viart Ltd., t/a Centra, Dublin
1. Dispute
1.1 The dispute concerns a claim by the above named complainant that she was
discriminated against by the respondent when she was asked to leave the respondent premises because she was accompanied by her guide dog.
2. Summary of the Complainant's Case
2.1 On 4 March, 2005 the complainant, with her guide dog, and accompanied by her sister and father, went to the respondent's premises. The complainant made her way to the deli counter. The deli assistant asked her to leave the shop as no dogs were allowed.
2.2 The complainant approached the shop manager and asked him to explain to the deli assistant that guide dogs were permitted in the shop. The manager stated that he would "deal with it later".
2.3 The complainant had, on two previous occasions, been asked to leave the respondent shop by staff members because of the presence of her guide dog and felt that she had resolved the issue in a reasonable manner on each of those occasions with the shop owner. The latter had assured her on each occasion that there would be no recurrence and that he accepted that the guide dog should be permitted on the premises. Two other customers left the shop because of the manner in which she had been treated.
The complainant states that she again attempted on this third occasion to resolve the matter with the owner but he had failed to return her last call to him and that she was greatly upset and embarrassed by the repeated failure of the respondent to allow her access to a service on the premises.
3. Summary of the Respondent's Case
3.1 The respondent accepts the facts as put forward by the complainant and
explained at the Hearing of the matter that it is fully accepted that the complainant's
guide dog is allowed on the premises. Staff are informed when they commence
employment in the shop that this is the case. However, with a constant turnover of
staff it is impossible to ensure that all staff adhere to what they have been told at all
times.
4. Conclusions of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against in terms of Section 3(1)(a), 3(2)(g) and Section 4 of the Equal Status Acts and contrary to Section 5 of those Acts. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated.
Section 3(2)(g) provides that: As between any two persons, the discriminatory grounds ... are ... that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground)."
Section 5(1) provides that:
"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."
Section 4 of the Act states
"(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."
4.3 The following questions are the key relevant elements in this complaint to determine whether discrimination contrary to the provisions of the Equal Status Acts has been established.
(i) Is the complainant covered by the disability ground under the Equal Status Acts?
(ii) in what circumstances was the complainant refused service by the respondent on 4 March, 2005?
(iii) did the respondent's actions amounted to a refusal or failure to provide reasonable accommodation in accordance with Section 4 of the Equal Status Acts for the complainant's needs as a person with a disability, which made it impossible or unduly difficult for her to avail of the service?
(iv) would providing for those needs would have given rise to greater than nominal cost to the service provider?
4.4 In the instant case (i) the complainant is visually impaired and this is accepted by the respondent, (ii) the complainant was refused service and asked to leave the respondent shop because she was accompanied by her guide dog. It is clear therefore that the complainant was not directly refused service because of her disability but, rather, because of the presence of the guide dog, (iii) the complainant requires her guide dog to be with her at all times as a mobility aid and (iv) there is no cost for the respondent associated with allowing the guide dog into the shop with the complainant.
4.5 In the circumstances I am satisfied that the respondent did not directly discriminate against the complainant contrary to Section 5 of the Equal Status Acts. However, as the respondent failed to facilitate the presence of the complainant's guide dog, without which the complainant would have found it unduly difficult to avail of service in the respondent premises, I am satisfied that the respondent has discriminated against the complainant by failing to provide reasonable accommodation to the complainant in accordance with Section 4 of the Acts. As there was no cost to the respondent associated with facilitating the presence of the guide dog, the issue of nominal cost does not arise.
5. Decision
5.1 I find that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4 of the Equal Status Acts 2000-2004.
6. Vicarious Liability
6.1 While the action which constituted discrimination is directly attributable to the deli assistant who refused service to the complainant, section 42(1) of the Equal Status Act, 2000 provides that:
"Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval"
6.2 As the deli assistant was clearly acting within the scope of their employment in the course of the refusal of service to the complainant I find that the respondent is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Acts.
7. Redress
7.1 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."
7.2 In considering the amount of compensation which I should award I have taken into account the fact that a guide dog is an essential mobility aid for a visually impaired person and the difficulties a visually impaired person would encounter without the dog's assistance. I hereby order the respondent to pay to the complainant the sum of €3,000 to compensate her for the distress, embarrassment and inconvenience suffered by her as well as the loss of the amenity to her.
7.3 As the shop which is the subject of this complaint is no longer operated by the respondent I do not deem further orders appropriate in this matter.
_________________________
Dolores Kavanagh
Equality Officer
27 November, 2007