Anne - Marie Forde
V
The Body Clinic, Dublin
1. Dispute
1.1 This dispute concerns a claim by Anne-Marie Forde that on 21 May 2004, she was treated in a discriminatory manner by the respondent. The complainant referred a claim 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 then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of this and other relevant functions of the Director under Part III of the Equal Status Act. The Hearing of the complaint was held on 8 November 2007.
2. Summary of Complainants' Case
2.1 The complainant states that both she and her sister had made appointments with the respondent for spray tans to be applied in advance of going on holidays. The Complainant's sister, Ms. Roisín Cullen, attended for her appointment on the morning of 21 May 2004 and was requested to complete a medical questionnaire which specifically asked whether she suffered from, inter alia, epilepsy. Ms. Cullen explained to the receptionist that she did not have epilepsy but that her sister, the complainant, who was due to attend for an appointment later that day, had a mild form of epilepsy.
2.2 Ms. Cullen was told by the receptionist that the complainant could not receive the spray tan treatment and that she would ring the complainant to cancel the appointment. Ms. Cullen undertook to ring the complainant and tell her of the cancellation as she felt that this would be less of a shock and less embarrassing to her.
2.3 The complainant departed on her holiday the following day and was therefore unable to make alternative arrangements for the treatment.
3 Prima Facie Case
3.1. I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A (1) of the Equal Status Acts 2000 - 2004 states that
"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".
4. Prima Facie Case - Complainant
4.1 The complainant states that she has a disability, i.e. a mild form of epilepsy, and this is accepted by the respondent. The complainant sought a spray tan from the respondent and had her appointment for same cancelled when the respondent became aware of her disability.
4.2 The complainant's sister was provided with the spray tan treatment by the respondent as she did not suffer from, inter alia, epilepsy.
4.3 I am satisfied that the complainant has established a prima facie case of discrimination on the disability ground.
5. Summary of Respondent's Case
5.1 In the Hearing of this complaint the respondent accepted the facts as put forward by the complainant but stated that
- the respondent acts at all times in the best interest of customers and staff
- the spray tan procedure entails the use of canisters of carbon dioxide which could lead to oxygen deprivation and as a consequence, in the instant case, a seizure.
- Medical advice as to the safe use of the spray tan equipment had been sought both before and after the complaint in this matter by the Managing Director of the company
- The manufacturers of the spray tan booth gave a recommendation that there be adequate ventilation for the booth
- The booth in question, while in use, had been relocated twice due to ventilation problems. The spray tan service ceased in 2004.
6 Conclusions of the Equality Officer
6.1 Having carefully considered all of the evidence presented in this case I am satisfied that the respondent has failed to rebut the inference of discrimination for the following reasons:-
Documentary Evidence presented at Hearing by the respondent indicates that;
- The manufacturers of the spray tan booth state that there is no hazard associated with use of the booth.
- No restrictions of use are put forward by the manufacturer of the booth.
- No direct medical evidence was presented by the respondent as to why the spray tan procedure could not be provided to the complainant.
- The respondent indicated that ultimately their insurance providers had imposed the requirement for a medical questionnaire for clients and had insisted that persons suffering from the list of disabilities thereon could not avail of certain services in order to prevent potential legal liability arising.
- No details of the extent or nature of the manifestations of the disability were sought. Service was refused specifically because of the existence of the disability.
6.2 It is clear to me from the evidence provided at the Hearing of this complaint that the respondent's actions in refusing the service to the complainant were primarily on foot of the insurance provider's insistence that service was not to be provided to persons with, inter alia, epilepsy. It should be noted that under Section 13 of the Equal Status Acts it is an offence to procure or attempt to procure another person to engage in prohibited conduct. This does not in any way excuse the respondent's actions in imposing the insurer's conditions in this matter.
7 Decision
7.1 I find that the respondent has directly discriminated against the complainant on the disability ground contrary to Section 5 and in terms of Section 3 (1) and 3(2) (h) of the Equal Status Acts 2000-2004.
8 Redress
8.1 In accordance with Section 27(1)(a) of the Equal Status Acts 2000-2004 I hereby order the respondent to pay to the complainant the amount of €1,000 for the effects of the discrimination.
_________________________
Dolores Kavanagh
Equality Officer
28 November, 2007