Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC- S2008 -034
Mr Donagh O’Riain
(represented by Ms Lesley Condren)
-V-
H.M.V. Ireland
(Represented by Stephen O’Sullivan BL and William Fry, Solicitors)
Key words
Equal Status Acts 2000 to 2004 - Discrimination, Section 3(1), 3(2) - Disability ground, section 3 (2)(g) – Reasonable Accommodation, Section 4(1) – Failure to provide reasonable accommodation – use of lift – health and safety concerns – wheelchair user – training – customer service
1. Delegation under the relevant legislation
1.1. Mr Donagh O’Riain referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 to 2004 and the Equal Status Acts 2000 to 2004, the Director then delegated the case to me, Gary O’Doherty, 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.
2. Dispute
2.1. The dispute concerns a complaint by Mr Donagh O’Riain, who has a condition known as Fredericks Ataxia, that he was discriminated against by H.M.V. on the Disability ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Act, 2000, and contrary to Section 5(1) of that Act, particularly in that he was not provided with reasonable accommodation in attempting to avail of the goods and services on offer by the respondent.
2.2. The complaint was received in the Tribunal on 3 October, 2005. The hearing was held on 29 January, 2008 in Dublin. Correspondence was entered into with both sides and final correspondence was issued on 14th March, 2008.
3. Case for the Complainant
Incident of 15th July, 2005
3.1. Mr. Donagh O’Riain, who is a wheelchair user, states that on 15th July, 2005, he went to the H.M.V. store on Grafton Street, accompanied by his aunt, Ms K, to purchase DVD’s. Ms K had spoken with a member of staff of the shop earlier in the day with a view to establishing that a lift was available to facilitate Mr. O’Riain, as she knew they would want to visit the first floor of the building. She said she was assured that there was a lift available to the public. Ms K stated that this would be normal procedure for her when she was accompanying Mr. O’Riain.
3.2. Mr O’Riain stated that there were no signs in the store indicating whether a lift was available for use. When he and Ms K arrived in the store, he asked whether there was a lift available to take him upstairs. The complainant stated that they spoke with several members of staff who either did not know whether a lift was available for use or insisted the lift was for the movement of goods only, and acted like “they wanted to get rid of me so they can do their job”. A member of staff eventually told them that if they went behind the cash desk to the goods area, the lift would be made available. They were brought to the lift straight away and a space was cleared in it. They were allowed use of the lift, both going up and going down, although they were told that a staff member would have to accompany them while they were using it. Mr. O’Riain understood this was for insurance purposes.
Incident of 30th July, 2005
3.3. Mr O’Riain also refers to an incident on 30th July, 2005, but states that there was no problem in this case in that when he asked if he could use the lift, space was cleared for him and he was allowed use of the lift unaccompanied by a member of staff.
Incident of 11th August, 2005
3.4. Mr O’Riain then states that on 11th August, 2005, he again went to the H.M.V store, this time accompanied by his cousin, Mr. J, who was approximately eighteen years old. He again asked if he could use the lift and was told by a member of staff that the store was not insured to have the public use it, that it was only used to carry stock and that he would have to use the stairs. Mr O’Riain then used the stairs unaided by anyone except Mr. J, who pulled and/or pushed Mr. O’Riain’s wheelchair up and down the stairs step-by-step.
3.5. The complainant has returned to the H.M.V. store since the incidents in question. He stated that the lift is made available quicker than in the past, but that it still takes a number of minutes. The complainant also stated that when accessing the lift since the incidents, there was still a considerable amount of goods blocking the way.
Complaint of Reasonable Accommodation
3.6. Mr O’Riain stated that, in providing reasonable accommodation in the context of the Equal Status Acts, 2000 to 2004, H.M.V. should make a lift available to him, and that he should not to have to be accompanied to get on it. He complained that when someone goes to H.M.V., the lift is difficult to access and that stock is continually strewn about the place. He believes that his needs as a customer are not being met by the current system. He believes that the area surrounding the lift needs to be kept clean and tidy and reasonably free of goods and that the staff need to be brought up to speed on how to address customers.
4. Case for the Respondent
4.1. The respondent, H.M.V. Ireland, operates nine stores throughout the country. Its store on Grafton Street is leased and was an existing building when the respondent began operations there.
Use of lift at time of incidents in question
4.2. The lift currently in place in the store is one that was upgraded in 2005. The respondent states that a lift was first installed in its Grafton Street store in or about 1965. Minor modernisation took place in 2001. The respondent states that prior to 2005 the lift was not accessible to disabled persons. If a disabled person at that time sought a specific item, a “runner” would go up to the relevant floor to obtain the specific item in question and bring it to the customer.
4.3. It was not until the works carried out in 2005 that the lift was suitable for carrying disabled passengers. The respondent had recognised a need, and indeed a duty, to facilitate access for all its customers to all areas of its Grafton Street store, in light of the DDA (Disability Discrimination Acts) legislation in place in the UK. It further states that the store was therefore assessed for disabled and ordinary customer access. Consequently, in or about 2004, it sought pricings for remedial works to the lift in that store.
4.4. On 28th September, 2004, a quotation was obtained for supplying a lift with the necessary emergency features to allow disabled access. A second quotation was also obtained for the purposes of ancillary structural work to facilitate the putting in place of the appropriate lift. These works were approved in accordance with the procedures in place for the respondents organisation at the time and the work was carried out in or about the period from early May to 20th June 2005. The respondent states that during this period, the lift was unavailable to anyone and goods were carried up and down a rear emergency stairs by staff of the store.
4.5. Following completion of the lift works, an independent specialist lift and escalator firm, Dunbar and Boardman, inspected the lift in question. This inspection was carried out at the Respondent’s request with a view to establishing that the works had been properly completed. The inspection was completed by 20th June 2005 and a report was furnished on 22nd June 2005. This report indicated that the works to the lift had been completed except for the installation of an emergency phone line, which was to be provided by Eircom. This installation was the only work that needed to be carried out to make the lift accessible in terms of the DDA legislation.
4.6. On this basis, the respondent said that the staff in the store were informed that for health and safety reasons the lift could only be used as a goods lift until the phone line was fitted. This phone line had not been installed before the dates of the incidents that are the subject of this complaint. Furthermore, the respondents were unable to establish the date on which the phone line was installed except to say that it was probably installed sometime in mid-September 2005. It stated that staff were told not to use it themselves, and instead they put the goods into the lift and sent it to its destination floor without going into the lift. At the time of the incidents, it says that staff would have been informed that the lift was not to be made available to any member of the public either and so would not have needed to speak with a Manager about this. However, the respondent’s Health and Safety Officer, Mr H., admitted that there may have been some confusion among staff as to the availability or not of the lift. He clarified this with them at some time before 22nd September, 2005, (the date on which he sent out a letter referring to same).
4.7. In planning for the time when the lift would be unavailable, the respondent said that it focussed on providing appropriate customer service. It submits that its staff in the Grafton Street store were trained in customer service practices and taught to offer appropriate assistance to customers. The respondent’s staff are trained to approach disabled customers and offer assistance where necessary. In particular, loss prevention officers at its stores have a customer service responsibility. This is the approach they would have taken in dealing with the complainant during the incidents in question. In this context, it argued that the reason no assistance was provided to the complainant on 11th August 2005 may have been because of the unavailability of staff to accompany him in the lift. The respondent provided a briefing to its staff outlining the procedures that should be followed in dealing with disabled customers. A copy of this briefing was provided to the Tribunal. This document was not dated but it had been established at the hearing that it was issued in September 2005.
Current use of lift
4.8. The store currently has lift access to three trading floors, including the ground floor, and also to an additional floor that is used for storage purposes only. The respondent submits that the lift was, and is, also required to accommodate the transportation of delivered stock to the storeroom, which is located on the second floor and the store office, which is located on the third floor. In this regard, there are occasions when stock may rest temporarily in or near the lift or along the ground floor access corridor to it. This cannot be avoided. The respondent submits that this creates certain safety and security risks, which is why it insists that a member of staff must accompany customers using the lift.
4.9. The respondent also states that the lift in question is positioned at the rear of the Store behind the cash desks. In order for there to be direct access to the lift, the cash desk would have to be moved to another area. The Respondent has considered this option. However, it submits that such a move would result in the loss of shop floor area of approximately 40ft2 and a very large loss of revenue by way of loss of such shop floor area.
5. Conclusions of the Equality Officer
5.1. In the first instance, it is for the complainant to establish the existence of a prima facie case of discrimination. If and when this is established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground(s). It is then for the respondent to rebut the complainant’s case.
Prima Facie Case
5.2. There are three key elements for me to consider in deciding whether a prima facie complaint of discrimination exists in this case:
i) Does the complainant meet the requirements for membership of one of the nine discriminatory grounds, in this case the disability ground?
ii) Has the complainant established to my satisfaction that he was subject to specific treatment by the respondent?
iii) Has the complainant satisfied me that the treatment he or she received was less favourable than the treatment someone else, of a different status under the ground in question, in this case a non-disabled person, would have received in the same or similar circumstances?
5.3. It is not disputed by the respondent that Mr O’Riain has a disability and therefore meets test i). In relation to test ii) there are three incidents that were mentioned by the complainant within the context of this complaint. The complainant has said that there was no specific treatment relating to the incident of 30th July. However, the respondent said that it was not in a position to dispute that the other two incidents alleged to have occurred actually took place and I am therefore satisfied that test ii) has been met in relation to both of those incidents. I note that the complainant did not dispute that the lift was not made available to any customer during the period in question. I am therefore satisfied that test iii) has not been met and the complainant has not proven his case in the context of S.3 of the Equal Status Acts, 2000 to 2004.
Reasonable Accommodation
5.4. As the relevant ground in the present complaint is the disability ground, I must also look, in accordance with Section 4(1), at whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”, and whether “ifwithout such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” In accordance with Section 4(2), I must also consider that the respondent has not failed to provide reasonable accommodation if to do so would “give rise to a cost, other than a nominal cost”.
Incident of 11th August
5.5. Mr. J had to pull the complainant in his wheelchair up a flight of stairs step-by-step and had to travel back down the stairs the same way. It is clear that the complainant had to do this in order to gain access to the first floor level. It is also clear that no member of staff made any effort to ensure that the complainant was provided with any other means of accessing the goods on the first floor level and that using the stairs was, as described by the first staff member the complainant approached on that day, the only method offered to the complainant of availing of the goods and services of the respondent on that floor. It was, therefore, clearly unduly difficult for the complainant to access the goods and services of the respondent.
5.6. The respondent has provided a number of justifications for this incident and reasons why it occurred, relying primarily on the fact that the lift was not available due to ongoing works. These arguments are considered below.
Use of Lift
5.7. The respondent submits that its efforts to arrange for the installation of a lift suitable for use by disabled persons was its principal method of discharging its responsibility to reasonably accommodate the needs of its disabled customers and, in particular, Mr. O’Riain. The respondent further argues that it was justified in refusing access to the lift to the complainant on 11th August, 2005 due to health and safety considerations.
5.8. I do not accept this latter argument. The evidence presented by the respondent in relation to the health and safety concerns regarding the use of the lift was inconsistent and quite often, indeed, conflicting. Moreover, I cannot believe that the respondent would allow use of the lift where to do so would engender health and safety concerns that take precedence over the Equal Status Acts, and yet the complainant was allowed access to the lift on two occasions. The respondent essentially sought to blame Eircom for the fact that the lift was not available for three months (after 22 June), and yet it was unable to provide any evidence that it attempted to make contact with Eircom to investigate the cause of this delay. I therefore consider that either there were no concerns about the safety of the lift, or those concerns did not rule out the possibility of making it available to the complainant by the use of certain other measures (e.g. having a member of staff accompany him while in the lift as occurred on 15th July). As the respondent can provide no other valid explanation for why it refused access to the lift on the third occasion, viz. 11th August, and as I do not believe that making the lift accessible to the complainant would have given rise to a cost other than a nominal cost (e.g. the cost of a staff member accompanying a customer in the lift), I do not accept that it was entitled to do so within the meaning of the Equal Status Acts, 2000 to 2004.
Other Reasonable Accommodation
5.9. In Leo Jones –v- Dun Laoghaire Rathdown County Council[1], the Equality Officer stated: “In considering reasonable accommodation…..the Act requires the Council to show that it did everything it could reasonably do to accommodate the complainant.” Irrespective of whether the respondent was justified in refusing access to the lift to the complainant, then, it cannot meet the requirements of the Acts if it did not consider alternative methods of providing reasonable accommodation during the period when the lift was unavailable unless it can show that any such alternative gave rise to a cost other than a nominal cost. The respondent was aware long before the works took place that the lift would not be made available for a period of at least six to eight weeks. Notwithstanding the additional delay, arising from the wait for providing the phone line, which led to this complaint, even six weeks is far too long a time, in all the circumstances of this complaint, for the respondent not to provide, where possible, an alternative form of reasonable accommodation.
5.10. The respondent does submit that it did consider alternative forms of reasonable accommodation and, indeed, provided one: training to its staff members in how to provide customer service to its disabled customers. However, I do not accept this argument, as it is clear from the behaviour of the staff in question on 11th August, 2005 that this training was ineffective. Furthermore, the training booklet that the respondent provided to the Tribunal was distributed to staff in September, after the incidents in question, and in relation to the incident of 15th July, staff at the store were uncertain about what should be done.
5.11. Based on this, and on the other evidence presented in the course of my investigation, I am satisfied that the respondent failed to provide suitable alternative reasonable accommodation. Furthermore, I am satisfied that, in planning for the works to the lift, the respondent did not give due consideration to this. I do not accept the respondent’s submission that any alternative reasonable accommodation would have given rise to a cost other than a nominal cost. I am particularly persuaded in this that its previous practice of using “runners” to provide assistance to disabled customers does not give rise to a cost other than a nominal cost, in the context of this complaint. Nor do I believe that suitable training, properly and fully implemented, would have given rise to such cost.
5.12. Finally, in considering the respondents case with regard to the incident of 11th August, 2005, it submits that it should be commended for seeking to follow standards in line with English DDA legislation, which it claims sets a higher bar than the Equal Status Acts for disabled access. I cannot reconcile the respondent’s assertion that it was trying to apply a higher legislative standard with the treatment of the complainant in relation to the incident in question. In any event, this enactment has no binding authority on the Tribunal.
Incident of 15th July
5.13. In relation to the incident of 15th July, 2008, the complainant submits that he should have been allowed use of the lift unaccompanied. The question of whether this submission is correct is the only one that needs to be answered in relation to this incident as it is clear that the complainant was otherwise provided with reasonable accommodation in relation to it, albeit very reluctantly. While I am unconvinced at the respondents submission that health and safety concerns precluded it from allowing any use of the lift to customers, I believe, on balance, particularly given that there was no phone line in the lift at the time, that it was entitled to require the complainant to be accompanied by a member of staff of the store, even if that delayed the complainant for a very brief period of time. In relation to the incident of 15th July, therefore, the complainant was provided with reasonable accommodation within the meaning of the Acts.
Use of lift now available
5.14. The complainant also submits that the respondent is continuing to discriminate against him in requiring him to be accompanied by a member of staff of the store in using the lift at the present time. It is clear that the lift is also used as a goods lift. Based on the figures presented to me by the respondent, I accept its submission that the cost of installing a separate lift for customer use would give rise to a cost other than a nominal cost. I consider, therefore, that it is reasonable for the respondent to require a staff member accompany customers in the lift because of the health and safety and security issues it raised in its submissions, provided it does so in a reasonable manner.
Final Conclusions
5.15. Having considered all the arguments presented by the respondent, I am satisfied that, in relation to the incident of 11th August, 2005, it did not do “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”. Consequently, the complainant was not provided with reasonable accommodation as defined by Section 4(1) of the Equal Status Acts 2000 to 2004, in availing of the goods and services provided by the respondent on that date.
5.16. I would add that, in making an order in this case, I have considered that there was a breach of the Equal Status Acts, 2000 to 2004 in relation to the incident of 11th August, 2005, and that:
· The complainant was told by a member of staff that he had to use the stairs;
· The staff of the store provided no assistance or alternative to the complainant;
· The complainant had been in the store on two previous occasions and so the respondent was aware of the concerns of the complainant;
· The respondent did not give due consideration to the provision of alternative reasonable accommodation for the period during which the lift would not be available;
· The efforts of the respondent to ensure the lift was made available at the earliest possible opportunity were insufficient;
The amount of the payment to the complainant reflects these issues, as well as the fact that the complainant considered his treatment by the respondent to be demeaning.
6. Decision
6.1. In relation to the incidents of 15th July, 2005 and 30th July, 2005, that are the subject of this complaint, the complainant has failed to establish a prima facie case of discrimination.
6.2. In relation to the incident of 11th August, 2005 that is the subject of this complaint, the respondent has failed to provide reasonable accommodation as defined by Section 4(1) of the Equal Status Acts 2000 to 2004. The complainant was therefore discriminated against within the meaning of the Acts.
6.3. I order the respondent to pay the complainant €2500 as redress for the effects of the failure to provide reasonable accommodation.
_____________
Gary O’Doherty
Equality Officer
10th June 2008