Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-029
Kenny
(with Murray Smith BL as advocate)
V
Sufi’s Cafe
Keywords
Equal Status Acts 2000 to 2004 – Discrimination on ground of disability, section 4(1) – Failure to attend a hearing – Refusal to provide reasonable accommodation to a customer
1. Delegation under the Equal Status Acts 2000 to 2004
1.1. Ms Kenny referred a claim on 18 March 2005 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, the Director then delegated the case to me, Tara Coogan, 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 Acts on 1 November 2007. A hearing was held on 28 April 2008.
2. Dispute
2.1. The dispute concerns a complaint by Ms Kenny that she was treated contrary to section 4(1) on the ground of her disability by the manager of Sufi’s Café on 10 February 2005 when her request to have the lights turned up was turned down. This resulted in Ms Kenny not been able to avail of the service.
3. Case for the Complainant
3.1. Ms Kenny suffers from a condition known as High Myopia and Bilateral Amblyopia. This means that Ms Kenny is rendered effectively blind in low and/or dim lighting. She maintains that in such conditions, any prolonged periods of ‘close work’ such as eating and drinking results in her getting severe headaches, sometimes accompanied by ‘auras’ (flashing lights and similar visual distortions). Ms Kenny adds that since January 2004 she has also suffered from vitreous detachment in her right eye that has resulted in the constant presence of floaters in her visual field, adding to her problems with inadequate lighting.
3.2. Ms Kenny had been a regular customer in Sufi’s Café and her requests for brighter lighting had always been accommodated to enable her to enjoy her refreshments without risk of spillage, breakages or mishaps.
3.3. On the 10 February 2005, Ms Kenny entered the premises after 9 pm. As usual, she requested that the lighting be turned up to allow her to safely negotiate her way over to her seat. This time, however, the manager on duty told her that, speaking on behalf of the owner, Ms Kenny’s request for brighter lighting would no longer be complied with. The manager gave Ms Kenny the following reasons:
1. During a recent electrical fault Ms Kenny remained in her seat and seemed to be able to cope in reduced lighting;
2. Ms Kenny insisted in sitting at a table other than the vacant one by the counter which the manager deemed to have enough light for Ms Kenny’s needs;
3. Ms Kenny was using the premises as a study area;
4. Ms Kenny was questioned on what she would do if she were to enter public house premises to meet a friend where extra lighting was not an alternative; and
5. The extra lighting was causing other customers to enquire whether the café/restaurant was about to close.
3.4. Because of this refusal to turn up the lighting, Ms Kenny claims that she was unable to safely and comfortably enter the premises and enjoy refreshments. This, she maintains, is a failure on behalf of the service provider, to provide her with what she considers reasonable accommodation as outlined in section 4(1) of the Acts.
3.5. Ms Kenny emphasised that she had always, until this incident, received courteous and pleasant service - besides the manager on this occasion - from the owner and staff at Sufi’s. She also pointed out that, while she understands that she needs to inform service providers about her condition, she should not have to continuously justify the reasons for her special requirements.
4. Case for the Respondent
4.1. The respondent failed to attend the hearing on Monday 28 April 2008 despite informing the equality officer of his intention to do so. Therefore, the respondent has presented no evidence to rebut any of the allegations made by the complainant.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In order for the complainant to establish a prima facie case of discrimination on the ground of disability the complainant she must satisfy the Tribunal that the treatment they received constituted less favourable treatment within the meaning of section 4 of the Equal Status Acts 2000 to 2004:
“For the purposes of this Act discrimination includes a refusal or failure by the provider of the 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”.
5.3. I am satisfied that Ms Kenny suffers from a chronic visual disability. I also find that her account of the alleged incident is credible and that she had been refused special treatment or facilities by the respondent on 10 February 2005. The question that remains for me to examine is whether the failure to provide Ms Kenny with special treatment or facilities in this context constitutes less favourable treatment on the grounds of disability.
5.4. The complainant bears the initial burden of providing the primary facts upon which she relies in asserting the discrimination occurred. As this burden has been successfully discharged, the probative burden of establishing that the requirement to provide reasonable accommodation was not infringed shifts to the respondent.
5.5. This means that the onus is on the respondent to provide the Tribunal with evidence to support any legitimate justification as set out in sections 4(2), 4(3) and 4(4) to explain why reasonable accommodation was not available
5.6. As the respondent failed to attend the hearing, no such evidence has been presented to it and no legitimate reason established as to why Ms Kenny was refused the special treatment that she had, until 10 February 2005, received. It is unfortunate that a service provider who has had the benefit of engaging with a customer about their reasonable accommodation needs suddenly, and without any explanation, withdraws this treatment and creates a situation where the established customer is faced with a situation where it would be unduly difficult for her to avail of the service.
6. Decision
The complainant has established a prima facie case of discrimination on the ground of disability. In accordance with section 27(1)(a) I order the respondent to pay Ms Kenny €250 for the effects of the distress and unset caused; and
In accordance with section 27(1)(b) I make an order that Sufi’s Café ensures that all of its staff receive training on equality issues across the nine equality grounds and that particular care is taken in this training to ensure that all staff are informed of the service provider’s responsibilities in relation to accommodating diversity including the needs of customers with disabilities.
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Tara Coogan
Equality Officer
15 May 2008