Equal Status Acts, 2000-2008
Equality Officer Decision No. DEC-S2008-073
Mr. Gabriel Moloney
(Represented by Garrett O’Neill, Solicitor,
The Equality Authority)
-v-
Park House Hotel
(Represented by Deirdre Gearty, Solicitor,
F.J. Gearty & Co., Solicitors)
Keywords
Equal Status Acts 2000 to 2008 – Direct discrimination, section 3(1) - Discrimination on ground of disability, section 3(2)(g) – Reasonable accommodation, section 4(1) – supply of goods and services, section 5(1) – visually impaired – guide dog – hotel accommodation.
1. Delegation under the Equal Status Acts 2000 to 2008
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On the 26th June 2008 in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts 2000 to 2004, the Director delegated the case to me, James Kelly, 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, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 19th September, 2008.
2. Summary of claim
2.1 This claim concerns a complaint by Mr. Gabriel Moloney that he was discriminated against by the respondent on the disability ground in terms of section 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts 2000 to 2004 in not being provided with a service, which is generally available to the public contrary to section 5(1) of the Equal Status Acts 2000 to 2004. The claim was notified to the respondent by letter on the 28th September, 2006. This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004 on the 1st February, 2007.
3. Complainant’s Case
3.1 Mr. Moloney, the complainant, is visually impaired and is a guide dog owner. He and his brother attended a wedding in Donegal on the weekend of the 4th – 6th of August, 2006 and on their return to home on the Sunday evening Mr. Moloney’s brother’s car experienced mechanical difficulties and broke down in Edgeworthstown, Co. Longford, between 11 – 11:30pm. They were accompanied by Mr. Moloney’s guide dog on that evening. After enquiring locally about the possibility of getting accommodation in the vicinity; they were directed to the Park House Hotel.
3.2 Ms. A was acting manager on duty in the hotel on the night of the 6 August 2006, and after checking room availability she was able to offer Mr. Moloney and his brother the last available room in the hotel for that night. Mr. Moloney states that as a matter of courtesy he informed her that he would be accompanied by his guide dog. Ms. A said that the hotel had a “no dogs allowed” policy and the dog would not be allowed to accompany him on the premises.
3.3 Mr. Moloney and his brother were quite taken back by the refusal to allow the guide dog accompany them and tried to discuss the issue with Ms. A. Mr. Moloney produced documentation which would identify him as a registered member of the National Council for the Blind and he explained that he and his guide dog comply with the guidelines issued by the Irish Guide Dog Association in that he carries special bedding for the dog for stays away from home and that the dog has been specially trained so as not to cause a nuisance or inconvenience to the hotel or its patrons. However, after discussing the issues with Ms. A, she held her position that the hotel had a “no dogs allowed” policy and the guide dog would not be allowed to stay in the hotel. Mr. Moloney felt he had no choice but to leave the hotel and seek alternative accommodation elsewhere, as the offer of the room was not available for the complainant’s guide dog and no alternative arrangement was discussed as an option.
3.4 Mr. Moloney states that they were very upset and highly inconvenienced, in light of the extremely difficult circumstances they found themselves in, insofar as their car had broken down in a small town late on a Sunday night, with the added difficulty and stress of trying to secure accommodation so late on in the night.
4. Respondent’s Case
4.1 The respondent accepts that the treatment accorded to Mr. Moloney and his brother on the night of the 6 August, 2006 was wrong and is regrettable. The manager on duty on the night made an error of judgement and it is now obvious that she was unaware that guide dogs were an exception to the hotel’s “no dogs allowed” policy.
4.2 The respondent apologises for the upset and inconvenience caused and had offered the complainant the opportunity to come and stay in the hotel with a guest free of charge whenever he is passing that way again. The respondent stated that they do not wish to offer any rebuttal of the facts presented.
5. Conclusions of the Equality Officer
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
5.2 In the present case before me for consideration, the complainant is visually impaired and I am satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts 2000 to 2008.
5.3 It is accepted by both parties that the complainant visited the respondent’s hotel on the night of the 6 August, 2006 and I am satisfied that the complainant and his brother, were both initially offered accommodation for the night. It is also accepted by both parties that the complainant was ultimately refused accommodation on the basis that his accompanying guide dog was not permitted on the premises with him. It is also not in dispute that Ms. A was aware that the dog accompanying the complainant was a guide dog. The respondent also concedes that the manager on the night made an error to turn Mr. Moloney away. Accordingly, I find that the complainant was not directly refused access because of a disability but rather because of his requirement to be accompanied on the premises by his guide dog.
5.4 In the case of disability in considering whether discrimination occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“(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.”
5.5. In relation to the above provision, I take note of a previous decision of the Equality Tribunal in the case of Mr. John Maughan –v- The Glimmer Man Ltd DEC-S2001-020, where the Equality Officer considered similar aspects as the case before me and reached the following conclusions;
[9.7]“In reaching my conclusions on this ground I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent’s premises they would not have been served in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) “discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations”. This principle is supported by the ruling in the US Supreme Court case of Jenness v Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O’Brien v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38).
…I consider that allowing a guide dog into a pub with a visually impaired person is special treatment without which it would be impossible or unduly difficult for the visually impaired person to avail of the service. The respondent did not raise the question of nominal cost and no evidence was presented to suggest that allowing a guide dog into a pub would involve expenditure for the respondent.
[9.8] I consider that by showing the card to the staff the complainant was essentially trying to make them aware of his special circumstances and the way in which his need to bring his guide dog into the pub differed from the needs of non visually impaired people with other types of dogs. I am satisfied that once the staff read the card which the complainant showed them from Irish Guide Dogs for the Blind that they effectively decided to ignore the usual no dogs policy and provided special treatment to the complainant in line with section 4(1) of the Act.
5.6 I am satisfied that the manager when confronted with the possibility of having the guide dog accompany the complainant onto the premises relied on the only policy she was aware of, namely, that no pets or dogs were allowed in the hotel. She failed to adequately consider the circumstances that presented to her on that evening, namely, that this was not just a pet, it was a guide dog; the guide dog had a specific purpose and important function, its owner was visually impaired and requires the use of the dog to find his way around. Therefore, the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise. I note from the evidence adduced at the hearing that these points were presented to the manager by the complainant on that night. Mr. Moloney also advised her that the guide dog was specifically trained and that he was equipped with the standard bedding kit so as not to cause any inconvenience to the hotel or its patrons. Once the complainant produced evidence of his disability and outlined his case, I find it hard to understand how a member of staff who had worked with the hotel in a managerial capacity for up to five years failed to at least check if the implementation of the “no dogs allowed” policy could be somewhat inappropriate and discriminatory in such circumstances, and if it could be in some way compromised to meet the needs of the complainant.
5.7 I find that the respondent, by refusing to allow the guide dog to accompany the complainant onto the hotel premises, failed to provide the complainant with special treatment or facilities to accommodate the needs of a disabled person with a visual impairment contrary to Section 4(1) of the Equal Status Acts. As referred to above, Section 4(2) of the Acts sets out the question as to the cost of providing special treatment or facilities to accommodate his needs of a disabled person. As no evidence was presented to me of costs that would incur on the respondent to facilitate the complainant to bring his guide dog onto the hotel premises, I am satisfied that no such costs would occur and that the issue of nominal cost does not arise.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts 2000 to 2008, I conclude this investigation and issue the following decision. I find that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Sections 4 of the Acts. I also find that the respondent did not attempt to rebut the allegation of discrimination.
6.2 In accordance with Section 27(a) of the Equal Status Acts, I award the complainant the sum of €3500 in compensation for the inconvenience caused and for the upset and humiliation experienced. In reaching my decision in relation to the calculation of the redress to be awarded, I have taken into account the respondent’s immediate admission of a transgression under the Equal Status legislation, the offer of an apology and an open offer to the complainant to a free night’s accommodation in the future.
6.3 Furthermore, in accordance with Section 27(b) of the Acts, I order the respondent to produce a written document outlining the hotel’s policy in relation to the treatment of people with disabilities. This document should form part of immediate training for all staff working in the hotel at present and should form part of all induction training for new staff joining the hotel in the future. A copy of this document should be available at the reception area of the hotel as an information guide for staff dealing with the public to ensure that further possible instances, such as this, are avoided.
James Kelly
Equality Officer
The Equality Tribunal
22nd October 2008