DEC-S2008-057 - Full Case Report

Equal Status Acts, 2000-2008

Equality Officer Decision DEC-S2008-057

Anne Harrington

-v-

The Talbot Hotel

(Represented by Ms. Sinead Gleeson, B.L. on the

instructions of MJ O’Connor Solicitors)

Keywords

Equal Status Acts, 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability  Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)

Delegation under the Equal Status Acts, 2000 to 2004

This complaint was referred to the Director of the Equality Tribunal on 2^nd August, 2005 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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, 2000-2004 on which date my investigation commenced.  As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 5^th September, 2008.

1.            Dispute

1.1              The complainant maintains that she was discriminated against on the grounds of her disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2004 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004 in that the respondent failed to do all that was reasonable to accommodate her needs, as a person with a disability, by providing special facilities and as a result of which she was unable to use the shower/bath facilities in the room that was allocated to her and the swimming pool facilities during the course of her stay at the respondent’s hotel.

2.            Summary of the Complainant’s Case

2.1              The complainant, who is a wheelchair user, had previously stayed at the respondent’s hotel on a number of occasions prior to the alleged incident of discrimination in February, 2005 as she is a member of a group of people who attend a bridge congress which had been held in the hotel on several occasions prior to this date.  The respondent was made aware of the nature of the complainant’s disability prior to February, 2005 and on each of the previous occasions she has made a reservation to stay at the hotel she has informed the respondent of her requirement for a wheelchair accessible room.  The complainant has experienced difficulties during her previous visits to the respondent’s hotel in terms of the accessibility to the shower/bathing facilities in the rooms which she has been allocated and she has complained to the respondent about these difficulties on several occasions. 

2.2              The complainant made a reservation in October, 2004 to stay at the respondent’s hotel from 4^th to 6^th February, 2005, however she was unable to use the shower facilities in the room that was allocated to her throughout the duration of her stay at this time.  The complainant cannot use a shower unless she is seated and the shower facilities in this room were not equipped with grab rails on either wall and there was no seat or flip chair to sit on in the shower.  The complainant made a complaint to the respondent regarding the deficiencies in the shower facilities and the junior manager that responded to this complaint suggested, as an alternative, that she avail of the shower facilities in another room which was located in the old part of the building.  However, the bathing facilities in this room were also inadequate for the complainant’s requirements as the room was not properly adapted for a wheelchair user and the bath contained a battery operated seating device similar to which she had experienced difficulties in operating on a previous visit to the hotel.  The complainant was unable to use the bathing facilities in this room as she considered them to be a health hazard.  The complainant was unable to avail of bath or shower facilities for the duration of her stay at the respondent’s hotel in February, 2005 and she claims that the facilities made available to her, as a person with a disability, were totally unsatisfactory especially in light of the fact that the hotel had been recently renovated prior to her visit in 2005.    

2.3              The complainant is also a keen swimmer but she was unable to use the swimming pool in the respondent’s leisure centre during her visit in February, 2005 as the pool was not equipped with a hoist to facilitate her access to it.  The complainant presumed that the swimming pool would be equipped with a hoist following the renovations that were carried out in 2003/04 but was informed by the respondent’s reception staff on arrival that this was not the case.  The complainant subsequently stayed at the respondent’s hotel in 2006 and 2007 and on each of these occasions she was allocated a room in which she had access and was able to use the shower facilities contained within.  The complainant was unable to use the swimming pool on these subsequent visits due to the absence of a hoist.  The complainant claims that she was discriminated against by the respondent as it failed to provide her, as a person with a disability, with adequate facilities during the course of her stay at the hotel in February, 2005.

3.            Summary of the Respondent’s Case

3.1              The respondent’s hotel is fully accessible to wheelchair users and it has hosted events such as the National Spina Bifida Conference on a number of occasions in the past.  The hotel contained a total of 116 bedrooms in February, 2005 of which 2 bedrooms were fully accessible to wheelchair users and a further 3 bedrooms were wheelchair friendly.  A wheelchair user can use the fully accessible rooms unaided whereas a person using the wheelchair friendly room requires assistance in order to use the facilities contained therein. The respondent operates a policy of allocating the same room to patrons on subsequent visits provided that there had not been any previous complaints about the room.  The complainant had stayed at the hotel on a number of occasions prior to February, 2005 and the respondent did not have any record of her making any complaints about the facilities that were available to her during these visits.  In keeping with its established room allocation policy the complainant was allocated a wheelchair friendly room (Room 104) during her stay in February, 2005 as the guest history indicated that she had previously stayed in this room in February, 2004.  However, the respondent accepted that the complainant did not actually stay in this room in February, 2004 as she had cancelled her reservation prior to her planned visit. 

3.2              The respondent accepts that the complainant made a complaint regarding the accessibility of the shower facilities in the room that had been allocated to her during the course of her stay at the hotel in February, 2005.  However, upon receipt of this complaint and in order to address the complainant’s concerns, she was afforded full access (free of charge) to the bathing facilities in another room for the duration of her stay during this time.  The respondent claims that the shower facilities in this alternate room were sufficient to cater for the complainant’s requirements and it submits that, in the circumstances, it took all reasonable measures to facilitate the complainant.  The respondent also claims that its leisure facilities, including its swimming pool, are fully compliant with all health and safety requirements and that these facilities have been certified as fully wheelchair accessible by the appropriate certification body (The Irish Leisure and Amenity Management Association).  The respondent accepts that the swimming pool is not equipped with a hoist, however it submitted that this is not a necessary requirement in order to comply with its obligations.  The respondent claims that it regularly caters for persons with disabilities in its swimming pool and that all of it’s staff are fully trained to deal with disabled persons in terms of facilitating their access to this facility.  The respondent claims that the complainant did not make any complaint about the swimming pool facilities during the course of her stay in February, 2005 and it submitted that measures to accommodate her access to the pool would have been put in place if she had communicated her requirement for a hoist at that particular juncture.  The respondent denies that it discriminated against the complainant on the grounds of her disability and submits that it did all that was reasonable to accommodate her needs by providing special treatment and facilities. 

4.            Conclusions of the Equality Officer

4.1              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, both written and oral, made to me by the parties to the case. 

4.2              In the present case, the complainant is a wheelchair user and I am therefore satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts.  It is accepted by both parties that the complainant was afforded a room in the respondent’s hotel in February, 2005 and it is therefore accepted that there was no refusal of service to the complainant in the present case.  The issue that is in dispute between the parties is whether or not the facilities i.e. the bathroom/shower facilities and swimming pool facilities that were made available to the complainant during the course of her stay at the hotel were suitable to accommodate her needs as a person with a disability.  In the case of disability in considering whether discrimination occurred, 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:

“4.—(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 …”.

4.3              The question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities.  This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate her needs as a wheelchair user in terms of providing access to the shower/bathroom facilities in her allocated bedroom and to the swimming pool facilities during the course of her stay at the hotel, and that it did not provide her with special facilities to meet those needs.

Access to shower/bathing facilities in the bathroom

4.4              In considering this issue, I note the undisputed evidence that the complainant had stayed at the respondent’s hotel on a number of occasions prior to her visit in February, 2005.  The complainant claims that she had also experienced difficulties in terms of accessing the shower facilities in the rooms that had been allocated to her during these previous visits.  She made specific reference to difficulties that she had experienced in relation to a battery operated lifting device (for facilitating access to the bath) which had malfunctioned and had left her stranded in the bath on a previous visit to the hotel.  I also note that the respondent claims that it does not have any record of complaints being made by the complainant during her previous visits to the hotel. The respondent claims that in keeping with its established room allocation policy the complainant was allocated the same room (Room 104) in February, 2005 as had been allocated to her the previous year as she had not made any complaint about the facilities contained within this room.  However, it was accepted by the respondent during the course of the hearing that the complainant had cancelled her reservation prior to her planned stay at the hotel in February, 2004 and therefore, I am satisfied that she did not actually stay in this room (Room 104) on a previous occasion prior to her visit in February, 2005.  I find the complainant’s evidence (which was corroborated by her witness, Ms. Valkenburg) regarding the previous difficulties to be credible and therefore, I am satisfied that she did, in fact, experience difficulties in using the shower facilities during previous visits to the respondent’s hotel.  I also note that the complainant’s reservation for accommodation at the respondent’s hotel in February, 2005 was made the previous October (i.e. October, 2004) and it was not disputed by the respondent that it was fully aware prior to that juncture that she required a wheelchair accessible room in order to facilitate her stay at the hotel.  Furthermore, it is clear from the noting contained on the printout of the respondent’s guest history, which was submitted in evidence, that the complainant was a wheelchair user and that she required a “wheelchair room” (the noting on this document was dated in 2003).  I am therefore satisfied that the respondent was fully aware of the complainant’s disability and that she required the provision of special facilities i.e. a wheelchair accessible room in order to accommodate her stay at the hotel in February, 2005.    

4.5              It is accepted that the respondent’s hotel contained two rooms that were fully accessible to wheelchair users and a further three wheelchair friendly rooms in February, 2005.  The complainant was allocated one of the wheelchair friendly rooms (Room 104) and upon making a complaint about the inaccessibility of the shower facilities she was given access to the bathroom/shower facilities in another room for the duration of her stay.  The complainant claims that she was not provided with a suitably equipped bathroom and that she was unable to use the shower/bath facilities in either the room that was allocated to her, or the alternate room which the respondent made available, during the course of her stay at the hotel in February, 2005.  She claims that the shower/bath facilities were unsafe and hazardous in both of these rooms and were not equipped with grab rails on either wall or that there was no seat or flip chair to sit on in the shower.  The complainant also claims that access to the bathing facilities in the alternate room that she was allocated in February, 2005 would have necessitated using a similar type of battery operated lifting device and given her previous experience she did not consider this equipment to be either safe or appropriate to accommodate her needs in the circumstances.  The respondent accepts that the complainant made a complaint about the shower facilities in the room (Room 104) that had been allocated to her in February, 2005, however it claims that in order to address the complainant’s concerns she was afforded full access to the bathroom facilities in another wheelchair accessible room for the duration of her stay during this time.  The respondent claims that the provision of this alternate room constituted the provision of reasonable accommodation to the complainant within the meaning of Section 4 of the Acts. 

4.6              Having regard to the totality of the evidence adduced, I am satisfied that the complainant was, in fact, unable to access the shower facilities in either of the rooms that were made available to her during the course of her stay at the respondent’s hotel in February, 2005, and I am satisfied that the bath/shower facilities in these rooms were not adequate to accommodate her needs as a person with a disability.  I have also noted the complainant’s evidence that she was obliged to adhere to a strict hygiene routine as a result of a specific medical condition from which she suffers and I accept that the non-availability of adequate shower/bathing facilities was a cause of distress to her for the duration of her stay at the hotel.  Given that the respondent was fully aware the complainant was a wheelchair user and required special facilities; that she had been a regular patron of the hotel in the past and that her reservation was made some three months prior to her planned stay at the hotel in February, 2005, I am of the view that the provision of special treatment or facilities in the context of Section 4 of the Act would have placed an obligation on the respondent to have allocated the complainant one of the rooms that was fully accessible to wheelchair users in order to facilitate her stay at the hotel.  The respondent did not adduce any evidence whatsoever to suggest that either of these rooms were already pre-booked when the complainant made her reservation or that it would not have been possible to allocate one of them to her for the duration of her stay at the hotel in February, 2005.  I note that the complainant was allocated one of these rooms on each of the occasions that she stayed at the respondent’s hotel in 2006 and 2007 and she confirmed in evidence that the shower facilities in these rooms were adequate to meet her requirements as a person with a disability.  I accept that the respondent attempted to deal with the situation when the complainant brought these difficulties to the attention of a junior manager upon allocation of her room in February, 2005 however, I find that neither the original room nor the alternate room that she was allocated was adequately equipped to accommodate her needs, as a person with a disability.  I therefore find that the respondent failed to do all that was reasonable to accommodate the needs of the complainant, as a person with a disability, in accordance with its obligation under Section 4 of the Equal Status Acts in terms of the shower/bath facilities that were made available to her during her stay at the hotel in February, 2005.

4.7              Section 4 of the Acts also provides that where the provision of special treatment or facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable.  In considering the issue of nominal cost, I note that the respondent’s hotel contained two bedrooms that were fully accessible to wheelchair users at the time of the alleged incident of discrimination in February, 2005.  I also note that the complainant, having been allocated one of these rooms on subsequent visits to the respondent’s hotel in 2006 and 2007, found the bath/shower facilities contained within these rooms adequate to meet her requirements as a person with a disability.  I therefore find that the issue of nominal cost in terms of the provision of the special facilities which the complainant required was not a factor in this case as these facilities were already available to the respondent in February, 2005. 

Swimming pool facilities

4.8              The complainant has also claimed that the swimming pool in the respondent’s hotel was not equipped with a hoist and therefore, she was unable to use this facility during the course of her stay at the hotel.  The complainant claims that she presumed the swimming pool would have been equipped with a hoist following the extensive renovations that were carried out to the hotel in 2003/2004.  The respondent claims that its leisure facilities, including its swimming pool, are fully compliant with all health and safety requirements and that these facilities have been certified as fully wheelchair accessible by the appropriate certification body in this regard.  The respondent accepts that the swimming pool is not equipped with a hoist, however it submitted that this is not a necessary requirement in order to comply with its obligations. 

4.9              In considering this issue, I note that the respondent has stated that the complainant did not make any complaint about the swimming pool facilities during the course of her stay in February, 2005 and it submitted that measures to accommodate her access to the pool would have been put in place if she had communicated her requirement for a hoist at that particular juncture.  Based on the evidence presented, I am satisfied that the leisure facilities in the respondent’s hotel, including the swimming pool, were fully compliant with all requirements in terms of health and safety and accessibility for persons with disabilities and that the respondent’s staff working in the leisure facilities were fully trained to deal with disabled persons in terms of facilitating their access to this facility.  I am satisfied that the complainant did not request the respondent to put any special measures in place in order to facilitate her access to the swimming pool.  Based on the evidence presented, I am satisfied that had such a request been made the respondent’s staff were fully competent to deal with any such request and that all reasonable efforts would have been taken to facilitate the complainant in this regard.   In the circumstances, I am satisfied that the respondent did not fail in its obligation to provide special facilities or measures for the complainant in accordance with the provisions of Section 4 of the Acts in terms of her access to its swimming pool during the course of her stay at the hotel in February, 2005. 

5.            Decision

5.1              In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, 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 Section 4 of the Equal Status Acts, 2000 to 2004 in terms of the shower/bathroom facilities that were made available to her during the course of her visit to the hotel in February, 2005. 

5.2              In considering the level of redress that I should award in this case, I have taken into account the efforts that were made by the respondent to provide reasonable accommodation for the complainant during the course of her stay at it’s hotel in February, 2005, albeit I have found that the measures taken were insufficient to discharge the obligation that was incumbent upon the respondent in terms of Section 4 of the Equal Status Acts.  I have also taken into consideration that the complainant subsequently stayed at the respondent’s hotel in 2006 and 2007 and that on each of these occasions she was provided with special facilities in order to accommodate her requirements as a person with a disability.  In accordance with section 27(a) of the Acts, I award the complainant the sum of €500 in compensation for the upset and humiliation experienced.

Enda Murphy

Equality Officer

25^th September, 2008