DEC-S2009-005 - Full Case Report

Equal Status Act 2000 to 2008

Equality Officer Decision

DEC-S2009-005

Complainant

 (with Murray Smith BL as advocate)

-V-

Marks and Spencer plc

(represented by David Whelan BL instructed by Eugene F. Collins, Solicitors)

File  ref:           ES/2006/0157

Date of Issue:  22nd January, 2009

Keywords

Equal Status Acts 2000 to 2008 – Discrimination, section 3(1)(a) – Disability ground, section 3(2)(d) – Disposal of goods and provision of services, section 5(1) –  special treatment or facilities , section 4(1) – Nominal cost, section 4(2)

1. Delegation under the Equal Status Acts 2000 to 2008

1.1. A complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 28 December 2006. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, 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. An investigation in accordance with section 25 of the Acts commenced on 29 July 2008. An oral hearing was held on 11 November 2008.

2. Dispute

2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground made by the complainant. The complainant maintains that Marks and Spencer plc (“the respondent”) treated her contrary to sections 3(1), 4(1) and 5(1) of the Acts on the ground of her disability on 10 October 2006 and thereafter. The respondent was notified on 26 October 2006.

3. Case for the Complainants

3.1. The complainant, who is partially sighted, has been a regular customer at the respondent’s stores. She submitted to the hearing that during her regular visits to a named store, she noted that the lighting used in the store was altered in such a way that she was having difficulties with her shopping. She stated that she initially thought that the previous lighting conditions would be restored, but after she spoke with the branch’s named store manager she discovered that the new store layout, including the lighting, was there to stay.

3.2. The complainant maintains that the new lighting levels introduced in the respondent’s store are inappropriate to her needs. She stated that the respondent’s current use of rectangular fluorescent lighting, that is accompanied by circular spotlights, creates a very patchy illumination that leaves some products inadequately lit while others are highlighted. This, coupled with the black grille shelving, for her, results in eye-strain and consequent headaches. The complainant also stated that the new floor was also adding to the glare.

3.3. The complainant stated that she made her concerns about the changes in the lighting and store design known to the named manager. While the named manager informed her that he was unable to do anything about the levels of light, the complainant stated, he immediately offered assistance to the complainant. This offer of assistance, the complainant stated, was to be the services of a staff member who would shop with the complainant, assisting where needed. While the complainant stated that she appreciated this courtesy, she preferred to shop unassisted and told the named manager that she would frequent another branch that had not gone through a similar makeover. However, the complainant stated that she soon became aware that the other named branch was also in immediate danger of being renovated, meaning that the lighting would be altered in such a way as to render the shop unsuitable for the complainant.

3.4. The complainant also maintained that she wrote to respondent a number of times to alert them to the difficulties that the new store designs were causing her but that she did not receive timely replies.  

3.5. The complainant also maintained that while the respondent has been in contact with her and with the National Council for the Blind in Ireland (NCBI) in relation to the issues raised with the complainant, there has only been one meeting involving all the parties in March 2007. While the complainant concedes that the respondent had managed to remove the “spotlight” effect from the illumination, she stated that the illumination was definitely still inadequate for her. She also submitted that the lighting would not be suitable for older people and while the lighting makes shopping very uncomfortable for her, it is also hazardous to her as she believes that there is an increased danger of accidents and theft of her personal property. As a result, the complainant wanted to make it clear to the Tribunal that the respondent is not, contrary to the respondent’s letter dated 23 April 2007 and addressed to the Equality Tribunal, working directly with the complainant to solve the issues identified.   

4. Case for the respondent

4.1. The respondent did not, in the main, dispute the facts as presented by the complainant. It submitted that it had responded to the complaints received from the complainant on 13 November 2006. The respondent granted that its response to the complainant’s initial letter should have been quicker. The respondent stated that it has since instituted a new improved complaints system where individual complaints are afforded a reference number and are tracked for early solution.

4.2. The respondent submitted that the complainant was not discriminated against within the meaning of section 3(1) on 10 October 2006 as she was not treated any less favourably than any other customer is, has been or would be treated on the basis of her visual impairment.

4.3. The respondent also submitted that there was no failure to by the respondent to do all that was reasonable at the time to accommodate the needs of the complainant by providing special treatment or facilities. It was submitted that an immediate offer of staff assistance was given to the complainant. The respondent further submitted that it would not have been possible to provide any additional special treatment or facilities on behalf of the respondent at the time this complaint was raised. It is submitted that the respondent could not alter the lighting in the store immediately to accommodate the special needs of the complainant. The respondent submitted that the efforts that it was prepared to put in place were “extensive efforts … to facilitate the complainant” in line with the Equality Tribunal decision Ms. Rita Kwiotek v. National University of Ireland [DEC-S2004-176].

4.4. Since this complaint was made, the respondent submitted, it has done all that is reasonable to accommodate the complainant. The respondent submitted that it has been in contact with the complainant and the NCBI in an attempt to better accommodate the complainant and other persons with visual impairments. To illustrate this, the respondent submitted that it has commissioned a lighting study and adjusted the lighting in its largest Irish store to better suit the complainant’s needs. It was further submitted that the respondent has organised a series of store visits with groups of people with disabilities with a view to collecting feedback in store layout and reviewed a range of changes to better accommodate a variety of consumers with visual impairments.

4.5. The respondent stated that this was the first complaint of this nature that they have ever had in either the UK or in Ireland. The respondent further stated that it was never its intention to exclude the complainant from any of its stores or to render her shopping experience more difficult by any of the alterations that have taken place in its stores. The respondent submitted that this case differs substantially from Mr. John Roche v. Alabaster Associates Ltd. t/a Madigans [DEC-S2002-086] and can thus be distinguished from it. Firstly, it is submitted that in the circumstances of this case there was no differential treatment accorded to the complainant than to other persons on the basis of her visual impairment. Secondly, the respondent submitted, there was no failure by the respondent to provide special treatment or facilities to 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 complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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 making this decision I have taken cognisance of both oral and written submissions made by the parties. It is agreed that the complainant is covered by the disability ground as defined in section 2(1) of the Acts.

5.3. I have not been presented with any evidence to suggest that the complainant was treated less favourably on the ground of her disability by the respondent on 10 October 2006 or at any subsequent time. 

5.4. In relation to the complaint of failing to provide special assistance or facilities, I find that when the complainant first brought the difficulties which the lighting arrangements were causing her to the attention of the respondent on 10 October 2006, the respondent immediately attempted to accommodate the complainant’s needs by offering the services of a member of staff to assist the complainant while she was shopping. This offer falls within the meaning of section 4(1) of the Acts and covers the obligation that service providers have in relation to reasonably providing special treatment or facilities. I accept that the respondent offered this assistance to the complainant in order to ensure that shopping would not become impossible or unduly difficult for the complainant.  The complainant by her own admission refused to avail of this offer. This means that she is not in a position to assess whether this offer of assistance would have improved her shopping experience to such a degree that it could no longer be described as “unduly difficult” or “impossible.” Therefore, the complainant is not in a position to assess whether the respondent had any further onus to provide any additional special treatment or facilities at the time this complaint.

5.5. I note that the complainant turned down this offer on the ground that she prefers to shop independently. I accept that the complainant has every right to turn down any assistance that she does not wish to obtain. This entitlement does not, however, render the respondent’s offer unsound. The respondent did offer what can be construed as “special treatment and facilities” and did, therefore, respond appropriately and reasonably to the obligation set out in section 4(1). I also accept the respondent’s submission that it was impossible for the respondent to alter the lighting then and there in response to issues raised by the complainant. 

5.6. In such a situation, where the complainant has refused for personal reasons to reject the special assistance offered, the issue of nominal cost as a defence does not arise. I have, however, taken note of the costs submitted by the respondent in relation to changing the flooring in one of its stores to reduce the glare. I note, purely as an obiter point, that while the cost submitted to this Tribunal in relation to the cost of the floor is significant, it might not, in different circumstances, be a defence exonerating the respondent from its obligation to address section 4(1) issues. Service providers must be cognisant of the fact that every nominal cost issue will be assessed depending very much on whether the requested special treatment and/or facility is a necessary and reasonable request from the complainant, the size of the organisation in question, its resources and whether and grants, etc are available. It is also important to note that in the circumstances of this particular complaint, it is clear from the complainant’s own statement, that altering the floor would not have been enough to make her shopping experience less difficult.

5.7. While it is not appropriate for me in this case to consider the nominal cost issue, it is worth noting that a provider of services and goods such as the respondent has an onus to ensure universal accessibility to everyone as far as practicable in its stores. This means that the respondent needs to be cognisant of best practice issues in relation to disability issues in particular and prepared to address individual demands as practicably as possible. I note in this case that the respondent commissioned a lighting study on the effects of its in-store lighting in response to the complaint and subsequently implemented changes in one of the disputed stores. I am also aware that the respondent has established disability consumer panels, consulted with disability groups and implemented some of the recommendations made by these parties. I also note that the respondent’s staff are trained to respond immediately to any consumer request on the shop floor. I am therefore satisfied, having considered all the evidence in relation to this complaint, that the respondent is very aware of its obligations under the Equal Status Acts and that it does take these duties seriously. 

6. Decision

6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:

6.2. The complainant has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 5(1) on the ground of her disability. The complainant has failed to establish a prima facie case for reasonable accommodation in accordance with section 4(1) of the Acts. Therefore, I find in favour of the respondent.

________________

Tara Coogan

Equality Officer

22 January 2009