THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 0042
PARTIES
Damian Nolan
-v-
Bettystown Court Hotel
File Reference: ES/2007/0033
Date of Issue: 30 June 2009
Damian Nolan
-V-
Bettystown Court Hotel
Key words
Equal Status Acts 2000-2004 - Section 3(2)(g), disability ground –discrimination – reasonable accommodation - wheelchair user - Hotel – suitable facilities - handrail – injuries – failure to provide reasonable accommodation – Part M, Building Regulations – National Disability Authority – rely on assurance – report from architects – reasonably within knowledge – no prima facie case
1. Delegation under the relevant legislation
1.1. On 22nd March, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director 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 Acts. This delegation took place on 17th October, 2008, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Tuesday, 5th May, 2009. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent 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 Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, in that the respondent failed to provide him with reasonable accommodation during his stay at its premises on 23rd September, 2006.
3. Summary of the Complainant’s case
3.1. The complainant has Multiple Sclerosis and is a wheelchair user. He stated that he and his girlfriend, Ms A, checked into the Bettystown Court Hotel on 22nd September, 2006. He said that he had arrived there from another hotel which did not have suitable facilities for him, having been advised that the respondent would have a suitably wheelchair accessible room available to him. On the following morning, he said that he went to use the toilet in his room before going to breakfast. He stated that, as he stood from his wheelchair and took hold of the folding handrail to the side of the toilet, the handrail came away from the wall. This resulted in him falling backwards and to the right, towards his wheelchair, causing him to sustain injuries. He said that Ms A then found and spoke with the Manager, Mr B, who arrived into the room and asked how he could help. After consulting with the hotel’s on-call doctor, Mr B called an ambulance for the complainant. The ambulance arrived and brought him to the nearest hospital.
3.2. The complainant submitted that the en-suite bathroom provided was not suitable for a wheelchair user as it was unsafe, as evidenced by the injuries he sustained as a result of the faulty handrail. Consequently, he argued that the respondent did not provide him with suitable handrails and/or supports in the bathroom that would have enabled him as a wheelchair user to use the bathroom safely and on equal terms with anyone who was not disabled, and said that the special facilities provided to him by the respondent did not comply with Part M of the Building Regulations, to which the respondent, as a new hotel, was subject. The complainant also referred to the document “Buildings for Everyone”, provided by the National Disability Authority, in advancing his argument. This argument was, in short, thatthe respondent discriminated against him in the context that it failed to provide him with reasonable accommodation, as it did not provide safe wheelchair-friendly bathroom facilities.
3.3. The complainant submitted that the injuries he sustained as a result of the respondent’s failure to comply with the Equal Status Acts (hereinafter referred to as “the Acts”) caused him not to trust hotels and service providers who claim to have facilities that are suitable for people with wheelchairs. Finally, he submitted that he had two choices about how he should take action against the respondent: he said he chose the Acts over a personal injuries action as he did not wish to be accused of being driven by wealth or the accumulation of substance.
4. Summary of the Respondent’s case
4.1. The respondent essentially agreed with the complainant’s outline of the facts relating to the incident in question.It added that it immediately requested the builders of the hotel, who had installed the handrail, to look into the cause of the incident and to carry out a full inspection of all special facilities in the bedrooms of the hotel. As a result, the respondent said that the relevant problem was identified and rectified, as were any further similar problems that might arise. It said that the hotel had been in operation for three months at the time of the incident in question and that it had 120 bedrooms, six of which are suitable for use by wheelchair users. From that perspective, it noted that the complainant had come from a separate hotel which did not have suitable facilities for him. It said that its wheelchair accessible rooms had been used on 34 occasions prior to the complainant’s stay without difficulty and had been certified by the respondent’s architect as being fully compliant with the Building Regulations. It submitted that it was entitled to rely on that certificate in relation to the safety of the handrail in question and that, consequently, it did not discriminate against the respondent, nor did it fail to provide him with reasonable accommodation, as it was not reasonably within its knowledge that there was a defective handrail. In any event, it submitted that there were no grounds for an allegation of discrimination as the matter was clearly the proper subject of a personal injuries action.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts, 2000 to 2004 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant’s case which I must consider. Firstly, whether the complainant has been discriminated against because of his disability, in this case as defined by Section 3(1)(a) and 3(2)(g) of the Acts and within the meaning of Section 5(1) of the Acts. Secondly, I must 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.” If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would “give rise to a cost, other than a nominal cost” to the respondent.
5.3. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. Both parties made regular reference to Part M of the Building Regulations. However, as the Equality Officer stated in Hallinan –v- Mayo Education Board,[1]“it is not for this Tribunal to examine a service provider’s compliance with building regulations”. The issue here is whether the respondent met its obligations under the Acts, not whether it complied with Part M of the Building Regulations. Although the complainant has made an allegation of less favourable treatment on the disability ground, it is clear that there was no such treatment. Indeed, this was ultimately acknowledged by the complainant at the hearing when he submitted that the alleged discrimination was purely in the context of a failure to provide reasonable accommodation.
5.4. Leaving aside, for a moment, the incident of the handrail coming away from the wall, there is no doubt that the bathroom in question was fully accessible by the complainant and clearly met his needs. The substance of the complainant’s allegation, then, is that the respondent failed in its obligations by allowing the handrail to come away from the wall, so that the special facilities made available to him were not suitable as they did not operate effectively. In considering this submission, and in light of all the circumstances of the present complaint, it is critical to note that the respondent, in order to ensure its compliance with the Acts, had only to do all that was reasonable in providing suitable facilities to the complainant. I consider that it was perfectly reasonable for the respondent to rely on the written assurances regarding the safety of the hotel in general, including the special facilities in question, that it received from its architects when the building was complete. It was therefore perfectly entitled to believe that it had met its obligations under the Acts in providing the relevant special facilities, including the handrail in question. I would add that the swiftness with which the respondent acted in rectifying the relevant problem, and the actions of Mr B in assisting the complainant, were also indicative of the respondent’s commitment to ensuring it complied with the provisions of the Acts, in particular the provisions relating to reasonable accommodation.
5.5. In short, I accept the respondent’s submission that it was not reasonably within its knowledge that there was a defective handrail. The unfortunate accident that befell the complainant in the context of this complaint was therefore not the result of any failure on the part of the respondent to provide reasonable accommodation to him. I therefore find that the complainant has failed to establish a prima facie case in that regard.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
6.2. I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has failed to establish facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to him. The complainant has therefore failed to establish a prima facie case of discrimination on the part of the respondent.
6.3. Accordingly, the complainant’s case fails.
_____________
Gary O’Doherty
Equality Officer
30 June 2009