The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Equal Status Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2009-064
Connolly
(Represented by Mr. Colm Whooley of Spinal Injury Ireland)
V.
Hughes and Hughes
(Represented by William Fry Solicitors)
File No. ES/2007/0069
Date of Issue: 9 September 2009
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1) - Disability ground, section 3(2)(g) - Reasonable accommodation, section 4(1) - Disposal of goods and provision of services, section 5(1)
1. Delegation under the Equal Status Acts
1.1. Mr. Mark Connolly referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 9 July 2007. 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 Act on 12 December 2008. A hearing was held on 25 June 2009. Final submission was received from the respondent on 22 July 2009.
2. Dispute
2.1. The dispute concerns a complaint by Mr. Mark Connolly ("the complainant") that he was treated less favourably in relation to the provision of goods and services on the ground of his disability contrary to sections 3 and 4 of the Equal Status Acts on 25 April 2007 by Hughes and Hughes ("the respondent"). The complainant submitted that he was unable to access a part of the respondent's store located in St. Stephen's Shopping Centre due to the fact that there was no wheelchair lift. The respondent was notified on 30 April 2007.
3. Case for the Complainant
3.1. The complainant, a wheelchair user, submits that he visited the respondent's remodelled store on 25 April 2007 with a view to leaf through books. Upon entering the store the complainant submitted that he discovered that the books that he wished to look at were located in a basement section of the store that was not accessible to him as a wheelchair user. The complainant submitted that he spoke with a member of staff to discuss the issue. He submitted that the member of staff showed him a cargo lift that was used to transport books to the area and told the complainant that it would not be suitable for transporting the complainant. The complainant submitted that the staff member offered to bring a selection of books to the complainant but that the complainant refused the offer as he prefers to browse books independently.
3.2. The complainant submitted that he has been and continues to be a customer in the respondent's accessible stores. He submitted that he was disappointed that a store that used to be fully accessible to him before the renovation work is no longer so.
3.3. The complainant accepts that it would appear correct that the platform lift could not be installed in the desired/ideal location due to the existing service pipes. The complainant submitted that it is inaccurate for the respondent to state that the lift could not be located in another location. The complainant further submitted that the reason why such a lift was not installed was because the respondent made a commercial decision not to install such a lift.
4. Case for the respondent
4.1. The respondent submitted that it had two stores in St. Stephen's Green Shopping Centre. It was submitted that after it became no longer commercially viable to pay two rents and two sets of staff costs, the respondent made a decision to terminate the lease of the store on the top floor and to merge the two stores into the one located on the ground floor. To allow for this to happen, the respondent submitted that in late 2006 a mezzanine was added to allow for additional floor space. It was submitted that by adding this additional 65 square meters to the shop, the respondent was able to avail of 1,500 square meters of additional floor space. It was submitted that the mezzanine was completed in January 2007.
4.2. It was submitted that building regulations do not require the installation of a passenger lift for an area less than 200 square meters. Despite this, the respondent submitted, it had looked at the possibility of installing a self-supporting or platform lift for wheelchair users. However, it was found that this was not possible due to the size of such lifts and due to the structural restrictions of the St. Stephen's Green Shopping Centre.
4.3. It was submitted that on 25 April 2007 the complainant entered the respondent's store on the ground floor and complained to the staff that he could not reach the mezzanine level. The respondent submitted that as is the practice of the respondent, a staff member offered to bring the complainant any books in which he was interested in to the ground floor where could at his leisure browse the books. The respondent submitted that the complainant refused this offer and asked to see the Store Manager. It was submitted that the Store Manager was not in the store at the time of the incident, but he was informed of the incident on his return. The respondent submitted that it is not in its interest to exclude any category of person from its stores.
4.4. The respondent submitted that it had replied to the complainant's notification form by letter on 25 May 2007.
4.5. The respondent submitted - in response to the complainant's claim that a platform lift was not installed for commercial reasons - that the reason why the lift was not installed in the location identified by the complainant was because the lift would dramatically affect the trade in that store and would thus damage the viability of the business. The respondent submitted that such a requirement exceeds the obligation set out in section 4(1) and would be unreasonable in relation to the affect on business of the store.
4.6. The respondent's representative submitted a number of cases, namely, DEC-S2005-093 and DEC-S2004-176 to support a nominal cost defence. Also, a number of cases were cited to highlight the procedural rule in relation to the burden of proof.
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 he can rely in asserting the he 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 my decision I have taken cognisance of both written and oral submissions. It is accepted that the complainant is a person with a disability within the meaning of section 2(1) of the acts and that because of this disability he did require special assistance and/or facilities in order to access a part of the respondent's store. It is clear that the complainant was not prevented from accessing most of the respondent store.
5.3. The facts of this case are not in dispute. It is clear that the complainant cannot, because of his disability, visit a section of the respondent's store. It is also clear that the complainant brought this fact to the respondent's attention by approaching the store staff and by requesting to speak to a manager. It is also accepted that the respondent's representative did offer to bring the complainant a selection of books of his choosing to an area that was accessible to the complainant. The complainant submitted that he refused this offer as he felt that he should be able to browse books like anybody else. The question that needs to be addressed here is whether such an offer can be construed as special assistance or facilities within the meaning of section 4(1) of the acts.
5.4. I note that the complainant turned down this offer on the ground that he prefers to shop independently. I accept that the complainant has every right to turn down any assistance that he does not wish to obtain. This entitlement does not, however, render the respondent's offer unsound. I am satisfied that 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) of the acts. I note that Hunt J. at page 85 of the unreported Circuit Court case of Minister for Education and Science v. Hollingsworth and Cahill (19 October 2007) interprets the acts and states that different treatment is not synonymous with "less favourable treatment". Applying this statutory interpretation it is clear that, in the circumstances of this case, despite the fact that the complainant was offered what could be construed as different treatment, that is, that the special assistance or facilities offered a different degree of accessibility to the complainant than to a person who does not have a disability/with a different disability does not constitute less favourable treatment within the meaning of the acts. It is clear that should the complainant have accepted the offer to have the books brought to him he would have been able to avail of the service in a manner that could not be construed as "impossible" or "unduly difficult".
5.5. I also accept the respondent's submission that it was impossible for the respondent to provide an accessible lift then and there in response to issues raised by the complainant. In other words, the respondent's representative did all they could in the circumstances to enable the complainant to avail of the service. I am also mindful, based on the evidence presented to me, that the respondent does takes it responsibilities under section 4(1) seriously. It is clear from the evidence presented to me that the staff in the store in question had a planned approach in relation to providing a service for mobility restricted customers. I was also presented with compelling evidence to suggest that a design team had looked at all solutions (bearing in mind the purpose of the space) concerning the available space and that some structural realities imposed by the host building (the shop is part of a shopping centre) prevented a passenger lift being installed in that part of the store. I note that the respondent submitted that the current lift for transporting goods cost a similar amount as a passenger lift would have cost to the respondent. This fact was not disputed by the complainant. It was also submitted that the respondent's other stores are accessible.
5.6. It is clear that the available lift was not suitable for transporting human beings safely. It is equally clear that the complainant had no means of getting to the books that he stated he wished to look at. Therefore, based on the facts of the case, it is clear that the only option available to the respondent in assisting the complainant to avail of the service then and there was to offer to bring the goods that were not accessible to the complainant to him. I note that the facts of this case are similar to those set out in DEC-S2009-005. This case involved a complaint of failing to provide special assistance or facilities to a complainant who had difficulties with the lighting arrangements of a store (after refurbishment). Here the Tribunal found that when the complainant first brought the difficulties which the new lighting arrangements were causing her to the attention of the respondent, 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. The Tribunal accepted that that the respondent offered this assistance to the complainant in order to ensure that shopping would not be impossible or unduly difficult for the complainant. In this case, it was accepted that the complainant, by her own admission, refused to avail of this offer. This, the Tribunal found, meant that she was 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, because of this refusal to avail of the special offer, the complainant was found not to be in a position to assess whether the respondent had any further onus to provide any additional special treatment or facilities at the time of this complaint. I find that the facts of this case give rise to a similar interpretation and see no reason why the cases should be distinguished from one another.
5.7. Further, the complainant argued that the reasons for the inaccessibility in this store were commercial. I note that the respondent is in the business of selling books and needs to do all it can to entice shoppers into its stores. Section 4(2) does allow for a "nominal cost" defence if it can be shown that the required special assistance or facilities could give rise to more than a nominal cost to the respondent. This means that if the respondent could show that the assistance or facility required by a complainant would impose a cost that would damage the respondent then it could be construed as unreasonable in the circumstances of the case. The above argument, concerning nominal cost, is moot in the circumstances of this case as it is clear that the complainant was offered assistance within the meaning of section 4(1).
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 not established a prima facie case of discrimination contrary to section 4(1). Therefore the complaint fails.
__________
Tara Coogan
Equality Officer
9 September 2009