THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC - S2010- 019
PARTIES
Ms Byrne
(represented by Dublin Leader Advocacy Services)
-v-
Miami Cafe
(represented by Montgomery and Son Solicitors)
File Reference: ES/2008/027
Date of Issue: 1 April 2010
Key words
Equal Status Acts 2000-2008 - Section 3(2)(g), disability ground - wheelchair - failure to provide reasonable accommodation - discrimination
1. Delegation under the relevant legislation
1.1. On 26th February 2008, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008. In accordance with her powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts, 2000 to 2008, the Director delegated the case to me, Elaine Cassidy, 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. This delegation took place on 18th January 2010, 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 24th March 2010. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts 2000 to 2008 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts, 2000 to 2008, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008, in that the respondent discriminated against her by refusing to provide service in a restaurant, because she is a wheelchair user.
3. Case for the Complainant
3.1 The complainant, Ms Byrne is a wheelchair user, as a result of a spinal injury. She uses the services of a Personal Assistant (PA) to help her with her activities. On 29th December 2007, she and her PA went to the Miami Cafe and sat down at a table. They ordered food and about 10 minutes after they had sat down, a waiter approached them and asked her if she would leave her wheelchair outside and walk in. She responded that she had often been to the restaurant before and had never been asked to leave her chair outside. She says that she was not asked to move to a different table and if she had been asked, she would have moved. She says that she asked the waiter if she was being refused service for not leaving her wheelchair outside. He said yes and did not explain why. He did not attempt to move her to another table. She and her PA got up and left. Even though the restaurant manager could see what was happening, she did not approach her or try to resolve the incident. The complainant was embarrassed for her PA and shocked at being refused service. She explained that her PA was unable to attend the Hearing as a witness due to other work commitments.
3.2 By way of background the complainant explained that she had been a fairly regular customer at the restaurant before the incident and she had always been able to sit at any table she wanted. She had never been told that she was causing an obstruction.
3.3 Ms Byrne said that she had also been upset when the respondent tried to contact her after her complaint to the Tribunal, to sort out the problem directly.
4. Case for the Respondent
Witness for the respondent
4.1 The respondent's first witness was a named employee who worked in the restaurant as a waiter. He had been employed by the respondent for two years at the time of the incident and still works for them. He had received Health and Safety training when he started. The waiter gave his account in writing and in oral evidence at the hearing. He said that the restaurant was busy on the day in question and it took him a few minutes before he was ready to go to the complainant's table. He saw immediately that the area she was seated in was unsuitable for wheelchairs and he went over to explain their policy to her. He explained the Health and Safety problem with the wheelchair being at the back of the restaurant, but she started shouting aggressively at him and being abusive. She did not place an order for food. She did not give him a moment to explain further. Ms Byrne and her friend left immediately afterwards.
4.2 The son of the restaurant owners also spoke at the hearing. He was working in the restaurant on the day in question. He saw the complainant and her friend arrive, but he was in the kitchen during the incident. He says it all happened very fast and they were gone by the time he came back out. He says that his mother (the manager referred to by the complainant) was working in the kitchen and would have been able to see from her position what was going on outside. However she would not have been able to leave her cooking position immediately and the incident was over very quickly. He apologised that his mother had called Ms Byrne and her representative after her complaint to the Tribunal and said that she only wanted to try to resolve the issue.
General Submissions
4.3 In presenting their case, the respondent submitted photographs and an architect's plan of the seating arrangements at the restaurant. It is essentially divided in two and the passage at the front is wider than the passage at the back. They showed that due to the very narrow passageway at the back of the restaurant, they are obliged, for Health and Safety reasons to ask customers in wheelchairs to sit at the front of the restaurant. If a customer in a wheelchair sat in the back part, it would block the access to the toilets and it would be very difficult and dangerous for waiters to pass by, especially as they would be carrying hot food and drinks. They acknowledged that the complainant's wheelchair is small and would fit partly under the table. Notwithstanding this, they insisted that it would still be a hazard in the passage and they produced scaled drawings to demonstrate this. The respondent wished to also point out that since the incident they have removed one of the fixed seats in order to create a table suitable for wheelchair users.
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. In making this decision I have taken account of all the oral and written submissions made by the parties.
In the case of a complaint being made on the disability ground, consideration must be given to the provision of reasonable accommodation, in addition to the issue of direct discrimination. Section 4 (1) of the Equal Status Acts states as follows:
"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 difficulty for the person to avail himself or herself of the service.
5.2. As this is a situation where there is a direct conflict of evidence between the parties, I am required to determine on the balance of probabilities which version is true. Without prejudice to the complainant's intentions, I cannot accept that the waiter asked or intended to ask the complainant to get up from her wheelchair and walk from the door to her seat. He did not know her personally at the time and had no idea whether or not she was confined to her chair, so it would have been extraordinary for him to ask her to walk. I find that there was a discussion between the parties about trying to accommodate the complainant's wheelchair, due to the respondent's concerns about health and safety issues. (It is clear to me from the drawings that the passage is indeed too narrow to safely accommodate a wheelchair). However due to the waiter's limited command of English, I believe that this resulted in the complainant misunderstanding him. I believe that she then became very offended and left before the waiter or manager had the opportunity to resolve the problem. I accept that the complainant thought that she was being refused service; however I do not find that the respondent actually refused her. With respect to the issue of reasonable accommodation, I find that the complainant did not give the respondent the opportunity to engage with her to resolve the problem.
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 complainant has failed to establish facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her. The complainant's case therefore fails.
_____________
Elaine Cassidy
Equality Officer
1 April 2010