THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC - S2010- 023
PARTIES
Ms Murphy-Madigan
-v-
Peter Mark
(represented by Cliona Kimber BL instructed by Vincent & Beatty Solicitors)
File Reference: ES/2007/157
Date of Issue: 11 May 2010
Key Words: Equal Status Acts 2000-2008 - Section 3(2)(g), disability ground - wheelchair - failure to provide reasonable accommodation - discrimination - hairdressing service
1. Delegation under the relevant legislation
1.1. On 12th November 2007, 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 7th October 2009, on which day I commenced my investigation. 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 15th February 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 and failed to provide reasonable accommodation which would allow her to fully avail of their hairdressing services.
3. Case for the Complainant
3.1 Ms Murphy Madigan, the complainant, is a wheelchair user. She contacted Peter Mark's Head Office in July 2007 with a request to speak to someone in connection with the new salon which the respondent was opening in the Arklow Bridgewater Shopping Centre. Her call was not returned, so she contacted them again in September 2007 to follow up. On this occasion her call was returned and she spoke to a named Safety Manager at Peter Mark. The complainant requested that the new salon, which was to be opened in the shopping centre, should be fitted with a free-standing sink. The purpose of this would be to allow the complainant and other wheelchair users, to get their hair washed or coloured at the salon. The Safety Manager informed the complainant that free-standing sinks were no longer allowed in the salons due to the risk of people claiming injuries to their necks and shoulders. She explained that all of the chairs used in their salons are one-piece units known as Shiatsu units; ie the sink and the chair are connected together. The chairs can be adjusted up and down to suit the height of the individual. The complainant said that she would not be able to get out of her wheelchair and that she wanted to be able to sit in her wheelchair and reverse into the sink. In response the Safety Manager told her that their staff would be able to assist disabled clients into the salon chairs. The complainant strongly objected to this, as she felt it would be a health and safety issue for the staff and embarrassing for herself.
3.2 The complainant and the respondent eventually agreed during this phone call that the complainant should visit the salon when it opened and view the situation in person. The following month, a named manager of the new salon called the complainant and invited her to visit the salon and receive a complimentary haircut. The complainant asked whether the free-standing sink had been installed. The manager said that it had not, but she thought they would be able to find a solution for her. The complainant visited the salon and on seeing the sinks, they both agreed that it would not be possible for her to get her hair washed. The manager offered her a dry cut instead. The complainant decided upon reflection that she would not accept it, as it would compromise her belief that she was entitled to avail of the facilities on an equal basis to everyone else. The complainant's friend was present at the oral hearing and confirmed this account.
3.3 One of the respondent's stated reasons for refusing to install a separate sink, is that it could lead to a potentially serious medical condition known as "Beauty Parlour Syndrome". The complainant disputes the existence of this condition (described in para 4.3). In support of her contention, Ms Murphy Madigan submitted that she called the secretary of the Irish Hairdressing Federation (IHF) and the insurance broker of the IHF, neither of whom had heard of Beauty Parlour Syndrome. She also contacted NUIG's Centre for Disability and Law who were not familiar with the term and she found that the Stroke Foundation had not proven any medical links.
3.4 The complainant submits that the Peter Mark's staff lacked disability awareness and did not understand her frustration at not being able to use their services. The complainant does have a PA, but does not believe that her PA's services should be required to help her at the hairdressing salon.
3.5 The complainant was not satisfied with the portable unit which was used by the respondent in their trial. She disputes the validity of the trial (details of trial at para 4.5), given that able-bodied people were used in it. She is adamant that the free-standing sink is the only option possible for her and she is disappointed that she is being excluded from a service which is important to her.
4. Case for the Respondent
Witness for the Respondent - Manager of the Peter Mark Salon in Arklow
4.1 The local salon manager confirmed the complainant's evidence that she had attended their premises in Arklow for a complimentary haircut, but denied that she had agreed it would not be possible for the complainant to use the all-in-one (Shiatsu) units. She says that the complainant checked whether there was a free-standing sink available and when she was told this was not available, she did not consider any further options. They did not discuss the transfer to the Shiatsu chair.
4.2 The manager said that they have many clients in wheelchairs who use the salon and these clients have commented that the salon is well designed for wheelchair users, in that there are wide clear passages to move around and the cutting stations are specifically designed for wheelchairs to roll into. She said that other wheelchair users allow themselves to be transferred to the Shiatsu unit with staff assistance or the help of their PA, or the use of their transfer board, or a combination of these methods.
4.3 The local manager assisted Ms Duggan in the study of the trial basin and described it as a poor temporary solution. She said it was unstable, not very effective and needed two operators to use (full details below at para 4.5)
Witness for the respondent - Ms Duggan, Occupational Therapist/Ergonomics Specialist
4.4 The respondent called Ms Duggan, an independent Occupational Therapist, as a witness. Ms Duggan qualified in 1987 and has specialised in ergonomics since approximately 2001. Following the complaint from Ms Murphy Madigan, the respondent commissioned Ms Duggan to carry out a full assessment their premises with respect to its suitability for wheelchair users. The witness provided the written report dated June 2008 to the Tribunal and discussed it in detail at the oral hearing. In summary, she found that the general premises of Peter Marks were of universal design (ie: accommodating all clients, including wheelchair users); however there was an issue for wheelchair users who could not transfer independently to the Shiatsu (combined chair-sink) units.
Specifically she found that:
- Peter Mark's action of fitting Shiatsu units is in the interest of staff and clients and is justifiable under health and safety legislation, despite the issues caused to some wheelchair users.
- The alternative portable unit which was sourced by the respondent in response to the complainant's concerns, is unlikely to prove accessible to all wheelchair users due to a combination of factors, namely the anthropometrics of the wheelchair user, the dimensions of the wheelchair handles and the design of the basin.
- Retrofitting the salon with the sink unit requested by the complainant would cost a significant amount of initial investment, in addition to the fact that other clients would then not have access to the Shiatsu units. Additionally it could compromise circulation space within the salon and would not necessarily be suitable for all wheelchair users.
Ms Duggan concluded by recommending the further evaluation of some other form of a portable lightweight unit, instead of a free-standing sink.
4.5 In November 2008 Ms Duggan was further commissioned by the respondent to conduct a full user trial of the above-mentioned portable unit to ascertain whether it would be suitable for wheelchair users who did not use the Shiatsu chairs. Ms Duggan presented a written report, photos, and a DVD of the trial to Peter Mark in November 2008 and discussed this report in detail at the Tribunal hearing. Ms Duggan also provided a demonstration during the hearing. In summary Ms Duggan made the following points with respect to the use of a portable unit in Peter Mark's salons:
- The trial was not a success in terms of time, activity rate, accuracy, convenience, ease of use, user comfort, health and safety or stress/mental workload.
- The unit is not "invisible". According to the principles of universal design, users with special needs should not be singled out as different or placed in an embarassing spotlight. The amount of spillage and bucket handling associated with the use of the portable unit drew much attention.
- If the unit was to be used in the salon, there would need to be a retrofit to incorporate a wall-mounted sluice or Belfast type sink. The cost of this would need to be assessed by the respondent.
4.6 Ms Duggan confirmed in her report and orally at the Tribunal that the use of a one-piece unit was now seen as industry best practice, due to the risk of "Beauty Parlour Syndrome" in salons where separate chairs and sinks were used. Beauty Parlour Syndrome occurs where the client's head is hanging backwards into a basin, causing hyperextension of the neck and head. In mild cases this can lead to dizziness and in severe cases it has lead to stroke. Ms Duggan submitted reports from medical journals describing the syndrome in technical detail. The use of the Shiatsu unit, which maintains the client's neck in a neutral position, prevents this from happening.
4.7 Ms Duggan then researched the wider market for sink units which were specially adapted or suitable for wheelchair users. She was unable to find a product which fulfilled the requirements. She concluded that the absence of an all-in-one unit, which would accommodate all clients including wheelchair users, was an industry-wide problem, rather than an issue specific to Peter Mark salons.
Written evidence for the respondent - Mr Martin Walsh, Consultant Orthopaedic Surgeon.
4.8 Mr Walsh was a consultant orthopaedic surgeon for approximately 30 years and is now on the Boards of the Central Remedial Clinic and the National Rehabilitation Hospital. Mr Walsh was unavailable for the oral hearing, but provided information in a written medical report in September 2009. The following is a brief summary of the main points:
- The fixed Shiatsu unit which is used by Peter Mark decreases the risk for all clients of sustaining hyper-extension /rotator stress to their cervical spine.
- For wheelchair clients, the Shiatsu unit is safer and more comfortable than sitting in their own wheelchair during the hair wash.
- The Shiatsu unit has fixed side arms, which would require a wheelchair client to be lifted into the unit. In the interest of the safety of both the client and the staff, this is not recommended.
- The safest method of transfer would be a lateral transfer; therefore he recommended that the respondent explore the possibility of acquiring the same Shiatsu unit with a removable side arm, to facilitate the lateral transfer.
Witness for the Respondent - Project Manager at Peter Mark
4.9 The named witness is a project manager at Peter Mark's Head Office. He is primarily involved with the set-up of new salons throughout the country. The witness gave evidence that in December 2006, he had contacted a number of suppliers to the hairdressing industry, with a view to sourcing a chair/sink unit which would accommodate clients who are restricted to wheelchairs. The project manager was unsuccessful in this quest and showed as evidence the emails from the manufacturers. None of them had a suitable product to offer.
4.10 The Project Manager referred to discussions with the complainant, during which the complainant mentioned that she had attended an independent hairdressing salon in Wexford which used a portable sink device called the Lava Swing. The complainant was happy with this product. The project manager therefore visited this salon in Wexford and carried out his own study on the use of the Lava Swing basin. His conclusions were that:
- The salon was using this portable sink for space reasons, and not because it was particularly adapted to wheelchair users. The hairdressers were operating in a very confined space and this portable unit meant that they did not need to separate their washing area from their cutting/styling area.
- He found that the basins were smaller than Shiatsu basins and as such the possibility of water spillage was considerably greater, thus creating a hazard in the salon.
- The basins had no tilting feature and this made them more difficult to operate.
- In contrast to the Shiatsu units, which are fixed at the optimum height for the stylists to work without injuring their backs, the portable unit did not have such a feature.
- The Lava Swing unit appeared to be unsuitable for clients of greater than medium height.
The project manager concluded that the unit was unsuitable for use in Peter Mark salons as a result of the problems listed above.
Witness for the Respondent - Senior Safety Officer at Peter Mark Head Office
4.11 The named witness has worked for Peter Mark since 1994 and is currently responsible for health and safety issues and for handling customer queries. The witness gave some information on the background of the company; Peter Mark is 48 years in business and employs 1700 staff across 74 salons. Their ethos is to be part of every community they are based in, to provide a personal service and to get to know their individual clients' needs. They submit that they have very positive feedback from wheelchair users generally, regarding salon accessibility and the Shiatsu chairs.
4.12 The witness submitted that Peter Mark has been awarded the "Access Matters here" kite mark by Dublin City Council, which shows that it is committed to providing access to its services to people with disabilities. To achieve this award, the company was audited by a UK-based auditor who specialises in disability access. (The audit was undertaken at the respondent's Dublin premises and thus the award applies only to those salons; however it submits that the salon in Arklow conforms to the same standards.)
4.13 The witness provided details of the Health and Safety training which is undertaken by every employee of Peter Mark. She said that employees are given specific training in manual handling, fire evacuation and First Aid. They are trained to give customer assistance to people with disabilities, but they are not given training in patient-handling techniques. She said that this is not appropriate or required because most clients would bring a PA if that specific service was required.
The Safety Officer said that water spillage is the main hazard in their salons and therefore they must ensure that the washing and cutting areas are separated in order to avoid injuries from slipping. She submitted that the solution proposed by the complainant (the independent lava-swing basin) would be dangerous because it would increase the amount of water spillage.
4.14 Regarding her interaction with the complainant, the witness agreed that they had had discussions by phone regarding the new salon before it was completed. She disputed the complainant's timeline of events, but stated that in any event, it was well after the design-phase was complete. The build was underway and any modifications which the complainant requested would have involved a complete re-fit of the salon. She said that she invited the complainant to come to visit the salon when it opened and told her that the best way to deal with the issue was to try out the service in person to see if there was some way they could accommodate her. As it happened, they had someone who was trained in patient-handling techniques in the Arklow salon and could use a transfer board, so they offered this service to her for the trial. After the visit, the witness was informed that the complainant was not happy with the outcome.
4.15 The witness also gave evidence about the chair-sink unit to which the complainant objected. She said that two years prior to this complaint they had contacted the four main manufacturers who supply the hairdressing industry, and asked them about chairs/sinks which were suitable for wheelchair users. They did not receive any information or quotes from the manufacturers at the time. After they received the second report from Eilish Duggan, the Occupational Therapist and the letter from Mr Walsh, the Orthopeadic Surgeon, they again contacted the furniture manufacturers to explore a suitable chair design. On the suggestion from Mr Walsh, they asked the manufacturer to alter the existing Shiatsu chair to incorporate a "drop-down" arm feature. This would allow wheelchair users to transfer more safely and easily to the chairs. The manufacturer co-operated and they recently received a prototype design which is to be used in their new salon in Kilkenny. The respondent submitted that this new design is innovative in the industry and it was created at considerable cost to themselves. It has all the safety and comfort of the existing chairs and it is a universal design, meaning that is it suitable for all clients of the salon, whether wheelchair users or not.
Witness for the Respondent - Director of Peter Mark
4.16 The named witness is a Director of Peter Mark. At the hearing he gave a detailed description of the development of the chair/sink design over the last 30 years. He described the risks of the old designs - slip hazards, back strain for employees, beauty parlour syndrome, etc. During this time he has seen the evolution from wall-mounted sinks / independent chairs to the current all-in-one units. He submits that these are becoming industry standard for client health and safety reasons, for stylist safety and for client comfort and value-add. He submits that the chairs are suitable for everyone - from a small child to a person with limited mobility. He submits that the comfort and safety element is crucial, given that the client may have to remain in that position for up to 15 minutes to remove a colour. He further submits that the massage /relaxation features in the chairs have now become an integral part of their service and the majority of clients would not accept using an ordinary chair. This goes to the issue of nominal cost. If (assuming they were to overlook the H&S issues), the respondent was to remove a Shiatsu unit and replace it with an ordinary chair and sink, they submit that most clients would simply not accept it. They would either wait for a Shiatsu unit to become free, or decline the service. The Director submitted that because the hairdressing business is completely subject to peak and troughs, this would have a huge effect on their business at peak times, when they earn most of their revenue. He submitted data to show that in the average 4-unit salon, this could cause a loss of 15% of weekly business. Details were submitted to the Tribunal, but are not provided here due to commercial sensitivity. He submits that this potential 15% loss is well in excess of what could be considered nominal cost. Regarding the cost of the unit suggested by the complainant (the lava-swing unit), the Director submitted a cost breakdown totalling €11.5k to the Tribunal. He submits that this alone is in excess of what could be considered nominal cost. However their main reason for refusing the unit is not the fitting cost - it is the economic cost of effectively "losing" a Shiatsu chair, as described above.
4.17 The Director also gave evidence of the work they did with the manufacturer to develop the Shiatsu chair with the side-arm drop and he provided cost details of this chair to the Tribunal. The Director submits that wheelchair users can transfer to the new chair either by themselves, with an assistant, or with a small amount of help from the hairdressing staff. The Director submits that their efforts to create a new chair, which is suitable for wheelchair users, is an innovation in the industry and has been achieved and installed at considerable cost to themselves. The Director further submits that the solution proposed by the complainant is not suitable for all persons with disabilities, whereas their proposed unit is.
Legal Submissions on behalf of the Respondent
4.18 The respondent seeks to rely on Section 4(4) of the Acts and submits that the all-in-one Shiatsu unit is used to prevent harm to its clients in general and the complainant in particular, and that the preferred solution of the complainant would leave her and/or the stylist at risk of harm. (Full details are provided in paras 4.6, 4.8, 4.10 above)
4.19 The respondent seeks to rely on Sections 4(1) and 4(2) that, in order to fit the salon to provide the basin which the complainant wants would rise to considerable cost. (Details are provided in para 4.16 above).
4.20 The respondent concluded by referring to the following Equality Tribunal cases in support of their case: DEC - S2009-005 Complainant v Marks and Spencer PLC, DEC -S2009-064 Connolly v Hughes and Hughes, DEC -S2008-048 Anne Harrington v The National Concert Hall. The respondent also sought to distinguish their case from DEC-S2003-121 Alison Barnes v John Adams Hair Stylists.
5.0 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.
5.2 On the issue of direct discrimination, the complainant must demonstrate that the treatment she received was less favourable than that which would have been afforded to another person in similar circumstances who either did not have a disability or who had a different disability. In this case, it is agreed that the complainant was offered a complimentary haircut at the time of her visit or at a later date, and I am therefore satisfied that the service which was offered to the complainant was not less favourable than the treatment which would be afforded to any other client of the salon. Therefore I do not find that the complainant has established a case of direct discrimination on the grounds of disability.
In the case of a complaint being made on the disability ground, consideration must be also given to the provision of reasonable accommodation. Section 4 of the Equal Status Acts 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 difficulty for the person to avail himself or herself of the service.
4-(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.."
This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not to everything it reasonably could do to accommodate her needs as a wheelchair user by providing her with special facilities to access their service.
5.3 The complainant has insisted that a free-standing sink or a Lava-Swing (ie: portable) unit is essential to accommodate her needs. I find that the respondent has made genuine efforts to test the portable solution proposed by the complainant and I accept the output from their trials. Their key concerns with the portable unit are health and safety; specifically Beauty Parlour Syndrome and water hazards in the salon. Their key concern with the free-standing sink is also health and safety (primarily Beauty Parlour Syndrome and employee back safety), as well the additional economic cost of losing one of their standard chairs. Having carefully considered Ms Murphy Madigan's arguments and the respondent's health and safety (H&S) concerns, I accept that H&S is the primary reason for the respondent to refuse the portable or free-standing sink. In general I do not accept that H&S may be presented as an automatic defence in cases of reasonable accommodation; rather the respondent must show that these safety concerns are well-founded. In this specific case I do find that the respondent's refusal to install a free-standing sink or use a portable unit was reasonable in the circumstances.
5.4 Notwithstanding the foregoing, in considering whether the respondent has discharged its obligations under Section 4 of the Acts in the present case, I must examine whether it did all that was reasonable, in the circumstances, to provide special treatment or facilities in order to facilitate the complainant's access. In considering this issue, I note the following actions by the respondent:
- Their efforts in 2006 to source a chair which would be suitable for wheelchair users.
- Their invitation to the complainant to visit and inspect the new salon and their offer to her of a complimentary haircut.
- Their offer to her, at the time of her visit, of the services of a staff member who was trained in patient-handling techniques and who could use a transfer board.
- Their commission of an Occupational Therapist to review the facilities and make recommendations about universal design.
- Their follow-up commission of the Occupational Therapist to do a trial based on her original recommendations.
- The visit of the Project Manager to an independent salon to conduct a study of the proposal made by the complainant.
- Their commission of a manufacturer to develop a chair along the lines of the suggestion made by the Orthopaedic Surgeon.
- Their ultimate purchase and installation of this chair (albeit at a different salon).
I find that the first three actions amount to reasonable accommodation at the time of the incident, and the subsequent actions demonstrate the respondent's genuine attempt to find a long-term solution for wheelchair users.
5.4 In addition to the actions taken, I accept the view taken by the Equality Officer in the decision DEC -S2008-048 Anne Harrington v The National Concert Hall, that there is an additional onus on the service provider to consult with the person with a disability in order to effectively discharge their obligations to provide reasonable accommodation. In this case, the complainant submits that if Peter Mark had consulted with her earlier in the process, they could have designed their salon to accommodate her and thus avoided any costs associated with re-fitting. However I find in this case that the issue of consultation only arises in conjunction with the specific service which was offered to the complainant and not with the building of the salon. It could not be held that there was an onus on the respondent to consult with every individual who might have an interest in the matter. Therefore on the issue of consultation, I find that when the respondent became aware of the complainant's concerns, they were handled promptly by the Senior Safety Officer and the local Salon Manager. Additionally I find that the respondents ultimately went to considerable effort to engage with the complainant, although the outcome of it was not to her satisfaction. I find that in all the circumstances of the case, the respondents have fulfilled their obligations to consult with the complainant.
5.5 Based on all of the foregoing, I find that in the circumstances that the respondent did all that was reasonable in order to accommodate the complainant.
6.0 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 of discrimination and failure to provide reasonable accommodation therefore fails.
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Elaine Cassidy
Equality Officer
11 May 2010