THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-062
PARTIES
Michael Joyce
(represented by Nicolas Hosey, B.L.,
instructed by Sheeran & Company, Solicitors)
-v-
Superquinn (in receivership)
File Reference: ES/2010/060
Date of Issue: 14th December, 2011
Equal Status Acts, 2000-2008
Decision No. DEC-S2011-062
Michael Joyce
-v-
Superquinn (in receivership)
Key words
Equal Status Acts - Section 3(2)(g), Disability Ground - Fall on premises - Removal from premises
1. Delegation under the relevant legislation
1.1. On 16th June, 2010, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 25th July, 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 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 (hereinafter referred to as "the Acts"), on which date my investigation commenced.
1.2. Written submissions were received from the complainant, but no submissions were received from the respondent. A hearing of the complaint was held on 12th October, 2011. The respondent was not in attendance at the hearing (the respondent's receiver had written to the Tribunal on 29th August, 2011 to say that the respondent had gone into receivership).
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 Acts in terms of Sections 3(1) and 3(2)(g) of the Acts and contrary to Section 5(1) of the Acts in that the respondent treated him less favourably by refusing him access to the respondent's premises because of his disability.
3. Summary of the Complainant's evidence
3.1. The complainant stated that he was a person with a disability in that he had a lumber spine problem and problems with his legs. He said that he lived in chronic pain and, since 2004, has always needed a walking aid. He said that Manager A of the respondent store knew about his disability since 2004 at least and, though he had left, he said that his replacement, Manager B, knew about his disability from Manager A. He added that the staff of the respondent store would assist him bring "stuff" to his car "and all".
3.2. The complainant stated that he had obtained vouchers from the respondent which he sought to redeem but he submitted that he had misplaced the vouchers. He said that he spoke with the respondent about the matter but that "the gentlemen on the other end of the phone" accused him of telling lies and had told him to "prove it" with respect to being entitled to the vouchers in question. He said that he told Manager B of the respondent store about this.
3.3. The complainant then described an incident where he fell on the floor. He said that he thought this incident took place on the same day but could not be "100%". He said that he had lost his balance because there was duct tape on the floor of the respondent's premises. He said that he was offered assistance by the staff of the store and was asked if he wanted an ambulance. He said that he asked the staff to get his carer, who was elsewhere but near to the premises. He said that when the carer arrived he brought him home. He said that the respondent's account of this incident in its letter to him (see par. 5.2 below) was "a load of lies". He said that there was another occasion when his walking frame went from under him because of water on the floor, but he did not fall on that occasion as he was able to balance himself.
3.4. The complainant stated that, on another occasion, he went to the respondent's premises to return some Guinness that was out of date. He said that Manager C who he dealt with on that occasion embarrassed him by shouting his name "all over the place" and saying "I hope you are telling the truth on this one". He said that he went around doing a bit of shopping after this and when he went to the counter, Manager C told the person at the check-out that she would deal with the complainant and then "got snotty" with him. He said that, consequently, he turned around, told her to keep her change and walked out. The complainant said that, when he returned to the respondent's premises a week or two later, Manager C told him that he was not welcome on the premises anymore.
3.5. The complainant stated that the respondent's submission that he was seeking to engage in insurance fraud was based on conjecture and it had not provided any proof of same, particularly in the context that it was not in attendance at the hearing. He denied ever speaking to any of the respondent's staff in an abusive or threatening manner. He said that he had been refused entry to the respondent's premises because of his disability.
4. Summary of the Respondent's case
4.1. The respondent was not in attendance at the hearing, nor did it provide the Tribunal with submissions in advance of the hearing. In short, the respondent did not provide the Tribunal directly with any information or documentation with respect to the substance of this complaint.
5. Letters from respondent to complainant
5.1. However, the complainant provided the Tribunal with two letters from the respondent to him, one of which was provided at my request at the hearing. In these letters, the respondent set out the reasons for the approach it had taken towards the complainant. It wrote that the complainant was no longer welcome to shop at any of its stores as a result of events which took place in the store in question in 2010. It wrote that the complainant had spoken to its staff in an abusive and threatening manner. It wrote that, in the course of a conversation with Manager B about the vouchers in question, the complainant had said that "this was 'war'" and that he would "throw [him]self on the floor and get [his] money that way".
5.2. The respondent also wrote that on the following day, 16th January, 2010, the complainant had fallen to the floor and was attended to by its staff. It gave a brief written account of this, submitting, inter alia, that he had said to a member of its staff that he had "got something for free" from the respondent. It wrote that it had concerns about the genuineness of this fall and drew the complainant's attention to the fact that it is a criminal offence to commit insurance fraud.
5.3. The respondent also wrote in these letters that the complainant also fell to the floor on 25th February, 2010, when he attended at the respondent's store to buy cans of Guinness, and that he again became abusive when checking out his shopping on that date. It wrote that it had taken the decision to no longer accept his custom in light of all of the above and its duty to provide its employees with a work environment free from abusive and/or threatening behaviour.
6. Conclusions of the Equality Officer
6.1. Section 38(A) of the Equal Status Acts 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.
6.2. The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against him on that ground. In that context, it should also be noted that the issue of whether the complainant was provided with reasonable accommodation, as provided by Section 4(1) of the Acts, does not arise in this case. In making my decision in this case, I have taken cognisance of all the oral and written evidence presented to the Tribunal in relation to this case.
6.3. It is clear that the complainant was barred from the respondent's premises by the respondent and that the reasons for him being so barred were related to him falling down in the respondent's premises. It is also clear that the respondent sought to justify taking this action on the basis that it had concerns that the complainant sought to engage in insurance fraud with respect to falling at its premises. The complainant denies this. I found the complainant's evidence to be credible in this respect and with respect to his denial of the respondent's submission that he said he would obtain the money sought with respect to the vouchers by throwing himself on the floor.
6.4. In short, I am satisfied that the complainant's fall was accidental and that there was only one such fall. I am also satisfied that his disability meant that he did not recover as quickly or as easily from that fall as someone who did not have his disability might have. I am further satisfied that the respondent's response to this fall clearly indicated that it was aware of this fact. I am satisfied that it was motivated by this fact when it indicated to the complainant that it was barring him from its premises as it had concerns that he was seeking to defraud it. I note that no evidence has been provided to the Tribunal to support the respondent's contention in this respect and, in acting in the manner in which it did, it clearly treated the complainant less favourably than someone without his disability or with a different disability would have been treated.
6.5. Therefore, the complainant has established a prima facie case of discrimination on the disability ground which the respondent has failed to rebut.
7. Decision
7.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
7.2. I find that the respondent discriminated against the complainant on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
7.3. I order the respondent to pay to the complainant the sum of €1,000 for the distress caused to the complainant as a result.
_____________
Gary O'Doherty
Equality Officer
14th December, 2011