EQUAL STATUS ACTS
DECISION NO. DEC-S2015-023
PARTIES
Mr F B (Represented by Mrs A B)
-v-
A Restaurant
File reference: ES/2012/0170
Date of issue: November 2015
HEADNOTES: Equal Status Acts – Disability – provision of service
1. Dispute
This dispute concerns a claim by Mr F B that he was discriminated against by A Restaurant (M) on the grounds of his disability contrary to section 5 of the Equal Status Acts.
1.2 The complainant referred his claim against Restaurant (M) to the Director of the Equality Tribunal under the Equal Status Acts on 30 Nov 2012. On 7 September 2015 in accordance with her powers under section 25 of the Equal Status Act 2000 to 2014, the Director then delegated the case to me, Shay Henry, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director on which date the investigation under Section 25 commenced. Submissions were received from both sides and as part of my investigation I proceeded to a hearing on the 23rd September 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 Complainant’s submission
2.1 On 14th July the Complainant and his mother and father, Mr. and Mrs. B, were in Galway and decided to enter the Respondent’s restaurant.
2.2 There appeared to be some empty tables and Mrs. B asked the waitress if there was a table available. Mrs. B overheard the waitress consult the manager who informed her that there was a table but it would have to be vacated by 19.30. As it was only 17.45 that was not a problem for the Complainant’s family as they would not be delaying. The waitress said it would be a few minutes. Menus were brought to the family.
2.3 A few minutes later the manager, Ms. H, approached the family and said there was no table available. Mrs. B said that she had heard Ms. H saying there was a table. Ms. H said she had checked and there was none and then guided the family to the door.
2.4 The Complainant is autistic and it is obvious from his demeanour that he has special needs. However, he was neither loud nor obstructive in any way while they had waited. Mrs. B says that, while she is very sensitive to discrimination against her son, her husband is not and he also felt that it was because of her son’s demeanour that they were refused a table.
2.5 Mrs. B was hurt and upset by the treatment and contacted the restaurant a few days later in order to get an email address so that her complaint would not be public and allow the owner a right to reply. She sent an email on 20 July 2012 detailing her issues with the treatment received on 14th July. She received no reply.
2.6 After some weeks Mrs. B contacted the Equality Tribunal and completed the ES 1 form on 3 September 2012. She received a reply from the Respondent around the 10th of September but was not happy with the response as the Respondent focused on her own feelings at all times and did not seem to consider how Mrs. B’s family felt at how they had been treated and how it impacted on them.
2.7 Mrs. B completed the ES 3 form in November. In the meantime she did speak to Ms. M, the owner of the restaurant, but felt again that there was no consideration for the treatment her family had received. The reason she had pursued the case was not for compensation but rather to highlight to the restaurant owners how her son had been treated and how the family had been affected.
3 Respondent’s Submission
3.1 Mrs. M, the Respondent, states that she has never and never would refuse a potential customer based on disability. It is often the case that the management of the restaurant may think they can accommodate a customer but on checking the reservation book it becomes clear that in order to do so it would result in customers with reservations having to wait, leading to a poor experience. While a table may look free it is often the fact that, when the reservation’s book is consulted, all tables are booked. All tables are based on a two hour time frame. The constraints of the kitchen and menu means that they cannot offer people a quick meal so there is rarely an opportunity to seat a guest on a table that is booked an hour later.
3.2 In evidence the Respondent confirmed that the maximum capacity of the restaurant is approximately 50. This is achievable when all bookings are for either 2 or 4 persons. Larger groups require reorganisation of the tables reducing the capacity to possibly 40 approximately depending on the configuration.
It is a regular occurrence for customers to be told that they have a table and subsequently, having examined the reservations book, being either delayed for up to 40 minutes or having to be informed that they cannot be accommodated. It is also normal practice for customers who are waiting for a table to be given menus.
3.3 On the evening in question there were 45 customers booked for tables at 7.30, in varying size groups which would have meant some tables being joined together and in turn meaning that the maximum capacity of the restaurant would be reduced from the maximum of 50 when tables were not reorganised. The Respondent contends that 45 customers would have been the new maximum.
3.4 The Respondent does not dispute that the email of 20th September was sent but insists that it was not received. Dealing with complaints is the number one priority for the Respondent when replying to queries or communications from customers.
3.5 The Respondent has regularly catered to customers with a disability in the past with those using wheelchairs being facilitated at table no. 2. This results in the loss of a table but that does not affect the decision to accommodate. Due to the fact that the restaurant is in a listed building it does not have toilet facilities to cater for people with disabilities but has made arrangements with the restaurant across the street to facilitate their customers as necessary.
4 Conclusions
4.1 The failure of the Respondent to properly explain the change in circumstances whereby the promised table was no longer available undoubtedly contributed to the sincerely held view of the Claimant’s family that they had been refused service on the basis of the Claimant’s disability.
4.2 I note that following the above incident the respondent has reviewed its position in this regard and now tries to ensure that disappointed customers are informed of the reason why they cannot be accommodated. It is also clear from the evidence given that it is a regular occurrence for customers without reservations to be told that they can be accommodated only for this position to be altered on review of the reservations page and the number of existing customers in the restaurant.
4.3 I found the evidence given by the Respondent at the oral hearing in relation to the policy of the restaurant not to discriminate against any customers persuasive. This combined with the reservations page from the day in question, which clearly showed that at the time the Claimant’s family were seeking to be accommodated, the management of the restaurant believed that they could not be accommodated due to the number of customers with reservations for 7.00 pm and the necessity to combine tables to accommodate some groups of different numbers. Accordingly, I conclude that the Claimant was not refused service because of a disability.
5 Decision
5.1 Section 38A (1) of the Acts provides that the burden of proof is:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
A prima facie case of discriminatory treatment has not been established in this instance and therefore I find that the complainant was not discriminated against on the disability ground pursuant to Section 5 of the Acts.
____________________
Shay Henry
Equality Officer
November 2015