Complainant

Respondent

Anonymised Parties

A Customer

A Takeaway/Restaurant

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00014776-001

2/Oct/2017

The complainant claimed that he was discriminated against because of his disability as the person serving him laughed at him because of his disability and that the ketchup dispenser that he had to use was not suitable for a person with a disability.

The complainant’s solicitor was not available but the complainant was happy to proceed unrepresented. An application was made to amend the name of the respondent. He outlined that he has a disability called hemiplegia which significantly impacts his left hand and left leg.

On July 27th 2017 at approx. 8:10 pm, he was with a friend, Mr A, when they entered the respondent’s premises where they ordered food. The complainant waited at the counter for his order and his friend sat down.

The complainant detailed that he asked for ketchup and expected to be given ketchup sachets but was directed to a machine near him. He initially could not see what he was being directed to and only saw a drum-type machine with a tap. He had to place his chips under the tap and found this difficult owing to his disability.

He looked at the person serving him and told them that the machine was not friendly to people with disabilities. He said they laughed at him and he got upset. He said that there was a crowd looking at the incident. He sat with his friend and one of the employees, Mr B, who had been behind the counter brought him down 2 ketchup containers and apologised.

He still felt upset the next morning and phoned the respondent’s head office and then rang the respondent directly and was annoyed with the manner in which they dealt with his complaint. He sent in his ES1 on August 28th 2017 and received a call from the customer service and a call from somebody who said they would rather go to jail than pay money to the complainant.

He wanted to put the incident behind him and felt better having come to the hearing today.   During cross examination, the complainant accepted that the ketchup dispenser was probably easier to use than having to open sachets of ketchup with one’s teeth.

Evidence from his friend Mr A was that he did not see anybody laughing at the complainant as he was not looking up there but did see what he described as a ‘kerfuffle’ and when the complainant came down to him he was clearly angry and upset. He outlined that the manager did come down and said he was “sorry about that”.

The respondent did not object to the amendment of the respondent name. The respondent rejected the allegations that they discriminated against the complainant.

They accepted that he had a disability but detailed that they did not know he had a disability at the time when it was alleged that he was discriminated against. They denied that people were laughing at him and outlined that the ketchup dispenser is more suitable for those with a disability than ketchup sachets which often is opened with customers’ teeth.

The respondent produced the ketchup dispenser at the hearing and outlined how it works.   They detailed that the complainant had tried to push it back and forth rather than pushing it down as is required.   On the date in question, employees tried to demonstrate to the complainant with hand gestures how to use it but he did not seem to understand them.

CCtv evidence was provided, which the complainant had no objection to, which showed the incident without audio.

The respondent outlined that based on the cctv, there was nothing to suggest that the complainant was discriminated against and that there were only 2 people behind the complainant who did not look at the complainant, therefore, there was no ‘crowd’ watching the incident. The respondent also outlined that he was very proud of how the staff handled the situation and that they did nothing wrong.

The owner Mr C outlined that it was him who said he would prefer to go to jail than pay the complainant as he felt that it was a vexatious claim. The respondent later withdrew their allegation that the claim was vexatious but rejected that the complainant was discriminated against and that it appeared that the complainant just did not know how to use the dispenser which was nothing to do with his disability.

Mr B, an employee, gave evidence that when he realised the complainant had a disability he went down to where he was sitting and handed him ketchup in small containers. He did not know prior to that that the complainant had a disability.

The respondent detailed that they did not believe it necessary to have a sign over the ketchup dispenser detailing how to use it but that they would consider it. They also outlined that, without prejudice to their case, they were sorry to hear that the complainant was still upset.

An application to amend the respondent’s name was granted, taking into consideration there was no objection by the respondent and no prejudice to the respondent as per O’Higgins –v- University College Dublin [2013] IEHC 431 where Hogan J. held that “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be).

Section 3(1) of the Act provides that discrimination shall be taken to occur where (in this case Disability ground)

( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 3(2) of the Act provides as follows (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”) and as per Section 38A the burden of proof rests with the complainant regarding the prohibited conduct when it is then for the respondent to prove the contrary.

The facts of this case are that the complainant entered the respondent’s premises on 27th July 2017, purchased food and looked for ketchup. He expected to receive the ketchup in a sachet but was surprised when was directed to the ‘drum’. He did not know how to use it as he never saw this type of drum before and felt it was discriminatory against those with a disability. He saw the employees laughing and believed it was because of his disability.

There was no objection from the complainant on playing the cctv footage during the hearing and what was evident from the cctv was that the complainant’s disability was not evident at the time that he said he was discriminated against. It was only as he moved away from the ketchup dispenser that this became evident. While the employee is smiling, there is nothing to suggest that the employee is laughing at the complainant on the basis of his disability and it is reasonable to assume that he was smiling at him in a friendly manner.  While it is not disputed that he has a disability, the complainant has not therefore, established a prima facia case of discrimination on the basis of his disability in relation to this aspect of his complaint.

With regards to the second part of the complaint that the ketchup dispenser is not suitable for those with a disability, while I accept that if one has not used this before, it might take some time to figure out how it works, but I also must note the direct evidence of the complaint which was that it is easier to use than ketchup sachets. I do not find, therefore, that the ketchup drum discriminates against those with a disability. I would recommend though that the respondent give due consideration to providing direction to customers on how to use the dispenser.

It was the preference of the respondent to anonymise this decision whereas the complainant had no issue with the names made public. Taking all the aforementioned findings into consideration, I have made the decision to anonymise this decision.

Overall, I find on the basis of the evidence presented that the Complainant has not established a prima facie case of discrimination on disability grounds and I dismiss the complaint.

In accordance with Section 25(4) of the Equal Status Act, 2000 and in light of my findings above I declare the complaint of discrimination is not well founded as the Complainant has not provided facts as required by Section 38A of the Act from which discrimination on the disability ground has been established.

Disability, equal status