Complainant

Respondent

Parties

Kim Murphy

Gourmet Goodies Ltd t/a Café Carleton at Newbridge Silverware

Complainant

Respondent

Anonymised Parties

A Customer

A Restaurant & Cafe

Representatives

Self-Represented

Hayley O’Donnell BL instructed by Coonan Cawley Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021822-001

11/09/2018

The issues in contention concern the alleged discriminatory treatment of the Complainant by the alleged initial refusal of the Respondent Cafe /Restaurant to allow the Complainant’s Guide Dog into the Premises and in the accompanying verbal exchange at the Retail Till area publicly humiliating the Complainant.

The Complainant, who has a sight disability, entered the Restaurant /Café on Sunday 17th June 2018. She was approaching the entrance near Till No1 when a staff member challenge her regarding the status of her dog. The Staff member indicated that no dogs were allowed on the Premises. The Complainant clarified that her dog was a registered Guide Dog and allowed into food premises. The Complainant asked her accompanying sighted companion to go to the till (No 2) at the other end of the Counter to get refreshments while she, the Complainant sat down at a nearby table. She was refusing to leave unless she was removed.

Her sighted companion reporter to her that other customers in the till queue had overhead the conversation and were raising their eyebrows in despair at the situation.

The staff member who had refused the Complainant proceeded to clatter cutlery close to where the Complainant was sitting and did not apologise for her behaviour.

The Complainant contacted the Café the next morning but was unhappy with the Respondent’s response. The Company owner later contacted her and offered her a complimentary afternoon tea but she was uneasy with the prospect to going back to the premises. The Owner did not acknowledge any discrimination due to the Complainant’s disability. Later contacts with the café Manager were equally unsatisfactory and promises to call back were not honoured.

Following the incident, the confidence of the Complainant in using her guide Dog was dented and the Complainant’s accompanying sighted companion was appalled at the way the Complainant was treated.

The Respondent absolutely denied that any discrimination, as defined in the Act, took place on the day in question. The Complainant was not excluded from the Café and her interpretation of events is entirely misconceived.

The Complainant had approached the First Till, No 1. Her dog was not wearing the usual High Visibility Yellow Blanket and the Staff member asked if the dog was in fact a Guide Dog. The Complainant replied that her dog “was a special dog” and was allowed into the Café.

The Staff member accepted this, the Complainant sat down and there was no further conversation between the Till Operator and the Complainant. The sighted companion had by this time purchased food and drinks at Till 2 and she and the Complainant had lunch and later left.

On the Complainant contacting the Respondent Café the next day a confrontational tone was adopted by the Complainant. The Respondent Owner Ms Xa and the Café manger Ms. Xb made numerous efforts to contact the Complainant and offered her re-assurance. She was offered a complimentary Afternoon Tea.

The Café has detailed policies regarding Food Hygiene and all staff are aware of the requirements regarding Guide Dogs. The Guide Dog in question was allowed into the Café and no discrimination of any nature took palce.

The staff member at Till no 1 merely inquired as to the status of the dog and once satisfied took no further action. A simple inquiry is not in any way discriminatory.

Numerous efforts were made by the Respondent to explain their position to the Complainant.

The claim is accordingly misconceived.

3:1       The Relevant Law

The Equal Status Act 2000; The Burden of Proof requirements and Legal Precedents.

Section 4 of the Equal Status Act,2000 details Discrimination on the Grounds of Disability

Discrimination on ground of disability.

4

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 difficult for the person to avail himself or herself of the service.

(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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

The issue of the required Burden of Proof is considered in Section 38A of the Equal Status Act

Burden of proof.

38A

38A. — (1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F85 [ Director of the Workplace Relations Commission] under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary. ]

Guidance here is best provided from a reference to the analogous Section 85A of the Employment Equality Acts The section shifts the burden of proof to the Respondent where facts are established by a Complainant

“from which it may be presumed that there has been discrimination in relation to him or her”.

It is well recognised in the case law that direct evidence of discrimination is infrequent and therefore the rules on burden of proof have to take account of this in providing for effective judicial remedies for aggrieved employees. The issue of the evidential requirements for both Complainants and Respondents has been carefully considered and promulgated in the case law of the former Equality Tribunal and the Labour Court.

The starting point is the decision of the Labour Court in Southern Health Board v Mitchell,2001 ILR 201 This case still remains the leading decision on the shifting of the burden of proof. The court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy EDAA21/2008 as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The argument that mere membership of a protected class , in this case the Disabled Sight Loss community assisted by Guide Dogs, and specific treatment or mistreatment was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” McCarthy as above EDA A21/2008

In plain English therefore, the Legal Precedents require that evidence adduced by the Complainant must be of a sufficient significance to raise a presumption of discrimination which then arises for rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment.

However, all cases rests on their own facts and direct evidence and I will now consider the evidence presented, both oral and Written.

3:2         Consideration of the Evidence Presented.

The case effectively hinged on the circumstances surrounding the interaction at Till no 1 on the 17th June 2018.

The key actors were the Complainant, her sighted colleague and the Till operator, Ms. Ac.

The oral evidenced from Ms. Ac was that she saw the guide dog but as the dog was not wearing a yellow High Visibility vest she was unclear as to its status and asked the owner, the Complainant, for clarification. The Till Operator, Ms Ac, was well used to Guide Dogs but always wearing the yellow High Vis vests. The Guide Dog here had only a harness and she was confused. It appears that guide Dogs in Training normally wear the Yellow Vests but not fully qualified Dogs.   Once satisfied the Till Operator carried on with her duties, then being polishing cutlery and had no further interaction with the Complainant. In her evidence she was clear and seemed to have a good recollection of events.

In her own evidence the Complainant was quite clearly upset by the status of her dog being challenged and was, in effect, quite affronted by the questioning.

The Till Operator Ms. Ac did not deny entry to the Café and the Complainant proceed to a table where she had refreshments that her sighted Companion had, by then, purchased at Till N.2.

A degree of common sense has now to apply to this case and as stated above in the legal section mere speculations or assertions / assumptions cannot be a sound evidential basis.

The facts are that the Complainant was allowed to have her refreshments in the premises without incident. Having the status of the Guide Dog questioned at the point of entry, while it may have been irritating to the Complainant, does not in my view constitute Discrimination as understood in all the legal precedents. Section 4(1) provides

“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”

Cleary in this case there was no refusal or failure to provide a service. The Respondent asking a question at the point of entry regarding a disability or in this case the status of a Guide Dog is not discrimination.

In follow up discussions the Respondent Principle pointed to the extensive staff training programmes undertaken by all her staff and the clear understandings they have been provided with in relation to customers with disabilities and in this case Guide Dogs. The only possible weakness was the confusion that had arisen between Guide Dogs in Training which the staff were well used to and fully fledged qualified Dogs who do not have the same very visible Yellow Vests.

3:3.       Conclusions.

Having considered all the evidence both Oral and Written I could not find a prima facie case of Discrimination as provided for in the Equal Status Acts,2000.  

The claim as presented is, accordingly, Dismissed.  

Act

Complaint/Dispute Reference No.

Summary Decision / Please refer to Section Three above for detailed reasoning.

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

CA-00021822-001

Claim is dismissed.