Complainant

Respondent

Parties

Sophia  Brennan

KOA                                                               Kitchen of Asia Restaurant

Complainant

Respondent

Anonymised Parties

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-00049578-001

08/04/2022

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

Pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021, and where there is the potential for a serious and direct conflict in the evidence between parties to a complaint, I requested that parties giving evidence would do so on Oath or  Affirmation as appropriate.

This hearing comes on before the Workplace Relations Commission on foot of a Complaint Form which issued on the 8th of April 2022.

The Complainant was not represented and made her own case. The Complainant was accompanied by her husband and, of course, her Guide Dog Timmy. The Complainant had set out her case in her workplace relations complaint form. The Complainant gave oral evidence on Affirmation confirming the narrative set out in the complaint form and responding to the correspondence submitted by the Respondent by way of defence or explanation for the events.

The Complainant (who is visually impaired) alleges that he she was discriminated against by the Respondent restaurant and it’s staff when they refused to admit her into the restaurant because she was accompanied by her Guide Dog.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent did not attend the hearing. I am satisfied that the Respondent had been notified of the date, and the time and the place of the hearing by a letter sent on the 17th of February 2023.

I am further satisfied that the Respondent had previously engaged with the Complainant when she had raised her concerns on the ES1 form which was sent to the Respondent on the 31st of March 2022.

The Respondent set out it’s position on the ES2 form dated the 4th of April 2022.

The Respondent apologised for what had happened in the said ES2 form.

Subsequently the Respondent provided further documentation in June of 2022 which sought to give context to the situation and excuse the Complainant’s treatment.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Complainant gave her evidence on affirmation. The Complainant is visually impaired and has come to rely on her Guide dog Timmy who had been paired with the Complainant about a year before the incident complained of.

The Complainant and her husband were spending a weekend in Portmarnock, exploring the coast and villages in North County Dublin. They had booked a table for two in the Respondent Restaurant on Main Street in Malahide. They arrived at the Restaurant on the evening of Friday the 4th of March 2022. The venue has been described to me as being a first-floor restaurant accessible by a staircase from the street. The Complainant’s husband went up first and as the Complainant and her guide dog were coming up the stairs behind her husband, she says she was intercepted by a person whom she understands was the Restaurant Manager that evening.

The Complainant did not gain access to the Restaurant. In fact, I understand that the Complainant was stopped in her tracks, on the staircase, a step or two down from the Manager and was advised by said Manager that the dog would not be let into the Restaurant. The Complainant became flustered and upset, indicating that this was a guide dog and needed to be with her. The Complainant told me that she advised the Manager that the law allowed her to bring a guide dog into the Restaurant. The Complainant says that she offered to show the letter and card which she carries with her to identify her as visually impaired, and her dog as a Guide Dog. I understand that the dog – Timmy - was also wearing the elaborate fluorescent halter and handle which he was sporting at the WRC hearing. The Manager had no interest, it seems, in looking at any documentation.

The Complainant says that she gained no traction with the Manager who was simply not allowing a dog into the restaurant. The Manager was aware that the Complainant and her husband had booked a table. The Complainant says the Manager just kept repeating that it would be unhygienic. The Complainant accepts that the Manager suggested that the dog could be put into a yard out the back if she and her husband wanted to come in and eat in the restaurant. This option was not acceptable to the Complainant who would not leave her precious and much-needed dog in a place beyond her control and about which she knew nothing.

The Complainant was deeply humiliated, embarrassed and upset at how she was treated. She has a sense that other restaurant patrons would have been aware of what was going on which added to her humiliation.  She says she tried to argue that the Restaurant’s refusal to allow her to come in and dine was contrary to law, discriminatory and wrong. In her evidence to me the Complainant said that the Manager’s repeated reference to the dog being unhygienic made her feel unclean.

The Complainant and her husband had to leave the Restaurant and find somewhere else to eat that evening.

The Complainant sent the ES1 Notification under the Equal status Act describing how upset she felt at having her disability emphasised in the way that it was. The Respondent (through its Director) accepted that it had no policy or procedure in place for accepting dogs (and particularly guide dogs) onto the premises. A fulsome apology was given with a promise to train staff in the relevant legislation. The Complainant was not satisfied with this response and issued her complaint under the Equal Status legislation.

In June of 2022 the Respondent made a written reply to the claim being brought against it and provided the WRC with some further documentation which purported to provide excuses for what had happened. The Restaurant was “doing our best” it said. In the first instance it was suggested that staff members had asthma. It was also suggested that there were children in the restaurant who might be frightened of a dog. The Respondent appeared to want to impose an obligation on the Complainant to advise (before ever she arrived) that she was bringing a Guide Dog. The Respondent advised that had it been aware that a guide dog was coming it would have set aside a suitable table. The Respondent also suggested that the Complainant was offered a table downstairs on the footpath outside the Restaurant.

I put these issues to the Complainant who is clear that the Manager did not suggest that members of staff had asthma or that the restaurant was filled with nervous children. The Complainant did not recall being offered a table outside, though I do not think that dining in the cold and the dark (this was early March) at such a remove from the Restaurant was in any way comparable to what the Complainant and her Husband had reserved for themselves.

I also accept that the Complainant should not feel that she has to mark herself out as different by indicating that she is bringing a Guide Dog when making a booking. The dog should simply be accommodated on arrival. In any event, the uncontested evidence is that the Dog whether Guide Dog or not was completely unwelcome in this Restaurant in early March of 2022. There is no suggestion that the Complainant was asked to wait or come back so as to allow the Restaurant to re-configure tables or already seated parties so as to accommodate the Complainant. The Complainant was treated as “other”, her dog was insulted, and she was sent away.

I am satisfied that the Complainant has made out a Prima Facie of discrimination and the Respondent has been unable rebut this inference. In assessing compensatory redress, I am mindful of the effect this discrimination had on the Complainant both at the time that it happened and as she recounted her evidence before me.

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

CA-00049578-001 - The Complainant has established that the Respondent has engaged in prohibited conduct and is entitled to redress and I therefore order compensation for the effects of the prohibited conduct in the amount of €2,000.00.

To ensure that a similar discrimination does not happen again, I further direct that the Respondent herein become acquainted with the Equal Status legislation and become aware of its obligations as a service provider under that legislation. All staff should be made aware of the issues which could potentially be raised thereunder.