Complainant

Respondent

Parties

Maria Rosita Apaza Machaca

Scotco (RoI) Limited

Complainant

Respondent

Representatives

John Fitzpatrick and Robert Sinnott

Fiona Egan, Kennedys Law

Act

Complaint Reference No.

Date of Receipt

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

CA-00057116-001

13/06/2023

The complainant has autism and a vision impairment and she uses an assistance dog.  The respondent is the operator of a Kentucky Fried Chicken (KFC) restaurant in Parnell Street in Dublin.  On April 25th 2023, when the complainant and her friend were in the restaurant, a member of staff told her that she would have to leave because dogs were not permitted on the premises.  It is the complainant’s case that, by insisting that she leave the restaurant with her dog, she was treated less favourably than a sighted person, and that she was discriminated against on the ground of her disability.

At the hearing of this complaint on January 22nd 2024, the respondent’s head of legal acknowledged that the complainant had been poorly treated in their restaurant and she offered a sincere apology for what occurred.

On April 25th 2023, the complainant said that she was in the KFC restaurant in Parnell Street with her dog, which was seated to her left side on the floor against a wall.  She said that she was approached by a member of staff who told her that dogs are not allowed in the restaurant because it is a food premises.  The complainant said that she explained that her dog is an assistance dog.  She said that the staff member spoke to her friend and not to her and said, “whatever she is to you, tell her she’s not welcome with her dog.”  The complainant said that she became frightened and she started to record the incident on her camera.  She said that the staff member got agitated and a security guard approached them.  The complainant said that she asked the security guard to show her the sign that states that dogs are not allowed in the restaurant.  She said that the security guard brought her to a sign that said, “Assistance Dogs Only.”  The complainant said that the security guard seemed to support the staff member until he read the sign.  The complainant said that she felt intimidated and shaken by the disrespect shown to her and she left the restaurant in tears.

The next day, the complainant and her friend, Mr Fitzpatrick went to the restaurant and they left in an ES1 form, to make a complaint about how she was treated.  Mr Fitzpatrick said that the staff were very polite when they brought in the form.  She also sent the company a copy of her mobile phone recording of the incident.

Mr Sinnott then gave evidence that the complainant phoned him about the incident, which had caused her to very distressed.  He said that the complainant’s confidence was shaken and she doesn’t know if she could be treated in the same way again and that she didn’t think that the restaurant took her complaint seriously.

Concluding her evidence, the complainant said that what occurred in the restaurant makes her think about whether she will go into certain premises with her dog.  On the day in question, she said that she felt voiceless and completely powerless and that she was hurt when the staff member addressed her friend instead of speaking to her directly.  She said that the employee seemed to have no training in accommodating people with disabilities.

In response to the complaint on her ES1 form, the respondent sent the complainant a reply; however, it was difficult for her to read the reply because the document was in an unmodified PDF, which she was unable read.  She asked if the company could use an optical character recognition process to make PDFs readable for a person for a person with a visual impairment. 

The complainant also referred to the reaction of the security guard, who did nothing to help her, apart from directing her to a sign that indicated that assistance dogs are allowed.  She said that training is also necessary for security guards and she asked the respondent’s head of legal, Ms Khanverdi, if the company can ensure that they are trained in disability awareness and accessibility.

Mr Sinnott said that the company’s lack of awareness of people with disabilities is demonstrated by their failure to make documents accessible and readable to the complainant.  He said that people with disabilities are best-placed to review policies developed for service-providers to make their services more accessible and he asked if a disability organisation has been asked to proof-read the draft policies.  Mr Sinnott said that there were two categories of action that need to be taken by service-providers, the “micro” activities relating to reasonable accommodation for individuals with disabilities and the “macro” action concerning what needs to be done to make services accessible to everyone.

As a legal precedent of relevance to the complainant’s case, Mr Sinnott asked me to consider the decision of the former Equality Tribunal in the case of John Roche v Alabaster Associatestrading as Madigan’s public house[1].  Mr Roche was refused service in the pub when the management claimed that his assistance dog presented a risk to food hygiene.  Mr Roche was awarded compensation of €3,000 and the pub was directed to display a notice stating that people with disabilities and people with guide dogs are welcome.

Mr Sinnott referred to the UN Convention on the Rights of Persons with Disabilities, which provides that all persons with all types of disabilities are entitled to basic human rights and freedoms.  From the perspective of this complaint, Mr Sinnott said that the complainant was entitled to be treated with respect.

On May 25th 2023, the respondent’s legal counsel replied to the complaint submitted by the complainant on her ES1 form.  The ES2 response indicates that the staff member who asked the complainant to leave the restaurant asked her to move her dog in the first place, because another employee who was washing the floor was afraid of dogs.  The response indicates that the staff member said that the complainant was rude to her and she asked her to leave.  The respondent stated that it appreciated that the complainant was distressed and that they explained to the employee that all customers must be treated equally and with respect and that assistance dogs are permitted in the restaurant.

The respondent’s reply states that the employee who asked the complainant to leave did not call her team leader, as she should have done and she said that she forgot to do so, because the security guard was present during the incident.  The employee has received induction training which includes training on discrimination, but she was not trained in relation to equality and diversity and dealing with customers with a disability.

In their investigation with the employee who asked the complainant to leave the restaurant, the employee said that she initially asked her to move her dog, and that when the complainant was rude to her, she asked her to leave.  The respondent acknowledged that the employee should have handled the situation differently. 

The respondent’s position is that there was a misunderstanding on the part of the employee who asked the complainant to leave.  In the ES2 response, the legal counsel acknowledged that the incident should never have occurred and she apologised to the complainant on behalf of the employee.  She said that the respondent now has a procedure for employees to follow in situations like this.   

At the hearing on January 22nd 2024, on behalf of the respondent, Ms Egan acknowledged that the incident was serious and that it should not have happened.  She apologised sincerely for what occurred in the restaurant on April 25th 2023 and she said that she accepts that the complainant suffered from stress as a result.  Ms Egan said that the incident was caused by human error and that there is a need for staff training on providing a service to people with disabilities.  She said that training will be provided to employees and that the staff member in question was given a verbal warning.

Ms Egan said that the company has gone through some structural change and the management recognises that the employee code of conduct is no longer fit for purpose.  She said that a revised version has been drawn up and that it will soon be presented to the board of directors for approval.  While employees are trained in the company’s disability policies at their induction, Ms Egan said that further training on disability awareness will be provided to all employees.

The company’s head of legal, Ms Khanverdi, explained the sequence of changes in ownership of the company that resulted in changes in personnel.  She said that the person responsible for disability training moved to another part of the business and was no longer working with the restaurants.  Leaving the personnel changes aside, Ms Khanverdi acknowledged that the company’s policies on Equality and Diversity, Dignity at Work and the Employee Code of Conduct is not up to the standard to which the company aspires.  She agreed with Mr Fitzpatrick, who remarked that, from his observations, the training offered to employees is focussed on working in the restaurant, and there is no mention of customers or employees with disabilities.  Ms Khanverdi said that the company wants to provide training that results in better behaviour by employees.

Ms Khanverdi told the complainant that she was shocked at what had happened and she acknowledged the discomfort she experienced even by recalling the incident.  She said that she understands how it feels to be dismissed and she is sorry that this happened.  She said that she is not engaging in corporate spiel when she said that they need to do better.

The Legal Framework

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

The link between discrimination and the failure to provide reasonable accommodation for a person with a disability is clearly set out at Section 4(1) of the Equal Status Act 2000, “the Act:”

(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.

Subsection (6)(b) tells us that a “service provider” is,

(b) the person responsible for providing a service in respect of which section 5(1) applies.

Section 5(1) is the opening section of Part II of the Act, titled, “Discrimination and Related Activities.”  This section specifically addresses the disposal of goods and the provision of services: 

(1)  A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

It follows therefore that, in accordance with these objectives, as a person with a visual impairment, when accessing the services of a restaurant, the complainant is entitled to be provided with reasonable accommodation, in her case, permission to enter the restaurant and to avail of its services with her assistance dog.

As Mr Sinnott pointed out at the hearing of this matter, under the UN Convention on the Rights of Persons with Disabilities, of which Ireland is a signatory, articles 19, 20, 29, and 30 on accessibility and participation place an obligation on public and private service providers to be inclusive.  The effect of this obligation is that a person who uses a trained dog to assist with their daily life, is entitled to access services in the same manner as a person who is not disabled.

Consideration of the Facts

The facts of this case have been clearly set out.  There is some disagreement about whether the complainant was rude to the employee who asked her to move her dog and that this escalated into her being asked to leave.  The important fact is however, that the complainant was asked to leave the restaurant because of her assistance dog.  Based on this fact, it is clear to me that, contrary to section 4(1) of the Equal Status Act, she was discriminated against on the disability ground.

Findings

Having considered the experience of the complainant on April 25th 2023, it seems very disheartening that a person with an assistance dog would be asked to leave a restaurant because of their dog.  For a person with an assistance dog to be treated in this way must be frustrating, demeaning and depressing.  I find this treatment all the more worrying because an assistance dog is a signal, a tangible, physical indication that a person has a disability, and, in a certain way, it provides an opportunity not to discriminate.  The risk of discrimination for a person without such a signal, for example, someone who is deaf or who has an intellectual disability, must be much greater.

Added to this conundrum is the fact that there was a sign on the respondent’s premises that said, “Assistance Dogs Only.”  Clearly therefore, it is not the respondent’s policy to exclude assistance dogs from their premises, but on April 25th 2023, when one employee expressed a fear of dogs, her colleague asked the complainant to leave.

It is apparent that the decision of the restaurant employee to ask the complainant to leave was caused by a lack of information and training regarding accessibility for people with disabilities.  Responsibility for ensuring that this training is provided rests squarely with the respondent, and, at the hearing of this complaint, their head of legal accepted that they had fallen short in this respect.  I found that their apology was sincerely made and that they understood the impact of what had occurred.  I observed that, having heard the complainant recall the details of the incident and its effect on her, the respondent’s legal counsel was committed to learning from what had occurred and to ensuring that training was provided to employees so that no other customer would have a similar experience.

While the end result may be positive, I find that, on April 25th 2023, in its Parnell Street restaurant, the respondent failed to do all that was reasonable to ensure that the complainant had access to the service she requested and that this failure caused her unnecessary distress and humiliation.  I find therefore, that her complaint that she was discriminated against on the ground of her disability is well founded.

For the reasons set out above, I have decided that the complainant was discriminated against contrary to Section 4(1) of the Equal Status Act 2000 – 2015.  In terms of redress, Section 27(1) of the Act provides that:

…the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

In making an order for redress, I have considered the complainant’s experience and the fact that the respondent apologised in writing in the ES2 document sent to her on May 25th 2023.  I have considered the precedent decision of the Equality Tribunal in John Roche v Alabaster Associates, where the respondent in that case refused to accept any wrong doing in its treatment of Mr Roche.  It is my view that the outcome in that case is not reflected in the actions of the respondent in the instant case.  Considering all the above, I make an order that the respondent pays the complainant €2,000 as compensation in some measure for the distress that she suffered.

In line with the recommendation of Mr Sinnott, I direct the respondent to put their draft Employee Code of Conduct and any proposed training on discrimination in front of a disability rights organisation to determine if the training and policies are fit for purpose.

Assistance dog, discrimination