Complainant

Respondent

Parties

Nadine Lattimore

Dealz Limited

Representatives

David McCarroll,                                                 RDJ LLP

David Michell BL,                              Ursula Cullen Solr.                                     Miley & Miley LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058462-001

23/08/2023

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.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 23rd of August 2023.

In line with 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 the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

At the completion of the hearing I did take the time to carefully review all the oral evidence together with the written submissions.   I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was fully represented at the hearing.  At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant gave evidence on her own account.  I was also provided with a comprehensive submission dated the 29th day of April 2024. The Complainant additionally relied on the narrative as outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case together with a book of Authorities. No objection was raised to any of the materials relied upon by the Complainant in the making of her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was discriminated against by reason of her disability in circumstances where she was treated less favourably than another person (not having her disability) would have been treated in a comparable situation. In particular, the Complainant states that she was called out from bringing her guide dog into a retail shop, thereby drawing attention to the fact of her blindness, and subjecting her to humiliation.

The Complainant also brought claims concerning a failure to provide reasonable accommodation and victimisation.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance – namely the Prima Facie case.

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 had full legal representation at this hearing.  The Respondent provided me with a written submission dated the 24th of April 2024 together with a comprehensive book of Authorities. No oral evidence was provided by the Respondent.

From the outset, the Respondent wished to express its regret that the Complainant experienced any alleged discrimination. The Respondent denied responsibility for any discrimination, but any allegation of discrimination was a source of dismay the Respondent.

The Respondent submitted two matters for preliminary determination. First, regarding the appropriate notification of the proceedings; second, that the claim is misconceived where the party to whom liability attaches is not the Respondent. The Respondent sought to distinguish between it’s staff and the Security staff contracted into the premises.

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.

I have carefully considered the evidence in this case.

The Complainant gave evidence on her own account and was happy to give an affirmation. It should be noted that the complainant’s version of events was not challenged insofar as no witness for the Respondent company was presented to rebut any part of the Complainant’s narrative.

The Complainant is registered as blind. The Complainant has a guide dog named Pilot who provides safety, security and confidence in her day-to-day mobility. The Complainant described the process of being paired with Pilot and how his presence enhances and liberates her daily navigation. The Complainant has travelled extensively with both Pilot and the guide dog that preceded him, and the Complainant went on to explain that her achievements include competing in the track and field events for Ireland as a Paralympian in London 2012.

The Complainant explained that when she is out and about with Pilot it is clear that he is a guide dog. The Complainant showed me the reflective harness and vest together with the rigid handle frame. The dog also has a flash notice together with the medallion identifying the dog as a guide dog. I am satisfied that even the most cursory of glances would immediately identify Pilot as a working dog.

The Complainant went into the Respondent retail shop in the city centre on a Friday morning the 30th of June 2023 at about 9.30am. The Complainant had just dropped her son off to school and was going in to the shop to purchase some helium balloons for an event later in the day. The Complainant is very familiar with the shop and knows some of the staff who have always been helpful in the past. The Complainant says she was aware of other people, presumably customers, in the shop moving about. As she was carefully making her way to the register to look for assistance, she became aware of voices or a commotion behind her which she did not immediately identify as having anything to do with her. It was when somebody, a person she now knows to be a security guard, said something along the lines of …‘Excuse me. That dog is not allowed in here’.. that she realised that she was being addressed and that Pilot’s presence in the establishment was causing consternation.

The Complainant explained that in that moment she felt humiliated and embarrassed and somewhat vulnerable. When she asked if the person addressing her was Security the individual confirmed that he was. The Complainant asked that a Manager be brought over and I understand that by this time a shop Assistant had come forward to see what the problem was and went away immediately to get the Manager. The Complainant confirmed that outside the initial confrontation with the Security Guard she did not fault the staff. The Manager who came out immediately confirmed that the dog was welcome in the shop and a mistake had been made. The Manager said that this should never have happened. An explanation concerning the rotation of security guards was provided.

In the course of her cross examination the Complainant confirmed that she acknowledged and accepted that an apology had been made. Ultimately even the Security Guard had offered an apology, she said. Her concern, however, was that this situation had arisen at all. As a person with a disability, she feels she should not be put into a position of having to identify her disability or explain it. In her case, there is no ambiguity. This is evidenced by the presence of a guide dog with all the associated paraphernalia.  The Complainant painted a vivid image of how difficult standing her ground was. She had no sense of how many people were watching this interaction which took place in a public place. She was, she says, acutely aware of the three men directly in the circle that had now gathered (the Manager and two Security Guards). The whole situation was difficult. The Complainant said that she told the Manager that she would be making a complaint before she left the shop. The Manger it seems understood this was her intention and even mentioned the CCTV footage. They shook hands before she left. The Manager assured the Complainant that he would be available to verify and assist with any further action the Complainant may wish to take.

As previously noted, none of the Respondent’s potential witnesses were brought to the WRC and the Respondent it seems therefore accepts the Complainant’s narrative of what happened.

In the aftermath of the incident the Complainant decided that she would bring a complaint under the Equal Status Act of 2000. The Complainant understood that there was an obligation on an individual who is thinking of making a complaint, to first write to the service provider within 2 months of the alleged act of discrimination, stating the nature of the allegation and the intention, this is called a notification. The complainant must allow the respondent one month to respond. If dissatisfied with the response or if no response is forthcoming, the Complainant can refer the case to the Director General of the Workplace Relations Commission.  Whilst a standard form, known as the ES 1 form, may be used for notification purposes, any form of notification will work.

The Complainant gave evidence that the process of completing the ES1 form was difficult for her and that she required assistance with that. I understand that the WRC Access Officer/Disability Liaison Officer, put the Complainant in contact with another WRC staff member who assisted by physically filling out the ES1 form on her behalf. The Complainant gave further evidence that rather than dealing with an Post she decided to hand deliver the printed up version of the ES1 form directly to the shop. The Complainant confirmed that an individual in the shop by the name of Patrick willingly took delivery of the ES1 form (dated the 7th of July) and this event took place on or about the 13th of July 2023 and therefore well within the expiration of the two-month notice required under Statute.

The Complainant heard nothing further and proceeded to issue her Workplace Relations Complaint Form which issued on the 23rd of August 2023. The Complainant was acting expeditiously and was being proactive. I note therefore that the Workplace relations Complaint Form therefore issued within two months of the incident complained of. The Complaint Form confirms that the ES1 form had been sent on the 13th of July. The Complaint form was sent by the WRC to the retail address of the Respondent company in the Ilac Centre which is where the incident occurred. The Complaint Form was sent together with a cover letter from the WRC Customer Services on the 28th of August 2023.  I note that the Complainant had also gone to the trouble of providing the Registered address of the Respondent company on the Complaint Form but that this address was unfortunately not used by the WRC.

It was in these circumstances that when this matter came before the Adjudication Services on the 12th of January 2024 for the purpose of a hearing the fact that the Respondent was not present became problematic. It was decided that it would be unfair to proceed in the absence of the Respondent who had been  certainly served at the Ilac Centre address but not the Registered address. The Complainant had provided both addresses.  The Complaint Form was therefore sent by the WRC to the Registered Office address in Clonee. This was done at the direction of the WRC. This was done after the first hearing date of the 12th of January, some seven months after the event complained of.

To date, it is not clear why neither the ES1 (hand delivered to Dealz in the Ilac Centre on the 13th of July 2023) nor the Complaint Form (posted to Dealz in the Ilac Centre on the 28th of August 2023) was ever acknowledged or given to the person most appropriate to handle these matters. On the face of it this would tend to suggest a systemic failure within the retail unit in the Ilac Centre. Documents delivered were not communicated up the line. The Respondent legal team did not offer an explanation nor was any witness present to give evidence which might throw light on the situation.

In any event, it seems that the delivery of the Workplace Relations Complaint Form in late January of 2024 to the Registered Office in Clonee did trigger a response, with the Respondent engaging a legal team and taking an active interest since then.

At the hearing on the 7th of May 2024 much of the time was taken up with a discussion of the obligations concerning a timely and appropriate Notification. 

It is accepted that Claims arising under the ESA emanate under section 21, which is a mechanism by which a claim of prohibited conduct is referred to the Director of the WRC.

Section 21(2) provides as follows: -

“Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

The Complainant has given her evidence on Affirmation and this oral evidence has not been displaced. I accept that the Complainant (who lives very close to the retail shop) personally handed an ES1 form directly to a named member of staff on the 13th of July 2023. No evidence was adduced to dissuade me of this fact. There was plenty of excellent legal argument concerning the desirability of establishing proof of service and/or proof of post et cetera. The WRC  online advice reference ‘registered post, or get a certificate of posting from the Post Office.’ However this is not a Statutory requirement and advice presented on the WRC website (whilst helpful and demonstrate best practise) are not necessarily grounded in Statutory imperatives. The Respondent ‘s own in-house communication put them at a disadvantage, and the Complainant cannot be expected to carry the blame for that.

In accepting that the Complainant has satisfied the obligation set out in 21(2) I do not need to consider the secondary arguments put to me by the Complainant (and resisted by the Respondent) concerning Section 21(3) which reads:

Section 21(3) (a) On application by a complainant the Director of the Workplace Relations Commission may—

(i)                  for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii)                exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

Having established that the complainant gave the required Notice within the required timeframe I can move on to the evidence concerning the prohibited conduct. On balance I am satisfied that the Complainant has established a Prima facie case of discrimination. I am minded to make a finding similar to that made in the case of Sophia Brennan v KOA ADJ-00038210  this latter decision involved the refusal by a restaurant to allow the complainant’s guide dog onto the premises. The Adjudication Officer in finding for the complainant commented:

“The dog should simply be accommodated on arrival... 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.”

The unchallenged facts established by the Complainant in this case again disclose that treatment of being made to feel ‘other’. The Complainant has not willingly returned to this shop where her disability was broadcasted, and her humiliation was complete. I do appreciate that Management swept in to ameliorate the situation as quickly as they could and in her evidence the Complainant very fairly acknowledged that fact.

I do not distinguish between staff employed directly by the Respondent and Agency or Contracted staff on the premises. The Complainant was an Invitee on to the premises and the Respondent is a Service Provider. All staff on the premises need to be trained up in all matters of the Equal Status Act.

The Complainant is seeking a recommendation that the Respondent’s staff members are trained on a repeat basis on the provisions of the ESA and the duties of service providers thereunder. In addition, the Complainant is seeking an order that the Respondent demonstrate its continued commitment and compliance with the ESA by displaying “Guide Dogs & Assistance Dogs Welcome” signage at their entrance.

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

CA-00058462-001 -  The Complainant was discriminated against in that she was treated less favourably than a person with no visual impairment would have been treated. The Complainant is entitled to be compensated for this treatment. In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant. In the circumstances I award €7,000.00.

I am also directing that the Respondent’s staff members are trained on a repeat basis on the provisions of the ESA and the duties of service providers thereunder.

In addition, I direct that the Respondent demonstrate its continued commitment and compliance with the ESA by displaying “Guide Dogs & Assistance Dogs Welcome” signage at their entrance.