Complainant

Respondent

Parties

Nadine Lattimore

Eddie Rockets Ireland Limited

Representatives

David McCarroll, RDJ LLP

Aoife Farrelly BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00061976-001

05/03/2024

The Complainant is a blind person and is a user of a guide dog for over 16 years.

The Complainant contends that 2 October 2023 she was the subject of less favourable treatment on the grounds of her disability and that she was not provided with reasonable accommodation by the Respondent contrary to the provisions of the Equal Status Act 2000, as amended (the “Act”).

The Respondent does not dispute that the Complainant was discriminated against contrary to the Act on 2 October 2023.

Chronology of events

The Complainant attended at the Respondent’s premises at approximately 12:45pm on 2 October 2023. She was with her clearly identifiable guide dog, Pilot, who was assisting her.

They entered through the front door off Parnell Street and waited to be seated. A server approached them and offered them a table by the door. The Complainant did not want to sit beside the door, as there was no suitable space for her dog, so she requested a table further into the restaurant. The Complainant noted that the restaurant sounded quiet, and it was not a busy time of day so she didn’t anticipate that her request would be an issue. Furthermore, the Complainant has previously sat at a table further into the restaurant.

The server refused the Complainant’s request to sit elsewhere and stated that it was because the size of her dog might cause distress to other customers. The Complainant explained that Pilot was a registered guide dog and not a pet. Despite this, the server continued to insist on the Complainant sitting beside the door, saying that she had been told that people with dogs could sit in that area but no further into the restaurant.

The server would not listen to the Complainant as she asserted her rights under Act. The Complainant explained that her guide dog was not a pet but was a working animal. The Complainant asked to speak to a manager and the server identified herself as the restaurant manager.

The Complainant explained that she had been seated in the restaurant on several occasions previously and had not encountered any issues with the size of her guide dog.

The restaurant manager said that she had never seen the Complainant before. At that point, another staff member joined the conversation. He confirmed the Complainant had been in the restaurant previously and he tried to explain to the manager that the Complainant was allowed to sit anywhere she wished. The manager abruptly walked away while the Complainant attempted to assert her rights. The Complainant only became aware that the manager had walked away when she was informed by the other staff member. The Complainant then left the restaurant in a distressed state with her guide dog to call the Respondent’s head office.

The Complainant felt as though she had been treated like an unreasonable, difficult customer by the manager and therefore wanted to confirm her dog’s special status by presenting the registration of her guide dog. She re-entered the restaurant, but a conversation was not possible as the restaurant manager repeatedly defended her actions and spoke over the Complainant.

The Complainant was upset and humiliated. She left the restaurant and lodged a complaint to the Respondent’s head office over the phone. Two customers came out to console the Complainant and asked if there was anything they could do. She provided them with the head office phone number. The Complainant spoke to head office again over the phone.

The Equal Status Act 2000, as amended (the “Act”)

Section 5 (1) of the Act prohibits discrimination in the following terms: -

“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”.

Section 3 of the Act defines discrimination as: -

“(1) For the purposes of this Act discrimination shall be taken to occur —

(a) where 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 subsection (2) or, if appropriate, subsection (3B) (in this Act 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,Or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

The protected grounds are set out in section 3(2) and include: -

“(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”)”

(j) that one—(iv) has opposed by lawful means an act which is unlawful under this Act, and the other has not (the “victimisation ground”).

Special treatment/reasonable accommodation is defined in Section 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.

Interpretation of the Act

In the Supreme Court in Kim Cahill v Minister for Education and Science 2017 IESC 29, McMenamin J stated at paragraph 45: -

“The Act of 2000 is not always easy to construe. However, its long title conveys clearly that the statute was intended to be a statute “to promote equality”, to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and “remedying”, certain acts of discrimination, and other lawful activities. To my mind, this recital can only lead to the conclusion that the provisions in question must, under the constitutional provision referred to, be treated as being elements of remedial social legislation. Being remedial in nature therefore, the Court is permitted to adopt a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas… the Act of 2005 sets out that a purposive interpretation is open to a court in circumstances where a literal interpretation would, inter alia, “fail to reflect the plain intention of the Oireachtas” (see s.5(1)(b) of the Interpretation Act, 2005). In my view, the remedial intent is discernible from the Act itself; any other approach to these sections would not reflect the intention of the legislature.”

In respect of the duty to provide reasonable accommodation under section 4 of the Act, McMenamin J stated at para 58: -

“The duty addressed under s.4 differs from that under s.3, in that s.4 deals with obligations to adjust rules or standards, or policies, to meet the specific needs of people who are covered by a protected ground: in this case, disability.” 29. At paras 62-63, he stated:

“In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service… The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element, (which does not arise in this case), but second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient.”

In the Court of Appeal in the case of Smith v The Office of the Ombudsman & Others [2022] IECA 99,the Court confirmed that the Act and the regime provided thereunder were: -

“processes put in place by the Oireachtas to root out discriminatory practices and to provide redress to those affected by such practices where they are truly warranted.”

Legal submission – discrimination and failure to provide reasonable accommodation

The Complainant acknowledges that under section 38A(1) of the Act, she must establish a presumption of discrimination. In this regard, the Complainant must establish facts from which it may be presumed that prohibited conduct has occurred in relation to her. The Complainant also acknowledges that the test for what constitutes a presumption of discrimination has been set out in several decisions of the Labour Court, in particular, in Southern Health Board v. Teresa Mitchell [2001] E.L.R. 201and Valpeters v. Melbury Developments Limited [2010] 21 E.L.R. 64. In the latter caseat p.68, the Labour Court stated that:

“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.”

The Complainant relies upon the oft cited decision of the Equality Officer in Maughan v The Glimmer Man Ltd DEC-S2001-020in which the Equality Officer held: -

“I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent’s premises they would not have been served in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) “discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations.”

Judy Walsh in her book Equal Status Acts 2000-2011comments at page 104 that the above decision recognised that a claim of direct discrimination could be sustained where a service provider failed to treat persons differently. The Labour Court also recognised that the application of the same rules to different situations could amount to discrimination in its decision inCampbell Catering v Rasaq [2004] ELR 15.

The denial of a service in such circumstances also amounts to a failure to provide reasonable accommodation under section 4(1) of the Act. In the case of Moloney v Park House Hotel DEC-S2008-073 the Equality Officer stated: -

“[a guide dog is] not just a pet…it had a specific purpose and function; its owner was visually impaired and requires the use of the dog to find his way around…the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise.”

The Complainant also relies on the WRC decisions in Pamela McKeogh v Kilkenny House Hotel ADJ-00027292 and Sophia Brennan v KOA ADJ-00038210.The latter decision involved the refusal by a restaurant to allow the complainant’s guide dog onto the premises. The respondent contended that it provided a number of accommodations to the complainant including an offer of eating at a table outside on the footpath. 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 Complainant submits that she has established a presumption of discrimination and failure to provide reasonable accommodation as required and further submits that the Respondent has failed to rebut the inference of same. She was denied seating further into the restaurant on the basis that she had a dog. This refusal was continued even after she notified the Respondent’s staff that the dog was a guide dog and even after she asserted her legal rights under the Act.

Direct evidence of the Complainant

The Complainant gave compelling evidence regarding the impact on her of the Respondent’s actions on 2 October 2024.

Conclusion

By reason of her disability, the Complainant has experienced discrimination on a number of previous occasions. She has repeatedly been refused access to services on the basis that she was accompanied by her guide dogs, and her experience is not uncommon for guide dog users as evidenced by a recent survey from the Irish Guide Dogs for the Blind. Oftentimes in the past, the Complainant would have explained her rights and thereafter gained access to the relevant service. This did not happen on 2 October 2023. The manager refused to listen to the Complainant and walked away abruptly.

What occurred on 2 October 2023 in front of other customers was unacceptable, humiliating and deeply upsetting. The Complainant was othered. The conduct of the Respondent’s staff members, in particular the restaurant manager, was unacceptable.

Based on the information set out above, and the evidence that was provided by the Complainant at the hearing, it is clear that the Complainant has a disability and that she was treated less favourably by the Respondent who was providing a service within the meaning of section 5 of the Act.

The Complainant submits that compensation for discrimination should be effective, proportionate, and dissuasive. This is a fundamental principle which is enshrined in Article 19 of the Treaty on European Union, in Article 47 of the Charter of Fundamental Rights of the European Union and also in case law from the ECJ. The Complainant is seeking that an order or compensation should be made which is in line with these requirements. The Complainant is seeking a recommendation that the Respondent’s staff members are trained on a repeat basis on the provisions of the Act and the duties of service providers thereunder, including the manner in which they engage with persons with a disability in any investigative processes. In addition, theComplainant is seeking an order that the Respondent demonstrate its continued commitment and compliance with the Act by displaying “Guide Dogs & Assistance Dogs Welcome” signage at their entrance, which can be furnished to them by Irish Guide Dogs for the Blind.

Preliminary matter

The Respondent contends that the Complainant is limited to the extent of the complaint made by her to the WRC 5 March 2024 wherein she confirms that the first date of discrimination 2 October 2023 and the most recent date of discrimination 2 October 2023. In that regard, the Respondent is obliged to meet an instance of alleged discrimination that occurred on one day being 2 October 2023.

Respondent’s submissions

At the outset, the Respondent accepts the following facts and will not challenge the Complainant on same.

·        The Complainant attended at its premises on 2 October 2023 with her guide dog in fully identifiable working harness.

·        A female member of staff invited her to seating near the entrance. The Complainant sought seating at a different location in the premises.

·        The female member of staff did not accede to this request and advised that dogs were not allowed in the restaurant. It is fully accepted that this was in direct contravention of both the premises’ policy and in contravention of the Equal Status Act.

·        A male member of staff approached and advised that the Complainant was of course entitled to enter with her dog; that he remembered her from previous visits.

·        That on receipt of the Complainant’s complaint on 3 October 2023, the Respondent’s Area Manager emailed the Complainant and immediately apologised to the Complainant for her experience in the Respondent’s Parnell Street branch.

In the context of the above admissions, the Respondent accepts that it is in contravention of the Equal Status Act 2000, as amended (the “Act”), in respect of the actions of its staff member on 2 October 2023. The Respondent admits that this was an honest mistake on the part of its employee for which it is responsible. The contravention was immediately corrected by another member of staff who apologised for the misunderstanding.

On receipt of the complaint by the Complainant, the Area Manager made an unequivocal immediate apology; opened an investigation into its own employee’s actions and committed to resolving the issue in the best way possible. The isolated incident was escalated upwards to the Director of Operations for the Respondent Group who undertook the investigation. Further, a letter of apology issued from the Managing Director to underscore the gravity with which the Respondent company dealt with the incident.

For the avoidance of doubt, from the initial incident and the intervention of the Head Chef immediately after the incident, on 2 October 2023, the Respondent has never contested that it was in contravention of either its own policy or of the Act.

Actions taken by the Respondent

The Respondent immediately upon providing an apology to the Complainant, commenced an investigation within its own organisation to identify training gaps and re-educate its employees on the very important principles highlighted by the Complainant. To that end, on completion of the in-house investigation, the Group Operations Director wrote to the Complainant on 26 October 2023 and confirmed that the staff member in question had received full training on service animals and on the Respondent’s Disability Management Plan. Further, refresher training had been completed in all the Respondent’s restaurants and the Disability Management Plan was placed in a more prominent position within the training manuals and Health and Safety Plans.

The Respondent confirms that it is very much cognisant of the importance of service animals and the rights of customers who require their assistance.

The Respondent enrolled in the Irish Guide Dogs Association “Sponsor a Guide Dog” programme and has provided water bowls for service dogs at all restaurants. The Respondent further offered, by means of apology, a voucher to the Complainant for her friends and family to enjoy a meal at one of its restaurants.

Further, on receipt of the within complaint, the Respondent offered the Complainant compensation of €5,000 together with a repeated apology and a request regarding any further actions required by the Complainant. The Complainant did not accept the offer of compensation.

On 28 November 2023, the Group Operations Director issued a Memorandum on Guide Dogs and Assistance Dogs Awareness to all restaurants together with fact sheets.

Matters disputed by the Respondent

The female staff member referred to was a supervisor in the employment of the Respondent rather than a manager.

As has been fairly claimed by the Complainant, she was not refused entry. She was directed to seating near the entrance. The Respondent operates a seating policy whereby guests are asked to wait to be shown to the appropriate available table by their host. This seating policy operates in every restaurant with every guest.

While the Respondent’s employee accepts that her actions were in breach of the Act as alleged, she strongly disputes that she was rude in the manner attributed to her by the Complainant or in any way. Rather, she submits that she was embarrassed by her honest mistake and make an immediate apology and effort to make up for her error. In addition, her colleague, the Head Chef was also extremely apologetic and likewise sought to correct the accepted wrong that had occurred.

Conclusion

The Respondent has acknowledged that its actions were unacceptable. The Respondent immediately apologised; offered to make amends; implemented countrywide training; took remedial and additional action to support awareness of guide dogs in its restaurants and made an open offer of financial contribution in acknowledgment of the gravity with which it viewed the incident on 2 October 2023.

In recognition of the Complainant’s submission that compensation for discrimination should be effective, proportionate and dissuasive, the Respondent submits that its actions are entirely in line with this principle.

Preliminary matter

The Respondent raised a preliminary issue about the timeframe of the complaint. I note that in her complaint referral form to the WRC, the Complainant states that 2 October 2023 is both the date of the first incident of discrimination and the most recent date of discrimination. I confirm, therefore, that my investigation is confined to events which occurred on 2 October 2023.

Substantive complaint

The issue for determination in this complaint is whether the Respondent discriminated against the Complainant on the disability ground contrary to sections 3 and 5 of the Equal Status Act 2000, as amended (the “Act”), in relation to the provision of a service.

I find that the Respondent is a service provider within the definition of the Act. There was no dispute that the Complainant suffered from a disability. There was also no dispute that the incident in question took place. It was not disputed by the Respondent that its actions were in contravention of the Act. In the circumstances, therefore, I find that the Respondent discriminated against the Complainant on the disability ground.

I find, pursuant to section 25(4) of the Act that the Complainant was discriminated against on the disability ground contrary to section 3(1) and in terms of section 4(1) of that Act.

I note the Respondent has acknowledged that the actions of its staff member were unacceptable and has taken remedial action to avoid the occurrence of a similar incident in the future. I also note that the Respondent attempted to compensate the Complainant for the discrimination she experienced.

Under section 27(1) of that Act, I order the Respondent to pay the Complainant compensation of €5,000. I would also encourage the Respondent to consider placing “Guide Dogs & Assistance Dogs Welcome” signage at the entrance to each of its restaurants.

Discrimination on the disability ground – status of guide dogs