Complainant

Respondent

Parties

Nadine  Lattimore

Lidl Ireland GMBH

Representatives

 Lorna Madden BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00062741-001

11/04/2024

The complainant is a blind person with complete visual impairment and a user of a guide dog.  The respondent is a supermarket chain providing goods to the public.

The complainant claims that she was the subject of less favourable treatment on grounds of her disability in and around her attendance at one of the respondent’s stores to do her shopping on 14 February 2024, and that she was not provided with reasonable accommodation by the respondent contrary to the Equal Status Act 2000.

The respondent accepted that the complainant was asked to move away from the bakery shelf while shopping in store on 14 February 2024 because of her guide dog.  The complainant was not refused service and assistance was offered to the complainant before she was asked to move away.  Whilst it was acknowledged on behalf of the respondent that there were shortcomings in how the complainant was dealt with in-store on the date in question when she raised this issue, it was submitted that a prima facie case of discrimination had not been made out in relation to the relevant exchange.  It was further not accepted that the respondent failed to make reasonable accommodation for the complainant in accordance with the Equal Status Act 2000. 

The complainant attended at the respondent’s store on 14 February 2024, a store she has attended for many years.  The complainant was with her clearly identifiable harnessed guide dog who was assisting her to access the respondent’s services.

At the bakery area in the store, a member of the respondent’s staff offered the complainant assistance and then asked the complainant to move away from the area with her dog.

The complainant was discriminated against in being asked to move away from the shelves in the bakery section of the store.  The complainant did not believe she would have been treated that way had she been using her long cane.  On previous occasions, when the complainant attended without her guide dog, she never had an issue and was never excluded or asked to leave a section as a cane-user.  No other customer present was asked to move away from the shelves.  When the complainant explained to the staff member that her dog is a working guide dog as she is blind, the staff member said that she was concerned about the dog interfering with or licking the food.  The complainant walked away from the area as she was not prepared to engage at that point; she felt humiliated, frustrated and upset about the exchange that had taken place.  As the complainant walked away, she could hear what had occurred being discussed with someone else and the complainant referred to as the person who had attended previously in-store with a dog who had spoiled bakery products.  The complainant was further humiliated and upset by this.  The store is the complainant’s local store; she found this narrative damaging to her character and to set an unwanted tone for future shopping experiences.

The complainant completed her shopping and requested to speak with a manager when she reached the checkout area.

The deputy store manager joined the complainant with the relevant staff member and a conversation took place on the shop floor which the complainant found to be embarrassing and humiliating. The complainant considered this conversation to have been hostile and unprofessional in nature.  Another staff member intervened who clarified that the complainant was not the owner of the dog previously involved in eating bakery stock and apologised to the complainant.

The complainant returned to the store on 21 February 2024 to speak with the store manager and was reassured by the store manager that an incident such as had occurred on 14 February would never reoccur.  

In cross-examination, the complainant confirmed that she was not able to access the service or goods that she was trying to obtain in the bakery section.  It was not disputed that the initial communication by the staff member was to ask the complainant could the staff member get the product for the complainant.  The complainant was then asked to move away with the dog.  The complainant was not prepared to accept assistance on the basis that she moved away from the area.  The complainant did not experience any issue on entering the store with her guide dog on the day in question.

Legal submissions on the relevant provisions and purpose of the Equal Status Act 2000, as amended, along with supporting case law were referred to by the complainant in support of her claims against the respondent of discrimination and a failure to provide reasonable accommodation.

The complainant was entitled to the same rights and to access the services in-store as any other customer, notwithstanding her guide dog’s presence and she did not receive that.  The complainant was othered in what occurred on 14 February 2024.  The conduct of the respondent’s staff members was unlawful.  The complainant sought compensation and a recommendation that the respondent’s staff members are trained on a recurring basis on the provisions of the Equal Status Acts.  The complainant also sought an order that the respondent demonstrate its continued commitment and compliance with the Equal Status Acts by displaying “Guide Dogs & Assistance Dogs Welcome” signage at store entrance.

The respondent did not dispute the material facts of this case, including the fact that the complainant was asked to move away from the shelf in the bakery section in-store because of her guide dog on the date in question.  The staff member in asking the complainant to move away was not acting in accordance with the respondent’s policies.  It was further accepted that there ensued a protracted exchange between the deputy store manager and the complainant when the complainant raised this issue.

The respondent contested whether the facts amounted to discrimination and a failure to provide reasonable accommodation within the meaning of the Equal Status Acts.  The complainant did not experience any issue with entering the respondent’s store.  The complainant was offered assistance by the staff member in the bakery section in obtaining product.  It was not intended by offering assistance that the complainant would be unable or prevented from accessing any product.  The complainant was not refused service and she was not prevented from entering the store.  The conversation between the deputy store manager and the complainant was about the issue in the bakery area.  The respondent accepted that the situation was not dealt with in the manner the respondent hoped or expected of its staff however it was submitted that the complainant was not treated differently or less favourably because of her disability from other customers making complaints.

Following on from the incident of 14 February 2024, the respondent communicated with the complainant through its customer service channels and the respondent’s customer service department manager communicated directly to the complainant her hope to have the opportunity to discuss with the complainant her perspective of the experience.  The respondent immediately investigated the incident in question and liaised with all staff members involved.

In response to the complainant’s ES1 form, the respondent expressed disappointment at what the complainant had outlined therein and informed the complainant that matters were being investigated.  The respondent invited the complainant and her guide dog to attend at its head office to discuss her experience so that there could be learning from the complainant’s experience.  It further outlined measures it had taken to avoid similar incidents occurring, including meeting with the Irish Guide Dogs organisation.

The respondent has and is taking this matter seriously and is addressing issues raised in these proceedings.  In March 2024, the respondent commenced work on creating more robust policies and looking at the manner in which staff are trained on the subject of service dogs/assistance animals.  In this regard it has met with the Irish Guide Dogs and other canine companion services operating in Ireland and Northern Ireland.  The respondent’s work in this area is ongoing.

The respondent referred to its specific Store Policy for Guide and Assistance Dogs, Dignity in the Workplace training records for staff members and some of its recent initiatives and measures aimed at providing an accessible service for all customers.

The respondent’s Sales Operations Manager gave evidence of dignity in the workplace training provided to staff on commencement of employment and the circumstances in which refresher training is provided.   The witness explained how a weekly business letter issues to store managers and is implemented with their team.  In or around March 2024, a weekly business letter reiterated the respondent’s policy on guide and assistance dogs and the action store managers were to take in ensuring all team members were aware of the policy.

The respondent’s Director of Legal & Compliance outlined how Legal & Compliance liaised with the customer service team to ensure the matter of 14 February 2024 was properly investigated.   The respondent took this matter seriously from the outset.  All staff members involved were spoken to and a disciplinary sanction issued.   On behalf of the respondent, the witness apologised for the personal impact on the complainant and expressed welcome, in due course, for any assistance from the complainant with the respondent’s work on its policies and procedures on guide and assistance dogs.

The Legal Framework

The preamble to the Equal Status Act 2000, as amended, (the “Act”) includes the following as its purpose:-

“..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.”

Discrimination for the purposes of the Act is defined in section 3 and includes 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 protected grounds.

Section 4(1) of the Act, set out hereunder, provides that discrimination includes a refusal or failure by a service provider to provide reasonable accommodation for a person with a disability:-

“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.”

Section 4(6)(b) of the Act includes within the meaning of a service provider:-

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

The prohibition of discrimination in the disposal of goods and provision of services is set out in section 5(1) of the Act as follows:-

“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.”

Application of the Law to the Facts

In reaching my decision I have taken into account the oral and written submissions of the parties and given appropriate weight to the oral and documentary evidence.  I have not taken into account transcribed excerpts of recordings in respect of which oral evidence was or could have been tendered.

The material facts of this case were not in dispute.

The complainant was accompanied and assisted by her guide dog at the respondent’s store on 14 February 2024 when she was asked by a staff member to move away from the shelves in the bakery area because of her guide dog.  The complainant, as a blind person with complete visual impairment, is entitled to be provided with reasonable accommodation when accessing services and, in this case, to avail of the respondent’s disposal of goods or service provision with the assistance of her guide dog.  On the date in question, the complainant’s guide dog was clearly identifiable as such in its working guide dog uniform.

Based on the foregoing, I find that the complainant was discriminated against on the disability ground within the meaning of section 3 and section 4(1) of the Act, when she was asked by a staff member to move away from the shelves in the bakery section of the respondent’s store on 14 February 2024 because of her guide dog.  This discrimination is in contravention of section 5(1) of the Act.  It was submitted on behalf of the respondent in relation to reasonable accommodation and section 4 of the Act that the respondent provides for reasonable accommodation through its store policy for guide dogs and staff training, and that assistance was offered to the complainant to avail of the respondent’s services on the 14 February 2024, such that it was not impossible or unduly difficult for the complainant of the service, within the meaning of section 4(1) of the Act.  Accepting that it was not the respondent’s policy to exclude guide dogs from their stores, it is common case however that the complainant was asked by a staff member of the respondent on the date in question to move away from the shelves in the bakery area because of her guide dog.  The respondent’s store policy gives expression to its provision of special treatment regarding guide and assistance dogs to ensure that persons using these dogs have access to its services.   I am satisfied that by its policy, the respondent recognises that without such special treatment or facilities, it would be impossible or unduly difficult for such persons to avail of its services.  On the 14 February 2024 there was a failure on the part of a staff member to do all that was reasonable to ensure that the complainant had access to the service and obtain goods.  This failure caused the complainant unnecessary upset and humiliation.  Whilst I acknowledge that the staff member’s request was not in accordance with the respondent’s store policy for store guide and assistance dogs which expressly states that “All Guide & Assistance dogs are welcome in all our stores nationwide, including puppies in training”, responsibility for the staff member’s failure rests with the respondent. 

I do not find that there was discrimination within the meaning of the Act in and around the deputy store manager’s exchange with the complainant on 14 February 2024.  This exchange took place after the complainant requested to speak with a member of management.  It was common case that the response to the issues raised by the complainant was undesirable and unprofessional.  I am not however satisfied on the evidence that the complainant was treated less favourably than another person would have been treated in a comparable situation on grounds of her disability.

The respondent’s ES2 response of 29 March 2024 conveyed to the complainant its regret at what had occurred in-store and advised that the matter was under investigation to ensure expected standards and legislation relating to service dogs were being adhered to.  I found an apology and expression of interest in the complainant’s assistance with the respondent’s work with the Irish Guide Dogs to have been sincere and to have demonstrated understanding of the impact of the incident on the complainant.  I note also that the complainant expressed her appreciation of the apology at the hearing and how it was important to her.

In conclusion, I find that the complaint of discrimination on grounds of disability and a failure to provide reasonable accommodation in and around the complainant having been asked to move away from the shelves in the bakery area because of her guide dog on 14 February 2024 to be well founded.

For the reasons set out above, I find that the complainant was discriminated against contrary to section 5 of the Equal Status Act 2000, as amended.

In terms of redress, section 27 of the Act provides for the making of orders as may be appropriate in the circumstances.   I have taken into account the complainant’s evidence of the impact on her of being asked to move away with her guide dog on 14 February 2024 and the respondent’s ES2 response of 29 March 2024 which conveyed to the complainant its regret at what had occurred and its apology.  I consider appropriate in the circumstances to make an order for compensation in the sum of €2,000.00 for the effects of the discrimination. 

The respondent is engaged in ongoing work with relevant bodies to address the issues arising in this case.  In such circumstances, I do not consider it appropriate to make an order in the terms requested by the complainant regarding particular courses of action.  The respondent’s actions further to the 14 February 2024 incident indicate the respondent’s commitment to ensuring compliance with the relevant legislation.

Equal Status Act – Discrimination – Failure to provide reasonable accommodation – Supermarket - Guide dog