On Sunday 14th July a Highland Restaurant refused to sell a portion of Fish Fingers to a man because they were on the Children's menu.
The Man has Down's Syndrome and according to his family, can only eat small portions. Fish Fingers are his meal of choice.
The Family have claimed that they were kept waiting for an unacceptable length of time and that the refusal to sell the Child's portion amounted to discrimination.
The Restaurant have denied discriminating against the man and have stated publicly that they apologise and wish to make amens. They have also launched a formal investigation into the matter and a representative of the family is currently in touch with the Regional Manager for the Hotel, of which the Restaurant forms part.
Although, this case has been more widely publicised for the 70 thousand or so followers of the Facebook campaign which followed the incident, the facts here highlight the potential Equality and Discrimination law challenges within the Hospitality Sector.
This article explores the some of the legal and practical issues faced in hospitality sector when presented with a potential case of discrimination.
Legal Issues
It is important to remember that the Equality Act applies to the hospitality sector.
Employment
The sector is an employer and a provider of goods, facilities and services. The Equality Act states that it is unlawful to discriminate on grounds of disability and that discrimination can be both direct and indirect. It is also unlawful and in some cases criminal, to victimise or harass someone because of their disability. In order to avoid discrimination, there is an obligation as an employer to make "reasonable adjustments" for any disabled members of staff.
Reasonable adjustments for staff may include changes to a working pattern or the provision of auxiliary aids to enable a disabled employee to stay in work. There is no prescribed list of reasonable adjustments because making the adjustments and understanding the support needs of disabled employees is very person specific.
Providing Goods, Facilities and Services
There is also an anticipatory duty to make reasonable adjustments for disabled people as visitors, guests, clients or customers.
This may mean ensuring that a building is fully accessible (wide enough corridors for wheel chair uses, the use of ramps and suitably sized lifts, appropriately located accessible toilets etc.). It may also mean that a conference venue is equipped with a hearing loop and suitable audio visual technology to allow disabled delegates to fully participate; not to mention that the venue itself is accessible (accessible does not mean requiring someone in a wheel chair to go around the back and use the servants entrance!) This is by no means an exhaustive list and should not be interpreted as such.
The crux is that it is for providers of goods, facilities and services to anticipate the use of those services by disabled people, and to have make suitable adjustments in advance to allow that to happen.
"DDA Compliant" does not exist
It is also important to keep in mind that there is no legal concept known as "DDA compliant" - and there never has. This unfortunate use of phrase has been used by many to advertise that their services comply fully with the (former) Disability Discrimination Act.
First of all, there never was a legal test of compliance within the Disability Discrimination Act. It was and remains impossible to say that you are "DDA Compliant".
The duty to make reasonable adjustments, whether for employees or as a provider of goods, facilities and services was an evolving one, continuing (it did not stop) and subjective (be it person, building or service specific).
There was no tick box list of what was reasonable and what was not. There was no exhaustive list of what was a disability and what was not.
Secondly, the Disability Discrimination Act has now been replaced by the Equality Act. The duties under the former legislation continue in the new legislation.
If something is described as "DDA Compliant" is usually means that it is not. It demonstrates a complete lack of understanding of the relevant legislation and the legal obligations contained therein.
Staff Training
Regular staff training is also important as part of the anticipatory duty. For example, understanding that disabled people are not a homogeneous group, the term "accessible" does not just incorporate wheelchair users, that assistance dogs are not just for blind or partially sighted people and that some disabilities may in fact be hidden and not obviously apparent are all important to keep in mind. For the avoidance of doubt, this is not an exhaustive list of items to be included in a training exercise.
Taking this background into account, where does it leave the present case? Is it discriminatory to refuse to sell a children's portion of fish fingers to a man with Down's Syndrome?
First all all, it is important to be clear that these cases of potential discrimination are rarely clear cut. The approach taken below will be multi-faceted; examining arguments presented by both parties.
The Duty not to Discriminate
The Length of Time the Family had to Wait
One version of events suggests that from the outset, the group of three customers were kept waiting because one of their party was a man with Down's Syndrome.
In this case, it is implied that the waiting time amounted to less favourable treatment.
This would mean that the group were treated less favourably than the restaurant would treat another group of three people who did not have a man with Down's Syndrome within their party.
If this was the case, then this would amount to unlawful discrimination.
However, it is important to explore other potential reasons for the wait. For example;
(a) Was the restaurant short staffed?
(b) Did the staff know that group of customers were waiting to be seated and ultimately served?
(c) Could there have been a breakdown in communication between the front of house and the waiting staff?
(d) In all the circumstances, was the waiting time reasonable?
Additionally, poor customer service, in itself, does not necessarily amount to unlawful discrimination.
The Hotel management have stated that the party were seated and told that there would be approximately a 20 minute waiting time for food (15 minutes to cook and 5 minutes lay over in case of a problem).
The Family do not dispute that they were told about the waiting time, but have argued this was because one of their group had Down's Syndrome and the Restaurant did not want to serve them.
It is unlikely, that the waiting time on its own, would have amounted to discrimination.
In order to be discriminatory, the group would have had to have been treated less favourably than others in the same circumstances. A 20 minute food service window is not unreasonable if food is cooked from fresh and this has been brought to the attention of all customers.
The Choice of Menu - Adult versus Child
The Children's menu is printed on the same card as the Adult menu. It stated that Children eat for free on a Sunday and the restaurant's tills were programmed accordingly. Children is defined by the restaurant as under 12s.
The Family asked to order from the Children's menu because it had (1) smaller portions and (2) fish fingers - a food which the man with Down's Syndrome could eat without issue. There was no fish finger option on the Adult menu.
The Hotel claims that the server explained that because of the difficulty with the programming of the till, they could not offer a Children's portion of fish fingers but would ask the Chef to prepare a suitable alternative (Goujons) in a smaller portion.
The duty to anticipate
It is reasonable to anticipate that some would be diners may have specific dietary requirements; some of which would be in consequence of a disability.
In this sense, any restaurant would have to anticipate the possibility of offering non-menu item alternatives. This may include, for example, offering something from a different menu, if available, or arranging for limited bespoke cooking depending on the circumstances of the case.
In the circumstances, what is reasonable?
In determining whether or not a particular course of action is reasonable, it is important to consider a range of factors such as the proportionaility of making the adjustment, the availability of any alternatives, the practical difficulties posed amongst other factors.
In this example, the Hotel did offer an alternative. However, this has to be contrasted against whether or not making the requested adjustment (providing fish fingers from the Children's menu) would have posed any particular difficulty for them.
The Children's menu was available in this case, notwithstanding potential difficulties with the Till system. There does not seem to be any reason there for why the Hotel could not have offered Fishfingers as requested.
Equal treatment may still discriminate
The Hotel's point of view here is that the guest presented to them as an adult. The staff in the Hotel therefore treated the man as an adult and explained that the Children's menu was reserved for the Under 12s.
The Hotel is adament that no discrimination took place; they treated this guest in the same manner as any other adult guest.
In these circumstances, a well intentioned stance of equal treatment for everyone, may have amounted to indirect discrimination. This is where a provision, criteria or practice which applies equally to everyone places a disabled person at a substantial disadvantage compared to a non disabled person.
The potentially discriminatory provision here is that the Children's menu is only available to under 12s; notwithstanding that some disabled would be diners may seek to order from that menu.
The Hotel did not make any adjustment to this provision and potentially, because the specific dietry requirment of this guest arose in consequence of his disability, could be said to have discriminated (even if that was not the intention).
The Importance of Staff Training
As highlighted above, poor customer service in itself does not amount to discrimination. However, ignorance of the law and in this case the multi-faceted obligations of the Equality Act 2010 is not an excuse either.
This view is echoed by the Chief Executive of the Institute of Hospitality Peter Ducker:
“Good induction practices and staff training are essential to ensure your staff are diversity-aware. Research shows that many of us are afraid of causing offence or not knowing what to do when interacting with a disabled person.
You might think that none of your guests are disabled so there is no real need for you to tailor your service to meet their needs. But you would be overlooking the fact that, according to the 2011 UK census, one in six people has an ‘activity limiting’ health problem or disability. In fact, many of your existing customers are likely to be in this group but you may not realise it. Impairments such as arthritis, poor eyesight, back problems and autism are invisible and most people will not mention them when booking a room with you.
There is a common misperception that to become fully accessible requires investing huge amounts of money in widening doors and building ramps, but less than 10% of disabled people are wheelchair users. If we think of accessibility in its broadest sense, some small changes can lead to your business being more welcoming to a wider range of people.
VisitEngland research shows that disabled people and their travelling companions spend over £2bn a year, accounting for 11% of all domestic overnight stays in the UK. Disabled people stay longer on average (3.6 nights) than non-disabled people (three nights) and are more likely to travel with carers, relatives or friends and stay during quieter times.”
Useful Resources
For more information on the Equality Act and the legal obligations of the providers of goods, facilities and services, please visit the Equality and Human Rights Commission website: www.equalityhumanrights.com
The Hospitality Institute has also prepared three short training videos about valuing diversity in the sector. These can be viewed online here: http://www.youtube.com/VisitEnglandBiz
