Thursday, 18 July 2013

Fish Fingers and Law

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.  


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:

The Hospitality Institute has also prepared three short training videos about valuing diversity in the sector.  These can be viewed online here:




Thursday, 11 July 2013

Court refused Interim interdict for employment tribunal fees but LordChancellor agrees to refund fees if they are unlawful

As previously reported, Lord Bannatyne sitting in the Court of Session, issued his opinion this morning in the Judicial review Petition of Carol Fox & Partners -v- HM Government & ors.

The Petitioners were seeking a judicial review of the introduction of fees for the employment tribunal system.  The Court had been asked yesterday, following arguments, to make an order know as an "interim interdict" (temporary injunction) preventing the the Minister introducing the legal Order establishing the fees.  

Interim interdict was refused, but the Lord Chancellor was forced to provide an undertaking that fees would be repaid if the proposed feeing system was ultimately found to be unlawful. 

The Petitioners had established a prima facie case, allowing the Petition to proceed, and a full hearing will now take place at some point after the summer recess.   

The Petitioners were awarded their expenses because the Court believed the Respondents had wasted unnecessary time.

The Hearing

During the course of the two day hearing, Counsel for the Respondents (Representing the Lord Chancellor and the UK Government) conceded to the Court that they needed more time to answer the arguments placed before the Court by the Petitioners - particularly concerning the body of opinion that certain people will be either be disadvantaged or discriminated against. 

The Court had also asked various questions of the Respondents concerning the statistical basis for claims in the Employment Tribunal and of the analysis given by the Government that there would be no prejudice to claims being presented.  

The Respondents were not in a position to provide the answers sought.  


Other arguments placed before the Court included identified problems with the proposed feeing structure, particularly where there are multiple claimants, for example in Equal Pay cases and the potential operation of a the 3 month time bar if a Claimant submitted a claim initially under a wrong heading only to be told later - when they sought to adjust or re-submit - that the claim is now time barred.  


A lengthly comparison with the feeing structure in the Sheriff Court took place on the legal principle of "Equivalence".  This is where a remedy relating to a measure of European Law (concerning the various non discrimination provisions found in employment law) should not be more difficult, or in this case, more expensive, to obtain than an equivalent domestic civil court remedy.

It was agreed by both parties that more time was now necessary, largely because the Respondents (i.e the UK Government) could not provide enough information or answers to the case being made.  However, the Petitioners remained adamant that an interim order was necessary.  

Following avizandum, Lord Bannatyne issued his opinion.

The Opinion of the Court

He first addressed the question of the "prima facie" case - which the Petitioners had to make in order to satisfy the Court that it should consider making an interim order and that the Petition for Judicial Review should proceed.

Here he highlighted that in his opinion, the Petitioners, a law firm, did have sufficient standing in order to bring the Petition and that the other potential tests, such as having sufficient interest, acting in the public interest / for the public good and having a direct effect on the Petitioner's interests were also satisfied.

Secondly, he turned to the question of the "balance of convenience".  This is the legal test applied by the Court to determine if the order sought is necessary having weighed up the arguments for and against on both sides.  

The Court considered the costs to the UK Government - and ultimately the tax payer - of maintaining the employment tribunal system, the costs associated with the investment made by the Government to introduce a feeing system or staffing time, administration and so on.     

This was balanced against the access to justice arguments, in the need to ensure that no potential claimant would be put off presenting a claim or continuing with their claim on grounds of potential fees.    No mention was made of indirect discrimination arguments here.  

In assessing the balance of Convenience, the Court also considered the Undertaking made by the Lord Chancellor, that if ultimately fees were found to be unlawful, that the fees would be returned to the claimants.  This was compared against the undertaking that the Petitioners would have liked to have seen, namely that no fees would be paid up front at all and instead, claimants would be given a form of I.O.U. which would fall to be paid if fees were determined lawful.  


In refusing interim interdict, the Court found that the Balance of Convenience favoured the Respondents because really the undertaking given and the undertaking being sought were the same - only mirrored.  

The Petitioners were awarded costs however, because the Court considered that the Respondents had wasted their time and the Court's time by first claiming that they were fully prepared and subsequently admitting that they were not.  

Opinion to be Published

The Court also agreed to publish its opinion, which should be available on the Scottish Courts Service website and suggested that publicity be given the undertaking provided by the Lord Chancellor to refund any fees pending the outcome of litigation.  

Decision due on Employment Tribunal Fees Court Challenge

As previously reported here the UK Government has defended Judicial Review proceedings of its plans to introduce fees into the employment tribunal.

The Court heard arguments on Tuesday 9th and Wednesday 10th of July.

The Court will issue an opinion on Thursday 11 July at 10 am.

The Petitioner is CAROL FOX AND PARTNERS, a firm of Solicitors, which specialises in employment law and represents claimants only.

The Government is represented by the Advocate General for Scotland.

The Equality and Human Rights Commission is monitoring proceedings as an interested party.  

Thursday, 4 July 2013

Employment Tribunal Fees - Challenged in Court

In the Court of Session today (Thursday 4 July 2013) , Carol Fox of Fox and Partners, challenged the legality of the UK Government's plans to introduce claimant fees for the Employment Tribunal system. 

The proposed introduction of Employment Tribunal Fees was first covered here in March this year. 
Carol Fox is Petitioning the Court for interdict (an order which would stop the fees being introduced).   
Today's hearing, at first instance, was heard before Lord Bannatyne. 

This action was raised in the Scottish Courts and is running parallel to a similar action brought in the High Court (England and Wales) by the trade union UNISON. 

It is important to remember that although similar in nature, both challenges are legally separate. 

During the course of the hearing, Lord Bannatyne acknowledged the importance of the questions being asked of the Court and also that time was of the essence because the Regulations (concerning the fees) were to have effect from 29 July. 

The Petitioner

Counsel for the Petitioner suggested that there may be other means by which the suggested remedy could be sought, taking into account the time factor and also the potential for lengthy litigation and appeals. 

One proposed option was for the UK Government to provide an undertaking to the Court that no fees would be introduced pending the outcome of any litigation.  An undertaking would insulate Employment Tribunal litigants from July 29 onwards.  Fees would not have to be paid.   

If no undertaking was provided, Counsel would move for either suspension or interdict as craved.   

The Respondent

Counsel for the Advocate General of Scotland - representing the UK Government - had not received full instructions, because of short notice.  Counsel acknowledged that time was a crucial factor and was willing to accommodate the Court and the Petitioner in so far as urgency.

However, Counsel could not offer a view having no instructions concerning any undertaking; but did highlight that a challenge would be brought to the Petitioner's standing (which means entitlement) to bring proceedings.

Both parties acknowledged a lack of certainty around the parallel litigation in the High Court.

Lord Bannatyne made no interim order today, instead arranged for a full hearing on Tuesday and Wednesday of next week. 

Equality and Human Rights Commission

A copy of the Petition was served on the EHRC as an interested party. 

The EHRC released this statement following today's hearing:

"When Employment Tribunals were established their aim was to be “easily accessible, informal, speedy and inexpensive.” We are concerned that these fees could deter people who have been discriminated against from making claims.

Our own experience with our helpline and legal casework clearly suggests that people are deterred from pursuing discrimination claims because of the costs involved.

 The equality impact assessment carried out by the Ministry of Justice also states that their proposal "ensures that no one is denied access to justice through the introduction of a fee." But at the same time they accept that people with some protected characteristics would be disproportionately affected by fees, regardless of the existence of limited financial support for some.

It’s not a complicated premise. Access to justice should be available to everyone, and not just those who can afford it. When the justice sought relates to inequality and discrimination, fair access to the justice system becomes even more important."
The Office of the Advocate General was contacted for a statement and declined to comment. 

The case will continue on Tuesday 9th July at 10am in Edinburgh.