Judgment of DJ Capon
County Court at Cambridge – 8 November 2017
Non-verbatim note by Nathan Roberts of Cloisters Chambers
1. This is judgment in a claim brought by the Claimant against the Defendant [address]. The Claimant is disabled within meaning of Equality Act 2010 (EqA). That was conceded by the Defendant at the previous CMC. There is no issue about that.
2. The Defendant owns and operates Carlos BBQ, a food premises on Mill Road in Cambridge. That road has an eclectic mix of independent shops of a wide variety, including food, hairdressers, off licences and many others.
3. The claim is one under the EqA. In basic terms, it is: the Claimant, who uses an electric wheelchair, tried to get into the Defendant’s premises on two occasion on 18 August 2016 and 27 September 2016 and was unable to do so because she says there is a threshold and she requires level access or at least ramp access so she can manoeuvre over the threshold. Otherwise it is not safe or sensible.
4. A claim of failure to make reasonable adjustments is heard under s.20 and 29 EqA. Section 29 provides [reads]. Section 20 provides [reads including only second requirement]. “Substantial” means more than minor or trivial; it is not given the same meaning as it might have for the general public. The Claimant’s case is that it would be reasonable to provide a removable ramp.
5. There is also a claim for harassment under s.26 [reads]. The harassment alleged is (a) the Defendant seeking to physically assist the Claimant into his premises contrary to her intentions and him getting frustrated and accusing her of not trying hard enough and being difficult and (b) what occurred on 27 September, an altercation inside his premises between himself and Dr Sophie Gamwell. Dr Gamwell enquired about a ramp; being told there was not one, she handed him a further letter alleging breaches of the EqA and seeking compensation from the Defendant or a donation to charity. The Claimant was outside the premises; she could see the altercation and was told about it afterwards. The second element of that day was that the Defendant approached the Claimant five to 10 minutes later waving his arms about, carrying two letters, saying it had nothing to do with him, trying to force them back in an intimidating manner, invading her personal space, and putting the letters into her electric wheelchair behind the backrest.
6. In the alternative, it is alleged those actions claimed to be harassment are also victimisation under s.21 EqA [reads]. There is also an alternative claim of discrimination because of something arising in consequence of disability under s.15 EqA [reads].
7. Those are the claims. The last three are largely in the alternative.
8. Mill Road has lots of independent retailers, some are national chains, but a lot are independently owned businesses. The Defendant has been an operator on the road for a while. The Claimant lives in Cambridge. She lives near Mill Road and likes the shops. She is a student at Cambridge University and uses an electric wheelchair because of her disabilities which are set out in her witness statement. I need not go into that. It is quite clear that the Claimant was clearly disabled within the meaning of the EqA. I have explained the nature of the premises. It sells a variety of different foods, offering takeaway and premises to sit down and eat.
9. On 18 August 2016, the Claimant and Dr Gamwell were in Mill Road to visit a number of the shops. I am aware that the Defendant believes this is part and parcel of a concerted plan to target independent retailers on the road and extract money because of allegations of breaches of the EqA. In one sense it does not matter. Either the Defendant is a service provider, and no one can say otherwise, in which case he is under duty to make reasonable adjustments, or he is not. If someone demonstrates he is, it is not a defence to say that the individual was going down to one shop after another in order to bring such claims. The Court expresses no view about that. It is not necessary or relevant given the evidence we have heard.
10. On 18 August, the Defendant’s premises was one the Claimant sought to visit. She had been previously on a couple of occasions before. There is a wooden threshold. I have seen photos of it. There is a report from Mark Taylor from the local council which indicated it was 5 cm high. It is not chamfered; it is a definite vertical lift from pavement. I am told there is a similar if not larger drop on the inside, but that is not relevant to this hearing.
11. An enquiry was made about whether there was a ramp. The Defendant came out. There clearly was not. He said he would assist the Claimant to get in by assisting her with her electric wheelchair by pushing it over. That was not what was required. What was required, the Claimant says, was to enable her to access it independently. That was the issue. There was no ramp. The Claimant says there should have been. The Defendant says there is no need because he could assist her in. To put words in his mouth: that was a reasonable adjustment to make; she could get in and he could assist her in.
12. When the Claimant declined, her case is that he became frustrated and felt she was not making sufficient effort and sought to approach her chair. She reversed against the wall to stop him taking hold of it.
13. Following that, a letter was sent to the Defendant on 22 August 2016. I will read it out: [reads]. There is proof of postage. The Defendant’s statement accepts he received the letter. 18 premises were written letters. 16 were posted.
14. On 27 September 2016, the Claimant and Dr Gamwell returned to Mill Road. Dr Gamwell’s evidence is she went in and saw the Defendant behind the counter. Her evidence was she asked if he had a ramp so the Claimant could get in. He was quite agitated and said he did not need a ramp. An altercation occurred. It does not matter what happened for current purposes, other than he kept on saying would help her in and the step was not a problem. Dr Gamwell handed him a letter in person. It was handed over: [reads].
15. The evidence from the Claimant and Dr Gamwell is that having left those premises, the Claimant was outside Al Casbah supermarket. The Defendant came down street in an agitated fashion and approached the Claimant, she says invading her personal space, repeatedly saying the letter was not for him, trying to give back. She refused and he placed the letter in the mechanics of the chair which she found distressing and intimidating.
16. Proceedings were brought in February 2017. The particulars of claim set out the claim in a detailed fashion.
17. The Defendant’s defence is somewhat unusual in the form of an email [reads]. It attached a letter from the Traders’ Association, which relates to five claims all brought by the Claimant, some proceeding in this court: [reads intro]. There are a number of premises noted. In respect of the Defendant: [reads]. There are also letters saying how accessible and helpful the Defendant is and so on and so forth.
18. The proceedings were issued. That was the defence. Directions were given and a trial date fixed in July for 6 and 8 November 2017. Both parties filed witness statement. I have already explained the Defendant instructed solicitors who I am told came off the record in the middle of last week. The Claimant attended on Monday with witnesses and with pro bono counsel. No one attended for the Defendant. Attempts were made by the Court to contact his former solicitors. Counsel told me he had telephoned the Defendant’s premises and could not get through.
19. I have dealt with the law in some detail already. The duty to make adjustments is anticipatory; it is a duty that in Schedule 2 para 2(2): [reads]. It refers to disabled generally. It is clear from that and the statutory guidance that the duty is anticipatory. It is not sufficient to wait for someone to fail to get into the premises. The service provider has to anticipate difficulties disabled people generally may have and make reasonable adjustments in advance. They should anticipate people are unique in their disabilities. Not everyone in a wheelchair has the same disability. Not everyone uses an electric chair. A manual chair is very different. There are a variety of manual and electric chairs all with different capabilities. These things need to be anticipated and reasonable adjustments made so anyone can access premises over the threshold that exists. That is the duty.
20. The burden of proof is set out in s.136: [reads]. It is rather otiose in this case because of nature of attendance at trial. Looking at all the facts, irrespective of the evidence from which it comes, the Court should determine whether it could decide that the Defendant contravened the Act. The Court must hold there was a contravention unless the Defendant can show he did not contravene the Act. As the Defendant was not here, his ability to demonstrate anything was severely limited. The Court had his witnesses’ evidence. He was not here to speak to those or have them tested. The burden of proof provision is therefore of limited applicability in this case.
21. We have heard from the Claimant, Dr Gamwell, Mr Black, and the evidence of Ms Sjoberg was taken as read because no one had questions and we did not need to ask any. We did ask questions of the Claimant herself and other witnesses.
22. The Defendant filed three witness statements and did not attend. The Defendant’s evidence has not been tested. His statements are on any view brief, vague and do not descend into any particularity as to what occurred on 18 August or 27 September. His statement does not deal with issues of whether there was anticipatory compliance to make reasonable adjustments. His evidence is that there was no ramp on 18 August, when the Claimant attempted to access premises. His statements claim for the first time in these proceedings that a ramp was available in September in time for the second visit. No explanation was given of why there was the altercation which he accepts in part where he handed back the letter from Dr Gamwell. There is no explanation why it was not in the defence and no explanation of why in the documentation from the police it is clear it seems to me he was accepting that no such ramps were available. His witnesses say they provided ramps. However, there is no evidence of the date of purchase, which I would expect to be clear. Really it is just a bare statement without anything else.
23. The Court accepts by end of March 2017 there was a bell and ramp; that is visible in the photos. Certainly in September, Mr Black gave evidence he could access premises without difficulty at all in September. The Court’s view of the Claimant was that her evidence in her statement was cogent, with no particular inconsistencies or difficulties. Her evidence in relation to her chair did not seem to be in any way disingenuous or create difficulties for us to accept.
24. She dealt with the capabilities of her chair. In relation to thresholds, curbs and alike, it is dependent on a multiplicity of factors, such as weight, floor surface, weather, angle of approach, width of doorway, and how the chair is set up. The chair also raises, lowers and reclines; that has an impact on its stability. A particular difficulty is that the front wheels may cross the threshold, but may lack traction to pull the trailing wheels over the threshold, leaving the Claimant stuck, which she says has happened in the past. Weight and power have a direct relevance. With someone light, the wheelchair can have an easier pull than where weight is at the maximum capability. I also note suspension is limited. The greater the weight, the less give there is. Suspension declines over the day because of weight applied to it. This has an impact on thresholds. There can be difficulties with doorways, which have to be taken at 90 degrees. On curbs, 2.5 cm elevation is doable if the conditions are good and they are taken at a 45-degree angle. This is not something you can do to access a standard doorway. This evidence was uncontested and there is no reason to disbelieve it. The evidence is accepted.
25. On 18 August, there was a threshold. It is 5 cm. Does it put the Claimant at more than a minor or trivial disadvantage? It did. That cannot be seriously contested. There was a duty on the Defendant as a service provider to take reasonable steps. There was no ramp and no bell to summon assistance. The only step taken was for the Defendant to physically assist by way of pushing her over the threshold. The Defendant appears to be of view that that was perfectly acceptable and sufficient compliance.
26. The Claimant has explained why such assistance is in the least unsatisfactory. The wheelchair is not designed or intended to be pushed. It is sophisticated and vulnerable to damage. It is extremely heavy and unsuitable for anyone to attempt it. It does not have handles. Not that that that would matter. The Court takes the view that in fact its design is incidental to a more important principle. I have outlined by reference to the statutory code the purpose is to enable [reads]. It is of crucial importance that independence of disabled people is preserved and maintained as far as possible. To have to be pushed across a threshold is unacceptable. To have that as the only option is a failure to make reasonable adjustments. It may be that a disabled person might accept assistance. Indeed that appears to be part of the Defendant’s case, that lots of people access his premises happily. That is a matter of personal independent choice. It cannot be applied across the board. All people are individuals and that must be allowed for. It is perfectly acceptable not to wish to be assisted. The absence of anything facilitating her entry, such as a ramp, which could be sourced at little cost, was a failure to make reasonable adjustments required by the Act.
27. We make a further point. An electric chair has to be regarded as integral to the individual. It is the means by which the Claimant has mobility. It is not a piece of equipment that can be regarded as something that others can take hold of and move about. It is regarded, quite reasonably so, as part and parcel of her person.
28. We have already explained it is not a defence to say the Defendant was not aware. The duty was anticipatory. The Defendant did contravene the Act on 18 August by not having made those reasonable adjustments. We have no doubt that initially he was trying to be helpful. We take notice of the documentation from other customers about how helpful and friendly he is. That is not relevant to issues we have to decide on the reasonable adjustments claim brought by the Claimant.
29. When the Claimant experienced the same lack of adjustment on 27 September, the contravention continued. The Defendant accepted he received her letter. He was aware well before. We do not accept evidence in his statements that he had ramps available. There is a lack of evidence as to why they were not deployed; there is no evidence of purchase or why we get to statements without any previous reference to the fact they were available. We do not accept that evidence.
30. Moving onto harassment. There are allegations of two occasions of harassment: 18 August and 27 September.
31. The allegation on 18 August is that, the Claimant having refused the offer, the Defendant became frustrated and accused her of not trying at paras 45 and 46 of her statement [reads; also reads SG’s statement.] The protected characteristic is disability, which applied. It was clearly related to this.
32. We have not found this allegation straightforward. It is clear that the Defendant was initially trying to be helpful but became frustrated with the Claimant, insisting that he assist her in, that he did not need a ramp and that the Claimant was not trying. He was asserting that the Claimant was being difficult, which does not satisfy the test that of creating an environment that was [prescribed environment] for the Claimant. We take into consideration the circumstances. This was the Defendant’s first interaction with the Claimant; he had a genuine desire to assist the Claimant. Notwithstanding the Claimant’s perception, it was not reasonable for the conduct to have the prescribed effect.
33. We do find it violated her dignity. We rely on the Claimant’s evidence, which is self-evident, that to place hands on her wheelchair without consent or, as was case here, insisting that this is what should be done, is a violation of the Claimant’s personal space and independence. The chair should be regarded as an extension of the individual and not merely an aid or a tool. To insist on placing hands on it and asserting she was not trying was clearly a violation of her dignity. The Claimant was in no position to prevent the Defendant doing this, i.e. trying to force her in, and she was clearly concerned this might happen.
34. The 27 September allegation has two parts. The same test applies. The first relates to the altercation in shop. The second is that the Defendant approached the Claimant. This is dealt with in paras 65-66 of the Claimant’s statement: [reads].
35. The Defendant’s evidence is: [reads]. That is as far as it goes. What the Defendant does not do is give any account of his own as to what he says took place, how he returned the letter, where, why, and the circumstances of that. In the Court’s judgment, the Claimant’s evidence was unchallenged and consequently accepted. The Defendant’s evidence is unsatisfactory. It amounts to bare denial. Thus the Claimant’s evidence is accepted and is supported by Dr Gamwell’s evidence, although that is limited because she was in another premises.
36. As to the Defendant’s premises, and what the Claimant observed through window, this is set out in para 59: [reads]. This again is a difficult issue for Court. The Claimant did not hear any of what the Defendant said. She was not in the shop when it took place. Merely observing an interaction is not in our judgment sufficient to violate dignity. As to whether it caused the prescribed environment for the Claimant, likewise we do not consider the circumstances are sufficient to be made out. The Claimant remained outside and did not experience what happened save for vicariously after the event proceeding down road. Mr Roberts said customers inside were looking at her in his closing submissions; that was not part of the Claimant’s evidence or Dr Gamwell’s evidence. It was clearly unsettling and distressing to hear what transpired – but that does not satisfy the test for harassment.
37. The second element of 27 September we find to be established. The unchallenged evidence is that the Defendant was behaving in an intimidating manner, putting letters into her chair. This was unwanted conduct and it related directly to her disability. We take into account all the circumstances of the case, the Claimant’s perception, whether it was reasonable for the conduct have that effect. It is reasonable to have effect of creating a prescribed environment. There was simply no reason or purpose or justification for that conduct on the Defendant’s part.
38. The victimisation claim was put in the alternative to the harassment claim. Having allowed the claim of harassment in respect of 18 August and the second part of 27 September, those claims fall away. We are not satisfied that the conduct of the Defendant inside the premises resulted in the Claimant suffering a detriment under the Act.
39. The section 15 claim we do not need to consider given our findings on harassment on victimisation. We do not consider there is a detriment within the meaning of the Act.
40. As to remedy, the Claimant seeks damages and declarations. In light of our decisions, the Court is prepared to make declarations as follows.
a. It is declared that the Defendant discriminated against the Claimant, a disable person within the meaning of the Equality Act 2010, in failing to make reasonable adjustments in order to access the Defendant’s premises on 18 August and 27 September 2016.
b. It is declared that the Defendant subjected the Claimant to harassment contrary to section 26 Equality Act 2010 related to her disability on 18 August and 27 September 2016.
41. The Claimant also seeks damages for injury to feelings. The guidelines case is Vento. The lower band [reads]. That has been increased to £800 to £8,400. The middle is £8,400 to £25,200: [reads]. The upper band is £25,200 to £42,000: [reads].
42. Mr Roberts sought to rely on three cases. Fogerty: [reads summary], now worth £5,850; Campbell [reads summary], worth £9,000 today; and Allen [read summary], worth in excess of £9,000 now. They are significant sums awarded for injury to feelings.
43. In the Claimant’s documents, there is reference to additional cases, a different Fogerty, the same district judge, a single instance of failing to access a restaurant: £2,500; Hosegood, an extract from a website: £3,000, where there was again no ramp. The defendant insisted on wheeling the claimant up the steps, which he found humiliating.
44. Those are simple and straightforward. It is difficult here to separate injury to feelings for failure to make reasonable adjustments from the harassment claims. The Court is aware there was more than just this premises the Claimant had issues with. We heard about an incident outside Al Casbah, which was also extremely distressing. There were 18 premises on 18 August and nine where letters were handed out on. Isolating injury to feelings in relation to one premises is likewise difficult if not impossible.
45. Overall, the injury to feelings put it beyond circumstances of a one-off failure. The Court bears in mind that cases which come before it are those where the defendant defends proceedings. In some of the cases, conduct of the defendants in litigation was relevant to injury to feelings. Continued conduct is relevant. Although nothing should indicate that defendants are penalised for exercising the right to defend cases.
46. Here we have two incidents over a month apart where the Defendant accepts he received the letter. The incident on 27 September should not have happened. It is an aggravating feature, as is the Defendant’s conduct in this litigation. It is unclear what has happened. He pursues the matter on the basis he has done nothing wrong, even today. He fails to understand his obligation to do something, which he failed to do.
47. The Court is likewise aware that reference to other decided cases is of limited assistance for determining the award. We bear in mind the guidance in Vento. We have regard to some of other decisions before us. The assessor Ms Clarke has a great deal of experience in the Employment Tribunal in relation to disability discrimination at work. In all circumstances, the appropriate award we make is one of £6,000.
48. We feel that accurately and fairly reflects the injury to feelings set out in the Claimant’s evidence, bearing in mind other factors in case, bearing in mind that additional aggravating features of harassment are made out, the violation of dignity and the creation of the prescribed environment, culminating in the putting of the letter in her wheelchair.