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Edwards v Flamingo Land
Ltd - Court of Appeal 2013
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The Court of Appeal has ruled that a restaurant did not discriminate against a disabled
customer by refusing to serve her in the picnic area outside the restaurant's own
seating area. The restaurant did not provide a takeaway service to any customer and
there was therefore no discrimination. Nor was the restaurant obliged to alter the
nature of the services provided in order to accommodate the customer's disability.
Melissa Edwards is a child with Down's Syndrome, autism and challenging behaviour.
In July 2010 she went with her family (parents and three siblings) to Flamingo Land for
a week's holiday. Flamingo Land is a large theme park with a number of eating outlets.
One of these - the Coach House - has both an inside and outside seating area.
Beyond the outside seating area, and separated from it by a low screen, is a picnic
area where visitors can eat their own food. However, Flamingo Land does not permit
the customers of the Coach House to be served there or to consume the food and
drink that they have purchased in that area.
The Edwards family decided to go for a meal at the Coach House and all six of them
sat at one of the bench tables in the picnic area while Mrs Edwards (Melissa's mother)
went to the bar to order drinks and food. When she made her order she was asked by
the duty manager where the family was seated and she said that they were in the
picnic area. She was not aware that the picnic area was not part of the Coach House
and that food would not be served there. She was told by the manager that the family
would have to move into the outdoor seating area. Mrs Edwards explained that that
would not be suitable for her family but she did not go into detail as to why. The
manager insisted that staff were not allowed to serve the picnic area for health and
safety reasons. Mrs Edwards responded that she was happy to carry the food to the
picnic area herself.
At this point she was joined by Mr Edwards and there was an altercation resulting in
the manager returning their money and asking them to leave - which they did.
The family brought a claim in the county court alleging that the refusal to allow food to
be taken to the picnic area was discriminatory. Mrs Edwards gave evidence that
Melissa had to be managed very carefully because of her challenging behaviour. Mrs
Edwards believed that once she had sat at the picnic table it would be very difficult to
persuade Melissa to change tables and move to the formal seating area. There was a
risk of her lashing out and causing considerable disruption both for her family and
other people. Mrs Edwards said that she had not explained all of this to the manager
because she did not wish to stand at a bar and "justify our family". She also said,
however, that she was not given an adequate opportunity to explain the situation.
Flamingo Land argued that there was no discrimination because the restaurant did not
serve meals to anyone in the picnic area; it was simply not part of the service that they
provided. Furthermore, the manager had not been made aware of Melissa’s specific
difficulties and so could not have been expected to take them into account.
The district judge rejected these arguments, holding that the Edwards family were
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entitled to challenge the restaurant's policy that they could not eat in the picnic area.
While the particular needs of the family had not been explained to the manager, the
district judge held that it was not reasonable to expect the parents to denigrate their
children in a public discussion.
Flamingo Land appealed. His Honour Judge Peter Hughes QC upheld the appeal
finding that Flamingo Land was entitled to have a policy that it would only serve food
within the seating area (whether inside or outside) of the restaurant. The question was
whether that policy made it "impossible or unreasonable" for disabled persons to use
the service and what adjustments to that policy it was reasonable to expect. (This case
was decided under the Disability Discrimination Act 1995. The wording in the Equality
Act is slightly different and there now has to be a “substantial disadvantage” rather
than it being “impossible or unreasonably difficult”). The judge held that there was
nothing in the policy which caused a disadvantage to disabled people. It was simply
the wish of the family, having settled themselves at a picnic table, not to move again
which brought them into conflict with the restaurant's policy.
The judge also found that the needs of the family were not explained to the manager.
He went on to hold that the district judge had focused too much on the reasonableness
of the family's actions - looking at the situation from their perspective and through their
eyes – and not paid sufficient attention to the decision that the manager had to make
and the information that was available to him. It was reasonable to conclude that the
parents should have informed the manager of the reasons why Melissa's needs meant
that they had to stay in the picnic area. In the absence of such information, his
decision was not an unreasonable one.
Melissa Edwards appealed to the Court of Appeal. She based the appeal on the fact
that Flamingo Land's initial appeal against the district judge's finding had not been
based on a lack of information, but on the fact that the Coach House was a restaurant
and not a takeaway food outlet. She argued that it was not therefore open to HH
Judge Hughes QC to decide the appeal on a point that had not been argued. Had the
matter been properly raised in the appeal then reference could have been made to
evidence showing that the manager was at least told that Melissa was disabled. It
could have been argued that the manager was at least put on notice that the family
had special needs and that a reasonable adjustment might be required.
Giving the leading judgment of the Court of Appeal, Lord Justice Longmore said that
the first question was to identify the service that Flamingo Land was providing. The
district judge thought that the service was the provision of meals and that Flamingo
Land had a "policy" that these meals should not be consumed in the picnic area. This
was too broad an approach. The owner or operator of a restaurant or bar is not a mere
"meal provider". The provision of meals goes alongside the provision of chairs, tables,
glasses and cutlery. The chairs and tables may be inside or outside but they will
usually be within an area operated as a restaurant. That was different from the service
of a takeaway establishment, which provides food and drink to be consumed away
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from the premises without any accompanying services. Requiring a restaurant to
provide a takeaway service would require the service provider to provide a different
service from that which it was in the business of providing.
It was true that in this case there was an area of land just outside the restaurant which
contained picnic tables and that that area was within the overall theme park owned by
Flamingo Land. However, the existence of picnic tables on nearby land did not make
any substantial difference. There was no "policy" in this case which required
adaptation. There was therefore no discrimination. Lord Justice Longmore also noted
that the code of practice published by the Disability Rights Commission - when
explaining reasonable adjustments in the context of service provision - noted that the
Disability Discrimination Act does not require a service provider to take any steps that
would "fundamentally alter the nature of the service in question or the nature of his
trade, profession or business" (s.21(6) DDA, now found in Para 2(7) of Schedule 2 of
the Equality Act 2010). Lord Justice Longmore was satisfied that the claim would also
therefore fail on the reasonable adjustment point.
On the specific points raised in Melissa Edwards's claim, it was right that neither the
Flamingo Land notice of appeal nor its skeleton argument for the first appeal relied on
the absence of an explanation that Melissa's disability prevented the family from
coming into and seating themselves in the restaurant. It was, however, an issue that
was before the district judge, who had accepted that the special needs of the family
had not been explained to the manager. In the first appeal, the judge had noted this
finding and the issue of this lack of explanation was discussed. Although the lack of
explanation was not therefore in the notice of appeal, the judge had given the parties
notice that he wanted argument about it and there was therefore no unfairness in the
result.
The Court of Appeal has concluded in this case that the decisive factor was the fact
that the restaurant did not provide a takeaway service. It is probably also true that the
arrangements that the restaurant operated for serving customers did not on the face of
it cause any disadvantage to people with disabilities compared to families with children
who weren’t disabled who would also find moving difficult.
If Melissa Edwards would have found it impossible or unreasonably difficult to move
because of her disability then this should have been made clear to the manager. Even
then it would only have been a reasonable adjustment to allow them to eat their meal
in the picnic area if it was safe to do so. Health and safety was raised by Flamingo
Land but does not seem to have been a major factor in the decision. It is also not clear
if the Coach House served alcohol. If it did licencing laws might also have prevented
drink being served of consumed outside the restaurant’s premises.
Although the decision here was that it would have been a fundamental change to the
nature of the restaurant’s business to allow the Edwards family to take food away
perhaps a best practice approach would have been to do just that. They might not
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have been able to take out plates, glasses, cutlery or alcohol but the restaurant could
have offered to parcel up food for the family to eat outside. They could also make it
clearer in future that the picnic area is not part of the restaurant.
For more information please contact our Legal Director, Bela Gor at
belag@businessdisabilityforum.org.uk
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