A disability discrimination claim brought by a woman suffering from food allergies was summarily dismissed by the Federal Magistrates Court on the basis that her claim had no reasonable prospect of success.
The applicant was a member of the Industrial Relations Society of Queensland (IRSQ) and was keen to attend a 'Women in IR High Tea' fundraiser (High Tea), but not so keen on paying the full price of the ticket. She asked to attend for free on the basis that, because of her life threatening food allergies, she would only be drinking water, orange juice and Sprite.
The IRSQ vice president said 'no' because the $50 price tag covered more than just food, it also included a fund raising component, the costs of the venue hire and audio visual equipment. An agreement was eventually struck and the applicant attended the High Tea for $25 but, despite this, the vice president soon found herself defending a discrimination claim.
The applicant claimed that the vice president should have allowed her in for free because as soon as a fee was charged, the vice president – knowing that the applicant was unable to eat - had unlawfully discriminated against her by placing her in a less advantageous position than those who could eat as many scones with jam and cream as they wanted.
Not only did the Federal Magistrate disagree that the applicant had been treated less favourably than those at the High Tea without the disability, he found that the applicant's claim did not trigger the provisions of the Disability Discrimination Act 1992 (Cth) (DD Act). This is because discrimination under the DD Act is not actionable per se. It is only actionable if it occurs within an identifiable environment or in identifiable circumstances that are stated by the DD Act to give rise to liability on the part of the discriminator. The two sections of the DD Act which the applicant should have claimed under were:
- Section 24 'Goods, services and facilities'
'It is unlawful for a person who… provides goods or services, or makes facilities available, to discriminate against another person on the ground of [their] disability.'
- Section 27 'Clubs and incorporated associations' '
'It is unlawful for a club or incorporated association to discriminate against a person who is a member on the ground of [their] disability… by subjecting the member to any other detriment.'
In the Federal Magistrate's view, even if the applicant had got her claim straight, her prospect of success would not have improved. This is because, under s24, the vice president herself did not provide the services, the IRSQ did and it was not a party to the claim. Furthermore, the applicant had been provided with the relevant services because, as the Federal Magistrate put it, she attended the High Tea 'at a cost which she must have accepted (although perhaps begrudgingly).'
There was little hope under s27 either because, in the absence of a definition in the DD Act for 'detriment', the Federal Magistrate applied the ordinary meaning of the word in forming the view that the applicant had suffered no 'loss, damage or injury' (Macquarie Dictionary 2006) as a consequence of the vice president's actions. On the contrary, the IRSQ had granted her a substantial discount on the registration fee and she had accepted that concession and attended the High Tea (albeit sticking to the Sprite).
Employers should nevertheless be mindful of catering arrangements for employees who suffer from particular food allergies or who have medical conditions which affect what they can eat, as in different circumstances the employer in this case may very well have been found guilty of discrimination. When catering for employees or even clients, employers should inquire about special dietary requirements with a view to avoiding potential liability.