Edwards v Flamingo Land Ltd

A service provider’s service must be identified accurately before the reasonable-adjustment duty is engaged. This is a question of law, assessed by categorising the service provided on the primary facts.

A restaurant which serves food and drink at equipped tables provides a restaurant service, not a takeaway service. It has no policy requiring adaptation merely because it refuses to permit meals to be taken to a nearby picnic area. In any event, Disability Discrimination Act 1995 does not require an adjustment which would fundamentally alter the nature of the service.

Although unnecessary to the outcome, the court added that a service provider will ordinarily need some reason or explanation before being required to adapt a policy. What is sufficient depends on the facts.

Melissa Edwards, a disabled child, and her family sought to eat meals bought from the Coach House restaurant at a nearby picnic table within Flamingo Land’s theme park. The restaurant required customers to eat in its indoor or outdoor restaurant seating area and refunded the family’s payment when they declined to move.

District Judge Ashton held that Flamingo Land had discriminated against Melissa under sections 19 and 21 of the Disability Discrimination Act 1995, awarding £2,000 damages and £2,000 aggravated damages. On Flamingo Land’s appeal, His Honour Judge Hughes QC reversed that decision, principally because the manager had not been given an adequate explanation of why Melissa needed to remain at the picnic table.

Melissa appealed. The central issue was whether the restaurant’s refusal concerned a policy capable of reasonable adjustment, or instead reflected the distinct nature of the restaurant service which it provided.

Decision

Appeal dismissed. Longmore LJ gave the judgment, with which Black and Gloster LJJ agreed.

1. The starting point under section 19(1)(a) of the Disability Discrimination Act 1995 was to identify the service which the provider supplied or was prepared to supply. That was a question of law, involving the legal categorisation of the primary facts. Describing the service simply as providing meals was too broad.

2. The Coach House provided a restaurant service: it served meals and drinks at tables prepared with chairs, glasses and cutlery. Such a service could be supplied indoors or outdoors within the restaurant area. It was distinct from a takeaway service, under which food and drink are supplied for consumption away from the premises without those accompanying facilities.

3. Accordingly, Flamingo Land did not have a policy of refusing to provide a takeaway service which required adjustment under section 21(1). The presence of picnic tables nearby, even within the same theme park, did not change the service provided by the restaurant. The claim therefore failed.

4. Section 21(6) independently supported that result. Requiring a restaurant to provide a takeaway service would fundamentally alter the nature of its service. The Disability Rights Commission Code of Practice illustrated that a restaurant need not create a different service, though it may have to make adjustments to a delivery service which it already offers.

5. The court also held that there had been no procedural unfairness in the county court appeal. Although absence of explanation was not pleaded in Flamingo Land’s notice of appeal, it had been an issue at trial and the appeal judge had invited argument on it.

6. As an expressly unnecessary observation, the court added that common sense normally requires some reason or explanation before a provider is obliged to adapt a policy. The adequacy of an explanation is fact-sensitive. The county court’s finding that no explanation had been given could not be revisited on the available material.

• Court of Appeal (Civil Division): Melissa Edwards’s appeal was dismissed: [2013] EWCA Civ 801. The court upheld the result in Flamingo Land’s favour, on the ground that the Coach House supplied a restaurant service rather than a takeaway service.
• Carlisle County Court (appeal): His Honour Judge Hughes QC allowed Flamingo Land’s appeal from the district judge. He held that the manager could not reasonably be expected to adjust the restaurant policy without an explanation of Melissa’s needs.
• Carlisle County Court (first instance): District Judge Ashton found disability discrimination and awarded Melissa £2,000 damages and £2,000 aggravated damages.