Tatlhego Maphosa (Represented by Partners at Law, Solicitors) V Dublin Bus
1.1 This dispute concerns a complaint by Mr Tatlhego Maphosa that he was discriminated against, contrary to the Equal Status Act 2000, by Dublin Bus. The complainant maintains that he was discriminated against on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainant states that, while waiting for the No 111 bus at the terminus in Loughlinstown, a female bus driver pulled up to the stop, looked at him for a moment and then pulled away without opening the bus doors.
3. Summary of Respondent's Case
3.1 The respondents reject that any discrimination occurred. The bus driver denies any recollection of the incident and says that she would never have left anyone standing at a bus stop.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5. Evidence of Complainant
- Mr Maphosa was a regular visitor to the Loughlinstown Leisure Centre at the time of the incident on 18 December 2002. He used to travel to and from the Centre from his home, on either the No 111 or No 7 bus whichever arrived first.
- At 9pm on 18 December 2002, after he had finished in the Leisure Centre, he went outside and waited at the terminus of the No 111 and No 7 buses. Both buses use the same bus stop.
- Two buses were parked in the bay near the bus stop. The nearest was the No 111, 10 feet away, and he was able to clearly see the female driver who was reading a newspaper. He is also sure that the bus driver was able to see him and said he could not accept otherwise as it was very bright at that location..
- At 9.10 pm the No 111 started to approach the bus stop. He was already standing at the stop beside the kerb and put out his hand for the bus.
- The female bus driver pulled up at the stop but did not open the doors. The driver looked directly at him and then drove away. At the Hearing, he clearly identified Ms Laura Hughes as the driver in question.
- After the No 111 had left, he approached the No 7 bus where a white male driver was sitting. He believes that the driver was Irish as he had an Irish accent.
- He boarded the bus and asked the driver if he had seen what had happened. The driver replied "Sorry, none of my business".
- When the driver told him he would not be leaving for a further 10 minutes, he got off again to see if another bus arrived. Eventually he did take that No 7 bus home.
- There were no other people waiting in the vicinity of the bus stop when he was there and he was the only person to board either of the two buses.
- Because of the attitude of the male driver, he decided not to complain personally to Dublin Bus but instead to refer the matter to his solicitor.
- As a result of the incident, he says that he has not used Dublin Bus services since.
- The next day, he went to his solicitor who immediately sent a letter of complaint to the secretary of Dublin Bus alleging discrimination. The letter dated 19 December 2002, gave precise details of the incident and even identified the registration number of the No 7 bus driven by the white male driver.
- Dublin Bus state that, on receipt of the written complaint, the incident would have been referred to the Garage Manager in Donnybrook for investigation. From the timesheets available, the manager identified Ms Hughes as the driver of the No 111 bus and a gentleman of Asian origin, Mr A, as the driver of the No 7 bus that evening.
- Mr A left Dublin Bus shortly afterwards to live in England and was only contacted by the Garage Manager about the incident in September 2003. In his report, the Garage Manager stated that Mr A had told him in September 2003 that " a person answering Mr Maphosa's description did board his bus but made no comment to him regarding any incident with the previous bus driver".
- Dublin Bus again spoke to Mr A in March 2004 and offered to pay his fares and expenses to enable him to attend the Hearing as a witness. On the understanding that he would attend, Dublin Bus notified the Equality Officer in March 2004 that Mr A would be attending the Hearing as a witness.
- The company were unable to contact Mr A subsequently to confirm the Hearing arrangements. As a result, they informed the Equality Officer, on the day of the Hearing itself, that Mr A would not be attending.
- Ms Laura Hughes gave evidence that she was working as a "spare driver" in December 2002 and was not a regular on any specific route. She seldom operated the No 111 bus and had not been on that route for 6 months prior to 18 December 2002 and she was not on the route again for a good while after.
- On 18 December 2002, she had been on the No 111 since 3 pm. The return trip took approximately 40 minutes and she would have departed from the Loughlinstown terminus on perhaps 12 or 13 occasions that day. On several occasions there were no passengers waiting at the bus terminus.
- It was several weeks after the alleged incident that she was approached by the Garage Manager and asked about it.
- She said that she does not recall anything untoward happening that evening and certainly has no recollection of any incident involving Mr Maphosa. It is possible that she left the terminus that evening on several occasions without having taken on any passengers.
- Ms Hughes said that, as far as she can recall, there was a No 7 bus waiting behind her at 9.10 pm on 18 December 2002 but she would have no specific recollection of who was in it. She does not recall speaking to another driver that night.
- She denied that she would have ever deliberately left a passenger at a bus stop and that it was not in her nature to discriminate against anyone.
- Her normal procedure when departing from the No 111 terminus is to pull up slowly to the bus stop. If there were no passengers standing at the stop, she would cast a glance over towards the pub entrance, particularly when the weather was bad, to see if any potential passengers were sheltering and to give them a chance to board.
- She said that she is normally very watchful when waiting at the terminus as there are often junkies and cider drinkers hanging around. She had also heard of other incidents where children had interfered with the engine at the terminus and another incident where a bus had been set on fire at that particular terminus.
- She said that it was unusual to pick up "non-white" people in Loughlinstown and that "you would notice if you picked up a coloured person" on the route.
- Ms Hughes said that she had been employed by Dublin Bus for 6 years and had attended a number of equality training sessions in Dublin Bus over the years including a specific course on the Equal Status Act 2000 in April 2002.
At the Hearing, the respondents were asked to produce printouts of the drivers journey modules for 18 December 2002 for Ms Hughes and Mr A. The company explained that these printouts would provide specific details of the journeys undertaken, the departure times from each terminus, the timings of stops on the way and the fares collected at each stop.
These printouts were submitted some weeks after the Hearing. However, when these printouts were closely examined on receipt, the printouts showed that Mr A’s bus appears to have departed from Loughlinstown at 21.06 pm while Ms Hughes bus departed at 21.07 pm. In essence, this would appear to indicate that Mr A’s bus left Loughlinstown before Ms Hughes’ bus which is contrary to the evidence provided by the respondents at the Hearing.
On detecting this, the respondents were asked to carry out some further research with a view to obtaining a print-out of the schedule for the next No 7 bus which would have left Loughlinstown after Ms Hughes’ bus. In addition, the respondents were asked for a description of the driver of that bus - man or woman, Irish or foreign national. The reply received indicated that the driver of the next No 7 bus was an Irish male. The respondents were also requested to submit a printout of that driver’s journey schedule for 18 December 2002. However, when a printout was eventually submitted the detail on it referred to a No 7 bus which apparently left Loghlinstown at 20.50 pm, 15 minutes prior to the alleged incident. For this reason, the printout was of little assistance to the investigation.
6. Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(h) of the Act specifies the race ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public.
In this particular instance, the complainant claims that he was discriminated against on the grounds of his race contrary to Sections 3(1), 3(2)(h) and 5(1) of the Equal Status Act, 2000 in the treatment he received in not being allowed board a bus on 18 December 2002.
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it can be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
7. Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants.
There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Existence of a discriminatory ground (e.g. the race ground)
(b) Establishment of facts to show that specific treatment occurred
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground.
7.2 What constitutes “prima facie evidence’ and how a “prima facie case” is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that he is black. In relation to (b), the respondents deny any knowledge of the alleged incident of discrimination. To determine whether a prima facie case exists, I must, therefore, decide firstly whether I am prepared to accept, on the balance of probabilities, that the alleged incident occurred as described by the complainant and, if so, whether the alleged treatment afforded the complainant on 18 December 2002 was less favourable than the treatment a person not covered by the race ground would have received, in similar circumstances.
7.4 In this particular case, I am faced with conflicting evidence from Mr Maphosa and Ms Hughes. Mr Maphosa states that Ms Hughes clearly saw him at the bus stop but chose not to allow him to board the bus. For her part, Ms Hughes states that she has no recollection of such an incident and that she would never deliberately refuse access to a passenger.
7.5 In the absence of Mr A, the only person who the respondents maintain might be able to throw some light on the incident, I find that I have no independent evidence on which to base my decision and, therefore, I must decide, on the balance of probabilities, whether or not I am prepared to accept that the incident occurred as described by Mr Maphosa.
7.6 In deliberating on the evidence before me, I note that, at the Hearing, the complainant provided a clear and detailed account of what he maintains happened on 18 December 2002. I also note that his account accurately reflects the contents of his solicitor's letter to Dublin Bus on 19 December 2002, the day after the incident.
The respondents, for their part, maintained at the Hearing that the alleged incident did not occur as claimed. In their defense, they identified Mr A as the driver of the Number 7 bus that was stationed behind Ms Hughes’ bus on the night. As part of their enquiries into the complaint, they say that it was the following September before they contacted Mr A in England and that it was only then that he informed them that he recalled a man meeting Mr Maphosa’s description getting on to the No 7 bus on 18 December 2002, but that the man made no complaint to Mr A. As Mr A failed to attend the Hearing to give direct evidence, this information must be regarded simply as hearsay.
What emerged subsequent to the Hearing is, to me, more significant. As stated above, the printouts supplied by Dublin Bus after the Hearing indicate that Mr A’s bus left the terminus before Ms Hughes’ bus. In addition, Dublin Bus have now confirmed that the No 7 bus which followed Mr A’s bus was driven by an Irish male, which supports the evidence given by Mr Maphosa, yet this man does not appear to have been consulted about the incident, which to me casts a cloud over the respondents evidence.
7.7 From hearing the complainant's evidence at first hand and from questioning him on the detail of his complaint, I found him to be a very credible witness. For this reason, and the fact that confusion now exists as to who was driving the relevant No 7 bus on the night, I find that I am prepared to accept, on the balance of probabilities, that the incident happened as outlined by Mr Maphosa and that Mr Maphosa was refused access to the No 111 bus by Ms Hughes on 18 December 2002.
7.8 Having accepted, on the balance of probabilities, that the incident did occur in the manner described by Maphosa, I now must decide whether the treatment afforded the complainant on 18 December 2002 was less favourable than the treatment a person not covered by the race ground would have received, in similar circumstances.
In considering the matter from Ms Hughes perspective, I note that she has said that she was not familiar with the route itself and that it was unusual to see "non-white" people on the No 111 route. I have also noted her comments about having to be "watchful" at the Loughlinstown terminus because of previous incidents in and around the terminus.
From listening to these comments from Ms Hughes, I do not consider it inconceivable that she may have felt uneasy on 18 December 2002 on seeing a lone black man waiting at the terminus to board her bus. I also do not consider it inconceivable that she may have decided, for reasons pertaining to her own security, that it would be safer not to allow the man board the bus. The question to be asked, however, is whether such a decision can be justified as having been taken for a non-discriminatory reason.
7.9 Section 15(1) of the Equal Status Act 2000 states thatnothing in the Act shall be construed as requiring a person to provide a service in circumstances which would lead a reasonable individual to the belief, on grounds other than discriminatory grounds, that the provision of the service “would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought “.
In this particular instance, Ms Hughes has admitted that Mr Maphosa was unknown to her before 18 December 2002 and, therefore, she would have had no reason to suspect that Mr Maphosa himself was likely to engage in criminal or disorderly conduct. For this reason, I cannot accept that the refusal to grant Mr Maphosa access to her bus was in accordance with Section 15(1) of the Equal Status Act 2000.
While it is possible that a female bus driver might feel uneasy on seeing a lone man waiting at the terminus to board her bus, there is no evidence before me to indicate that Ms Hughes has ever before refused to allow a man (white or black) to board her bus in similar circumstances. In the absence of such evidence, I find, on the balance of probabilities, that the only real conclusion that I can reach in this instance is that it was Mr Maphosa’s colour that prompted Ms Hughes to refuse him access to the bus and it is this action that I consider constituted discrimination on the race ground, contrary to the provisions of the Equal Status Act 2000.
Accordingly, I find that a prima facie case of discrimination on the race ground has been established by the complainant and that the respondents have failed to rebut the allegation.
8.1 I find that a prima facie case of discrimination has been established by the complainant on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000 and that the respondents have failed to rebut the allegation.
Accordingly, I find in favour of the complainant and I order that the respondents pay Mr Maphosa the sum of €1200 for the humiliation and distress suffered by him.
15 December 2004