Equal Status Acts 2000 to 2008
EQUALITY OFFICER’S DECISION NO:
Ms. Analia Garcia-Rodriquez
File no. ES/2006/0079
Equal status Acts 2000 to 2004 - Discrimination, section 3(1) - Discrimination on the ground of disability section 4(1) – Nominal cost, section 4(2) - Disability, section 2(1) - Disability ground, section 3(2)(g) – vicarious liability, section 42(1)
1.1. Ms. Analia Garcia-Rodriquez (“the complainant”) referred a claim on 19 July 2006 to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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 Acts. The investigation under section 25(1) began on 29 July 2008. An oral hearing, as part of the investigation, was held on 9 October 2008.
2.1. The dispute concerns a complaint by the complainant that she was treated contrary to section 4 of the Acts by Bus Ėireann (“the respondent”) on 27 May 2006 when the bus she was travelling on left her behind while she was using the washroom facilities. The respondent was notified of the complaint 23 June 2006.
3. Case for the complainant
3.1. The complainant, who has a profound visual impairment, was travelling with the respondent from Galway to Dundalk via Athlone. During the second part of the journey, the complainant showed the bus driver her travel pass and asked the bus driver if she could use the toilet facilities in the bus station while the bus was picking up new passengers in Drogheda. The driver replied: “left and through” (instructions to the toilet).
3.2. The complainant made her way to the station where she asked a passer-by for assistance. The passer-by informed her that there were no toilets in the building but that there were public toilets outside it. The passer-by showed the complainant where the toilets were but when they got to them they discovered the toilets were closed.
3.3. The complainant stated that this kind passer-by then informed her that the nearest toilets that she knew of were at the McDonald’s restaurant across the road. The complainant stated that as her need was a very genuine one, she had to make her way to the restaurant. In order for the complainant to get there, she had to cross what she considered a busy road. Upon getting to the restaurant she discovered that there was a queue. When she returned from the toilets she discovered that the bus had left without her. The complainant estimates that she was gone for about 9 to 12 minutes.
3.4. The complainant stated that she was shocked and very upset. All her belonging were in on the bus that has left without her and she had no money. She stated that her initial reaction was to cry but that she pulled herself together and rang the family who she was travelling to stay with (who met with the bus and collected the complainant’s belongings). She then spoke with another passer-by who informed her that there would be another bus travelling to Dundalk in a few minutes and suggested that the complainant explain the situation to the driver to see if she could complete the remainder of the journey on the other bus. The complainant did so and had no difficulties completing her journey on the later bus. This meant she arrived to Dundalk approximately 30 minutes late.
3.5. The complainant met the same bus driver on her return to Galway the next day. She stated that the bus driver apologised to the complainant stating that he had forgotten that the complainant had gone to the toilet and that he had not realised that the complainant had a visual impairment. The complainant was not using her white stick at the time of the incident.
3.6. The complainant stated that she could not understand how basic services were not available to her. She stated that it was unbelievable that she, a person with a profound disability, would have to put her life at risk to access basic facilities and that, due to negligence and urgency, she was left alone and unprotected in unfamiliar surroundings. She stated that while she is aware that she did not experience any less favourable treatment as any other passenger without a disability would have received in a similar situation, she believed that the respondent by treating her in the same manner as a person without a disability would have been treated constituted discrimination on the disability ground.
4. Case for the respondent
4.1. The respondent does not wish to dispute the factual matters presented by the complainant. Nor does the respondent wish to dispute the distress experienced by the complainant as a result of this unfortunate incident.
4.2. The respondent replied to the complainant in a letter dated 3 July 2006. In this letter the respondent states that until February 2006 there station in question had public toilets. The respondent submits that the toilets attached to the bus station – operated by Drogheda Town Council - are closed due to vandalism and other problems. The respondent stated that the staff toilets are available for the public upon request. The respondent submits that the complainant did not ask any of its staff for assistance.
The bus driver submits that the bus was busy. He further submits that he had no knowledge of the complainant’s disability. He stated that had he known the complainant was visually disabled he would have assisted her in locating the toilets. The driver also stated that the buses have a number of locations outside bus stations where they would stop to allow for passengers to use the toilets. The fact that the complainant had shown him her pass meant nothing as a number of people, belonging to different categories, are given buss passes. He stated that at the time he did not know that the toilets attached to the station were closed due to vandalism.
The driver yet again apologised to the complainant and stated that he had genuinely forgotten that she had gone to the toilets as he was busy assisting new passengers and that, if his memory serves him, there had been an incident involving another passenger that had distracted him.
4.3. The respondent submits that the cost of maintaining toilets on busses is prohibitive. The Drogheda station is currently being fitted with accessible toilets. Further, the respondent submits that a vast majority of its staff have received disability awareness training encouraging staff to have a flexible approach in accommodating people with disabilities.
4.4. The respondent referred to Sections 17(1) and 18(1) of the Acts :
“The Minister may, in agreement with the Minister for Public Enterprise, make regulations requiring that new road or rail passenger vehicles which –
(a) are purchased or leased by an operator of a passenger road service or passenger rail service, and
(b) are to be used for the purposes of either such service
shall be equipped so as to be readily accessible to and usable by persons with a disability”. Section 18 of the Acts refers to regulations relating to station equipment and states: “The Minister may, with the agreement of the Minister for Public Enterprise, make regulations requiring operators of bus and rail stations to provide facilities at those stations so that they are readily accessible to and usable by person’s with a disability.” The respondent submits that the above regulations have not been put into place by the Minister and that until such regulation inform the respondent of what must be done there is no legal requirement for busses to have toilets on them or for stations to have toilets.
5. Conclusions of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making my decision I have taken cognisance of both oral and written submissions made during the investigation.
5.3. Disability in the Act is defined in section 2(1) as:
ii) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
iii) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
iv) the malfunction, malformation or disfigurement of a part of a person’s body,
v) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
vi) a condition, disease, or illness which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour.
I accept that the complainant’s condition constitutes a disability within the meaning of section 2(1)(e).
5.4. Section 4 of the Act defines reasonable accommodation:
(1) “For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such specialtreatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.
(2) “A refusal or failure to provide the special treatment or facilities by which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
5.5. The complainant is correct in identifying that, in the case of a person with a disability, treating him or her the same as they would have treated a person without a disability or a person with a different disability can constitute discrimination in situations where such same treatment would make it impossible or unduly difficult for the person to avail him or herself of the service. The duty to provide reasonable accommodation arises when a service provider becomes aware of the need to provide special treatment or facilities to a person with a disability. In this case I am very mindful of the fact that the complainant never told anyone working with Bus Eireann that she had a disability nor requested information or assistance from such a person. She relied on the information and assistance of persons not associated with the service provider. In such a situation, it would be inherently unjust to hold a service provider responsible for any alleged inaction. If the complainant had been denied access to toilets facilities by a member of staff, the service provider would have a case to answer. In the circumstances of this case, I cannot find that the respondent has failed to provide reasonable accommodation to the complainant.
The complainant has failed to establish a prima facie case of discrimination. Therefore, the complaint fails.