THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
File ref: ES/2005/0524
Date of Issue:30thApril, 2009
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1)(a) - Disability ground, section 3(2)(g) - Reasonable accommodation, section 4(1) - Supply of goods and services, section 5(1) – Vicarious Liability, section 42(2) - Travel Agents.
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004 on the 26th September 2005. On the 24th June 2008 in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, James Kelly, 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 on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to hearing on the 25th February 2009.
2. Summary of claim
2.1 This dispute concerns a complaint by Mr. Eugene Callan that he was discriminated against by the respondent, United Travel, by being refused access to a service that is generally available to the public because of his disability contrary to section 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts 2000 to 2008.
3. Complainant’s Case
3.1 The complainant, Mr. Eugene Callan, is quadriplegic and accordingly he is highly dependent on the use of his wheelchair for his mobility. Mr. Callan booked a package holiday to Sorrento, Italy with the respondent in April 2005. The booking was made over the telephone. The cost of the package holiday included flights from Dublin to Naples and return; transfer to and from Naples airport to the hotel accommodation; and 7 night’s half board in a hotel in Sorrento for two people from the 20th May 2005. Mr. Callan was invoiced by the respondent and he paid by credit card on the 5th April 2005.
3.2 Mr. Callan claims that he informed the respondent of his disability during their telephone conversation at the time of making the booking. He claims that they discussed the hotel options available and if they were wheelchair accessible, and also the transfer options between the airport and hotel. He claims that the respondent had to make certain enquires on his behalf before it could confirm that the hotel was accessible. The complainant claims that the respondent said that it provided a coach transfer, which may not be wheelchair accessible, from the airport to the hotel. Mr. Callan claims that he asked what alternative arrangement would be provided for him as he would require a wheelchair accessible coach. He states that the respondent said there was no alternative, but it could pre-order a taxi for him or he could arrange one himself on the day but the cost, of approximately €20, would have to be covered fully by the complainant himself. Mr. Callan claims that he asked if he could therefore be refunded the cost of the coach transfer that he would be unable to avail of, and as no alternative options were available to him, he would incur additional cost that able bodied customers would not incur. He said, he was told by the respondent that this was not possible. Mr. Callan felt he had no choice but to proceed on the basis of having to incur the additional transfer cost himself, otherwise he would not be able to take the holiday.
3.3 On the day of his departure there was industrial action at Naples airport and as a consequence Mr. Callan’s flight had to be re-directed to Rome. Mr. Callan claims that when the plane landed he had to locate a representative from the Tour Operator to find out how he was to be transported to the hotel in Sorrento. He claims that when he finally managed to speak to a representative he was told that a coach was arranged to transfer the holiday makers to Sorrento and if he was unable to avail of the coach transfer he should arrange his own transport and speak to the tour operator’s representative on arrival at his hotel. Mr. Callan claims he was left with no choice but to hire a taxi in Rome to take him on the 3 hour trip to his hotel in Sorrento, at a cost of €530, while all the other customers were transported without incurring any additional cost. He claims that when he met with the holiday representative at his hotel he was provided with a complaint form and the representative went through the administrative procedure of lodging a complaint.
3.4 Mr. Callan claims that on his return home he wrote to the respondent on the 30th May 2005, to outline the difficulty he had with the holiday and asked the respondent to get back to him. He claims he did not receive a reply to his letter so he wrote again on the 10th July 2005 claiming that he may have to consider legal action via the courts and/or lodging a complaint with the Director of the Equality Tribunal. He claims that the Tour Operator replied to him via a letter addressed to the respondent on the 8th August 2005 with a cheque attached for the amount of €120 which it claimed represents the cost of coach transfer which was included in the original holiday price. Mr. Callan wrote back on the 29th August 2005, returning the cheque and stating that it was insufficient compensation for the costs he incurred and he re-iterated his disapproval with having to pay the taxi fare from Rome to Sorrento, whereas all the other passengers were transferred without having to incur extra costs. He informed the respondent that he would be pursuing the case in both the District Court for the additional cost incurred and the Equality Tribunal for the discriminatory treatment.
3.5 The complainant claims that he believes that United Travel were the correct respondent in this case because it arranged and sold the holiday package to him. He claims that it dealt with all aspects of the holiday on behalf of the Tour Operator, including all the administration, issuing of the invoice and it took payments for the holiday. Accordingly, the complainant claims that the respondent is acting as an agent for the Tour Operator. Mr. Callan claims he took two separate independent actions against the respondent in relation to his holiday, one in the District Court to recover the cost of the taxi fare which he had to incur while on holiday and this claim with the Director of the Equality Tribunal for the alleged discriminatory treatment. He claims that he did receive a cheque for €530 in the post after documents from the District Court and the Equality Tribunal were sent on to the respondent. However, the payment was received in the post without a covering letter acknowledging the difficulties he had or offering an apology.
4. Respondent’s Case
4.1 Neither the respondent nor a legal representative on its behalf attended the oral hearing. On the day of the hearing, I adjourned the hearing for 20 minutes to allow the respondent time to make its way to the venue, during that time I contacted the Tribunal’s secretariat staff so see if the respondent had made contact and had offered an excuse for its delay. I was informed that no contact was made. When I convened the hearing, I informed the complainant that we were proceeding without the respondent. I explained that the onus was still on the complainant to establish his prima facie case.
4.2 The respondent had filed written submissions with the Tribunal during the course of this investigation and the following is a summary of the main points;
· It claims that they are only the Travel Agents and not the Tour Operator and were therefore not responsible for any claim of discrimination relating to the holiday.
· It claims that the Tour Operator had offered a refund of €120, being the cost of the coach transfer which was part of the package purchased at the outset.
· It claims that the Tour Operator sent a cheque for €530 as full and final settlement of this claim.
· It claims that the complainant was informed at the initial booking that the coach arranged to transfer the passengers did not have facilities for wheelchair transfers and Mr. Callan had understood and agreed with this arrangement.
5. Conclusions of the Equality Officer
5.1 In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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 I am satisfied the respondent was fully aware of the date and time of the hearing. I sent notification of the hearing by registered post on the 17th November 2008 and subsequently checked with An Post to confirm its delivery. I am also satisfied that the respondent made no attempt to make contact with the Tribunal to explain its absence. Finally, I am satisfied that ample time was provided for the respondent to present at the hearing so as to provide evidence in support of its case.
Vicarious Liability - Identifying the correct respondent
5.3 The first question that I must decide is whether United Travel is the correct respondent in the case. United Travel claims that it is not the correct respondent as it is not the Tour Operator, and it submitted that the Tour Operators were responsible for the holiday package and arrangements. However, as the named respondent was not present at the hearing I was unable to take any further submissions on this point.
Accordingly, in making a determination in relation to the question raised here by United Travel, I am obliged to consider the provisions of Section 42 of the Equal Status Acts 2000-2008. This section of the Acts deals with vicarious liability, where section 42(2) states,
“Anything done by a person as an agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”
I also take cognisance of a recent decision of this Tribunal in addressing a similar question in relation to the determination under section 42(2), here the Equality Officer found,
“5.3. The issue of whether Marsh Ireland Ltd. is the correct respondent to defend the allegation of discrimination needs to be decided. It was argued by the respondent that Cigna Europe Insurance Company - as the provider of the insurance - is the correct respondent. Marsh Ireland Ltd. submits that they only act as third party administrators to any claims made by insured persons for payment. That is, the respondent is not responsible for the selling of the insurance nor does it collect monies in relation to the premiums. They have no responsibility when it comes to the design of the insurance forms, terms and conditions, etc.
5.4. I had referred to section 42(2) in correspondence prior to the hearing and referred to it again at the hearing. Section 42(2) – which defines vicarious liability – states: […] It is clear that the respondent were acting as an agent for Cigna International on 8 April 2005 when they wrote to Mr. Jordan informing him that, based on information they had received from the complainants doctor, he was eligible for inclusion in the insurance plan. It is clear that the respondent had the authority to make decisions concerning the policy holder and was willing to implement the conditions albeit subsequent to the policy having been sold to the complainant. While I accept that Cigna is the actual insurer and, as such, the complainant could have, subject to notification requirements set out in section 21(2), named them as co-respondents in this complaint, I am, having considered the relevant section of the legislation, satisfied that Marsh Ireland Ltd. is a correct respondent for the purposes of this complaint.”
5.4 From the evidence presented, it is clear that the named respondent, i.e. United Travel is the Travel Agent and not the Tour Operator, nevertheless as Travel Agents it carried out the administration as an agent on behalf of the Tour Operator, including the interaction with the customer such as dealing with the booking, invoicing and collection of payments. Having regard to the provisions of Section 42(2) and in light of the recent decision of this Tribunal, on a similar question, I am satisfied that United Travel were clearly acting as an agent on behalf of the Tour Operator and accordingly, it is correctly named as respondent for the purposes of this complaint.
5.5 The question that I must address under this heading is whether the complainant was treated less favourably in the service he received while booking a holiday with the respondent because of his disability. I note from the evidence adduced at the hearing from the complainant that he had informed the respondent of his disability practically at the outset of his telephone conversation when making the booking, and all of the evidence presented in written form from the respondent does not dispute this fact.
5.6 I note that both parties engaged in the process of selecting the correct hotel for Mr. Callan and the respondent assisted in making enquires on behalf of the complainant to help in that selection. I also note that the respondent was very helpful and forthcoming in offering information about the resort and the distance from the hotel to the airport. There is no evidence to suggest that the complainant was directly refused access to the holiday service on offer by the respondent because of his disability. Accordingly, I am satisfied that no prima facie case was established by the complainant on the disability grounds, as the complainant was not refused access to the respondent’s service.
Reasonable Accommodation and Nominal Costs
5.7 In the case of disability in considering whether discrimination occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“(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 special treatment 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 to 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.”
The question that I must address here is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities. This means that the legislation requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability in terms of its refusal to provide him with adequate transport services to and from the airport to the holiday resort or, at least, put other measures in place which would not give rise to a cost other than nominal cost.
5.8 It was not disputed between the parties that when Mr. Callan booked his holiday with the respondent that there was a difficulty with the arrangement in place to transfer him to and from the hotel accommodation. Also, as no evidence was presented to state otherwise, I am satisfied that the complainant sought a refund for the proportion of the holiday package allocated towards transferring by coach from the airport to the hotel. Mr. Callan claims that he was told that the cost of transfer by taxi was approximately €20 one way and he would have to incur those costs himself as they were extra costs not covered by the package. This in effect is where Mr. Callan feels that he was discriminated against by the respondent. The fact that the flight was diverted to Rome and the subsequent problems that ensued inflate those feelings of less favourable treatment towards him – having paid the full package holiday fare, he was left to fend for himself while all the other customers were accommodated in their transfer from Rome to Sorrento without additional cost or inconvenience.
5.9 In the present case, I am satisfied that there was a failure by the respondent to accommodate the needs of the complainant as a person with a disability, who required additional assistance to access the entire suite of services included in the cost of the holiday package. I am satisfied that there are a number of potential solutions to the problem here, inter alia, providing facilities such as accessible coaches or taxi’s to allow for the transfer from the airport to the hotel. I am satisfied that the respondent likewise could have considered offering a reduced price to its disabled customers who were unable to use the transfer option due to their disability so they could then finance their own transfer by accessible vehicle. As the respondent did not attend the hearing, I was unable to put any question or adduce any evidence from it regarding the estimated cost of providing an accessible transfer options for disabled customers. Therefore, I am guided by what the complainant claims was said to him by the respondent at the time of booking the holiday that the approximate cost of taxi transfer was €20 each way. Based on the evidence provided, I am satisfied that the cost to provide special treatment or facilities is no more than a nominal cost as provided for under section 4(2) of the Acts. Accordingly, I find that the respondent’s failure to put those special measures in place amounts to a failure provide reasonable accommodation as provided for under section 4(1) of the Acts.
6.1 In accordance with Section 25(4) of the Equal Status Acts 2000 to 2008, I conclude this investigation and issue the following decision. I find that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4 of the Acts. I also find that the respondent did not attempt to rebut the allegation of discrimination.
6.2 In accordance with Section 27(a) of the Equal Status Acts, I award the complainant the sum of €1,500 in compensation for the inconvenience caused and for the discrimination, frustration and humiliation experienced. In reaching my decision in relation to the calculation of the redress to be awarded, I have taken into account the fact that the complainant received a refund of €530 for the additional cost incurred. However, notwithstanding this refund, I note that this payment was made as a consequence of the threat of legal action and without any recognition of the complainant’s unpleasant experience and in the absence of any apology. Accordingly, the amount of redress I have awarded is solely in consideration as compensation for the effects of the discriminatory treatment concerned.
The Equality Tribunal
30th April, 2009
DEC- S2008-054 Jordan v Marsh Ireland Ltd