THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 0038
(on behalf of her sister Ms B)
File Reference: ES/2006/0021
Date of Issue: 3 June 2009
Ms A (on behalf of her sister, Ms B)
Equal Status Acts 2000-2004 - Section 3(2)(g), disability ground –discrimination – reasonable accommodation - Section 20 Equal Status Acts – airport – medical clearance – special assistance at airport – ‘meet and assist’ service – FREMEC card – intellectual disability – different disabilities - failure to provide reasonable accommodation – Section 14(1) – health and safety – EU Regulation 1107/2006 – blanket medical clearance – safety of airplane and passengers – right to require medical clearance - level of ‘guardianship’ required – service provider
1. Delegation under the relevant legislation
1.1. On 7th February 2006, the complainant, Ms A, on behalf of her sister Ms B, referred a claim 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 Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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. This delegation took place on 23rd November, 2007, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Tuesday, 10th March, 2009. Both parties were in attendance at the hearing.
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, in that the respondent discriminated against her by failing to provide her with reasonable accommodation when she sought to use the respondents services on behalf of her sister, Ms B, and by doing so also discriminated against her vis-à-vis people with other disabilities, who were provided with such reasonable accommodation.
3. Summary of the Complainant’s case
3.1. Section 20 of the Equal Status Acts, 2000 to 2004 (hereinafter referred to as “the Acts”), states that, where a complainant, as defined under Section 21(1) of the Acts, is “unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part” then “his or her parent, guardian or other person acting in place of a parent” is the complainant. Ms B has an intellectual disability which renders her unable to pursue a claim for redress, as described in Section 20 of the Acts. Therefore, in accordance with that Section, her sister, Ms A, who acts as her parent within the meaning of the Acts (as her parents are both deceased), is the complainant in this matter and will be referred to as such hereafter.
3.2. The complainant described Ms B as being mildly mentally disabled with limited reading ability. She said that Ms B would not have the ability to negotiate her way through an airport as she would not be able to read signs or follow intercom announcements so could not get to her boarding gate or get out of the arrivals area without assistance. In addition, if she got lost, she would panic and would not know what to do. The complainant said that Ms B is very aware that she needs assistance and likes to have it but that she has developed her potential in other areas and takes great pride in being able to travel unaccompanied, within the limits already described. The complainant said that Ms B had been able to do so with the respondent prior to 2005 by availing of its ‘meet and assist’ service, which required the complainant to take Ms B to the airport, but through which Ms B would thereafter be provided with the required assistance by the staff of the airline. In October 1997, on the advice of the respondent itself, the complainant obtained from the respondent a card called a FREMEC card, which was a frequent traveller’s medical card and which provided her with a blanket medical clearance to board aircraft operated by the respondent. This clearance was provided until 2008 (having been renewed in 2003) and saved the complainant from having to continually get clearance every time she wished to travel. The complainant added that, in 1996, Ms B developed epilepsy but that the respondent had been properly notified of this and had not raised it with her prior to the incident in question.
3.3. The complainant stated that, on 21st September, 2005, Ms C, of Z Travel Ltd., acting on her behalf, contacted the respondent to book tickets for Ms B’s annual visit to see other family members in Madrid. Ms C requested the ‘meet and assist’ service for Ms B and indicated that she had a valid FREMEC card but Mr D, of the respondents reservations telephone service, told her that it no longer offered the ‘meet and assist’ service and that if she wished to avail of such a service, she would have to make contact with Y Ltd. However, Mr D did not provide any contact details or further information about Y Ltd., nor did he mention anything about requiring medical clearance or make reference to the FREMEC card system. Eventually, after several more phone calls to the respondent’s office in an attempt to obtain further details (during one of which she was told she needed to contact a different company to Y Ltd.), Ms C spoke with a representative of Y Ltd. She was told by him that it would provide the service in Dublin (at no charge), but would not be able to assist Ms B in Madrid. The complainant said she needed to find out what would happen in Madrid, as the service as described was of no value to her in the absence of assistance there. She also wished to investigate if she could book the flights with an airline who would offer suitable assistance for Ms B. However, she was anxious to make sure of the booking in advance of the Christmas rush, so, despite her concerns, she instructed Ms C to confirm the reservation.
3.4. After confirming the booking with Mr E, again of the respondent’s reservations service, the complainant said that Ms C asked that a note be inserted to say that Ms B was disabled but that a ‘‘meet and assist’’ had been arranged. At this point, Mr E told Ms C that she would have to ring its medical line to obtain medical clearance for Ms B before travelling. The complainant stated that this was the first time that either she or Ms C were informed about the correct booking procedure or that Ms B might be declined from boarding the flight. Ms C then spoke with Ms F in the respondent’s medical centre who told her that the FREMEC card was now defunct and that Ms B would have to fill out medical forms and the complainant would have to provide additional information with regard to Ms B’s medical age. However, Ms F said that she would authorise a refund if Ms B was refused boarding.
3.5. The complainant proceeded to investigate the possibility of flying with another airline and, finding that Iberia Airlines provided the assistance she was looking for, she booked Ms B’s flight with that company without the need to fill in medical forms or obtain prior medical clearance. The complainant consequently phoned Ms F directly who confirmed that the FREMEC scheme was defunct, though she agreed to authorise the refund of Ms B’s ticket. The complainant said it was now impossible for Ms B to travel with the respondent as it was not offering any alternative service that would meet her needs and she therefore cancelled the flight in question with the respondent. She added that she has not been able to avail of the respondent’s services since 2005, which have caused her financial hardship as a result of having to book flights with other airlines.
Complainant’s General Submissions
3.6. The complainant stated that the core issue was to ensure that Ms B could travel with the respondent’s airline independently and without assistance and said that the respondent had made it impossible for Ms B to do so. She referred to the passenger and baggage handling operations manual (hereinafter referred to as ‘the manual’) provided by the respondent and said that Ms B met the criteria for a PRM (passenger with reduced mobility) described therein. She stated that the level of supervision involved was not heavy as the respondent suggested. As proof, she pointed to the fact that Ms B had had no problems with being left unsupervised during the course of being provided with the ‘meet and assist’ service and gave a specific example of an occasion when staff of British Airways left her unsupervised and collected her later without difficulty. She added that Air France and Iberia Airlines provided the level of service she required with no difficulty. In fact, she said that the level of service she required for Ms B was the level of service being offered to other people with disabilities. She submitted, however, that this service was not being offered to people with intellectual disabilities pointing to the fact that, in its own reply to her complaint form, the respondent stated that it will provide wheelchairs and assistance to incapacitated passengers but will not provide ‘meet and assist’ for those with intellectual disabilities. She also questioned how the FREMEC service could have been discontinued in 2003 as she said Ms B’s card was renewed in May 2003, and made valid until May 2008. Furthermore, she was able to travel with it up until 2005, and was also able to avail of ‘meet and assist’ at those times. She did not accept its argument that it had gotten rid of ‘meet and assist’ for safety and security reasons as she said that Ms B had flown through Heathrow availing of this service, and it was always congested. She added that she was never told that there was a requirement to have a person accompany Ms B.
4. Summary of the Respondent’s case
4.1. The respondent said it was not in a position to question the facts of the complaint as outlined by the complainant. It acknowledged that the complainant had received inconsistent messages and the actual situation was not communicated to her, but said that this was caused by the function being outsourced to a call centre, though accepting that it should not have happened.
4.2. The respondent said that the FREMEC card was very rarely used, so much so that, in fact, Ms B’s FREMEC card was the only one that it could find on record. However, it acknowledged that other airlines, including Air France, still used such, or similar, systems. The respondent could not give the exact date when the decision was made to discontinue the FREMEC card system, but said it was made between 2003 and 2005 and was certainly made by the time the complainant made the booking in question. It said that the reason for this decision was that it was considered more appropriate that anyone who required medical clearance would fill in an INCAD (medical clearance) form and that it would be open to the medical clearance department to decide how long the clearance would last. It said that the purpose of the new policy was to enable its medical officer to make a judgement on a person’s ability to travel. It considered that the new procedure is more flexible and ensures the provision of up-to-date information and, in practice, was actually not very different.
4.3. The respondent referred to the manual and said that assistance was provided where a person required it to get to and from the aircraft. It said, however, that, since February 2003, it has not provided ‘meet and assist’ services for which the level of supervision and care required is significantly higher. It therefore drew a distinction between people who simply require assistance and the ‘meet and assist’ service which, it said, is much more than assisting someone to get from point A to point B: it requires supervision of that person, taking on the role of guardian to them and taking responsibility for them. It said that the reason it had discontinued the ‘meet and assist’ service was that Dublin airport had become busier and there were consequently issues with ‘meet and assist’ and how people with intellectual disabilities would be handled if flights were cancelled, or there were delays, diversions, or other emergencies. It said, however, that it did indicate to the complainant subsequent to her making her complaint that it would try to be flexible as regards her particular case.
4.4. At the oral hearing of the complaint, the respondent also said that the assistance it provided to “incapacitated passengers”, as outlined in the manual, related primarily to people with physical disabilities. It did not think this could relate to people with intellectual disabilities. However, later in the hearing it submitted that the level of assistance for all passengers with learning disabilities was as outlined in the manual, which was based on IATA resolutions, and included assistance in getting from check-in through embarking, disembarking and getting through to the land side at the destination airport. It said that it generally had a high reputation for the level of service it provided and that it gave all reasonable assistance to disabled passengers at no cost.
4.5. The respondent gave an example of a person with Alzheimer’s Disease who seeks to travel unaccompanied to illustrate its case and said that, in such a case, there is a huge burden of responsibility on the respondent as it is not only required to assist but also to supervise. It said, for example, that you could leave someone in a wheelchair while you go to get water, but could not leave someone with Alzheimer’s for fear they would wander off. It said that it is effectively the same decision with regard to unaccompanied minors, who are unable to look after themselves (and, by implication, persons with intellectual disabilities). It also mentioned briefly the issue of insurance responsibilities that might arise in such cases, but did not elaborate on those. It also questioned what assistance it would be required to provide to the complainant in the event of delays, diversions or other emergencies arising, given the nature of her disability and raised the question that it would require a supervisory level of responsibility. The respondent does not therefore believe that the provision of ‘meet and assist’ services is something that can be considered reasonable assistance because of the unreasonable level of supervision and responsibility that is implicit in that. Essentially, it argued that the Acts do not require it to provide such a level of responsibility and said that is not aware of any service providers in any transport industry or otherwise who provide such a level of service.
4.6. The respondent stated that there were two principal reasons for requiring medical clearance from certain customers. Firstly, the airline must be satisfied that the person is fit to travel and that it is safe for him/her to do so and secondly it enables it to ensure that assistance is made available if required. The safety regime governing this is provided by “jar-ops” which are joint aviation regulations (international regulations) which the airline must implement. However, the respondent said that it does not have a specific policy in relation to requiring medical clearance for passengers with intellectual disabilities. It says it is open to any passenger to board, provided that there is not a medical condition that might have an impact, and that, if there is, it is cleared in advance. Initially, that assessment needs to be made by the customer and said that in many cases people with learning disabilities are able to travel alone. It generally trusts customers in relation to this, but also exercises a general discretion with how it deals with particular situations that might arise when the customer presents for boarding. However, it said that if the medical officer stated that a person cannot travel unaccompanied, they would be advised that someone should travel with them as the respondent could not take the place of a guardian in the sense of accompanying that passenger. Ultimately the crew would make a judgement if it considered it unsafe for a particular person to travel.
4.7. The respondent said that its current policy in relation to the provision of assistance to people with disabilities generally is dictated by the EU Regulation (1107/2006) which has defined procedures and apportions responsibility between the airline and the relevant airport authority since 2008 (when the Regulation came into operation). Prior to the implementation of the Regulation, its policy in relation to the provision of the required assistance for disabled passengers at the time of the incident in question was that it would arrange and pay for such assistance through a third party, such as Y Ltd. It gave a typical example of a wheelchair user or elderly passenger who is brought to the gate and said that the level of assistance required would depend on the disability involved. It said that the level of assistance was laid out in its manual and that it was provided from check-in to boarding to disembarking such that it was also provided at the destination airport. This would be done through the handling agent at the relevant airport, though the respondent would have paid the company involved. However, in the complainant’s case, it did not know who was paying for the service offered to the complainant that was offered by Y Ltd., and it did not appear that it was responsible for that offer. It added that most people with intellectual disabilities who would be travelling with it would be accompanied.
4.8. The respondent submitted that the Acts required that all passengers are treated the same, whereas the complainant requires that an additional service should be provided over and above that level of service and that the core issue is whether the Acts require that the airline provide the ‘meet and assist’ service. It submitted that this level of supervision goes way beyond what is required in order to provide reasonable accommodation and that, since September 2003, it cannot provide ‘meet and assist’ services for the reasons already outlined. However, it stated that it does still try to be as flexible as possible with regard to making provision beyond what it considers its obligations to be, and that the level of service it provided or will continue to provide satisfied the requirements of reasonable accommodation. It submitted that the question for the Tribunal is to decide whether there is an obligation to provide a higher level of assistance that requires supervision and guidance, and which carries an assumption of additional responsibility and legal liability. It submitted that it was not aware of such a high level of responsibility being placed on any service provider under the terms of the Equal Status legislation, in that sense. Finally, it stated that there is now a pan-European structure in place which clearly sets out the obligations of the respondent as an airline and the obligations of the relevant Airport Authority and pursuant to that new procedure it believes that Ms A’s requirements will be and are addressed.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts, 2000 to 2004 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant’s case which I must consider. Firstly, whether the complainant has been discriminated against because of her disability, in this case as defined by Section 3(1)(a) and 3(2)(g) of the Acts and within the meaning of Section 5(1) of the Acts. Secondly, I must look, in accordance with Section 4(1), at whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”, and whether “ifwithout such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” If necessary, I must then consider Section 4(2) and whether the respondent has not failed to provide reasonable accommodation if to do so would “give rise to a cost, other than a nominal cost”.
5.3. In making this decision, I have taken cognisance of all the oral and written submissions made by the parties. Discrimination under the Acts is defined in section 3(1) as “where a person is treated less favourably than another person is, has been or would be treated in a comparative situation”. This comparator type of approach under the disability ground is defined as “that one is a person with a disability and the other either is not or is a person with a different disability (emphasis mine)”. In all the circumstances of the present case, then, if the complainant can show that the respondent treated Ms B less favourably than someone with a different disability, then she has established her prima facie case of discrimination under Section 5 of the Acts (i.e. direct discrimination). As it is not contested that the complainant has a disability within the meaning of the Acts and that, in the context of this complaint, it would be “impossible or unduly difficult” for Ms B to avail of the services of the respondent without such special treatment as is provided for in Section 4, she has also established a prima facie case in relation to a failure to provide reasonable accommodation on the part of the respondent if she can show that she was not provided with such special treatment by it.
5.4. At the outset, it should be stated that I found the respondents evidence to be inconsistent and contradictory. I believe that the cause of this confusion stemmed from the respondent’s lack of a clear and coherent policy and practice in relation to the issues at stake in this complaint. At times it stated that it provided the same assistance to all persons with disabilities, including the complainant, on the same terms as anyone else who required such assistance. However, at other times it indicated that it did not consider Ms B to be someone who could travel with it unaccompanied, at least without medical clearance. This lack of coherence was illustrated in the respondent’s principal submission that, rather than simply providing a level of service that would meet this requirement, the complainant seeks to require it to provide the ‘meet and assist’ service to Ms B that was available to her prior to the incident in question. It submitted, however, that it is not obliged to do so as that would require it to provide a level of service to people with intellectual disabilities, such as Ms B, over and above that provided to people with other disabilities, and that nothing in the Acts requires it to do this. However, it is clear from the complainant’s submissions that her difficulty was that she was never offered the level of assistance described in the manual, which would have met the needs of Ms B.
5.5. It is clear to me that the respondent considered that the only kind of assistance that can be provided by it to persons with intellectual disabilities is the ‘meet and assist’ service. I am satisfied it took the view that the assistance that was provided to persons with physical disabilities was not suitable for persons with intellectual disabilities, as it considered that it could not be provided to the latter without an additional level of service which amounted to guardianship, and this level of service was over and above that which it was required to provide under the Acts. In that light, it is significant that, in its own reply to the complainant’s notification form, the respondent stated that it will provide wheelchairs and assistance to incapacitated passengers but will not provide ‘meet and assist’ for those with intellectual disabilities. Furthermore, it was vague, uncertain and contradictory in explaining whether it included persons with intellectual disabilities in its definition of incapacitated passengers who would obtain assistance in the terms laid out in its manual. It appears to me, then, that, at the time of the incidents in question, the respondent’s policy and practice was not to provide the same assistance to persons with intellectual disabilities (who, therefore, cannot travel unaccompanied) as it did to those with physical disabilities.
5.6. Whether the respondent was entitled to take this approach is a matter I will consider at a later stage as, irrespective of what the respondent’s policy and practice was or was not, the complainant must still show that she was treated less favourably by the respondent if she is to establish her prima facie case. In that context, her case is essentially that she would have been treated more favourably than she was if Ms B had a physical disability as opposed to an intellectual one. The key question I must consider then is: were services provided to people with other disabilities which were not made available to the complainant, and, if so, was the reason for that less favourable treatment of the complainant related to her particular disability? It is clear that the respondent paid for and arranged assistance for people with disabilities generally. It is also clear that this assistance was carried out by Y Ltd in Dublin, and also included assistance at the destination airport. In contrast, the services Y Ltd. did make available to the complainant did not include assistance at the destination airport and, furthermore, the respondent said that it was not responsible for the services that Y Ltd. were offering to her. It is clear, then, that people with physical disabilities received a full range of assistance from the respondent and the complainant did not. Given also that the respondent’s only response to the complainant’s request for assistance was to direct her to the services of Y Ltd., there is clear evidence of less favourable treatment on the part of the respondent. However, the question remains as to whether this less favourable treatment was related to Ms B’s particular disability.
5.7. I am satisfied that when the respondent was told that the complainant wished to avail of ‘meet and assist’ services, it was aware of the nature of the complainant’s disability, as the only disabled persons who availed of the ‘meet and assist’ service were people with intellectual disabilities. In those circumstances, I can see no reason, other than the nature of her disability, why she would not be provided with the relevant assistance. The only alternative explanation that the respondent could offer for this different treatment was that the company to whom it outsourced its function in that regard had not been properly informed of its policy. However, it is well established by the Tribunal, and indeed clear in Section 42(2) of the Acts, that a service provider cannot escape the requirements of the legislation by putting the blame on an agency acting on its behalf. The respondent also stated that it was not its intention to discriminate, but whether it intended to discriminate or not is irrelevant. I am satisfied, therefore, that the less favourable treatment of the complainant by the respondent was related to the fact that she had an intellectual disability rather than a physical one and the complainant has established her prima facie case in that regard.
5.8. The respondent also argued that it did not discriminate against the complainant as she cancelled her booking before it had a chance to obtain medical clearance for Ms B, which it argued it was required to do. However, she had already been treated less favourably prior to this and this issue will therefore be considered in the context of my consideration of the respondent’s defence under Section 14 of the Acts.
5.9. In all the circumstances of the present case, Section 4(1) requires that the respondent do “all that is reasonable to accommodate the needs” of the complainant by providing special treatment or facilities. The assistance offered to the complainant by Y Ltd, even if it had been at the behest of the respondent, did not meet the respondent’s obligations under the provisions of Section 4 of the Acts as it was still unduly difficult, if not impossible, for Ms B to avail of this service as there was no suitable assistance made available to her in disembarking from the aircraft.
Consideration of Respondent’s defences
Defence re application of Section 14
5.10. The respondent submitted that it was required to seek medical clearance for Ms B in advance of her flying for safety reasons. It therefore seeks to rely on the exemption provided in Section 14 which states that
“(1)Nothing in this Act shall be construed as prohibiting –
(a) the taking of any action that is required by or under –
iii. any convention or other instrument imposing an international obligation on the State”
In order to avail of the exemption in question, the action taken by the respondent must be required under the Acts but the respondent was unable to point to any specific provision in any convention that required it to compel the complainant to seek medical clearance in advance of flying and I could see nothing in the manual, or in any of the rest of its literature, that points to Ms B being required to submit to medical clearance in advance of flying.
5.11. That said, the safety of aircraft is a very serious issue and I would not lightly question the respondent’s right, and indeed its responsibility, under its international obligations to make a judgement call as to who can or cannot board an aircraft safely. However, the respondent had already made that call vis-à-vis Ms B as she had already been given medical clearance by way of a blanket clearance until 2008, two years subsequent to the time of the incident in question. Even with that, it is accepted that the respondent is entitled to withdraw this clearance in certain circumstances, again particularly where the safety of the aircraft is concerned. But what were those circumstances in relation to this complaint? The only evidence the respondent offered in that regard related to its concerns about issues (such as handling delays, diversions or emergencies) that might arise from continuing the ‘meet and assist’ service in light of increased traffic at Dublin airport. It did not elaborate any further on what those concerns were, how they impacted on health and safety and, particularly, why they required it to withdraw its blanket clearance for the complainant. Its argument is also considerably undermined by the fact that Iberia, another airline flying out of Dublin and which was, at the time, a codeshare partner with the respondent airline, accepted her without question and without medical clearance. Furthermore, Ms B had travelled with the respondent, and other airlines, and had experienced no difficulties when left unsupervised. Finally, and perhaps most significantly, the renewal of the complainant’s medical clearance was given in May 2003, three months after the respondent said it made the decision to withdraw the ‘meet and assist’ service, for the safety reasons on which it seeks to rely herein.
5.12. I am satisfied that if the complainant had turned up at the airport having made a booking, for example if she had made one through the internet without recourse to a travel agent on the reasonable assumption that she already had medical clearance, she could and probably would have been refused boarding. In those circumstances, I think it reasonable to expect that the respondent should at least have made an attempt to notify the complainant within a reasonable period of time from when the decision to withdraw that clearance was made, particularly given that the complainant was the only person affected by this decision. However, the respondent could not even tell me when that decision was made. At the very least, I would expect that on the next occasion when she tried to make a booking she would have been given clear and unambiguous instructions that the clearance had been removed and why it had been removed. Instead, the respondent’s instructions to her were vague, obtuse and contradictory. I would add that I do not believe that the respondent did not have a database (or other source of information) from which it could readily draw in identifying FREMEC card holders where necessary.
5.13. In short, the respondent’s careless approach to this issue considerably undermines the veracity of its argument that further medical clearance was required of the respondent for health and safety reasons, particularly in circumstances where the respondent alleged that the safety of the passengers of an aircraft was at stake. Indeed, in all the circumstances of the present case, this approach is fatal to its defence. In particular, I would reiterate that in order to avail of the exemption to the operation of the Acts that is provided for in Section 14, the respondent must show that its insistence that Ms B obtain medical clearance in advance of flying must be required by a particular obligation. Having taken all things into account, I am not convinced that it was required. There is no doubt that, in certain circumstances and in the interests of protecting safety and security on board its aircraft, the respondent has a right, indeed an obligation, to require certain passengers to obtain medical clearance in advance of flying. However, in all the circumstance of the present complaint, the onus is on the respondent to show that there are genuine health and safety concerns for its actions, as provided for in Section 14 of the Acts. In this case, I am not convinced that it had such genuine concerns. I find, therefore, that the respondent has failed to prove to my satisfaction that it was obliged to require the complainant to seek further medical clearance in advance of flying in order to comply with its international obligations, or any other obligations, in relation to health and safety.
Correct service provider
5.14. The respondent also pointed to the EU Regulation as an indicator that the responsibility for providing the service sought by the complainant is on the relevant airport authority, not the airline. However, this Regulation was not in place at the time of the incident in question. Furthermore, the respondent did not argue with either the Dublin Airport Authority or anyone else prior to the implementation of the Regulation that it was not responsible for the provision of the services in question. I am therefore satisfied that it was, at least at that time, the service provider responsible for the service within the meaning of the Acts.
5.15. Finally, I come back again to the respondent’s principal argument that a higher level of assistance is necessarily involved with someone with an intellectual disability who is travelling unaccompanied, and the Acts do not require it to accept such a level of responsibility. The respondent argued, for example, that in a situation where the plane had to be diverted, the complainant would require special care over and above that required for other passengers, including other disabled passengers. If this were the case, this may well be beyond the scope of the respondent’s obligations under the Acts, as it has submitted. Furthermore, and as already stated, an airline has an entitlement, in certain circumstances, to require disabled passengers to obtain medical clearance in advance of flying or to travel unaccompanied, provided it does so within the framework of the Acts and other relevant legislation as well as, since 2008, the relevant EU Regulation
5.16. The key to the respondents argument in this regard was that, once the ‘meet and assist’ service was withdrawn, in February 2003, it was no longer in a position to provide the level of ‘guardianship’ required. And yet, as already stated, the complainant’s FREMEC card, the blanket medical clearance, was renewed three months later. If the complainant required a level of service equivalent to ‘meet and assist’, then surely her FREMEC card should have been withdrawn from that time, or at least it should not have been renewed after the ‘meet and assist’ service had been withdrawn. Furthermore, the complainant availed of both services for a further two years without any inkling from the respondent about the change in policy. In addition, the respondent was unable to say when precisely the FREMEC card was withdrawn. I would also again point to the fact that Iberia accepted the complainant on board without medical clearance and unaccompanied. Finally, the complainant stated that the level of responsibility for taking care of Ms B was not so onerous as the respondent made out and rejected the respondent’s argument in that regard as evidenced by her description of when Ms B had previously been left unsupervised without difficulty. This being the case, I find it difficult to see what difference there was between the level of ‘guardianship’ attached to the respondent in the case of ‘meet and assist’ and the service provided by the respondent to people with other disabilities that the complainant sought to avail of. Given all these considerations, I am not convinced by the respondent’s arguments in this regard.
5.17. It has already been established that the respondent failed to provide the complainant with reasonable accommodation, contrary to Section 4(1). However, I must also consider whether doing so would give rise to a cost other than a nominal cost as described in Section 4(2). The respondent referenced this argument briefly in the context of the costs that might arise from the ‘guardianship’ argument, including possible insurance implications for it. However, it did not elaborate on these arguments any further or provide any evidence to support its contention in that regard. These arguments must also be considered in light of what I have previously stated regarding the ‘guardianship’ argument. The assistance the complainant was seeking was already being provided to persons with other disabilities. As I do not believe that the provision of this assistance would give rise to a cost other than a nominal cost if it had been provided to the complainant, and in the absence of the provision of any other form of reasonable accommodation to her, the respondent has therefore discriminated against her by failing to provide her with reasonable accommodation, contrary to Section 4 of the Acts.
5.18. As already described in previous paragraphs, the respondent has also discriminated against the complainant by treating her less favourably than someone with a different disability, contrary to Section 5(1) of the Acts.
5.19. In making an order in this case, I am conscious that an EU Regulation is now in place to regulate the provision of assistance to disabled persons in circumstances similar to those at issue in this complaint. The complainants concerns in relation to ensuring that persons with intellectual disabilities are not treated less favourably are provided for in that Regulation. In any event, its operation prevents me from making any order in relation to that. I would, however, recommend to the respondent that it review its existing regimes with regard to the treatment of all persons with disabilities to ensure that they are in full compliance with the Acts.
6.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
6.2. I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground by treating her less favourably than someone with a different disability would have been treated in the same or similar circumstances, contrary to Section 5(1) of the Acts.
6.3. I also find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground by failing to provide her with reasonable accommodation, contrary to Section 4(1) of the Acts.
6.4. The complainant has therefore established a prima facie case of discrimination on the part of the respondent, which the respondent has failed to rebut.
6.5. In accordance with Section 27(1)(a) of the Equal Status Acts, I award the complainant the sum of €1500 in compensation for the inconvenience caused and for the upset and humiliation experienced by the complainant.
3 June 2009