THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Ryan's Investments Limited t/a Hertz Rent A Car
File Ref: ES/2006/0136
Date of Issue: 23rd September, 2009
Equal Status Acts 2000-2008 - Direct discrimination, section 3(1)(a) - Disability ground, section 3(2)(g) - Victimisation ground, section 3(2)(j) - Reasonable accommodation, section 4 - Disposal of goods and provisions of services, section 5(1) - Car rental.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director has 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. The hearing of the case took place on 22nd July 2009 and the final correspondence relating to the case was received on 6th August 2009.
2.1 This dispute concerns a complaint made by Mr. Goulding, that he was discriminated against by the respondent, Ryan's Investments Limited t/a Hertz Rent A Car, on the disability and victimisation grounds in terms of sections 3(1)(a), 3(2)(g), 3(2)(j) and 4(1) of the Equal Status Acts, and contrary to sections 5(1) of the Equal Status Acts.
3. Summary of the Complainant's Case
3.1 The complainant, Mr. Goulding, has Multiple Sclerosis and accordingly is a wheelchair user. The complainant drives a car which is modified with hand controls fitted to allow him mechanically control the foot pedals due to the limited power in his legs. In early September 2006 Mr. Goulding's car was involved in an accident, which left him without a car for a certain period of time. The complainant's insurance policy provided him with cover to get the use of a rental car for a period of up to two weeks while his own car was being replaced. On the 6th September 2006 Mr. Goulding sought to obtain the use of a rental car for a period of time. He claims that he rang the respondent and asked to rent an automatic car with hand controls. He claims that he spoke with two (named) people in the company, both of which said that it had no such vehicles and were unable to help him. He claims that he asked to speak to a supervisor and spoke with Mr. A, desk manager, who said that the company could provide the service however, it would take approximately four days to have the car ready for rental. He claims that he was unhappy with the inconsistency of the message from the staff he spoke with at Hertz Rent A Car and felt that the offer was vague and "not a genuine offer".
3.2 Mr. Goulding maintains that the respondent's service is generally available to the public and that he was discriminated against because of his disability, and that had he not been disabled he would have been provided with the service without any difficulty. He said that he lives out in the countryside and that he is quite isolated without the use of a car. He went onto say that because of the respondent he was unable to carry on his life as per usual and had to depend on the help from others such as his neighbours and family. Mr. Goulding claims that he only spoke with Mr. A on one occasion and that they did not discuss any specific car for rental at any point.
3.3 The complainant claims that he had to ask to speak with a supervisor, having spoken to two company representatives whom he claimed said that Hertz Rent A Car did not offer the service he was looking for. He claims only because of his persistence on the matter was he finally transferred on to speak with Mr. A. He claims the information he received from Mr. A contradicted the two previous company representatives.
3.4 Mr. Goulding claims that he sent notification of his complaint to the respondent, on the official form (Form ES.1), highlighting that he felt he was unlawfully treated and that he may seek redress under the Equal Status Acts. He said that he did not receive a reply within the time limit outlined on Form ES.1.
4. Summary of the Respondent's Case
4.1 The respondent totally refutes that it discriminated against the complainant on the disability and victimisation grounds. Ryan's Investments Limited t/a Hertz Rent A Car is a large car rental company located in Ireland for over 40 years. It operates from a number of locations throughout the Republic of Ireland with a nationwide fleet of 6,400 vehicles on average, and it would have held approximately 30% of the market share at the time that the complainant made contact with it in September 2006.
4.2 The respondent claims that it receives very few requests of this type per year and accordingly, it did not have modified cars fitted with hand controls for rental in its fleet. However, it has established a business relationship with a specialist company since 1999/2000, which carries out modifications to vehicles on its behalf each year (approximately, 5 per year). It also presented as evidence a copy of a printout from this company with references to 30 different vehicle modifications it carried out on behalf of the respondent dating from early 2000 to 2006; all prior to the complainant's request in September 2006.
4.3 The respondent concedes that Mr. Goulding may have received conflicting information about its services, however it claims that Mr. Goulding would have spoken to the receptions' staff who would not know the full details of all its services. Their role is to transfer calls to the appropriate area - e.g. to a booking agent for a straight forward booking or to a desk manager for more unusual requests and so on. The respondent claims that Mr. Goulding was transferred to Mr. A, where he was informed of the procedure for reserving a vehicle. Mr. A gave direct evidence at the hearing, where he recalled that he spoke with the complainant on the 6th September 2006 and he offered him the opportunity to make a reservation for a modified car over the phone however, he claims Mr. Goulding did not make a reservation. Mr. A claims that he felt Mr. Goulding was checking similar services elsewhere and would get back if he wanted to follow up on the offer. He also claims that Mr. Goulding rang on another day and they discussed the options further but he did not make a firm reservation and without the reservation Mr. A could not begin the procedure of ordering a modified car on his behalf. The respondent said that it was happy to be in a position to offer the service to disabled drivers and to bear the cost of making the modification to the car itself, which it claims, is in the region of €130 plus VAT per car.
4.4 The respondent claimed it regrets the fact that it failed to reply to the complaint notification from the complainant and that this was an oversight on its behalf. The respondent also informed the Tribunal of the training procedure it has in place for its staff. It claims that it is very mindful of its responsibilities under the Equal Status legislation and all staff are given one days training on all aspects of the business including issues arising from the said legislation.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, 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, 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 It is not disputed that the complainant contacted the respondent and made a request for an automatic car fitted with hand controls on 6th September 2006. The complainant maintains that the respondent failed to provide him, a person with a disability, with a service that is generally available to the public and accordingly discriminated against him under the disability ground. The respondent claims that it provides its services to all of the public and it does not discriminate against disabled people, it claims that it did offer Mr. Goulding the service he was looking for. It also claims it has a policy in place since 1999/2000 to provide disabled drivers with modified vehicles on request.
5.3 I note from the evidence presented that the complainant claims that he informed the respondent that he had a disability during the course of its telephone conversation on the 6th September 2006. I am satisfied from both parties account of events, that the complainant was told that the service of providing modified automatic cars was available, and that it would require four days notice to supply same. I am satisfied that the complainant was not directly refused a service by the respondent because of his disability. I am satisfied that no evidence was presented to show that the complainant was directly discriminated against by the respondent under the disability ground. Accordingly, I find that the respondent did not directly discriminate against the complainant under the disability ground.
5.4 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
"4. -- (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 in the present case 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 Acts require 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 failure to provide him with a service.
5.5 The evidence adduced at the hearing is that the complainant spoke with two company representatives whom he claims said that the company did not offer the service and that only for his persistence he would not have spoken to Mr. A, the Desk Manager, who informed him differently. Whereas, the respondent claims that Mr. Goulding spoke with receptionist staff who's function is to transfer calls to the appropriate person in the company to deal with the enquiry, which it would appear, is what happened in this case.
5.6 Section 4 of the Equality Status Acts requires all service providers to do all that is reasonable to provide facilities for the disabled in order to allow them avail of the service provided without undue difficulty. However, Section 4 also allows that where the provision of such facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. The respondent has provided evidence to show that it has a policy to provide modified cars for disabled drivers on request. The respondent has also shown that it has an arrangement in place with a specialist company to make modifications to vehicles on its behalf since 2000. I note from the direct evidence presented to me at the hearing, which has been further supported by documentary evidence, that the specialist company has carried out some 30 vehicle modifications on behalf of the respondent between the year 2000 and end of August 2006, which I am satisfied supports the respondent's claims that it had a procedure in place to provide disabled drivers with the service, and that procedure had successfully functioned for some time.
5.7 I am also satisfied from the evidence presented to me in this case that the respondent engaged with Mr. Goulding on the 6th September 2006 in an effort to provide him with assistance and that he was offered a service of a modified car by Mr. A. I note that Mr. Goulding claims that he was initially told the respondent did not offer the service by the first people he spoke with and that he had to persist in order to finally speak with a supervisor. The details of their discussion is somewhat in dispute - Mr. Goulding claims the offer was vague- nevertheless and more importantly the fact that the service was identified as being available (within four days notice) is not disputed. It is my opinion had Mr. Goulding found himself in the need of a car, I would expect that he would have sought clarification of the service from the respondent when he spoke with Mr. A. I am satisfied from the evidence presented by the respondent that Mr. Goulding first spoke with the receptionist staff, who had little knowledge of the full range of services on offer and whose function was to transfer the customer to the appropriate person in the organisation - who Mr. Goulding eventually found himself transferred to. In this instance I find the evidence of the events presented by the respondent to be more compelling and its witnesses credible. Furthermore, I am satisfied that the respondent is aware of its obligations under the Equal Status Acts and has an effective policy in place to provide assistance for people with a disability, and accordingly, I find that the respondent did not discriminate against the complainant under section 4(1) of the Acts.
5.8 The complainant has claimed that he was subjected to discrimination under the victimisation ground. The specific terms of that ground are set out in Section 3(2)(j) subsections (i) to (v), namely,
"(j) that one -
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,"
(ii) has attended as a witness before the Authority, the Director or a court in connection with any enquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the "victimisation ground")."
The complainant did not adduce any evidence whatsoever from which I could conclude that he was subjected to victimisation within the terms of this section. Therefore, I am satisfied that the complainant has not established that he is covered by the victimisation ground and accordingly, I find that he has not established a prima facie case of victimisation.
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. Based on the evidence presented in this case, I find that the complainant has failed to establish a prima facie case of discrimination on the disability and the victimisation grounds in terms of sections 3(1)(a), 3(2)(g), 3(2)(j) and 4(1) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
The Equality Tribunal
23rd September, 2009