THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2010-054
(represented by Lennon Heather solicitors)
File Reference: ES/2006/219
Date of Issue: 13th December 2010
Equal Status Acts - Section 3(2)(g) Disability - Persons with restricted mobility (PRM) - Website notices - indirect discrimination
1. Delegation under the relevant legislation
1.1. This case concerns a complaint by Ms Elizabeth Walsh (hereinafter referred to as "the complainant") that she was discriminated against by Ryanair (hereinafter referred to as "the respondent") on the grounds of disability. On 11th October, 2006, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On 26th September, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 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, on which date my investigation commenced.
1.2. A number of hearings were set but were adjourned on application by the complainant in light of exceptional circumstances that arose in relation to those requests. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Thursday, 4th November, 2010. As the complainant presented certain evidence which raised issues not notified to the Tribunal in advance of the hearing, the respondent was provided with an opportunity to respond to these issues in writing after the hearing. Final correspondence was received from the respondent on 1st December, 2010.
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 Acts in terms of Sections 3(1)(a), 3(1)(c), 3(2)(g), and Section 4(1), and contrary to Section 5(1) of the Acts, in that the respondent treated her less favourably and failed to provide her with reasonable accommodation in relation to its policies concerning persons with reduced mobility (PRM's) and its treatment of her when she availed of its services on 13th April, 2006.
3. Summary of the Complainant's Case
3.1. The complainant, who has multiple sclerosis (MS), submitted that the respondent was discriminating against her and persons with disabilities by requiring them to contact it by telephone to inform it of their reduced mobility. She submitted that when, on Thursday, 13th April, 2006, she went to book her flight with Ryanair, there was a notice prominently displayed alerting PRM's that failure to contact it on the day of booking "will result in being unable to travel." The complainant said she wasn't clear what the respondent considered reduced mobility to be and did not want to be refused carriage. She said she was under duress to call because of this threat. However, she submitted that she was unable to do as the respondent requested as the phone lines were closed. She submitted it was unreasonable for the respondent to expect her to do something which was not possible, particularly when the issue was so prominently displayed on the website, and that she was being required to do something which other persons who were not mobility impaired did not have to do. She stated she contacted Ryanair the next day and informed it of her disability and the restrictions on her mobility that came with it.
3.2. The complainant also submitted that the website "appeared intimidating" and appeared to suggest that people with disabilities may be reluctant to admit their disability or might be expected not to inform Ryanair of it. She said that the respondent's website sends a message to other passengers that passengers with disabilities are a threat to general passenger safety. She said the respondent's notices on its website in this respect were displayed in an intimidating and threatening manner.
3.3. The complainant also submitted that when she proceeded to pay for her ticket, and asked for details of taxes payable, there was a tax described on the Ryanair website as an insurance and wheelchair levy. She submitted that not only were people with disabilities inferred to be a safety hazard, the respondent also inferred they were a financial burden on other passengers. She submitted that all ground handling charges, including jetways/airbridges etc should be totalled together and charges relating to people with disabilities should not be itemised separately. She also said that different airports charge differently but Ryanair charge the same no matter what airport is involved.
3.4. The complainant submitted that when she travelled with the respondent on 19th April, 2006, there "appeared to be a misunderstanding of needs" and that pre-boarding was not provided in Birmingham airport, on her return flight, though it was provided in Dublin airport on her outward journey. She submitted that pre-boarding allows those requiring time or experiencing difficulty negotiating a crowd or waiting in a queue to board in their own time. She submitted that she walked with a cane and her disability was obvious. She added at the hearing that, given time, she can manage quite well. However, she said the absence of pre-boarding made it more difficult for her to get into the small space for seating on the aircraft because of the amount of people getting on at the same time. She said that with MS, the smaller the space, the less you can negotiate it. She said that she managed it, but it would have been far easier if the service of pre-boarding had been provided. She submitted that one would expect that the respondent, having demanded she notify it of her reduced mobility, would provide reasonable accommodation for those passengers with obvious needs.
3.5. Finally, the complainant submitted that the respondent was operating a policy of allowing only four reduced mobility passengers on its aircraft, regardless of aircraft type, size or crew allocation. She submitted this restriction was not a provision by any recognised authority, rather a Ryanair policy borne out of its operations manual, which was approved by the Irish Airport Authority (IAA). She said that there is no consensus between Aviation Licensing Authorities as to what are appropriate safety limitations in carrying PRM's, so she questioned whether Ryanair was being truthful in saying it could only carry four PRM's for safety reasons.
4. Summary of the Respondent's Case
4.1. In relation to the requirement, at the time in question, that PRM's must ring rather than go online, to inform it of their disability, the respondent stated that their booking engine was not its own and could not facilitate the provision of this information online. It said this problem had since been resolved. It stated that the complainant was able to contact it the next day and its records noted that the complainant "has a small mobility problem and walks a little bit slowly, she doesn't need assistance." Therefore, the complainant was not a PRM. It added that if the complainant had asked for special assistance, she would have been provided with it.
4.2. The respondent refuted the complainant's allegations in relation to the "prominent" notices within its website. It stated that these notices were put up in consultation with named NGO's expert in the relevant disabilities and other areas of interest and that these organisations were satisfied that the relevant notices were appropriate.
4.3. The respondent stated that the wheelchair levy arose out of obligations imposed on it by the European Commission prior to the implementation of EU Regulation 1107/2006, which came into operation in July 2006 and has been the basis of the charge since then. It said that it specifies this charge out of contractual transparency with its passengers.
4.4. The respondent stated that it does not provide pre-boarding at any airport, only assistance for special assistance passengers for whom seats are reserved on its aircraft, and denied that the complainant was provided with pre-boarding at Dublin airport. The restriction of four PRM's per flight was based on a risk assessment carried out by Auditors, working with the IAA. It stated it is based on having one crew member per special assistance passenger. It said it only counts special assistance passengers among the four. It said the complainant would not have been refused check-in on that basis. It submitted its FAQ's available on its website at the time as corroboration for this. It added that it has never had a complaint about people not being accepted on a flight due to its special assistance requirements, and there was seldom instances where it had its maximum quota of four PRM's seeking to fly on the same flight.
4.5. The respondent stated it had the greatest sympathy for the complainant. However, it said it had not discriminated against her or failed to provide her with reasonable accommodation.
5. Conclusions of the Equality Officer
5.1. 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. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against her on that ground. As the complaint is on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, 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 "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.3. There are four aspects to the complainant's case and I will deal with each of these in turn.
i) the respondent's policy of only allowing four PRM's who require assistance on its flight;
ii) that the complainant was not provided with pre-boarding on her return flight;
iii) the respondent's policy of including a wheelchair charge in with an insurance charge and itemising it among the charges it applies to its sales and its policy. I will consider this matter along with her allegation in relation to notices the respondent placed on its website;
iv) the allegation that the respondent required her to call it to inform it that she required special assistance.
Issue of restriction of number of PRM's allowed on flight
5.4. In accordance with Section 3, the Acts apply only in relation to a situation where a complainant has been treated less favourably or, in the case of indirect discrimination, where (s)he has been set at a particular disadvantage in relation to a particular policy. In the present case, it is clear that the nature of the complainant's disability meant she was not someone affected by the policy in question as she was not a PRM who required assistance, and she was not prevented from boarding the flights in question. Furthermore, the complainant was unable to point to any other adverse treatment suffered by her or any particular disadvantage she was set at in relation to this policy. Therefore, this element of the complainant's case must fail as there is no act of less favourable treatment for me to consider.
Issue of pre-boarding
5.5. The complainant's submission in relation to this aspect of her case is that she should have been provided with pre-boarding because of her disability. In that respect, she relies on the provisions of Section 4(a) as outlined in par. 5.2 above. It is clear that boarding was more difficult for her than someone without her disability, and I am conscious of the difficulties she encounters in every day life in relation to her disability. However, the onus on the respondent to provide special facilities arises only where it is impossible or unduly difficult for the complainant to avail of the service in question. I note that the complainant stated herself it was not impossible for her to board the plane in question. Nor am I satisfied, based on her description with regard to boarding the plane and in light of her submissions as to the nature of her disability and how it affects her ability to travel, that it was unduly difficult for her to board the plane, within the meaning of the term as provided by the Acts. In that context, her claim that the respondent should have made it easier for her to board the plane by providing pre-boarding, as other airlines do, is a customer service issue and not one for me to consider.
Issue of wheelchair levy/prominent notices
5.6. The complainant submitted that by itemising the wheelchair levy, the respondent was discriminating against her and other PRM's by highlighting the cost of carrying them. In addition, she submitted that by including it in with the insurance levy, the respondent was misrepresenting the cost of the wheelchair levy, as it was only a fraction of the insurance costs. The question again arises as to whether the complainant suffered any less favourable treatment as a consequence of this. It is clear that all passengers, disabled or not, were affected by the imposition of the levy, and so the requirement to pay the levy per se is not less favourable treatment of her vis-a-vis people without disabilities.
5.7. The question remains as to whether the complainant, as a disabled person, was discriminated against by the respondent because the levy was itemised in its charges, whereas she submits that other airlines include it amongst its general "taxes and charges" item. The complainant submits that this is discrimination on the basis that it draws attention to the fact that there is a cost associated with providing special assistance to people with disabilities by airlines and airports and that this may have negative connotations for people with disabilities among airline users generally. In that way, she submits that the respondent is discriminating against people with disabilities. I also note the complainant's contention that a notice directing her to information about special assistance was displayed in so prominent a way that it would lead a person to conclude that there was something to be nervous about in sitting beside someone with a disability.
5.8. These are quite abstract arguments. If they fall under my jurisdiction to consider, then it can only be in relation to indirect discrimination (which, in accordance with Section 3(c) is where an apparently neutral provision puts a person at a particular disadvantage in relation to a ground under the Acts). However, there is a dearth of convincing evidence as to how the policies in question put persons with disabilities at any particular disadvantage. In particular in that respect, I note the complainant's argument relies on a number of assumptions, such as that people generally will take a negative view of having a cost associated with providing special assistance to people with disabilities or that they would form the view she says they would form from the notices in question. I cannot see how such assumptions can form the basis of a complaint of indirect discrimination. I would add that, even if her arguments in this respect were correct, the underlying reasons are not within the power of the respondent to resolve (i.e. how people view such issues are not the responsibility of the respondent).
Issue of requiring notice of disability
5.9. The complainant also submits that the respondent discriminated against her by i) insisting that she notify it of her disability or she would be refused carriage, and ii) requiring her to wait until the next day to give this notification as it had to be done by telephone and the lines were closed when she booked.
5.10. The complainant's confusion about what did or did not constitute restricted mobility was not unreasonable. The relevant information made available on the respondent's website was, and remains, neither clear nor easy to find. In that context, it was perfectly understandable for the complainant to think that she had to contact the respondent to inform it of her disability. However, on closer inspection, it would appear that the relevant information does indicate that only persons who need assistance getting on and off the aircraft are PRM's who need to contact the special assistance line. Therefore, it was not strictly necessary for the complainant to ring the telephone line in question. Additionally, I cannot see where reasonable accommodation is of relevance to this aspect of her case. I am not satisfied that these facts are of sufficient significance to raise a presumption of discrimination on the part of the respondent. As this is the test for the complainant to establish a prima facie case, she has failed to do so with respect to this aspect of her claim also.
5.11. Though I am finding against the complainant, and can make no order in this respect, I consider it would be worthwhile for the respondent to review the content of the information on its website regarding persons who may need special assistance to make it clear as to who needs to notify the respondent of special assistance requirements and who does not.
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a) , 3(1)(c), 3(2)(g), Section 4 and Section 5(1) of the Equal Status Acts.
6.3. Accordingly, the complainant's case fails.
13th December 2010