The Equality Tribunal
Equal Status Acts 2000-2008
(represented by Scarry O'Connor & Co. Solicitors)
Irish Citylink ComfortDelgro Ltd
File Reference: ES/2010/097
Date of Issue: 16th December 2011
(represented by Scarry O'Connor & Co. Solicitors)
Irish Citylink ComfortDelgro Ltd
Equal Status Act, 2000 - 2008, Direct discrimination, Section 3(1) - less favourable treatment, Section 3(2)(a) - gender, Section 3(2)(h) - race, , Section 5(1) - no discrimination in relation to access to a service, Section 11 harassment, prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 4th October 2010. On the 3rd of October 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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 this date my investigation commenced. A submission was received from the complainant on the 18th of May 2011 and from the respondent on 20th September 2011 and on the 17th October 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 25th October 2011 and the final documentation was received on the 30th November 2011.
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the gender and race ground in relation to access to a service in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status and contrary to Section 5(1) of that Act. He also claims that he was harassed contrary to Section 11 of the Acts.
2 Complainant's Case
2.1 The complainant is from Nigeria. He said that he regularly travelled between Galway and Dublin using the bus service operated by Citylink. On 5th June 2010 he attended the ticket office of the respondent in Galway and purchased his ticket for the journey. He boarded the bus and handed his ticket to the driver who retained one portion of the ticket and marked the other portion and returned it to him. He said he went upstairs on the bus and put his bag on an empty seat to reserve it and returned downstairs because he wanted to use the bathroom. It was occupied so he got off the bus and used the one in the bus station. On his return to the bus he went upstairs he found that his seat was occupied and his bag was on the floor. There was a woman sitting in the seat he had reserved and another woman in the seat beside it and they appeared to know each other. He said to them that he had reserved the seat with his bag and asked them why his bag was put on the floor and they ignored him. He said that he insisted to them that they had taken the seat he had reserved. They said that they had a right to take his bag off the seat because he was not there.
2.2 He then asked the bus driver to intervene. He said that the driver did not ask either of the women about taking his bag off the seat that he had reserved. The driver asked him to follow him downstairs because at this time all the seats upstairs were occupied. All the seats were occupied downstairs also and the driver asked him to get off the bus and told him to get the next bus. The complainant said that he informed the driver that he was not prepared to wait for the next bus because he had an appointment in Dublin which he had to keep and it would be too late if he had to wait for the next bus. He said that he insisted that he had to travel and the driver told him that he could sit on the stairs which he did. The complainant said that he was the only black person on the bus and submits that if the situation was the other way around he is certain that he would have been asked to vacate the seat. He believes that the bus driver should have asked the Irish woman to give him back his seat. The complainant said that other passengers had reserved their seats by leaving a bag on it while they went outside some of them to have a cigarette. While he could have removed a bag from a reserved seat when he returned to the bus he said that he would never do so. He said that he is certain that the driver saw him getting off the bus and when he got back on he was not asked for his ticket because he believes that the driver remembered him and knew he had already checked it. He said that even if he had used the toilet on the bus it would not have made any difference because he would still have reserved it with his bag and it would still have been taken. He states there were too many tickets sold for the number of seats on the bus.
2.3 The complainant solicitor submitted that he was discriminated against on the race and gender ground. She said that the respondent does not permit passengers to stand or sit anywhere other than in a designated seat, and therefore the onus was on the respondent to sell only the number of seats available on the bus, and to ensure that the complainant had a seat. She said that on this occasion the respondent sold too many tickets for the journey and the driver should have identified the person who purchased the last ticket and asked that person to wait for the next bus. Alternatively, the driver could have resolved the matter by explaining to the passengers on the bus that an error was made and invited volunteers to wait for the later bus. She submitted that the drivers handling of the matter was clearly discriminatory towards the complainant. She said that the complainant had purchased his ticket in good time and that he had enough time to use the bathroom. She noted that other passengers had also left the bus to smoke but unlike the complainant their seats were not taken. She submitted that he was treated less favourably on the gender ground in that the female passenger who occupied his seat was not asked by the bus driver to vacate it. He was treated less favourably on the race ground because unlike all the other passengers who had purchased tickets they had seats and he was forced to sit in the stair well for the duration of the journey to Dublin.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against either on the race or gender ground. The Operations Manager (OP) said that tickets for the service can be pre booked either online or over the telephone or at the ticket office. The driver can also sell tickets on the bus. A passenger assistant works with the driver in loading the bus and checking tickets. The driver has the pre booked list with the names of the passengers and he checks off the list as each passenger presents the ticket and he retains one portion of the ticket and returns the other portion which he marks with a biro to the passenger. It appears that on the day the complainant was travelling the bus was not full and the driver in that case can sell tickets on the bus. The driver does not count the passengers on to the bus. In order to determine whether there any vacant seats for sale the passenger assistant counts the passengers and checks to see how many seats are vacant and he gives that number to the driver. On this occasion too many seats were sold by the driver because the complainant had left the bus during the count. When he returned to the bus he was asked to wait for the next bus. He was accommodated by the driver when the complainant said that he wanted to get to Dublin for an appointment.
3.2 OM said that it is not normal for passengers to reserve seats on the bus by placing their backpacks on it. He does not accept that on the day in question that there were a number of seats reserved with backpacks while the passengers were off the bus smoking. He said that there is a policy of no smoking in the coach station or at the departure gates. And he did not accept that any passengers were smoking in the vicinity of the bus. He said that the complainant had no right to leave the bus without informing the driver. Once a passenger's ticket is validated by the driver they are not allowed off the bus for any reason.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(a) and (h) of the Equal Status Act and in terms of Section 5 (1) of that Act. He also submitted that he was harassed contrary to Section 11. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the gender and race ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds ... are ... (a) that one is male and the other is female (the ''gender ground''),
(h) that they are of different race, colour, nationality or ethnic or national origins (the ''ground of race''),"
5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
4.2 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his nationality. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.3 The complainant submits that he was discriminated against on the grounds of his gender and race when the seat he reserved on the bus with his backpack was occupied by a white Irish female passenger on his return. He submits that the bus driver did not ask the passenger to move and that he failed to resolve the matter in a satisfactory manner. He believes that the driver did not ask the passenger to vacate the seat because she was female and he submits that if he had taken the seat in similar circumstances he believes he would have been asked to move. The complainant further submits that he had purchased his ticket in good time and that the driver sold too many tickets and that he should have either asked the last person who purchased a ticket on board the bus to wait for the next bus or he should have asked if any of the passengers would volunteer to wait for the next bus. He submits that he was treated in a discriminatory manner in that he was the only black passenger on the bus and he had to sit on the stairs for the duration of the journey. The respondent's case is that they investigated the complaint with the driver and the complainant was not treated in a discriminatory manner. The complainant did not inform the bus driver that he was leaving the coach and any other passenger who left the coach after checking in would be treated in the same way. It is not the practice for passengers to reserve seats by leaving their backpack on it and no passengers had left the coach to smoke before the journey. The complainant was accommodated by the driver and allowed to sit on the stairs when he indicated that he needed to get to Dublin for an appointment.
4.4 I am satisfied that the complainant is covered by the Equal Status Acts. The next matter for consideration is whether he was discriminated against in relation to access to a service contrary to Section 5(1). It is accepted by both parties that the seat the complainant said that he reserved was taken when the complainant returned to the bus and that there were no other empty seat on the bus by the time the problem came to the attention of the driver. The next matter I have to consider is whether the complainant was treated less favourably than the other passengers in similar circumstances. I note from the respondent's evidence that the driver has a list with the names of the pre-booked passengers and these passengers tickets are validated against that list as they board the bus. I found the evidence presented by the complainant, who was a regular user of the service, very credible and I have concluded that it was the practice of passengers to reserve seats on the bus by placing a backpack on it if they wished to leave the bus for whatever reason e.g to have a cigarette or use the bathroom before commencing the journey. It is clear that that neither the driver or the passenger assistant made any enquires about the removal of the complainant's bag from the seat, nor did they make any effort to accommodate the complainant with a seat, despite the fact that the complainant as a passenger who had pre-booked his ticket according to the respondent's boarding procedures had priority over passengers who had bought a ticket from the driver. It is clear that the bus driver made an error in selling too many tickets. The respondent evidence is that there was no requirement to have procedures in place in the event of such an occurrence because it had never happened before. It is clear that the complainant had priority over a passenger who purchased a ticket on the bus and therefore had an entitlement to a seat ahead of that person and that person was of a different nationality to the complainant. The complainant said that he was the only black passenger on the bus and this was not disputed by the respondent. I am satisfied that in the circumstances the respondent's failure to resolve the complainant's complaint about the seat and requiring him to sit on the stairs for the duration of the journey raises an inference of discriminatory treatment on the race ground. I am satisfied that the complainant was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances. I find that the complainant has established a prima facie case of discriminatory treatment which the respondent has failed to rebut.
4.5 The complainant claims that he was also discriminated against on the gender ground in that it was a female passenger who removed his bag from the seat and refused to give up the seat when requested by him in that if he had taken a seat which a female passenger had reserved he would have been asked to move by the driver. In my view this is speculation. I am satisfied that he has failed to produce any evidence to support the contention that this constituted discrimination on the gender ground. I find that the complainant has failed to establish a prima facie case on the gender ground.
4.6 The next matter I have to consider is whether the complainant was harassed contrary to Section 11 which states:
"11. -- (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (''the victim'') where the victim --
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(2) A person (''the responsible person'') who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place. .........
(5) (a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
The complainant said that he travelled on the respondent's bus a number of times after the incident and he said that he felt uncomfortable. He said that after he made the complaint he noticed that when the other bus drivers saw him they smiled to each other in a "knowing way" about him. He said that on one occasion as he walked past two of the conductors he got a feeling that they were talking and giggling about him. He said that he believed that they were ridiculing him about the incident and this caused him distress. Having considered the evidence, I am not satisfied that the complainant has provided any facts from which it can be inferred that he was subjected to a hostile degrading or offensive environment. In the circumstances I am not satisfied that the complainant has established a prima facie case of harassment.
5.1 I find that the complainant was discriminated against on the race ground contrary to the Equal Status Acts. I also find that he has failed to establish discriminatory treatment on the gender ground and he has also failed to establish harassment in accordance with section 11.
Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
(b) an order that a person or persons specified in the order take a course of action which is so specified."
5.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant. The complainant said that he felt humiliated by the experience and he suffered pain and discomfort for the entire journey because he had no seat. I note the complainant was a regular customer of the respondent's bus service and since the incident even though he has used the service a few times afterwards he no longer felt comfortable in using it. Taking these matters into consideration, I order the respondent to pay to the complainant the sum of €1,250 (one thousand two hundred and fifty euro) to compensate him for the distress and humiliation experienced by him as well as the loss of the amenity to him.
16th December 2011